VERMEY v Police - [2017] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VERMEY v POLICE
[2017] SASC 156
Judgment of The Honourable Justice Vanstone
1 November 2017
MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE - FINES - OTHER MATTERS
Appeal against Magistrate’s order that the appellant serve 481 hours of community service in relation to a pecuniary sum of $6,400. Where appeal based on decision in McNeill v Police [2017] SASC 66. Whether order attended by irregularity identified in McNeill’s Case. Whether any need for proof of the making of an enforcement determination or an aggregation determination.
Held: Appeal dismissed. In circumstances where there was no claim before the Magistrate that an enforcement determination or an aggregation determination had not been made, the presumption of regularity applies and it is assumed that the necessary procedural steps had been taken.
Criminal Law (Sentencing) Act 1988 (SA) s 61, s 70U; Expiation of Offences Act 1996 (SA) s 13, referred to.
McNeill v Police [2017] SASC 66, discussed.

VERMEY v POLICE
[2017] SASC 156
Magistrates Appeal: Criminal
VANSTONE J.

The Fines Enforcement and Recovery Officer made an application in relation to the appellant, a debtor, seeking that a community service order be made in respect of a pecuniary sum of about $6,400 owed by the debtor. Consistent with the appellant’s own statements to him, a magistrate found that the appellant did not have the means to satisfy the pecuniary sum without suffering hardship. Accordingly, pursuant to s 70U of the Criminal Law (Sentencing) Act 1988 (SA) the magistrate ordered that the appellant perform 481 hours of community service within 12 months.
The grounds of appeal
The appellant is unrepresented. He wishes to appeal against that order. However, on its face, his notice of appeal raises no proper ground of appeal. For that reason, the respondent applied for summary dismissal. In the event, I heard argument on the interlocutory application and the appeal during the same hearing.
The grounds which the appellant purports to take appear in the notice of appeal as follows.
1.the Supreme Court reviews and determines errors which may have occurred in other courts of the State and interprets and expounds the law for the guidance of other courts
2.MCNEILL v POLICE [2017] SASC 66 (4 May 2017)
3.Ongoing criminal activities that threaten human dignity, the common good and peace.
Upon the hearing, the appellant agreed with me that ground 1 is effectively a preamble to ground 2, which contains, or at least foreshadows the appellant’s principal argument. Ground 3 has no independent life of its own; it depends on the success of ground 2.
The substantive argument put by the appellant is that his case is on all fours with that of the successful appellant in McNeill v Police [2017] SASC 66 and that his appeal should be allowed for the same reasons. He contends that McNeill’s Case stands for the proposition that when asked to make an order of the type here under appeal, the magistrate must consider, not only the entire amount outstanding (the aggregate sum) but also the quantum of the original fine or fines, together with whatever sums have been added by way of compensation, costs and the like. (See the definition of pecuniary sum in s 3 of the Sentencing Act.) In other words, the appellant argues that the court was required to have advice as to the total owed, preferably in tabular form – which here was much more than $6,000 – and to have an itemised list of the breakdown of the fines and other amounts making up the total sum. Here, the magistrate was presented with part of the total amount outstanding, but without itemisation, and, having made the relevant determination, applied the formula given in s 70U(2) to arrive at the number of hours of community service which I have already mentioned.
Counsel for the respondent, Ms Lim-Hussain, appeared to have a somewhat different understanding of the effect of McNeill’s Case. She submitted that it was authority for the proposition that “a magistrate must consider a debtor’s ability to pay a pecuniary sum as individual sums rather than the total amount owing”. She referred to [20] of McNeill’s Case.
Consideration
My own view of McNeill’s Case has little in common with either interpretation proffered. There were two issues raised in McNeill. First, the respondent conceded that the complaint giving rise to part of the relevant indebtedness was laid out of time. Therefore, Hinton J treated the appeal notice as one which challenged the underlying conviction, and then His Honour quashed it; thereby markedly reducing the amount under consideration. Of course the magistrate had made no determination in relation to the debtor’s ability to pay the lesser sum and so the matter was remitted for fresh consideration.
The second issue alluded to by Hinton J concerned the makeup of the total sum with respect to which the magistrate’s order was made. Part of the debt was referable to an unpaid expiation notice. There was no material before the Judge to prove that an aggregation determination had been made in relation to that amount, as addressed in s 61(1)-(3) of the Sentencing Act and s 13 of the Expiation of Offences Act 1996 (SA) (“the Expiation Act”). An aggregation determination could only have been made either on the debtor’s request, or in circumstances where an enforcement determination had been made in relation to the expiation amount under the Expiation Act. There being no evidence before him of an aggregation determination, Hinton J categorised the application before him as being two applications, each deserving of separate consideration.
In the present case there is no material before me to demonstrate whether any part of the sum owing is referable to an expiation notice, or, if it is, whether an enforcement determination and an aggregation determination preceded the application to the magistrate. However, I do not consider that is of any moment. First, under s 13(1) of the Expiation Act the Fines Enforcement and Recovery Officer only becomes apprised of a case where an expiation notice has been issued – and effectively disregarded – upon receipt of a certificate from the issuing authority for the expiation notice. That certificate is the first step towards enforcement. Then, the Fines Enforcement and Recovery Officer will only make an application to the court under s 70U of the Sentencing Act with respect to a pecuniary amount which includes an expiation amount, if he or she has made an aggregation determination. The very act of incorporating the expiation amount into the application tends to demonstrate that an aggregation determination has been made. In any event, in my opinion, there is no reason to go behind the application made to the Court. The presumption of regularity applies in the absence of such a challenge by the debtor and it is assumed that the required procedures have been followed. It should be borne in mind that an aggregation determination is, objectively speaking, to the benefit of the debtor. He has the right to apply for one himself: s 61(1) of the Sentencing Act. Upon an aggregation determination being made, benefits flow to the debtor, including that the debtor will be taken to have expiated the relevant offence: s 61(3) of the Sentencing Act.
If no complaint is made to the magistrate about the inclusion of an expiation amount in the pecuniary sum the subject of a s 70U application, then I see no reason why the magistrate should demand proof of the making of an aggregation determination, or indeed of the enforcement determination which must have preceded it.
Therefore, I do not consider that reference to McNeill’s Case avails the appellant. Here, there was no concession of any flaw in the prosecution of his offences and, even if the pecuniary sum includes an expiation amount – about which I am ignorant – it changes nothing.
Conclusion
There is much to be said in favour of the interlocutory application seeking an order that the appeal be summarily dismissed. However, since it was not possible to deal with that application ahead of the date fixed for the appeal hearing and because I have heard argument going to the appeal itself, I propose to deal with this appeal in the usual way.
The only ground of appeal which, upon further examination, raises any substantive argument is ground 2. However, for the foregoing reasons, it is without merit.
Therefore I make these orders:
1.No order on the interlocutory application FDN 3.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs of the appeal fixed at $500.