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Jaenke v Department of Justice and Attorney-General[2024] QSC 162

Jaenke v Department of Justice and Attorney-General[2024] QSC 162

SUPREME COURT OF QUEENSLAND

CITATION:

Jaenke v Department of Justice and Attorney-General [2024] QSC 162

PARTIES:

WAYNE ALAN JAENKE

(Applicant)

v

DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(Respondent)

FILE NO/S:

BS 1731 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application for Review

DELIVERED ON:

29 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2024

JUDGE:

Bowskill CJ

ORDERS:

The application is dismissed.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – OTHER MATTERS – where the applicant was the holder of a real estate agent and auctioneer licence – where the applicant was convicted of the crime of dishonestly converting an amount of money, paid into his trust account by a client, to his own use and sentenced to six months’ imprisonment, wholly suspended – where the matter was dealt with summarily in the Magistrates Court – where the maximum penalty for the offence, provided by the offence-creating provision, is 1,000 penalty units or 5 years imprisonment – but where another provision provided that the maximum penalty that may be imposed on a summary conviction in the Magistrates Court is 200 penalty units or 1 year’s imprisonment – where the respondent notified the applicant, following his conviction, that his licence had been cancelled pursuant to s 77(1)(a) of the Property Occupations Act 2014 (Qld) – where s 77(1)(a) of the Act provides that a letting agent’s licence is cancelled upon conviction of a “serious offence” – where “serious offence” is defined in sch 2 of the Act to mean an offence “punishable by 3 or more years imprisonment” – consideration of the meaning of “punishable by” in its statutory context, as to whether it refers to the maximum penalty to which a person who commits an offence of a kind included within the definition is potentially liable, or should be taken to refer to the maximum penalty which may be imposed consequent upon prosecutorial election to proceed summarily – whether the applicant was convicted of a “serious offence” – whether the applicant’s licence was automatically cancelled by operation of s 77 of the Act

Judicial Review Act 1991 (Qld), s 43

Property Occupations Act 2014 (Qld), s 12, s 34, s 77(1)(a), s 206(2)(a), s 225, sch 2

AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564

Coleman v Director of Public Prosecutions (2002) 5 VR 393

Dunlop v Department of Justice and Attorney-General (Qld) [2020] QSC 160

Hastings & Folkestone Glassworks Ltd v Kalson [1949] 1 KB 214

NSW Crime Commission v D’Agostino (1998) 103 A Crim R 113

Park v The Queen (2021) 273 CLR 303,

Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358

R v A2 (2019) 269 CLR 507

R v Melbourne (1980) 2 Cr App R (S) 116

Wood v Reason [1977] 1 NSWLR 631

COUNSEL:

G R Rice KC for the applicant

A D Scott KC, with G Morgan, for the respondent

SOLICITORS:

Potts Lawyers for the applicant

Crown Law for the respondent

  1. [1]
    The applicant was the holder of a real estate agent and auctioneer licence.  On 10 January 2014, he was convicted, on his plea of guilty, of the crime of dishonestly converting an amount of money, paid into his trust account by a client, to his own use.[1] The particulars of the charge were that he made an unauthorised electronic bank transfer of $235,000 from his trust account to his personal bank account, and used that money to invest in cryptocurrency and for his own use. He was sentenced to 6 months’ imprisonment, wholly suspended for two years. The conviction was recorded.[2]  A week later, relying upon s 77(1)(a) of the Property Occupations Act 2014 (Qld) (the Act), the respondent notified the applicant that his licence had been cancelled. 
  2. [2]
    Section 77(1)(a) provides:

“77 Immediate cancellation

  1.  A licensee’s licence is cancelled on the happening of any of the following events –
  1.  the licensee is convicted[3] of a serious offence; …”
  1. [3]
    As defined in schedule 2 to the Act:

“serious offence means any of the following offences punishable by 3 or more years imprisonment –

(a) an offence involving fraud or dishonesty;

(b) an offence involving the trafficking of drugs;

(c) an offence involving the use or threatened use of violence;

(d) an offence of a sexual nature;

(e) extortion;

(f) arson;

(g) unlawful stalking, intimidation, harassment or abuse.”

  1. [4]
    The offence for which the applicant was convicted, wrongful conversion, carries a maximum penalty of “1,000 penalty units or 5 years imprisonment” (s 206(2)(a) of the Act).  It is an indictable offence.[4]  By s 225(2) of the Act:

“A proceeding for an indictable offence may be taken, at the prosecution’s election –

(a)  by way of summary proceedings under the Justices Act 1886; or

(b)  on indictment.”

