Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police
[2017] QDC 27
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- Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police[2017] QDC 27
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Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police[2017] QDC 27
Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police[2017] QDC 27
DISTRICT COURT OF QUEENSLAND
CITATION: | Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27 |
PARTIES: | In 2481 of 2016: SIMON JOHN HICKEY (Appellant) v CHIEF EXECUTIVE OFFICER OF CUSTOMS (Respondent) In 3650 of 2016: SIMON JOHN HICKEY (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | DC No 2481 of 2016 DC No 3650 of 2016 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
DELIVERED ON: | 27 February 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 and 22 February 2017 |
JUDGE: | Bowskill QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – whether the Magistrate erred by refusing to adjourn the trial CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant imported prohibited items into Australia, without permission, and made a false declaration on his incoming passenger card, on two separate occasions – where the appellant was interviewed but not charged on the first occasion, but later charged and proceeded to trial for both sets of offences – where the appellant was fined $8,000 for the first offences and $18,000 for the later offences – whether the Magistrate erred in the exercise of the sentencing discretion – whether the sentence was manifestly excessive Crimes Act 1914 (Cth) ss 16A, 16C, 19B Customs Act 1901 (Cth) ss 233(1)(b), 234(1)(d), 263 Justices Act 1886 (Qld) s 222 Arrowsmith v Micallef [2015] 2 Qd R 208 Cahyadi v R (2007) 168 A Crim R 41 Cameron v The Queen (2002) 209 CLR 339 Chapman v Queensland Police Service [2016] QDC 141 Chief Executive Officer of Customs v Rota Tech Pty Ltd [1999] SASC 64 Gartner v Brennan [2016] WASC 89 GS v R [2016] NSWCCA 266 Mbuzi v Commissioner of Queensland Police [2015] QDC 257 Mill v R (1988) 166 CLR 59 Powell v Camm [2003] QCA 353 R v Alexandroaia (1995) 81 A Crim R 286 R v Lawley [2007] QCA 243 R v Spina [2012] QCA 179 Sali v SPC Ltd (1993) 116 ALR 625 Smith v Ash [2011] 2 Qd R 175 State of Western Australia v Silich (2011) 43 WAR 285 Veen v The Queen (1988) 164 CLR 465 |
COUNSEL: | J Powell for the appellant, on 3 February 2017 E Longbottom for the respondents |
SOLICITORS: | J Mattner for the appellant, on 3 February 2017 Australian Government Solicitor for the respondents Mr Hickey appeared on his own behalf on 22 February 2017 |
Introduction
- [1]Mr Hickey was convicted, following a trial in the Magistrates Court, of the following offences:
- (a)on 10 January 2010:
- (i)importing into Australia, without permission, prohibited imports, namely four cans of pepper spray and five laser pointers, contrary to s 233(1)(b) of the Customs Act 1901 (Cth); and
- (ii)intentionally making a statement in a document, to an officer of Customs, reckless as to the fact that the statement was false in a material particular (falsely stating on his incoming passenger card that he was not bringing into Australia any prohibited imports, when in fact he was, being the cans of pepper spray and the laser pointers), contrary to s 234(1)(d)(i) of the Customs Act; and
- (i)
- (b)on 19 January 2013:
- (i)importing into Australia, without permission, prohibited imports, namely five cans of pepper spray, contrary to s 233(1)(b) of the Customs Act; and
- (ii)intentionally making a statement in a document, to an officer of Customs, reckless as to the fact that the statement was false in a material particular (again, falsely stating on his incoming passenger card that he was not bringing into Australia any prohibited imports, when in fact he was, being the cans of pepper spray), contrary to s 234(1)(d)(i) of the Customs Act.
- (i)
- (a)
- [2]On each of these dates, Mr Hickey arrived at the Gold Coast International Airport, from Malaysia, and on arrival, when his baggage was searched by a Customs officer, was found to have in his possession the items the subject of each importation charge. On each occasion, he had completed an incoming passenger card, declaring that he was not bringing into Australia any prohibited items, which is the subject of the false statement charges. Although he was interviewed in January 2010, and the items were seized, he was not charged with any offence at that time. It was only when he was intercepted, in January 2013, and again found in possession of prohibited items, that charges were laid in respect of both sets of offences.
- [3]The trial, in respect of all four charges, took place on 1 February 2016. The decision was made in writing, on 22 June 2016, convicting Mr Hickey of all charges. A sentencing hearing took place on 28 July 2016. Mr Hickey was fined $8,000 in respect of both the 2010 offences; and $18,000 in respect of both of the 2013 offences. He was also ordered to pay costs of $4,262.20.
- [4]Mr Hickey appeals, under s 222 of the Justices Act 1886, against his conviction of the 2010 offences (but not the 2013 offences), and against the sentence imposed for all offences, as well as the costs order.
