Lilico v Meyers[2003] QCA 16

SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  This is an application for leave to appeal against a sentence initially imposed in the Cairns Magistrates Court.  The applicant pleaded guilty to a charge alleging that on 1 January 2003 at Cairns Airport he made a statement that he knew to be false from which it could reasonably be inferred that there was a threat to endanger the safety of a Division 3 aircraft Qantas Flight 800, namely that he was going to pull a knife out and hijack the plane, contrary to s 24(2)(b) of the Crimes (Aviation) Act 1991 (Cth).  The Magistrate, for reasons which he published, convicted the applicant, sentenced him to a term of imprisonment for three months, but ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the sentence be suspended after one month upon the applicant entering into a recognisance in the sum of $3,000.00 to be of good behaviour for a period of 12 months.

[2] From that sentence the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886, and upon the matter coming on for hearing before Judge Noud on 8 January 2003 leave was given to the applicant to adduce further evidence (s 223(2)) in the form of references supporting his previous good behaviour and unblemished record.  At the conclusion of the hearing on that date Judge Noud published reasons for dismissing the appeal.

[3] The applicant now seeks leave pursuant to s 118(3) of the District Court Act 1967 (Qld) to appeal to this court against the sentence imposed.  The principal ground relied on in support of the leave application was that, according to the substantial schedule of comparable sentences relied on by the parties, this was the first occasion upon which a custodial sentence had been imposed for such an offence.  Given that circumstance, and the desirability of an appellate court considering the issue of penalty for such offences in the current social climate, this court was of the view that leave to appeal should be granted.

[4] Submissions were then heard with respect to the appropriateness of the penalty imposed.

[5] The relevant facts can be stated briefly.  At about 9.30 pm on Wednesday, 1 January 2003, Qantas flight QF 800, a Boeing 737 aircraft, commenced boarding for departure at 9.45 pm from Cairns domestic airport for a flight to Darwin.  The applicant had been allocated 7D, an aisle seat.  Based on observations of the applicant when he boarded the aircraft the Customer Service Manager advised flight attendant Shirley Costello that she should not serve the applicant, or any of his companions, any alcohol during the flight.  At about 9.40 pm the crew were preparing the aircraft for push-back departure.  The flight attendant at that time was walking in the aircraft aisle offering headsets to passengers.  As she approached row 7 she heard the applicant say in a normal volume of voice:  “I’m going to pull my knife out and hijack the plane”.  The flight attendant immediately looked down at the applicant and noted that he had what appeared to be a toiletries bag on his lap and was pulling out what appeared to her to be a blue bottle of roll-on deodorant.

[6] The flight attendant on hearing those words felt threatened and shocked; she perceived the words as a threat and felt concerns for the safety of passengers and crew on the aircraft.  She duly reported the incident to the Customer Service Manager who contacted the captain of the aircraft about what was said.  The flight attendant then told the captain what she had heard.  The decision was made to halt the push-back procedure and the aerobridge was brought back to the aircraft.  Australian Protective Service officers subsequently boarded the aircraft and removed the applicant and his travelling companions from the flight.  Those officers noted that the flight attendant who heard the words used was visibly shaken.

[7] When asked by the flight attendant whether they had heard the words in question the passengers in row 6 replied “No”.  The defendant’s travelling companions also stated they did not hear him say anything.

[8] The applicant’s luggage was removed from the hold of the aircraft and he was searched and interviewed by Australian Protective Service officers.  A search of the cabin baggage revealed an asthma ventilator aerosol, and there was a Swiss Army style knife located in his luggage retrieved from the hold of the aircraft.  In the course of the interview the applicant said he couldn’t remember making a comment of the type alleged and couldn’t see any reason why he would have said it.  He admitted in that interview that on the day in question he had consumed four Corona beers, a Guinness, three lagers, and a heavy beer, a total of eight standard drinks.  He stated that he commenced drinking at about 3.00 pm and had been consuming that alcohol over a six hour period.

[9] In the course of submissions made by his solicitor before the Magistrate it was stated that the applicant had been drinking the night before, New Years Eve, and he was still under the influence of what had then been consumed when he started drinking again on New Year’s Day at about 3.00 pm.  The applicant also claims, and this was not disputed, that he had fallen asleep on the aircraft by the time the security officers arrived to remove him.  It was accepted that the applicant had no criminal history.  His solicitor informed the Magistrate that the applicant was 22 years of age, and had recently completed a Fine Arts degree in the United Kingdom.  He was in Australia on a working visa, having arrived in August 2002.  The applicant’s solicitor submitted that it was a single, isolated comment by a person who did not have means available to carry out any threat contained in the words used. 

[10] The offence in question carries a penalty of two years imprisonment after a conviction on indictment but when the matter is dealt with summarily, as was the case here, the maximum penalty is 12 months imprisonment and/or a fine of $6,600.00.

