Spring v POLICE - [2012] SASC 7

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SPRING v POLICE
[2012] SASC 7
Judgment of The Honourable Justice Kourakis (ex tempore)
(The Court of Criminal Appeal)
12 January 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
The Magistrate ordered that the appellant's vehicle be forfeited to the Crown pursuant to s 12(1)(a) of the Criminal Law (Clamping, Impounding and Forteiture of Vehicles) Act 2007 (the Act) - no dispute that appellant's vehicle was liable to be fortfeited - appeal on the ground that Magistrate erred in failing to exercise discretion to decline to order forfeiture pursuant to s 13(1) of the Act - appellant alleged Magistrate failed to properly take into account the severe financial or physical hardship which would be faced by the appellant upon forteiture of his vehicle - whether forteiture would cause financial or physical hardship to the appellant or other person.
Held - appeal dismissed - the substantial inconvenience which the appellant will suffer by virtue of the forfeiture of his vehicle does not amount to the severe financial or physical hardship contemplated by the Act.
Criminal Law (Clamping Impounding and Forfeiture of Vehicles) Act 2007 12(1), 13(1), referred to.

SPRING v POLICE
[2012] SASC 7
Magistrates Appeal: Criminal

KOURAKIS J (ex tempore): This is an appeal from a order made in the Magistrates Court on 8 November 2011 pursuant to s 12 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (the Act) ordering the forfeiture of the appellant’s car.
It is accepted that, subject to s 13 of the Act, s 12 of the Act required the Magistrates Court to make the order of forfeiture. In particular, it is accepted that the enlivening condition of the power and duty to do so, found in s 12(1)(a)(iii) of the Act, was satisfied. Indeed, the appellant had been found guilty of, or had expiated, three, and not just two, other prescribed offences within 10 years of the date of the offence which led to the forfeiture order.
On the application for forfeiture, the appellant’s counsel pressed the Magistrate to decline to make an order for forfeiture pursuant to s 13 of the Act on the ground that the order would cause severe financial or physical hardship to the appellant or his parents. Section 13 of the Act provides that if a Magistrate is satisfied that severe financial or physical hardship would be caused, he or she may decline to make what would otherwise be the mandatory order for forfeiture.
The Magistrate making the order for forfeiture gave the following reasons. I set them out in full:
“I think there is more than sufficient grounds for the application Mr Williamson given the previous drink driving charges, expiable charges and that makes this a fourth offence and I think therefore he has got to lose his car.
I order the Toyota Lexcen registration SA-VPN 360 is forfeited.”
The Magistrate did not give any reason for rejecting the appellant’s submission that forfeiture would cause severe financial or physical hardship. The appellant complains that the Magistrate failed to take into account the financial or physical hardship that forfeiture would cause. I am not satisfied that that is so. The material before me shows that the hardship was pressed before the Magistrate, and that the Magistrate engaged in some discussion about the hardship that would be caused with the appellant’s counsel.
However, in my view, the reasons of the Magistrate are plainly inadequate because they do not even record, let alone give an explanation for, his decision that forfeiture would not cause the requisite degree of hardship.
Even though the failure to give reasons is not an express ground of appeal, in my view it is fairly enough encompassed within the ground that the Magistrate failed to take into account the hardship. In any event, counsel for the Crown, quite properly, does not object to me proceeding on the basis that that is the appellant’s complaint.
The failure to give any reason for the rejection of the application made pursuant to s 13(1) of the Act amounts to an error of law.
It is for me then, to make such order as should have been made in the Magistrates Court. For that purpose and without objection, I have received the affidavits of Mr Spring concerning the effect that the forfeiture of his car will have on him. Mr Spring also gave evidence before me, and was cross-examined, about the consequences of that forfeiture.
