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Dunlop v Department of Justice and Attorney-General (Qld)

Unreported Citation: [2020] QSC 160

At issue in this interesting case was the correct interpretation of “serious offence” in s 77 of the Property Occupations Act 2014. In particular, the applicant posed the question whether a person convicted of a Commonwealth offence which was punishable by 3 years’ imprisonment but who could only be sentenced to 12 months’ imprisonment because the matter was heard in the Magistrates Court had committed a “serious offence” for the purposes of s 77. Henry J concluded that they had not.

Henry J

5 June 2020

Mr Dunlop held a letting agent licence under the Property Occupations Act 2014 (“the Act”), pursuant to which he was responsible for the body corporate of an apartment complex in Port Douglas. [1]–[2]. He came to be frustrated with the local council in the course of making complaints about the impact on the complex of a nearby construction site. [2]. Ultimately, he was charged with using a carriage service to menace, harass or cause offence contrary to s 474.14 of the Criminal Code 1995 (Cth). [2]. In March 2017, he pleaded guilty to this charge at the Magistrates Court at Mossman. [3] A conviction was recorded and he was fined $1000. [3].

In September 2019, the Queensland Department of Justice informed Mr Dunlop that his licence was deemed cancelled pursuant to s 77 of the Act. [4]. Section 77 relevantly provides: “A licensee’s licence is cancelled on the happening of any of the following events … the licensee is convicted of a serious offence”. [5]. Sch 2 to the Act defines a “serious offence” to be an offence “punishable by 3 or more years imprisonment” that, materially, involves “the use or threatened use of violence”. [6].

Mr Dunlop commenced proceedings, challenging the Department’s decision on two grounds:

1. The conduct constituting his offence did not involve an alleged use or threatened use of violence (“the factual point”); and

2. By reason of s 4J(3) of the Crimes Act 1914 (Cth), he could not have been sentenced to more than 12 months’ imprisonment by the Magistrates Court, and so he was not convicted of an offence “punishable by 3 or more years imprisonment” (“the legal point”). [8].

The Department conceded that Mr Dunlop’s conviction did not involve the use or threatened use of violence, and so s 77 did not apply to him. [10]. Accordingly, the Department contended that the application should be dismissed as it served no utility. [10]. Henry J disagreed, finding both that the legal point is of public importance and so should be determined, and that a declaration would prevent the Department from making similar mistakes in the future. [12]–[13].

Turning to the legal point, Henry J noted that, under s 474.17 Criminal Code 1995 (Cth), the maximum penalty is imprisonment for three years. [17]. However, while there was no doubt that Mr Dunlop was therefore charged with an offence punishable by three or more years’ imprisonment, the pertinent question was whether or not he was convicted of such an offence. [18].

Under s 4J of the Crimes Act 1914 (Cth), where a matter is heard by a court of summary jurisdiction, if the maximum sentence for the offence does not exceed five years’ imprisonment, the court may impose “a sentence of imprisonment for a period not exceeding 12 months”. [19]. The Department submitted that this provision is “merely an incident pf procedure and [does] not alter the category of the offence as an offence theoretically ‘punishable’ … with three years imprisonment”. [20].

In considering the authorities, his Honour identified R v Melbourne (1980) 2 Cr App R (S) 116 as being more relevant. [30]. In that case, the English Court of Appeal observed that when Mr Melbourne was convicted of an offence in the Magistrates Court, “he was not, when before them, convicted of an offence punishable with imprisonment” despite the offence being punishable with imprisonment upon conviction on indictment because the Magistrate had no power to sentence Mr Melbourne to imprisonment. [30]. His Honour identified that similar reasoning had been applied in Australia in Coleman v DP (Vic) (2002) 5 VR 393. [31]–[32]. Accordingly, Henry J emphasised “the importance of the reality actually prevailing at the time of conviction”, a reality which his Honour considered the Department to have ignored. [33].

Henry J found support for Mr Dunlop’s favoured interpretation in the ordinary meaning of the language of s 77 and the definition of “serious offence”. [33]. The suitability assessment in s 77’s mandatory cancellation of a licence required consideration of both the type offence and the maximum penalty for it. [34]. His Honour found that it would be contrary to the Act’s purpose for s 77 to apply for “an offence which, on conviction, only attracted a maximum penalty of 12 months imprisonment”. [34]. Further, the Explanatory Notes on s 77 indicate that its application would be ‘limited to the most serious of instances’, which further supports this interpretation. [39]. It was immaterial that Mr Dunlop required the consent of the prosecutors to have the matter heard in the Magistrates Court as their discretion was also exercised at various other stages of the process. [35].

As applied to the facts of this case, Henry J noted that Mr Dunlop was convicted upon his plea of guilty being accepted and then sentenced in the Magistrates Court in March 2017. [36]. At that time, the effect of s 4J(3)(a) of the Crimes Act 1914 (Cth) was to reduce the maximum sentence available to the Magistrate to 12 months’ imprisonment. [38]. As this was less than the 3 years’ imprisonment required by the definition of “serious offence” in the Act, Mr Dunlop was not convicted of a serious offence. [38].

In the event, Henry J was satisfied that the declarations sought by Mr Dunlop ought to be made. [45].

M Paterson