[11] After referring to a number of comparative sentences where significant fines had been imposed (in some cases of the order of $4,000) the prosecutor went on:  

“Your Worship, the prosecution are asking for a deterrent penalty.  It is submitted that imprisonment is perhaps not the most appropriate option here, but a substantial fine should be imposed, and that as a starting point that fine should be $3,000.00. …  It is submitted that the penalty must be a deterrent of both a specific and general nature to deter others from making smart comments.  …  Your Worship, those are the prosecution’s submissions.  In short, the prosecution would be asking for a substantial fine”.

[12] It should also be noted that the delay in the aircraft’s departure brought about by the applicant’s conduct resulted in a reasonably substantial loss to the airline.  That loss would have been of the order of $14,000.00.

[13] In the course of the submissions by the applicant’s solicitor the Magistrate indicated that in spite of the apparent concession made by the prosecution he was seriously considering imposing a custodial sentence.  Thereafter the solicitor addressed specifically the issue of a custodial sentence.  Primarily because of his contention the conduct in question was no more than an extremely stupid comment by the applicant he argued that a custodial sentence was not called for.  In giving his reasons supporting a custodial sentence the Magistrate observed that “making a statement that you were going to pull a knife out and hijack a plane, in the current climate, is obviously extremely foolish behaviour”.  He went on to note that the behaviour was “fuelled by an excess of alcohol”.  After noting that the statement caused “both distress and delay and inconvenience” he went on to say “I think it should be made very clear to such persons that the decision to drink too much and going on an aircraft and then making smart comments which may result in delays, cost and inconvenience, as well as alarm to persons on board, are things that are not going to be without consequences, and I am satisfied that in the current climate a person should be made well and truly aware of that and I am satisfied a custodial sentence should be imposed”.  That observation, and statements made by the Magistrate in the course of the hearing, clearly indicate that general deterrence was treated as a very significant factor in determining the appropriate penalty.

[14] Before the District Court it was contended that the sentence was manifestly excessive, and that the Magistrate had erred in regarding the applicant’s state of intoxication as an aggravating circumstance.  More significantly (as already noted) the applicant applied for leave to adduce further evidence and that was granted.  The applicant was dealt with in the Magistrates Court on the day following the incident.  When the matter was first called on he was represented by the duty solicitor, but the matter was stood down for a few hours to enable private representation to be arranged.  In those circumstances it is understandable that there was no time to collect material from overseas relevant to the applicant’s personal circumstances.  The fresh evidence placed before the District Court was in the form of six references dealing with the applicant’s character and antecedents.  Those references included some from responsible people who had known the applicant over a number of years.  It seems clear he had been a very motivated student who graduated with an honours degree in Arts from the University of Sunderland in July 2002.  One of his lecturers described him as “a most intelligent, sensitive and gentle individual, deeply committed to the subject and demonstrating a very serious and professional ambition to establish a personally meaningful position within contemporary Fine Art practice”.  The material generally indicated that the applicant was not a political activist and generally was regarded by responsible people as “mild-mannered and not aggressive”.  All those who submitted references considered that the conduct in issue in these proceedings was not in keeping with the applicant’s general good character and previous behaviour.

[15] One matter agitated in the District Court, and again before this court, was s 17A(1) of the Crimes Act which provides that a court should not pass a sentence of imprisonment upon any person for a Federal offence unless, after having considered all other available sentences, it was satisfied that no other sentence was appropriate in all the circumstances of the case.  The only criticism of the Magistrate’s reasoning made by Judge Noud was that he was “satisfied that on my reading of the Magistrate’s Court decision the Magistrate with due respect should be taken as not having given proper regard to s 17A(1) of the Crimes Act”.  But Judge Noud then went on to say:

“For my part, given the circumstances of recent tragedies overseas, no sentence other than one containing a custodial element is appropriate in a case like this and I say that in spite of the appellant’s youth, cooperation, remorsefulness, good character, impressive references and other mitigating features in his favour … .  I think also because of the importance of general deterrence in a case such as this the sentence in fact passed is the correct one”.

[16] If, as Judge Noud concluded, a custodial sentence was the only appropriate one in the circumstances it is difficult to see that there was some error in the reasoning of the Magistrate in that he did not give due weight to the section in question.  That section was canvassed extensively before the Magistrate, and it cannot be said that he failed to have regard to its significance.  It is not necessary that specific reference should be made to the section in the course of sentencing remarks before it can be concluded that due regard was had to its provisions.

[17] Judge Noud correctly concluded that there was no substance in the ground that the Magistrate had regarded intoxication as an aggravating circumstance.

[18] A situation has now been reached where, because of events overseas and locally, airline operators can no longer treat threats to hijack aircraft or cause harm to aircrew lightly.  All intending passengers are now generally subjected to detailed searches of person and property, in many instances such searches amount to an invasion of privacy.  That is the price law-abiding citizens have to pay because of the activities of a relatively small proportion of the travelling public.  Against that background any suggestion that a passenger on board an aircraft is armed with a knife is likely to cause alarm and distress to aircraft crew and passengers.  Any such suggestion must be treated seriously by aircraft crew and failure to do so could well lead to disciplinary action being taken. 

