Walker v Maroney[2015] QDC 87

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal against the severity of sentence pursuant to s 222 of the Justices Act1886 (Qld). The appellant had pleaded guilty to failing to take reasonable steps to ensure her dog did not attack a person. She was fined $15,000, ordered to pay court costs and a conviction was recorded.

2. [2]
   The sole ground of appeal under section 222(2)(c) of the Act is that the fine or punishment was excessive.

3. [3]
   Section 223(1) provides that the appeal is by way of rehearing on the evidence given in the proceeding below. There is also provision for the admission of fresh, additional or substituted evidence in certain circumstances. There has been no application for leave to adduce new evidence, although Mr Frigo for the appellant, foreshadowed an application.

4. [4]
   The appeal court has power under section 225(1) to “confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.” It cannot interfere however unless material error is shown. The well-established principle was repeated by Muir JA in Teelow v Commissioner of Police [2009] QCA 84 at [4] :

“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”

The principles for review of the exercise of the sentencing discretion are governed by House v The King (1936) 55 CLR 499.

The circumstances of the offence

5. [5]
   The offence was against section 194 the Animal Management (Cats and Dogs) Act 2008 (Qld). Subsection (1) imposed a duty upon the dog owner to take reasonable steps to ensure the dog did not attack or cause fear to someone else or another animal. The appellant’s Alsatian dog, Benny, had attacked an elderly man, causing a grievous injury. Mr Rowlands had the misfortune to be walking along the public footpath where the appellant had taken her dog to toilet. Without warning, Benny lunged at Mr Rowland and ripped his calf open. It was a gruesome injury that could have resulted in amputation or death. Mr Rowlands was hospitalised for an extended period. He underwent two operations. While awaiting a skin graft, the wound became infected and he was transferred from Nambour Hospital to the Royal Brisbane Hospital. He underwent two operations. There is now a hole in his leg the size of a hand. He had been a fit and active walker. He now stays at home.

6. [6]
   Although Mr Rowlands had no reason to foresee the danger of the situation, the appellant ought to have appreciated it and reasonably avoided the incident. Two years earlier, the Greater Taree Council had declared Benny to be a dangerous dog. There had been two investigations into attacks upon smaller dogs. Later in September 2012, Benny had attacked and bitten a woman on the thigh. Stitches were required. The declaration of dangerousness was made in December 2012 and conditions were imposed upon Benny’s management. They included safe fencing and a warning sign on the property where he was housed, as well as the use of a leash and muzzle when he was outside of the property. Those were the conditions of the local council and operable when the dog was in the district. They also articulated a reasonable standard of care for the management of the dog to protect the public.

7. [7]
   The defence led evidence of earlier assessments. In 2009, the appellant and her husband purchased Benny from the RSPCA with a favourable behavioural report. After the incident with the first dog in 2011, the appellant’s husband commissioned a specialist assessment which identified Benny’s strong protective instincts, but minimised the prospects of an attack on a person. Further attacks in 2011 and 2012 rendered the previous assessments obsolete. The appellant was on notice that her dog was dangerous.

8. [8]
   The Walker’s property was re-fenced and the dangerous dog sign was hung. They used a choker leash and kept a muzzle, but the appellant said attempts to use it had been unsuccessful. A properly fitted muzzle would have spared Mr Rowlands the biting injury. The appellant’s account suggested that the failure to apply it was not an isolated lapse. The choker collar was ineffectual because the appellant was evidently not strong enough to activate the choke. Any potential for the appellant to avert an attack was further compromised by a cataract which impaired her vision.

The antecedents

9. [9]
   The appellant was 68 years old, without any criminal record. At the time of the offence, she was stressed by a preliminary test for colon cancer, against a family history for that disease. She had suffered from depression for eight years and was adversely affected by her medication. Her doctor opined that the appellant’s judgment would have been impaired, and that “(t)his would have contributed to her taking out the dog unrestrained.” The doctor’s brief letter did not attempt to quantify the level of impairment. As Mr Frigo fairly conceded on the appeal, there was no claim of substantial impairment.

10. [10]
    The appellant cooperated with investigators through an interview and made admissions. By that stage Benny’s microchip had already disclosed his New South Wales history and ownership. The appellant also pleaded guilty at the earliest time. She was said to be remorseful and had attempted to apologise to Mr Rowlands.

