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Warapa v Commonwealth Director of Public Prosecutions

 

[2019] QDC 202

DISTRICT COURT OF QUEENSLAND

CITATION:

Warapa v Commonwealth Director of Public Prosecutions [2019] QDC 202

PARTIES:

DAN WARApa

(appellant)

v

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO/S:

APPEAL NO: 38/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Saibai Island.

DELIVERED ON:

11 October 2019

DELIVERED AT:

Cairns

HEARING DATE:

16 September 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed.
  2. The sentence and orders made by the Magistrates Court on 20 February 2019 are set aside and I substitute with the following sentence.
  3. I find the charge proved.
  4. By order I release the appellant without proceeding to conviction upon him giving security by recognisance in the sum of $500 conditioned that he be of good behaviour for a period of two years commencing from 20 February 2019.
  5. No conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – appeal against sentence – one charge of importing a border controlled drug into Australia under s 307.3 of the Criminal Code (Cth) – fined $300 payable within 2 years to and in default 6 days imprisonment, conviction recorded – error exercising the discretion for s 19B of the Crimes Act 1914 (Cth) having regard to “exceptional” circumstances – whether sentence manifestly excessive – application of two–stage test for s 19B – “Extenuating circumstances” – inexpedient to inflict any punishment other than a nominal punishment – re–sentence – appellant released without proceeding to conviction upon him giving security by recognisance in the sum of $500 conditioned that he be of good behaviour for a period of 2 years.

Legislation

Justices Act 1886 (Qld) s 222, s 223(1) & 227

Cases

AB v R (1999) 198 CLR 111

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Allesch v Maunz (2000) 203 CLR 172

Cobiac v Liddy (1969) 119 CLR 257 at 276

Commissioner of Taxation v Baffsky (2001) 192 ALR 92

Dwyer v Calco Timbers (2008) 234 CLR 124;

Forrest v Commissioner of Police [2017] QCA 132, 5

Fox v Percy (2003) 214 CLR 11

Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537

House v The King (1936) 55 CLR 499

Johnson v The Queen (2004) 78 ALJR 616

Jones v Moreley (1981) 29 SASR 27

Kelton v Uren (1981) 27 SASR 92 at 93

Kentwell v R (2014) 252 CLR 60

Lovell v Lovell (1950) 81 CLR 513

Lowe v The Queen (1984) 154 CLR 606

McDonald v Queensland Police Service [2017] QCA 255

Moreland v Snowdon [2007] WASC 137

Norbis v Norbis (1986) 161 CLR 513

O’Sullivan v Wilkinson (1952) SASR 213

R v Abdi [1994] QCA 402

R v Hooper; ex parte Cth DPP [2008] QCA 308 at [23]

R v Ingrassia (1997) 41 NSWLR 447 at 449

R v Lomass (1981) 5 A Crim R 230;

R v McIntosh [1923] St R Qd 278

R v Morse (1979) 23 SASR 98;

R v Ferrer-Esis (1991) 55 A Crim R 231 at 237–238

Teelow v Commissioner of Police [2009] QCA 84

Warren v Coombes (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

COUNSEL:

J Trevino for the Appellant

A Lloyd for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

The Office of Director of Public Prosecutions for the respondent

  1. [1]
    The appellant was convicted on his own plea of guilty in the Magistrates Court held on Sabai Island, of one charge of importing a border controlled drug into Australia on 10 April 2018 contrary to s 307.3(1) of the Criminal Code (Cth).  He was fined the sum of $300.00, given two years to pay and in default of payment he was sentenced to six days’ imprisonment.  A conviction was also recorded.
  1. [2]
    He now appeals against his sentence on the grounds that it was manifestly excessive as a result of judicial error.
  1. [3]
    Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. [4]
    The appellant is a citizen of Papua New Guinea and resides in the Western Province village of Sigabaduru with his wife and four children aged between eight months and 12 years at the time of sentence. He had little formal education and proficiency in English. He has minimal income from his work as a self-employed fisherman and trader. He was 30 years of age at the time of the offence with no criminal history.
  1. [5]
    The appellant was entitled to pass between Papua New Guinea and certain Australian islands of the Torres Strait pursuant to the Torres Strait Treaty
  1. [6]
    On 10 April 2018 he travelled to Saibai Island for the purpose of selling carvings and artefacts. He was in possession of six foils of cannabis, weighing 15 grams, which he had obtained in Papua New Guinea for his own personal use. The offence came to light during the course of a cross-border patrol conducted by the Australian Federal Police. The appellant volunteered to the police that he was in possession of cannabis, which was located when police searched him. During a recorded interview with police he admitted that he had purchased the cannabis a few days ago and had forgotten that he had it in his possession when he travelled into Australian territory.
  1. [7]
    The sentence hearing was held on Saibai Island on 20 February 2019. It was not recorded due to the remote location and absence of facilities, so both parties relied on written submissions, and the learned magistrate gave written reasons.
  1. [8]
    The prosecution submitted for a fine, or alternatively, good behaviour bond or recognisance order under s 20(1)(a) of the Crimes Act 1914 (Cth) coupled with a recorded conviction.  The defence contended for a recognisance order to be of good behaviour under s 19B of the Crimes Act 1914 (Cth) with no conviction is recorded. 
  1. [9]
    The appellant fined the sum of $300.00, given 2 years to pay and in default of payment he was sentenced to 6 days imprisonment. A conviction was also recorded.
  1. [10]
    In his written reasons, the learned magistrate remarked as follows:
  1. He gave significant weight to the appellant’s remorse and timely plea;
  1. Considered that if he had been dealing with a State offence he would have “had little hesitation in exercising a discretion to proceeding to sentence without recording a conviction”;
  1. Found that the offence was not of a trivial character;
  1. Considered that general deterrence was an important consideration noting that “to impose a penalty that has no overt consequences would do little to quell the nature of the offending which might be inferred to be prevalent in this remote area, difficult to detect and hard to prosecute effectively”;
  1. Found that the appellant was unlikely to re-offend;
  1. Considered that a probation order was unworkable and that a custodial sentence whether wholly suspended or subject to parole obligations was “beyond contemplation”;
  1. Considered that a monetary penalty was “the only resort for a Court in this position”;
  1. Observed that there “seems to be an imbalance between the sentences able to be imposed on individuals of essentially the same ethnic group”;
  1. Noted the test to be applied in determining whether a 19B order was appropriate involved “the issue of whether or not the defendant’s circumstances can be categorised as being significantly exceptional so as to justify the exercise of the required discretion”; and
  1. Considered that the appellant’s circumstances were not so “exceptional” so as to warrant a favourable exercise of the discretion pursuant to s 19B.

Grounds

  1. [11]
    The appellant appeals against the sentence on the grounds that it is manifestly excessive.
  1. [12]
    He argues that the learned magistrate’s discretion miscarried by considering that the appellant’s circumstances were not so “exceptional” to engage s 19B, and thereby resulted in a manifestly excessive sentence.  The respondent argues that the sentence was open and resulted from a proper exercise of discretion.

Mode of Appeal

  1. [13]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court Judge.”

  1. [14]
    Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
  1. “(1)
    An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
  1. (2)
    However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  1. (3)
    If the court gives leave under subsection (2), the appeal is—
  1. (a)
    by way of rehearing on the original evidence; and
  1. (b)
    on the new evidence adduced.”
  1. [15]
    For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,”[1] and thereby resulting in a manifestly excessive sentence.
  1. [16]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[2] 
  1. [17]
    Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[3]

Section 19B - Discharge offender without conviction

  1. [18]
    Section 19B empowers the court to dismiss the charge even though the offence has been proved, and impose a good behaviour bond with or without a security by recognisance.
  1. [19]
    Section 19B provides:

19B Discharge of offenders without proceeding to conviction

  1. (1)
    Where:
  1. (a)
    a person is charged before a court with a federal offence or federal offences; and
  1. (b)
    the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
  1. (i)
    the character, antecedents, age, health or mental condition of the person;
  1. (ii)
    the extent (if any) to which the offence is of a trivial nature; or
  1. (iii)
    the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

  1. (c)
    dismiss the charge or charges in respect of which the court is so satisfied; or
  1. (d)
    discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
  1. (i)
    that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
  1. (ii)
    that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
  1. (A)
    on or before a date specified in the order; or
  1. (B)
    in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and
  1. (iii)
    that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
  1. (1A)
    However, the court must not take into account under subsection (1) any form of customary law or cultural practice as a reason for:
  1. (a)
    excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
  1. (b)
    aggravating the seriousness of the criminal behaviour to which the offence relates.
  1. (1B)
    In subsection (1A):

criminal behaviour includes:

  1. (a)
    any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
  1. (b)
    any fault element relating to such a physical element.  …”
  1. [20]
    In Cobiac v Liddy,[4] the court recognised a broader approach to the relevant considerations going to “expediency” than the specific factors listed in s 19(1)(b).  In that regard, Windeyer J said:[5]

