McNeill v Police - [2017] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCNEILL v POLICE
[2017] SASC 66
Reasons for Decision of The Honourable Justice Hinton
4 May 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - OTHER MATTERS
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
TRAFFIC LAW - OFFENCES - PROCEDURE - INFORMATION AND COMPLAINT
Appeal against conviction and sentence and application for extension of time within which to appeal.
The appellant was ordered to perform 116 hours of community service within 12 months. The order was made pursuant to s 70U of the Criminal Law (Sentencing) Act 1988 (SA) upon the Court being satisfied that the appellant did not have, and was not likely within a reasonable time to have, the means of paying two fines and related costs totalling $1,542.21.
The first fine was imposed after the appellant was charged on Complaint with the offence of exceeding the speed limit to which he pleaded guilty. The respondent conceded that the Complaint was laid out of time was therefore invalid. The second fine took the form of an expiation notice for speeding.
The respondent contended that despite their concession that the Complaint was invalid, the order for community service need not be interfered with. The respondent submitted that the portion of $1,542.21 had been "removed" with the consequence that the number of hours of community service that the appellant was to serve would automatically be proportionately reduced. This, it was said, would occur not by virtue of the operation of s 70U(9) Criminal Law (Sentencing) Act 1988 (SA), but by application of the same principle as is contained in that section. In the alternative, the respondent submitted that this Court should remit the matter for re-hearing.
Whether the principle in Criminal Law (Sentencing) Act 1988 (SA) s 70U(9) applies if part of the pecuniary sum to which an order relates is “removed” rather than “paid”. Whether the number of community service hours would automatically be reduced proportionately in accordance with s 70U(9).
Held, allowing the appeal:
1. No part of the pecuniary sum owing having been paid, s 70U(9) of the Criminal Law (Sentencing) Act 1988 (SA) has no application to this case.
2. The Magistrate was required to assess each application by the Fines Enforcement and Recovery Officer for a community service order separately.
3. Matter remitted to the Magistrates Court for re-hearing.
Criminal Law (Sentencing) Act 1988 (SA) s 3, s 61, s 70U; Expiation of Offences Act 1996 (SA) s 13, s 14A, referred to.

MCNEILL v POLICE
[2017] SASC 66
Magistrates Appeal
HINTON J.
Introduction

This is an appeal against an order made by the Magistrates Court on 14 February 2017 requiring that the appellant, Mr McNeill, perform 116 hours of community service within 12 months. That order was made on the application of the Fines Enforcement Recovery Officer under s 70U of the Criminal Law (Sentencing) Act 1988 (SA) (CL(S)A) and upon the Court being satisfied that Mr McNeill did not have, and was not likely within a reasonable time to have, the means of paying two fines and related costs that he had incurred totalling $1,542.21.[1]
[1] AMC 16-15082.
Of the two fines, the first was imposed on 8 August 2016 after Mr McNeill was charged on Complaint and pleaded guilty to the offence of exceeding the speed limit committed on 12 February 2015.[2] He was convicted and ordered to pay a fine, costs and levies totalling $769.00. With respect to the second fine, that took the form of an expiation notice in the sum of $219.00 issued to Mr McNeill for the offence of speeding detected by a speed camera on 4 May 2015.[3]
[2] AMC 16-10022.
[3] EXREG-15-143621.
Mr McNeill paid neither fine. Consequently he incurred overdue payment penalties, with the result that the debt payable grew from $988.00 to $1,542.21.
At all times Mr McNeill has been unrepresented.
As mentioned Mr McNeill appeals against the order of 14 February 2017. That said his Notice of Appeal is cast more broadly. Not only does he challenge the order made on 14 February 2017, but also the conviction and sentence imposed on 8 August 2016, and the issue of the expiation notice.
On the hearing of the appeal on 21 April 2017 I made the following orders:
As to AMC-16-10022:
(1)    Time in which to appeal against conviction and sentence is extended to the extent necessary.
(2)    Appeal allowed.
(3)    The orders of 8 August 2016 are set aside.
(4)    By consent, the Complaint filed 8 August 2016 is quashed.
As to AMC-16-15082:
(1)    Appeal allowed.
(2)    The orders of 14 February 2017 are set aside.
(3)    The matter is remitted to the Magistrates Court for hearing according to law.
My reasons for making those orders follow.