  1. [5]
    In the present case, the prosecutor elected to proceed with the charge against the applicant by way of a summary proceeding in the Magistrates Court.
  2. [6]
    Even where that election has been made, the magistrate may decide not to deal with it in that way either if the person charged asks that the charge be prosecuted on indictment or if the magistrate independently considers it should be dealt with in that way (s 225(5)).
  3. [7]
    Where the charge is dealt with by summary proceeding, s 225(7) of the Act operates, providing that the “maximum penalty that may be imposed on a summary conviction of an indictable offence is 200 penalty units or 1 year’s imprisonment”.
  4. [8]
    The applicant contends that, on the proper construction of s 77(1)(a), he was not convicted of a “serious offence” because, at the time of his conviction (which is the relevant event for the purposes of s 77(1)), the offence was not punishable by “3 or more years imprisonment”; by operation of s 225(7), it was only punishable by up to “1 year’s imprisonment”.  Therefore, the applicant contends, his licence was not immediately cancelled under s 77 of the Act.  The applicant applies under s 43 of the Judicial Review Act 1991 (Qld), for declarations to that effect.[5]
  5. [9]
    The respondent opposes the application on the basis that, properly construed, whether an offence is a “serious offence” is to be determined by reference to the intrinsic gravity of the offence, manifested by the maximum penalty prescribed by Parliament for the offence, and not by reference to a jurisdictional limit imposed consequent upon a procedural election.  
  6. [10]
    In support of the interpretation that he contends for, the applicant places particular reliance upon the decision in Dunlop v Chief Executive, Department of Justice and Attorney-General (Qld) [2020] QSC 160.  That case involved a similar application, by the holder of a letting agent licence under the Act, seeking declaratory relief to overturn the purported automatic cancellation of his licence following his conviction of an offence.[6]  The dispute was essentially resolved prior to the hearing, because the respondent Department conceded, as a matter of fact, that Mr Dunlop had not been convicted of a serious offence, as defined, because the offence of which he was convicted did not fall within any of paragraphs (a) to (g) of the definition of “serious offence”.  The only possibly relevant paragraph was (c), but there was no allegation the offence Mr Dunlop committed involved the use or threatened use of violence.  Nevertheless, the Court proceeded to hear and decide the legal point also relied upon by Mr Dunlop that, in any event, he had not been convicted of a serious offence, because, since the offence was dealt with summarily, he could not have been punished by more than 12 months’ imprisonment.[7] 
  7. [11]
    In accepting Mr Dunlop’s argument, the Court emphasised the importance of focussing on “the reality actually prevailing at the time of conviction” (at [33]-[35]), with the determinative issue being whether, at the time of conviction and sentence, “the offence of which he was convicted was punishable by 3 or more years imprisonment” (at [37]).  In reasoning to that conclusion, the Court noted:
    1. the principle that the maximum penalty available for an offence remains relevant to the exercise of the sentencing discretion, despite the offence being dealt with summarily and not in fact being punishable by the same maximum – although found that this did not logically support an argument that the reality of such a reduction is irrelevant in other contexts (at [24]);
    2. prior English authorities which had construed the phrase “convicted of an indictable offence” (or punishable on indictment) as referring to the intrinsic nature of the offence, regardless of whether it had been dealt with summarily (see at [26] and [27]) – but distinguished them;
    3. an earlier decision of NSW Crime Commission v D’Agostino (1998) 103 A Crim R 113, in relation to construction of a legislative provision which used the phrase “engaged in … serious crime related activity”, which in turn referred to an offence “that is punishable by imprisonment for 5 years”, which had also emphasised the intrinsic nature of the offence (and the penalty that it may, in theory attract), rather than the lower penalty to which a person would actually be liable by virtue of being dealt with in the Local Court – and distinguished this case having regard to the statutory language of “engaging in” particular activity in contrast to conviction; and
    4. in contrast, decisions in the context of activation of suspended sentences by reason of a person having committed “another offence punishable with imprisonment” – R v Melbourne (1980) 2 Cr App R (S) 116 and Coleman v Director of Public Prosecutions (2002) 5 VR 393 – in which the focus was upon the potential punishment the person was actually exposed to, having regard to the procedure adopted (or, in the case of Coleman, the particular factual circumstances of the offending) (at [30] and [31]).  These cases in particular were said to highlight the importance of “the reality actually prevailing at the time of conviction”; rather than the theoretical approach urged by the respondent Department (at [33]). 
  8. [12]
    The Court in Dunlop concluded, at [34], that:

“The theoretical approach finds no support in the purposive approach to statutory interpretation per s 14A Acts Interpretation Act 1954 (Qld). It is apparent that the objects of the Property Occupations Act, recited in s 12 thereof, include the protection of consumers by ensuring only suitable persons are licensed. One means by which that purpose is implemented is s 77’s automatic cancellation of a letting agent’s licence in the event of the agent’s conviction of an offence of the seriousness stipulated by the Act’s definition of ‘serious offence’. Section 77, read with that definition, is directed at the level of seriousness of the offence of which a licensee ‘is convicted’, consistently with the Act’s protective purpose. The means used to gauge seriousness is not just the type of offence but also the maximum penalty for the offence of which a licensee is convicted. That maximum penalty must be three or more years imprisonment. It seems contrary to the purpose pursued by s 77 that it would apply to a conviction for an offence which, on conviction, only attracted a maximum penalty of 12 months imprisonment.”[8]

  1. [13]
    Although no ambiguity was perceived, the Court in Dunlop also observed that, if it were necessary to resolve ambiguity, the purpose of the provision, as explained in the extrinsic material – referring as it does to immediate cancellation being limited to the most serious of instances of an offence – would support resolving such ambiguity in favour of the narrower interpretation.  As to this, the Court said at [40]:

“The present instance of licensee offending was only punishable at conviction with a maximum penalty of 12 months imprisonment. It fell short of those ‘most serious of instances’ which the legislature, with its resort to maximums of three or more years, apparently intended s 77 to apply to.”

  1. [14]
    The Court also considered that any ambiguity ought also be resolved in favour of the narrower construction, by application of the principle that preference should be given to the interpretation which safeguards individual rights (at [42]).
  2. [15]
    Accordingly, the Court in Dunlop declared that, upon the proper construction of the Act, and in the circumstances in which Mr Dunlop’s conviction occurred in the Magistrates Court on a particular date, he “was not convicted of a serious offence within the meaning of the Act because he was not convicted of an offence punishable by three or more years imprisonment”.
  3. [16]
    The applicant urges me to adopt and apply the interpretation from Dunlop’s case, emphasising the principle of judicial comity – that a judge of first instance should usually follow the decision of another judge of first instance, unless convinced the decision is wrong.  The applicant also emphasised that there had been no appeal from the decision in Dunlop.
  4. [17]
    The respondent submits that the decision in Dunlop is wrong and ought not be followed, also noting that the fact there was no appeal from that decision is unsurprising, given that the dispute was essentially resolved, prior to the hearing, on the basis that the offence of which Mr Dunlop was convicted was not a serious offence, regardless of the issue concerning the potential penalty.  The analysis of the legal issue, concerning the proper construction of s 77(1)(a) and the definition of “serious offence” was, therefore, strictly obiter.  That is accepted as correct.
  5. [18]
    Acknowledging the principle of judicial comity, on the basis of my own independent consideration of the issue which is raised, and necessary to decide, in the present proceeding, I respectfully decline to follow Dunlop as I am of the view that the conclusion reached in that decision as to the construction of s 77(1) and the meaning of “serious offence” is not correct.  My reasons are as follows.
  6. [19]
    The approach to construction of a statute is well-settled.  It involves construing the words of the provision, having regard to the context for and purpose of the provision – which includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole and, if relevant, the “mischief” which the statute was intended to remedy.[9]
  7. [20]
    The objects of the Act, as set out in s 12(1) are:
    1. to provide a system for licensing and regulating persons as property agents or resident letting agents and for registering and regulating persons as real estate salespersons that achieves an appropriate balance between –
      1. (i)
        the need to regulate for the protection of consumers; and
      1. (ii)
        the need to promote freedom of enterprise in the market place; and
    2. to provide a way of protecting consumers against particular undesirable practices associated with the promotion of residential property.
  8. [21]
    Section 12(2) explains that the objects are to be achieved by, among other things, ensuring only suitable persons with appropriate qualifications are licensed or registered (s 12(2)(a)(i)) and providing protection for consumers in their dealings with licensees (s 12(2)(b)(i)).
  9. [22]
    Part 2 of the Act contains provisions in relation to licensing, including provisions in relation to suitability criteria (division 8, ss 34 to 44) and the immediate suspension and cancellation of licences (division 14, ss 76 and 77).
  10. [23]
    In terms of suitability, s 34(1) relevantly provides that:

