Bulmer v Queensland Police Service
[2016] QDC 197
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- Unreported Judgment
- Bulmer v Queensland Police Service[2016] QDC 197
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Bulmer v Queensland Police Service[2016] QDC 197
Bulmer v Queensland Police Service[2016] QDC 197
DISTRICT COURT OF QUEENSLAND
CITATION: | Bulmer v Queensland Police Service [2016] QDC 197 |
PARTIES: | NULYSSAH POLLY BETHEL ANN BULMER (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: D78/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Yarrabah |
DELIVERED ON: | 5 August 2016 |
DELIVERED AT: | Cairns |
HEARING DATE: | 5 August 2016 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
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 R v Ly [1995] QCA 139 R v Lui [2009] QCA 366 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. Trevino for the appellant M. Howard for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant The Office of the Director of Public Prosecutions for the respondent |
- [1]On 11 May 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 $1500 with a conviction recorded and disqualified from driving for six months.
- [2]The appellant now appeals her sentence on the ground that it is manifestly excessive. At the outset of the hearing, the respondent’s counsel properly conceded that the magistrate erred in law by proceeding on the incorrect maximum penalty, which warranted a re-sentence.
- [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 re-sentencing considerations.
Background
- [4]On 1 April 2016 the appellant was intercepted by police as she drove in Yarrabah and was found to be carrying:
- a 700ml bottle of vodka;
- a 700ml bottle of bourbon;
- two 750ml bottles of tawny port; and
- a 24-pack of 375ml bourbon and cola cans.
- [5]During questioning at the scene she admitted that she owned the alcohol and was aware of the relevant liquor restrictions.
- [6]Yarrabah has an Alcohol Management Plan 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.
- [7]By a declaration under section 173H of the Liquor Act 1992 (Qld), the type and maximum amount of alcohol a person can carry in the restricted area is limited to: 11.25 litres (1 x 30 can carton) of light or 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.
- [8]The offence arises under section 168B of the Liquor Act 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.
- [9]The maximum penalties for possessing illegal alcohol in the restricted area are:
- (a)for a first offence – 375 penalty units (then $43,000);
- (b)for a second offence – 525 penalty units (then $61,000) or 6 months imprisonment;
- (c)for a third or subsequent offence – 750 penalty units (currently $85,000) or 18 months imprisonment.
- [10]The appellant was 21 years old at the time of the offence and 22 years old at sentence.
- [11]The appellant had three previous convictions for the same offence. Those offences all occurred in the Yarrabah district. As to the penalties imposed for that offending: on 2 October 2013 she was placed on a recognisance with no conviction recorded; on 11 December 2013 she was fined the sum of $50 with no conviction recorded, and; on 8 January 2013 she was again placed on a recognisance with no conviction recorded.
- [12]The appellant was fined $1500 with a conviction recorded and disqualified from driving for six months. By the time of this appeal hearing she has served about three months of the disqualification period.
Grounds of Appeal
- [13]The appellant relies upon three grounds to argue that the magistrate erred in law and that the sentence was manifestly excessive, namely:
- The magistrate failed to take into account the financial circumstances of the appellant and the nature of the burden that payment of the fine would impose on the appellant as was required by section 48 of the Penalties and Sentences Act 1992 (Qld);
- In imposing a disqualification from holding a licence, the magistrate failed to have regard to section 187(1)(b) of the Penalties and Sentences Act, that is, the magistrate failed to consider why it would be in the interests of justice that such a disqualification be imposed; and
- The magistrate proceeded on a factual basis which was not disclosed to the parties and she failed to provide the parties with an opportunity to be heard.
Appeal against Sentence
- [14]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]
- [15]
"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."
- [16]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]
Procedural Fairness
- [17]The appellant asserts that the magistrate proceeded on a factual basis unknown to the parties and that no opportunity was provided to the parties to be heard on those matters. This ground was identified in the respondent’s outline of argument and relied upon by the appellant at the appeal hearing.
