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Thimble v Queensland Police Service[2016] QDC 190

Thimble v Queensland Police Service[2016] QDC 190

DISTRICT COURT OF QUEENSLAND

CITATION:

Thimble v Queensland Police Service [2016] QDC 190

PARTIES:

JUSTINE FAYE THIMBLE

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

APPEAL NO: D73/16

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

2 August 2016

DELIVERED AT:

Cairns

HEARING DATE:

2 August 2016

JUDGE:

Morzone QC DCJ

ORDER:

  1. (1)
    Appeal allowed.
  2. (2)
    Set aside the orders made by the Magistrates Court on 27 April 2016 and substitute the following orders:
  1. The appellant is convicted of one charge of possession of liquor in a restricted area.
  2. No further punishment is imposed.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – contravention of s 173H of Liquor Act 1992 (Qld) – possessing liquor in a restricted area – error of law – whether sentence manifestly excessive.

Legislation

Justices Act 1886 (Qld), ss 222, 223(1) & 227

Liquor Act 1992 (Qld), ss 3, 168B & 173H

Penalties and Sentences Act 1992 (Qld), s 187

Cases

House v The King (1936) 55 CLR 499

Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Norbis v Norbis (1986) 161 CLR 513

Callope v Senior Constable B Elsley (Unreported, Qld District Court, White DCJ, Cairns, 8 March 2005)

Fourmile v Queensland Police Service [2016] QDC 182

COUNSEL:

J. Sheridan for the appellant

A. Dunkerton for the respondent

SOLICITORS:

The Aboriginal & Torres Strait Islander Legal Service for the appellant

The Office of the Director of Public Prosecutions for the respondent

  1. [1]
    On 27 April 2016 the appellant was convicted on her own plea of guilty in the Magistrates Court held in Yarrabah of one charge of possession of liquor in a restricted area, and was fined $2000 with a conviction recorded and disqualified from driving for three months.
  1. [2]
    The appellant now appeals her sentence on the ground that it is manifestly excessive.
  1. [3]
    Both parties provided outlines of argument and made further submissions on the hearing of the appeal which I have considered. The respondent has, properly in my view, conceded the appeal subject to resentencing considerations.

Background

  1. [4]
    At the time of the offence the appellant was driving a car into Yarrabah when she was intercepted by police and found with one 1.125 L bottle of Johnny Walker Scotch whisky.
  1. [5]
    Yarrabah has an Alcohol ManagementPlan with the aim to reduce alcohol-related violence, particularly violence against women and children in the community. This includes the imposition of liquor restrictions which are the subject of signage located at the entrance to the area.
  1. [6]
    By a declaration under s 173H of the Liquor Act 1992 (Qld), the type and maximum amount of alcohola person can carry in the restricted area is limited to: 11.25 litres (1 x 30 can carton) of lightor mid-strength beer; or 750 ml (1 bottle) of unfortified wine. These limits also apply to a vehicle, boat or aircraft regardless of the number of people in it. Cask wine, fortified wine, full-strength beer and pre-mixed spirits are not allowed in the restricted area.
  1. [7]
    The offence arises under s 168B of the Liquor Act 1992 (Qld) which provides for the prohibition on possession of liquor in a restricted area:

(1)  A person must not, in a restricted area to which this section applies because of a declaration under section 173H, have in possession more than the prescribed quantity of a type of liquor for the area, other than under the authority of a restricted area permit.

  1. [8]
    The maximum penalties for possessing illegal alcohol in the restricted area are:
  1. (a)
    for a first offence – 375 penalty units (then $43,000);
  1. (b)
    for a second offence – 525 penalty units (then $61,000) or 6 months imprisonment;
  1. (c)
    for a third or subsequent offence – 750 penalty units (currently $85,000) or 18 months imprisonment.
  1. [9]
    The appellant was 38 years old at the time of the offence and at sentence.
  1. [10]
    The appellant had two previous relevant convictions for the same offence. The circumstances of that offending are not revealed in the record. For the offence committed on 25 February 2010 she was fined $100 and for the offence committed on 27 July 2013 she was fined $150.
  1. [11]
    She lives in Yarrabah with her partner and three children aged between 5 and 11 years old. She is also the carer for her mother-in-law and received the carers pension of about $800 per fortnight.
  1. [12]
    She initially denied possession of alcohol when first intercepted by the police, but later made full admissions when the alcohol was found. She was taking the alcohol into Yarrabah as a favour to her aunty, without any personal benefit.[1]
  1. [13]
    The appellant entered an early plea of guilty and, through her legal representative, she acknowledged the alcohol restriction and her criminal behaviour.
  1. [14]
    During the course of the sentence hearing, the Magistrate received submissions on the prospect of imposing a disqualification from driving.
  1. [15]
    The appellant was fined $2000 with a conviction recorded and disqualified from driving for three months. By the time of this appeal hearing she has served the three month period of disqualification from driving.