- [5]Although the grounds of his appeal against conviction were previously much broader, at the hearing of the appeal, there was only one ground pressed, namely that the learned Magistrate erred by not allowing the application to adjourn the trial, erroneously relying upon a “balance of convenience” test in her reasons.[1]
- [6]Mr Hickey appeals against his sentence and the costs order, on the bases that:
- (a)the Magistrate erred in recording a conviction against the defendant;
- (b)the sentence is manifestly excessive in all the circumstances; and
- (c)the order as to costs is excessive in all the circumstances.[2]
- (a)
Appeal against conviction of the 2010 offences
Magistrate’s reasons for refusing the adjournment
- [7]The trial was set down for 1 February 2016. Mr Hickey appeared for himself on that day, and sought an adjournment at the start of the hearing. The bases on which he sought the adjournment were:
- (a)he had provided the brief of evidence (previously given to him by the prosecution) to a solicitor he had intended to engage, in about October or November 2015; he had subsequently, just before Christmas, tried to contact that solicitor, without success, and been told that the documents he had provided to the solicitor were unable to be found, in order to return them to Mr Hickey;
- (b)late in 2015 the prosecution had applied to adjourn previously scheduled hearing dates, on the basis of witness availability, and on the basis that they were proposing to obtain forensic testing of certain items (presumably the items seized), and he had not yet been provided with any reports;[3]
- (c)Mr Hickey contacted the prosecution on 22 January 2016, asking for a new copy of the brief of evidence, and any reports. The further copy of the brief of evidence, comprising some statements only, was not provided to him until 29 January 2016 (just a few days prior to the trial starting), but no reports had been provided to him; and
- (d)he was not fully prepared for the case as a result.[4]
- (a)
- [8]Mr Hickey also made the point that “the defence hasn’t asked for an adjournment yet”,[5]in contrast to the prosecution, which had sought earlier adjournments. It would appear that Mr Hickey assumed the adjournment would be granted, as he had come to court without any of his own material, or the further copy of the material the prosecution had provided to him.[6]
- [9]The adjournment was opposed by the prosecution, on the basis that Mr Hickey had been given the brief of evidence many months before; the issue concerning the solicitor did not provide a basis to adjourn the hearing; Mr Hickey had been provided with all the reports or other evidence intended to be relied upon by the prosecution; and there were nine witnesses who had travelled from Darwin and Canberra “at Mr Hickey’s insistence” for the trial on 1 February.[7]
- [10]The email of 29 January 2016 from the Australian Government Solicitor to Mr Hickey, which was handed up to the Magistrate, and which appears on the Magistrate Court’s file, confirms that all reports or other evidence to be relied upon by the prosecution had been provided to Mr Hickey.
- [11]Mr Hickey denied that he had insisted on any witnesses being present. He said “the defence will accept the statements made by the Customs guys as true and correct”, saying that those statements bear “very little relevance to my defence that’s going to be presented”. He indicated (in the context of his adjournment application) that he did not require those witnesses for cross-examination, saying “if we can proceed again at a later date with their evidence accepted as fact, then I’m happy to do that”.[8]
- [12]Mr Hickey’s email correspondence with the Australian Government Solicitor on 22 and 27 January 2016 was handed up to the Magistrate (it was not made an exhibit, but appears on the court’s file). Her Honour raised with Mr Hickey one part of his email of 27 January, in which he had indicated that if the entire brief was not provided to him, he would be “asking for another extension”, adding “Lets see how much state government money can be wasted prosecuting such a trivial matter”.[9]
- [13]In the course of hearing the application, the learned Magistrate observed that:
“… the granting or refusal of an application to adjourn requires an exercise of discretion. There are a number of factors that need to be taken into account in exercising that discretion. It’s a balance of convenience test, so I have to weigh the prejudice to you versus the prejudice to the prosecution. The prosecution have raised the fact that a number of the witnesses are involved in active ongoing operations, and, consequently, it has been extremely difficult to coordinate the presence of those witnesses, being nine, one coming from Darwin for today, and one coming from Canberra. So I have to weigh the cost and inconvenience to the Crown of adjourning a matter and weigh the difficulty to you if I refuse an adjournment…”[10]
- [14]After hearing further from Mr Hickey, the learned Magistrate ruled on the application for an adjournment, giving the following reasons:
“… the application to adjourn is opposed by the Australian Government solicitor on the basis that the previous adjournments were a consequence of the difficulty of getting nine prosecution witnesses to Brisbane for a hearing and that a number of the witnesses are involved in active operations, and that two witnesses have travelled from both Darwin and Canberra today for the hearing.
I note that Mr Hickey has submitted that he approached a solicitor in Beenleigh in October to obtain some advice, that solicitor being Mr Ide of Beenleigh. He states in his correspondence to the Australian Government solicitor that Mr Ide had lost the brief and he requested a further copy on Friday the 22nd of January. And for this reason he is seeking an adjournment as he has not obtained legal advice in relation to this matter.
I note that the matter was originally set down for hearing on the 13th of August and a hearing was to proceed on the 16th of October. I note that that hearing date was allocated subject to the availability of prosecution witnesses and that the hearing was adjourned at the request of prosecution on the 16th of October due to the unavailability of witnesses. I also note that on the 16th of November there was a further application to adjourn by prosecution due to the unavailability of interstate witnesses.
I am persuaded that the difficulties faced by Mr Hickey are of his own making. He has failed to obtain legal advice notwithstanding the months afforded to him in which to do so. I note that he was provided with a brief of evidence in August and it is his submission that he approached a solicitor in October 2015.
I am mindful of the cost and expense, and availability of the prosecution witnesses which are in attendance today, and on a balance of convenience test, I am refusing the application to adjourn by Mr Hickey, and the hearing will proceed.”[11]
- [15]In delivering her Honour’s detailed written reasons for decision on 22 June 2016, the learned Magistrate also addressed the adjournment application, and reasons for refusing it, including reference to the email correspondence between Mr Hickey and the Australian Government Solicitor’s office on 22 and 27 January, which had been referred to her Honour in the course of the adjournment application (at [8]). At [10] of the written reasons, her Honour records:
“In weighing the balance of convenience, given the attendance of 9 witnesses including two out of State, and Hickey’s failure to give notice of his application to Customs prior to the commencement of the hearing I refused the application for an adjournment by Mr Hickey. I formed the view that as he had been provided with a copy of the brief in August 2015 that he was not taken by surprise by the material supplied again following his request made at midnight on Friday 22 January 2016 prior to a public holiday. I note that Customs promptly supplied a second copy of the brief to Hickey to enable him to prepare for this hearing.”