The Prosecution’s submissions at sentence

11. [11]
    Mr Heiner, for the council, particularised the breach of duty in terms of bringing the dog onto a public footpath without a muzzle, knowing the dog was dangerous yet acting contrary to the notified standard for its safe management. “Unmuzzled amounts to a failure to take reasonable steps”.^[1]Mr Heiner submitted this was not a momentary lapse. This appears to be a reasonable inference based upon the inclusion of the dog in a touring holiday, and the disregard for the muzzle after previous unsuccessful attempts to use it. Investigators were told that the appellant’s husband was unable to apply the muzzle and there was no suggestion that the appellant had ever tried to do it. The decision to take this dog travelling without any ability to muzzle him was fraught with risk. Mr Heiner claimed that the appellant’s attitude in the interview was “offhand and careless.”

12. [12]
    Mr Heiner advised the Magistrate this was a “test case.” He was not aware of another case under the legislation involving grievous bodily harm. He indicated that bodily harm from dog bites was more common. He contended that for such cases, although “the range of failures and injuries varies greatly”, the range of penalties was “in the range of 2000 to 3000.” He went on: “Council officers have expressed the view to me that a penalty in the range of 15 to 20 thousand is apt.”^[2]Finally, he submitted that a conviction ought to be recorded.

The Defence submissions at sentence

13. [13]
    Mr Frigo told the Magistrate the appellant was 68 years old, lived with her husband and had no dependent children. She and her husband were on local and overseas pensions. Mr Frigo said “(t)hat pension grosses about $880 per week.” While perhaps ambiguous, Mr Frigo had intended to convey this was the combined weekly income.

14. [14]
    He referred to the reports the appellant had received in 2009 and 2011 as to the dog’s behaviour. He gave further details of the three attacks in New South Wales. He indicated the appellant had complied with all of the conditions in the dangerous dog declaration, other than the use of the muzzle. The muzzle was in the motor home. In addition to the early plea and remorse, Mr Frigo spoke of long standing depression and impaired judgment. He relied upon the letter from Dr Hebbard.

15. [15]
    Mr Frigo accepted the injury was a serious one. He cited three Western Australian cases which he acknowledged concerned low level conduct. He submitted that a fine of $15 000, at almost half the maximum, would be excessive. He submitted that discretionary factors in section 9 of the Penalties and Sentences Act 1992 (Qld) weighed heavily in the appellant’s favour and an appropriate fine would be $2000 to $3000.

16. [16]
    As regards the recording of a conviction, Mr Frigo referred Her Honour to the factors in section 12 of the Act. Going through those matters, Mr Frigo indicated there were no relevant implications for economic or social well being. He said, “ I remind your Honour of my client’s character and age. I remind your Honour of all of the submissions that have been made in relation to the subject offence In particular, I remind your Honour…it’s a summary offence… it’s akin to negligence.”^[3]He distinguished the charge from one where a dog is incited to attack.

The sentencing remarks

17. [17]
    Her Honour noted the absence of comparable decisions. She indicated that punishment for the offence could range from release upon a recognisance to a fine of $33 000.^[4]The maximum penalty for an injury of grievous bodily harm to a person was six times greater than that for bodily harm.

18. [18]
    Her Honour noted the appellant’s age and absence of criminal history. She referred to efforts at compliance with the safety conditions when on the Walker property in New South Wales. Her Honour also acknowledged that the appellant’s judgment may have been impaired by her mental health issues, but noted the appellant was fully aware of the past attacks: “…given that she was clearly on notice as a result of her previous experiences with this very dog, she clearly failed to take as seriously as she should have the dog’s status after those three previous incidents and maintain a regime that would protect the unprotected public…”^[5]

19. [19]
    Reviewing the purposes of sentencing under section 9 of the Penalties and Sentences Act1992 (Qld), Her Honour identified that neither rehabilitation nor personal deterrence was required. Rather the focus had to be on general deterrence and denunciation. After again referring to the maximum fine, Her Honour said,        “This is a serious infringement and a serious example of grievous bodily harm being caused to a person.”^[6]Citing the level of dangerousness and risk, the appellant’s knowledge of it and the consequences for the victim, Her Honour concluded that a “very significant fine” was required.