In short, the circumstances on which the appellant relies are these. He is 26 years of age. He qualified as a primary school teacher in 2011. In the second half of 2011, after completing his studies in Adelaide, Mr Spring moved to Mount Gambier where he commenced work as a primary school teacher. He was fortunate enough to obtain a contract for three days a week. On the other two school days he offered to work as a relief teacher and he obtained much work as such.
The appellant resided with his parents last year and continues to live with them this year. He pays $200.00 a week for board.
The appellant’s contract in 2011 was at the Compton Park Primary School. He also obtained relief teaching work there and at McDonald Park and Reidy Park Primary Schools in Mount Gambier. He also obtained two days work as a relief teacher at the High School, and obtained work in outlying schools which were, by and large, within a 30 km radius of Mount Gambier. He also obtained work in places further away such as Naracoorte and Millicent.
Mr Spring estimated that a third of his work as a relief teacher was in schools outside of Mount Gambier.
In the last half of 2011 the appellant earned a gross amount of about $25,000. After income tax, and repayments of his HECS debt, his net earnings were about $20,000.
Mr Spring has not yet secured a contract for the 2012 school year. He might do so but one is not immediately available. He has again nominated himself for relief teaching.
On the evidence there does not appear to be any reason why he would not continue to obtain relief teaching with the frequency with which he obtained it last year. There maybe some difference because last year he was only available for relief teaching two days a week whereas in 2012 he will, at least initially, be available for work on all five school days. In 2011 the appellant obtained relief teaching work for more than 50 per cent of the school week in which he was not contracted.
Doing the best I can, in assessing the amount of work he might obtain in 2012, I would expect Mr Spring to obtain work on average for about three days a week. It might be less in some weeks, it might be more in others. Again, I observe that he may ultimately obtain a contract for a term or parts of a term during 2012.
The appellant will continue to reside with his parents, and will continue to pay them the same board.
The appellant has only $400.00 in savings. As a relief and contract teacher he receives no holiday pay. The school year is yet several weeks away and he will, no doubt, deplete his savings by the time that commences. He has a credit card debt of $500.00 and a credit limit of $1500.00.
The car that the Magistrate ordered be forfeited is valued at about $2700.00.
Mr Spring testified before me that he will take up any work offered as a relief teacher in the primary schools and high school within Mount Gambier. He will travel to those schools in a variety of ways depending on what is available.
His father may be able to drive him to or from the schools, at least on some days. His father works as a stock agent and rural real estate agent. There are some days when he works extended hours beyond the standard hours of 9.00 am to 5.00 pm. On those occasions he might not be able to take Mr Spring to school or return him home. It is difficult to be any more precise about that because Mr Spring has not spoken with his father about the extent to which his father will be able to help out.
Mr Spring did testify that his father has use of a company vehicle but that his employer would prefer that the vehicle not be used for private purposes and if it is, the employer must be compensated on a fixed mileage rate. I would be most surprised if the employer were to forbid Mr Spring’s father from ever dropping him off at, or picking him up from school.
Mr Spring’s mother also has a car. She works with the IMVS in Mount Gambier. Her car is an older car, a 1998 Magna. Mr Spring testified that his mother works shifts but would be available to either drop him off or pick him up from school, depending on her shift, but would not be able to do both.
There are other avenues available to Mr Spring to get to work. He can ride a bicycle. On days when the weather is good he should be able to ride to McDonald Park and Reidy Park Primary Schools, which are within about 5 km of his home. It might be a bit much to expect him to, at least initially, ride the 10 km to Compton Park Primary School, which is a more arduous, hilly journey and takes about 45 minutes. Disappointingly, there are no showering or changing facilities available to teachers who ride to work.
There might also be occasions on which a colleague will be able to give Mr Spring a lift. There might be occasions on which he can catch the town bus. If all of the options I have mentioned fail, taxis are available. The fare one way to Compton Park Primary School is about $25.00. The fare one way to the other Mount Gambier Primary Schools and the High School is about $15.00.