- [16]The trial proceeded on 1 February 2016, with each of the prosecution witnesses being called to give their evidence, and being cross-examined by Mr Hickey. Although Mr Hickey had indicated he did not dispute any of the prosecution witnesses’ statements, and time was given to the parties to try to agree a statement of facts before the trial substantively commenced, that was not successful.[12]After the prosecution had closed its case, Mr Hickey was asked if he was going to give evidence, and then had the following exchange with the Magistrate:
“DEFENDANT: I won’t be giving evidence, your Honour, only because it’s been so long ago. I couldn’t be sure – half the time I have trouble at work remembering what I did last week because it’s so busy. But I have got – I did have some pieces of evidence I would have liked to have admitted. I suppose I can’t even describe what they are now, can I, or what they were.
BENCH: There are legal consequences to not giving evidence. You can exercise your right to silence, but it leaves you in the position where the evidence that I’ve heard from the prosecution witnesses is the only evidence that I have heard. So there is no evidence other than the evidence of the prosecution witnesses which I can accept. You can make submissions in relation to the evidence that the prosecution have brought, but you can’t positively state another contention that disputes the evidence of the prosecution witnesses.
DEFENDANT: That’s okay. That’s not – that’s not an important aspect of my case. It’s going to sound stupid, but I’d like to admit this shirt into evidence. It says Hot Tuna, but it wasn’t made by Hot Tuna, it was bought in Asia, same as the evidence that I have prepared and the statements that I have prepared to bring into evidence today, which I’m very disappointed I’m not able to produce. They were such things as a pair of handcuffs, when they were plastic. And it says, “handcuffs: real police handcuffs”, but they weren’t real police handcuffs, of course, anyone can tell the differences – look at them. But it was – it was evidence that – it was clear evidence that there are a lot of counterfeit goods manufactured in Asia that are inappropriately or mislabelled to be more important or not the actual object that they are. I can’t really go down that road now because I don’t have them with me, the only…”[13]
- [17]He later referred to “another thing that I had – I had to bring into evidence”, being “identical laser pointers that are for sale here in Australia on eBay that are less than 1 milliwatt, and they are identical to the ones pictured”.[14]
- [18]Having confirmed that Mr Hickey did not intend to give or call evidence, the Magistrate proceeded to hear both parties’ submissions, and then reserved her decision, which was later delivered, in writing, on 22 June 2016.
- [19]In so far as the 2013 offences are concerned, Customs had retained the five cans of pepper spray, and so these were able to be tendered in evidence,[15]together with a report in relation to the forensic analysis of their contents.[16]The items seized in 2010 had not been retained,[17]but there were tendered in evidence photographs of what was seized,[18]as well as evidence from the Customs officer who searched Mr Hickey’s luggage and located the laser pointers and the pepper sprays (Mr Skandera),[19]and then conducted a recorded interview with Mr Hickey.[20]As it was open to her Honour to do, the Magistrate made findings as to the elements of the 2010 offences, on the basis both of the officer’s evidence of what was seized, and the photographs of the items seized. In relation to the pepper sprays, her Honour found the 2010 photographs depicted cans with the same label and description as the 2013 cans, which had been produced, and forensically tested.[21]
- [20]At the commencement of the written reasons, her Honour noted that Mr Hickey “does not contest the facts alleged by Customs in relation to the importation however a defence of these proceedings is based upon a contention that the items are not prohibited imports and consequently he submits that the information provide[d] to Customs on his incoming passenger cards on 10 January 2010 and 19 January 2013 are not false” (at [2]).
- [21]The learned Magistrate was satisfied, beyond reasonable doubt, on the evidence before her, that the items, in relation to each of the 2010 and the 2013 charges, were prohibited imports.
Appeal against refusal of an adjournment – relevant principles
- [22]A decision not to grant an adjournment is a decision made in the exercise of discretion. On an appeal, this court may not interfere unless an error of the kind identified in House v R (1936) 55 CLR 499 at 504-505 has occurred. It is not enough that this court, on appeal, considers that, if it had been in the position of the Magistrate, it would have taken a different course. It must appear that some error has been made in exercising the discretion.
- [23]In Sali v SPC Ltd (1993) 116 ALR 625 at 629 the High Court reaffirmed the principle that “an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action”. The Court also (at 628 and 632) reaffirmed the proposition that although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party.[22]
- [24]Sali acknowledged a qualification to both principles, in terms that:
“In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.”[23]
- [25]In State of Western Australia v Silich (2011) 43 WAR 285 at [36]-[37] Martin CJ observed, in that regard:
“There is a strong public interest in the timely disposition of all criminal cases, including criminal appeals. In most cases, those who are interested in the final resolution of a criminal case are not limited to the prosecutor and the accused. In addition to the public interest in the final resolution of serious criminal cases such as this, there will often be others with a specific and identifiable interest in the timely conclusion of the proceedings… Public resources provided to the prosecution and the court are also dissipated every time there is a late adjournment. In this sense, the interests of the parties are to be balanced with the effect of the adjournment on ‘court resources and the competing claims by litigants in other cases awaiting hearing’: Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, 844 (Brennan, Deane and McHugh JJ).
While these are important and weighty considerations, they will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused, or an appellant, of the opportunity to present a case which has a real prospect of success…”
- [26]On this appeal, I am concerned, first, with whether or not the Magistrate erred in the exercise of her discretion to refuse the adjournment and, in any event, whether the refusal of the adjournment resulted in any injustice to Mr Hickey.[24]
- [27]For Mr Hickey it is submitted that the refusal of the adjournment denied him a fair trial and resulted in a miscarriage of justice. It was submitted that the Magistrate, in applying a “balance of convenience” test, applied the incorrect test in the context of a criminal proceeding. It was submitted that, beyond enquiring as to how Mr Hickey came to be unprepared for the trial, her Honour failed to inquire as to how his lack of preparedness would prejudice him if the trial were to proceed, including as to whether he wished to seek alternative legal advice.[25]
- [28]In determining this appeal it is important to consider the Magistrate’s reasons overall, and fairly. In this regard, I adopt the following observations by Pritchard J in Gartner v Brennan [2016] WASC 89 at [58], which apply equally in the Queensland context:
“Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate’s reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).”[26]
- [29]I accept that there is some infelicity in the use of the phrase “balance of convenience test” in this context. It is not a phrase commonly adopted in the context of an adjournment application; although in a practical sense such applications do involve a balancing exercise, as between the prejudice caused to the party applying for the adjournment, and the other party(ies). Nevertheless, looking at the reasons the learned Magistrate gave fairly and as a whole, I am not persuaded that her Honour erred in the exercise of her discretion.