Grounds of Appeal

  1. [16]
    The appellant appeals against the sentence on the grounds that the fine and disqualification were manifestly excessive.

Appeal against Sentence

  1. [17]
    This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.
  1. [18]
    The High Court held in House v The King[2]that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance."

  1. [19]
    A mere difference of opinion about the way in which the sentencing discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[3]

Fine

  1. [20]
    The appellant argues that the fine was manifestly excessive because the offending had no commerciality, undue weight was given to general deterrence, and insufficient regard was had to her capacity to pay.
  1. [21]
    The purpose and guidelines of sentences are those particularised in the Penalties and Sentences Act 1992 (Qld). The sentence must be appropriate punishment in the circumstances, facilitate avenues of rehabilitation, deter others from committing a similar offence, make it clear that the community denounces the conduct in the offence, and protect the community.
  1. [22]
    In determining the amount of the fine and the way in which it is to be paid, due regard ought be given in this case to the appellant’s financial circumstances and any burden a fine may have on her.
  1. [23]
    It is also relevant to consider the purpose of the legislation for the relevant offence which is expressly provided in s 173F of the Liquor Act 1992 (Qld) as follows:

The purpose of this part is to provide for the declaration of areas for minimising—

(a)harm caused by alcohol abuse and misuse and associated violence; and

(b) alcohol-related disturbances, or public disorder, in a locality.

  1. [24]
    In Callope v Senior Constable B Elsey (Unreported, Qld District Court, White DCJ, Cairns, 8 March 2005), White DCJ considered the appropriate approach to sentencing having regard to the legislative purpose. I agree with and respectfully adopt his remarks.
  1. [25]
    His Honour instructively said at pages 3 to 4:

“In my view therefore the sentencing exercise in respect of such offences requires the sentencing court to look closely at the purpose of the legislation in assessing the seriousness of the offence and in arriving at an appropriate punishment. It would be abhorrent if this legislation were to inadvertently become an instrument of oppression against residents of Aboriginal communities by further aggravating an existing over-representation of Aboriginal people in the prison population or by further driving down an already poor standard of living by the imposition of substantial fines.

Therefore in assessing the seriousness of a particular offence it will be particularly important to see if there are circumstances involved which demonstrate a potential for the particular offence under consideration to undermine the stated purpose of the legislation. Such features might appear in the quantity of alcohol involved, the circumstances of the commission of the offence, or the criminal history of the offender. I do not suggest for a moment that unless there is some relationship between the offence and the purpose of the Act that no punishment at all can be imposed. Nor do I suggest that it is necessary in order for such a relation to exist that an immediate or clear danger of the offender engaging in public disorder or domestic violence appears in the circumstances, but in my view there should be something to show at least a potential risk of such things occurring.

For instance, if the circumstances of the commission of the offence show that the offender was heavily intoxicated and behaving in an angry and aggressive fashion, that would demonstrate that there was potential for the commission of the offence to undermine the purpose of the legislation. If the offender’s criminal history showed previous offences of domestic violence or against public order associated with the excessive consumption of alcohol, that too would demonstrate that the commission of the offence had the potential to undermine the purpose of the legislation. In some circumstances the existence of a Domestic Violence Protection Order might be sufficient to demonstrate a potential for the commission of the offence to undermine the purpose of the legislation.

Possession of a large quantity of alcohol suggesting that it might be consumed by a number of people could be enough to suggest a risk that the commission of the offence could undermine the purpose of the legislation. The above are meant to be examples only. There is no doubt in this case that the learned magistrate gave earnest and serious consideration to the purpose of the legislation. However, he did not identify any features associated with the commission of these two offences which suggested a potential for the purpose of the legislation to be undermined. Indeed, he could not have.”

