Meschino v Police No. Scciv-03-258

[2003] SASC 258

MESCHINO v POLICE
[2003] SASC 258

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)     This matter is a little out of the ordinary.

2. The appellant appeals from the reconsideration of a pecuniary penalty imposed upon him. He was originally caught by speed camera on 12 January 2003 travelling at 51 kilometres per hour in a 40 kilometre per hour zone. He received an expiation notice which he did not pay. That is dated 20 January 2003 and shows the total amount payable as $141. That was payable by 17 February 2003.

3. An expiation reminder notice was given dated 24 February 2003, which shows an increased amount due of $171. That was payable by 10 March 2003.

4. Finally, there is a notice of order of enforcement which shows a date of enforcement 19 March 2003. That seeks payment of $284 by the due date, 16 April 2003.

5. On about 4 April 2003 the appellant rang the authorities and booked himself in for an assessment by the Fines Payment Unit. They refused his application for the matter to be remitted to the court for the imposition of an alternative penalty.

6. Whether or not it had to do with his approach to the Fines Payment Unit is not clear, but on the same date a notice was issued under s 70E of the Criminal Law (Sentencing) Act 1998 suspending his licence for 60 days.

7. Subsequently, on 9 May 2003, the registrar of the Magistrates Court issued a referral to court for alternative penalty under s 70I of the Act. The referral states in part:

   “Having carried out an investigation into the debtor’s financial means, I am satisfied that the debtor does not have and is not likely, within a reasonable time, to have the means to satisfy the pecuniary sum without the debtor or his or her dependants suffering hardship. I therefore remit this matter to the court for a reconsideration pursuant to s 70I of the Criminal Law (Sentencing) Act.”

8. The referral states that the matter will be heard in the Magistrates Court on Tuesday 20 May 2003 at 9.30 am. On that day the matter was listed before Mr Frederick SM.

9. The record sheet in the court file records that he made an order revoking the order imposing the pecuniary sum and substituting an order that the appellant perform 90 hours of community service within six months.

10. It is from that order, that is, the order made on the reconsideration of the pecuniary penalty and imposing in lieu thereof an obligation to perform 90 hours of community service within six months, that the appeal is brought.

11. The appeal is brought a little out of time and I extend the time for the lodging of the appeal to and including 25 June 2003.

12. Mr Meschino lodged the notice of appeal on his own behalf and was unrepresented at the hearing. In the material which he attaches to the notice of appeal he airs some deep-seated grievances concerning the magistrate, Mr Frederick, stemming in part from his concern at his perception of the way in which his son was treated on an earlier occasion. At the hearing I explained to Mr Meschino that I was not in a position to address any concerns of that kind, and that my task was limited to dealing with the complaint that the order which was made and from which the appeal is brought was unduly severe.

13. I invited Mr Emery, who appeared for the respondent, to indicate whether there was any rule of thumb in these matters. Very fairly, he indicated that since the repeal of earlier statutory provisions, which provided for eight hours of community service per $100 of the fine or pecuniary penalty, there has been no clear rule of thumb.

14. On the one hand, as I understand him, some magistrates still adhere to a practice of ordering eight hours of community service per $100 of fine or pecuniary penalty, but others vary.

15. Mr Meschino has had some experience in these matters of his own. He drew attention to the fact that a fine of $297.50 imposed upon him for driving an unregistered scooter was converted to 16 hours of community service. Then on another occasion a fine of $662.50 for driving under the influence was converted, on his application, to a community service order of 32 hours to be performed over 18 months.

16. It seems to me that it is desirable that there should be some consistency in these matters in the Magistrates Court, notwithstanding the fact that the Act as presently expressed gives no specific guidance as to any particular rate of community service as against the amount of any fine or pecuniary penalty, subject only to the maximum which may be imposed under s 47 of 320 hours of community service.

17. In all the circumstances, it seems to me that it is desirable in the interests of maintaining consistency, and in the absence of evidence suggesting that the rate should be any higher than eight hours per $100, that it should be the rate adhered to for the time being.

18. I propose therefore to vary the order that was made to approximate that rate.

19. However, as I explained to Mr Emery, if there is concern that that rate might be thought to be too low, I certainly do not wish to be thought to have created a precedent which must be applied inflexibly, or which could not be reconsidered by this Court in an appropriate case with a view to fixing some other method of assessing the appropriate amount of community service to be imposed.

20. So that while I will allow this appeal for the purpose of substituting an order roughly approximating to eight hours per $100 I do not do so in any dogmatic fashion or with a view to preventing any further approach to the Court if the authorities concerned with the administration of this part of the Criminal Law (Sentencing) Act 1988 feel that some other standard should be defined.

21. I therefore allow the appeal and order that the order under appeal fixing 90 hours of community service be varied so that the amount of community service be reduced to 25 hours to be performed over six months.