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Nolin v Commissioner of Police[2019] QDC 171

Nolin v Commissioner of Police[2019] QDC 171

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Nolin v Commissioner of Police [2019] QDC 171

PARTIES:

FREYA ROWE NOLIN
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

1407/2019

DIVISION:

 

PROCEEDING:

s 222 Appeal

ORIGINATING COURT:

Bowen Magistrates Court

DELIVERED ON:

18 September 2019

DELIVERED AT:

Brisbane District Court

HEARING DATE:

6 September 2019

JUDGE:

Dearden DCJ

ORDER:

1. Appeal granted

2. Set aside fine of $10,000 imposed at the Bowen Magistrates Court on 2 April 2019 in respect of the following charges:

(a) trespassing on a railway;

(b) obstructing a railway;

(c) obstructing police.

3. Set aside order for restitution in the sum of $1,565.37.

4. Substitute an order that the appellant be fined the sum of $1,000 in respect of all three offences, to be referred to the State Penalties Enforcement Registrar.

5. Order that the respondent pay the appellants costs, fixed at $1,800.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was charged with offences based on involvement in a protest – where the defendant was fined $10,000 and ordered to pay restitution, with no convictions recorded – whether the learned magistrate proceeded on the basis that the maximum penalty was higher than in comparable cases – whether the learned magistrate gave undue weight to the prevalence of this type of offending in the area – whether the learned magistrate failed to give proper regard to the appellant’s financial circumstances – whether the learned magistrate had power to award restitution – whether the sentence was manifestly excessive

LEGISLATION:

Criminal Code 1899 (Qld) s 477

Justices Act 1886 (Qld) s 222(1), s 223

Penalties and Sentences Act s 9, s 35, s 46, s 48

Penalties and Sentences Regulation 2015 (Qld) s 3

CASES:

Avery & Ors v Queensland Police Service [2019] QDC 21

Forrest v Commissioner of Police [2017] QCA 132

Kumar v Garvey [2010] QDC 249

Markarian v The Queen (2005) 228 CLR 357

McDonald v Holeszko [2018] QDC 204

McDonald v Queensland Police Service [2017] QCA 255

R v Morse [1979] 23 SASR 98

COUNSEL:

PJ Wilson for the appellant

BJ Jary for the respondent

SOLICITORS:

Howden Saggers for the appellant

Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    The appellant, Freya Rowe Nolin was convicted on pleas of guilty at the Bowen Magistrates Court on 2 April 2019 of the following charges:
  1. (a)
    trespassing on a railway;
  1. (b)
    obstructing a railway; and
  1. (c)
    obstructing police.
  1. [2]
    The appellant was fined $10,000 in respect of all three offences, ordered to pay restitution in the amount of $1,565.37, and no conviction was recorded.

Grounds of appeal

  1. [3]
    The appellant’s grounds of appeal are articulated in her Notice of Appeal filed 23 April 2019 as follows:

“I am 21 years old and on youth allowance, with no criminal record.  A fine of $10,000 – the biggest in Australia’s environmental history – would be a significant financial burden to me and is not in proportion to the offence I committed.  The Magistrate and prosecution also mentioned my sentence as being a deterrent to others, which I believe is unfair.”[1]

  1. [4]
    The appellant and respondent both proceeded, appropriately in my view, on the basis that the grounds could be distilled as an assertion that the ground of appeal was that “the sentence imposed was excessive”.[2] 
  1. [5]
    The appellant’s Outline more specifically identified the asserted errors leading to an excessive sentence as follows:

“(a) the magistrate erred by proceeding on the basis that the maximum penalty for the offence of obstructing a railway was higher than the maximum penalty available in a comparable case. 

