Police v Patterson
[2012] SASC 182
•17 October 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PATTERSON
[2012] SASC 182
Judgment of The Honourable Justice Peek
17 October 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES - OTHER CASES
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
The respondent whilst disqualified drove his vehicle on a public road in order to move it from his front driveway to the rear driveway. Police impounded his vehicle. The respondent pleaded guilty to the charge of drive whilst disqualified contrary to s 91(5) Motor Vehicles Act 1959. The Magistrate imposed a fine of $400.00 plus the VIC Levy but refused to order that the respondent pay the impounding fee as applied for by the prosecutor under s 9 of the Act.
Whether the sentence was manifestly inadequate – whether the Magistrate erred in law in refusing to order the respondent to pay impounding fees – Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 considered.
Held: Prosecution appeal allowed in relation to the refusal of the Magistrate to order the respondent to pay the impounding fees. While the only application that the Court must grant under s 9 is a valid application for impounding fees based upon an underlying valid decision to impound a vehicle (rather than clamp it), in the present case there was insufficient material before the Magistrate to permit him to draw an inference that the underlying decision to impound was invalid. No evidence was tendered to suggest that the decision was irrational or unreasonable. The Magistrate erred in refusing to accede to the prosecution’s application. Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 considered.
Prosecution appeal dismissed in relation to the ground claiming that the sentence is manifestly inadequate having regard to all of the facts including that the respondent now has to pay an additional $874.00 impounding fee as well as the original fine and levy.
Criminal Law (Clamping, Impounding and Forteiture of Vehicles) Act 2007 (SA) ss 4, 4(1), 4(2), 5, 5(1), 5(3), 6, 8, 9; Motor Vehicles Act 1959 (SA) s 91(5); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act Regulations ss 4, 6 Schedule 1; Criminal Law (Consolidation) Act 1935 (SA) s 340; Magistrates Court Act 1991 (SA) s 42, referred to.
Police v Fewings [2010] SASC 300; Kruger v Commonwealth (1997) 190 CLR 1; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59; Police v Hanley [2011] SASC 175; Associated Provincial Picture Houses Ld v Wednesbury Corporation [1948] 1 KB 223, considered.
POLICE v PATTERSON
[2012] SASC 182Magistrates Appeal
PEEK J. Prosecution appeal under s 42, Magistrates Court Act 1991 (SA).
Introduction
As at 28 October 2011 the respondent was disqualified from driving. On that day his vehicle was observed being driven on the public road near his house by a person who reported this fact to police. Police attended and spoke to the respondent who admitted that he had driven the vehicle whilst disqualified. On 6 November 2011 police formally interviewed the respondent and reported him for driving whilst disqualified. Police seized his vehicle and impounded it, purportedly acting under s 5(1), Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (hereafter referred to as “the Act”).
The proceedings before the Magistrate
On 21 February 2012 the respondent was charged on complaint with driving whilst disqualified and summonsed to appear at the Magistrates Court on 27 March 2012. He duly appeared on that day unrepresented, pleaded guilty and explained what had happened. The Magistrate accepted his version and stated that he considered that the offending was “minor” in the circumstances. His reasons are not unduly lengthy and may conveniently be reproduced in full:
I accept that you drove only a short distance that you drove out of one drive-way, a very short distance along the street to the next drive-way, to drive the car to the rear of your premises and keep it off the road because of the disqualification.
In the circumstances this is a minor offence, as far as I am concerned, there will be a conviction and there will be a fine of $400.00, plus the VIC levy. As far as the impound fee; the police had the option of clamping the motor vehicle in the drive-way rather than impounding. They chose to impound it and I am not going to grant that fee. I will grant the clamping fee, however the prosecutor is not able to advise me what the actual fee is and therefore I make no order.
Accordingly, the Magistrate imposed a fine of $400.00 plus VIC levy of $160.00, a total of $560.00.
The appeal proceedings
The police appeal against both the sentence imposed on the charge of driving whilst disqualified and the refusal of his Honour to order the respondent to pay an impounding fee. The grounds of appeal are as follows:
1 The learned magistrate imposed a sentence that was manifestly inadequate.
2The learned magistrate erred in law by refusing to order the defendant to pay impounding fees to the Commissioner.