- [30]Her Honour was conscious of the need to consider the prejudice to the prosecution if the hearing was adjourned, as against the prejudice to Mr Hickey if it was not. It is to be inferred, from the reasons her Honour gave, that she did not consider there would be serious injustice caused to Mr Hickey, if the adjournment were refused, in circumstances where he had been given the prosecution’s material many months before; was therefore not taken by surprise as to the case against him; had time and the opportunity to get legal advice, including alternative legal advice to the Beenleigh solicitor he was complaining about, before the hearing; had notice of the 1 February 2016 hearing date; and had been provided with a further copy of the brief of evidence before that hearing.
- [31]As against this, there was considerable prejudice to the prosecution, given the cost and difficulty of having nine witnesses available on another occasion.
- [32]It was necessary for the Magistrate to consider whether the trial was likely to be unfair if the adjournment was not granted.[27]Mr Hickey did not press his application on the basis that he was seeking time to obtain legal representation. His application was pressed on the basis that he had not had sufficient time to prepare, given that the Beenleigh solicitor had misplaced his documents, and he had to request a further copy from the prosecution. It is plain the Magistrate was not persuaded those circumstances resulted in injustice or unfairness to Mr Hickey.
- [33]There are other reasons why, in any event, this ground of appeal ought not succeed. Although Mr Hickey had previously asserted grounds of appeal going to the merits of the Magistrate’s decision that the 2010 offences were proved beyond reasonable doubt, those were abandoned prior to the hearing of this appeal. I do not suggest that was anything other than a sensible and reasonable position to take, in light of the matters addressed in the respondent’s written submissions. But in circumstances where an appeal to this court under s 222 of the Justices Act is an appeal by way of rehearing, the fact that no challenge is made to the correctness of the Magistrate’s decision regarding proof of the 2010 offences, in particular that the laser pointers and pepper sprays seized were prohibited imports, is significant in terms of determining whether there has been any injustice caused by the failure to grant the adjournment.[28]
- [34]Further, and importantly, on this appeal Mr Hickey has not identified any material, by reference to which it could be said there is any possibility that, if adduced at the trial, in light of the other evidence relied upon by the prosecution, and the statutory provisions aiding proof of Customs Act offences,[29]the Magistrate acting reasonably could have acquitted Mr Hickey of the 2010 offences.[30]
- [35]At the hearing of the appeal on 3 February 2017 Mr Hickey was represented by Ms Powell of counsel. On that occasion, counsel for Mr Hickey did not identify any evidence that he would wish to rely on, either on this appeal, or on any retrial of the 2010 offences should the appeal against conviction be successful. Counsel for Mr Hickey referred in vague terms to “what would be capable of occurring” being Mr Hickey presenting at trial evidence which “may challenge the reliability of the evidence of the prosecution with respect to the items”.[31]But there was nothing before me to demonstrate that there was any real prospect that evidence might exist, or be obtained, to support that contention.
- [36]The passages quoted at paragraphs [16] and [17] above give some indication as to the type of evidence that Mr Hickey had in mind relying upon, at the time of the trial in February 2016. Counsel for Mr Hickey did not refer to this on the hearing of the appeal. Even if I were to proceed on an assumption that that is the type of evidence Mr Hickey would seek to adduce, were a re-trial ordered, I would reach the same conclusion.
- [37]Mr Hickey was present in court at the hearing of the appeal on 3 February 2017. About 10 days later, on 13 February 2017, Mr Hickey sent an email to the court,[32]saying that his barrister, Ms Powell had made a mistake, when she did not identify any new evidence (specifically) that Mr Hickey wished to rely on, because Mr Hickey did have new evidence to adduce, being evidence he was prevented from adducing at the trial before the Magistrate, because of the refusal of the adjournment. He attached some documents to his email, and requested that the court take them into account. Since judgment was still reserved, the matter was listed again on 22 February 2017. There being no objection from Mr Hickey, Ms Powell and her instructor, Mr Mattner, were given leave to withdraw, and Mr Hickey appeared on his own behalf. He identified the new evidence that he would seek to rely on, in the event his appeal was successful and a re-trial ordered, as:
- (a)evidence that 1 mW laser pointers are available for purchase in Australia, by reference to an online advertisement;
- (b)evidence that cans of pepper spray are available for purchase from a website for a store located in Western Australia; and
- (c)the statement of Customs officer Skandera, which had been provided to Mr Hickey by the prosecution, which Mr Hickey said did not include the specific evidence given by that officer as to the size of the laser pointers seized from him.
- (a)
- [38]In so far as the laser pointers are concerned, the items, the importation of which is prohibited, are laser pointers designed or adapted to emit a laser beam with an accessible emission level of greater than 1 mW.[33]The Magistrate was satisfied, on the evidence before her, that the laser pointers seized were in excess of the permissible strength – that is, greater than 1 mW.[34]Evidence of the availability for purchase of laser pointers of (no more than) 1 mW would not assist Mr Hickey in defending this charge. In any event, it is apparent from the transcript that this was a matter addressed by Mr Hickey, in cross-examination of officers Skandera and Sofo,[35]and so not a new matter, or a matter he was prevented from raising at the trial.