“The Act speaks of the court exercising the power it confers ‘having regard to’ the matters it states.  I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives.  They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration.  But they are wide words.  None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.”  (Underlining added)

  1. [21]
    This broad approach was further developed by King CJ in Jones v Moreley,[6] to afford “antecedents” a wide meaning to include all aspects, favourable and unfavourable, of an offender’s personal, family, employment and vocational circumstances.
  1. [22]
    Commissioner of Taxation v Baffsky[7] is the seminal authority for the proposition that the application of the discretion for s19B consists of two stages: firstly, the court must identify one or more of the factors in s 19B(1)(b) being operative; then secondly, having regard to the factor(s) so identified, the court considered if it is inexpedient to inflict any punishment”.  The case also establishes that in exercising the second stage of the discretion the court must take into account the general sentencing principals identified in s 16A(2) of the Act.  Further, it seems to me that the principle in s 16A(1) is also important.
  1. [23]
    Section 16A assured uniformity in commonwealth sentencing by listing the matters to which the court must have regard when passing sentence as follows:

16A Matters to which court to have regard when passing sentence etc. federal offences

  1. (1)
    In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
  1. (2)
    In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
  1. (a)
    the nature and circumstances of the offence;
  1. (b)
    other offences (if any) that are required or permitted to be taken into account;
  1. (c)
    if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character — that course of conduct;
  1. (d)
    the personal circumstances of any victim of the offence;
  1. (e)
    any injury, loss or damage resulting from the offence;
  1. (ea)
    if an individual who is a victim of the offence has suffered harm as a result of the offence — any victim impact statement for the victim;
  1. (f)
    the degree to which the person has shown contrition for the offence:
  1. (i)
    by taking action to make reparation for any injury, loss or damage resulting from the offence; or
  1. (ii)
    in any other manner;
  1. (fa)
    the extent to which the person has failed to comply with:
  1. (i)
    any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
  1. (ii)
    any obligation under a law of the Commonwealth; or
  1. (iii)
    any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

  1. (g)
    if the person has pleaded guilty to the charge in respect of the offence — that fact;
  1. (h)
    the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
  1. (j)
    the deterrent effect that any sentence or order under consideration may have on the person;
  1. (ja)
    the deterrent effect that any sentence or order under consideration may have on other persons;
  1. (k)
    the need to ensure that the person is adequately punished for the offence;
  1. (m)
    the character, antecedents, age, means and physical or mental condition of the person;
  1. (n)
    the prospect of rehabilitation of the person;
  1. (p)
    the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”
  1. [24]
    These factors are not categorised into aggravating or mitigating factors, nor is the list exhaustive, as affirmed by the words in s 16A(2) - “In addition to any other matters …”.  An those words together with the words “of a severity appropriate in all the circumstances of the offence” in s 16A(1) harness the common law principles for sentencing federal offenders.[8]  Further, a sentencing judge is not required to refer exhaustively to the factors in s 16A is unnecessary.[9]
  1. [25]
    Returning then to the two stage approach to the application of s 19B, in R v Hooper; Ex parte Cth DPP,[10] Mackenzie AJA distilled the test as follows:

“[10]  Section 19B(1) relevantly permits a court to discharge the offender without proceeding to conviction upon security being given by recognisance or otherwise to the satisfaction of the court, conditioned on the offender being of good behaviour for a period specified in the order, not exceeding three years, and that during a specified period not exceeding two years the offender will comply with other conditions, if any, specified in the order.  The prerequisites to making such an order are that the court is satisfied that the charge is proved but is of opinion, having regard to:

  1. (i)
    The character, antecedents, age, health, or mental condition of the person;
  1. (ii)
    The extent (if any) to which the offence is of a trivial nature; or
  1. (iii)
    The extent (if any) to which the offence was committed under extenuating circumstances;

 that it is inexpedient to inflict any punishment, or any punishment other than a nominal punishment. …”

  1. [26]
    The fact that the offender is subject to adverse legal and social consequences if a conviction is recorded is also relevant consideration.[11]  When considering the impact of recording a conviction on the employment or livelihood of an offender McPherson J in R v Abdi,[12] found it necessary to show a “detriment beyond that which is experienced by anyone in the community from having a conviction against his or her name”.