20. [20]
    The reasons appeared to conclude with the disclosure of the fine to be imposed. Her Honour began to address the appellant directly for sentence. She interrupted the sentence, to add to the reasons for sentence. “I do take account that the defendant – and I haven’t noted this – has pleaded guilty at an early stage, on the first day, indeed that she has come before the court.”^[7]  After imposing the fine, Her Honour recorded a conviction. She said “I am inclined to record a conviction…given that Ms Walker was on notice as a result of her three previous experiences of the dangerousness of the dog and its propensity to attack...”

Arguments on appeal

21. [21]
    The primary argument for the appellant was that the sentence was excessive in all of the circumstances, stressing the absence of history, as well as cooperation, remorse, early plea, the mental health issue, past compliance with the conditions of the dangerous declaration and the nature of the offence. Mr Frigo also argued specific errors involving a failure to take into account facts which the court was required to consider under the Penalties and Sentences Act 1992 (Qld)and he submitted that Her Honour was influenced by the range of fine improperly proposed by the prosecution.

Capacity to pay the fine

22. [22]
    It is convenient to first consider the submission that the Magistrate had failed to take into account mandatory considerations in section 48 of the Penalties and Sentences Act 1992 (Qld). Relevantly, section 48 provides:

"48 (1)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 -

(a)the financial circumstances of the offender; and

(b)the nature of the burden that payment of the fine will be on the offender.

(2)The Court may fine the offender even though it has been unable to find out about the  matters mentioned in subsection (1) (a) and (b).

23. [23]
    Neither counsel nor Her Honour referred to section 48, which is particularly surprising given that the only sentencing option was a fine. Almost immediately after the prosecutor had raised a fine of $20 000, defence counsel provided some information on the appellant’s financial position but he did not assert that the appellant was unable to pay a fine of that magnitude. Specifically, counsel advised of her mature age, the size of her pension and that she lived with her husband with no dependents. No further details were offered. The express response to the prosecution’s submission was simply that it was excessive.

24. [24]
    The financial circumstances of an offender and her ability to pay a fine refer to more than the current income. Any savings, assets and financial obligations would also be relevant. Here the facts suggested a residence interstate and a motor home but the Magistrate was not given the details of those or any other relevant matters which would have been known to the appellant but not the prosecution. In the present circumstances where a fine was the only sentencing option, and where a $15000 fine was expressly raised, defence counsel’s failure to claim an inability to pay might reasonably raise an inference that the appellant did have the financial capacity. However, notwithstanding the failure of counsel, section 48 imposes a positive burden on the court. Under subsection (1) the court must “as far as practicable” take the relevant financial circumstances into account. There is power under subsection (2) to fine without those facts, but it applies when the court has been “unable” to find out. While the court is dependent upon the parties to provide relevant information, the mere failure of the parties to volunteer the financial information would not be enough to satisfy subsection (2). It is always open to the court to ask questions. The ordinary meaning of “unable” is incapacity or helpless. It could not be said the court was unable to find out necessary details, unless relevant questions were asked of the parties and left unanswered.

25. [25]
    Her Honour was not assisted by counsel, but ultimately the absence of enquiry as to the appellant’s capacity to pay a $15 000 fine was a substantial error which vitiated the exercise of the sentencing discretion. The appeal must be allowed and the appellant must be given leave to offer new evidence about the financial circumstances of the appellant, her ability to pay a fine, and the nature of the burden it would impose on her.

26. [26]
    Although the sentencing discretion is to be exercised afresh, I will briefly deal with Mr Frigo’s other criticisms.

Cooperation

27. [27]
    The appellant contended that Her Honour failed to take account of assistance she gave in the investigation of the offence, as required by s 9(2)(h) of the Penalties and Sentences Act1992 (Qld). The subsection requires the court to have regard to “how much assistance the offender gave to law enforcement agencies in the investigation of the offence ...”