“An individual is not a suitable person to hold a licence if the individual is –

…

(b) a person who has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; …”[10]

  1. [24]
    Apart from the immediate cancellation provided for in s 77, the conduct of licensees under the Act may be regulated by disciplinary proceedings heard and determined by QCAT (part 9 of the Act).  In that regard, under s 172(1)(a), the grounds for starting a disciplinary proceeding against a licensee include that “the licensee… has been convicted of an indictable offence or an offence against this Act or the Administration Act”.[11]  Where QCAT finds grounds exist to take disciplinary action, it may make a range of orders (s 186), including an order that the licence be cancelled (s 186(2)(b)).  If QCAT makes an order of that kind, it must also make an order that the person be disqualified for a stated period or permanently from holding a licence (s 186(3)).
  2. [25]
    The court that deals with the proceeding for an offence against the Act also has a discretionary power, in addition to any other penalty it may impose, to make an order that a licensee’s licence be cancelled (s 227(1)).  If the court does make an order that an individual’s licence be cancelled, the court must also order that the person be disqualified from holding a licence for the period stated in the order (s 227(2)).
  3. [26]
    Where QCAT or the court is asked to make an order that a person’s licence be cancelled, the person has the opportunity to be heard before the making of the order.  In contrast, s 77 operates automatically.
  4. [27]
    This distinction was addressed in the explanatory notes accompanying the Property Occupations Bill 2013, where the following was said:

“Clauses 77 and 143 of the Bill provide the chief executive with the power to cancel a licence or registration certificate and without giving the holder an opportunity to make representations as to why the licence or certificate should not be cancelled. This may be considered a breach of the fundamental legislative principals [sic] as immediate cancellation denies the holder of the licence or registration certificate natural justice. However, the inconsistency with the fundamental legislative principle is justified on the grounds that immediate cancellation is limited to the most serious of instances that could cause the greatest detriment to consumers. In particular, a licence may only be cancelled under clause 77 if the licensee is convicted of a serious offence; where the licensee is an individual, if the licensee is an insolvent under administration; or where the licensee is a corporation, if the licensee has been wound up or deregistered under the Commonwealth’s Corporations Act 2001 (Corporations Act). For a registration certificate, the certificate may only be cancelled under clause 143 if the employee is convicted of a serious offence. The happening of any of the events goes to the very core of a licensee’s or registered employee’s suitability to perform the activities authorised by the licence or registration certificate. The immediate cancellation of the licence or registration certificate prevents the likelihood of detriment, or further detriment, to consumers.”[12]

  1. [28]
    Consistently with the evident statutory intent reflected in the explanatory note just referred to, there is a direct correlation between the events which give rise to immediate cancellation and the suitability criteria.  So, relevantly, in the case of an individual, by operation of s 77(1)(a), their licence is cancelled on the happening of the event of being “convicted of a serious offence”; and, under s 34(1)(b), an individual is not suitable to hold a licence if the individual is “a person who has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence”.
  2. [29]
    It follows also that, where s 77(1)(a) operates to immediately cancel a person’s licence, because of their conviction of a serious offence, they will automatically be disqualified from holding a licence for the period of five years, by virtue of the suitability criteria in s 34(1)(b). 
  3. [30]
    In so far as it appears from the objects provision, and the explanatory notes, it is apparent that the purpose of s 77(1)(a) is to protect consumers by ensuring that a person who, although previously considered suitable to hold a relevant licence, is later convicted of a serious offence (as defined), is immediately prevented from performing the activities a licence holder is authorised to undertake, in order to avoid (the risk of) any further detriment to consumers.  
  4. [31]
    I turn now to the words used in the relevant provision(s) to be construed, namely, the definition of “serious offence” in schedule 2, read with s 77(1) of the Act. 
  5. [32]
    As defined, a “serious offence” is characterised both by the nature of the offence (as described in (a) to (g)) and the potential penalty (“punishable by 3 or more years imprisonment”).  The critical word is “punishable”.
  6. [33]
    The meaning of that word has been the subject of judicial consideration.
  7. [34]
    In Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358, Wilcox J construed the word “punishable”, in a similar statutory context,[13] to mean, as a matter of law, “able to be punished by” the specified term of imprisonment.  As his Honour said:

“An offence is so able notwithstanding that it may also be able to be punished by imprisonment for a lesser term.  Such an interpretation not only accords with the natural meaning of the words but is sensible in application.  The purpose of the provision is to prevent extradition for offences of a trivial nature.”[14]

