Lee v Hodder[1998] QDC 314

[Before McGill SC DCJ]

[WW Lee v K Hodder]

BETWEEN:

AND:

JUDGMENT

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL SC P.C.J.

Delivered the 6th day of November 1998

This is an appeal pursuant to s. 222 of the Justices Act against the sentence imposed in the Magistrates Court in Southport on 26th August 1997 when the appellant was convicted of two offences against the Crimes (Currency) Act of 1981, an offence of having possession of counterfeit money, namely one Australian $100 bank note contrary to s. 9 of that Act, and an offence under s. 7 of that Act of uttering that same counterfeit note. The Magistrate convicted the appellant and imposed one penalty, a fine of $600; he was also ordered to pay $964 witnesses' expenses, and compensation of $100 to the owner of the business where the note had been passed.

The circumstances of the offence were that the appellant went into a cafe with another person where they each ordered coffee. The bill was paid with the counterfeit $100 note. At the trial there was a conflict as to whether the payment had been made by the appellant, or by the other person, but that was resolved against the appellant by the Magistrate and no issue is taken about that matter. There was no dispute that the note was counterfeit, and the Magistrate found that the appellant knew that it was counterfeit. On the basis of these findings, there was a conclusion that it had been uttered by him, and the relevant possession must be his possession prior to the time when the note was handed over.

It was conceded on the hearing of the appeal that there was an error of law by the Magistrate in passing sentence, in that it was not permissible to impose one sentence in respect of the two offences. The relevant provisions in the Crimes Act s. 4K are as follows:

Although both of these charges were laid under the one law, they allege offences under separate sections of the Statute and are therefore not offences against the same provision of a law of the Commonwealth. It follows that they could not have been properly joined in the one information complaint or summons; the presence of two bench charge sheets suggests that they were not so joined. It seems to follow from subs. (4) that a single penalty may only be imposed in respect of two or more offences which could have been joined in the same information, complaint or summons pursuant to subs. (3). That was not the case here, and therefore there was no power to impose a single penalty under subs. (4). No other provision is relied on as giving such power, and I think it follows that the Magistrate was required to impose a separate penalty for each offence. It therefore follows that I must resentence the appellant.

The Notice of Appeal records as the grounds relied on that it was an error to record a conviction, since no conviction should have been recorded. Initially an argument was advanced in an outline filed on 11 February 1998 seeking to modify the sentence imposed only by omitting the recording of the conviction, but counsel for the appellant at the trial conceded that such a course is not open, because under the Crimes Act 1914, there is no provision under which a fine can be imposed without recording a conviction.

Section 19B provides that, where a court is satisfied that a charge of an offence against the law of the Commonwealth is proved, but is of the opinion, having regard to certain specified matters,

The section goes on to provide for a condition of being of good behaviour for a specified period not exceeding three years, a condition for the payment of reparation, restitution or compensation, and such other conditions as the court thinks fit, which may include a condition for supervision by a probation officer. Because of the terms of the section it would be possible merely to require that a person be of good behaviour for a specified period not exceeding three years.

It is apparent from the wording of the section that what is contemplated is that the court will not convict the person of a charge even though satisfied that the charge is proved, but will either dismiss the charge or require recognisance etc. without proceeding to conviction. When a court acts under s. 19B, the person charged with the offence is not convicted: Cobiac v Liddy (1969) 119 CLR 257 at 264. Hence, when such a power is exercised, other provisions which depend upon there being a conviction are not activated: Kelton v Uren (1981) 11 ATR 534 at 535.

The position is different from that where a Court is considering the exercise of the power under s. 12 of the Penalties and Sentences Act 1992 in respect of a State offence: under that section, there is a power not to record a conviction, which assumes that there has already been a conviction that is capable of being recorded: R v Gallagher (CA352/97, 19/12/97, per McPherson JA at p. 5). The various consequences of not recording a conviction, particularly under Queensland law, were discussed in that case, and in R v Briese (CA390/96, 21/2/97). It follows that the approach to the exercise of the power under s. 12 will not be directly applicable to the exercise of the power under s. 19B of the Crimes Act. One illustration of the difference is the circumstance that a fine may be imposed without recording a conviction under the Penalties and Sentences Act, but not under the Crimes Act.

I was referred to some cases on the approach to be adopted to s. 19B (or similar provision in other Statutes). In Verran v Roberts [1938] SASR 256, the Supreme Court dismissed an appeal from a decision of a local court which had dismissed as trivial a complaint alleging a breach of the Bushfires Act in that certain land was burnt off without notice to an adjoining owner. In that case, the land faced a road, and the respondent had given notice to adjoining owners on the same side of the road, and had taken all appropriate precautions required by the legislation, but had omitted to give notice to the owner of the land on the other side of the road. Such notice had not formerly been required under the legislation, but there had been an amendment which meant that the owner of such land was to be treated as an adjoining owner to whom notice was to be given. There was no suggestion that the appropriate precautions to prevent the escape of fire had not been taken, and that Napier J treated the matter as only a technical contravention of the law. His Honour said at p. 259 - 60:

I think that that sort of approach could also be applied to s. 19B of the Crimes Act.

