Nixon v Gold Coast Boats Pty Ltd
[2017] QDC 246
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- Unreported Judgment
- Appeal Determined (QCA)
- Nixon v Gold Coast Boats Pty Ltd[2017] QDC 246
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Nixon v Gold Coast Boats Pty Ltd[2017] QDC 246
Nixon v Gold Coast Boats Pty Ltd[2017] QDC 246
DISTRICT COURT OF QUEENSLAND
CITATION: | Nixon v Gold Coast Boats Pty Ltd [2017] QDC 246 |
PARTIES: | MANDY-LOU NIXON (appellant) v GOLD COAST BOATS PTY LTD (respondent) |
FILE NO: | 83/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 3 October 2017 |
DELIVERED AT: | Southport |
HEARING DATE: | 21 September 2017 |
JUDGE: | Kent QC DCJ |
ORDER: | The appeal is allowed and the stay imposed below is set aside. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – OTHER CASES – where the respondent allegedly committed 3 offences under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 – where the Acting Magistrate concluded that the prosecution was brought out of time and imposed a stay – whether the prosecution was brought out of time – whether the stay should be set aside Crimes Act 1914 (Cth), s 3, s 4B(2A), s 4B(2), s 4B(3), s 15B, s 15B(1A) Justices Act 1886 (Qld), s 222, s 225 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Inco Ships Pty Ltd v Barber [2009] TASSC 55, considered R v Rose [2009] QCA 83; [2010] 1 Qd R 87, cited |
COUNSEL: | S Harburg (sol) for the appellant B Strangman for the respondent |
SOLICITORS: | Commonwealth Director of Public Prosecutions for the appellant Parley Legal for the respondent |
Nature of the appeal
- [1]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against an order by an Acting Magistrate on 6 March 2017, whereby proceedings on the appellant's complaint were permanently stayed. The complaint and summons were sworn on 2 February 2017. Three offences were alleged contrary to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. The offences were alleged to have been committed on 1 February 2016. Thus, the proceedings were commenced one year and two days after the offences were alleged to have taken place.
- [2]The point taken by the respondent in the court below was that the proceedings were out of time, a conclusion that was accepted by the Acting Magistrate. The point to be determined on this appeal is the correctness of this conclusion. This involves the interaction of subsections 4B(3) and s 15B(1A)(a) of the Crimes Act 1914 (Cth).
Background
- [3] Having been filed, the complaint and summons were returnable to the Southport Magistrates Court on 6 March 2017. The respondent appeared with legal representation and applied successfully for the stay.
- [4]The respondent argued at first instance that the charges carried a maximum penalty of 60 penalty units and accordingly had been commenced out of time pursuant to s 15B, which provides for commencement of such proceedings within one year of the commission of the offence. The appellant's counsel at first instance submitted that 4B(3) applied to increase the applicable maximum penalty for the offences to 300 penalty units, which in turn engaged a separate subsection of s 15B with the effect that the proceedings were able to be commenced at any time.
The appellant's submissions on appeal
- [5]It is correctly submitted that on appeal the court may confirm, set aside or vary the appealed order, or make any other order that the court considers just.[1]
- [6] The grant of a stay is a discretionary remedy. The appellant refers to the following well-known passage from House v The King (1936) 55 CLR 499:[2]
'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the 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 extraneous 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' (emphasis added)
- [7]What the appellant contends is that, although it manifests in a wrongful exercise of a discretion, in fact the error in this case is a reasonably clear cut and precise error of law (i.e. a wrong principle), that is, that the statutory provisions were wrongly construed in accepting the respondent's argument at first instance.
Statutory framework
- [8]As to penalties, section 4B(3) of the Crimes Act states:
'413 Pecuniary penalties—natural persons and bodies corporate
...
- (3)Where a body corporate is convicted of an offence against a law of the Commonwealth, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.'
