Engwirda v O'Brien[2010] QDC 357

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this appeal, filed 23 March 2010, the appellant (who was the defendant in the Magistrates Court hearing below) contends that she should have been acquitted of the two charges of common assault brought against her that were found to have occurred on 5 July 2009 at Toowoomba in the State of Queensland. The complainants were, respectively, Christopher James Cheeseman, a medical practitioner, and Lynette Lesley Weh, a nurse. The offences allegedly occurred at the Toowoomba Hospital.

2. [2]
   The Notice of Appeal is quite unsatisfactory in its statement of the grounds of appeal. Nevertheless, the appellant has been permitted to add specific grounds of appeal which are:

1. The learned magistrate erred in law by failing to properly direct himself in relation to self-defence (namely, that the appellant had an honest and reasonable but mistaken belief that she had been unlawfully assaulted).

2. The learned magistrate erred in law by failing to properly direct himself in relation to accident.

3. The learned magistrate erred in law by holding that the defence of automatism was not raised on the evidence.

4. The learned magistrate erred in law by passing sentence and failing to take account of the appellant’s financial circumstances and a burden that a fine would have on the appellant (pursuant to s 48 of the Penalties and Sentences Act 1992).

3. [3]
   The three grounds that go to conviction depend upon the appellant, as original defendant, satisfying an evidential burden of raising the issue for consideration and then the failure, if it occurred, for the prosecution to prove, beyond a reasonable doubt, that the particular “defences” did not apply in the circumstances.

     Principles concerning such appeals

4. [4]
   As set out in the recent Court of Appeal decision of Osgood v Queensland Police Service [2010] QCA 242, with relevant citation, by White JA (with whom Holmes and Muir JJA agreed), an appeal to the District Court brought by way of s 222 of the Justices Act 1886 from a decision of a magistrate is a rehearing on the evidence given at trial (and, irrelevantly in this case, on any new evidence adduced by leave): at [20].  As White JA went on to note, again with relevant citation, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence then before the appellate court, the order that is the subject of appeal is the result of some legal, factual or discretionary error; and that this requires a District Court judge to conduct a real review of the evidence, including drawing the judge’s own inferences and conclusions and making a separate determination of the relevant facts in issue from the evidence, while giving due deference and attaching a good deal of weight to the magistrate’s view: at [20] - [21].

5. [5]
   Obviously, with respect to the sentence, the usual discretionary considerations involved in a review under the principles of House v The King (1936) 55 CLR 499 are applicable.

Relevant findings on evidence

6. [6]
   A real review of the reasons given by the acting magistrate shows that each and every one of the witnesses called was subject to an evidentiary analysis and then a finding was made as to the level of acceptance of the evidence each gave. They included not only Dr Cheeseman and Nurse Weh but also the appellant’s husband, Mr Cable, who was called as the only defence witness.

7. [7]
   With respect to Mr Cable, it was found that:

• he was a witness to the “entire incident”;
• although he had been drinking alcohol in the hours before, there was no evidence before the Magistrates Court that his recollection of events was impeded by the effects of alcohol;
• his evidence was delivered in a forthright, non-evasive manner; and
• although he had a “vested interest” in the outcome of the proceeding with his wife being called upon to answer criminal charges, the opinion was formed that he was “a reliable witness”.  

8. [8]
   Furthermore, two police officers, Constable O'Brien and Senior Constable Dimond, were the subject of a finding that the acting magistrate placed “substantial weight” on their evidence.

9. [9]
   Although there were some differences between the various witnesses, the differences were, at least insofar as the issues in this appeal are concerned, of a relevantly minor kind. Consequently, it was open, reasonably, to the acting magistrate to make findings of fact as were done. This has the consequence that it is quite appropriate in this appeal to give due deference to those findings and attaching a good deal of weight to such findings.