  1. (b)
    the magistrate erred by giving undue weight to the supposed prevalence of offending of this type in the local area. 
  1. (c)
    the magistrate erred by not paying proper regard to the appellant’s financial circumstances and ability to pay a fine and restitution.
  1. (d)
    the magistrate erred by awarding restitution in circumstances where there was no power to do so.”[3]
  1. [6]
    I note that the respondent concedes the appeal and has confined submissions to the issue of the quantum of the fine on the resentence of the appellant in the District Court.[4]

The law – appeals

  1. [7]
    I refer to and adopt my exposition of the relevant statutory provisions (Justices Act 1886 (Qld) s 222(1) and s 223) and statements of principle from McDonald v Queensland Police Service [2017] QCA 255 and Forrest v Commissioner of Police [2017] QCA 132, as set out in my decision in McDonald v Holeszko [2018] QDC 204 [6]-[9].
  1. [8]
    More particularly, in respect of a sentence appeal, King CJ in R v Morse [1979] 23 SASR 98 observed:

“To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.”[5]

  1. [9]
    In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ stated:

“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.  That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it.  That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.”

  1. [10]
    McGill DCJ in Kumar v Garvey [2010] QDC 249, stated at [28]:

“As a matter of general sentencing principles the penalty imposed must be appropriate to the offender as well as appropriate to the offence.  A fine should not be imposed which is beyond the reasonable capacity of the offender to pay.  That applies even if there is no period of default imprisonment, as was the case here where the matter was referred to SPER for collection.  It is also necessary to scale the fine to the capacity of the offender to pay in order to comply with the requirements of [Penalties and Sentences Act] s 48(1)(b), because imposing the same fine on people with different capacities to pay will mean that some of them are punished much more severely than others for the same offence.  This was the point made by McMurdo DCJ (as the President then was) in Allan v Coca where a fine imposed on a defendant receiving Austudy of $75 per week was halved.  Her Honour held that the fine “would have been a greater penalty than a substantially larger fine imposed upon an older person with a greater capacity to pay.” (citations omitted)

Magistrates Court proceedings

  1. [11]
    The circumstances of the conduct of the sentence in the Bowen Magistrates Court by the learned acting magistrate are helpfully set out in the appellant’s submissions in the following terms:

“5. Broadly speaking, the facts alleged were that on 3 March 2019, the appellant trespassed onto a railway line at Gee Dee Road in Bowen to conduct a protest in relation to environmental issues.  She brought with her a steel device which she locked her arms into and attached to the railway line.  She remained in that position for some three hours.  Someone else advised the operators of the railway line of what the appellant was doing.  Rail traffic was obstructed during the course of the protest.  Police were called to the scene and the appellant refused a direction to leave the location.  Eventually police removed her from the device, and she was arrested. 

  1. Submissions were made by the police prosecutor to outline the impact upon police resources caused by the offending, the special training that police have had to undergo to deal with such protests and the apparent prevalence of such offending in the Bowen region. 
  1. The restitution was quantified as $233.79 being the cost of gloves and saw blades purchased from Bunnings and used to remove the appellant along with $1,331.58 being the cost of overtime paid to police in attendance.
  1. The magistrate referred the parties to an appeal decision originating from a similar sentence he had imposed of which he had a copy.[6]  That case was not expressly identified in the proceedings, but given the facts of that matter, it is almost certainly a reference to the unreported decisions of Briggs v Commissioner of Police[7] or Nelson v Commissioner of Police.[8] 
  1. Copies of the decisions was [sic] not provided to the parties, but in reliance on that judgment, the magistrate specifically invited submissions from the appellant’s solicitor to address the relevant considerations of s 48 of the Penalties and Sentences Act 1992.
  1. The court was told that the appellant was 21 years old with no criminal history anywhere in Australia.  She was a student at TAFE and in receipt of youth allowance.  She had worked in conservation at some point as a technician and a gardener.  She resided ordinarily in Western Australia with her family but was living in Airlie Beach at that time.  She had gone to the additional expense of travelling to Bowen to have the matters dealt with.  She had entered a plea of guilty at the earliest opportunity.
  1. In relation to the quantum of the proposed fine, the appellant’s solicitor acknowledged that it should be substantial[9] but her personal difficulty in paying a fine because of her financial circumstances ought to be considered.[10]  Her employment prospects in the immediate future were limited to part time work. 
  1. In sentencing the appellant, the magistrate had specific regard to the maximum penalty in the judgment to which he referred. He said that case involved a possible maximum fine in the order of $26,000 [probably a reference to the maximum penalty for an offence under Transport Infrastructure Act 1994 s 292, that is, 200 penalty units equalling $26,110].  The magistrate said that the appellant was charged “under a far more serious section of the Criminal Code[11] and distinguished previous cases on that basis.  He said that the penalty imposed must act as a general deterrent and said that offences of this type were prevalent in the Bowen area.[12]
  1. On that basis, the magistrate fined the appellant $10,000 in addition to restitution of $1,565.37.  No conviction was recorded.  The magistrate noted that this was a “heavy penalty.[13][14]

