Police v Bond - [2011] SASC 217

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BOND
[2011] SASC 217
Judgment of The Honourable Justice Kourakis
22 November 2011
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
Appeal against magistrate’s findings as to payment of storage fees for impounded vehicle - respondent pleaded guilty to offences contrary to Motor Vehicles Act 1959 – respondent’s motorcycle impounded by police – decision made to impound for 28 days - police made application for recovery of costs of impounding including storage fees for 28 day period pursuant to s 9(1) Criminal Law (Clamping Impounding and Forfeiture of Vehicles) Act 2007 – magistrate granted application for recovery of impounding costs but limited recovery of storage fees to one day – whether magistrate erred in construction of Criminal Law (Clamping Impounding and Forfeiture of Vehicles) Act 2007 - whether order should be made pursuant to s 13 Criminal Law (Sentencing) Act 1988.
Held – appeal allowed – impounding storage fees imposed by magistrate set aside and in lieu thereof the fee of $1174.00 imposed - magistrate erred in construction of Criminal Law (Clamping Impounding and Forfeiture of Vehicles) Act 2007 in finding that there was no power to impound a vehicle after finalisation of proceedings for the offences on which the vehicle was seized – error in construction led to further error in the particular circumstances of the case through failure to adjourn application under s 9(1) until motorcycle was released – fees payable by respondent reduced to $800.00 pursuant to s 13 Criminal Law (Sentencing) Act 1988.
Criminal Law (Clamping Impounding and Forteiture of Vehicles) Act 2007 s 5, s 6, s 9; Criminal Law (Sentencing) Act 1988 13, Part 9 Division 3 , referred to.