The respondent appeared unrepresented on the appeal. Understandably, he had not prepared an affidavit as to what had happened in the Magistrates Court. He stated to the Court the facts surrounding the offence in terms which are no doubt very close to what he had said to the Magistrate. He said that while he was disqualified he had allowed a friend to take possession of, and use, his car but when it approached the end of its registration, the friend could not continue using it and had deposited it back in the respondent’s front driveway. The respondent wanted to move it from there out to the back driveway so he could get it out of the way and do a bit of work on it. The front driveway was not connected to the rear driveway and therefore he had to drive it on the road to get it there. The respondent said that the friend was Daniel Hatcher, indicating a male person sitting near to him in Court, and said that Mr Hatcher could substantiate what he had said. The respondent further stated that the police officer who attended on 6 November 2011 stated to him words to the effect that “because he (the police officer) had been told (by some other police officer) that he should impound the vehicle, it will be taken away”. The respondent said that there was no discussion with him as to whether the vehicle should be clamped or impounded and that he had had no idea as to the differences between the two options.
I asked prosecution counsel whether he wished for the respondent (or Mr Hatcher) to be sworn and repeat the above. Counsel stated that he did not and that the Court could act on what the respondent had said, whether or not any of it might be fresh evidence.
The assessment of penalty is linked to any award for impoundment fees
The two grounds of appeal are inter-related in that his Honour had to take into account any order for payment of fees under the Act when assessing penalty for the offence itself. Thus, s 4 provides:
4—Powers under Act in addition to other penalties
(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.
I will therefore first consider ground 2 of appeal (whether there should be an order to pay impounding fees) and then return to ground 1 (assessment of penalty) in the light of the fate of ground 2 of appeal.
Ground 2 of appeal: the application for an impounding fee
The prosecutor made application to the Magistrate that the respondent be ordered to pay an impounding fee under s 9 of the Act in the amount of $874.00. As to this application, the relevant part of the affidavit of the prosecutor appearing before the Magistrate was as follows:
I made an application for an order against the respondent for the payment of the impounding fee of $874.00.
The Magistrate asked me whether the defendant’s car was taken from his driveway to be impounded and I confirmed that it was.
The Magistrate asked me why the respondent’s vehicle was not clamped. I responded that it was the reporting officer’s decision to impound the car.
The Magistrate asked what the cost of clamping a vehicle was. I responded that I could not say exactly but that I believed the cost was similar to the cost of impounding.
The Magistrate rejected the application and refused to order the respondent to pay the vehicle impounding fee.
The Magistrate said words to the effect that the vehicle should have been clamped instead of impounded and not knowing the cost of clamping he would not make an order for any fees.
This account of what was said accords with what his Honour stated in his reasons and I do not understand the respondent to dispute it.
However, it was agreed by counsel for the appellant at the hearing of the appeal that the prosecutor at trial had been in error in thinking that the amount of the two fees was “similar”. The total amount claimed for impounding fees here was $874.00 comprising (under the rates then applicable[1]) an administration fee of $75.00, a fee of $239.00 for transporting the vehicle to the storage facility and $560.00, being a vehicle storage fee calculated at the rate of $20.00 per day for 28 days. By contrast, the amount of the clamping fee would have been less than $200.00 in total, comprising (under the rates then applicable) an administration fee of $31.75, a fee of $75.00 for attaching the clamps, a fee of $75.00 for removing the clamps and a further sum, quite small in the present case, for travelling to and from the location where the clamps were to be attached (and again on removal) calculated at the rate of 90 cents per kilometre.
