MCMURTRIE v POLICE

[2005] SASC 410

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

MCMURTRIE v POLICE

Reasons for Decision of The Honourable Justice Vanstone (ex tempore)

28 October 2005

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against Magistrate's order - fines remitted to community service - service not performed - whether proper grounds to excuse failure - appeal dismissed.

Criminal Law (Sentencing) Act 1988, s 71, Part 9, referred to.

MCMURTRIE v POLICE
[2005] SASC 410

Magistrates Appeal:  Criminal

1. VANSTONE J:     This is an appeal against an order by a Magistrate that the appellant serve twenty five days in prison, pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (“the Act”). 

2. The background to the matter is as follows. On 21 May 2002 the Murray Bridge Magistrates Court remitted fines owed by the appellant in the sum of $2,586.10. That was done upon the condition that the appellant undertake to perform two hundred and four hours of community service work within twelve months. The appellant did not perform any hours in accordance with that order. The Department earlier made two applications that the order be enforced, but on both occasions the Court found proper grounds to excuse the failure (s 71(7) of the Act) and extended the term of the order by six months.

3. On 8 June 2005 a third application was heard, the appellant again having failed to perform any hours in pursuance of the order.  The appellant was represented by counsel who again sought to establish proper grounds upon which the failure could be excused.  Those grounds included some medical material placed before the Magistrate, together with a letter from Anglicare concerning the appellant’s more recent involvement in a personal support program.  The medical material presented was rather patchy.  The appellant was hampered in presenting a comprehensive medical report by the death of the medical practitioner whom he generally saw in 2002 and 2003.  In addition, there were periods of some months between consultations and therefore it was difficult to substantiate the contention that the appellant’s medical or psychiatric condition had prevented him from completing any hours of community service.  Nonetheless, the material did make clear that at a point prior to the end of the final six months when the hours should have been completed (that period being from 2 December 2003 to 2 June 2004) and in particular on 10 May 2003, the appellant was diagnosed with depression and commenced on antidepressant medication.  It seems that this consultation was followed by a more acute episode a week or so later when the appellant was reported to have swallowed fifteen of the antidepressant tablets.  In any event, the Magistrate before whom the third application came found that this chain of events was not such as to excuse the failure to perform any hours of community service. 

4. The Magistrate also called for and reviewed the files concerning the two previous applications for enforcement.  The appellant complains about that, and about the use made of them.  The Magistrate said he did so in order to determine whether those files contained material which would substantiate the submissions made on the appellant’s behalf.  He said that no such material was found.  The Magistrate said this:

   I accept that you have had personal difficulties in your life that may have prevented you from time to time attending to your community service obligations, however I am not satisfied that your medical history prevented you from making some effort to comply with the various orders of this Court.

5. Mr Ibbotson, for the appellant, submits that in making the statement I have set out the Magistrate erroneously reviewed the decisions given in relation to the earlier applications.  He put, in effect, that the Magistrate questioned the correctness of the two previous decisions and then used against the appellant his own view of what had there occurred.  That is, that he threw into the balance in the application before him, that the appellant had previously had the benefit of two decisions which he considered were without justification. 

6. It is not clear to me whether the Magistrate’s reasons for refusing to excuse the breach were ex tempore.  I am inclined to think that they were and that the way in which he expressed himself perhaps gave rise to a sense of grievance in the appellant.  However, I am satisfied that the Magistrate’s decision was based on the material presented to him.  Elsewhere, he explicitly said he accepted the previous decisions excusing earlier failures and there is nothing to contradict that.  The material supporting the Department’s application provided an ample basis for the Magistrate’s ruling.  Whether or not “proper grounds” to excuse a failure of this kind are to be found is very much a matter of discretion.

7. It appears to me that the appellant is unsuitable for community service.  Although 28 years of age, he is obviously immature and has various social and cognitive shortcomings.  When the matter first came on before me the appellant had devised a means, with the assistance of his solicitor and family, whereby he could repay, over time, the entirety of the outstanding court fines.  Unfortunately, there does not seem to be any legislative mechanism by which I could have turned the clock back, as it were, to cancel the community service order and restore the obligation to pay the fines.  Had there been such a mechanism, the respondent would have been prepared to have seen it utilised.  The respondent accepts that there is little point in persisting in enforcing the community service hours. 

8. In the event, I determined to adjourn the matter for three months.  The proposal by the appellant was that with the help of his family (with whom he would be residing) the appellant would set aside $300 per fortnight towards payment of the fines.  That could only be done informally as there would be no mechanism for the Registrar of the Magistrates Court to accept such monies.  I intimated that if that amount were available in three months time I would be inclined to set aside the order for imprisonment.

9. That time has now passed and the appellant has not adhered to that programme or anything like it. In fact, only $300 has been lodged in the Legal Services Commission’s trust account, and that was done early in August. In the circumstances there is nothing more that can be done to achieve an outcome which both meets the legislative policy underlying Part 9 of the Act and obviates the need for the appellant to serve time in a correctional institution.

10. In these circumstances the orders I make are:

    1.     appeal dismissed;

    2.     bail revoked;

    3.     order of Mr Sprod SM of 8 June 2005 to come into effect.