- [39]In relation to the cans of pepper spray, similarly, evidence that such things are available for purchase from a Western Australian store, does not assist Mr Hickey in defending the charge. There is a difference between the law in Queensland[36]and the law in Western Australia,[37]in relation to the possession of pepper spray. But in any event, the federal offence Mr Hickey was charged with, under s 233 of the Customs Act, is concerned with the importation into Australia of certain prohibited items, without permission to do so. The Magistrate was satisfied the cans of pepper spray were prohibited items, and that he had no permission or authority to import them. In those circumstances, evidence of the availability for purchase of similar items in Western Australia does not provide a defence to the charge.
- [40]The last matter Mr Hickey identified as evidence he would seek to rely on if there was to be a re-trial is the witness statement of officer Skandera. Mr Hickey submitted that the witness statement did not make reference to officer Skandera having taken notice of the size of the laser pointers, at the time of the search of Mr Hickey’s bags, whereas officer Skandera gave that evidence at the trial; and indicated that, on a retrial he would seek to cross-examine the officer about this. But Mr Hickey had the statement, prior to the trial; had the opportunity to cross-examine officer Skandera at the trial, and did so. Accordingly, it cannot be said there has been any miscarriage of justice.
- [41]For the reasons set out above, I am not satisfied that the refusal of the adjournment has resulted in any injustice to Mr Hickey, and the appeal against conviction of the 2010 charges will therefore be dismissed.
Appeal against sentence
- [42]The sentence imposed by the learned Magistrate likewise involved the exercise of a discretion, which this court may not interfere with unless an error has been made in exercising the discretion.[38]
- [43]For Mr Hickey it is submitted that the Magistrate erred in the exercise of her sentencing discretion in that:
- (a)the penalty imposed was manifestly excessive, both in terms of the fine imposed for the 2010 offences, and in relation to the 2013 offences – it was submitted that a fine of $8,000, as the starting point for the 2010 offences was excessive given that this was unsophisticated offending, revealing no particular planning or preparation; there is no commercial value to the items, and the items were not being imported for commercial purposes; and Mr Hickey did not knowingly commit the offences (which, although not relevant to his conviction, the offences being ones of strict liability, was said to be relevant to sentence); and having regard to the comparative decisions; and
- (b)regardless of what the starting point was for the 2010 offences, the Magistrate erred in imposing a significantly higher penalty in respect of the 2013 charges, in circumstances where Mr Hickey had not been before a court in relation to the 2010 offences prior to the present trial, and therefore it was an error to proceed on the basis that the 2010 offences were an aggravating circumstance to such an extent; and
- (c)contrary to s 16C of the Crimes Act 1914 (Cth) her Honour failed to take into account the financial circumstances of Mr Hickey, before imposing a fine of that magnitude.[39]
- (a)
- [44]
- [45]In late November 2012, there was a substantial increase in the value of a penalty unit. So as at 2013, the maximum penalty for importing a prohibited item was, effectively $34,000;[42]and the maximum penalty for the false statement offence was $17,000.
- [46]The prosecution provided written sentencing submissions to the Magistrate, which annexed a detailed table of comparative decisions (exhibit 4), all being first instance decisions in the Magistrates Court. Mr Hickey also provided submissions in writing to the Magistrate (exhibit 3). The Magistrate’s reasons for imposing the penalty that she did were given orally on 28 July 2016 (exhibit 2).
- [47]Having regard to the comparative decisions placed before the Magistrate, I am satisfied that the penalties imposed by the Magistrate were manifestly excessive, both in terms of the fine imposed for the 2010 offences ($8,000) and then the amount of the increased fine imposed for the 2013 offences ($18,000). I consider that the penalties are “so outside the appropriate range as to demonstrate inconsistency and unfairness”.[43] It is apparent that the learned Magistrate increased the penalty for the 2010 offences above that imposed in any of the comparative decisions, on the basis of Mr Hickey’s decision to plead not guilty and proceed to trial, but did not, in my view, give consideration to the objective seriousness of the various comparative decisions, compared with Mr Hickey’s 2010 offences. It is also apparent that the learned Magistrate regarded the 2013 offences as being significantly aggravated, because of the 2010 offences (notwithstanding Mr Hickey had not previously been charged or convicted with those). Although it was plainly relevant to take into account that Mr Hickey had again committed the same offences in 2013, when he had been intercepted, interviewed and had the prohibited items seized in 2010, in my view in imposing a fine of more than double that imposed for the 2010 offences, the learned Magistrate fell in to error by placing disproportionate weight on the commission of the 2010 offences, rather than dealing with the 2013 offences on their facts and circumstances.[44]
- [48]In so far as s 16C of the Crimes Act is concerned, it is apparent that the Magistrate did enquire in a general sense with Mr Hickey as to his “capacity to pay a fine”, although at no point in the sentencing hearing was it flagged to him that the Magistrate had in mind a cumulative total fine of $26,000. The respondent submits that Mr Hickey was on notice as to the maximum fines which could be imposed (having received the prosecutor’s written submissions in advance). But in fairness, he was also given the comparative table of cases, none of which involved fines anywhere near those maximums. I am inclined to the view that there was inadequate consideration given to Mr Hickey’s capacity to pay a fine of the magnitude ultimately imposed, although note that it has been held capacity to pay is not a dominant, or decisive factor, in fixing a fine to be imposed.[45]In light of the conclusion I have otherwise reached, about the sentences imposed, it is unnecessary to reach a concluded view about this issue.
- [49]I am satisfied that the decision on penalty reveals error in the exercise of the Magistrate’s sentencing discretion, and that it is appropriate for me to set that decision aside, and re-exercise the discretion.
- [50]The table of comparative decisions provided by the respondent included reference to the following matters:
- (a)Dancey, a man who was 23 when the offences were committed (in 2010), and 27 when sentenced, who pleaded guilty to importing a laser pointer, an electric shock device (taser), 2 cans of anti-personnel spray and 4 diazepam tablets; as well as completing a false declaration on his incoming passenger card. He was dealt with under s 19B of the Crimes Act, so no conviction was recorded, and he was placed on a good behaviour bond with security of $4,000. He had one other minor entry on his criminal history. This matter was noted as being “a bit exceptional” by the prosecution (because no conviction was recorded).