A concession is made
On the hearing of the appeal the respondent conceded that the Complaint upon which the orders were made on 8 August 2016 was filed out of time.[4] No power to extend time existed. Accordingly, the respondent quite properly conceded that Mr McNeill’s Notice of Appeal should be accepted as performing the dual function of instituting an appeal against the orders of 14 February 2017 and 8 August 2016 and that an extension of time in which to appeal the orders of 8 August 2016 be granted. I acceded to that suggestion and made the orders on AMC-16-10022 to which reference is made above.
[4] Summary Procedure Act 1921 (SA) s 52.
The respondent then contended that the effect of allowing Mr McNeill’s appeal in relation to the order of 8 August 2016 and quashing the related Complaint was that a portion of the $1,542.21 to which the order of 14 February 2017 related had been “removed” with the consequence that the number of hours of community service that Mr McNeill was to serve would be proportionately reduced. This, it was said, would occur not by virtue of the operation of s 70U(9) CL(S)A, but by application of the same principle as is contained in that section.
Community service as a last enforcement resort
The application made in this case by the Fines Enforcement and Recovery Officer sought to invoke the jurisdiction conferred on the Magistrates Court by s 70U(1) CL(S)A. That section provides:
(1)The Court may, on application by the Fines Enforcement and Recovery Officer, make a community service order in relation to a debtor, if the Court is satisfied that the debtor does not have, and is not likely within a reasonable time to have, the means to satisfy a pecuniary sum without the debtor or his or her dependants suffering hardship.
The subject of an application made by the Fines Enforcement and Recovery Officer under s 70U(1) is a pecuniary sum that has not been satisfied by a debtor. Section 3 CL(S)A defines a pecuniary sum as meaning a fine, compensation, costs, a sum payable pursuant to a bond or to a guarantee ancillary to a bond, or any other amount payable pursuant to an order or direction of a court and includes a VIC levy.[5]
[5] A VIC levy is also defined in s 3 CL(S)A. It means a levy imposed under the Victim of Crimes Act 2001 (SA) or a corresponding previous law. Further, under s 60(3) CL(S)A the meaning of a pecuniary sum is extended to include any fees, charges and other charges added to the pecuniary sums under the Part 9 Division 3 CL(S)A. See CL(S)A s 70I(2), and EOA s 14A(3).
An expiation notice is not a pecuniary sum for the purposes of s 3 CL(S)A. A different regime exists for the enforcement of expiation notices, one provided for in the Expiation of Offences Act 1996 (SA) (EOA). That said, under s 14A(2)(b) EOA the Fines Enforcement and Recovery Officer may take enforcement action against a person issued with an expiation notice who has not elected to be prosecuted,[6] not paid the expiation fee, and in relation to whom the Fines Enforcement and Recovery Officer had made an enforcement determination,[7] under Part 9 Division 3 Subdivision 4 or Subdivision 5 CL(S)A. In such circumstances references in Part 9 Division 3 Subdivision 4 or Subdivision 5 CL(S)A to a pecuniary sum are to be taken as references to the amount due in relation to an expiation notice and references to the debtor as references to the person in relation to whom enforcement action is taken.
[6] Before the Magistrate Mr McNeill indicated that he elected to be prosecuted on EXREG-15-143621. It appears he did so ineffectively because he was out of time.
[7] Expiation of Offences Act1996 (SA) s 13.
The application made by the Fines Enforcement and Recovery Officer in this case was, as indicated, made under s 70U(1) CL(S)A with respect to an amount of $1,542.21 representing the total of a fine imposed by the Magistrates Court and an expiation notice issued by police, plus the victims of crime levy and overdue penalties. Section 70U is contained in Part 9 Subdivision 5 CL(S)A.
Under s 61 CL(S)A the Fines Enforcement and Recovery Officer may, if a debtor owes a pecuniary sum in addition to an amount under an expiation notice, as in this case, make an aggregation determination if the debtor has requested the making of such determination or an enforcement determination has been made under the EOA. Nothing in the application made in this case suggests that an aggregation determination was made. The relevant effect of an aggregation determination is that the expiation amount is taken to be part of the pecuniary sum owed by the debtor.[8] Absent aggregation, the application under s 70U(1) CL(S)A was, in truth, two applications.