[19] Given those considerations there is now no such thing as a threat made in jest.  All statements or actions tending to indicate a threat to hijack an aircraft or cause harm or terror to crew and passengers must be regarded as a genuine threat.

[20] As already indicated there have over the years been many offences analogous to the present dealt with primarily in the Magistrates Courts.  A perusal of the sentencing schedules placed before the court indicates the range of offences and the penalties imposed; to date non-custodial sentences, usually heavy fines, have been imposed.

[21] The Crimes (Aviation) Act 1991 creates a number of offences of relevance for present purposes.  The provisions, and the maximum penalty provided, can broadly be summarised as follows:

Section 13 – Hijacking – life imprisonment

Section 14 – Act of Violence towards crew or passengers – 14 years imprisonment

Section 19 – Prejudice of safe operation of aircraft – 14 years imprisonment

Section 21 – Assault crew – 14 years imprisonment

Section 22 – Endanger safety of aircraft – 7 years imprisonment

Section 23 – Carry dangerous goods (includes any weapon) onto aircraft – 7 years imprisonment

Section 24 – Threats or false statements endangering safety of aircraft – 2 years imprisonment

Section 26 – Violence at Airports - 15 years imprisonment

Section 28(2)(b) – False Statement reasonably inferring intent to cause damage to aerodrome.

[22] The Civil Aviation Regulations 1988 also creates two offences of some relevance for present purposes:

1. Regulation 256 – Boarding an aircraft while intoxicated

2. Regulation 256AA – Offensive and disorderly behaviour on an aircraft

Both those offences carry a fine as the maximum penalty.

[23] The offence here, as already noted, was against s 24(2)(b) of the 1991 Act.  Because the offence was dealt with summarily the maximum penalty was 12 months imprisonment.  The schedules showing comparable sentences placed before the court cover a variety of offences against a number of the statutory provisions referred to above. It is significant to note that there has been an increase in the number of such offences dealt with by the courts in the last two or three years.  That may be a reflection of the fact that charges are being laid now whereas some years ago the matter would have been dealt with without the offender being bought before a court.  But what is disturbing is that convicting and punishing offenders to date has not had the desired deterrent effect.  As already noted the schedules reveal that all offences prior to this one have been dealt with by the imposition of a fine.  A number of the fines have been for some thousands of dollars but that has not been sufficient to act as a general deterrent.  The schedule indicates that some 27 offences against the provisions referred to above have been dealt with by courts in Australia since 1 January 2000.  It appears that with increased security at airports the number of offences is increasing.

[24] In those circumstances the courts must act to ensure that the penalty imposed operates as a general deterrent both to persons having an actual criminal intent to harm an aircraft or its passengers and those seeking to cause disruption and fear by making false and malicious threats.  The fact that a threat is made by an intoxicated person in no way diminishes the seriousness of the offence committed.  Indeed the fact that a person was intoxicated may well create in the mind of a reasonable observer the belief that the person was likely to carry out the threat made.

[25] The appropriate penalty will always of course be dependent upon the circumstances of the particular case.  Where the person making the threat obviously had the means of carrying it out (for example, by brandishing a knife), the penalty would be greater.  Where there is a threat to hijack an aircraft, and it is reasonably inferred that the threat was genuine, a custodial sentence is the only appropriate penalty carrying the required deterrent effect, even though it be subsequently established that the perpetrator did not have the means of carrying the threat into effect.  Here the coincidence in time between the applicant making the statement and taking an object from his toilet bag was such as to give the appearance of genuineness to the words used.

[26] In the circumstances here, a custodial sentence is the only sentence which is appropriate having regard to the necessity for the penalty to act as a general deterrent.  That results inevitably in the conclusion for s 17 of the Crimes Act that no sentence other than a custodial sentence is appropriate in all the circumstances of the case.

[27] It was faintly argued that the prosecutor before the Magistrate in making the statement quoted in para [11] above conceded that a custodial sentence was beyond range.  The statement was not a formal concession.  The importance of general deterrence was emphasised and the statement was no more than a submission that if the Magistrate considered a fine to be the appropriate penalty, it should be substantial.  But in any event the court is in no way bound by what is said by the prosecution in that regard (cf R v Wilde; ex parte Attorney-General (Qld) [2002] QCA 511).

[28] Given the particular facts here a head sentence of three months imprisonment would be at the upper end of the appropriate range but nevertheless within range.

[29] One has now to consider the personal circumstances of the applicant in order to determine the extent to which that head sentence should be modified.

[30] As already noted the applicant was aged 22 having been born on 3 April 1980.  He had been in Australia on a working visa for only some months prior to the commission of the offence.  He has no prior convictions either in Australia or England.

[31] At the time the applicant was dealt with by the Magistrate the references now before the court were not available.  It does appear that the applicant was a personable young man who had studied hard and achieved much in a short space of time.  In those circumstances it is easier to conclude that this was a one-off incident committed against a background of intoxication associated with New Year’s Eve celebrations.  He had no actual capacity of carrying out the intention inherent in the statement made to the flight attendant.