- [18]During the course of the sentencing remarks Her Honour said:
“You used your drivers licence to bring in this large quantity of liquor into the area. You could’ve brought in one bottle of wine unfortified or one carton of mid-strength or light beer to take to the party but instead you brought in a large quantity of alcohol and that type of alcohol is something that causes a great deal of problems in the community. That’s why there are alcohol restriction in the community, because parties like this tend to result in multiple applications for domestic violence before my court, generally violence which involves children, the children in this community deserve better, the mothers deserve better, the people deserve better and that’s why there are the liquor restrictions here. In fact, you could say that the courthouse here, the police here are [indistinct] the misery that grog brings into your community and using your drivers licence to bring in large quantities of alcohol for other people to consume at parties is something to which, in my view, a deterrent effect should be imposed and that is reinforced by the legislation which says that if you get to a third conviction the penalties increase.”[4]
- [19]In R v Lui [2009] QCA 366, Fraser JA said at [15]:
“Furthermore, the respondent was right to concede that the sentencing judge failed to afford procedural fairness to the applicant. Many decisions, including R v Cunningham [2005] QCA 321 at pages 5 – 6, R v Kitson [2008] QCA 86 at [20] – [24], and cases there cited, support the proposition that, where a matter is considered by the sentencing judge to be an important consideration in the formulation of a just sentence and it cannot reasonably be assumed that the parties appreciate that it might be taken into account, it should be communicated to the parties so that they might have an opportunity to be heard about it. In R v Downie and Dandy [1998] 2 VR 517, the Victorian Court of Appeal allowed an appeal on the precise ground advanced by the applicant, that the sentencing judge had treated local prevalence of the crime as a major factor in the sentencing disposition without first giving the parties an opportunity to be heard on the matter. In remarks which are apposite to this application, Callaway JA, with whose reasons Phillips CJ and Batt JA agreed, said, at 522 – 523:
"... the more informal the procedure by which prevalence is, the greater the need for the observance of procedural fairness. For there is all the more risk that a first impression, even a first impression that is strongly held by the sentencing judge, will be shown to be wrong if counsel is given an opportunity to make submissions, produce statistics or adduce other evidence or material. Compare Smart v R. at 1. A judge's belief does not exonerate him or her from the duty of procedural fairness, for he or she may be mistaken. Even knowledge does not absolve the judge from the duty to observe the audi alteram partem rule, for its observance conduces to acceptance on the part of both the prisoner and the public that justice has not only been done but has also been seen to be done. The idea is not novel. As Fortescue J. said in Dr. Bentley's Case (1723) 1 Stra. 557 at 567; 93 E.R. 698 at 704, it was observed by the Creator in the first garden of Eden.
...
Even if [the offence in R v Downie and Dandy] is locally prevalent, the applicants should have been given an opportunity by their counsel to argue that that was not so or that it should not result in a more severe sentence.
In reaching that conclusion, I intend no departure from what was said by Winneke P., in whose judgment Charles J.A. and Hedigan A.J.A. concurred, in R. v. Li [1998] 1 V.R. 637. His Honour said at 643:
'[I]t is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise... . Procedural fairness requires no less. [Emphasis added.]'
The words I have italicised are there to remind us that a judge does not have to invite submissions about such matters as the prevalence of armed robbery or the need for general deterrence in relation to drug trafficking. Even local prevalence, and the prevalence relevant to sentencing is often local, may be a matter of notoriety: for example, drunkenness in a country town or vandalism in a particular neighbourhood. In all such cases the applicant or his or her counsel should know without being told that there is an adverse factor that is likely to be taken into account."
- [20]There is undoubtedly a prevalence of alcohol-fuelled violence and disruption in the local restricted area, which may be a matter of notoriety. So much is clear from the mischief behind the Alcohol Management Plan and Liquor Act provisions.[5]However, Her Honour’s remarks sought to equate the broader and whole-of-community problems as arising from “that type of alcohol”[6] and “parties like this”[7] in the absence of the nature and extent of the proposed 21st birthday party or any causative indicia of those matters and the problems and misery Her Honour relied upon. Such broad sweeping statements may well have been shown to be wrong if counsel was given an opportunity to make submissions, produce statistics or adduce other evidence or material.
- [21]It seems to me that the magistrate erred in law, for want of providing procedural fairness, which constitutes a vitiating error for the purposes of House v The King.
Fine
- [22]The appellant argues that the magistrate failed to take into account the financial circumstances of the appellant and the nature of the burden that payment of the fine would impose on the appellant.
- [23]The appellant’s counsel properly submitted that a deterrent penalty was called for, having regard to the fact that this was the appellant’s fourth offence. However, it is submitted that the size of the fine here was overly burdensome having regard to what is known about the appellant’s financial circumstances. Further, the disqualification of her licence for six months had the potential to impact adversely upon her employment and thus her capacity to pay the fine imposed.
- [24]Section 48 of the Penalties and Sentences Act requires the court in determining the amount of the fine and the way in which it is to be paid, to have regard to the appellant’s financial circumstances and any burden a fine may have on her.
- [25]In her sentencing remarks the magistrate apparently referred to the nature and quantity of alcohol subject of the offence. It was consistent with the stated intent to supply a 21st birthday party.