10. [10]
    Putting to one side – for the moment – findings concerning intoxication, the alleged assault on Nurse Weh occurred subsequent to the administering of a pain stimulus procedure as the appellant lay on a trolley in the Emergency Department of the Toowoomba Hospital.  Nurse Weh, who had been a nurse for some 30 years, indicated that the procedure was carried out by applying force to the appellant’s chest, accepting that the procedure hurt because that was the very purpose of the procedure, it being part of an assessment of the appellant’s level of consciousness. As found by the acting magistrate, almost immediately after the application of the pain stimulus and when attempting to place a blood pressure cuff on the appellant, Nurse Weh was struck on the arm by the appellant with a single hit. Nurse Weh’s evidence was that the appellant was contemporaneously abusive, combative and aggressive. The acting magistrate’s finding with respect to Mr Cable’s observations was that he saw Nurse Weh trying to place something on the appellant’s finger, saw the appellant flinch, and saw her “just move her arms”.

11. [11]
    As for the alleged assault on Dr Cheeseman, the acting magistrate accepted that he had been told by the ambulance paramedics that the appellant was unresponsive with a reduced consciousness level and so, after conducting an initial assessment – including a finding that the appellant had no evidence of any external physical injury – he formed the opinion that there was no immediate concern for the appellant’s health and instructed nursing staff to observe the appellant for a period of time. This was consequent upon a specific finding that the appellant was opening her eyes to pain and “sort of mumbling incoherent sentences”. After leaving the area where the appellant was on the trolley, Dr Cheeseman returned and, after observing the appellant still did have a reduced level of consciousness, used a pain stimulus procedure. Dr Cheeseman explained the purpose of the procedure on a patient who has a reduced level of consciousness was to assess how deep the level of consciousness was, accepting that the procedure caused pain to the patient. Dr Cheeseman could not specifically recall which particular procedure he followed, stating that he used either an application of pressure to the supra orbital nerve in the patient’s head or to the nail beds of the patient’s toes and fingers. The evidence accepted by the acting magistrate was that, when he returned to the appellant’s position, he first spoke loudly to her and then administered the procedure, and that it was only then that the appellant started kicking her legs and flailing her arms, such kicks occurring in “a quick flurry”. It was such kicking of the legs that Dr Cheeseman stated, and the acting magistrate accepted, led to the assaults by striking Dr Cheeseman’s abdomen and chest. Dr Cheeseman’s evidence was that the appellant was “verbally responsive” from the point when she woke up.

12. [12]
    As for Mr Cable’s observations, he did not witness any act of the appellant kicking Dr Cheeseman. It is important that he did not state that in his observation of the appellant such kicking did not occur, although he claimed that he could not see how, with the nature of the trolley, it could occur, whilst at the same time conceding that his view was obscured.

13. [13]
    The final evidence considered by the acting magistrate was of the two police officers. Passing by, for the moment, a consideration of how long after the alleged assaults that were found by the acting magistrate to have occurred that the police officers arrived at the scene, when they did, Constable O'Brien observed the appellant to be swearing and being extremely aggressive. The acting magistrate accepted Constable O'Brien’s evidence that the appellant could not be calmed down, did not want to be approached, was thrashing about, had to be carried to the police vehicle, and that the only coherent words were that the appellant just wanted to be “left alone”.

14. [14]
    It was the evidence of, and accepted by the acting magistrate as given by, Senior Constable Dimond that the appellant was lying on her back, trying to punch everyone – even attempting to kick out and punch the police officers.

15. [15]
    Mr Cable’s evidence concerning the police officers was simply to the effect that they put her in a wheelchair, handcuffed her and took her outside. It is obvious from his evidence that by the time the police arrived the appellant was hysterical saying such things as, “Get away from me. Get off me. Don’t touch me.” Furthermore, in cross-examination he admitted that she was using obscene language when she was lying on the hospital floor.

16. [16]
    As for timing, the only positive evidence of any witness that advances an estimate of any lapse of time between the assaults that were found by the acting magistrate and the arrival of the police comes from the evidence of Dr Cheeseman. He stated that the police were called after the appellant was initially restrained by security (who themselves were called as soon as it was evident that he was dealing with a violent and aggressive patient). His evidence was that they “arrived very promptly to take over the situation” (emphasis added).

Self-intoxication?

17. [17]
    Because of the nature of the grounds of appeal that were raised, it is necessary to reach a conclusion as to whether the appellant, at the relevant times, was intoxicated and whether that intoxication was self-induced.

18. [18]
    The acting magistrate found that the appellant was in a state of “severe intoxication, caused by the effects of consuming alcohol”.