POLICE v BOND
[2011] SASC 217
Magistrates Appeal: Criminal

KOURAKIS J (ex tempore): This is an appeal brought by the South Australian Police against a decision of the Magistrates Court refusing its application for an order that the respondent pay daily storage fees pursuant to the Criminal Law (Clamping Impounding and Forfeiture of Vehicles Act 2007 (the Act) for the whole of the statutory period of 28 days.
The respondent Mr Bond, pleaded guilty and was convicted and fined on the traffic offences for which his motorbike was seized on the same day the offences were committed. The Magistrate ordered that the respondent pay a daily storage fee for that day only.
In my view the Magistrate was wrong to hold, as he did, that the power to impound the respondent’s motorbike lapsed on the final determination of the charges for the offences on which the power was exercised. However, I hold that an order cannot be made under the Act for the payment of fees which have not yet been incurred. The Magistrate should have adjourned the application to such time as a sum certain could be determined. The motorbike has since been returned to Mr Bond. The total of the impounding fees for which Mr Bond is liable is now known. I set aside the Magistrates order and will make an order for the payment of the impounding fees but will reduce that amount pursuant to s 13 of the Criminal Law (Sentencing) Act 1988. I elaborate my reasons below.
At about 9.55 am on 10 August this year Mr Bond, committed offences of driving a motorbike whilst not authorised to do so and driving that motorbike whilst it was unregistered and uninsured.
Mr Bond was taken into custody on his apprehension for those offences and his vehicle was impounded. The fact that the vehicle was impounded was common ground in the Magistrates Court. Counsel for the police has informed me of the factual circumstances of the seizure. Mr Bond did not dispute those facts. I am satisfied that the motorbike was seized, in a proper exercise of the power given by s 5 of the Act. Mr Bond was finally dealt with in the Magistrates Court for the offences to which I have referred.
At about 1.45 pm on the same day, Mr Bond pleaded guilty to the offences and was fined $150, in part, because of the time he had spent in custody during the morning. The offences are prescribed offences for the purposes of, and therefore attract the provisions of, the Act. The police sought an order pursuant to s9 of the Act that Mr Bond was liable to pay the impounding fees. Impounding fees are fixed by regulation. They include an administration fee of $75, a transportation fee of $239 and a daily storage fee of $20.
On the prosecutor’s application, the Magistrate ordered the payment of the administration fee, the transportation fee and a storage fee for one day only in the sum of $20. The Magistrate limited the storage fee to one day because he held that the power of the police to impound vehicles under the Act expired on the disposition by the Magistrates Court of the matters on which the seizure was based.
Section 5 of the Act provides:
5—Power to clamp or impound vehicle before proceedings finalised
(1) If a person—
(a) is to be, or has been, reported for a prescribed offence and has been advised of that fact; or
(b) has been charged with, or arrested in relation to, a prescribed offence, a relevant authority may clamp or impound either—
(c) a motor vehicle allegedly used by the person in the commission of the offence; or
(d) any motor vehicle of which the person is a registered owner.
(3) A power to clamp or impound a motor vehicle under this section may be exercised at any time before proceedings for the relevant prescribed offence have been finalised.
It can be seen from that section that the power to impound may only be exercised by police before the proceedings for the relevant prescribed offence have been finalised. The police did, as I earlier explained, exercise the power to seize before the finalisation of the summary proceedings brought in respect of the offences.
Section 6 of the Act provides:
6—Period of clamping or impoundment
Subject to this Part or to an order under section 21, a motor vehicle that has been clamped or impounded under this Part is liable to remain clamped or impounded for a period of 28 days, commencing at the start of the day on which the motor vehicle is so clamped or impounded.
It can be seen that the minimum period of impounding of 28 days is imposed by force of the statute itself upon the exercise by police of the power to seize. Section 6 is not a power exercisable by police. It is, as I have said, a statutory consequence of their exercise of the power to seize.
It follows that the finalisation of the summary proceedings by the Magistrate before the period of 28 days had expired did not vitiate the earlier exercise of the power to seize and could not affect the statutory consequence prescribed by s 6 of the Act.
Section 9 provides for the payment of clamping or impounding fees as follows:
9—Payment of clamping or impounding fees
(1) If—
(a) a motor vehicle is clamped or impounded under this Part in relation to a prescribed offence; and
(b) a court subsequently finds the person guilty of the prescribed offence or another prescribed offence arising out of the same course of conduct,
the court must, on application by the prosecution, order that the person is liable to pay the clamping or impounding fees to the Commissioner.
(2) If an application is not made to the court in accordance with subsection (1), the person is, on being found guilty of the prescribed offence or another prescribed offence arising out of the same course of conduct, liable to pay the clamping or impounding fees to the Commissioner (and in such a case, the fees are recoverable as a debt).
(3) In this section—
"clamping or impounding fees" means fees calculated in accordance with the regulations in relation to the clamping or impounding of the motor vehicle under this Part.
There is some ambiguity about s 9 of the Act. On one construction the Magistrate must simply make an order in terms of s 9(1) of the Act. That is, an order that the person ‘is liable to pay the clamping or impounding fees to the Commissioner’. That would then leave the calculation of the fees, and in particular the multiplication of the prescribed storage fee by the number of days the vehicle was impounded, to another authority. Alternatively, s 9(1) of the Act contemplates the calculation of the fees by the Magistrate in accordance with the regulations and an order that a defendant is liable to pay the sum so calculated.
In my view, the latter construction should be preferred. I reach that view because the mechanisms for the enforcement of pecuniary orders made by criminal courts appear to contemplate only the enforcement of orders for the payment of fixed sums. The enforcement provisions in Part 9, Division 3 of the Criminal Law (Sentencing) Act 1988 (Division 3) are premised on a liability to pay a pecuniary sum. The natural meaning of those words suggests a fixed sum. Perhaps more importantly, there is no statutory provision in Division 3 for the Court to calculate, administratively, an unliquidated sum which a defendant has been ordered to pay. The absence of any such provision contrasts with the express provisions of Division 3 that do allow the Court to administratively add pecuniary amounts for late payment and notice fees incurred in the course of the enforcement.
There remain some operational issues. In particular, the Magistrates Court must make an order in terms of s 9(1) of the Act if an application is made by the prosecution. What then does the Magistrates Court do, in circumstances such as these, where the vehicle must remain impounded for at least 28 days unless an order is made earlier for the release of the vehicle. The Commissioner has discretion to release the vehicle earlier than the statutorily prescribed period pursuant to s 8 of the Act. The Magistrate can not know whether or not an order for early release will be made. The practical course available to the Magistrates Court is to adjourn the determination of the police application made pursuant to s 9 of the Act until the vehicle has been released.
I need not finally decide whether or not some other alternative course is available, or indeed whether an incohate order that a defendant is liable to pay impounding fees can be perfected into an obligation to pay a fixed sum which has been calculated administratively. I am satisfied that the Magistrate erred in his construction of the Act and in particular, in holding that there was no power to impound a vehicle after finalisation of the proceedings for the offences on which it was seized. That error of construction has led the Magistrate to err in the circumstances of this case making the order he did instead of adjourning the application until Mr Bond’s motorbike was released.
For those reasons I set aside the order of the Magistrate Court with respect to the impounding fees. I will not remit the matter to the Magistrates Court. I will make the order which can now be made with certainty because Mr Bond’s motorbike has been returned to him. Unfortunately Mr Bond was not in a position to take back his motorbike for another fortnight after the statutory period had expired. I am told that his motorbike was released to him on 23 September 2011. I am told by Mr Bond that he applied for its release on 22 September 2011. The regulations made under the Act require the daily storage fee to be paid until the day an application is made for the return of the vehicle. The total storage fee, calculated at $20 per day is $860.
The total of the impounding fees, including the $75 administration fee and the $239 transportation fee is $1174.
Mr Bond appeared on the appeal in person. Mr Rodriquez who appeared for the police has properly drawn my attention to s13 of the Criminal Law (Sentencing) Act and the power exercisable by the Magistrates Court, and now by me, for the reduction of pecuniary sums in the case of severe hardship.
Mr Bond has made an oral application that I do so. He has not provided any documentation verifying his financial circumstances. However, I am satisfied on the basis of his submissions, which are not challenged, that he receives a Veteran’s pension of some sort for a disability from which he suffers. I am satisfied that he makes payments to support his daughters who are cared for by their mother. There are standing arrangements for the payment of those sums and his daughters depend on them for their welfare.
I am also satisfied that Mr Bond has a large amount outstanding in fines and pecuniary penalties. I am told that his dealings with the Registrar of Motor Vehicles have been suspended in an attempt to enforce payment of his outstanding fines.
I have not been provided with information about the precise nature of Mr Bond’s disability but I am satisfied that Mr Bond’s capacity to organise his life, to obtain steady employment, and to effectively manage his financial affairs, has, for some reason, been substantially impaired. I have formed that strong view in this course of this hearing in which I have had the opportunity to hear from Mr Bond at some length.
I am satisfied, therefore, pursuant to s 13 of the Criminal Law (Sentencing) Act, in the special circumstances of this case, and notwithstanding the ordinary requirement that applications of this sort be supported by documentary evidence, that Mr Bond will be unable to comply with this order in any realistic timeframe. I am also satisfied that it will cause real prejudice to his dependants.
For those reasons, I will reduce the total sum of $1174 to $800 and substitute that sum for the impounding fees ordered by the Magistrate.
ADJOURNED 11.34 A.M