- (b)Horn, a man who was 31, who pleaded guilty to offences committed in 2011 of importing 7 flick knives and 3 laser pointers, as well as completing a false declaration. He was given a global penalty of $6,500. The notes of this case state that he agreed that a penalty of that amount be imposed. He had no criminal history. The prosecution described this case as “somewhat comparative in the sense that there’s no admission at baggage about it” – which I take to mean, Mr Horn denied, when questioned by the customs officer (before his bags were searched) that he had any weapons in his bag. Based on subsequent comments about the next case, Butler, it is to be inferred that the prosecution regarded this case as more serious than Mr Hickey’s, because it involved 7 flick knives.
- (c)Butler, a 24 year old who pleaded guilty to offences committed in 2010 of importing ammunition for a soft air handgun, a soft air handgun, a knuckle duster, a flick knife and a laser pointer, as well as completing a false declaration. He was fined $5,500 for both offences. Having just referred to Horn, the prosecutor referred to Butler, as “Again, more serious in that it was a flick knife included with it”.[46]Mr Butler had a criminal history, which seemingly included assaults.
- (d)Carmiggelt, a 22 year old man who pleaded guilty to importing a throwing star, a taser and a laser pointer, and making a false declaration. The offence was committed on 24 November 2012.[47]He was given a global penalty of $6,000. The prosecution described this matter as being “somewhat within the ballpark of these matters”, referring also to the level of deceit engaged in by Mr Carmiggelt. Mr Carmiggelt had a criminal history, which included a term of imprisonment being imposed (although no actual custody served).
- (e)Ford, a 55 year old man who pleaded guilty to importing a number of things including a flick knife, laser sights, a taser, and two soft air handguns, as well as making a false declaration, in 2010. He was fined $4,000 for the importation and $2,000 for the false declaration (so a total of $6,000). The prosecutor said to the Magistrate that Ford was not comparative, in terms of the “quality of the material”.
- (f)Schomberg, a 26 year old man who pleaded guilty to importing 2 soft air rifles, 1 soft air handgun, pellets, an electric stun gun and 2 handheld laser pointers, and making a false declaration, in 2009. Although an application under s 19B was made on his behalf, it was not successful and he was fined $5,000 for both offences. He had no criminal history.
- (g)Meyers, a 20 year old man who pleaded guilty to importing 7 ultra mini pepper spray key chains, an item described as a pepper spray delivery system, and refills in 2008 (he purchased them on ebay). He had a criminal history. He was fined $3,000 (which I infer is attributable only to the importation, there being no false declaration offence in this matter). The prosecution described this as being “more relative to this [ie Mr Hickey’s] matter”.
- (h)Koh, a man whose age is not apparent from the notes, who pleaded guilty in 2008 to importing a knuckleduster, cannon anti-attack spray and electric shock device, and completing a false declaration, who was fined $3,600 for the importation and $1,200 for the false declaration. Like Mr Hickey, Mr Koh similarly did not believe the spray item was prohibited, on the basis that he had seen a similar item for sale, which the Magistrate took into account.
- (a)
- [51]After going through the table, the prosecutor submitted to the Magistrate:
“The comparatives disclose a range of considerations, but none of them are comparative to the matter here, where there’s consecutive importations by people who are quite aware of the obligations. That’s, really, the high points of it. In fairness, the matters here don’t have a lot of the serious content, in terms of importation – flick knives, and soft air rifles, and the things that are before the court here.”[48]
- [52]It seems all of the comparative decisions referred to involved matters dealt with before the increase in the value of the penalty unit, which came into effect on 28 November 2012.
- [53]I note the matters referred to in s 16A of the Crimes Act 1914 as required to be taken into account in sentencing a person for a federal offence. I also accept the submissions on behalf of the respondent as to the need for deterrent penalties to be imposed – both in terms of the individual offender, and generally – in relation to offences of the present kind under the Customs Act, given the seriousness of the offences, their apparent prevalence, and the difficulty of detecting them.[49]
- [54]Relevantly, Mr Hickey is now 41,[50]so would have been about 34 at the time of the 2010 offences and 37 at the time of the 2013 offences. He has a Queensland criminal history (but no convictions recorded), and a more dated Victorian criminal history (including for possessing explosives in 2003), but no previous convictions for the offences he is now being dealt with for. In a “notice to adduce new evidence” filed in court on the hearing of this appeal, there is outlined some personal information about Mr Hickey, which it was uncontroversial I could take into account, in the event of re-exercising the sentencing discretion. He owns an electrical business, and employs a number of people. He is married, to a Russian national who resides in Siberia, with whom he has a child. He travels overseas at least once a year. His income in 2016 was approximately $120,000, but varies annually. He had (I infer, in 2016) savings of less than $10,000.
- [55]In so far as the 2010 offences are concerned, having regard to the comparative decisions, in my view the appropriate penalty to be imposed is a global fine of $5,000 for both offences. The matters of Horn ($6,500), Butler ($5,500) and Ford ($6,000 when combined) are appropriately regarded as more serious, given the nature of the items imported. Carmiggelt ($6,000) seems a little out of kilter with Horn and Butler, having regard to the items imported (although they did include a taser) but it appears from the notes that the Magistrate paid particular attention to the level of deceit involved, and what was a seemingly more serious criminal history (involving imposition of imprisonment). Meyers received a $3,000 fine for the importation of the pepper sprays (there being no added charge of making a false declaration). In Ford, the fine for the false statement was $2,000; in Koh it was $1,200.
