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Fourmile v Queensland Police Service[2016] QDC 182

Fourmile v Queensland Police Service[2016] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:

Fourmile v Queensland Police Service [2016] QDC 182

PARTIES:

STERLING KEVIN LEE FOURMILE

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

DC 37 of 2016

DIVISION:

Appellate

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Wednesday, 29 June 2016

DELIVERED AT:

Cairns

HEARING DATE:

Friday, 24 June 2016

JUDGE:

Harrison DCJ

ORDERS:

  1. Appeal is allowed.
  2. In lieu of the original sentence the Applicant is to serve 100 hours of unpaid community service.

CATCHWORDS:

CRIMINAL LAW – s 222 APPEAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to a fine of $2,500.00 for being found with liquor in a restricted area – the applicant was on a carer’s pension of $500.00 a fortnight – whether the sentence was manifestly excessive – consideration of section 48(1) Penalties and Sentences Act 1992.

COUNSEL:

J. Sheridan for the Applicant

M. Benn for the Respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Services for the Applicant

Department of Public Prosecutions (Qld) for the Respondent

  1. [1]
    On the 17th of February 2016, the applicant pleaded guilty in the Magistrates Court at Yarrabah to an offence of possession of liquor in excess of the prescribed amount in a restricted area pursuant to the provisions of section 168B of the Liquor Act 1992 (‘the Act’).  He was convicted and fined the sum of $2500 and the fine was referred to the State Penalties Enforcement Register.  He has appealed this conviction, essentially on the basis that the sentence imposed was manifestly excessive.  This appeal was argued before me on the 24th of June 2016.
  1. [2]
    On the 21st of January 2016, the applicant was detained by the police when driving a motor vehicle at Yarrabah.  In that motor vehicle were 10 cans of cider and 19 cans of a whisky mixed drink.  There was no argument that he was found in a restricted area and there was no argument that the amount in his possession was in excess of the prescribed quantity allowable for that particular restricted area.  When questioned by the police, he admitted that the alcohol was his and, also, that he was aware of the relevant liquor restrictions.
  1. [3]
    His solicitor informed the Court, on the sentence, that he was 22 years of age and that he was in receipt of a carer’s pension in the sum of $500 per fortnight. He was caring for his brother and sister who were aged 13 years and 15 years. She informed the Court that he purchased the alcohol for his brother’s birthday. It was noted, during the course of the proceedings, that he had two previous convictions for the same offence.
  1. [4]
    When the matter was argued before me on the 24th of this month, I was concerned as to whether there had been compliance with section 47 of the Justices Act 1886 in terms of the necessary averment to that effect, but I did peruse the Court file and I note that a notice was provided, under section 47 of the Act.  This has the effect that I must look at the penalties that apply under section 168B.  For a third offence, the maximum penalty is 750 penalty units or 18 months’ imprisonment, under section 168B(1)(c).
  1. [5]
    I have considered the Magistrate’s reasons, which are relatively brief. It would seem that the Magistrate was very concerned about the impact of alcohol generally on the Yarrabah community. She commented that at least 99 per cent of the crime in Yarrabah was related to alcohol. She generalised that parties, like birthday parties, generally resulted in a considerable number of cases before the Court, and she noted that they often led to a considerable amount of violence, mostly towards women and children, and it resulted in a considerable number of domestic-related cases. She noted that she had dealt with 10 domestic violence cases that day relating to alcohol and also a number of alcohol-related incidents.
  1. [6]
    She concluded that fines were having no effect in the community and, certainly, was having no effect on the applicant. She concluded that sentences with a deterrent effect should be brought in, because the continual bringing in of liquor contrary to the laws was making a mockery of the laws. These are the matters she took into account in deciding that an appropriate penalty in this case was one of a fine of $2500.
  1. [7]
    It does not appear to me as though any consideration was given to the matters set out in section 48 of the Penalties and Sentences Act 1992. Section 48(1) requires a Court, when deciding to fine an offender, to take into account the financial circumstances of the offender and the nature of the burden that payment of the fine will have on the offender in determining the amount of the fine. In this case, his financial position was set out in the submissions made by the applicant’s solicitor. She informed the Court that his sole income was the supporting benefit for the two siblings, in the sum of $500 per fortnight.
  1. [8]
    It seems to me that the net effect of a fine of $2500 in this case is that, realistically, it will never be paid. More importantly, he did not have the financial circumstances to pay that fine and, if he ever were forced to pay it, there would be a substantial burden on him. These matters are all relevant under section 48(1) of the Penalties and Sentences Act, but they do not appear to have been considered in this case. I am also concerned about some of the matters that were taken into account. There was reference to violence issues and the relationship between alcohol and violence in Yarrabah, yet it seems no material was placed before the court to suggest what the incidents of offending were and in what circumstances alcohol played a contributing part to that.
  1. [9]
    Further, it seems as though he was effectively being used as an example to others. I appreciate in this case, particularly with his two previous convictions that the deterrent aspect of sentencing is relevant, certainly in terms of general deterrence, where it seems that much of the sentence was aimed, and also in relation to personal deterrence. That may well justify a substantial penalty, providing of course that penalty was within the established range for that type of offence. Certainly, it would seem to me that similar offending has resulted in relatively small fines.
  1. [10]
    When I talk about the size of fines, this has to be relative, and it has to be particularly relative to the matters set out in section 48(1) of the Penalties and Sentences Act. A fine of $2500 for someone on his incredibly limited income where he has the care of others is indeed a very substantial fine, and, it seems to me, well in excess of any range for that type of offence. I believe that, because of the failure to take into account his own financial circumstances and the nature of the burden that the fine would impose on him, the sentence is manifestly excessive, and this court should interfere.
  1. [11]
    It seems to me, however, that there is some merit in the sense that there should be allowance for both general and personal deterrence, and the best way that can be done is by requiring him to perform some community service. That way others would see that in fact he was being punished for what he did. The fact that a fine of $2500 was imposed and referred to SPER and never ever paid would not have that same deterrent effect on others. Normally, I can only make a community service order if in fact he is prepared to consent to that order. The number of hours that I have considered appropriate in his case, allowing for his previous history, is 100 hours.
  1. [12]
    What I am prepared to do is to allow his solicitors to obtain instructions in relation to whether or not he would consent and to deal with the matter again in the immediate future, and, if he does consent, then impose the necessary orders. There is no urgency in relation to the matter, because nothing is going to happen in the short term. I will be absent from Cairns for the next few weeks, but I can mention the matter in the week commencing the 18th of July 2016.
  1. [13]
    In the circumstances, I will adjourn the matter for mention until 9 am on Wednesday, 20 July, and on that occasion, assuming he does consent to that order, I will then make the necessary consequential orders.

______________________

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Editorial Notes

  • Published Case Name:

    Fourmile v Queensland Police Service

  • Shortened Case Name:

    Fourmile v Queensland Police Service

  • MNC:

    [2016] QDC 182

  • Court:

    QDC

  • Judge(s):

    Harrison DCJ

  • Date:

    29 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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