For a full day relief teaching, Mr Spring can expect to earn close to $200.00
I generally accept the evidence of Mr Spring as to the amount of work he obtained in 2011, the location of the schools and the like. However, I am not prepared to accept his evidence about the full extent of the inconvenience and difficulty that his parents would face in taking him to the schools and returning him home. The reason I doubt Mr Spring’s evidence on those aspects arises from two paragraphs of Mr Spring’s affidavit sworn on 11 January 2012.
In paragraph [18] Mr Spring deposed that his father was not allowed to use his employer’s vehicle for private purposes. In his evidence before me, as I have already mentioned, he acknowledged that he had not actually spoken to his father about that. Moreover, Mr Spring testified that his father could use his employer’s car for private purposes if he paid a mileage fee, even though the employer had a general preference that his father did not do so.
In my view, that actual state of affairs is significantly different to that to which Mr Spring deposed in paragraph [18] of his affidavit.
In paragraph [19] of the same affidavit, Mr Spring deposed that his mother could drive him to and from school but that she would require the use of his motor vehicle to do so. However, in his evidence before me, Mr Spring testified that his mother could take him to and from school in her own car when her shifts permitted. His testimony was that he would have preferred his mother to use his car so as to save on the wear and tear on her car.
Again, that is significantly different to that to which Mr Spring deposed in paragraph [19] of his affidavit. Importantly, there is no mention in paragraph [19] that his mother’s work with IMVS was in anyway an impediment to conveying him to and from school.
For those reasons, there are limits to what I can accept about the full degree of difficulty that forfeiture of the car would occasion.
In short, it is my assessment that notwithstanding the loss of his car and the consequential costs, either in mileage charges, taxis fees or contribution to the service and upkeep of his mother’s car, Mr Spring will still be able to obtain substantial work as a relief teacher with schools in Mount Gambier, and on occasion schools further afield, at a significant net benefit.
Notwithstanding his increased travel costs, Mr Spring will be able to comfortably support himself, particularly given the fact that he still enjoys the good will of his parents sufficiently to be able to board with them at a cost of $200.00 a week. I acknowledge that he will earn significantly less than he would otherwise have been able to earn after his license is reinstated because he is less likely to be able to take up relief work in the outlying schools without his car. But the loss of an opportunity to earn more, is not of itself, severe financial hardship.
Moreover, in my view, it should not take long, through a combination of savings and further borrowings on his credit card, for Mr Spring to be in a position to buy a replacement car. Indeed, it may well be possible to do so sooner rather than later if Mr Spring were to apply for, and obtain, an extension on his credit card or obtain credit elsewhere. He has not yet made an application for further credit. I do not know for certain whether he would ultimately be successful but obtaining further credit must be a real possibility, particularly if he either obtains a contract or obtains fairly regular relief work after the school year commences.
I am not satisfied that any substantial, or any severe financial or physical hardship will be caused to Mr Spring’s parents. He has indicated that he would compensate them for their costs and make a contribution towards the costs of maintaining their cars, should they take him to, or pick him up, from school.
In short, it is my assessment that the forfeiture of the car will cause Mr Spring substantial inconvenience but it will not cause severe financial or physical hardship. That term is a relative one. It must be understood in the context that Parliament must have contemplated that, in the ordinary course, forfeiture of a personal motor vehicle would cause significant financial and physical hardship.
In effect, forfeiture orders are intended to have an enhanced general deterrence effect by reason of the symbolism inherent in the loss of such an important personal possession.
Moreover, Parliament’s intention appears to be to impose a level of pecuniary penalty which is proportionate to the amount that a defendant is prepared to invest in his or her vehicle.
The severity of the financial hardship must be measured against the intended effect of the legislation to which I have just referred and the range of hardship which must have been contemplated by Parliament in enacting it. So measured, the loss of income which Mr Spring will suffer does not, in my view, amount to a severe financial or physical hardship. It falls squarely within the intended operations of s 12 of the Act. I would therefore dismiss the appeal