- [9]This is an example of a not uncommon statutory provision whereby the maximum penalty is multiplied in the case of a body corporate. The idea behind such provisions may possibly be that some other remedies of the criminal law, such as imprisonment, are not available in the case of a corporation. It is also true that many, though not all, corporations have greater assets than most natural persons; such assets are very often possessed for commercial purposes, which may have been involved in the motivation or execution of the actions the subject of the relevant offence. This might also justify the uplift.
- [10]As to time for commencement of prosecutions, section 15B(1A) of the Crimes Act states:
'15B Time for commencement of prosecutions
…
(1A) A prosecution of a body corporate for an offence against any law of the Commonwealth may be commenced as follows:
- (a)if the maximum penalty which may be imposed for the offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction—at any time;
- (b)in any other ease—at any time within one year after the commission of the offence.'
Findings
- [11]The appellant submits that the Acting Magistrate, in making the relevant order, made a number of findings:
- (a)Section 4B(3) is a "discretionary provision" which takes effect only after a body corporate is convicted of an offence, not at the time when the court's jurisdiction is to be determined.[3]
- (b)Accordingly, the applicable maximum penalty in respect of each offence for the purposes of applying s 15B(1A) was 60 penalty units.[4]
- (c)There is a distinction to be made between the words "pecuniary penalty" in s 4B(3) and "fine" expressed as a number of penalty units in s 15B(1A).[5]
- (d)Section 15B(1A)(a) did not apply and thus the default position was a limitation of one year and the prosecution was commenced one day out of time.[6]
Appellant's response — not a discretion
- [12]What the appellant argues is that, contrary to the Acting Magistrate's findings, s 4B(3) does not in truth involve a discretion. The maximum penalty for an offence is fixed by the legislature as the section sets out. For a body corporate, where a contrary intention (in the relevant law of the Commonwealth) does not exist, s 4B(3) applies automatically to increase the maximum fine to five times that which is applicable for a natural person.
"Penalty unit"
- [13]As to the meaning of "penalty unit", this is simply a unit of measurement to calculate the amount of a fine or pecuniary penalty. "Penalty' includes a fine: s 4AB(4). "Fine" includes a pecuniary penalty: s 3(2). The differing terminology between pecuniary penalty and fine is, in effect, a distinction without a difference and does not have the effect that s 15B(1A)(a) does not apply to maximum penalties which have increased pursuant to s 4B(3).
Timing of operation of s 4B(3)
- [14]The appellant submits it is not correct, as the respondent contends, to focus on the words, 'where a body corporate is convicted of an offence ...' at the beginning of s 4B(3) to conclude that Parliament intended the section only to operate after conviction rather than for the anterior purpose of calculating the limitation period, i.e. from the time of filing the complainant's settlements. The appellant submits that the Acting Magistrate's interpretation of s 4B(3) incorrectly creates a multi-step process to determine the maximum penalty (and, therefore, necessarily the limitation period) with the effect that different maximum penalties (and therefore differing limitation periods) apply to bodies corporate at different times (i.e. at time of filing as opposed to after conviction).
Inco Ships
- [15]The appellant submits that the construction for which she contends was, in effect, accepted by Blow 1 in Inco Ships Ply Ltd v Barber.[7] At [6]-[8], Blow J stated:
‘[6] In my view the submissions of counsel for the applicant as to s 4B(3) were misconceived. His submissions suggested that a magistrate thinking of fining a corporation has to go through a two-stage process whereby (I) he or she must first decide whether the case is so serious that he or she should proceed on the basis that the maximum penalty is five times the ordinary maximum, and (2) after deciding which maximum penalty to use as a starting point, he or she must then determine the appropriate fine. However 1 do not think there is anything In the language of s 4B(3) to warrant such an approach. When that subsection applies, all that it does is to make the maximum fine for a corporation five times the maximum fine for a natural person. There is nothing in the language of s 48(3) to suggest that Parliament intended sentencing magistrates and judges to adopt a two-stage approach when sentencing corporate offenders. Such an approach would be cumbersome, would serve no purpose, and could have anomalous results. For example, magistrates sentencing corporations for similar offences might impose very different fines as the result of differing preliminary decisions as to whether their cases fell on the "serious" side or the "not so serious" side of an undefined borderline. In my view Parliament intended to promote compliance with Commonwealth laws by large corporations simply by exposing them to fines up to five times those faced by individuals.