[32] In those circumstances it was appropriate to moderate the head sentence by ordering that the applicant be released upon entering into a recognisance to be of good behaviour.  The Magistrate determined that such release should become effective after one month’s imprisonment was served.  But when the additional material in the form of the references is brought into account that period should be reduced further.  Whilst it is generally not desirable to send a young person to gaol for a very short period the circumstances here require the serving of some actual time in custody and a period of 14 days is appropriate.  The head sentence of three months imprisonment reflects the serious nature of the offence and operates as the general deterrent.  The personal circumstances of the applicant, particularly his previous good behaviour and the fact it is highly unlikely he will re-offend, justify ordering his release after serving 14 days imprisonment.

[33] It was for those reasons that the court at the conclusion of the hearing announced that leave to appeal would be granted, the appeal would be allowed, and the sentence would be varied by deleting the provision that the applicant be released after serving one month, and inserting in lieu thereof a provision that the applicant be released after serving 14 days of the sentence imposed.

[34] JERRARD JA:  I have read and respectfully agree with the reasons and conclusions of Williams JA and Mackenzie J.  I add the following comments.

The charge alleged an offence against s 24(2) of the Crimes (Aviation) Act 1991 (Cth) (“the Aviation Act”) which provides that:

“A person must not make a statement or communicate information, being a statement or information that he or she knows to be false, to the effect, or from which it can reasonably be inferred, that there has been, is or is to be, a plan, proposal, attempt, conspiracy or threat:

(a) to take or exercise control, by force, of a Division 3 aircraft; or

(b) to destroy, damage or endanger the safety of such an aircraft; or

(c) to kill or injure anyone on board such an aircraft.

Penalty: Imprisonment for two years.”

[35] By reason of the provisions of s 4J(3) of the Crimes Act 1914 (Cth), upon an election by the applicant accepted by the Stipendiary Magistrate, to be dealt with summarily, the maximum available penalty was 12 months imprisonment.  The obligations of a court imposing sentence on a person convicted of a federal offence are set out in part in section 16A of the Crimes Act, which lists therein matters that the court must take into account when imposing the sentence of a severity appropriate in all the circumstances.  A further important obligation is specified in s 17A of that Act, which relevantly provides that a court should not impose a custodial sentence unless satisfied that no other sentence is appropriate, and when passing a sentence of imprisonment should state the reasons for the decision no other sentence is appropriate.

[36] Application of the principles so specified in s 16A and 17A has resulted to date in fines being imposed in the surprisingly frequent number of offences committed on aircraft, in which the offenders endangered or threatened to endanger the aircrew or other passengers, or both; or made statements implying they did.  The matters specified in s 16A which undoubtedly have helped lead to this pattern of fines being imposed include (repeating the numbering of s 16A(2) but not necessarily all its contents).

(a) the nature and circumstances of the offence;

(d)the personal circumstances of any victim of the offence;

(e)any injury, loss or damage resulting from the offence;

(f) the degree to which the person has shown contrition for the offence;

(i)by taking action to make reparation for any injury, loss, or damage resulting from the offence; or

(ii)in any other manner;

(g)if the person has pleaded guilty to the charge in respect of the offence – that fact;

(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j)the deterrent effect that any sentence or order under consideration may have on the person;

(m)the character, antecedents, cultural background, age, means and physical or mental condition of the person.

[37] I have reproduced only those considered relevant to the present matter by the submissions or decision in the Magistrates Court, the District Court, and on the hearing in this court.  Other matters not relevant to this offender include:

(c)whether the conduct forms part of a series of criminal acts of the same or similar character;

(k)the need to ensure that the person is adequately punished for the offence;

(n)the prospect of rehabilitation of the person;

(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

[38] I add those other matters because some may have helped explain the imposition of fines in the circumstances of commission of offences in the past against the Aviation Act.  A schedule of cases from 1996 to 2002 prepared by the Commonwealth Director of Public Prosecutions was presented to the learned judge of District Courts hearing the appellant’s original appeal, and to this court.  As already indicated, its contents are capable of causing surprise, both because of the number of offenders in that period, and the fact that sentences of imprisonment were not imposed.  I now mention some only.

● One Achmad Jawas aged 48 pleaded guilty on 5 September 2001 to an offence against s 24(1) of the Aviation Act, which section provides that a person must not threaten to destroy, damage, or endanger the safety of a Division 3 aircraft, or to kill or injure anyone on board on such aircraft.  As with s 24(2), the maximum penalty is two years imprisonment if convicted on indictment.  Mr Jawas was charged with assaulting and threatening the cabin crew on an aircraft, and with offensive behaviour on that aircraft, and was fined $500.00.