28. [28]
    Her Honour was told that the appellant had submitted to an interview and made admissions. Most of what she said was already known to investigators. They had already extracted from Benny’s microchip, his New South Wales history, including ownership and the dangerous dog declaration. Further, the appellant was readily identifiable as the dog’s handler at the time of the attack. She had spoken to Mr Rowlands immediately afterwards. The incident happened outside a business repairing the appellant’s motor home. Staff of that business had assisted Mr Rowlands. Accordingly, the interview gave the appellant an opportunity to explain her conduct, but her answers did not add much to the investigation.^[8]

29. [29]
    The prosecutor gave a detailed description of the appellant’s version. There is no reason to think that the attentive Magistrate had overlooked the fact that the appellant had cooperated with the investigation. The real benefit of her cooperation was the very early plea of guilty.

30. [30]
    Mr Frigo pointed out that the appellant had also consented to the destruction of her dog. This however was not “assistance…in the investigation of the offence” and therefore falls outside of the ambit of section 9(2)(h). Nonetheless the transcript indicates that Her Honour did take that cooperation into account in the context of remorse,^[9]although an order for destruction was probably irresistible.

The plea of guilty

31. [31]
    Any guilty plea must be taken into account. Mr Frigo submitted that the Magistrate did not comply with section 13 of the Penalties and Sentences Act1992 (Qld). Subsection 1(a) requires the court to take the plea into account. Furthermore, subsection (3) requires the court to specify that it did take the guilty plea into account when determining sentence.

32. [32]
    Section 13 provides:

“In imposing sentence on an offender who pleads guilty to an offence, a court–

(a)must take the guilty plea into account; and

(b)may reduce the sentence that it would have imposed had the offender not pleaded guilty.

(2)A reduction under subsection (1)(b) may be made having regard to the time at which the offender–

(a)pleaded guilty; or

(b)informed the relevant law enforcement agency of his or her intention to plead guilty.

(3)When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.

(4)A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court–

(a)that fact; and

(b)its reasons for not reducing the sentence.

(5)A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.”

33. [33]
    The Magistrate acknowledged the plea of guilty. She identified it as an early plea. She expressly said “I do take into account” the guilty plea and its timing. Mr Frigo submitted this did not comply with subsection (3) because Her Honour failed to specify the plea was taken into account “when determining the sentence”. However, it was implicit in Her Honour’s statement. There was nothing else it could mean. The only matter under consideration was the sentence. Her Honour materially complied with subsection (3).

34. [34]
    Mr Frigo contended it was an error not to specify whether or not the sentence was reduced by the plea. Generally a plea of guilty will mitigate the sentence. The positive obligation for specificity arises only when the sentence is not discounted for it. Section 13(4) requires that reasons be given in such circumstances. There is no equivalent statutory obligation when a sentence is moderated by the plea. In the present case, Mr Sinclair argued it was “clear” the sentence had been reduced. Certainly there was no suggestion that the Magistrate had decided not to reduce the sentence. She complied with the requirements of section 13. What she did not do was articulate what fine would have been imposed but for the plea of guilty. This would appear to be consistent with the High Court’s preference for sentences of intuitive synthesis, rather than mathematical equations. The attribution of specific component values has been denounced for a tendency to distort the sentencing exercise.^[10]

35. [35]
    Determination of the level of discount for a guilty plea calls for an assessment of the circumstances, particularly its utilitarian value and the extent to which it indicates remorse and prospects of rehabilitation. In the present instance, it would have been difficult for the appellant to contest the charge. Nonetheless the magistrate accepted her plea showed remorse. There were also savings in terms of a short trial and the strain upon the complainant.

36. [36]
    It is true that Her Honour did not acknowledge the guilty plea until she had moved to the actual sentence. She interrupted the sentence, to assert that the plea had been taken into account, implying that the oversight was only in the expression of the extempore reasons. Her Honour’s mindfulness of the plea was further demonstrated in an earlier exchange with Mr Frigo. When he spoke of remorse, Her Honour volunteered that the early plea was “indicative.”^[11]

“Higher obligation”

37. [37]
    The appellant contended that Her Honour wrongly ascribed a higher obligation to safeguard the dog when away from home. The submission was not pressed in oral argument.