Manifestly Excessive Sentence

  1. [27]
    On appeal, this court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.[13] 
  1. [28]
    Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[14]  In that context, it may be vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[15]
  1. [29]
    The High Court held in House v. The King[16] that:

“It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

  1. [30]
    The High Court in Kentwell v R[17] held:

“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.  By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

  1. [31]
    The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

Consideration

  1. [32]
    The appellant argues that the sentence was manifestly excessive as a result of the learned magistrate’s unfavourable consideration of the appellant’s circumstances as not being “exceptional”, instead of using the two-stage test for s 19B.
  1. [33]
    I agree. In my respectful opinion the approach of the learned magistrate in applying the test in s 19B was misconceived.
  1. [34]
    It seems to me that the learned magistrate was led into error by the prosecutor below, relying upon a notion of “exceptional” circumstances which seemed to be drawn from the observation of French J in Matta v Australian Competition and Consumer Commission [2000] FCA 729 that the exercise of the discretion under s 19B is exceptional.  That comment in Matta was in the context of an appeal by a person convicted of offences under the Trade Practices Act 1975 (Cth) of knowingly supplying sunglasses that did not comply with Australian standards.  Similarly, in Moreland v Snowdon,[18] the notion was also apt to that case about the making of false declarations to Centrelink.  It seems to me that each court was merely talking about the peculiarity of that type of sentence to the case before it rather than a reference to the discretionary considerations in s 19B. 
  1. [35]
    Section 19B formulates the test involving consideration of “extenuating circumstances” and whether punishment is “inexpedient” having regard to the factor(s) identified in the circumstances of each case, and there is no need to replace the statutory formulation with a different notion of “exceptional” circumstances.[19] 
  1. [36]
    “Extenuating circumstances” under s 19B(1)(b)(iii) requires a link between the circumstances said to be extenuating and the commission of the offence.[20]  The term connotes “circumstances which excuse, in an appreciable degree, the commission of the offence charged”.[21]  The extent (if any) to which the offence was committed under “extenuating circumstances”, requires that there be something that clearly distinguishes the offending conduct from the typical offence.[22]
  1. [37]
    The consideration of inexpediency falls to the second stage of the legislative test.  In R v Hooper; ex parte Cth DPP,[23] it was held that:

“The word “inexpedient” can bear a range of meanings depending on the context in which it is used.  In Riddle v Riddle (1952) 85 CLR 202 at 214, Dixon J said of the word “expedient”, when used in defining a power in trustee legislation, that it was “a criterion of the widest and most flexible kind”.  If “inexpedient” in the Crimes Act bears a meaning like “not advantageous, useful or suitable in the circumstances”, or “not tending to promote a purpose” or “not tending to the end desired” …”

  1. [38]
    I am persuaded that the approach employed by the learned magistrate in reliance on “exceptional” circumstances was inconsistent with the considerations of extenuating circumstances and/or inexpediency required by s 19B(1)(b).  In my respectful view, the learned magistrate thereby erred in exercising the sentencing discretion by acting upon a wrong principle, allowing erroneous or irrelevant matters to guide or affect him; and failing to take into account material considerations in the two step process required by s 19B.
  1. [39]
    The question is whether on my separate and independent consideration I find that the sentence is manifestly excessive, or whether no different sentence should be passed.

First Stage

  1. [40]
    In determining the matter the court having been satisfied that the charge was proved, ought to have regard to the factors under s 19B(1)(b):
  1. “(i)
    the character, antecedents, cultural background, age, health or mental condition of the person;
  1. (ii)
    the extent (if any) to which the offence is of a trivial nature; or
  1. (iii)
    the extent (if any) to which the offence was committed under extenuating circumstances.”
  1. [41]
    There are some unusual aspects about the appellant’s character, antecedents, cultural background which go some way to the factor in s 19(1)(b)(i).  It is also arguable, but not pressed on appeal, that the offending was trivial in nature within the meaning of s 19B(10(b)(ii) having regard to the unusual circumstances of acquisition for personal use, inadvertent possession during travel, and followed by an ill-defined mixed intended use and supply of the drugs. 
  1. [42]
    Here the appellant argues that the offence was committed in extenuating circumstances within the meaning of s 19B(1)(b)(iii).
  1. [43]
    The offence provision s 307.3 of the Criminal Code (Cth) provided as follows.

307.3   Importing and exporting border controlled drugs or border controlled plants

  1. (1)
    A person commits an offence if:
  1. (a)
    the person imports or exports a substance; and
  1. (b)
    the substance is a border controlled drug or border controlled plant.

Penalty:  Imprisonment for 10 years or 2,000 penalty units, or both.