In Cobiac v Liddy (supra) the High Court had to consider a similar provision in a South Australian Statute. The majority said (p. 265) that it was legitimate to take into account the relevant circumstances and the fact that other penalties were being imposed for other offences committed in the same course of conduct, from which it follows that the matters specified in the three paragraphs in s. 19B(1)(b) do not constitute an exhaustive statement of the matters which may be taken into account when deciding whether to exercise the power given by that section. Windeyer J, at p. 276, appears to me to come to the contrary conclusion. The fifth member of the Court dissented.

In Keltin v Uren (1981) 11 ATR 534, s. 19B was used to dismiss without conviction complaints of failing to lodge income tax returns after notice had been given. Jacobs J, in the course of allowing the appeal, said (at p. 535) that for the section to operate “there must be something that clearly distinguishes the circumstances of the offence under consideration from the typical offence, or circumstances of an unusual nature personal to the defendant, before that section can be properly invoked in dealing with this particular offence. The history of the way in which the penalty provisions of the legislation have been applied by the Court, to which further reference will be made later, suggests that such cases must be very rare indeed.” In that case neither of the defendants had previous convictions, but His Honour said that “That, standing alone, can scarcely be sufficient, more particularly when one has regard to the scope and purpose of this legislation.” In that case the scope and purpose of the legislation was to ensure that persons would comply with their obligations under taxation legislation and that it is commonly the case that legislation applies generally to the community. The matter may, however, have been complicated in that case by the fact that the legislation provided a minimum as well as a maximum penalty.

In the present case, the offences provide for a maximum penalty of imprisonment for 14 years (s. 7) and imprisonment for 10 years (s. 9), and would be the same offences committed whatever quantity of counterfeit money were possessed or uttered. This matter has been dealt with in the Magistrates Court, where the maximum penalty was 12 months imprisonment and/or a fine not exceeding $2,000. It is not difficult to imagine examples of these offences which would be very much worse than the present. In addition, in the present case the essential offence was uttering; the only possession relied upon is that constituted by the fact that, before the note was uttered, the appellant must have had possession of it for some period of time. There was, however, no evidence from the prosecution as to how the appellant came to be in possession of the note, and the appellant's evidence was rejected by the Magistrate. This, I think, gives rise to a little difficulty, since the criminality of the possession of counterfeit money depends a great deal on the circumstances under which possession is obtained, and particularly whether the money is known to be counterfeit when it is obtained. In such a case, it is presumably obtained in order to be uttered at a profit. If, on the other hand, a person has given value for the counterfeit money, and then discovered that it was counterfeit, the possession itself is I think much less serious, and the real criminality is associated with the uttering of the money rather than handing it over to the authorities. There will be an intermediate case, where a person comes into possession of counterfeit money innocently and without consideration, for example, by finding a quantity of it. The length of time that the money has been possessed is also I think relevant, although perhaps of less importance.

The difficulty in the present case arises from the absence of evidence on the subject. So far as the evidence goes, the appellant might have been in possession of the note for no more than a matter of minutes, and how he came to be in possession of it was also not proved. This gives rise to a difficulty in the application of the decision of R v Morrison (CA 391/97, 26.6.98, QLR 26/9/98). Is the fact that a person obtains possession of counterfeit money knowing that it is counterfeit to be treated as a circumstance of aggravation, in which case it is a matter for the prosecution to prove beyond a reasonable doubt, or is the circumstance that possession was obtained innocently a circumstance of mitigation, in which case it is for the defence to prove on the balance of probabilities? I think that I must assume that the possession was obtained innocently in the absence of proof to the contrary, just as I must assume that possession was only for a short time in the absence of proof to the contrary. On the other hand, the circumstance that value had been given for the money is, I think, properly characterised as a mitigating factor, since it really means that, apart from any penalty imposed by the Court, there has already been a penalty in the form of the loss of the value of that consideration. That a defendant has suffered that loss is I think a matter where the defendant carries the onus, to be discharged on the balance of probabilities, and that was not done in the present case.