Discussion

  1. [12]
    The appellant submits that the learned acting magistrate fell into error in concluding that a charge under Criminal Code s 477 (obstructing a railway) carried a higher maximum penalty than the comparable case (unidentified during the learned acting magistrate’s exchange with counsel) which carried a maximum penalty in the order of $26,000.[15]  However, there is no prescribed maximum penalty in respect of Criminal Code s 477, and accordingly Penalties and Sentences Act s 46 is applicable, which limits the maximum penalty that can be imposed on an individual in the Magistrates Court to 165 penalty units ($21,540.75).[16]  It is submitted by the appellant that the applicable maximum penalty was in the circumstances “substantially less” than the contemplated $26,000 referred to by the learned acting magistrate.[17]  It is submitted that there was no basis for the learned acting magistrate’s conclusion that offences under the Criminal Code were more serious than offences under other legislation and consequently this led to an error which infected the learned acting magistrate’s reasoning, resulting in an excessive penalty being imposed.[18] 
  1. [13]
    I accept this submission. It appears the learned acting magistrate did err in concluding that the Criminal Code offence was more serious compared to offences under other legislation.
  1. [14]
    The learned acting magistrate purported to rely on the prevalence of offending of this type in the local area in these terms: – “Now, I’ve also noticed that these offences are becoming quite prevalent in the area”.[19]  However, no material, reports or statistics were placed before the learned acting magistrate, who noted in his sentencing remarks: –

“A number of matters were before the Court today which were adjourned.  I believe you’re the first person to come before the Court charged with an offence under the Criminal Code.  There were other ones before the Court, but, as I’ve said, they’ve been adjourned for various reasons.”[20] 

  1. [15]
    In those circumstances, the learned acting magistrate appears, at best, to be aware of matters awaiting resolution for which sentences had not been imposed. In those circumstances, it is submitted by the appellant (and I accept) that the purported reliance on prevalence in the local area was misplaced and did not support the sentence imposed on the appellant by the learned acting magistrate.[21] This also constitutes an error in the sentencing process.
  1. [16]
    The learned acting magistrate specifically invited submissions in respect of Penalties and Sentences Act s 48, referencing a decision from an appeal of a previous sentence of his own where he had failed to take that section into account.[22] However, in the appellant’s submission, the learned magistrate failed to take account of the Penalties and Sentences Act s 48 in the circumstances of this case.
  1. [17]
    The learned acting magistrate was not greatly assisted by the appellant’s lawyers at sentence in respect of her financial circumstances, but the court was told the appellant was aged 21, a TAFE student in receipt of Youth Allowance,[23] and that any employment would only be part time, given her studies.[24]
  1. [18]
    In the circumstances, it is submitted that:

“The combined fine and restitution ordered was enormous when viewed in light of the appellant’s ability to pay.  Realistically, she has no ability to pay a penalty of that magnitude and the quantum of the penalty imposed is crushing”.[25]

  1. [19]
    The respondent conceded (appropriately) that the learned acting magistrate “did not give sufficient weight to the appellant’s financial circumstances and ability to pay a fine and restitution in the amount ordered.”[26] The respondent helpfully identified the likely income of the appellant (which unfortunately was not placed before the learned acting magistrate by the appellant’s lawyer at sentence) at a figure of either $7,195.20 per annum if the recipient is living with their parents, up to $10,924.80 per annum if the recipient lives away from their parents.[27] 
  1. [20]
    As the appellant asserts, and the respondent concedes, the learned acting magistrate has undoubtedly fallen into error (despite an apparent awareness of the provisions of Penalties and Sentences Act s 48) by imposing a sentence that bears no relationship whatsoever to the appellant’s ability to pay. 
  1. [21]
    The learned acting magistrate also ordered a substantial sum of restitution ($1,565.37) purportedly pursuant to Penalties and Sentences Act s 35.  That section relevantly provides: 