  1. [35]
    Similarly, in Wood v Reason [1977] 1 NSWLR 631, Yeldham J construed the words “punishable on indictment”, in a similar statutory context,[15] to mean “capable of being punished on indictment”, notwithstanding that the relevant legislation (in that case) may confer a discretion on the magistrate to deal with a particular charge summarily.  His Honour observed that it was the “intrinsic gravity of the crime charged” to which the relevant provision was directed and “not to the consequence which, as a matter of procedure, and by the exercise of options or elections which during the course of the hearing may be exercised, in fact eventuates” (at 647).
  2. [36]
    More recently, in AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564, Bromberg J considered the phrase “punishable by” in the context of the definition of “serious Australian offence” in s 5(1) of the Migration Act 1958 (Cth).  As defined, a “serious Australian offence” means an offence of a kind specified in paragraph (a) of the definition and which is “punishable by”, relevantly, “imprisonment for a maximum term of not less than 3 years”.  The applicant in that case was convicted, when aged 17, of “taking or detaining a person with the intention of obtaining an advantage and in the company of another”, under s 86(2)(a) of the Crimes Act 1900 (NSW) (referred to as the 2008 conviction).  That offence carried a maximum penalty of 20 years’ imprisonment (at [7]).  Given his age, he was dealt with in the Childrens Court, which did not have power to impose a sentence of imprisonment.  The applicant argued that, in the circumstances, he had not been convicted of an offence “punishable” by a maximum term of imprisonment of not less than 3 years because he was sentenced by the Children’s Court which cannot impose any sentence of imprisonment.  Bromberg J rejected that argument.  It is helpful to set out his Honour’s reasoning:

“22 To resolve the issue in contest it is necessary to construe the definition of ‘serious Australian offence’ in s 5(1) and in particular the words ‘the offence is punishable by’ in para (b) of that definition.

23 The applicant’s argument was premised on the word ‘offence’ in para (b) of the definition meaning the particular offending by a person rather than the particular crime specified by a statute as an offence. The applicant contended that in order to understand ‘offence’ as defined, it is necessary to look to the conduct in relation to which a person was charged and convicted and the regime under which that was carried out. On that argument, as I understood it, the applicant contended that the words ‘the offence is punishable by’ direct attention to the maximum sentence available in respect of the particular conduct for which a person has been charged and convicted. Accordingly, so the applicant said, the proper question is what was the most severe sentence possible for the applicant in respect of the offence (by which the applicant meant the offending) for which he was charged and convicted. Given that for the offending which resulted in the 2008 conviction the applicant could not be imprisoned because of the operation of s 33(4) of the Children (Criminal Proceedings) Act, the applicant contended that he had not been convicted of an ‘offence … punishable by’ a maximum term of imprisonment of not less than 3 years.

24  There is some textual support for construing the word ‘offence’ when used in para (a) of the definition of ‘serious Australian offence’, as meaning the offending rather than the particular crime specified to be an offence by a statutory provision. The terms of para (a) of the definition suggest that what that paragraph is directed to is whether the particular offending ‘involves’ particular factual characteristics rather than whether the crime specified by the statute ‘involves’ particular elements.

25  However I need not determine that because, in my view, whether ‘offence’ in the critical phrase ‘offence is punishable by’ is an intended reference to the particular offending or to the particular crime specified to be an offence, the applicant’s construction fails.

26  The critical words in question are the words ‘punishable by’. If ‘offence’ means the crime specified as an offence by the statute, the words ‘punishable by’ are directed to the maximum penalty specified by the statute for that offence. If, on the other hand, as the applicant contended ‘offence’ means the particular offending, the words ‘punishable by’ are also directed to the maximum penalty specified by the statute for the offence which the particular offending has engaged and pursuant to which the person was charged and convicted.

27  It is relevant to understand the purpose of para (b) of the definition. It is clear that the paragraph seeks to provide a legislative criteria. In my view, the paragraph seeks to adopt the seriousness or gravity of the particular offence as the relevant legislative criteria rather than the conduct constituting the underlining offending. That may be contrasted with, for example, the character test and the definition of ‘substantial criminal record’ under s 501(6) and 501(7) of the Act which adopts the length of imprisonment as the relevant legislative criteria and thus, by implication, the seriousness or gravity of the conduct in question. If para (b) of the definition had been intended to use the particular offending conduct for which a person has been convicted to provide the legislative criteria of seriousness, it would have focused upon the sentence actually imposed (as does s 501(6) and (7)) rather than what ‘the offence is punishable by’.

28 It is the seriousness of the particular crime specified to be an offence as reflected by the maximum punishment set by Parliament, rather than the seriousness of the offending as reflected by a particular sentence imposed by a court, which provides the criteria intended by para (b) of the definition.  That observation is consonant with the legislative language, context and purpose, including because the words ‘the offence is punishable by’ direct attention to the punishment available to be imposed rather than the punishment actually imposed.

29 The fact that para (b) does not use the punishment actually imposed to provide the criteria for seriousness, strongly supports the proposition that it was intended that the seriousness of the particular statutory offence which the offending has engaged, should provide that criteria.

30 In other words, the criteria for seriousness is fixed upon general rather than individual considerations.  The general consideration chosen is the extent of the maximum penalty prescribed for the particular crime that the offending in question has engaged.  The criteria is indifferent to and in no way concerned with any sentencing limitations that may be imposed by reference to mitigating circumstances applicable to particular persons or groups of persons.

31 All of that tells against the relevance of a bespoke sentencing regime like that provided for by the Children (Criminal Proceedings) Act.  The Tribunal was correct to utilise the maximum penalty prescribed for a contravention of s 86(2)(a) of the Crimes Act, to conclude that the 2008 conviction satisfied the requirement in s 36(1C)(b) that the applicant has been convicted of a ‘particularly serious crime’.”[16]

  1. [37]
    Justice Bromberg was also referred to authority for the principle that a jurisdictional limit on a court’s sentencing power does not affect or alter the prescribed maximum penalty provided for by the statute which creates the offence,[17] and considered that it supported the constructional conclusion he had reached (at [33]). 
  2. [38]
    That principle has most recently been addressed by the High Court in Park v The Queen (2021) 273 CLR 303, which concerned the correct construction of s 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).  That provision requires a sentencing court, in passing sentence for an offence on an offender who has pleaded guilty, to take into account, inter alia, the fact that the offender has pleaded guilty and provides that the court “may accordingly impose a lesser penalty than it would otherwise have imposed”.  The Court affirmed that the “penalty that it would otherwise have imposed” is one determined having regard to the prescribed maximum penalty for the offence (and other relevant factors) and without regard to any jurisdictional limit affecting the particular court’s sentencing power.  Any relevant jurisdictional limit was to be applied after the sentencing judge has determined the appropriate penalty for the offence (at [2]).  Relevantly, the Court said, at [23]:

“An interpretation of s 22 that does not have regard to any jurisdictional limit is consistent with the more general rule that a court exercising summary jurisdiction has regard to the maximum penalty for the offence as the starting point for sentencing, and not a lower jurisdictional limit. This rule was stated by the Court of Criminal Appeal in R v Doan as follows[18]:

‘[W]here the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a ‘worst case’.’”[19]

  1. [39]
    The decision in Park does not directly assist in terms of the meaning to be given to “punishable by”, save that it does affirm that the maximum penalty applicable to an offence remains that which is prescribed by the relevant statute, and is unaffected by any jurisdictional limit that may apply to the particular sentencing court. On that basis, it can appropriately be said that an offence remains punishable by – in the sense of capable, as  matter of law, of being punished by – the maximum penalty, even if a lower jurisdictional limit applies as a consequence of the forum in which the conviction and sentence takes place.  Indeed, as the present case demonstrates, that continues to be the case, even where a prosecutorial election has been made to proceed summarily, given that the magistrate may decide not to deal with the charge in that way (s 225(5)).
  2. [40]
    The meaning of “punishable” was also considered in Coleman v Director of Public Prosecutions (2002) VR 393, in the context of a provision dealing with the trigger for activating a suspended sentence, namely “[i]f … the offender commits … another offence punishable by imprisonment”.[20] In relation to the meaning of “punishable” in that context, Batt JA said this:

“2 The expression directs attention to the offence which the offender in fact subsequently commits.  Now, ‘punishable’ is defined in The Oxford English Dictionary as ‘Liable to punishment; capable of being punished’ and specifically, of an offence, as ‘Entailing punishment’.  Black’s Law Dictionary defines the word, when used of a crime or tort, as ‘giving rise to a specified punishment’.  The question, then, is whether the offence which the appellant subsequently committed was liable to be, or capable of being, visited with punishment by imprisonment.  Did that offence give rise to the possibility of punishment by imprisonment?

3 There are no reported decisions directly on point.  Such decisions as there are on offences ‘punishable on indictment’ show, on the whole, that one must consider the nature of the offence at the time when it is committed and ask whether it is one which can be punished on indictment, for it is to the intrinsic gravity of the subsequent offence that the relevant section is directed, not to the consequence which, as a matter of procedure and by the exercise of options or elections, in fact eventuates: Wood v Reason;[21] Hastings & Folkestone Glassworks Ltd v Kalson;[22] R v Guildhall Justices; Ex parte Marshall;[23] and NSW Crime Commission v D’Agostino.[24] The notable exception to this is R v Melbourne.[25] That case did concern activating a suspended sentence. The offence could be punished by imprisonment if dealt with on indictment, but only by fine if dealt with summarily. It was held that whether the offender had committed another ‘offence punishable by imprisonment’ was to be determined by whether he was dealt with summarily or on indictment. But the case is of no application here, for it does not answer the question relevant here, namely, what the offence is that was committed.”[26]

  1. [41]
    Batt JA found that the relevant provision was concerned with the “intrinsic gravity of the subsequent offending”, and that it was necessary to consider “not whether the subsequent offence was of a kind or generic description that could be punished by imprisonment, but whether the particular offence actually committed was able to be visited with imprisonment”.[27]  Vincent JA likewise held that “[t]he word ‘punishable’ as a matter of standard English language usage would ordinarily refer to the potential for punishment and not to its actual imposition”,[28] and that it was necessary to have regard to the statute creating the offence to determine whether there was a possibility of a sentence of imprisonment being imposed.[29]
  2. [42]
    The offence provision in Coleman, s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), created one offence – unlawful possession of a drug of dependence – but provided for differing maximum penalties, depending upon factual findings made by the sentencing court.  For example, where the court was satisfied the possession was of a small quantity of cannabis, not for any purpose connected with trafficking, the prescribed penalty was a fine not more than 5 penalty units (s 73(1)(a)); where the quantity was greater, but the court was satisfied the possession was not for a purpose relating to trafficking, the prescribed maximum penalty was a higher fine or imprisonment for one year or both (s 73(1)(b)); and otherwise, where the court was satisfied there was a commercial (trafficking) purpose, an even higher fine or up to 5 years’ imprisonment or both (s 73(1)(c)).
  3. [43]
    The Court of Appeal accepted that a finding was made, in the Magistrates Court, that the particular offending fell within (a).[30]  In those circumstances, as Batt JA said, “although the generic offence of having in one’s possession a drug of dependence is capable of being visited with punishment by imprisonment, the specific offence of that general description which the appellant committed was not capable of being visited with punishment by imprisonment”.[31]  Put another way, “the maximum penalty which could lawfully have been imposed upon him for [the] offence to which he pleaded guilty … was a fine”.[32]  Accordingly, it was found that the lower court had erred in finding the offender had breached his suspended sentence, by committing an offence punishable by imprisonment.
  4. [44]
    The analysis in Coleman of the meaning to be given to “punishable” is consistent with the authorities referred to in paragraphs [34], [35] and [36] above; that is, the need to have regard to the nature of the offence at the time it was committed, and to consider whether that offence was punishable (relevantly in that case) with imprisonment.  Coleman does not support the approach of having regard to the “consequence which, as a matter of procedure and by the exercise of options or elections, in fact eventuates”.  The conclusion in that case, that the offence was not one punishable by imprisonment, followed from the terms of the offence provision and the factual circumstances of the offending.   
  5. [45]
    As alluded to in Coleman, a case in which a slightly different approach was taken is R v Melbourne (1980) 2 Cr App R (S) 116.  This case concerned the proper construction of the phrase “offence punishable with imprisonment” in the context of a provision conferring power on a sentencing court to order that a sentence not take effect unless, “during a period specified in the order … the offender commits … another offence punishable with imprisonment” (a suspended sentence).[33]  The offender in that case was subject to two suspended sentences of imprisonment imposed by the Crown Court.  During the operational period, he was convicted by a magistrates’ court of two offences of recklessly making false statements contrary to s 14(1)(b) of the Trade Descriptions Act 1968 (UK) and fined.  He subsequently appeared before the Crown Court and the suspended sentences were activated.  He appealed, arguing that there was no power to activate the suspended sentences because he had not committed “another offence punishable with imprisonment”.  His appeal was successful.  The offence provision (s 14) said nothing about penalty.  In those circumstances, s 18 applied.  Section 18 provided that:

“A person guilty of an offence under this Act for which no other penalty is specified shall be liable –

  1.  on summary conviction, to a fine not exceeding four hundred pounds; and
  1.  on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.”
  1. [46]
    The offender was the subject of a summary conviction before a magistrates court, and so only exposed to a fine, not imprisonment.  In those circumstances, it was held that he had not been convicted of an offence “punishable by imprisonment”.  It is apparent the court in Melbourne considered it appropriate to construe the meaning of “punishable” as at the time when the offender was convicted by the magistrate.  That makes sense, having regard to the wording of the relevant provision (s 18), which conditioned the liability to penalty upon the manner in which the conviction took place.  Using the language from Coleman at [2], under the terms of s 18, the offender was not “liable to” any term of imprisonment on a summary conviction.  That is to be contrasted with the offence provision applicable in the present case, s 206(2), which provides for a maximum penalty of 1,000 penalty units or 5 years, in any case in which the crime of dishonest conversion is committed.
  2. [47]
    The other case in which the meaning of “punishable” was considered is NSW Crime Commission v D’Agostino (1998) 103 A Crim R 113.  In this case, consistent with the authorities referred to, Sperling J construed the word “punishable” by reference to the potential maximum penalty for the relevant offence which applied at the time the offence was committed, without regard to the lower penalty available as a result of the prosecuting authority’s election.  As his Honour said, at 117, “[t]he prosecuting authority’s election to proceed [summarily] did not change the character of the offence at the time it was engaged in”.  As observed in Dunlop at [29], the legislative provisions considered in D’Agostino are distinguishable from the present case, in that the focus of them was on activity engaged in by a person “that was at the time a serious criminal offence”, whether or not the person was later charged or, if charged, convicted.  As such, the decision may be accepted to be of less assistance.  Nevertheless, the following observations made by Sperling J, in an earlier decision of his Honour’s referred to in D’Agostino (at 118), are apt in the present case:

“The seriousness of the offence in the relevant sense is not diminished because the maximum penalty is reduced by election for a particular mode of trial, any more than it is reduced to the maximum penalty which could lawfully be imposed on the particular offender – whether summarily or on indictment – on application of appropriate sentencing principles (which will almost always be much less than the maximum penalty prescribed by law for the generic offence) or reduced to the penalty actually imposed on the particular offender.”