[1] The rates have since been increased. The fees payable at the time of the present offence appeared in reg 6. Schedule 1 to the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 was as follows:
Schedule 1—Prescribed fees Fees payable to Commissioner in relation to impounding of a motor vehicle (section 9 of Act) 1 Administration fee (to be charged once only in relation to the impounding of a particular motor vehicle in relation to a particular offence) $75.00 2 Fee for transportation of vehicle to storage facility $239.00 3 Vehicle storage fee $20.00 per day (or part thereof) during which the vehicle is impounded or remains uncollected* Fees payable to Commissioner in relation to clamping of a motor vehicle (section 9 of Act) 4 Administration fee (to be charged once only in relation to the clamping of a particular motor vehicle in relation to a particular offence) $31.75 5 Fee for attending to attach clamps to motor vehicle $75.00 plus a fee of 90 cents per kilometre travelled to and from the location at which the clamps are attached 6 Fee for attending to remove clamps from motor vehicle $75.00 plus a fee of 90 cents per kilometre travelled to and from the location at which the clamps are removed It is obvious that the Magistrate was aware that clamping fees are significantly less than impounding fees; these matters are continually coming before the Magistrates and the issue of the clamping/impounding dichotomy regularly arises.
His Honour observed that there did not appear to be any reason why the respondent’s car should have been impounded rather than clamped in his back driveway. He considered that a power to impound rather than clamp should be exercised reasonably by police and it was in that context that he inquired as he did about the respective fees. His Honour offered to make an award equivalent to the clamping fee but the prosecutor stated that he was not able to advise as to the relevant figure. That being so, his Honour then declined to make any order.
I recognise the common sense and justice of the approach of the Magistrate here. However the question arises as to whether, as a matter of law, his decision can be upheld in the particular circumstances of this case.
The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007
The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 essentially deals with two main topics: first, the forfeiture of motor vehicles and, second, the clamping or impounding of motor vehicles.
A Kable[2] challenge?
[2] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
The matter of forfeiture of motor vehicles does not directly arise in the present case and I simply note that the forfeiture process is quite different from the clamping/impounding process. The forfeiture process purports to be a Court process, entirely depending for its efficacy on an order of the Court. It is possible that the particular position in which the Court is placed by this legislation may give rise to a challenge on Kable[3] grounds in an appropriate case but it is not necessary for me to consider that matter in the present case.
[3] Ibid.
Unlike the forfeiture process, the clamping/impounding process itself is a direct exercise by a police officer of power granted by the South Australian Parliament.[4] However, having exercised such power, the process of then applying to a Court which, under s 9(1)(b) of the Act “must, on application by the prosecution, order that the person is liable to pay the clamping or impounding fees to the Commissioner” may again raise the spectre of a Kable[5] challenge. Again, that matter is not now raised before me and it is unnecessary for me to address it.
[4] I leave to one side for the moment the matter of an application to the Court for an order that a defendant pay clamping/impounding fees which will be discussed below.
[5] Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51.
Clamping and impounding generally
The police purported to impound the respondent’s vehicle under s 5 of the Act, which provides as follows:[6]
[6] References are to the Act in force at the time of the subject events. The present version is different in some minor respects and such differences will be noted where applicable.
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[7] 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.
[7] An offence contrary to s 91(5), of the Motor Vehicles Act 1959 was (and remains) a prescribed offence under reg 4 Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 for the purposes of a prescribed offence in s 3(1) of the Act.
The effect of s 5 appears to be that if a police officer reports, or even “intends” to report, a person as having allegedly committed any “prescribed offence”,[8] police officers may immediately impound or clamp[9] any vehicle of which that person is the registered owner.[10] This is so irrespective of any protestations of the owner that they are innocent of the charge and before they even appear in court.
[8] See Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007, reg 4.
[9] Section 5(1).
[10] Section 5(1)(d).
The ambit of “prescribed offences” is wide, some offences being relatively minor. For example, driving with expired registration (other than a first offence) is a prescribed offence and in Police v Fewings[11] (referred to below) driving when registration had lapsed only five days previous to the driving resulted in not only prosecution but also police impounding the vehicle.
[11] [2010] SASC 300.
The act of clamping or impounding triggers a period of 28 days during which the vehicle will remain in that state irrespective of whether the person is actually guilty of any offence.[12] The person may make an application in limited circumstances to the Commissioner of Police to end the 28 day period but such application may not be speedily resolved. Thus, s 8(2d) states:
If the Commissioner has not determined an application made under this section within 8 days after it is received, the Commissioner is to be taken to have refused the application.
[12] Section 6.