● A Paul Malcolm Grinter pleaded guilty on 7 November 2002 to breaching s 24(2)(b) (i.e. to a like offence as the present applicant); and his offence was committed when he told a flight attended in response to a query by her that an item, apparently a small bag, held between his legs was “a bomb”.  He realised he had caused her concern, said it wasn’t a bomb and that he was joking, but the aircraft was halted as it was taxiing from the Brisbane Airport to the runway, and Mr Grinter was removed from the plane.  He was co-operative, made full admissions, was remorseful, and said he was joking.  He was fined $7,500.00.

● A Mark Anthony Kleid pleaded guilty on 29 November 2002 to having threatened a flight attendant (when intoxicated) on an aircraft, and was fined $500.00.

● A William Francis Prideaux pleaded on 12 September 2002 to a charge laid pursuant to s 256AA of the Civil Aviation Regulations 1988, after he had had a confrontation with two other passengers on an aircraft and threatened them.  He was sentenced to one months imprisonment but ordered to be released forthwith. 

● A Rob Menzies Anderson pleaded guilty on 22 April 2002 to a similar offence, after having behaved in an offensive and disorderly manner on an aircraft.  He was fined $1,500.00.

● Likewise a Kelly Gallagher, who pleaded guilty on 28 November 2000 to breaching s 256AA (after being one of a group on an Ansett flight who were loud, disruptive, and argumentative when refused alcohol, and refused to sit down and put her seat belt on), was fined $700.00.  Her travelling companion Andrew James Brooks pleaded guilty to the same offence, and for his part he had stood at one stage during the flight some inches away from a flight attendant arguing, stamping his feet, and punching a closed fist into the other hand.  This was after being refused alcohol on board, and the flight crew described themselves as feeling intimidated and upset.  He was fined $800.00. 

● A Shaun Patrick Crannitch pleaded guilty on 19 October 2000 to a similar offence committed on 30 May 2000, when travelling from Los Angeles to Melbourne.  He did $2,000.00 damage to the aircraft by punching its wall.  He was fined $300.00.

● A Michael Joseph Ebbage pleaded guilty on 17 October 2000 to breaching the same section, and his conduct occurred after he became drunk and abusive on an Air Vanuatu flight from Port Villa to Brisbane.  He had punched an aircraft window, damaged its shutter, and when the cabin crew attempted to calm him he became abusive and had to be restrained by the first officer, two other crew members, and a passenger.  He was placed on a good behaviour bond and ordered to make a total of $1,300.00 of restitution.

● A Tania Maree Evorall pleaded guilty on 18 June 2002 to breaching s 14(1) of the Aviation Act, which section effectively applied the other provisions of that Act to persons whose conduct occurred on aircraft in circumstances providing a relevant jurisdictional link with Australia.  She had assaulted a crew member on an incoming flight between Darwin and Sydney and had used offensive language.  She was fined $1,000.000.

● A Murray Graham Whincop pleaded guilty on 24 March 2000 to a breach of s 26(2)(a)(iii) of the Aviation Act, which sub-section deals with acts disrupting services at airports.  Mr Whincop had driven his utility through a mesh wire fence at the Brisbane International Airport, driven onto the apron area of airport and stopped next to an aircraft being refuelled.  He had approached the engineer refuelling the plane and asked where different planes were going; and resisted when officers from the Australian Protective Services attempted to escort him from the area.  He was fined $500.00.

[39] These descriptions have been confined to conduct occurring in the years 2000–2002.  They are examples of aggressive behaviour towards others in and around aircraft, and usually associated with intoxication.  The capacity of such conduct to escalate into far more serious events, and the real and threatened danger to aircrew and other passengers from intoxicated and aggressive conduct, is shown in the following further examples, they being of offences committed before the year 2000.

[40] On 14 May 1999 Vace Richard Banks pleaded guilty to a charge under s 24(2)(b) of the Aviation Act, committed when, prior to the departure of an aircraft to Sydney, he was removed from it because of his intoxicated state and aggressive demeanour towards Ansett crew.  After being removed he was advised that his bag may not be retrievable, whereupon he said there was a bomb in it; and Ansett had better remove it from the plane.  The flight was delayed 20 minutes while the plane was returned from the runway, and the offender’s bag removed and searched.  There was no bomb.  He was fined $3,000.00.

[41] On 21 January 1998 James Loveshine Court pleaded guilty to an offence of s 22 of the Aviation Act 1991 committed on an aircraft en rout from Nauru to Brisbane.  He had become intoxicated to a degree whereby he became abusive and aggressive towards aircraft staff and fellow passengers, and he had been refused further alcohol.  He threatened to break the neck of the aircraft Captain and bring the aircraft down.  He told a fellow passenger “I’m a nut case I don’t care what happens to me but you’re going out the window and I’m coming after you and I don’t care about the life of the other passengers”.  A struggle with the passenger he was speaking to ensued, and he kicked at and attempted to open a safety window on the aircraft while the cabin was pressurised and in flight.  Two passengers overpowered him and eventually he was restrained. The flight Navigator and the flight Steward were required to sit with him for the remainder of the flight.  He was fined $2,000.00.