19. [19]
    On appeal, counsel of behalf of the appellant contended that there may have been multiple reasons for the appellant’s reduced consciousness and that the acting magistrate’s finding as to intoxication was a weakness in the decision made.

20. [20]
    But the evidence led in the Magistrates Court yields only one conclusion, being that the state of reduced consciousness was due to intoxication and that there was no other rational inference consistent with some other cause which would exclude such a conclusion from being reached beyond reasonable doubt.

21. [21]
    In particular, the physical examination conducted by Dr Cheeseman on the appellant showed no evidence of any external physical injury and, in particular, no head injury, which he stated - particularly in the context of the reduced consciousness level which was apparent to him at the time - was an important consideration. Further, when making his assessment on the Glasgow Coma Score, he found that score to be “9/15” which reflected that she opened her eyes to pain and emitted “sort of mumbling incoherent sentences”. That reduced level of consciousness was, in his opinion, sufficient to show that there was no indication for any immediate intervention and no indication for any active investigation at that initial stage.

22. [22]
    According to Dr Cheeseman, on the application of the painful stimulus, the appellant woke up “very dramatically” and began to kick and punch at him, such kicking including the wall of the observation cubicle where she was placed on the trolley and where high-pressure oxygen points were located (which caused Dr Cheeseman some significant safety concerns). In order to eliminate that possibility, Dr Cheeseman stood the appellant up from the trolley, at which stage she threw herself on to the floor trying to kick out and punch other members of the staff while shouting and screaming obscenities. Dr Cheeseman then stated that she continued that particular behaviour pattern while she was being restrained by security.

23. [23]
    There was no cross-examination of Dr Cheeseman concerning what response to the administration of pain stimuli procedures was to be usually expected from a physiological point of view for a non-intoxicated patient. In contrast, Dr Cheeseman, in cross-examination, stated that the appellant appeared to be intoxicated (having stated, in his examination-in-chief, that she did smell strongly of alcohol and that her behaviour was consistent with excess alcohol when admitted and first examined by him).

24. [24]
    Mr Cable gave evidence that he and the appellant had gone to the Shamrock Hotel at 3 pm the afternoon before and that the appellant had been drinking between 3 pm and 6 pm, although he was not too sure how much she had to drink in that period. After Mr Cable had a shower at 6 pm, he and the appellant went back to the Shamrock and he started drinking again, as did the appellant, although again Mr Cable did not see how much the appellant had to drink. After that, Mr Cable and the appellant went to a nightclub situated in Margaret Street called “Fibbers’” and that they were drinking there.  At about 11.30 pm/midnight Mr Cable noticed that the appellant “ran off to the toilet” and did not come out for “a little bit”.  After some little time, Mr Cable found the appellant lying on the floor of the nightclub, having no idea how she got there.  When he went over to her she appeared “between passed out and kind of off with it”, also describing her condition as “like she was there and then she wasn’t, and then she was back”.  It was then that the paramedics turned up, checked the appellant and took her by ambulance to the Hospital. 

25. [25]
    Although there is no evidence of the precise time of the events on 5 July 2009, Nurse Weh started her shift at 11 pm on the 4July 2009 and continued through to 7 am on the 5July 2009, answering positively to the question that at “approximately midnight” the ambulance brought the appellant into the Emergency Department. The police officers appear to have arrived on the scene soon after 1 am.

26. [26]
    Mr Cable also gave evidence, during cross-examination, that he told the staff at the Toowoomba Hospital that the appellant had been drinking “quite a lot”. 

27. [27]
    Given the fact that there is no evidence of any kind about why the appellant would have been in a reduced state of consciousness apart from the consumption of alcohol, as earlier stated, the only inference which is open that is consistent with Mr Cable’s evidence and the observations and the unchallenged expert conclusions of Dr Cheeseman is that that reduced state of consciousness was due to the consumption of alcohol by the appellant such that she became self-intoxicated.

Self Defence

28. [28]
    The first of the amended grounds refers to an error in law by the acting magistrate in failing to direct himself properly in relation to self defence (namely, that the appellant had an honest and reasonable but mistaken belief that she had been unlawfully assaulted): see s 24 of the Criminal Code.