There is no appeal against actual or deemed refusals by the Commissioner. The reality is that a vehicle will likely remain impounded or clamped for at least the whole of the 28 day period, no matter how innocent the defendant might be.
Section 19 of the Act provides that no compensation is payable in respect of the exercise or purported exercise of powers under the Act.
The doctrine of the separation of powers
Obviously, the Act is highly Draconic legislation. However, of even greater concern than the unfairness that may arise in particular cases is the fact that the Act seriously erodes the doctrine of the separation of powers. That doctrine encompasses a number of important principles, one of which may, for present purposes, be put in this way. It is not the province of police (or other members of the executive) to punish persons; rather, it is the exclusive duty of the judiciary to impose penalty in an open, transparent and consistent fashion upon persons who have been proven in open court to have committed clearly specified offences.
In my view, one of the most disturbing aspects of this legislation is that the assertion by a police officer of a suspicion that a person has committed a “prescribed offence” enlivens in the police officer a broad discretion to decide as between two alternatives; namely whether that person will simply be prosecuted for the suspected offence in the traditional way or whether such person will, in addition to that traditional prosecution process, also be visited with the added severe penalty of being deprived of access to a motor vehicle for at least 28 days under the s 5 process described above (as well as being liable for fees said to thereby be incurred).
Additionally (as will be discussed below), it is at the further discretion of police as to whether the methodology of “clamping” or “impounding” will be chosen, the latter option carrying with it substantial additional punishment in the form of the higher impounding fees.
Application by the prosecutor for the payment of clamping/impounding fees
Section 9 of the Act provides that the prosecution may make an application for recovery of fees:
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.
The true extent of the requirement that a court “must” grant an application by the prosecutor for the payment of clamping/impounding fees
Despite the apparent breadth of the powers given to police, it would be a serious mistake for police officers to assume that decisions as to the use of powers such as these can be made capriciously or without carefully taking into account the appropriate factors relevant to the making of such decisions.
To illustrate by the use of an obvious example (which is not suggested to correspond to the facts of the present case), if a person committed a “prescribed offence” and a police officer were to decide to impound a vehicle simply because he disliked the racial or religious background of the person, that decision to impound would be unlawful for various reasons, including that improper considerations were taken into account and/or because it was for an improper purpose.
Not only would the decision to clamp or impound in such a case be invalid, but also in such a case a Magistrate would not be compelled to grant an application for an order that the person pay clamping/impounding fees: if the underlying administrative decision is invalid an application for such an order founded upon that invalid decision must also be invalid.
It is true that in several decisions of the Court it has been stated that the Court must grant an application by the prosecutor for the payment of clamping/impounding fees. Thus, in Police v Fewings[13] Doyle CJ said:
[6]… section [9(1)] is clear; if application is made to the court, the court must order that person is liable to pay the impounding fee.
[13] [2010] SASC 300.
Similarly, in Police v Hanley,[14] White J stated:
[7]The effect of s 9(1) is to oblige a court finding a person guilty of a prescribed offence to pay clamping or impounding fees to the Commissioner. Neither s 9(1) itself or any other provision in the Impounding Act vests in a court a discretion in relation to the payment of impounding fees.
[14] [2011] SASC 175.
However, in such cases the underlying decision by police to interfere with the vehicle was never suggested to be invalid. As stated above, if such underlying decision is established to be invalid, then an application for an order that the person is liable to pay the clamping or impounding fees founded upon such decision is also invalid: the only application that a Court can be compelled to grant is a valid or lawful application and the word “application” as used in the words in s 9(1)[15] must be interpreted in that way.
How is a police officer to make a valid decision as to the appropriate exercise of these broad powers under the Act?
[15] “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 question therefore arises as to how a police officer is to make a valid decision as to the appropriate exercise of these broad powers in any particular case. The sea of administrative law is wide and deep and I will refer to just three observations from textbooks that come readily to hand. First, in Aronson, Dyer and Groves, Judicial Review of Administrative Action, the matter is put thus:[16]
The dominant approach nowadays is for the courts to inject an objective element into every subjective power. In effect, the court implies the missing word (“reasonable”), which usually eliminates what used to be an important difference between the two forms of drafting. According to Brennan CJ:[17]
[W]hen a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised …
The High Court has broadly endorsed that approach,[18] which has a long pedigree. It is more than a century since Lord Halsbury LC said that a discretionary power to do something meant:[19]
[T]hat that something is to be done according to the rules of reason and justice, not according to private opinion … according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself.
