Forbes v Jingle[2014] QDC 204

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against sentence by the original complainant pursuant to the provisions of s 222 of the Justices Act 1886 (“the JA”).

2. [2]
   On 19 February 2014 the respondent, Douglas Wayne Jingle, pleaded guilty in the Magistrates Court at Weipa to an offence of failing to comply with a direction to stop a motor vehicle pursuant to the provisions of s 754 of the Police Powers and Responsibilities Act 2000 (“the PPRA”).

3. [3]
   He was convicted, placed on probation for a period of 12 months, and disqualified from holding or obtaining a drivers' license for a period of two years.

4. [4]
   The appellant has appealed on the basis that:

1. the Magistrate erred in law by holding that it was open for the Court to impose a period of probation, which it was argued was contrary to the provisions of s 754 of the PPRA; and

2. as a result, the sentence was manifestly inadequate.

5. [5]
   Section 754 of the PPRA, insofar as is relevant, provides:

1. “(1)
   This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.

3. (2)
   The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.

Minimum penalty—

1. (a)
   if the driver is a participant in a criminal organisation within the meaning of the Criminal Code, section 60A—100 penalty units or 100 days imprisonment served wholly in a corrective services facility; or

2. (b)
   otherwise—50 penalty units or 50 days imprisonment served wholly in a corrective services facility.

Maximum penalty—200 penalty units or 3 years imprisonment.

3. (3)
   If a court convicts a person of an offence against subsection (2), the court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for 2 years.

…”

6. [6]
   Section 754 was actually amended by the Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013, which came into force on 17 October 2013.

7. [7]
   Prior to the amendment, subsection (2) provided:

1. “(2)
   The driver of the motor vehicle must stop the motor vehicle as soon as practicable if a reasonable person would stop the motor vehicle in the circumstances.

Minimum penalty—50 penalty units.

Maximum penalty—200 penalty units or 3 years imprisonment.”

8. [8]
   In Commissioner of Police Service (Qld) v Magistrate Spencer & Ors [2013] QSC 202, Henry J, in dealing with the issue of whether or not a sentence of probation was open under the section as previously worded, said:

“[15] A breach of s 754 is punishable with imprisonment. Section 91 of the Penalties and Sentences Act 1992 (Qld) provides a probation order may be made if ‘a court convicts an offender of an offence punishable by imprisonment’. It follows that probation could be imposed by way of penalty under s 754.

[16] That possibility is not excluded simply because the maximum penalty is said to be a fine ‘or’ imprisonment.  Section 180A of the Penalties and Sentences Act explains such a provision means the sentencing court ‘may’ impose a fine or imprisonment or both. That section’s language is permissive. It does not prescribe that a fine or imprisonment or both are the only forms of sentence that can be imposed under such a provision. It leaves alive the characterisation of s 754 that it is an offence punishable with imprisonment and thus does not exclude the availability of probation under s 91.

[17] What though of s 754’s reference to a ‘minimum penalty’ of 50 penalty units? Where, as here, a minimum as well as a maximum penalty is specified then the penalty must not be less than the minimum and not more than the maximum. However, there appears to be no reason grounded in statute or principle why a period of probation ought be regarded as a lesser penalty than a fine. They are inherently different forms of penalty and their relative harshness will vary subjectively, depending on their duration or amount and on the individual circumstances of the offender. Further, the fact that probation arises as a sentencing alternative to imprisonment, whereas a fine is a sentencing option even for offences that are not punishable with imprisonment, suggests as a matter of principle that probation should not be regarded as a lesser sentencing option than a fine.

[18] Section 754’s reference to a minimum penalty of 50 penalty units requires that where a fine is imposed it must be at least 50 penalty units. However, it does not require that a fine must be imposed. To construe the penalty provision for the offence in that way would be to ignore that it is also an offence punishable with imprisonment and, it follows, with probation. The wording of s 754 does not inevitably require the imposition of a fine or exclude the availability of a sentence of probation.”

9. [9]
   Where the minimum penalty was previously 50 penalty units, it now reads “50 penalty units or 50 days imprisonment served wholly in a corrective services facility”.

10. [10]
    On the sentence before the Magistrate, the solicitor for the respondent argued that that wording was not sufficient to remove the Court’s power to make an order under s 91 of the Penalties and Sentences Act 1992 (Qld) (“the PSA”).

11. [11]
    In his decision, the learned Magistrate noted that there was some discrepancy in the sense that the reference to “served wholly in a corrective services facility” was included only in relation to the minimum penalty and not in relation to the maximum penalty.

12. [12]
    He found, in effect, that his power to impose a probation order was not displaced by the legislation and placed the respondent on probation for a period of 12 months.

Argument on behalf of appellant

13. [13]
    The appellant relied on the provisions of s 14A(1) of the Acts Interpretation Act 1954 (“the AIA”) which provides:

1. “(1)
   In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”

14. [14]
    The appellant also relied on s 14B(1) of the AIA which provides:

1. “(1)
   Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation …”

15. [15]
    Reliance was also placed on s 14B(1)(c) which provides:

1. “(c)
   in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.”

16. [16]
    Pursuant to s 14B(3)(e) the definition of “extrinsic material” includes an explanatory memorandum to a Bill.

17. [17]
    The explanatory memorandum to the Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013, Schedule 2, clause 64 provides:

“Clause 64 amends section 754 to specify the mandatory minimum penalty when a driver fails to stop a motor vehicle when directed to do so by a police officer. The mandatory minimum penalty is 50 penalty units or 50 days imprisonment wholly served in a correctional services facility, and a 2 year driver licence disqualification. The mandatory minimum penalty for participants in criminal organisations will be 100 penalty units or 100 days imprisonment served wholly in a corrective services facility, and a 2 year driver licence disqualification. The clause requires the minimum imposition of either the minimum fine or minimum sentence of imprisonment and excludes other sentencing options, for example a good behaviour order, probation, or a suspended sentence.”