- [56]I have taken into account that the 2010 offences were the first occasion on which Mr Hickey had been intercepted (which is the same position as the various defendants in the comparative decisions); the nature of the items imported (five laser pointers and four cans of pepper spray); that it was accepted there was no commercial element to his conduct; and that at this stage at least, as he asserts, he believed they were items available in Australia. Mr Hickey is not to be additionally penalised for exercising his right to put the prosecution to proof; but nor can he rely on the mitigation of sentence that a person who pleads guilty may expect.[51]It is apparent from the comparative table that in each of the matters referred to, the defendant pleaded guilty and that was taken into account in mitigation of the penalty imposed; but the extent to which that was reflected in the fines imposed is not clear. On balance, I regard a fine of $5,000 as appropriate.
- [57]In terms of the 2013 offences, involving importation of five cans of pepper spray, it is relevant to take into account that Mr Hickey had already been caught for doing precisely the same thing, in 2010. Although he had not been charged; he had been stopped by Customs, had his bags searched, been interviewed by Customs, and had the pepper sprays and the laser pointers seized on the basis they were prohibited items. Regardless of what he might have thought prior to 2010, after the incident in 2010 he ought to have known that it was unlawful to import cans of capsicum spray into Australia. In my view, in the exercise of the sentencing discretion it is appropriate that a higher penalty be imposed for the 2013 offences for this reason; but the situation is to be distinguished from that where a person has previously been convicted, and sentenced, before a court. In addition, there is the fact that between 2010 and 2013 the amount of the maximum penalties had increased quite significantly (by 50%).
- [58]Mr Hickey has shown no remorse, contrition or insight into the serious nature of the offences committed by him.
- [59]In determining the appropriate penalty for the 2013 offences, I have balanced these considerations, but also taken into account issues of totality,[52]which may also be seen to be reflected in s 16A(1) and (3) of the Crimes Act. The 2010 and 2013 offences represent two discrete acts of criminality, and so it is appropriate that an additional, cumulative fine is imposed. However, in my view it is just and appropriate that there be some downward adjustment of the fine that might, independently, have been imposed for the 2013 offences. In all the circumstances, I consider that a global fine of $6,000 is appropriate for the 2013 offences.
- [60]The result is a total fine of $11,000, which is a significant sum of money. I am satisfied that represents adequate punishment (s 16A(2)(k)), which ought to deter Mr Hickey from committing such offences again; as well as deter others who would consider committing such offences (s 16A(2)(j)).
Recording a conviction – s 19B of the Crimes Act 1914
- [61]No error has been shown in relation to the Magistrate’s refusal to proceed under s 19B of the Crimes Act 1914. That section confers a discretion on a court, when dealing with a person proved to have committed a federal offence, to discharge the person, without proceeding to conviction, on the giving of a good behaviour bond, where the court is satisfied it is inexpedient to inflict any, or any other than nominal, punishment, having regard to:
- (a)the person’s character, antecedents, age, health or mental condition;
- (b)the extent to which the offence is of a trivial nature; or
- (c)the extent to which the offence was committed under extenuating circumstances.
- (a)
- [62]These offences were serious offences under the Customs Act. There was nothing about Mr Hickey’s character, antecedents etc; or the circumstances in which the offences were committed, which would warrant the Magistrate proceeding to discharge him under s 19B. It was appropriate that he be convicted, and that a severe, deterrent penalty be imposed. This aspect of the appeal will be dismissed.
Costs of the trial in the Magistrates Court
- [63]Mr Hickey was ordered to pay the respondent’s costs of the trial in the Magistrate’s Court, fixed in the sum of $4,262.20.
- [64]That sum was calculated by reference to the scale of fees provided for summary proceedings in the Magistrates Court, under the Justices Act 1886.[53]
- [65]Section 263 of the Customs Act confers a discretion on the court to award costs against a party in a Customs prosecution. Similarly, s 157 of the Justices Act empowers the court, in the case of a summary conviction, to order a defendant to pay such costs as seem to the court to be “just and reasonable”.
- [66]An order for costs is not made to punish the unsuccessful party; but to compensate the successful prosecuting party. Although costs in a summary criminal proceeding do not “follow the event” as they do in many civil proceedings, it has been observed that a successful prosecutor has a reasonable expectation of obtaining an order for payment of the costs of the prosecution.[54]
- [67]No error has been shown in the exercise of the Magistrate’s discretion to award costs. This aspect of the appeal will also be dismissed.
Disposition of the appeal
- [68]The appeal against conviction of the 2010 offences is dismissed.
- [69]The appeal against the sentence imposed in relation to both the 2010 and 2013 offences is allowed. The sentences imposed by the Magistrate are set aside.
- [70]The appellant, Mr Hickey, is re-sentenced as follows:
- (a)in relation to both the 2010 offences, he is sentenced to a global fine of $5,000;
- (b)in relation to both the 2013 offences, he is sentenced to a global fine of $6,000.
- (a)
- [71]The appeal against the costs order made by the Magistrate is dismissed.
- [72]Upon delivering my judgment in this matter, I will enquire with the parties as to any appropriate additional orders, including as to time to pay, and what is to happen in default of payment of the fines.
- [73]In so far as the costs of the appeal are concerned, I am inclined to the view that each party should bear their own costs, given that although Mr Hickey has been unsuccessful in his appeal against conviction, he has been successful in his appeal against the sentence. However, in case either party wishes to contend for a different order, I will direct that any party who seeks an order for costs file a brief outline of argument (no more than 3 pages), within 14 days, which identifies on the first page the costs order sought by that party, followed by their submissions. If necessary, I will then invite a reply from the opposing party, before determining the matter on the papers.
Footnotes
[1] Amended notice of appeal, filed 20 January 2017, in proceeding 2481 of 2016; transcript of the appeal hearing at p 1-15.
[2] Amended notice of appeal, filed 20 January 2017, in proceeding 3650 of 2016.
[3] As part of the correspondence on the Magistrates Court file, there is a copy of a letter from the Australian Government Solicitor to Mr Hickey dated 29 October 2015, enclosing a statement of Mr Paul Venz, in relation to the forensic testing of the anti-personnel sprays imported in 2013.