- [26]The appellant was a young woman of 21 years of age. The alcohol was purchased for a 21st birthday party. She was engaged in a traineeship with the Yarrabah Council earning approximately $1200 per fortnight. She is single with no dependents and was living with her family. She lived at Back Beach Road and worked at the mission (that is, the township) and there is no public transport to get in and out for work. She therefore required her driver’s licence to “get from one end of the community to her job…”[8]
- [27]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. She allowed the element of general deterrence to overwhelm other considerations without giving due regard to the personal circumstances of the appellant. This has resulted in an excessive fine, which is obviously beyond the appellant’s capacity to pay, and has little or no deterrent effect.[9]There is no commercial element in the circumstances of this case.
- [28]Whilst it was clearly appropriate to punish the appellant by imposing a fine it ought to have been in the middle to lower end of the range of $300 to $500.
Disqualification
- [29]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.
- [30]The Court has a general discretion to disqualify a person from driving pursuant to section 187(1) of the Penalties and Sentences Act, 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.
- [31]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.
- [32]The question is whether, having regard to the nature and circumstances of the offence, it is in the interests of justice that the appellant be disqualified from driving for three months.
- [33]In R v Ly [1995] QCA 139 at page 6 Macrossan CJ said in respect of the exercise of the discretion under s 187(1) of the Act:
“Although the discretion which arises is a broad one, it can be accepted that the disqualification, whilst it will operate as an additional penalty is not meant to be simply a gratuitous addition to other available punishments. There should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term. It must, in the relevant sense, be grounded in the act of driving and there will usually be detectable some abuse of the privilege of driving or of the opportunity taken to drive.”
- [34]The exercise of the direction called for by the provision was more recently considered in R v Osborne [2014] QCA 29 where Henry J (whom Holmes JA and McMeekin J agreed) said at [56] to [59]:[10]
[56] Section 187(1) is structured so that those considerations relate expressly to the decision that an offender should be disqualified. They may by implication also inform the decision as to the duration of the disqualification because of the obvious interrelationship between the two decisions. It may for instance be in the interests of justice to disqualify an offender if the disqualification period is to be for two years but not if it is to be for five years.
[57]However, the discretion arising under s 187(1) as to the period of disqualification is broad and not expressed as being confined solely to “the nature of the offence, or to the circumstances in which it was committed.” Other considerations which have been regarded as relevant to that discretion include:
- the need for protection of the public from persons who create danger on the road, particularly those with a pattern of doing so;
- the consequences of the disqualification upon the offender’s future employment prospects;
- the risk that the disqualification period may create a disincentive to rehabilitation on release from custody;
- the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.
[58]As to the latter consideration, in R v Nhu Ly Macrossan CJ stressed the desirability of the disqualification serving some purpose other than that served by other available punishments: …
[59]Section 9(1)(a) of the Penalties and Sentences Act 1992 (Qld) provides in summary that the purposes of sentencing are punishment, rehabilitation, deterrence, denunciation and community protection. It follows that the observations of Macrossan CJ ought not be read as indicating that an order disqualifying an offender from holding or obtaining a driver’s licence may not serve the legitimate purpose of punishing the offender. However where the duration of a disqualification order exceeds what is necessary for the other purposes of sentencing, care must be taken to ensure its duration does not give rise to a punishment which is unjust overall.
- [35]It is not clear how the sentencing magistrate reached the result embodied in the disqualification orders. In my view the defendant’s driving was merely incidental to the offence, there was no evidence of its relevance to past offending and it cannot be said to involve an abuse of the privilege of driving. I accept the appellant’s submission that the disqualification imposed here is a gratuitous addition to the substantive penalty imposed for the offence.
- [36]In my view neither the nature of the offence nor the circumstances of its commission warranted, in the interests of justice, for the appellant’s licence to be disqualified. I am bound to conclude that the result, in my respectful opinion, was unreasonable or plainly unjust.
Manifestly Excessive
- [37]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 provide the parties an opportunity to be heard.
- [38]I therefore allow the appeal against sentence.
Re-sentence
- [39]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 three months of the disqualification order with the attendant hardship.[11]In the special circumstances which now present themselves it seems to me that, whilst a fine alone of about $350 would have been appropriate, it is just and appropriate that no further punishment be imposed.
Order
- [40]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]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
[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 Sentencing Remarks, p. 2, lines 10-25
[5]Callope v Senior Constable B Elsley (Unreported, Qld District Court, White DCJ, Cairns, 8 March 2005)
[6]Transcript Sentencing Remarks, p. 2, line 14
[7]Transcript Sentencing Remarks, p. 2, line 16
[8]Transcript Submissions, p. 1-1, lines 12-13
[9]Fourmile v Queensland Police Service [2016] QDC 182
[10]Footnotes omitted
[11]Cf. Kumar v Garvey [2010] QDC 249