The appellant is 45 years of age, and has no criminal convictions. He is from Malaysia, but has been in Australia since 1972. He is well educated and has a good work history, and comes from a respectable family. One matter that was referred to in the Magistrates Court was the effect of a conviction on the possible return of the appellant to Malaysia. It is sufficient to say that, for reasons explained in R v Gallagher (supra) and R v Slack (CA 442/97, 19/3/98) this submission cannot assist the appellant, and indeed it was not pressed before me. The principal matter relied on in mitigation was the absence of previous convictions; reference was also made to his cultural background, but there is nothing to suggest that that background would or might have led him to treat the offences in this case as being less serious than they would ordinarily be regarded by the Australian community. There was no evidence of extenuating circumstances, and the offence of uttering the counterfeit note, although involving only one note, is not I think properly described as trivial.

Other matters which must be taken into account in relation to sentencing are set out in s. 16A(2) of the Act. The cafe owner suffered loss of $100, although an order was made by the Magistrate for this to be reimbursed. Reference was made to a failure to show remorse or contrition, as it is described in subs. 2(f); I think that remorse or contrition, where they are present, are properly regarded as mitigating factors; the absence of remorse or contrition merely refers to the absence of mitigating factors and does not amount to a circumstance of aggravation, at least in circumstances where it goes no further than denying that the offence occurred. It may be that boasting of having committed the offence, or threatening to commit it again, would be properly characterised as circumstances of aggravation for purposes of sentence.

Notwithstanding such advances as have been made in the use of credit cards and in electronic fund transfers, currency notes remain a fundamental part of life to, I believe, the vast majority of the Australian community. It is therefore important that people should be able to rely on the genuineness of such notes, and the passing of counterfeit money, to the extent that it diminishes confidence in such notes, can have an effect which goes far beyond the immediate recipient of the note. For this reason, there is an important consideration of general deterrence to be taken into account when sentencing for an offence of uttering counterfeit money. That is a factor tending to exclude the operation of s. 19B: R v. Matijevic (Federal Court, ACT, 666/96, 15.7.97, unreported). This is so even in a case where the accused had no previous convictions: McInnes v. Global Imports P/L [1993] ATPR 40,890. That would also be a significant consideration if a person were charged with possession of counterfeit money in circumstances where it was appropriate to conclude that the possession was for the purpose of uttering in the future, but in the present case where the appellant was prosecuted for uttering and the only possession alleged was such possessions must have occurred in order to enable the offence of uttering to be committed, I do not think that the criminality of the offence of possession adds anything to the criminality involved in the offence of uttering.

With regard to the offence of uttering, in my opinion it cannot be said, having regard to the matters referred to in s. 19B(1)(b) 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. Although this is certainly a relatively minor incident of uttering a counterfeit bank note, the note had a face value of $100 and I do not think that the matters referred to in the subsection, viewed in the light of all the circumstances in the case, justify no punishment or only a nominal punishment. Such a result does not necessarily follow from the absence of previous convictions: Stitt v. CBI Constructions Pty Ltd (1990) 93 ALR 325. It was not submitted that the appropriate course was to place the appellant on probation, and in view of his age and previous good record there is no reason to think that probation would be necessary or appropriate for this case. It follows that none of the matters referred to in para.(b) of the subsection as made out, and there is no power to act under of the subsection. It follows that the appellant must be convicted of the offence of uttering.

The question is then whether the appropriate course is to impose a bond under s. 20 of the Act, or to impose a fine. Had there been additional mitigating factors present, a bond would, I think have been appropriate, but in all the circumstances of this case I think a fine is the appropriate penalty, although it should not be a large fine. I think the appropriate course in respect to the offence of uttering is for the appellant to be convicted and fined the sum of $300, and ordered to pay $964 court costs and witnesses' expenses, and compensation of $100 to Bbs Cafe. I assume that these monies have already been paid, but if necessary, I will formally order that in default of payment, the appellant be imprisoned for 30 days. If it be necessary, I further order that the counterfeit $100 bill be condemned, and the legitimate $100 note be returned to the respondent.

With regard to the offence of possession, as I have said, I think that in the circumstances of this case, there is no evidence by which that offence adds to the criminality associated with the uttering. It follows from Cobiac v Liddy (supra) that the fact that the appellant has been appropriately dealt with for the offence of uttering in the matter which can properly be taken into account, and I think that, in the view of the age, absence of previous convictions of the appellant and the circumstance that the possession, viewed separately from the uttering, has not been shown by evidence to be other than trivial, it is inexpedient to inflict any punishment in relation to this offence. As well, the appellant must not be punished twice for what is really the same conduct: Pearce v. R. [1998] HCA 57, and such possession as is necessary to commit the offence of uttering has already been punished. Indeed, I do not think any useful purpose was achieved by the prosecution of the charge of possession in addition to the prosecution of the charge of uttering. I think therefore that this charge should be dismissed pursuant to s. 19B(1)(c), and I so order. I will hear submissions in relation to the costs of the appeal.