  1. (2)
    The fault element for paragraph (1)(b) is recklessness.
  1. (3)
    Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.

Note:  A defendant bears a legal burden in relation to the matters in subsection (3) (see section 13.4).

  1. [44]
    The appellant travelled to Saibai Island for the purpose of selling carvings and artefacts, being the means of earning his livelihood. He was an entitlement to pass between Papua New Guinea and certain Australian islands of the Torres Strait pursuant to the Torres Strait Treaty.  The learned magistrate was right to be concerned that “there seems to be an imbalance between the sentences able to be imposed on individuals of essentially the same ethnic group.”  Such a treaty arrangement is not the same and can be readily distinguished from some customary law or cultural practice affecting the criminal behaviour in terms of s 19B(1A) and (1B).
  1. [45]
    The offending involved the defendant’s possession of six “foils” of cannabis, weighing 15 grams.  It was undisputed that he had obtained in Papua New Guinea for his own personal use.  The appellant’s assertion in the agreed facts that he had forgot that he had the cannabis in his possession when he travelled to Australia must be tempered having regard to his plea to the offending in s 307.3.  He did not purport to prove any defence under s 307.3(3) that he neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.  However, there was no evidence of any indicia of any intention or belief of supply.  But being faithful to his plea, it must be accepted that his continued possession of the drug on the island involved some intent of supply, or belief that someone else intended to supply, some quantity of the drug.
  1. [46]
    It seems to me that these matters demonstrate that the offence was committed under extenuating circumstances as contemplated in s 19B(1)(b)(iii).  When considered as a whole the circumstances clearly distinguish the appellant’s offending conduct from the typical case, and ameliorates, in an appreciable degree, the commission of the offence in s 307.3.

Second Stage

  1. [47]
    Therefore upon a consideration of the identified s 19B(1)(b) factors, the court must be satisfied that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that that it is expedient to release the offender on probation under s 19B(1)(c). 
  1. [48]
    Generally pursuant to s 16A(1), in determining the sentence to be passed, or the order to be made, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.  I also take account of the sentencing principals identified in s 16A(2) of the Act to the extent they are relevant as follows:
  1. The appellant was born on 12 June 1987 and was aged 30 at the time of offending, 30 years old at sentence and is now 32. 
  1. The appellant had no criminal history, was the primary provider for his family and was clearly of otherwise good character.  He provided for his family by way of very meagre resources and income.
  1. As to the nature and circumstances of the offence the appellant’s primary motive for travel was to trade in artefacts and carvings in order to generate income, which was not connected to his offending. 
  1. The cannabis was acquired for his personal use, that is he was not intending to share it with anyone else or generate profit from it, and he did not realise he was still in possession of the drug when he commenced his travel to Australia.  However, the importation must have been clothed with the requisite intent, which by his plea (despite the lack of evidence) constitutes the more serious offending in s 307.3.
  1. The degree to which the appellant has shown contrition for the offence is high.  He showed a high level of remorse as demonstrated by his ready and high degree of cooperation and by his plea of guilty. 
  1. He made a timely plea of guilty after a high degree of co-operation with law enforcement agencies in the investigation of the offence.
  1. His has excellent prospects of rehabilitation of the person.  Like the learned magistrate I think he is unlikely that he will reoffend.
  1. The probable effect of a sentence or order under consideration would have on the appellant’s family or dependents is significant. The recording of a conviction would likely impact upon the appellant’s entitlement to travel to the Torres Strait and thus detrimentally effect his ability to support his family.  Given the appellant’s meagre resources and income, a fine and a default a period of imprisonment would result in a crushing and disproportionate penalty upon the appellant. 
  1. Probation would be impractical as the appellant returns to live and work in Papua New Guinea.  But the nature of the offence and its prevalence does warrant infliction of some punishment.  There is no utility imposing reparation or restitution.
  1. Further, I think that the likely detriment from having a conviction against his or her name is beyond that which would be experienced by anyone in the community.
  1. [49]
    Having regard to these matters I can readily conclude that it is inexpedient to inflict any punishment other than a nominal punishment.  Some greater punishment would not provide any advantageous, useful or suitable purpose in the circumstances.

