Police v Van Reesema - [2010] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v VAN REESEMA
[2010] SASC 183
Judgment of The Honourable Justice Vanstone
30 June 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - TRIVIALITY AND HOW DETERMINED
Appeal against sentence - respondent charged with speeding offence after being detected in his vehicle travelling at 25 kilometres per hour over the speed limit - charge dealt with by the magistrate ex parte due to the respondent's failure to appear on the trial date - whether the magistrate erred in not recording a conviction or imposing a penalty - whether the magistrate erred in purporting to waive the victims of crime levy.
Held: appeal allowed - disposition of the magistrate set aside - matter remitted to the Magistrates Court for imposition of penalty.
Summary Procedure Act 1921 s 62BA; Criminal Law (Sentencing) Act 1988 s 15; Victims of Crime Act 2001 s 32(2), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, applied.

POLICE v VAN REESEMA
[2010] SASC 183
Magistrates Appeal

VANSTONE J: The respondent was charged with a speeding offence. He chose not to expiate the matter. He appeared in court in answer to the summons which issued. There were many subsequent appearances when the respondent sought disclosure of various documents relating to the relevant speed detection device. On several occasions the matter was scheduled for trial but did not proceed on account of the failure of the respondent to appear. On 17 February 2010 the magistrate issued a warrant but ordered that it lie on file. The registrar of the court was directed to advise the respondent that if he failed to appear on the next appointed date, being 1 March 2010, the court would “either release the warrant for his arrest or finalise the matter in his absence”.
On 1 March 2010 the respondent again failed to appear. The prosecutor applied for the matter to proceed ex parte pursuant to s 62BA Summary Procedure Act 1921. The magistrate determined to proceed to adjudicate on the complaint in the respondent’s absence. The prosecutor relied on the allegations contained in the complaint. The magistrate disposed of the matter by finding the facts proved and dismissing the charge without penalty and without conviction. He purported to waive the court fees, victims of crime levy and the prosecution costs.
The police now appeal against that disposition, arguing that the magistrate was in error in failing to record a conviction or impose a penalty and, further, in purporting to waive the victims of crime levy.
In determining the charge in the absence of the respondent, the magistrate proceeded in reliance on s 62BA Summary Procedure Act. That section provides as follows:
62BA—Proceedings where defendant neither appears nor returns written plea of guilty
(1) Where in any proceedings under this Act—
(a)a complaint has been made by a public authority or public officer within the meaning of section 57A of this Act; and
(b)the defendant has been duly served with a summons but does not appear at the time and place appointed for the hearing or determination of the complaint or at a time and place at which the complaint is subsequently heard or determined, or, in the case of a complaint and summons served under section 57A of this Act, he neither so appears nor pleads guilty in the manner provided by that section,
the court may proceed to adjudicate on the complaint in the absence of the defendant in the manner provided by, and subject to the conditions in, section 62 of this Act, but may in so doing regard any allegation contained in the summons, or complaint and summons, (as served upon the defendant) as sufficient evidence of the matter alleged.
In my view the magistrate was entitled to proceed in this way. The prosecutor’s reliance on the allegations contained in the complaint was sanctioned by the same section. The particulars of the complaint were in the following terms:
Offence Details
On the 18TH day of JULY, 2006 at CULBURRA in the said State drove a vehicle namely a MOTOR VEHICLE on a length of road namely DUKES HIGHWAY, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australian Road Rules, over the speed limit of 80 kilometres per hour as indicated on the speed limit sign which was on the said road.
Rule 20 of the Australian Road Rules.
It is further alleged you were driving at a speed of about 105 kilometres per hour.
This is a summary offence.
The court record demonstrated that the defendant had been duly served with the summons and had appeared on previous occasions in relation to it. Accordingly, the prosecution was entitled to rely on the allegations in the complaint as sufficient evidence of the charge. It is apparent from material before me that the prosecutor did not make any submissions before the magistrate going to penalty. Nor did the prosecutor allege prior convictions.
In my view the magistrate was correct in finding the matter proved.
In disposing of the matter without imposing penalty or conviction the magistrate relied on powers given him in s 15 of the Criminal Law (Sentencing) Act 1988. That section provides as follows:
15—Discharge without penalty
(1) Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a)without recording a conviction, dismiss the charge; or
(b)upon recording a conviction, discharge the defendant without penalty.
(2) A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
As can be seen, the discretion utilised is only available in circumstances where the court finds the offence “so trifling that it is inappropriate to impose any penalty…” Here, understandably, the magistrate did not give reasons for the disposition determined upon. However, it must be inferred that he found the offence trifling.
On appeal it is argued that such a characterisation was inappropriate. There was nothing before the magistrate to suggest that the offence was other than a typical offence of its class. In those circumstances it could not be trifling: Siviour-Ashman v Police (2003) 85 SASR 23 at [24]-[25] per Doyle CJ. Far from being trifling, it appears to me that, having regard to the fact that the respondent had exceeded the relevant speed limit by some 25 kilometres per hour, the offence was properly seen as being a serious one of the class. The maximum penalty for this offence was a fine of $1,250. Even the expiation fee in relation to it was the sum of $269. In these circumstances I agree with counsel for the appellant that resort by the magistrate to s 15 of the Sentencing Act was inappropriate. A fine somewhere between the level of the expiation fee and the maximum penalty was appropriate.
In relation to the purported waiver of the victims of crime levy, counsel for the appellant argues that the magistrate acted without power. The effect of s 32(2) of the Victims of Crime Act 2001 (SA) is that, subject to exceptions which here have no application, a levy is imposed upon all persons convicted of an offence. The court is unable to waive a levy imposed by operation of the statute. This submission is correct.
In resisting the appeal, Mr van Reesema spoke for himself.
He argued that on the basis of the court record it should be inferred, not that the matter was dismissed without penalty (as it reads), but rather that he was acquitted of the charge. As he observed, there was no mention in the court record of his being found guilty. That is, of course, true, but the reference on the court record to the matter being “dismissed without penalty” and to the expression “without conviction” and to the court fees, levy and prosecution fee being “waived”, clearly demonstrates that the magistrate proceeded under s 15 of the Sentencing Act, as I have outlined.
Mr van Reesema also argued that on earlier occasions, when the matter had been before different magistrates, various orders were made against the police obliging them to disclose certain documents to him. Mr van Reesema said that not all of those orders had been complied with. He said that meant that the prosecution was in contempt of court orders and the matter could not be progressed until the prosecution complied with the orders. It is not necessary for me to examine the history of any such orders. In my view, the validity of the way in which the magistrate dealt with the matter on 1 March remains unaffected by the police response to earlier orders.
Accordingly, I find that the appeal must be allowed, the disposition determined upon by the magistrate set aside and a new penalty imposed. In addition, the question of court costs and prosecution costs must be considered.
I propose to hear submissions on those matters and as to the quantum of the penalty for the charge itself.
Therefore my orders at this point are:
1. appeal allowed;
2. disposition of the magistrate set aside;
3.remit the matter to the Magistrates Court for imposition of penalty;
4.the respondent is to pay the appellant’s costs of the appeal, fixed in the sum of $250.