Bowers v Commonwealth Director of Public Prosecutions [2021] QDC 106

DISTRICT COURT OF QUEENSLAND CITATION: Bowers v Commonwealth Director of Public Prosecutions [2021] QDC 106 PARTIES: DANIEL MORGAN BOWERS (Appellant) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO: 2294/20 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 15 June 2021 DELIVERED AT: Brisbane HEARING DATE: 28 April 2021 JUDGE: Byrne QC DCJ ORDERS: 1. Application for leave to adduce additional evidence refused. 2. Appeal dismissed. CATCHWORDS: APPEAL – s222 Justices Act 1886 – APPEAL AGAINST SENTENCE – LEAVE TO ADDUCE FURTHER EVIDENCE - where appellant seeks leave pursuant to s223(2) of the Justices Act to adduce fresh, additional or substituted evidence – whether the Court considers it appropriate there are special grounds for giving leave to adduce fresh, additional or substituted evidence. APPEAL – s222 Justices Act 1886 – APPEAL AGAINST SENTENCE – SPECIFIC ERROR – MANIFEST EXCESS - where the appellant was convicted of an offence of smoking on an aircraft contrary to Regulation 255(1)(a) of the Civil Aviation Regulations 1988 (Cth) – where the appellant was sentenced in the Brisbane Magistrates Court to a $200 fine with a conviction recorded – whether the sentencing Magistrate’s consideration of the two-stage test under s 19B of the Crimes Act 1914 (Cth) in exercising her sentencing discretion constitutes a specific error – whether the sentence imposed was manifestly excessive -- 1 of 11 -- 2 LEGISLATION: Civil Aviation Regulations 1988 (Cth) Crimes Act 1914 (Cth) Justices Act 1886 (Qld) CASES: Allesch v Maunz (2000) 203 CLR 172 Federal Commissioner of Taxation v Baffsky (2001) 192 ALR 92 Fox v Percy (2003) 214 CLR 118 House v the King (1936) 55 CLR 499 Kentwell v the Queen (2014) 252 CLR 601 Lovell v Lovell (1950) 81 CLR 513 Markarian v The Queen (2005) 228 CLR 357 McDonald v Queensland Police Service [2018] 2 Qd R 612 Norbis v Norbis (1986) 161 CLR 513 Pavlovic v Commissioner of Police [2007] 1 QdR 44 R v Hooper; ex-parte Commonwealth Director of Public Prosecutions [2008] QCA 308 R v Stephens [2021] QCA 127 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Taylor v Lanyon [2006] QDC 321 Warapa v Commonwealth Director of Public Prosecutions [2019] QDC 202 Weininger v The Queen (2003) 212 CLR 629 COUNSEL: Mr M.L. Longhurst for the appellant. Mr G.F. Perry for the respondent. SOLICITORS: TWC Lawyers for the appellant. Office of the Commonwealth Director of Public Prosecutions for the respondent. Introduction [1] On 24 July 2020 the appellant pleaded guilty in the Brisbane Magistrates Court to an offence of smoking on an aircraft contrary to Reg. 255(1)(a) of the Civil Aviation Regulations 1988 (Cth). He was fined $200.00 and, as the offence was contrary to Commonwealth legislation, a conviction was necessarily recorded. [2] This appeal is against the severity of the sentence. More specifically, the appellant complains that the recording of a conviction made the sentence manifestly excessive -- 2 of 11 -- 3 and that the sentencing Magistrate should have proceeded under s 19B of the Crimes Act 1914 (Cth) thereby facilitating the non-recording of a conviction. Grounds of appeal [3] The notice of appeal alleges only one ground of appeal, namely that the sentence was manifestly excessive. The appellant also argued two specific errors, namely that the sentencing Magistrate failed to correctly apply the “two stage test” under s 19B of the Crimes Act and, secondly, that the sentencing Magistrate failed to properly consider or apply s 16A of the Crimes Act thereby leading to the sentencing discretion miscarrying. [4] Although those specific errors were not alleged in the notice of appeal, either by way of grounds of appeal or particulars of the appeal, the respondent has responded to the arguments and the appeal was argued both on the basis of specific error and manifest excess. Nature of the appeal [5] The appeal has been brought pursuant to s 222 of the Justices Act 1886, and so is by way of a rehearing on the record. Section 223(2) of the Justices Act allows for leave to be given to adduce fresh, additional or substituted evidence if the Court is satisfied there are special grounds for giving leave. In this appeal, the appellant has sought to adduce two affidavits that were not before the Magistrate. I received the affidavits in order to determine their admissibility, with the consent of both parties. [6] In this appeal it is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.1 The onus is upon the appellant to show that there is some relevant error in the decision under appeal.2 Given the present appeal is an appeal against the exercise of a discretion, the principles from House v the King3 apply. The appellant submits that there is both specific error and an error of the last category referred to by the High Court in that case. [7] Where specific error is established, the Court’s power to intervene is enlivened and it has a duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. A sentence will be manifestly excessive if it is “unreasonable and plainly unjust”.4 A conclusion to that effect will not be made simply because the appellate court, if in the position of the primary judge, would have taken a different view.5 It follows that the appellate Court will not interfere unless the error in the exercise of discretion below is very 1 Fox v Percy (2003) 214 CLR 118 at [22]-[25]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 2 Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service, ibid. 3 (1936) 55 CLR 499, 504-505. 