Morley v Police - [2005] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORLEY v POLICE
Judgment of The Honourable Justice Duggan
30 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - POWER TO BRING APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - bond and pecuniary penalty imposed by magistrate on plea of guilty for offence of theft contrary to Criminal Law Consolidation Act 1935 s 134 - issue as to existence of right of appeal - appeal against terms of bond is competent - appeal against failure of court to abide by Criminal Law (Sentencing) Act 1988 s 13 is competent - not appropriate to interfere with decision of magistrate in relation to terms of the bond - whether magistrate prevented by s 13 from making an order requiring appellant to pay any pecuniary sum - submissions made on appellant's financial situation not sufficient to require magistrate to refrain from ordering the appellant to pay the pecuniary sums - appeal dismissed.
Criminal Law Consolidation Act 1935 s 134; Magistrates Court Act 1991 s 3, s 42(1); Criminal Law (Sentencing) Act 1988 s 13, referred to.
The Queen v Szpajchler (1982) 31 SASR 236, applied.
Lyberopoulos v Svilans, Kerno & District Court of SA (unreported, 2 August 2001), distinguished.

MORLEY v POLICE
[2005] SASC 233
Magistrates Appeal

DUGGAN J. The appellant has appealed against the sentence imposed on him in the Magistrates Court for the offence of theft contrary to s 134 of The Criminal Law Consolidation Act 1935. Under that section the former offence of receiving can be charged under the extended concept of theft. In effect it was alleged that the appellant received a shirt and a pair of pants of the value of $30.00 which had been stolen by another person.
According to the facts put to the court by the police prosector, the appellant approached the service desk at the Kmart store in Port Pirie with a pair of ladies pants requesting that he be permitted to return them in exchange for money. He produced a receipt which was not a receipt for the item. Police spoke to him a short time later and recovered the pants and a ladies shirt which were in his possession. When questioned the appellant said that a friend had stolen the items from Kmart and given them to the appellant who knew they were stolen.
The appellant pleaded guilty to the offence. The magistrate ordered that no conviction be recorded and the appellant entered into a bond in the sum of $300 to be of good behaviour for 18 months. It was a condition of the bond that the appellant perform 200 hours of community service. The appellant was also required to pay certain costs and court fees which are referred to below.
Ms Lee-Justine, for the respondent, raised a preliminary issue as to the competency of the appeal. She submitted that there was no right of appeal because the appellant had not been sentenced for an offence; instead he entered into a bond to be of good behaviour.
The right of appeal from the Criminal Division of the Magistrates Court is conferred by s 42(1) of the Magistrates Court Act 1991 which provides:
A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination.
“Judgment” is defined in s 3 of the Act as “a judgment, order or decision.”
The words which are used in the definition section are of wide import. In my view the opportunity provided for a defendant to enter into a bond is consequent upon a “decision” of the court. Furthermore, I think it can be said that the imposition of a bond is an “order” of the court. In The Queen v Szpajchler (1982) 31 SASR 236 the question arose as to whether an appellant could appeal against a condition of a recognizance. Admittedly the proceedings were instituted under a different statutory regime, but the court held that the condition was a part of the sentence and therefore appealable under s 353(d) of the Criminal Law Consolidation Act 1935. King CJ said at 237:
It seems to me that the suspension of the operation of the sentence, and the terms upon the observance of which that suspension is conditioned, form part of the sentence and are subject to appeal. I do not think that the entry by a convicted person into the recognizance for the purpose of securing suspension of the sentence can preclude him from appealing against the sentence on the ground that the conditions of the recognizance are unduly stringent. I think that it would be unrealistic to attribute to such a person acceptance of the terms of the recognizance. He must agree to enter into the recognizance on the terms prescribed by the judge as the price of securing the suspension of the sentence. His choice is quite illusory. If the conditions of the recognizance into which the appellant must enter as the price of the suspension of the sentence are unduly stringent, the sentence is erroneous and the appellant may, in my opinion, challenge it by way of appeal notwithstanding that he has entered into the recognizance.