[42] One instance of a prison sentenced being imposed occurred when John Charles Keating pleaded guilty on 6 October 1999 to an offence against s 21 of the Aviation Act.  Mr Keating was travelling from Brisbane to Bali on 25 April 1998 on an Ansett flight, during which he assaulted a number of members of the aircrew and threatened an attack on another elderly passenger.  He assaulted flight attendants and the aircraft’s Co-pilot, who was forced by Mr Keating’s conduct to leave the cockpit.  The Captain of the aircraft eventually diverted the plane to Darwin to allow Mr Keating to be taken into custody.  He was sentenced to two years imprisonment, to serve six months. 

[43] There are numerous other examples in that schedule of alcohol stimulated aggressive conduct to other passengers and flight crew occurring between 1996 and the year 2000, and resulting in the imposition of fines.  Almost all the examples of offending conduct cited in these reasons for judgment were accompanied by apparently genuine remorse, frequently by written letters of apology to the airline and its staff, and were committed by people who most commonly had no prior convictions and were otherwise of good character.  They had become intoxicated, aggressive, and a danger to others when on an aircraft.  As was remarked by Williams JA during the hearing of this appeal, the numerous offences listed in the schedule presented demonstrate that the imposition of fines is not acting as a general deterrent against conduct of this sort on aircraft.

[44] The Crimes Act does not specifically refer to the sentencing principle that appropriate penalties reflect a need to provide a general deterrence against similar conduct by others.  The relevance of such a principle was conceded by the applicant’s legal representatives before the Magistrates Court, the District Court, and this court.  The Magistrate was correct in taking the view that an appropriate penalty in this matter should provide a measure of deterrence generally throughout the community, warning against self indulgence in intoxicated conduct on aircraft potentially and actually dangerous or threatening to all others on board.  Although the Magistrate was correct in imposing a custodial sentence for that reason, he did not specifically advert to the provisions of s 17A of the Crimes Act or comply with it; and accordingly the learned judge of District Courts upheld the appeal against the sentence imposed, holding that the Magistrate had thereby erred in law.  The learned judge then took meticulous care to ensure that all relevant provisions of section 16A and 17A were taken into consideration, and likewise meticulous care to identify the actual facts upon which the sentence was being imposed.  Having done so, he came to the view that the sentence imposed was the appropriate one.

[45] One can concede that the present applicant’s statement, intended as a jocular remark but correctly understood as serious when overheard, is a relatively less obnoxious example of behaviour constituting the offence he committed.  That offence is established by the inference from his statement of potentially catastrophic consequences for all, reasonably open from the limited facts known to the flight attendant.  Those facts, resulting essentially from the applicant’s intoxicated state were shown to have delayed the flight for one hour, inconvenienced the other passengers, cost the airline about $14,000.00, and caused the appellant and his travelling companions to be removed in dramatic circumstances.  There is a plain need to deter such intoxicated and aggressive behaviour on aircraft, where the reasonable inference of serious harm to the aircraft and other passengers mandates immediate emergency action costly and inconvenient to others. 

[46] The reasonable inference of a serious risk of danger comes from the capacity intoxicated people have of acting without inhibition, to their own danger and to the danger of others.  Accordingly, despite submissions from the prosecution that a substantial fine was an appropriate penalty in the case, the Magistrate recognised the need for a level of sentence in these cases with a more general deterrent effect than had previously been imposed.  The Magistrate was told that applicant had no criminal history in Australia or the United Kingdom, and that his solicitor was instructed that Mr Lilico had no propensity to violence.  That court was informed that Mr Lilico was in Australia from the United Kingdom on a working visa, had been employed on a contract basis with a firm which erected and dismantled Christmas decorations, and was travelling from Cairns to Darwin for work purposes.  He was described as genuinely remorseful and as just having completed a degree in Fine Arts with the University of Sunderland in the United Kingdom.  He was 22 years old.

[47] The sentence imposed was perhaps at the top of the range of imprisonment for offences committed in those particular circumstances, both as to the three month “head” sentence, and the one month to be served.  The learned judge of District Court hearing the appeal received affidavit evidence of the applicant’s performance at the University of Sunderland, and from those who had known him well in the United Kingdom.  That affidavit evidence described him as an intelligent, sensitive, and gentle individual, professionally ambitious, well mannered and pleasant, hard working, and deposed that his conduct was out of character.  Descriptions of his background and character to that depth had not been before the Magistrate. 

[48] Despite the meticulous care taken by the learned judge of District Courts, the personal circumstances established in the further affidavit evidence led before that judge make the sentence of one month actual imprisonment manifestly excessive in these circumstances.  Offenders such as Mr Lilico breaching the provisions of the Aviation Act should expect custodial sentences for the reasons already described, even where they have Mr Lilico’s impressive background record.  Given that impressive background, and the fact that he made a foolish comment to a friend heard by other ears, for which it was not intended, the custodial sentence warranted as a general deterrent need not have been any longer than the period of custody actually served as a result of the order made by this court on 14 January 2003. 