4 House v The King (1936) 55 CLR 499, 505. 5 House v The King, ibid; Norbis v Norbis (1986) 161 CLR 513, 518-519. -- 3 of 11 -- 4 clear.6 The Court may only intervene if it concludes that the sentence falls outside the permissible range of sentences in light of all of the relevant circumstances including the circumstances pertaining to the offender and to the offence itself.7 Factual allegations [8] The appellant flew from Sydney to Brisbane on 9 January 2020. During the flight, “No Smoking” signs were visible to all passengers, and a pre-flight safety announcement was conducted in which passengers were verbally informed that smoking of both cigarettes and e-cigarettes was prohibited and constituted an offence. [9] Prior to the flight descending into Brisbane, a cabin crew member noticed vapour coming from the appellant’s seat. The appellant was holding an e-cigarette between his legs. It was not then producing vapours but, if switched on, could quickly become capable of producing them. [10] Police spoke to the appellant on his arrival in Brisbane. He told them he suffered from anxiety and started to feel anxious before the aircraft began its descent. He said that he had stopped smoking cigarettes about three weeks previously8 and had used e-cigarettes to help him stop smoking completely. He admitted taking a puff from the e-cigarette. [11] The appellant said he did not listen to the pre-flight announcement because he was wearing noise-cancelling headphones but said he had previously travelled to Brisbane and heard the announcement on those occasions. He said he knew smoking cigarettes on a plane was illegal but said that he did not realize the prohibition extended to e- cigarettes. [12] The appellant was then aged 32 years and had no prior criminal history. He was engaged to be married, and his partner was pregnant with their first child at the time of sentencing. He held a well-paying position as an Associate Director of a digital recruitment firm, which in part involved organising employment for government contracts. [13] The appellant was lawfully in Australia on a visa, but the precise nature and details of the visa were not illuminated at the sentence hearing. He intended to apply for citizenship the next year. [14] The appellant donated his time and efforts to the community involving matters such as charities, helping people update their curricula vitae to gain employment and delivering food to foodbanks established during the then recent Sydney bushfires. 6 Lovell v Lovell (1950) 81 CLR 513, 519, 533 – 534. 7 Kentwell v the Queen (2014) 252 CLR 601, [35]. 8 The submissions at sentence referred to starting to use e-cigarettes about 2 days prior to the incident. That seems to be the version acted on by the sentencing Magistrate, and nothing turns on the discrepancy. -- 4 of 11 -- 5 Reasons for sentence [15] The learned Magistrate accurately recounted the essential factual allegations and the appellant’s personal details. She also noted that the reason for smoking the e-cigarette was said to be to alleviate a bout of anxiety, and that the appellant and his partner hoped to apply for Australian citizenship in the next year. She accepted that the appellant was remorseful, had apologised to the airline and had pleaded guilty. [16] Her Honour noted the prosecutions’ submission that a fine be imposed and the defence submission that an order under s 19B of the Crimes Act was appropriate. Her Honour appreciated that the object of the defence submission was to avoid the necessity of recording of a conviction. Her Honour noted that she was required to be satisfied of “a number of matters” the subject of s 19B of the Crimes Act “and then [sic] after also having regard to those matters as set out in s 16A.”9 [17] Her Honour accepted that the appellant was “a man of very good character and antecedents”.10 Having been satisfied of that, her Honour unfortunately went on to consider the other matters listed in s 19B(1)(b) of the Crimes Act. She expressly found that the offence was not trivial11 and was not committed under extenuating circumstances.12 She observed the need for general deterrence in structuring a sentence in a matter such as the present. [18] Accordingly, her Honour concluded that the appropriate order was not one under s 19B of the Crimes Act. Her Honour stated: “Can I say also, I’ve had regard to those – it would have been obvious during the course of submissions – to what the likely consequences of the recording of a conviction is on your visa and also on your employment, and there really was nothing put before me that would satisfy that – upon which I could be satisfied that there would be any impact, but I appreciate you may well have some concerns about that.” [19] After imposing sentence it was brought to her Honour’s attention that she had incorrectly appreciated the effect of s 19B(1)(b) of the Crimes Act in that she had required all three limbs be satisfied before she considered the sentencing option was available. Her Honour recognised her error and noted that, having been satisfied of the character requirement in s 19B(1)(b)(i) of the Crimes Act, she needed to take into account the matters in s 16A. She said: “And in relation to that particular matter because of the need for general deterrence, I don’t think that it’s expedient in those circumstances…to proceed with the matter under s 19B. 9 Sentencing remarks p.3, ll 24 – 27. 10 Sentencing remarks p.3, ll 29 – 37. 