29. [29]
    Both at the trial hearing and on appeal the appellant conceded that there had not been any unlawful assault on her. Rather, the contention was directed to the appellant being mistaken that she was being unlawfully assaulted at the time that Dr Cheeseman and Nurse Weh administered painful stimuli to her.

30. [30]
    Since this is purely a matter of the application to the findings of the acting magistrate (canvassed above) of the correct legal principles, I will undertake that task afresh, particularly where the acting magistrate did not refer at all to the appellant’s belief at the material time.

31. [31]
    Given the concession that the “assaults” upon the appellant were lawful, as administered by the medical staff at the Toowoomba Hospital, the authority which deals directly with the inter-relationship between s 24 and s 271(1) of the Criminal Code is R v Allwood [1997] QCA 257.  McPherson JA noted that the requirement of s 271(1), and the consequent requirement of s 271(2), that there be an “assault” is an instance in which s 24 is capable of having in operation, observing that a person in claiming the benefit of s 271 may mistakenly believe that the person is being assaulted by being threatened, when in fact the person is not: at page 10.  It was further noted that even if there was in fact no assault as required by s 271, a mistaken but reasonable belief (provided it was honest) that the person was being assaulted places the person in the same position under s 24 as if that requirement in s 271 had been fulfilled: also at page 10.

32. [32]
    The primary submission of the appellant was that, because she entered the hospital sleepy and drowsy and because Dr Cheeseman diagnosed her as having a reduced consciousness level, the appellant did not fully comprehend where she was and what was happening to her. When those matters are taken with the description by both Dr Cheeseman and Nurse Weh about the reaction to the application of the painful stimuli, it was submitted that the foundation was laid for the appropriate conclusion of acquittal based upon the relevant mistake.

33. [33]
    In oral submissions it was further contended that on the principles discussed in R v Mrzljek [2005] 1 Qd R 308 - holding that, since the belief of the offender is critical, the critical focus is on the offender rather than a theoretical reasonable person -  the appellant held the reasonable belief, although mistaken, that she was being relevantly assaulted by the medical staff.

34. [34]
    It was submitted that the circumstances as the appellant perceived them to be were that both persons had inflicted significant pain on her and that, given that she (allegedly) had the belief, because of prior events in her life – said to be from abuse by an ex-boyfriend involving sexual abuse - that her particular sensitivity to being restrained was triggered, she possessed honestly the relevant, personal belief that someone was unlawfully assaulting her or that she was being threatened with an unlawful assault.

35. [35]
    The problem that I find, initially, with that submission is that the complainant gave no such evidence herself. Of course, she does not have to, provided it otherwise arose from evidence led by the prosecution, or cross-examination of the prosecution’s witnesses, or from evidence called on her own behalf. But, having elected not to give evidence herself, Mr Cable, whom she called, could give only hearsay evidence about the particular “belief”. The evidence was not about her observed physical or emotional state. Given that while that hearsay material was not objected to, it still is of little value in the circumstances (particularly when he did not even assert at any stage that she held that belief on that occasion), and combining that with the total absence of any evidence on the appellant’s behalf that she held any such belief, it is difficult to find that the belief was “honest” (in the sense that she did hold it then). Necessarily, without an honest belief, one does not move to a consideration of reasonableness. But even if honest, if, as will be soon canvassed, that belief can only stem from self-intoxication, then it is not a requisite honest belief.