Order

  1. [50]
    Having been satisfied of the first and second stages, the court may then:
  1. (a)
    dismiss the charge or charges in respect of which the court is so satisfied (s 19B(1)(c)); or
  1. (b)
    Conditionally discharge the defendant without proceeding to conviction, with or without sureties, by recognisance or otherwise (s 19B(1)(d)). The conditions of the discharge may include that the offender:
  1. (i)
    will be of good behaviour (not more than 3 years);
  1. (ii)
    will make such reparation or restitution or pay such compensation or costs as is stipulated in the order; and
  1. (iii)
    will comply with any other conditions the court thinks fit to specify (not more than 2 years).
  1. [51]
    It is accepted that the offending does not warrant dismissal of the charge.
  1. [52]
    The imposition of a fine will attract the record of a conviction and its attendant consequences. The nature of the penalty, in the form of the fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so.
  1. [53]
    In my view, a good behaviour order made under s 19B(1)(d)(i) of the Crimes Act is the appropriate penalty to be imposed in all the circumstances of this case. 
  1. [54]
    By comparison with the appropriate sentencing option in s 19B, I am bound to conclude that the sentence imposed by the learned magistrate on 20 February 2019 of a $300 fine payable within two years and six days imprisonment in default, was beyond the permissible range and, therefore, manifestly excess.

Resentence

  1. [55]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
  1. [56]
    I do so having regard to all that I’ve said and applying the sentencing principles and relevant matters known to the court in accordance with the Crimes Act 1994 (Cth).
  1. [57]
    The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrents. For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
  1. [58]
    It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The sentence and orders must be severely appropriate and adequately the appellant in all the circumstances of the offence to an extent and in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and deter others from committing a similar offence, which is particular important here. The sentence must make clear that the community denounces the conduct in the offending and protect the community.
  1. [59]
    I am satisfied that a sentence under s 19B is appropriate in the circumstances, to the effect that the appellant is released without proceeding to conviction upon him giving security by recognisance in the sum of $500 conditioned that he be of good behaviour for a period of two years.
  1. [60]
    By way of explanation, the appellant is released upon his entry into a bond with a recognisance. The purpose of the order is to provide him with the opportunity to carry out the balance of his punishment within his community but remain liable to be dealt with for breach. He must comply with the condition of good behaviour for the two year duration of the bond. If he does not, he may be brought back to court for conviction and sentence.

Order

  1. [61]
    For these reasons, I allow the appeal, and will make the following orders:
  1. The sentence and orders made by the Magistrates Court on 20 February 2019 are set aside and I substituted with the following sentence.
  1. I find the charge proved.
  1. By order I release the appellant without proceeding to conviction upon him giving security by recognisance in the sum of $500 conditioned that he be of good behaviour for a period of two years commencing from 20 February 2019.
  1. No conviction is recorded.

Judge DP Morzone QC

Footnotes

[1] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8]; McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[2] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[3] White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[4] Cobiac v Liddy (1969) 119 CLR 257 at 276.

[5] Cobiac v Liddy (1969) 119 CLR 257 at 276.

[6] Jones v Moreley (1981) 29 SASR 27 at 63 – 64 per King CJ (with whom Jacobs and Mphr JJ agreed).

[7] Commissioner of Taxation v Baffsky (2001) 192 ALR 92 at [15] & [29].

[8] Johnson v The Queen (2004) 78 ALJR 616 at [15] per Gummow, Callinan and Heydon JJ.

[9] R v Ferrer-Esis (1991) 55 A Crim R 231 at 237–238.

[10] R v Hooper; Ex parte Cth DPP [2008] QCA 308 at [10], [18] & [27].

[11] Commissioner of Taxation v Baffsky (2001) 192 ALR 92 at [38]; R v Ingrassia (1997) 41 NSWLR 447 at 449.

[12] R v Abdi [1994] QCA 402.

[13] R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.

[14] Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.

[15] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.

[16]  (1936) 55 CLR 499, 504 and 505.

[17] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).

[18] Moreland v Snowdon [2007] WASC 137 at [46] per Jenkins J.

[19] Commissioner of Taxation v Baffsky (2001) 192 ALR 92; 122 A Crim R 568 at [76].

[20] Commissioner of Taxation v Baffsky (2001) 192 ALR 92 at [47].

[21] O’Sullivan v Wilkinson (1952) SASR 213 at 218 regarding the analogous s 4(1) Offenders Probation Act 1913-1963 (SA).

[22] Kelton v Uren (1981) 27 SASR 92 at 93.

[23] R v Hooper; ex parte Cth DPP [2008] QCA 308 at [23].

Close

Editorial Notes

  • Published Case Name:

    Dan Warapa v Commonwealth Director of Public Prosecutions

  • Shortened Case Name:

    Warapa v Commonwealth Director of Public Prosecutions

  • MNC:

    [2019] QDC 202

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    11 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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