35 Order for restitution or compensation

  1. (1)
    The court may order that the offender—
  1. (a)
    make restitution of property—
  1. (i)
    in relation to which the offence was committed; or
  1. (ii)
    taken in the course of, or in connection with, the commission of the offence; and
  1. (b)
    pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property—
  1. (i)
    in relation to which the offence was committed; or
  1. (ii)
    in the course of, or in connection with, the commission of the offence; and
  1. (c)
    pay compensation for personal injury suffered by a person (whether or not the person is the victim against whom the offence was committed) because of the commission of the offence.
  1. (2)
    An order may be made under subsection (1) in addition to any other sentence to which the offender is liable…”
  1. [22]
    The restitution sought related to the purchase of saw blades, gloves and paid police overtime, none of which falls within the provisions of Penalties and Sentences Act s 35(1)(a)(i) namely “… property – in relation to which the offence was committed” nor in respect of Penalties and Sentences Act s 35(1)(a)(ii) namely “…property – taken in the course of, or in connection with, the commission of the offence”, nor could it be said to be pursuant to Penalties and Sentences Act s 35(1)(b) being “compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property – (i) in relation to which the offence was committed; or (ii) in the course of, or in connection with, the commission of the offence”. 
  1. [23]
    It follows that the learned acting magistrate fell into error in making an order for restitution and/or compensation, given the nature of the expenditure incurred by the police in the circumstances. In conceding the appeal, the respondent does not press for an order of restitution on resentence.

Resentence

  1. [24]
    When the matter came before me for argument on 6 September 2019 I made the following orders:
  1. Appeal granted 
  1. Set aside fine of $10,000 imposed at the Bowen Magistrates Court on 2 April 2019 in respect of the following charges:
  1. (a)
    trespassing on a railway;
  1. (b)
    obstructing a railway;
  1. (c)
    obstructing police
  1. Set aside order for restitution in the sum of $1,565.37.
  1. Substitute an order that the appellant be fined the sum of $1,000 in respect of all three offences, to be referred to the State Penalties Enforcement Registrar.
  1. Order that the respondent pay the appellants costs, fixed at $1,800.
  1. Reasons reserved.
  1. [25]
    As I have identified above, it is clear that the learned acting magistrate fell into error in respect of the quantum of the fine, and in respect of imposing an order for restitution. The issue then is to consider what the appropriate quantum for the fine should be in the light of the appellant’s offending and personal circumstances, given that community based orders are not available because the appellant ordinarily resides in Western Australia.[28] 
  1. [26]
    The appellant refers to the decision of Avery & Ors v Queensland Police Service [2019] QDC 21, where each of the appellants were convicted of offences of trespass (Summary Offences Act 2005 s 11(2)); contravene direction or requirement contrary to Police Powers and Responsibilities Act 2000 s 791(2) and intentionally or recklessly interfering with ports operation contrary to Transport Infrastructure Act 1994 s 292(1)(b)), and originally fined a sum of $8,000 in respect of all three offences, but on appeal, fines between $2,000 and $3,000 were imposed on the appellants. 
  1. [27]
    Mr Wilson, who appeared before me on this appeal, usefully summarised the facts of Avery & Ors v Queensland Police Service in the following terms: –

“23.  The facts of that offending [Avery & Ors v QPS] were that in two different incidents, one on 11 January 2018, and another on 18 January 2018, the group went to the Adani Abbott Point Coal Terminal at Bowen and unlawfully gained access to that site.  Some climbed upon a coal loading trestle and locked themselves onto that structure which housed conveyor belts, rollers and electric motors which were used to move coal onto ships for transport.  There was a high risk of injury or death and the site was shut down for safety reasons.  They were directed to leave by police and refused.  Police had to cut a number of the group from the structure.”[29]