38. [38]
    On page two of her reasons, Her Honour said: “in my assessment, being away from home, the obligation on her was, indeed even higher than when she was at home, to take steps to ensure that the dog didn’t attack.” The argument on appeal appeared to be that this was not a particular articulated by the prosecution and therefore the court was not entitled to consider it. Section 194 of the Animal Management (Cats and Dogs) Act 2008(Qld) imposed a duty to take reasonable care. The prosecutor had explored what “reasonable” might mean in the circumstances of this case. Her Honour was required to have regard to the full circumstances of the undisputed facts. In any event, in context, Her Honour’s statement was unexceptional. It was an acknowledgment of the obvious, namely that removing the dog from its enclosure, to expose it to the world, called for vigilance and further protective measures. As Her Honour explained: “the dog was not confined within its fence. It was not in the vicinity of a sign, where at least the public could have protected itself…”

Recording a conviction

39. [39]
    The submission was that the Magistrate did not consider relevant circumstances before recording a conviction. In exercising the discretion as to whether a conviction ought to be recorded, section 12 of the Penalties and Sentences Act1992 (Qld) requires that the court take account of all of the circumstances, including the nature of the offence, the offender’s character and antecedents and the impact upon the offender’s economic or social wellbeing.

40. [40]
    This was not a case where a conviction was said to adversely threaten economic or social wellbeing. The appellant’s favourable antecedents weighed against the recording of a conviction whereas the seriousness of the offence weighed towards it. Although Her Honour reviewed the antecedents, she did not do so with a direct reference to the section 12 discretion. She spoke of the recording of a conviction only briefly at the conclusion of the sentence, noting simply that the appellant had been on notice as to the dangerousness of the dog. The appellant’s prior knowledge was an aggravating circumstance in the nature of the offence which was relevant under section 12, but it obviously had to be weighed against the antecedents. I am satisfied that Her Honour did do so. The concluding remarks for the recording of the conviction echo the last part of a more detailed observation made shortly before. This was at page 4, where Her Honour had acknowledged the absence of criminal history and the effect of depression on the appellant’s judgment, before continuing: “But given that she was clearly on notice… she clearly failed to take as seriously as she should, the dog’s (dangerous) status.”

Submissions as to range

41. [41]
    At sentence the prosecutor referred to a specific level of fine. On appeal Mr Frigo argued this fell afoul of the principle raised in Barbaro v The Queenand infected the sentencing process. Mr Sinclair pointed out that both sides had made submissions on the range. He sought to limit the application of Barbaro to prosecutions in the superior courts, or to those cases where comparable decisions were available. The attempt to distinguish Barbarois unpersuasive. The High Court was clear in its condemnation of the provision of a range. The joint judgment at [23] categorised the practice of the prosecution as “wrong in principle”, declaring at [29] it was not the role of the prosecutor to act as “surrogate judge” and at [32] that prosecution views “cannot be dispassionate”. The rationale would appear equally valid for a prosecution in a local court. In Murray vR(2014) QCA 250 at [11], the Court of Appeal identified that any range identified by either the prosecution or the defence should be disregarded.

42. [42]
    It follows that the expression of a range must be treated as an irrelevant consideration. Where it is shown to have influenced the sentence, sentencing error will be established.

43. [43]
    There was no possibility that the present sentence was influenced by the defence range because of the vast disparity between it and the fine imposed. But the fine was at the bottom of the prosecution’s range. Her Honour’s reasons display a reasoning from first principles, from examination of the maximum penalty to the level of offending. Her Honour also considered the purposes of sentence under section 9 of the Penalties and Sentences Act1992 (Qld), and the importance of general deterrence. Nonetheless, in the absence of an express disavowal of the prosecution range, the fixing of a sentence at the bottom of the prosecution range, and so far from the defence submission, permits an inference of at least subconscious influence.

Sentencing afresh

44. [44]
    The level of offending was without apparent precedent. Mr Frigo found two decisions from Western Australia where fines of $1000 were imposed: Lankester [2010] WACIC 13 and Salmon v Cottesloe [2004] WASCA 66. They are of limited assistance because they relate to lesser conduct under a different legislative scheme. In each case the maximum penalty was less than one third of that confronting the appellant. Neither case imported prior knowledge of the dog’s dangerousness. Neither involved grievous injury. Indeed Salmonrelated to aggressive behaviour rather than actual contact. Mr Sinclair cited Giovanni Pacino v R1998 WASCA 335 which referred to a $1000 fine where death was caused. As that was the maximum penalty that case does not take the matter very far.