[7] Counsel have been unable to find anything relevant to the proper interpretation of s 4B(3) in the second reading speech relating to the Crimes Legislation Amendment Bill 1987, by which that subsection was introduced. However the explanatory memorandum relating to that Bill contains the following (at 11):
"Subsection (3) provides for a similar scheme in respect of offences committed by bodies corporate. It provides that bodies corporate are subject to pecuniary penalties equal to five times the amount applicable to natural persons convicted of the same offence, irrespective of whether the pecuniary penalty for the natural person is found in the law creating the indictable offence or whether the pecuniary penalty is derived pursuant to proposed subsection 4B(2)."
[8] In my view that passage confirms that the meaning of s 4B(3) is the ordinary meaning conveyed by its text, taking into account its context in the Crimes Act and the purposes or objects underlying the Crimes Act. I am therefore taking that passage into account pursuant to the Acts Interpretation Act 1901 (Cth), s 15AB(1)(a).'
- [16]Thus, the appellant submits the operation of s 4B(3) in the present case necessarily dictated a maximum penalty for each offence of 300 penalty units. No discretion was engaged, either as to the maximum penalty or the limitation period. Therefore, prosecution for each charge could be commenced at any time. This conclusion being reached, the Acting Magistrate's decision was incorrect and the stay should be set aside.
The respondent's submissions
- [17]The respondent acknowledges that the question is one of statutory construction. It is submitted that on the proper construction, the offences carry a maximum penalty of 60 penalty units each and thus on the operation of the above provisions, the prosecution was commenced out of lime.
- [18]The respondent points to the introductory words of s 4B(3), 'where a body corporate is convicted... ' and submits that these words are clear. The increase in penalty, and thus the gateway to a longer limitation period, does not apply until conviction.
- [19]The respondent also points to the words, 'the court may, if the contrary intention does not appear and the court thinks fit...’ It is submitted that this indicates a discretion of the court which, so the submission goes, is a discretion as to whether to increase the pecuniary penalty amount. The appellant submits on this question that the discretion conferred by these words is simply consistent with being a normal sentencing discretion, i.e. the court is not required to impose the statutory maximum (as increased by operation of s 4B(3)).
- [20] The respondent also submits that there is a distinction between "penalty units" and "pecuniary penalty". The relevant parts of the Marine Safety Act refer to penalty units rather than pecuniary penalty.
- [21]The respondent submits that s 4B(3) does not confer a discretion to multiply the maximum number of penalty units provided in a section, rather it confers a discretion to multiply the ultimate pecuniary penalty that would have been imposed on a natural person convicted on the same offence. It is submitted by the respondent that this is an important difference — s 4B(3) potentially increases the pecuniary penalty, not the penalty units. As outlined above, the contrary submission by the appellant is that the distinction in language is a distinction without a practical difference.
- [22] The respondent argues that, where there is doubt as to the construction, relevant extrinsic materials can be referred to. Reference is made to the explanatory memorandum for the Crimes Legislation Amendment Bill 1992 whereby s 150 took its present form. Counsel for the respondent emphasises the words 'a prosecution may be commenced at any time where the maximum penalty for the offence includes a fine of more than 150 penalty units'.
- [23] However, counsel for the appellant emphasises the immediately following words in the explanatory memorandum:
'The amount of 150 penalty units derives from the formulae ins 4B(2) of the Act which converts a term of imprisonment into a pecuniary penalty and then by multiplying by five in accordance with the provision in subsection 4B(3) for pecuniary penalties imposed on corporations. Where the penalty does not exceed 150 penalty units the prosecution may be commenced at any time within one year after the commission of the offence.'