[4] Transcript of proceedings at the trial (exhibit 1) at pp 1-2 to 1-4 and 1-8.
[5] Transcript (exhibit 1) at p 1-2.
[6] Transcript (exhibit 1) at p 1-14.
[7] Transcript (exhibit 1) at p 1-6.
[8] Transcript (exhibit 1) at pp 1-7 and 1-8.
[9] Transcript (exhibit 1) at p 1-7.
[10] Transcript (exhibit 1) at p 1-8.
[11] Transcript (exhibit 1) at p 1-10 to 1-11.
[12] Transcript (exhibit 1) at p 1-13; see also transcript of the appeal hearing at p 1-39.
[13] Transcript (exhibit 1) at pp 1-70 to 1-71.
[14] Transcript (exhibit 1) at p 1-78.
[15] Exhibit 1 in the trial.
[16] Exhibit 10 in the trial.
[17] There were reasons advanced for this, which it is not necessary to deal with here. They are addressed in the Magistrate’s written decision at [28], [46], [51]-[52] and include an assertion by Customs that the address Mr Hickey provided on his 2010 incoming passenger card was false. Counsel for Mr Hickey said that Mr Hickey disputes that. I note that the same address was given by him on the 2013 incoming passenger card (exhibit 8 in the trial). Nothing was sought to be made of this, by either Mr Hickey or the respondent, on this appeal, and it is unnecessary to deal further with this issue.
[18] Exhibit 4 in the trial.
[19] See [20]-[29], [48] of the Magistrate’s written decision.
[20] Exhibit 3 in the trial.
[21] See [48], [52], [55], [56] and [60] of the Magistrate’s written decision.
[22] See also Powell v Camm [2003] QCA 353 at [23]; Arrowsmith v Micallef [2015] 2 Qd R 208 at [47]-[49].
[23] At 629.
[24]Powell v Camm at [23]; see also R v Alexandroaia (1995) 81 A Crim R 286 at 289-290.
[25] Oral submissions, transcript of the appeal hearing at p 1-16 to 1-18.
[26] References omitted.
[27] Cf Dietrich v The Queen (1992) 177 CLR 292 at 299 and 311.
[28] See, by analogy, Mbuzi v Commissioner of Queensland Police [2015] QDC 257 at [127] and [128].
[29] See s 255 of the Customs Act, which provides that in a Customs prosecution, the averment of the prosecutor in the complaint is prima facie evidence of the matter(s) averred.
[30]R v Spina [2012] QCA 179 at [32]-[34].
[31] Transcript of the appeal hearing at p 1-21.
[32] Which has been marked exhibit 6.
[33] See s 4 and schedule 2 (item 48) of the Customs (Prohibited Imports) Regulations 1956 (Cth).
[34] Magistrate’s written decision at [31].
[35] Transcript (exhibit 1) at pp 1-35 and 1-43.
[36] Under which a person is prohibited from unlawfully (that is, without a licence) possessing a weapon, which includes pepper spray: see s 50 of the Weapons Act 1990 (Qld), and s 8(1)(d) of the Weapons Categories Regulation 1997 (Qld).
[37] Under which pepper (or capsicum) spray is a “controlled weapon”, the possession of which is unlawful unless the person possesses it for the purpose of being used in lawful defence in circumstances that the person has reasonable grounds to apprehend may arise: see s 7 of the Weapons Act 1999 (WA); and ss 5, 7 and schedule 2 to the Weapons Regulations 1999 (WA).
[38] See R v Lawley [2007] QCA 243 at [18] per Keane JA (as his Honour then was).
[39] Transcript of the appeal hearing at pp 1-25 to 1-32.
[40] The maximum penalty was $110,000 (being 1000 penalty units, which at the time was $110): ss 233(1AA) and 233AB(2)(b) of the Customs Act. But for a prosecution instituted in a court of summary jurisdiction, there is effectively a cap of $22,000 (or 200 penalty units) which may be imposed for each instance of an offence charged: s 245(4) of the Customs Act (the language used in that provision is that a penalty exceeding 200 penalty units is “abandoned”).
[41] Section 234(2)(c) (maximum penalty being 100 penalty units).
[42] The value of a penalty unit had increased by this time to $170: see s 4AA of the Crimes Act 1914, as amended by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Act No. 167 of 2012), which was assented to on 28 November 2012.
[43] See Chapman v Queensland Police Service [2016] QDC 141 at [28] and the authorities there referred to.
[44]Veen v The Queen (1988) 164 CLR 465 at 472, 477; see also Chapman v Queensland Police Service [2016] QDC 141 at [15]-[17].
[45]Chief Executive Officer of Customs v Rota Tech Pty Ltd [1999] SASC 64 at [35]-[36].
[46] Transcript of the sentencing hearing (exhibit 2) at p 1-3.
[47] Seemingly just before the value of the penalty unit under s 4AA of the Crimes Act was increased to $170.
[48] Transcript of the sentencing hearing (exhibit 2) at p 1-5.
[49] Referring, among other things, to L Vogel and Son Pty Ltd v Anderson (1968) 120 CLR 157 at 164.
[50] I am unable to find reference to his age in the sentencing material before the Magistrate, but refer to the “notice to adduce new evidence” filed in court on this appeal on 3 February 2017.
[51]Cameron v The Queen (2002) 209 CLR 339.
[52]Mill v R (1988) 166 CLR 59 at 63; Cahyadi v R (2007) 168 A Crim R 41 at [27] and [28]; GS v R [2016] NSWCCA 266 at [48]-[51].
[53] See [49] of the respondent’s sentencing submissions before the Magistrate (exhibit 4), and see also p 6 of the sentencing decision (exhibit 2).
[54]Smith v Ash [2011] 2 Qd R 175 at [25] per Fraser JA and [99]-[107] per Chesterman JA.