45. [45]
    Given the absence of direct authority, Mr Frigo referred to maritime safety cases. He argued that offences of negligence in the management of vessels was an analogous, but more serious, class of offence. While the maximum was many times greater than the instant, the fines imposed were substantially lower than that originally imposed upon the appellant. The court was provided with summaries of some first instance decisions. The summaries concerned fines from $2000 to $10,000 for instances of unsafe operation of a vessel with consequences ranging from minor physical injuries to a broken leg and $30,000 worth of property damage. Transcripts were not available despite Mr Frigo’s best efforts, so that it is not known whether all relevant circumstances are recorded. The submission for the appellant suggested that the present case was less serious and called for a lesser penalty than the fines in the maritime cases.

46. [46]
    Different classes of offences develop individual patterns of sentencing. It is not possible to determine whether the selected summaries are representative of the sentencing approach of magistrates under the Transport Operations (Marine Safety) Act 1994 (Qld).Even if they were, without the benefit of appellate review it does not necessarily follow such approach by the magistrates is correct,.

47. [47]
    Even without the assistance of comparable decisions, the sentence must be proportionate to the level of offending and the circumstances of the offender. The maximum penalty is reserved for the worst category of offence. The starting point must be the maximum penalty and legislative regime. Mr Sinclair argued that the appellant’s offence fell into in the worst class of its type.

48. [48]
    The appellant was convicted under section 194 Animal Management (Cats and Dogs) Act 2008(Qld) for an offence of negligence, that is, the failure to take reasonable steps to ensure her dog did not attack. Section 195 creates an offence of allowing or inciting an attack. It therefore extends to harm where the dog is deliberately used as a weapon. The sentencing scale under sections 194 and 195 are the same. They are tiered according to the consequences of the offence. For death and grievous bodily harm to a person the maximum fine was $33,000. For the death or grievous bodily harm of an animal, $11,000; for bodily harm to either a person or animal $5500, and for something less than bodily harm: $2200. Mr Sinclair submitted that the maximum penalty for section 195 should not moderate an assessment of the gravity of an offence under section 194. They are however related offences. Section 195 provides scope for more serious offending, while sharing the scale of fines with section 194. The fact that the range of conduct with a $33 000 maximum fine extends to grievous injury caused by a deliberate attack must be relevant to the assessment of the comparative seriousness of the present conduct.

49. [49]
    The appellant knew the dog had a propensity to attack. She knew it was dangerous. She knew it ought to be muzzled in public. The use of a muzzle was a minimum standard for the protection of the community at large. It seems that the appellant took Benny on holiday with no serioous prospect of complying with her duty under section 194. It was high risk conduct that caused severe injury and diminished the quality of a man’s life. It was a very serious example of the offence. As her honour identified, general deference was an important consideration for protection of the public. A strong and dangerous dog on the street without proper management poses a threat to anyone in the vicinity. It is a particularly chilling prospect for those most vulnerable, like children and the elderly. The message of high accountability ought to be unambiguous. The intention underlying section 194 is to make the offender accountable for the actions of her dog. That much is confirmed in the explanatory notes.

50. [50]
    The only way the early plea of guilty can be taken into account is by reducing the fine. Considering the nature and level of offending, and making allowance not only for the plea and cooperation, but the appellant’s age, absence of criminal record and some small impairment, I would impose a fine of $13 000 subject to consideration of new evidence relevant to section 48 of the Penalties and Sentences Act 1992(Qld). The level of fine falls to be determined after consideration of any new evidence from the appellant regarding her financial circumstances and the likely burden it would impose on her and after both parties have had opportunity to address on that issue.

51. [51]
    There remains the question of whether to record a conviction. In my view the balance between the favourable antecedents and the seriousness of the appellant’s offending calls for the recording of the conviction. The discretion ought to be reviewed in the context of the whole sentence, but in the absence of economic or social disadvantage, the recording of the conviction, even in conjunction with a substantial fine, appears appropriate.

Conclusion

52. [52]
    The appeal is allowed. The sentencing orders of the Magistrate made on 11 November 2014 are set aside. The appellant is given leave to produce new evidence concerning matters relevant to s 48 (1) of the Penalties and Sentences Act 1992 and I will receive submissions on the implications of the new evidence.