[49]  Other than by the courts imprisoning offenders such as Mr Lilico, the airlines could eradicate the problems caused by intoxicated passengers by refusing to allow the intoxicated to board any aircraft.  Likewise, the airlines could stop serving alcohol to passengers, just as cigarette smoking has been stopped; or serve a limited quantity per passenger.  It is, after all, the drug alcohol which is the root cause of the problems, rather than those individuals, of otherwise good character and behaviour, who exhibit conduct which is a predictable enough effect of abusing that drug.

[50]  MACKENZIE J:  The applicant pleaded guilty in the Magistrates Court at Cairns on 2 January 2003 to an offence against s 24(2)(b) of the Crimes (Aviation) Act 1991 (Cth) in that he made a statement that he knew to be false from which it could reasonably be inferred that there was a threat to endanger the safety of an aircraft, namely that he was going to pull out his knife and hijack the plane.  An election was made to hear the matter summarily with the result that the maximum penalty was twelve months imprisonment (s 4J(3) Crimes Act 1914 (Cth)).

[51]  After the applicant, who was legally represented, had pleaded guilty the magistrate heard submissions during the course of which the prosecutor, probably believing that the pattern of sentencing in the past for offences of this and related kinds supported a substantial fine as an appropriate penalty, made a submission to that effect.  The magistrate indicated that he was considering a custodial penalty, after which submissions were made against that background. Being an offence against Commonwealth law, the sentence was governed by s 16A and s 17A of the Crimes Act.  The former sets out matters that must be taken into account in addition to any other matters.  General deterrence is not specifically referred to but that does not mean that general deterrence is not an important factor in an appropriate case.  The latter sets out the principle that the court should not impose a custodial sentence unless satisfied that no other sentence is appropriate, for reasons which must be stated.

[52] The essential facts are that the applicant and his travelling companions boarded a Qantas flight at Cairns at 9.25 pm on 1 January 2003 to travel to Darwin.  The applicant had celebrated the New Year enthusiastically and had consumed additional liquor from about 3 p.m. that afternoon.  At the time he boarded the aircraft, a decision was taken by a senior cabin crew member that alcohol would not be served to the passengers in row 7 where the applicant and his friends were seated.  When the aircraft was about to be pushed back for the purpose of departing from the terminal, the flight attendant was walking in the aisle offering headsets to passengers when she heard the appellant say “I’m going to pull my knife out and hijack the plane”.  She looked down at the applicant and saw him produce something, which she thought was a roll-on deodorant, from a toiletries bag which he had on his lap.  A subsequent search found no knife in his possession in the cabin, but a Swiss army knife was found in his baggage in the hold.  There  was a Ventolin dispenser in his toiletries bag.

[53] The flight attendant who heard the remark was distressed and shaken by what she heard.  She reported the incident to the customer services manager who told the Captain of the aircraft.  He aborted the departure procedures and Australian Protective Service officers entered the aircraft and removed the applicant and his companions from it.  A submission by the applicant’s solicitor before the magistrate that he had fallen asleep by the time the Australian Protective Service officers came on board was not contradicted by evidence.  Neither the applicant’s travelling companions nor passengers in row 6, who were asked if they had heard the remark, claimed to have heard it.  In submissions to the magistrate the applicant’s solicitor said that the applicant could not remember saying the words and could not see any reason to have said them.

[54] Due to the quick disposal of the matter by plea of guilty, the magistrate proceeded on the basis of a submission that the applicant was a 22 year old Fine Arts student from the United Kingdom who was in Australia on a working visa, and that he had no criminal history.  He imposed a sentence of three months imprisonment, suspended after one month on entering into a recognizance in the sum of $3,000 to be of good behaviour for twelve months.  In his sentencing remarks, the magistrate said that it was extremely foolish to make the statement in the current climate; that it was fuelled by an excess of alcohol; and it had caused distress, delay and inconvenience.  With obvious focus on general deterrence the magistrate said that the combination of drinking to excess prior to boarding an aircraft, then boarding it and making a comment in the current climate that may cause delay, cost, inconvenience and alarm to those on board should not go without consequences.  He concluded that a custodial sentence should be imposed.

[55] An appeal to the District Court was lodged and was heard on 8 January 2002.  By that time references from a number of people of good standing in and around the applicant’s local community who could speak in detail of his character and achievements had been received and were admitted by leave at the hearing of the appeal.  These references confirmed that he was of good character and supported the conclusion that the offence was out of character.  The District Court judge therefore had more complete and detailed information than the magistrate had, to assist him in deciding whether the sentence was manifestly excessive.  As it turned out the District Court judge proceeded on the basis that the magistrate did not give due weight to s 17A but nevertheless concluded that, notwithstanding the factors in the applicant’s favour, which he listed as “youth, co-operation, remorsefulness, good character, impressive references and other mitigating factors”, the sentence was correct.  I have reservations whether the magistrate did in fact not give due attention to the principle in s 17A.  If he did not sufficiently comply with it in formal terms, the sentence was not invalidated for that reason alone.  The reasons seem to proceed on the assumption that it was necessary to explain why a sentence of imprisonment was being imposed, even though s 17A was not elaborated on in them in specific detail.