The compulsory aspect of the recognizance referred to by King CJ is in keeping with the view that the imposition of a bond is an “order” of the court. In my view the fact that a suspended sentence was imposed in Szpajchler’s case does not detract from its relevance in this respect.
In my view the appeal against the terms of the bond is competent. If it were not so one of the surprising results would be that the prosecution would have no right to appeal against the imposition of a bond which it submitted was a manifestly inadequate penalty.
The aspects of the bond which are challenged are the period of the recognizance and the requirement to perform 200 hours of community service. According to the argument these conditions are out of proportion to the offending.
The appellant was aged 19 at the time of the offending. In his affidavit the police prosecutor states that he advised the court the appellant “has a prior offending history” and he read to the court the appellant’s most recent and relevant prior appearance. In these circumstances the court could take into account only that offending which was alleged, a larceny committed on 12 March 2002. The appellant was dealt with in the Youth Court for that offence. No conviction was recorded and he entered into a good behaviour bond for six months.
As King CJ went on to say in Szpajchler’s case at 238 the cases in which an appellate court will interfere with the conditions of a bond will be extremely rare. He added:
The shaping of the terms of a recognizance is within the discretion of the sentencing judge and only manifest error would lead an appellate court to interfere.
I do not think it is appropriate in this case to interfere with the magistrate’s decision and adjust the terms of the bond. The period of community service does appear to be quite high, but I cannot say that the period of the recognizance and the length of the community service which was imposed are outside the bounds of the sentencing discretion.
The remaining issue in the appeal relates to the orders for the payment of various pecuniary amounts. The appellant was ordered to pay a court fee of $108, prosecution costs of $16.00 and a victims of crime levy of $35.00.
Section 13 of The Criminal Law (Sentencing) Act 1988 provides:
Order for payment of pecuniary sum not to be made in certain circumstances
(1)the court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that –
(a) the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(1a)In considering whether the defendant would be able to comply with the order, the court should have regard to the fact that defendants may enter into arrangements under Division 3 of Part 9 for an extension of time to pay pecuniary sums or for payment by instalments.
(2)The court is not obliged to inform itself as to the defendant’s means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
The appellant argued that the magistrate was prevented by the section from making an order requiring the appellant to pay any pecuniary sum.
Ms Lee-Justine also questioned the competency of the appeal in this respect. She argued that the failure by a court to abide by the provisions of s 13 is not appealable. According to the argument, the magistrate’s decision was properly characterised as an administrative action and not capable of review by way of appeal.
The authority cited in support of this proposition was Lyberopoulos v Svilans, Kerno & District Court of SA (unreported, 2 August 2001). In that case Lander J decided that a refusal by a master of this court to waive fees was an administrative action and therefore not subject to an appeal pursuant to s 50(2) of the Supreme Court Act 1935. Section 50(2) permits an appeal against “a judgment, order, direction or decision of a master”.
There is an obvious distinction between an administrative function of the type under consideration in that case and a statutory requirement dealing with the powers of the court to make orders which are part of the sentencing process. The argument that no appeal lies on this aspect of the case must be rejected.
Mr Coates, for the appellant, stated in his affidavit that he advised the magistrate the appellant was homeless at the time of the offence. The appellant has a partner and a daughter who is a little over one year old. A second child is due soon. When the matter was before the Magistrates Court the appellant and his partner were residing in a caravan park.
Unfortunately the submissions were not supported with any financial information which might have indicated that the defendant would be unable to pay the actual amount or that compliance with the order would unduly prejudice the welfare of the dependants of the appellant. The submissions which were made on the general situation of the appellant do not provide a sufficient basis for such an assessment. I cannot say that the magistrate must have been satisfied of the matters referred to in s 13(1)(a) or (b) on the information before him so as to refrain from requiring the appellant to pay the pecuniary sums.
The appeal will be dismissed.