11 Section 19B(1)(b)(ii) of the Crimes Act. 12 Section 19B(1)(b)(iii) of the Crimes Act. -- 5 of 11 -- 6 So that’s … I did express myself and applied that test incorrectly – thank you for raising that, (prosecution solicitor) – but I am satisfied, as you conceded – I think I can be satisfied about the good character and antecedents, but – so I think I did say earlier in my sentencing remarks about addressing s 16A and the need for general deterrence at the time…as well as all of those other circumstances such as the impact on – whether or not there is likely to be any impact on the defendant’s employment and visa, and the circumstances in which the offence occurred.” (underlining added) Application to adduce additional evidence [20] The appellant seeks to adduce additional evidence in the form of two affidavits, namely one under the hand of the appellant and the other from Mr Harman, the Group Managing Director of the appellant’s employer. [21] At sentence the submissions as to the impact of the recording of a conviction on the appellant’s visa status and his intended application for permanent residency were put in terms of an expectation that his visa “might” be cancelled and “he might be put in a show cause at the very, very worse (sic)”.13 [22] As to the impact of a recorded conviction on his employment, it was submitted that the appellant’s opinion was that “his employer would not take kindly to a person in his position having a criminal conviction” and, given his involvement with government agencies, “it could somehow have some impact”.14 [23] The requirement in s 223(2) of the Justices Act 1886 that there be special grounds before leave is given to adduce “new evidence” directs attention both to the reasons why the “new evidence” was not adduced at first instance, and the nature of it.15 A useful summary of the relevant principles concerning the admission of fresh and new or additional evidence, in the context of an appeal against conviction to the Court of Appeal, can be found in R v Stephens.16 [24] The appellant submits that the affidavits should be received, in effect, because they confirm matters “largely” placed before the sentencing court which were “seemingly accepted by Her Honour” and because they “may assume relevance” in the event of re-sentencing in this appeal. Leaving aside for one moment the fact that not all the assertions in the material were in fact accepted by the sentencing Magistrate, the submission does not provide a basis for admission of this material according to accepted principle. [25] Further, it ignores the fact that sentencing in this State has since the creation of Courts in this State proceeded on the basis that assertions from the Bar Table may be 13 Sentencing submissions 1 – 9, ll 20 – 38. 14 Sentencing submissions 1 – 8, ll 33 – 42. 15 Pavlovic v Commissioner of Police [2007] 1 Qd R 44, [30] – [36]. 16 [2021] QCA 127, [30]. -- 6 of 11 -- 7 accepted in the place of strictly proved evidence. For the purpose of sentencing under Commonwealth legislation, this practice receives legislative support by s 16A(2) of the Crimes Act, which the plurality in Weininger v The Queen17 observed permitted the receipt and consideration of material on sentence which had not been strictly proved, and so was not strictly evidence. [26] Accordingly, any re-sentencing will be undertaken on the basis of that material proffered at the original sentence hearing, provided it is accepted as cogent and reliable for the purposes of the re-sentencing. There is no need to “convert” assertions from the Bar Table into affidavit form to make them “evidence”. [27] The appellant’s affidavit does not materially advance the submissions made below, given it is phrased in terms of contingencies, possibilities and personal belief. It is not admissible on this appeal. [28] The employer’s affidavit asserts that the recording of a conviction “will have an ongoing impact” on the appellant’s employment for reasons stated in limited terms therein. Although there is merit in the respondent’s submission that the affidavit is inadmissible as it is opinion evidence which does not sufficiently reveal the foundational material giving rise to the opinion, I consider that a person in the position of the deponent is inherently positioned to express this type of opinion, and it can be assumed that it is based on experience. However, I note that it is carefully worded and refers only to having “an ongoing impact” on the appellant’s employment, rather than suggesting that his employment would likely be terminated. Given that this latter affidavit, at least at face value, advances the parlous state of the evidence below as to the effect of a conviction on the appellant’s employment, it is admissible if it is necessary to admit it to avoid a miscarriage of justice. The issues raised by the appellant go to the weight to be afforded to it. Its admissibility on that basis will be considered below. Consideration Specific Error [29] It is unfortunate that the sentencing Magistrate initially misapplied the test dictated by s 19B of the Crimes Act, and that once the error was brought to her attention she did not precisely conform to the words of the statute. However, it must also be remembered that the sentencing remarks were being delivered ex tempore and some allowance should be made for infelicity in expression.18 [30] In any case, the determination that it was not “expedient in those circumstances to proceed with the matter under s 19B” sufficiently accords with the stated statutory test for me to be satisfied that there is no appealable error in that respect. It is notable that the appellant does not contend that the use of that language suggests an error. 17 (2003) 212 CLR 629, [21]. 