36. [36]
    Even so, were I to be wrong about the absence of evidence and there was something in the evidence led at trial which would have generated an onus on the prosecution to exclude this “defence” beyond reasonable doubt, I would not have found that the belief was reasonable, if only because the application of the pain stimuli was not concerned with restraint. Besides, self-intoxication cannot be an excuse for any misapprehension on her part that, rather than being restrained, she was being medically treated in a hospital. She could, therefore, have been expected to understand who the staff were if she were not so intoxicated: see Daniels v R (1989) 1 WAR 435 at 445. While Daniels might have been doubted in Mrzljek by Holmes JA, at 326 [77], to the extent of necessarily determining that the hypothetical “reasonable” person is the relevant arbiter of reasonableness in mistake, she did not challenge the conclusion reached that intoxication was relevant as to whether an accused person actually held the belief in question. Williams JA, who otherwise agreed with Holmes JA, commented that, although intoxication was not a factor in that case, self-induced intoxication would not be a factor relevant in determining whether a belief was “honest and reasonable” for the purposes of s 24: at 321 [55]. The President, for her part, wrote that it was clear that self-induced intoxication cannot turn what would otherwise be an unreasonable belief into a reasonable one: at 315[21]. How the medical procedures were supposed to be explained to her, so that she would be reassured in a way that would not lead to a mistake on her part, when she had this reduced level of consciousness requiring painful stimuli, was not satisfactorily developed, especially in the circumstance of self-intoxication. As observed in R v SBC [2007] QCA 283, while intoxication does not relieve a person of responsibility for committing an offence, it can help in a consideration of the state of a person’s memory or offering some explanation (short of acquittal) for the person’s conduct: per Mackenzie at [24]-[25], [27]. Here, the self-intoxication explains the reduced consciousness and the befuddled conduct which resulted.

37. [37]
    Accordingly, on a real review of the evidence, there was no error in the final conclusion of the acting magistrate in rejecting self defence.

Accident

38. [38]
    Accident arises by reason of s 23(1)(b) of the Criminal Code.  As canvassed in R v Taiters, ex-parte Attorney-General [1997] 1 Qd R 333, a court in considering this issue is concerned with an objective element which is something beyond what might have been subjectively contemplated by the perpetrator of the act in question: at 336.  Furthermore, if it is to be an accident in the sense used in the Criminal Code, it must be neither intended nor foreseen by the one acting: also at 336.  As to the requirement that the event must be one which “would not reasonably have been foreseen by an ordinary person”, the court held that the applicable onus on the prosecution will be sufficiently stated for all aspects of accident if the jury is told that, “the Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome”: at 338.

39. [39]
    Very recently, the Queensland Court of Appeal in R v Condon [2010] QCA 117, after observing that the “event” in s 23(1)(b) is a reference to the consequences of the “act” in s 23(1)(a), held that the forseeability issue for the jury is whether an ordinary person in the appellant’s position would reasonably have foreseen the actual consequence to the complainants (i.e. the landing of the blows) as a possible outcome of the appellant lashing out at each complainant: at [19]. Whether that will survive further reconsideration as to the “actual” consequence does not matter for this analysis.

40. [40]
    In the circumstances of this case there is, with respect, little specific further assistance obtained from the consideration of the reasons given by Callinan J in R v Stevens (2005) 227 CLR 319. There, at 370 [160], quoting from cited authority, he observed that an event could only be regarded as an accident if the accused neither intended it to happen nor foresaw that it could happen, and if an ordinary person in the accused’s position at the time would not reasonably have foreseen that it could happen.

41. [41]
    But what is potentially of more assistance is what was written by Callinan J in Stephens, at 368 [156], to the effect that it is the use of the word “reasonably” which qualifies the concept of foreseeability in this context, requiring regard to be had to all of the surrounding circumstances; and, then, for the tribunal of fact to ask itself whether, in light of them, an ordinary person, acting and thinking reasonably, and with time to do so, would not have foreseen the event, or any real possibility of it.

42. [42]
    What was submitted by the appellant was that the acting magistrate did not fairly take into account all relevant surrounding circumstances. Again, because the matter is on a review before me, it is sufficient to note that the acting magistrate placed substantial weight on the evidence of the police officers, holding that their evidence conclusively negatived all “defences” raised. That weight accorded was used to tie in the behaviour of the appellant observed by those officers with the immediately preceding events which included the alleged assaults. Since the only evidence, uncontested by other evidence and unchallenged in cross-examination, was that those officers arrived “promptly”, the weight accorded was rightly attributed.

43. [43]
    What was not addressed in any detail was either intention or forseeability.