[Other footnotes omitted]
[16] Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009) 98.
[17] Kruger v Commonwealth (1997) 190 CLR 1, 36.
[18] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, 532; Re Patterson, Ex parte Taylor (2001) 207 CLR 391, 447; and Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59, [54].
[19] Sharp v Wakefield [1891] AC 173, 179.
Second, in Douglas and Jones’s Administrative Law it is put thus:[20]
The fact that a decision is ostensibly within the powers of the person who made it does not necessarily mean that the decision is lawful. … First, repositories of powers may not use those powers for improper purposes. This is obviously the case where the statute conditions the power on its being used for a particular purpose, but it is also the case where the statute is silent. In this case, the duty to act only for proper purposes is implied. …
Second, repositories of powers must take account of relevant considerations, and must not take account of irrelevant considerations. This too may follow directly from the relevant legislation which may condition the making of the decision on the taking account of particular considerations. But the duty may exist even if the statute is silent. In these cases, the duty to take account of particular considerations may be implicit rather than explicit. …
… The duty to take account of relevant considerations and the correlative duty not to take account of irrelevant considerations will sometimes be clear from the words of a statute: see, for example, the Migration Act 1958 (Cth) which seeks to provide a comprehensive guide to the considerations which are to be taken into account in the making of migration decisions. In such cases the decision-maker and then the court may still have to decide whether the statutory catalogue is exhaustive or merely inclusive.
But sometimes, the statute is silent about the matters to be taken into account. The lack of specificity could be interpreted as indicating a legislative intention that the decision-maker enjoy a relatively unfettered discretion. However, the nature of the statute may suggest some limits to what may and may not be taken into account by the decision-maker. In this case an analysis of the legislation as a whole must be undertaken to establish the positive and negative reaches of the statutory duty. Minister for Aboriginal Affairs v Peko-Wallsend (below) is a good example of a case where the statute was silent as to whether a consideration had to be taken into account but where there were nonetheless powerful arguments for the proposition that a particular consideration was one which had to be taken into account. Sometimes, relevance or irrelevance will be less apparent and, in these cases, decisions will necessarily involve value judgments in relation to questions about who ought to decide what is relevant. …
[20] Roger Douglas, Douglas and Jones’s Administrative Law (The Federation Press, 5th ed, 2006) 399, 423.
And finally in Australian Administrative Law: Fundamentals, Principles and Doctrines, it is put in this way:[21]
However, one view is that it ‘goes without saying’ that Parliament intends that statutory powers be exercised reasonably. This is a reasonable assumption because, in a representative democracy, one would not ordinarily expect the people’s representatives to give the executive power to act arbitrarily and capriciously. In practice, then, the courts often apply a presumption of statutory interpretation to this effect. However, there is not room for this presumption to operate if a statute clearly and unambiguously gives a decision maker power to decide unreasonably. …
… Administrative decision makers are required to act reasonably, unless the statute clearly demonstrates that Parliament intended to give them power to act unreasonably. …
(Emphasis added; footnote omitted)
[21] Matthew Groves, HP Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 213.
As to that very last observation in emphasis above, there is of course no suggestion here that the Parliament intended to bestow powers on police to act unreasonably – but that is the very point. Any such suggestion that the Parliament intended to give powers to police to use otherwise than reasonably would be a very disturbing development for South Australia indeed.
A further distinction between the forfeiture and clamping/impounding provisions
Finally, it may well be that a further distinction must be made between the forfeiture provisions and the clamping/impounding provisions when considering invalidity for irrationality or Wednesbury[22] unreasonableness.
[22] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.
It may be that in the case of a forfeiture application, the policy considerations are so wide and nebulous that it will be difficult to characterise many applications as irrational or unreasonable.