  1. [28]
    I note that Lynham DCJ helpfully outlined relevant factors in determining the objective seriousness of offending in cases of conscientious protesting at Avery & Ors v Queensland Police Service [2019] QDC 21 at [67]-[81]. 
  1. [29]
    Critically, in respect of the appellant in this case, she acted alone rather than in concert, is an offender who has no criminal history, has an extraordinarily modest income, is not in a position to undertake any form of community-based order given her residence in Western Australia, and has at best the prospect of part-time work in her immediate future. In all of the circumstances, a fine which recognises those factors but meets the other relevant provisions of Penalties and Sentences Act s 9(1)(a)-(f), and takes account of the relevant provisions of s 9(2) is a fine of $1,000, with no conviction recorded.  My conclusion as to the appropriate quantum of the penalty reflects the order that I made when this matter came before me on 6 September 2019. 

Orders

  1. [30]
    Accordingly, I order as follows:
  1. Appeal granted 
  1. Set aside fine of $10,000 imposed at the Bowen Magistrates Court on 2 April 2019 in respect of the following charges:
  1. (a)
    trespassing on a railway;
  1. (b)
    obstructing a railway;
  1. (c)
    obstructing police.
  1. Set aside order for restitution in the sum of $1,565.37.
  1. Substitute an order that the appellant be fined the sum of $1,000 in respect of all three offences, to be referred to the State Penalties Enforcement Registrar.
  1. Order that the respondent pay the appellants costs, fixed at $1,800.

Footnotes

[1]  Notice of Appeal, filed 23 April 2019, page 1.

[2]  Submissions on behalf of the Appellant, filed 14 June 2019, [3]; Outline of submissions on behalf of the Respondent, filed 15 July 2019, [4.1].

[3]  Submissions on behalf of the Appellant, filed 14 June 2019, [4].

[4]  Outline of submissions on behalf of the Respondent, filed 15 July 2019, [1.1].

[5] R v Morse [1979] 23 SASR 98, 99.

[6]  Sentence submissions transcript, 1-6, ll 26-41. 

[7]  Unreported judgment of District Court of Queensland, dated 27 March 2018, Appeal No 2/2018.

[8]  Unreported judgment of District Court of Queensland, dated 27 March 2018, Appeal No 13/2017.

[9]  Sentence submissions transcript, 1-10, l 36.

[10]  Sentence submissions transcript, 1-10, ll 36-39; 1-11, l 2.

[11]  Sentence decision transcript, p. 2, ll 19-21.

[12]  Sentence decision transcript, p. 2, ll 45-47; p. 3, ll 1, 5.

[13]  Sentence decision transcript, p. 3, l 29.

[14]  Submissions on behalf of the Appellant, filed 14 June 2019, [5]-[13].

[15]  Submissions on behalf of the Appellant, filed 14 June 2019, [30].

[16] Penalties and Sentences Regulation 2015 (Qld) s 3 – prescribed value of a penalty unit $130.55 as at the time of offence; Submissions on behalf of the Appellant, filed 14 June 2019, [31]-[32]. 

[17]  Submissions on behalf of the Appellant, filed 14 June 2019, [32]. 

[18]  Submissions on behalf of the Appellant, filed 14 June 2019, [34]. 

[19]  Sentence decision transcript, p. 3, l 1.

[20]  Sentence decision transcript, p. 3, ll 2-5.  

[21]  Submissions on behalf of the Appellant, filed 14 June 2019, [35]-[37];

[22]  Sentence submissions transcript, 1-11, ll 17-33.

[23]  Sentence submissions transcript, 1-8, ll 3-6.

[24]  Sentence submissions transcript, 1-11, ll 27-29.

[25]  Submissions on behalf of the Appellant, filed 14 June 2019, [42]. 

[26]  Outline of submissions on behalf of the Respondent, filed 15 July 2019, [6.2]. 

[27]  Outline of submissions on behalf of the Respondent, filed 15 July 2019, [6.4]. 

[28]  Sentence submissions transcript, 1-8, l 4. 

[29]  Submissions on behalf of the Appellant, filed 14 June 2019, [23]. 

Close

Editorial Notes

  • Published Case Name:

    Nolin v Commissioner of Police

  • Shortened Case Name:

    Nolin v Commissioner of Police

  • MNC:

    [2019] QDC 171

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    18 Sep 2019

Appeal Status

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

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