Noble v Queensland Police Service
[2016] QDC 295
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- Unreported Judgment
- Noble v Queensland Police Service[2016] QDC 295
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Noble v Queensland Police Service[2016] QDC 295
Noble v Queensland Police Service[2016] QDC 295
DISTRICT COURT OF QUEENSLAND
CITATION: | Noble v Queensland Police Service [2016] QDC 295 |
PARTIES: | DELLA VERONICA NOBLE (appellant) v QUEENLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: D142/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Yarrabah |
DELIVERED ON: | 18 November 2016 |
DELIVERED AT: | Cairns |
HEARING DATE: | 18 November 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 fact and law resulting in excessive sentence – whether sentence manifestly excessive. Legislation Justices Act 1886 (Qld), ss 222, 223(1) & 227 Liquor Act 1992 (Qld), ss 168B & 173H Penalties and Sentences Act 1992 (Qld), ss 48 & 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) Thimble v Queensland Police Service [2016] QDC 190 Bulmer v Queensland Police Service [2016] QDC 197. |
COUNSEL: | J. Sheridan for the appellant C. Capper for the respondent |
SOLICITORS: | The Aboriginal & Torres Strait Islander Legal Service for the appellant QPS Legal Unit for the respondent |
- [1]On 3 August 2016 the appellant pleaded guilty and was sentenced in the Magistrates Court held at Yarrabah of one charge of possession of liquor in a restricted area and was fined $1500 with a conviction recorded.
- [2]The appellant appeals[1]her sentence on the ground that it is manifestly excessive. The respondent filed an outline of argument properly conceding the appeal.
Background
- [3]The appellant was found with about two litres of cask wine in the Yarrabah Township at 9:05 pm on 7 July 2016. She tried to surreptitiously discard the cask wine when intercepted by police, but later admitted that she owned the wine. It was seized and she was charged with the offence.
- [4]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.
- [5]By a declaration under s 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.
- [6]Section 168B of the Liquor Act provides:
(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.
- [7]The maximum penalties for possessing illegal alcohol in the restricted area are for a third or subsequent offence 750 penalty units or 18 months imprisonment.
- [8]The appellant was a 53 year old disability pensioner. She had four previous relevant convictions for the same offence and was fined $75 in 2009, received a good behaviour bond in 2014 and was fined $300 later in 2014 and 2015. However, the prosecution gave the requisite notice and only relied upon the two offences. On this occasion the appellant cooperated with police and admitted ownership of the wine. At sentence, there was considerable doubt about the nature of her disability but the Court accepted that the disabled appellant was unsuitable for community service. There was also confusion about her income and capacity to pay. It is tolerably clear that the appellant received an aggregate fortnightly benefit of $950, from which she paid rent of $250 per fortnight and living expenses.
- [9]The magistrate imposed a $1500 fine and ordered that a conviction be recorded.
Appeal against Sentence
- [10]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.
- [11]
"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."
- [12]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]
- [13]The purpose and guidelines of sentences are those particularised in the Penalties and Sentences Act 1992 (Qld). A 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. In determining the amount of a fine and the way in which it is to be paid, due regard ought to be given in this case to the appellant’s financial circumstances and any burden a fine may have on her.[4]
Fine
- [14]In determining the nature of the sentence and the amount of the fine, Her Honour had regard to the prevalence of the offence and associated problems in the community, that this was the appellant’s “fifth offence”, and the appellant’s “excess capacity” of $420.
- [15]The legislative purpose for imposing alcohol restrictions on certain areas is to minimise alcohol abuse and alcohol-related violence, disturbances and public disorder.[5]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. These were recently discussed in Thimble v Queensland Police Service [2016] QDC 190 and Bulmer v Queensland Police Service [2016] QDC 197. Those decisions were not brought to the magistrates’ attention during the hearing.
- [16]In Thimble, the appellant appealed a fine of $2000, a recorded conviction and disqualification from driving for three months on the ground of manifest excess. In that case the 38 year old appellant had one 1.125 L bottle of Johnny Walker Scotch whisky. She had two previous relevant convictions for the same offence. She was a Yarrabah resident with three children and was also the carer of her mother-in-law. She received a carer’s pension. The appeal was allowed on the ground that the fine and disqualification were manifestly excessive. The appropriate sentence was a fine in upper end of the range of $200 to $300.[6]Since the appellant had already served the three month disqualification period, she was convicted and not further punished.
- [17]Bulmer involved one charge of possession of liquor in a restricted area. The 21 year old appellant had 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. She had three previous convictions for the same offence. She was employed, single and had no dependants. The matter proceeded on a guilty plea and she was fined $1500 with a conviction recorded and disqualified from driving for six months. This appeal was also allowed on the ground that the fine and disqualification were manifestly excessive. The appropriate sentence was a fine of about $350 was appropriate, being in the middle to low end of the range of $300 to $500. By the time of appeal the appellant has served three months of the disqualification. The sentence was set aside and she was convicted and not further punished.
- [18]It seems to me that Her Honour elevated the appellant’s past offending in circumstances where the prosecutor only relied upon two past offences but made no submission of the facts and circumstances. Her Honour’s remarks emphasised considerations of the maximum penalty and whole-of-community alcohol problems but disclosed little about other sentencing considerations, especially the comparatively minor offending and the appellant’s personal circumstances. It is also not clear to me how Her Honour arrived (unassisted) at $420 ‘excess capacity’ of income.
- [19]Whilst it does not appear how the magistrate reached the quantum of the fine of $1500, that result, in my respectful opinion was unreasonable or plainly unjust. The offending was more serious than Thimble but less serious than Bulmer with other distinguishing features including the type and quantity of alcohol intended for personal consumption.
- [20]In my respectful view, the sentencing discretion miscarried. The result was manifestly excessive, and I will allow the appeal.
Re-sentence
- [21]In those circumstances, this court must re-sentence the appellant.
- [22]The appellant’s offending is of a low order having exceeded the restriction in type and a quantity of one litre. This low level offending is to be considered in the context of her criminal history for similar offending. She is now 54, in poor health and disabled. She is dependent upon a disability support pension and has very limited income. If the court was provided with further information about the need for alcohol rehabilitative programs better consideration may have been given to an order for probation.
- [23]Having regard to all that I’ve said above, and to the comparative cases, I think a fine of $300 is just and appropriate.
Order
- [24]For these reasons, I allow the appeal, set aside the orders made by the Magistrates Court on 3 August 2016 to the extent of substituting a fine of $300 in lieu of the fine of $1500.
Judge Dean P. Morzone QC
Footnotes
[1] Justices Act 1886 (Qld), ss 222 & 223.
[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] Penalties and Sentences Act 1992 (Qld), s 48.
[5] Liquor Act 1992 (Qld), s 173F.
[6] Thimble v Queensland Police Service [2016] QDC 190.