44. [44]
    As to her own intention, as to what she in fact foresaw, and as to reasonable forseeability, there is simply nothing to support the appellant’s contentions concerning accident given the conclusions reached on self defence. (Namely, there was no direct evidence of her intention or what she foresaw and all circumstantial evidence showed that any personal misapprehension resulted from self-intoxication). The factors are alternative and they were not raised to the extent required to place the relevant onus on the prosecution or, if it were to be held that they were, the appellant’s incapacity to understand what she was doing arose from her self-intoxication, and an “ordinary” person in the position of a non-intoxicated accused would reasonably have foreseen the “event” as a possibility. It is clear that s 23 is independent of the consequences of self-intoxication, certainly for assault: see R v Kusu [1981] Qd R 136 at 141. As explained there, evidence of self-induced intoxication was excluded, having been sought to be adduced there for the purpose of establishing that the acts charged had occurred independently of the accused’s will: at 142. But s 23 as a whole was in contest. In all the circumstances, it could not be accepted that, her intoxicated condition apart, an ordinary person in the accused’s position would not reasonably have foreseen that the relevant event (i.e. the striking) could happen by acts of using her arms and legs in the manner accepted by the acting magistrate.

Automatism

45. [45]
    In relation to this “defence”, the acting magistrate held that it was not properly raised on the whole of the evidence, since the appellant’s actions were governed by the effects of alcohol. The defence relies upon s 23(1)(a) of the Criminal Code.

46. [46]
    As summarized by Deane and Dawson JJ in R v Falconer (1990) 171 CLR 30, in a case where the issue of sane automatism is raised by positive evidence (including expert medical opinion), an accused will be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond reasonable doubt: at 63.  For their part, Mason CJ, Brennan and McHugh JJ in Falconer noted that there are some cases where an act can be shown to be unwilled when it is done by an act of an sound mind, and took as some obvious examples: “if the act be a reflex action following a painful stimulus” or if it be a spastic movement, an inference that the act was willed or voluntary would not be drawn though the actor be of sound mind when the act is done: at 43. 

47. [47]
    Necessarily, for the reasons stated in Kusu, self-induced intoxication will not give rise to a defence to a charge which does not involve a specific intent, where that defence is based upon s 23. 

48. [48]
    Although, on first approach, the evidence might appear to fit better than for the other two defences with the two reactions of the appellant each potentially being in the nature of a reflex action following upon each painful stimulus, from the consideration of the whole of the evidence, particularly that of Dr Cheeseman, this is not a set of circumstances where the appellant has suddenly come to consciousness, solely as the result of the administration of a painful stimulus and solely exhibiting a reflex action. The movement of the arms and the kicking of the legs were accompanied, according to Dr Cheeseman, by an awareness – although considerably reduced – that he opined was consistent with a person in an intoxicated state. That is, while the acts of the appellant insofar as they had consequences for Dr Cheeseman and Nurse Weh followed immediately upon significant arousal due to the administration of a powerful stimulus, the actual reactions were reactions arising from a person who was aroused from a state that was self-induced and that was accompanied not solely by flailing of arms or kicking but also by verbal abuse.

49. [49]
    Accordingly, on the basis that s 23 of the Criminal Code is inconsistent with a “defence” where the circumstances show self-induced (i.e. intentional or voluntary) intoxication, either there was an insufficient evidential basis to place the onus on the prosecution to negative automatism beyond reasonable doubt or, more likely, such evidence as there was had the consequence that the prosecution did establish beyond reasonable doubt the inability of the appellant to rely upon automatism in this case.

Sentence

50. [50]
    The sentence imposed by the acting magistrate was a $1,000.00 fine for each offence. This meant that the total fine to be paid by the appellant was $2,000.00.

51. [51]
    It is important in this consideration that s 48(1) of the Penalties and Sentences Act 1992 states that if a court decides to fine an offender, then, in determining “the amount of the fine” and the way in which it is to be paid, the court “must, as far as practicable, take into account” both the financial circumstances of the offender and the nature of the burden that payment of a fine will be on the offender: see paragraphs (a) and (b). 

52. [52]
    Section 48(2) of that Act then states that the court may fine the offender even though it has been “unable to find out about” matters mentioned in s 48(1)(a) and s 48(1)(b).

53. [53]
    This issue was considered in this court by McGill DCJ in Kumar v Garvey [2010] QDC 249.  The fines imposed there were $1,000.00 in total.  The appellant had an income of $210.00 a week, for which he had to pay $107.50 rent, with he and his wife having to live on the balance: at [23].  Both the appellant and his wife were said to have had a significant additional financial burden because of the health problems that they were experiencing, which was added to as a result of the lengthy disqualification of his driver licence which he faced.  This all had the consequence that he was said to have between $0.00 and $20.00 per week left after paying bills. Thus, the fine, at a rate of $10.00 per week, represented almost two years’ available funds: also at [23].