[56] I also have reservations about the notion that the magistrate’s reference to consumption of liquor and its contribution to the commission of the offence may have been erroneous.  To my mind, he was not treating the consumption of it as an aggravating feature, but observing that passengers who board an aircraft in a voluntarily intoxicated state have placed themselves in a situation where they may do things that they would not ordinarily do and must bear the consequences of what they do.  I do not think that he was wrong to put the matter in that way.

[57]  Upon a further appeal being made to this court, leave was granted as required by s 118(3) of the District Court Act 1967.  It is noteworthy that, in the schedule of offences of the same and related types prepared for the District Court appeal, offences that were more serious than the present offence had generally been disposed of by fining the offender a substantial sum.  The reasons of Jerrard JA summarise these decisions.  Another novel factor was that the decision below proceeded on the foundation that circumstances currently prevailing required a more serious view to be taken of offences of this kind than in earlier times.  It was therefore an opportune time for an intermediate Court of Appeal to give consideration to the issues involved. 

[58]  This was not a case where the words complained of were accompanied by overt disorderly behaviour or resistance to authority at the time the applicant spoke them.  Nor did he speak them in a manner that appeared to be intended or that was calculated to attract the attention of a substantial number of other people on the aircraft and cause immediate alarm to them.  Cases where the words spoken are accompanied by circumstances of those kinds would generally be more serious than the present case.

[59]  However, the case is not right at the bottom level of seriousness because at or about the time he spoke the words, he had his toiletries pack on his lap and produced something from it which the flight attendant said appeared like a roll-on deodorant.  It was never explained why he choose to do that at that moment leaving open the inference that its production and uttering the words were not unconnected.  The words were spoken in a tone that only the flight attendant heard, perhaps with intent to alarm her or perhaps as a wholly inappropriate and heavy handed attempt at humour, but in either case out of alcohol fuelled irresponsibility.

[60]  Irrespective of what later proves to be the excuse offered, or the motivation for what was said, words of the kind spoken are rightly taken seriously at the time by the flight crew.  They would, no doubt, be open to criticism if they did not.  Even an offence at the lower end of the range has several consequences.  The first is that it will inevitably cause concern to those who actually hear what was said.  The second is that it will cause inconvenience to those on the flight because almost inevitably the flight will be disrupted.  There will be delay and possible economic loss to those on board.  Many of them are likely to suffer distress or unease of varying degrees if they see someone removed from the aircraft by the authorities and find out or suspect why the flight has been disrupted.  In a case where some of the other passengers were asked, as those in an adjacent row were, if they heard the remark, it is unrealistic to assume that word would not spread as to the reason for the person’s removal.  Thirdly it causes inconvenience and significant economic loss to the carrier.

[61]  While the offence does not fall at the bottom of the range, it falls at the lower end of severity.  But when the cumulative effect of the factors just referred to is taken into account it is obvious that even an offence at the lower end of the scale cannot be regarded as trivial and that there has to be an element of general deterrence in the sentence imposed.  I am not persuaded that a head sentence of three months imprisonment is necessarily beyond the exercise of a proper sentencing discretion in cases even at the lower end of the scale while there remains a higher level of concern over security issues and increased concern in the minds of the travelling public about their safety. 

[62]  But I am of the view that for an offence of the level involved in this case, a head sentence of more than three months imprisonment would bear close scrutiny and, even accepting that short terms of imprisonment are generally undesirable, a sentence of three months imprisonment without appropriate mitigation by early release would be open to question.  It has already been noted that the sentencing magistrate did not have the benefit of the additional material admitted by leave in the District Court when sentencing.  That material could not reasonably have been obtained in time for the sentence before the magistrate.  It was material from people of some standing with direct knowledge of the applicant from which a better appreciation of the applicant’s background and character can be gained. 

[63]  In my view the learned District Court judge should have given more weight to that expanded material than he gave.  The applicant has the benefit, for sentencing purposes, of his youth and that he has no previous convictions.  The guilty plea was made at the earliest opportunity.  The offence appears to have been out of character.  The additional material in the references suggests that he was not ordinarily a person who engaged in irresponsible behaviour of this kind.  It can be inferred from the decision not to serve alcohol to people seated in his row that his judgment was clouded by the alcohol he had consumed over the hours before he boarded the aircraft.  The cases analysed by Jerrard JA show that overindulgence in alcohol is a common precursor to offences of this kind.  That is, of course, not an excuse but it may provide some explanation of why the applicant acted so irresponsibly on this occasion.

[64] The critical factor requiring the appeal to be allowed on the basis that the sentence, overall, was manifestly excessive is that there was additional material concerning the applicant’s personal character and characteristics which was not before the magistrate and to which, in my view, the learned District Court judge gave insufficient weight in concluding that the sentence imposed was appropriate.  For the reasons given above, I concurred in the orders made at the conclusion of the hearing on 14 January 2003.