[8] CL(S)A s 61(3)(a). Absent an aggregation in determination, where a debtor owes a pecuniary sum and an amount due under an expiation notice the enforcement process will require the Fines Enforcement and Recovery Officer to follow the distinct processes set out in the CL(S)A and the EOA relevant to each amount due. In other words, absent an aggregation determination the Fines Enforcement and Recovery Officer cannot deal with both sums due as part of one process. See CL(S)A s 61(3)(c).
The power to make a community service order is conditioned on the Court being satisfied that the debtor does not have, and is not likely within a reasonable time to have, the means to satisfy a pecuniary sum without the debtor or his or her dependants suffering hardship. Four points should be made here; first, the inquiry is into current and future ability to satisfy the pecuniary sum. That suggests that payment is the primary objective, consistent with the enforcement scheme more generally.[9] A community service order is an enforcement measure of last resort. Second, before a community service order may be made the Court must reach the requisite state of satisfaction. Third, assuming the Court does reach the requisite state of satisfaction, arguably a discretionary power to make the order is enlivened. I would wish to hear further argument before deciding whether s 70U(1) CL(S)A vested a power coupled with a discretion enlivened and exercisable upon the requisite state of satisfaction being arrived at, or a power to be exercised upon the requisite state of satisfaction being reached. I think it likely to be the latter, but as I have said, I have not had the benefit of argument on the point. Fourth, if the requisite state of satisfaction is reached, and subject (arguably) to the exercise of the discretion, the Court simply makes a community service order. It does not impose or determine the period of community service to be undertaken. That is achieved by force of s 70U(2) CL(S)A. It provides:
[9] As much is made plain by s 70U(10) CL(S)A.
(2)If a community service order is made by the Court under this section, the following provisions apply:
(a) the number of hours of community service to be performed by the debtor is—
(i) if the pecuniary sum is equal to or less than the prescribed unit—7.5 hours; or
(ii)if the pecuniary sum exceeds the prescribed unit—7.5 hours for each prescribed unit of the pecuniary sum and for any fraction left after dividing the sum by that unit, up to a maximum of 500 hours;
(b) the debtor must not, during the period for which the order applies, leave the State for any reason except in accordance with the written permission of the Fines Enforcement and Recovery Officer.
The function performed by s 70U(2) illuminates that performed by s 70U(9). Section 70U(9) CL(S)A states:
(9)If, while a community service order is in force, part of the pecuniary sum to which it relates is paid, the number of hours of community service to be performed under the order will be reduced by a proportionate amount.
Section 70U(9) CL(S)A effects a legislative variation to the number of hours of community service to be performed as determined by the operation of s 70U(2) upon the making of an order under s 70U(1). Section 70U(9) does not vary or amend an order made under s 70U(1). Rather s 70U(9) assumes a valid order has been made and remains on foot.
If this analysis is correct, the conclusion that the Magistrate had before him two applications has the consequence that he or she was required to undertake the task committed to the Magistrates Court by s 70U(1) CL(S)A in relation to each application. This is not an insignificant conclusion. The task is not one that allows the Magistrate to waive a debtor’s indebtedness in whole or in part. The task is to be undertaken having regard to the total of the particular pecuniary sum subject of the application. That is to say, the question is, does the debtor have, or is the debtor likely to have, the means to satisfy the pecuniary sum under consideration in total without the debtor or his or her dependants suffering hardship. For the obvious reason the answer to that question may differ if the Court is considering the ability to satisfy one large sum as opposed to a number of smaller ones.
Consideration
Giving the text of s 70U(9) CL(S)A its ordinary meaning, it has no application to this case. No part of the pecuniary sum owing has been paid. Further, s 70U(9) has nothing implicitly to say about a case such as this.
For the reasons given above there was, in truth, two applications before the Magistrate on 14 February 2017 each necessitating separate consideration. That did not occur. It follows that the process resulting in the one order on 14 February 2017 has miscarried.
If I am wrong in my understanding of the operation of s 70U(1) CL(S)A, the respondent’s concession has the consequence that the process has nonetheless miscarried. A factual mistake has been made in that the Magistrate reached the required satisfaction in the belief that the pecuniary sum was $1,542.21 when, in fact, it was only $219.00 plus penalties attached to that sum.
Conclusion
For these reasons I allowed Mr McNeill’s appeal against the order of 14 February 2017, set aside the order, and ordered that the matter be remitted to the Magistrates Court whereupon, I anticipate, in light of the concession in this Court, the Fines Enforcement Recovery Officer’s application will be amended.