54. [54]
    After considering those facts, McGill DCJ considered s 48(1) in light of a number of cases which he analysed in detail. This led to the observation that, as a matter of general sentencing principles, the penalty imposed must be appropriate to the offender, as a well as appropriate to the offence: at [28] Consequently, a fine should not be imposed which is beyond the reasonable capacity of the offender to pay; and that applies even if there is no period of default imprisonment, as was the case being considered where the matter was referred to SPER for collection: also at [28]. It was further remarked that it is also necessary to scale the fine to the capacity of the offender to pay, because imposing the same fine on people with different capacities to pay will mean that some of them are punished much more severely than others for the same offence: at [29].

55. [55]
    In the words that resonate in this case as well, McGill DCJ noted that:

• one way to look at the matter is by comparing the amount of the fine with the weekly income of the offender, although it is still necessary to have regard to differences in financial obligations for different offenders;
• the financial position of the offender is not to be assessed in the abstract,since it is part of the whole sentencing process;
• where the offender’s financial position is substantially worse than the average to be expected in the community, there may be a failure to have sufficient regard to that consideration; and
• it may, thereby, result that the discretion as to the amount of the fine miscarries;

: at [29]-[30].

56. [56]
    In the case under consideration, it has been stated in written submissions, without objection as to its accuracy, that the appellant is now a single mother with the sole care of two children aged two and three and who is not employed, receiving a parenting pension which amounts to $2,400.00 a month besides receiving $1,000.00 per month in maintenance payments from her former husband. Against this, her expenses include $1,200.00 a month on rent, $800.00 a month on food, $180.00 a month on fuel, with her remaining funds being spent on clothes for children and on electricity, phone and gas for her house.

57. [57]
    Without the necessity to consider what “must” means in the context of s 48(1), particularly where the qualifier “as far as practical” applies, and accepting that s 48(2) does not apply to circumstances where a magistrate could, but does not, make any inquiry at all about the matters referred to in s 48(1)(a) and s 48(1)(b) – even though the appellant had legal representation at the time the decision was handed down (noting that no indication of the large fine contemplated was given by the bench) – I conclude that the discretion exercisable in the matter of penalty has relevantly miscarried in the appropriate sense discussed in House v The King.  That is because there has been a failure to have sufficient regard, despite the provisions applicable to recovery by the SPER regime, to any consideration of the appellant’s financial position which would have shown that she had a very modest capacity indeed to pay and that a considerable financial burden would be placed on her

58. [58]
    Since s 225(1) of the Justices Act 1886 states that, on the hearing of an appeal, a judge may confirm, set aside or vary the appealed order, or make any other order in the matter that the judge considers just, I determine that it is just, in the financial circumstances that the appellant faces, that the appeal be allowed with respect to the fines imposed, that the fines imposed by the acting magistrate be varied such that this court imposes a fine of $250.00 in respect of each offence.

Costs

59. [59]
    Section 226 of Justices Act 1886 states that the judge may make such orders that costs be paid by either party as the judge may think fit. 

60. [60]
    Where, as here, both the appellant and the respondent have been unsuccessful on the issues, respectively, of conviction and penalty, especially given the strained financial circumstances of the appellant, I hold that the appropriate order in this case is that there be no order as to costs.

61. [61]
    Nevertheless, I will give both parties until 4 pm on 30 September 2010 to file written submissions on costs, if they disagree with that outcome. Necessarily, it is important that each side notify the other of its general position so that the other can, if necessary, put submissions on costs to the court by the designated time. Should there be no submissions made by the designated time, I will make no further orders, as foreshadowed.

Orders

62. [62]
    The orders are:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. The fines imposed at trial are varied such that the court imposes a fine of $250.00 for each offence; and the Court directs that the Registrar of the District Court at Toowoomba give, pursuant to s 34 of the State Penalties Enforcement Act 1999, particulars of the varied fines to SPER for registration under that provision.

4. Liberty to both parties to file written submissions, if any, on costs by 4 pm on 30 September 2010.