However, the situation may be somewhat different in the context of an initial decision by police that one of the courses of clamping or impounding is to be adopted since the policy considerations here are much more confined than in the case of a forfeiture application. Further, when one comes to the present case, one considers an even more narrow issue. If the decision has already been taken that one or other of the two alternatives of clamping or impounding will be adopted, one then reaches the ultimate narrow decision adverted to by the Magistrate in the present case, namely as to which of those alternatives will be chosen. This very specific decision to either clamp or to impound is in very narrow compass and the relevant factors to be taken into account will be similarly confined and much more discernible. The result may be that irrationality or Wednesbury[23] unreasonableness is commensurately easier to establish in this context of the narrow question of whether to clamp or impound as distinct from the context of the broader questions concerning whether to interfere with a vehicle at all (including the issue of forfeiture). However, it is unnecessary to explore these matters further in the present case.
[23] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.
Conclusion as to ground 2 of appeal
As to ground 2 of appeal, counsel for the appellant submitted that the Magistrate had acted contrary to s 9 of the Act in declining to order that the respondent pay an impounding fee of $874.00 and relied upon decisions of the Court, such as Police v Fewings[24] and Police v Hanley[25] referred to above.
[24] [2010] SASC 300.
[25] [2011] SASC 175.
The Magistrate was clearly concerned that the police may not have taken into account the alternative option of clamping when deciding to impound the vehicle with the result that there was imposed upon the respondent a significantly higher and unnecessary financial detriment.
However, in my view, it was insufficient for the Magistrate simply to state that the police had the option of clamping the motor vehicle. While this may delineate the potential for an invalid decision, it was necessary to actually demonstrate that the decision to impound (rather than clamp) was invalid. It was not simply a matter of the Magistrate assessing what he considered reasonable or unreasonable. Rather, it had to be shown that the decision was irrational or was unreasonable in the Wednesbury[26] sense or was invalid because (as examples): irrelevant considerations were taken into account; or relevant considerations were not taken into account; or the decision was taken for an improper purpose.
[26] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.
Here it appeared that the officer who seized the vehicle had been directed to do so by another officer; it was that other officer who was probably the decision maker but we simply do not know on what basis he or she came to the decision to impound the vehicle. We do not know what factors were, or were not, taken into account and what guidelines, if any, had been promulgated for use in such circumstances.
Such matters, and more, could be investigated in an appropriate case by legal representatives of a defendant by the usual processes and the results then considered by a Magistrate. It is possible that the invalidity of a decision to impound rather than clamp might thereby be established with the effect of defeating an application for payment of clamping/impounding fees for the reasons explained above.
However, that process of investigation and consequential consideration of relevant material by the Magistrate did not occur here and I am therefore compelled to find that ground 2 of appeal is made out in the present case.
Ground 1 of appeal: the sentence for driving whilst disqualified
Section 91(5), Motor Vehicles Act 1959 states:
A person must not drive a motor vehicle on a road while his or her licence or learner’s permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner’s permit.
Maximum penalty:
For a first offence—imprisonment for 6 months.
For a subsequent offence—imprisonment for 2 years.
The present case involved a first offence for driving whilst disqualified and thus a maximum sentence of six months imprisonment. However, although the option of imposition of a fine is not specified within s 91(5), it is obviously available by virtue of the provisions of the Criminal Law (Sentencing) Act 1988 (“the CLSA”), and this is the course that the Magistrate took.
It seems to me impossible to say that the Magistrate erred in determining to impose a conviction and fine rather than imprisonment in this case. On the hearing of the appeal, counsel for the appellant agreed with that proposition but submitted that the actual amount of the fine, $400.00, was manifestly inadequate in all the circumstances including the respondent’s previous convictions for motor vehicle offences.
The antecedents of the respondent
On 30 December 2009 the respondent in one episode of driving had committed the offences of drive with excess blood alcohol, make unnecessary noise or smoke, and drive without having proper control of the vehicle. He was disqualified from driving as from the time of the incident and by the time of his court hearing on 31 August 2010 he had served eight months disqualification. Accordingly, the Magistrate imposed appropriate fines and disqualified only to the rising of the Court having regard to the substantial period of disqualification already served.