18. [18]
    It was argued here that the Magistrate, therefore, erred in law in finding that it was open for him to impose probation on the basis that any ambiguity was resolved by reference to the explanatory memorandum.

Argument on behalf of respondent

19. [19]
    Counsel for the respondent submitted that the use of the words “wholly in a corrective services facility” insofar as they related to the minimum penalty did not in their ordinary meaning exclude the power of the courts to impose probation orders as an alternative to a period of imprisonment.

20. [20]
    It was argued that the Legislature could easily have worded the section such that the option of probation and/or good behaviour bonds was specifically excluded.

21. [21]
    Counsel for the respondent relied on the decision in Uittenbosch v Department of Corrective Services [2005] QCA 300 in paragraphs [12]-[23].

22. [22]
    Atkinson J, with whom McPherson J agreed, confirmed that the relevant principles of interpretation in matters such as this were:

1. that an ambiguity in legislation affecting the liberty of the person will usually be construed in favour of the person affected^[1];

2. that the second interpretative principle is articulated in s 14A of the Acts Interpretation Act 1954, which provides that the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation^[2]; and

3. that the third relevant principle of statutory interpretation is that in the case of ambiguity or obscurity, resort may be had to extrinsic material:  see s 14B of the Acts Interpretation Act 1954.^[3]

23. [23]
    It was argued that resort should not be had to the explanatory memorandum because the ordinary meaning of the provision did not exclude the power of the Magistrate to impose probation.

Decision

24. [24]
    In Commissioner of Police Service (Qld) v Magistrate Spencer & Ors (supra), Henry J considered the provisions of s 180A of the PSA, which provides:

“A provision of an Act that provides to the effect that the maximum penalty for an offence may be a fine or imprisonment means that the sentencing court may order the offender—

1. (a)
   to pay a fine; or

2. (b)
   to be imprisoned; or

3. (c)
   to pay a fine and also to be imprisoned.

Example—

'Maximum penalty—100 penalty units or imprisonment for 2 years' means the offender is liable to—

1. (a)
   a maximum fine of 100 penalty units; or

2. (b)
   maximum imprisonment of 2 years; or

3. (c)
   a maximum fine of 100 penalty units and also maximum imprisonment of 2 years.”

25. [25]
    For practical purposes, the maximum penalty here is expressed in similar terms to the example provided in s 180A. Section 91 of the PSA provides:

“If a court convicts an offender of an offence punishable by imprisonment or a regulatory offence, the court may—

1. (a)
   whether or not it records a conviction—make for the offender a probation order mentioned in section 92(1)(a); or

2. (b)
   if it records a conviction—make for the offender a probation order mentioned in section 92(1)(b).”

26. [26]
    The issue that arises here is whether or not the insertion of the words “served wholly in a corrective services facility” after the reference to the minimum penalty of 50 penalty units or 50 days imprisonment means that this was not an offence punishable by imprisonment for the purposes of s 91 of the PSA.

27. [27]
    As Henry J said in Commissioner of Police Services (Qld) (supra)^[4] there appears to be no reason grounded in statute or principle why a period of probation ought to be regarded as a lesser penalty than a fine.

28. [28]
    Clearly, the offence is one to which s 180A of the PSA applies. Therefore, on its ordinary meaning, s 754 as amended still appears to me to be an offence punishable by imprisonment for the purposes of s 91 of the PSA. It follows, therefore, that the learned Magistrate had the power to make a probation order under s 92(1)(b) of the PSA.

29. [29]
    There are numerous ways in which the legislation could have been expressed so that the options of probation and/or good behaviour bonds were unequivocally excluded, but no attempt was made to do so.

30. [30]
    Even if it was necessary to resort to the purpose of the legislation that would relate to the PPRA and I have considered s 5 which sets out the purposes of the PPRA. There is nothing there which assists the Appellant.

31. [31]
    The wording of the section is not ambiguous or obscure and it is not, therefore, necessary to consider the extrinsic material.

32. [32]
    In the circumstances, I find that the Magistrate did not err in law in imposing the penalty that he did.

33. [33]
    Appeals under s 222 of the JA are, however, appeals by way of rehearing, and it is necessary for me to consider on a rehearing of the matter whether the penalty which was imposed was manifestly inadequate.

34. [34]
    The respondent was 23 years of age at the time he was sentenced and was in full time employment as a tradesman. He was not affected by alcohol on this occasion when he was driving, although it appears that he failed to comply with the requirement to stop because there was alcohol in the car. The plea of guilty was clearly a timely one. It was alleged that he had one previous conviction for this offence and had also been previously convicted for disqualified driving.

35. [35]
    The learned Magistrate clearly took into account that this incident occurred in the Napranum-Weipa area, and that if he did reoffend it would be very easy for the police in those circumstances to detain him.

36. [36]
    This is certainly a different situation to what is often seen when people refuse to pull over when requested to do so by the police in cities and large towns where they are not known to the police and where subsequent detention may prove difficult.

37. [37]
    In the much smaller community like this, however, it would, as the learned Magistrate said, be relatively easy for the police to eventually detain him.

38. [38]
    In all the circumstances, I am not satisfied that the penalty is manifestly inadequate, and on my rehearing of the matter I confirm that I would have imposed a similar penalty.

39. [39]
    In the circumstances, the appeal is dismissed.