  1. [48]
    As can be seen from the analysis above, there has been a consistent interpretation given to the meaning of “punishable” in equivalent statutory contexts; albeit that the decisions are also consistent in terms of applying that meaning to the particular words used in the statute, viewed in their context, which has sometimes lead to a different result.  The word “punishable by” has been construed to mean “able to be punished by”, “capable of being punished by”, the potential punishment that may be imposed for an offence, or to which an offender is liable – having regard to the nature of the offence at the time it is committed.  
  2. [49]
    As the applicant correctly submits, the definition of “serious offence” is not to be construed in a vacuum; it must be construed having regard to s 77 and the Act as a whole.  In that regard, the applicant emphasises the words “is cancelled on the happening of any of the following events … the licensee is convicted of a serious offence” in s 77(1)(a) and submits that, read together with the definition of “serious offence”, these words indicate that the meaning of “punishable” is to be construed in terms of the potential penalty that may be ordered “on the happening of” the “event” of conviction.  Here, in light of the jurisdictional limit imposed by s 225(7), on a summary conviction, that is imprisonment for no more than one year.  Therefore, the applicant submits, the offence of which he was convicted is not a “serious offence” because it was not, at the time of his conviction, “in reality” punishable by “3 or more years imprisonment”. 
  3. [50]
    In making that submission, the applicant also submits that “it is well known that even offences that carry serious maximum penalties can be committed in trifling or extenuating circumstances”, and that the fact the legislature provides for a summary procedure – with an attendant limitation on the penalty that may be imposed – serves as a filter for less serious cases.  He also submits that it is not consistent with the “balancing” object of the Act that all licensees who commit an offence of a specified kind, that carries a maximum penalty of three years or more, “no matter how minor objectively and irrespective of mitigation, be automatically disqualified, without natural justice, from holding a licence and conducting their livelihood”.
  4. [51]
    On the other hand, the respondent emphasises the consistent line of authority as to the meaning of “punishable” in equivalent statutory contexts, noting that the observations in Coleman, D’Agostino and AFF20 in particular reflect a requirement to consider the punishment available for the specified offence, but importantly also indicate that the approach to be taken is to have regard to the nature of the offence as prescribed by the legislature, not a procedural decision that may be made by a prosecutor.  In that regard, the respondent also emphasises the principle from Park v The Queen, noting that “reflects that the reality of such a penalty reduction [consequent upon a procedural election] is irrelevant to the determination of whether the offence is a ‘serious offence’ or not”. Further, the respondent submits that the decision of a prosecutor to proceed by way of summary proceeding rather than on indictment, which may be made for pragmatic (time or cost efficiency) reasons, does not alter the objective seriousness of the offence:  the seriousness of an offence is determined by the nature of the offence, and the prescribed maximum penalty, not a procedural decision made after it was committed.
  5. [52]
    Leaving to one side the fact that on no basis could the offence in the present case be described as “trifling” or “minor”, I do not accept the applicant’s submissions as to the proper construction of s 77(1)(a) and “serious offence”.  I am respectfully of the view that the decision in Dunlop, on which the applicant heavily relied, in so far as it concerns the construction of these provisions, is not correct. 
  6. [53]
    The purpose of the suitability (s 34(1)(b)) and immediate cancellation (s 77(1)(a)) provisions is to provide an objective benchmark by which to judge the (initial and ongoing) suitability of a person to be authorised, by licence granted under the Act, to perform the kinds of activities contemplated by the Act for others, all of which involve a significant level of trust and confidence.[34]  The imposition of such a benchmark is appropriate, having regard to one of the key objects of the Act, namely, consumer protection.  The Parliament has determined that a person who has been convicted of a serious offence within the preceding five years is not a suitable person to hold such a licence; and where a licensee is convicted of a serious offence, Parliament has determined that the person’s licence should be automatically cancelled, with an operational disqualification period of five years (having regard to s 34(1)(b)).
  7. [54]
    The qualifier “serious” in the phrase “serious offence” is, as a matter of the words used in the definition, informed by both the nature of the offence and the penalty to which the offender is exposed.  It is an objective enquiry, which is not concerned with the actual punishment imposed on the offender (which would take into account subjective factors, including the circumstances of the offending and the offender, and may be affected by the forum in which the conviction and sentence occurs).  Were it otherwise, the definition of “serious offence” would refer to an offence “punished by…” a particular penalty.
  1. [55]
    Having regard to the words used in the definition of “serious offence”, as in the case of the legislation considered in AFF20, it is open to construe the word “offence” either as referring to the crime specified (for example, in paragraph (f), arson) or to the particular offending by a person (for example, for the purpose of paragraph (a), an offence “involving” dishonesty).  But in either case, the seriousness or gravity of the offence is objectively determined by a combination of the nature of the offence and the maximum penalty prescribed by Parliament for that offence, rather than, for example, by reference to subjective or individual factors such as might inform the particular sentence imposed by a court.
  2. [56]
    I accept the respondent’s submission that the objective seriousness of an offence is not affected by a procedural decision of the prosecutor as to the forum in which to prosecute the offence.  That is supported by the principle addressed in Park v The Queen. 
  3. [57]
    It is also reflected in the consistent approach taken in the authorities discussed above, in equivalent statutory contexts, which is to consider the nature of the offence at the time when it is committed, because it is to the “intrinsic gravity” of the offence that s 77(1)(a) and the definition of “serious offence” are directed, not to the consequence which, as a matter of procedure, eventuates.  
  1. [58]
    It is appropriate to infer that the objective intention of the Parliament was to provide for immediate cancellation of a relevant licence where the licensee commits, and is convicted of, an offence of a “certain degree of gravity”.[35]  As Asquith LJ said, in Hastings & Folkestone Glassworks Ltd v Kalson [1949] 1 KB 214 at 221, “[t]he measure of gravity is to be sought … in what can happen to persons guilty of that class of offence, not what does happen to the particular offender in the subsequent chapter of events as the result of the prosecution’s choice to proceed in one way or another”.
  2. [59]
    The reference in s 77(1)(a) to the happening of an “event” of conviction does not support a different construction.  The conviction[36] of a person of a serious offence is the condition precedent to cancellation – mere accusation or charge would not justify such action.  But once there is a conviction, the test is the nature, the intrinsic gravity, of the offence committed.[37]  If it is a “serious offence” as defined, regardless of the procedural election made, the consequence will follow.  It may be observed that, to the extent the legislation is considered to have a harsh outcome in this regard, that is a matter to be addressed by the Parliament, as a matter of legislative policy.[38] 
  3. [60]
    In my respectful view, the contrary interpretation adopted in Dunlop – to construe “punishable by” as calling for consideration of the penalty which may be imposed at the time of conviction, depending upon the procedural election which has been made – is not supported by an analysis of the words of the statute, viewed in their context and having regard to the purpose of the provisions, in light of the earlier authorities which have considered the meaning of the word “punishable” in equivalent contexts and the principle addressed in Park v The Queen.  As to that, the Court in Dunlop stated, at [34],  the principle that I find applies – that “[t]he means used to gauge seriousness is not just the type of offence but also the maximum penalty for the offence”.  In the context of Dunlop itself, the reference here to “maximum penalty” must be taken to mean the jurisdictional limit imposed on the Magistrates Court.  But as the later decision in Park v Queen affirms, the maximum penalty remains unchanged, regardless of the forum of prosecution.  And, as discussed above, although the Court in Dunlop considered that Coleman and Melbourne highlighted the importance of “the reality actually prevailing at the time of conviction”, each of those decisions is explicable having regard to the facts of the actual offending (Coleman) or the structure and language used in the statute (Melbourne), rather than on the basis of application of a different approach, as a matter of principle. 
  4. [61]
    In saying that, it should be emphasised that the earlier decisions are useful only as far as they go, with each of them affirming the central importance of construing the actual words of the applicable statute, in context.  In my view, on the proper construction of the words used in s 77(1)(a) and the definition of “serious offence”, the applicant in this case was convicted of a “serious offence” because he was convicted of an offence involving fraud or dishonesty punishable by three or more years imprisonment (as demonstrated by the maximum penalty prescribed by the offence-creating provision, s 206(2)(a)).
  5. [62]
    The application will therefore be dismissed.
  6. [63]
    As to the costs of the application, having regard to the fact that the question determined in this proceeding was considered in another decision of this Court, Dunlop, with which I have respectfully disagreed, but which provided support for the applicant’s argument, I am inclined to think that the appropriate order is that each party bear their own costs of the proceeding.  But, in the event either party wishes to make submissions contrary to that order, I will make directions accordingly at the time of delivering judgment.

Footnotes

[1]  Section 206(2)(a) of the Property Occupations Act 2014 (Qld).

[2]  See also s 152 of the Penalties and Sentences Act 1992 (Qld) (court must record conviction when making an order of imprisonment).

[3]  The  word “conviction” is defined, in schedule 2, to include a plea of guilty or a finding of guilt by a court, but not to include a plea of guilty or finding of guilty by a court if no conviction is recorded by the court.

[4]  See s 225(8), an “indictable offence” means an offence against the Act “for which the maximum penalty of imprisonment is more than 2 years”.

[5]  It is accepted this was the only available avenue for the applicant to challenge the cancellation of his licence, as there was no “decision” made, of a kind which could be the subject of an application to QCAT for review (cf s 176 and schedule 1 of the Act).