- [24]In other words, counsel for the appellant points to the relevant passage of the explanatory memorandum as indicating a legislative intention in subsection 4B(3) to convert a term of imprisonment into a pecuniary (i.e. non-custodial, such as is practical for a corporation) penalty and then to multiply it by five for pecuniary penalties imposed on corporations. This, so the argument goes, is a very clear indication of the relevant legislative intention.
- [25] The respondent submits that little guidance is gained from Inco Ships Fly Ltd v Barber (supra) in that the question there was the actual penalty imposed rather than the interaction of that concept with the limitation period.
- [26]The respondent also pointed to the well-known principle that in cases of statutory construction of criminal statutes, ambiguity will normally be resolved in favour of the defendant.[8]
Consideration
- [27]In my view, the appellant's arguments should be accepted. It is correct to say that s 4B(3) contains language that is not particularly helpful in the present discussion. However, the words, 'where a body corporate is convicted of an offence' in my conclusion are simply intended to convey the obvious proposition that no penalty is imposed on a body corporate unless it is actually convicted (rather than delaying resolution of the question until after conclusion of a trial). Similarly, the words 'if the contrary intention does not appear' simply provide for a situation where specific pieces of Commonwealth legislation may indeed provide for a different rule. The operation of s 4B(3) is, in my view, confined to those cases where the individual pieces of legislation may not have set out a penalty regime for a corporate defendant.
- [28]The words 'and the court thinks fit', similarly, in my view, are an expression of the normal concept that the sentencing court has a discretion as to the penalty to be imposed. It is not, in my view, reflective of a residuary discretion as to whether the statutory maximum is brought into play.
Sections 4B(2) and 4B(2A)
- [29]It is noteworthy that the same phrases are used in s 4B(2) as to conversion of imprisonment to a pecuniary penalty calculated by reference to penalty units and a conversion formula; and also in s 4B(2A) as to a conversion for an offence carrying life imprisonment. The language of the section is consistent and in my view not apt to have intended a two stage process. Rather the idea is to provide machinery for establishing the penalty for corporations if it has not otherwise been done.
Explanatory memorandum
- [30] My views on these topics are fortified by the relevant passage from the explanatory memorandum. In my view, it expresses with some clarity the intention that s 4B(3) multiplies the pecuniary penalty by five. There is no indication that there was an intention to retain a residuary discretion in a sentencing court as to whether that exercise should take place.
Certainty
- [31]Further, if the respondent's arguments in this regard were correct, it is completely unclear upon consideration of what factors the court would bring the uplift into play. There are certainly no guidelines indicated in the legislation for a sentencing court to consider a discretion for the five times increase of the penalty limit.
- [32]Another consideration is that a system of criminal proceedings that includes limitation periods must be taken to intend some certainty as to its operation. If the respondent's arguments were accepted, then upon commencing proceedings such as these, neither the prosecution nor the defendant nor, indeed, the court in which the proceedings were filed, would be able to conclude, at the time of filing them, whether they had been commenced within time, because the question of the uplift (and thus the limitation period) would only be resolved:
- after conviction;
- by an exercise of discretion;
- reached by the court without any statutory guidelines as to how such a discretion should be exercised;
in other words, the question of whether proceedings were commenced within time would await a hearing and possible conviction. This is clearly unwieldy, imprecise and thus an unlikely construction. It might require, for example, a hearing on the merits where one was not in truth required. In my view, analysis of the matter in this way supports the acceptance of the appellant's arguments over those of the respondent.
Inco Ships
- [33]Moreover, the appellant's construction, which I favour, is consistent with the analysis of Justice Blow in Inco Ships. I respectfully adopt that analysis, acknowledging, as submitted, that it was in the context of a slightly different point to be resolved at the end of the day. However, as a matter of principle, in my view it has relevant application.
Conclusion
- [34]It follows from the above discussion that the appellant's arguments should be accepted, the appeal should be allowed and the stay imposed below should be set aside.