The respondent stated at the hearing of this appeal that he had been told by the Magistrate when explaining the term “disqualification until the rising of the Court” that he could drive when he left Court. However, it transpires that the respondent was in fact required to obtain a fresh licence before he could drive again. Unaware of this, the respondent resumed driving as from 31 August 2010. On 1 October 2010 he was reported for failing to hold a valid licence or learner’s permit (he was not being charged with committing any other driving offence at this time). He then immediately (that same day) obtained the necessary new licence and was able to continue driving. He attended at Court on several mentions on this charge protesting that he had acted innocently and indicating that he intended to contest the charge.
However, on 23 April 2011 (having a valid provisional licence) he was found driving with some concentration of blood alcohol thus contravening the zero blood alcohol concentration condition of his provisional licence. He appeared in Court on this charge on 16 May 2011, pleaded guilty and was fined and disqualified from driving for 12 months from that date. At that same Court hearing the respondent, given he was facing that disqualification, decided to also plead guilty to the charge relating to his driving on 1 October 2010. In the circumstances (as related above) the Magistrate did not further disqualify him and imposed a monetary penalty only.
These facts (particularly those relating to the defendant’s driving on 1 October 2010) were clearly explained by the respondent to the Court on the hearing of the appeal and accord with the documentation before the Court. The facts as stated were accepted by counsel for the appellant.
The result is that the respondent does have a poor driving record in that he has twice committed the offence of driving with the prescribed concentration of alcohol, the first occasion being on 30 December 2009 (with two other offences relating to the same driving being then also charged) and the second on 23 April 2011. I also take into account that the respondent on the occasion of the present offending knew that he was suspended from driving and that, although there were circumstances of some inconvenience, there was no emergency requiring him to drive.
However, it is to be noted that this is the respondent’s first offence for driving while disqualified. His offence of driving on 1 October 2010 (without a valid licence but not while disqualified) is of little or no relevance to the present matter, particularly having regard to the fact that at that time he genuinely thought he was legally able to drive.
I further note that in the present case the driving was very limited. The respondent was frank, and fully co-operated, with police. He has done all that he possibly could have to assist the courts: he pleaded guilty at the very earliest opportunity and was candid and helpful before the Magistrate and also on the appeal. He is in no way responsible for the error that has occurred and he has now had to additionally appear on this appeal in circumstances where he had done everything within his power to finalise the matter in the Magistrates Court.
In assessing the appellant’s complaint that the monetary penalty of $560.00 is manifestly inadequate, I should proceed as if the Magistrate had correctly imposed the impounding fee of $874.00 and then take into account under s 4(2) of the Act that the respondent is liable to pay that further amount of $874.00, the total amount payable by him being $1,430.00.
Although the dearth of information as to the basis of the decision to impound meant that the Magistrate, without further information, was here required to order payment of the impounding fee, the fact remains that no reason has ever been given as to why clamping would not have sufficed in the present case. This aspect was specifically raised by the Magistrate but the prosecutor could give no explanation and did not seek an adjournment to seek instructions. On appeal, the matter was again specifically raised and counsel for the appellant in this Court also did not advance any reason or explanation as to why clamping would not have sufficed and nor did he seek an adjournment to seek instructions.
The recent amendment to s 340, Criminal Law Consolidation Act 1935 restricting reference to double jeopardy considerations only applies to a prosecution appeal under the Criminal Law Consolidation Act 1935 and not to the present appeal under s 42, Magistrates Court Act 1991, and I consider that double jeopardy considerations are important in the present case. I also note that one of the double jeopardy principles to be taken into account is that if the appeal were to be successful:[27]
… it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate “tinkering” with sentences.
[27] Dinsdale v The Queen (2000) 202 CLR 321, 341 [62] (Kirby J).
In all of the circumstances, including the additional burden to pay a further $874.00 impounding fee, I consider that the appellant has not established that the sentence is manifestly inadequate. Ground 1 of appeal is not made out.
Orders
The appeal is allowed solely for the purpose of making an order that the respondent pay an impounding fee of $874.00. I will hear the parties in relation to the possible application of s 13 of the CLSA before making such an order.
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