[6]  The offence of which Mr Dunlop was convicted was one of using a carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code 1995 (Cth), arising from the “excessive frequency, manner and content of his contact with council officers”, in relation to complaints about the adverse impacts of a local construction site (at [2]).  He was fined $1,000.

[7]  Section 4J(3)(a) of the Crimes Act 1914 (Cth).

[8]  Underlining added.

[9] R v A2 (2019) 269 CLR 507 at [32]-[37]; see also s 14A(1) of the Acts Interpretation Act 1954 (Qld).

[10]  See s 35 of the Act, in relation to suitability of corporations. Underlining added.

[11] Agents Financial Administration Act 2014 (Qld).

[12]  Underlining added.

[13]  A provision of the Treaty of Extradition between Australia and the Republic of Italy, which provided that extradition shall be granted for an act or omission constituting an offence “if the offence is, according to the laws of both Contracting Parties… punishable by a punishment not less severe than imprisonment or other form of detention for two years”.  

[14] Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 at 367.

[15]  Section 10(6)(a) of the Commercial Agents and Private Inquiry Agents Act 1963 (NSW), which provided for objection to be made to the grant or renewal of a “private inquiry agents’” licence where the person “has been convicted of an offence punishable on indictment”.

[16]  Underlining added.

[17]  By reference to R v Duncan (2007) 172 A Crim R 111 at [20] per Nettle J (see AAF20 v Minister at [32]-[33]).

[18]  (2000) 50 NSWLR 115 at 123 [35].

[19]  Underlining added.

[20]  Section 27(4)(b) of the Sentencing Act 1991 (Vic).

[21]  [1977] 1 NSWLR 631 at 647.

[22]  [1949] 1 KB 214 at 221.

[23]  [1976] 1 WLR 335 at 338.

[24]  (1998) 103 A Crim R 113 at 117.

[25]  (1980) 2 Cr App R (S) 116.

[26]  Underlining added.

[27]  At [4].

[28]  At [20].

[29]  At [21].

[30]  At [5] per Batt JA and at [15] per Vincent JA.

[31]  At [5].

[32]  At [17] per Vincent JA.

[33]  Section 22 of the Powers of Criminal Courts Act 1973 (UK).

[34]  See, for example, s 26 of the Act in relation to what a real estate agent licence authorises – including buying, selling, exchanging or letting real property or businesses and collecting rents.

[35] Hastings & Folkestone Glassworks Ltd v Kalson [1949] 1 KB 214 at 221.

[36]  Remembering that “conviction” is defined in schedule 2 to the Act to include a plea of guilty or a finding of guilt by a court, but not to include a plea of guilty or a finding of guilt by a court if no conviction is recorded by the court.

[37]  Ibid at 222 per Harman J.

[38] NSW Crime Commission v D’Agostino (1998) 103 A Crim R 103 at 118.

Close

Editorial Notes

  • Published Case Name:

    Jaenke v Department of Justice and Attorney-General

  • Shortened Case Name:

    Jaenke v Department of Justice and Attorney-General

  • MNC:

    [2024] QSC 162

  • Court:

    QSC

  • Judge(s):

    Bowskill CJ

  • Date:

    29 Jul 2024

  • Selected for Reporting:

    Editor's Note

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564
2 citations
Jump To
Cite 1 - [2022] FCA 1564
Cite 2 - [2022] FCA 1564
Coleman v Director of Public Prosecutions (2002) VR 393
1 citation
Jump To
Cite 1 - (2002) VR 393
Coleman v DPP (2002) 5 VR 393
2 citations
Jump To
Cite 1 - (2002) 5 VR 393
Cite 2 - (2002) 5 VR 393
Dunlop v Department of Justice and Attorney-General(2020) 4 QR 572; [2020] QSC 160
2 citations
Jump To
Cite 1 - [2020] QSC 160
Cite 2 - [2020] QSC 160
Hastings & Folkestone Glassworks Limited -v- Kalson (1949) 1 KB 214
4 citations
Jump To
Cite 1 - (1949) 1 KB 214
Cite 2 - (1949) 1 KB 214
Cite 3 - (1949) 1 KB 214
Cite 4 - (1949) 1 KB 214
NSW Crime Commission v D'Agostino (1998) 103 A Crim R 113
4 citations
Jump To
Cite 1 - (1998) 103 A Crim R 113
Cite 2 - (1998) 103 A Crim R 113
Cite 3 - (1998) 103 A Crim R 113
Cite 4 - (1998) 103 A Crim R 113
NSW Crime Commission v D’Agostino (1998) 103 A Crim R 103
1 citation
Jump To
Cite 1 - (1998) 103 A Crim R 103
Park v The Queen (2021) 273 CLR 303
2 citations
Jump To
Cite 1 - (2021) 273 CLR 303
Cite 2 - (2021) 273 CLR 303
Prevato v Governor, Metropolitan Remand Centre and Others (1986) 8 FCR 358
3 citations
Jump To
Cite 1 - (1986) 8 FCR 358
Cite 2 - (1986) 8 FCR 358
Cite 3 - (1986) 8 FCR 358
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
R v Doan (2000) 50 NSWLR 115
1 citation
Jump To
Cite 1 - (2000) 50 NSWLR 115
R v Duncan (2007) 172 A Crim R 111
1 citation
Jump To
Cite 1 - (2007) 172 A Crim R 111
R v Melbourne (1980) 2 Cr App R (S) 116
4 citations
Jump To
Cite 1 - (1980) 2 Cr App R (S) 116
Cite 2 - (1980) 2 Cr App R (S) 116
Cite 3 - (1980) 2 Cr App R (S) 116
Cite 4 - (1980) 2 Cr App R (S) 116
Regina v Guildhall Justices; [1976] 1 WLR 335
1 citation
Jump To
Cite 1 - [1976] 1 WLR 335
Wood v Reason & Anor [1977] 1 NSWLR 631
3 citations
Jump To
Cite 1 - [1977] 1 NSWLR 631
Cite 2 - [1977] 1 NSWLR 631
Cite 3 - [1977] 1 NSWLR 631

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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