  1. [26]
    In her sentencing remarks the Magistrate apparently accepted the limited nature of the offence saying “… you brought in a 1125 mil bottle of Johnnie Walker, which is more than the prescribed quantity type for the area. You brought it in for your aunt.”  There was no indicia of any commercial quantity or purpose. Her Honour referred to the clear signage and took account that this was the appellant’s third conviction of the type. Her Honour also acknowledged the appellant was unemployed, but added:

“…I have considered the case of Callope that has been raised before me. And I’m also aware of the principles outlined in Veen (No. 1) and Veen (No.2) High Court decisions in relation to punishing persons for previous offences. And, of course, I take into account those provisions. …

Bringing in alcohol like spirits affects the entire community. It causes a great deal of problems in the community. This courthouse, this police station, as I say, is built on the problems that alcohol causes in this community – problems of violence, domestic violence – and it affects the children. If you want to drink – if you aunt wants to drink, Gordonvale is 20 minutes down the road. You have a car. You could have easily said, “Look, I’ll take you to the pub. You can drink at the pub.”  That is quite legal for her to hop in the car, go 20 minute down the road and she can drink as much Johnnie Walker as she wants. What she can’t do is drink Johnnie Walker in this community where the children have a right to grow up safe and without the threat of alcohol-induced violence into the community, which is really one of the fundamental reasons of why this is an offence as it is. You’re allowed to bring in, as I say, one carton of mid-strength beer or one bottle of wine, not a 1125 bottle of Johnnie Walker, which is a fairly significant amount of alcohol.

…

I have reduced the penalty I otherwise would have imposed given your early plea and the effect it will have on you and your family. But, in my view, it is important to indicate to persons like yourself, who bring in alcohol like this for other persons, to indicate that there is going to be a deterrent sentence imposed to you and to the rest of the community.”

  1. [27]
    Whilst the circumstances of the offending here elevate the need for personal and general deterrence, those considerations ought not overwhelm other relevant considerations.
  1. [28]
    It seems to me that the sentencing magistrate has elevated the matter well beyond the circumstances before her, and sought to use this matter as an example to others in response to a perceived whole-of-community problem. The sentencing magistrate placed too much weight on general deterrence without giving due regard to the personal circumstances of the appellant, the nature of the offence in the circumstances, previous convictions and her capacity to pay on her carer’s allowance of $800 per fortnight.[4]This has resulted in an excessive fine, which is obviously beyond the appellant’s capacity to pay, and has little or no deterrent effect.[5]There is no commercial element in the circumstances of this case.
  1. [29]
    Whilst it was clearly appropriate to punish the appellant by imposing a fine it ought to have been in the upper end of the range of $200 to $300.

Disqualification

  1. [30]
    The appellant argues that the disqualification of her licence was manifestly excessive and an inappropriate exercise of the Court’s sentencing discretion without evidence of vehicular use in prior offending and unjustifiable hardship.
  1. [31]
    The Court has a general discretion to disqualify a person from driving pursuant to s 187(1) of the Penalties and Sentences Act 1992 (Qld), which provides:

Disqualification from holding Queensland driver licence

(1) If—

(a) an offender is convicted of an offence in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender; and

(b) the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a Queensland driver licence;

the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a Queensland driver licence.

  1. [32]
    It is not an issue between the parties that the offence was committed in connection with or arising out of the operation of a motor vehicle. Put simply, the appellant was caught carrying the prohibited liquor by car.
  1. [33]
    The question is whether, having regard to the nature or circumstances of the offence, it is in the interests of justice that the appellant be disqualified from driving for three months.
  1. [34]
    The appellant’s representative made submissions that a disqualification was not appropriate in the circumstances of the case, as distinct from “… the more serious type of offending [of] people that are doing grog running, that are profiteering from this type of behaviour and that are actually providing alcohol to a large number of people within the community.”[6]It was further submitted that the appellant required the use of a vehicle in her role as mother and carer for transport to and from the business centre of Gordonvale and for shopping. It was submitted that a disqualification would, in the circumstances, impose significant hardship on the appellant and her family if her driver’s licence was disqualified. There was no challenge or basis to challenge these submissions.
  1. [35]
    In the course of sentencing Her Honour said:

And the sentence that you will be given today is in relation to the offence that I have before me. But I do not need to take into account that while loss of a licence will have a significant impact on your life, I did give you the opportunity today in Court to do a course with Gindaja, and I did indicate to you that should you do that course learning about the effects of alcohol on the family, I would not take your licence. But you have indicated you would not be prepared to do that course.

…

You are disqualified from holding or obtaining a drivers licence for a period of three months from today, conviction recorded. In reaching the disqualification period, I have taken into account the effect that losing your licence will have on you.”

