Police v Fewings

[2010] SASC 300

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v FEWINGS

[2010] SASC 300

Judgment of The Honourable Chief Justice Doyle (ex tempore)

22 October 2010

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES - OTHER CASES

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE

TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES

Appeal against a decision of a Magistrate refusing to order that respondent pay impounding fee – Magistrate erred – Magistrate obliged to make the order – appeal allowed.

Motor Vehicles Act 1959 (SA) s 9; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 4, s 5(1)(a), s 9; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4(f); Criminal Law (Sentencing) Act 1988 (SA) s 13, referred to.

POLICE v FEWINGS
[2010] SASC 300

Magistrates Appeal:  Criminal

1. DOYLE CJ (ex tempore): Mr Fewings was charged on complaint with driving a motor vehicle on a road, the motor vehicle registration not being in force, contrary to s 9 of the Motor Vehicles Act 1959 (SA). Mr Fewings appeared before the Magistrates Court and pleaded guilty. The Magistrate imposed a fine of $80, to which were added the normal amounts for court fees, victim’s levy and prosecution costs. The offence was committed on 22 May 2010. The registration had expired on 17 May 2010, five days earlier.

2. When Mr Fewings was stopped by police on 22 May the police impounded his motor vehicle for seven days. This was an exercise of the power conferred by s 5(1)(a) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (Impounding Act). The power to impound arose because the offence against s 9 of the Motor Vehicles Act was a prescribed offence.

3. The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) (Regulations) contain a definition of a prescribed offence. By reg 4(f) of the Regulations, “prescribed offence” includes an offence against s 9 of the Motor Vehicles Act other than a first offence.

4. The offence in question was not a first offence. Mr Fewings was convicted of an offence against s 9 of the Motor Vehicles Act on 6 May 2009, so this was a second offence against s 9.

5. The prosecutor informed the Magistrate of the prior offence and applied for an order that Mr Fewings pay the impounding fee imposed by the Commissioner of Police. That fee is prescribed by or determined in accordance with Sch 1 of the Regulations.

6. Section 9(1) of the Impounding Act provides as follows:

   (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.

   The section is clear; if application is made to the court, the court must order that the person is liable to pay the impounding fee.

7. The Magistrate declined to make the order, considering that to do so was not warranted, the registration having expired only five days before the offence. I consider that the Magistrate erred.  He was obliged to make the order.

8. Section 4 of the Impounding Act provides:

   (1)A power exercisable under this Act is exercisable in addition to any other penalty that may be imposed on a person in relation to a prescribed offence.

   (2)However, a court must, in imposing another penalty on a person in relation to a prescribed offence, have regard to any exercise of powers under this Act.

   This makes it clear that the impounding fee is an additional impost or payment. Even if the Magistrate had directed his attention to this section, in my opinion he could not have reduced the fine on this account. I say that because the fine of $80 that he imposed for a second offence was a very low fine.

9. In the circumstances of this particular case, there is no reason to consider whether there is any other statutory basis for declining to impose the impounding fee.  No submissions were put to the Magistrate on that point.

10. For completeness I refer to s 13 of the Criminal Law (Sentencing) Act 1988 (SA) which, if the sum in question is a pecuniary sum, would have been available to the Magistrate. But again, in the particular circumstances of the case, there is no reason to think that even if that power had been available to the Magistrate this was an appropriate case for its exercise.

11. I should add that I consider that the order or the refusal to make an order is part of the sentence imposed by the Magistrate and so can be the subject of an appeal under the Magistrates Court Act 1991 (SA), or alternatively the making of an order or the refusal to make an order is independently appealable on the basis that it is an order made by the Magistrates Court.

12. Accordingly, I order that the appeal be allowed; that the Magistrates Court order refusing to order that the impounding fee be paid be set aside; that an order be substituted that Mr Fewings is liable to pay the impounding fee to the Commissioner, the amount of the impounding fee being $427.25. I order that there be no order as to the costs of the appeal.