  1. [36]
    To better understand what Her Honour meant by the opportunity she gave the appellant to undertake the “course with Gindaja” and avoid the disqualification, I had regard to the transcript of the hearing as follows:

BENCH:   This courthouse, this police station, is all built on grog. It’s all built on the unhappiness that grog brings into this community. Before I start criminal court, I do the domestic violences. Always, generally, kids involved. It’s always grog. Always. Especially something like Johnnie Walker causes so much misery in this community and the people here deserve better and the kids here deserve better. So I’m going to give you the choice. If I proceed with it today, you will lose your licence, or you can go and do this. I will adjourn it. You can go and do this program at Gindaja. If they come back and say that you’ve done a good job, I’ll take that into account in sentencing and I’m unlikely to – you’re unlikely to lose your licence in those circumstances. What do you want to do?  Do you want to do the program - - -

…

BENCH:  - - - and adjourn it?  You want to do the program and adjourn it. All right.

…

BENCH:  Yes. Because if you come back and you haven’t done the program, I mean, I certainly – if we were going to proceed today without that program, we’d definitely take your licence away for a reasonable period of time. I understand your family needs it, but I want you to understand just how seriously this grog affects your family, your community, and that’s why I’d like you to do this program. Are you prepared to do the program?  I mean, I don’t want you to waste your time, waste my time, everybody’s time by saying you will and not.

  1. [37]
    It remains unclear to me how the proposed course regarding the links between alcohol and family was relevant to the appellant’s offending behaviour, and even less, how it was relevant to the imposition of disqualification.
  1. [38]
    The nature and circumstances of the offending is largely set out earlier in my discussion. No evidence was placed before the Court about the use of a vehicle by her in the commission of the prior offences. Her Honour clearly acknowledged that the imposition would have a “significant impact”on the appellant’s life.The appellant is a mother of three children aged 5 to 11 years in her care and also the carer of her mother-in-law. Her licence was needed to travel from the community to buy food in Gordonvale. The nature and circumstances of the offending were relatively minor and the use of the vehicle was merely incidental.
  1. [39]
    In my view neither the nature of the offence nor the circumstances of its commission warranted, in the interests of justice, for her licence to be disqualified.

Manifestly Excessive

  1. [40]
    For these reasons, in my respectful view, the sentencing magistrate erred in exercising the sentencing discretion by acting upon a wrong principle; allowing erroneous or irrelevant matters to guide or affect her; and failing to take into account some material considerations relevant to the nature and circumstances of the appellant’s offending.
  1. [41]
    I therefore allow the appeal against sentence.

Re-sentence

  1. [42]
    In those circumstances, this Court is required to allow the appeal and to re-exercise the sentencing discretion. The difficulty now is that the appellant has served the three month period of disqualification from driving with the attendant hardship.[7]In the special circumstances which now present themselves it seems to me that, whilst a fine alone of $275 would have been appropriate, it is just and appropriate that no further punishment be imposed.

Order

  1. [43]
    I allow the appeal, set aside the orders made by the Magistrates Court and order that the appellant be convicted but not further punished.

Judge Dean P. Morzone QC

Footnotes

[1] Transcript Submissions, page 1-3, point 5

[2] (1936) 55 CLR 499 at 504 and 505

[3] House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519

[4] Transcript Submissions 1-3, point 25

[5] Fourmile v Queensland Police Service [2016] QDC 182

[6] Transcript Submissions, page 1-7, lines 4-6

[7] Cf. Kumar v Garvey [2010] QDC 249

Close

Editorial Notes

  • Published Case Name:

    Thimble v Queensland Police Service

  • Shortened Case Name:

    Thimble v Queensland Police Service

  • MNC:

    [2016] QDC 190

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    02 Aug 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 C.L.R 170
2 citations
Jump To
Cite 1 - (1981) 148 C.L.R 170
Cite 2 - (1981) 148 C.L.R 170
Fourmile v Queensland Police Service [2016] QDC 182
2 citations
Jump To
Cite 1 - [2016] QDC 182
Cite 2 - [2016] QDC 182
House v The King (1936) 55 CLR 499
3 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
Kumar v Garvey [2010] QDC 249
1 citation
Jump To
Cite 1 - [2010] QDC 249
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513

Cases Citing

Case NameFull CitationFrequency
Noble v Queensland Police Service [2016] QDC 2953 citations
1

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