18 R v Hooper; ex-parte Commonwealth Director of Public Prosecutions [2008] QCA 308, [23]. -- 7 of 11 -- 8 Rather, it is submitted that the Magistrate failed to engage with the issues raised by s 19B of the Crimes Act as to whether it was inexpedient to inflict any punishment, or anything more than nominal punishment or that it was expedient to order probation. [31] The appellant specifically submits that “with any offence being dealt with in any court, $200.00 is a nominal punishment”.19 It is submitted that the Magistrate failed to appreciate that and, if considered that an appropriate punishment, should then have proceeded under s 19B. It is also more broadly argued that her Honour failed to engage with all considerations in s 16A of the Crimes Act, and had she done so she would have considered that it was inexpedient to impose more than nominal punishment. [32] The first argument cannot be accepted. While $200.00 is obviously not a large fine, particularly for a person with the appellant’s earning capacity, the quantum of the fine is not the only determinant. First, it is about 19 % of the available maximum penalty. Secondly, to say that a fine of that nature is only nominal punishment and therefore should not be imposed is to fetter the sentencing discretion by requiring that only larger fines, the quantum of which has not been identified, can ever be imposed for this offence. Thirdly, the legislative context must be considered. As the offence fell within the Commonwealth regime, the recording of the conviction necessarily occurs where a fine is imposed. The amount of the fine is not the sentence, it is the amount of the fine and the associated recording of the conviction. That is the very reason for this appeal. The pleaded ground of manifest excess has not been withdrawn and the submission cannot stand with that pursued ground of appeal. I need say nothing further about why the submission cannot be accepted. [33] As to the broader submission, it can be accepted that the Magistrate did not, after accepting her error in the approach required by s 19B(1)(b) of the Crimes Act, return to a detailed consideration of each aspect of s 16A of the Crimes Act. But neither in my view was she required to. Her Honour did refer generally to the earlier matters she had referred to.20 [34] The appellant submits that although the factors in s 16A are relevant to the so-called first stage of the sentencing discretion under s 19B,21 the so called second stage of the exercise of the sentencing discretion “required re-engagement” with the various factors contained in s 16A of the Crimes Act. [35] The use of terminology referring to two stages of the sentencing discretion may be apt to suggest that the sentencing Magistrate had to separately consider the matters non-exhaustively listed in s 16A at each separate stage of consideration. But that is not what is required by the decision in Baffsky22 and would in any event be contrary 19 Sentencing submissions 1-5, ll 20 – 21. 20 See [19] herein. 21 Federal Commissioner of Taxation v Baffsky (2001) 192 ALR 92, [10], [15]. 22 supra. -- 8 of 11 -- 9 to the later decision of the High Court in Markarian v The Queen23 which impressed the need to approach the sentencing task with “instinctive synthesis”. [36] Not all factors listed in s 16A(2) will apply in every sentencing matter, and the Magistrate was only required to consider the matters generally. She was not required to proceed through s 16A line by line, although she could have approached it in that manner if she wished to.24 [37] Early in the sentencing remarks, and prior to the express consideration of s 19B, her Honour referred to the circumstances of the offence,25 the appellant’s remorse and co-operation with law enforcement officials,26 the appellant’s antecedents,27 the plea of guilty,28 the likelihood of the sentence impacting on his visa and employment,29 the appellant’s ability to pay a fine,30 and issues of general deterrence.31 It can be seen that her Honour had engaged with the requirements of s 16A, and her general reference to these matters once her initially erroneous approach was identified, as reproduced at [19] herein evidences her application of those matters to the so-called second stage of the exercise of the sentencing discretion. [38] It follows that I am not satisfied that either specific error has been made out. Manifest excess [39] The appellant’s argument on this complaint is to the effect that the necessary recording of the conviction has resulted in a sentence which is manifestly excessive. There is no complaint about the quantum of the fine. [40] It is, I think, necessary to make a general observation first. The appellant’s conduct amounted to a breach of a statutory regulation. It is not a criminal offence. That distinction is relevant when considering the impact that the recording of a conviction is likely to have on the appellant’s visa status, his impending application for citizenship and his employment. This seems to have been appreciated by her Honour, although she did not express it in so many words. [41] Further, it must also be remembered that the appellant smoked an e-cigarette on a plane; not a cigarette involving the application of a naked flame to it, nor of drugs. [42] When these matters are considered with the paltry information placed before her Honour about the effects of recording a conviction would actually have on the appellant, it can be seen that it was well open to not be satisfied that there would be 23 (2005) 228 CLR 357. 24 See for example the approach taken by Morzone QC DCJ in Warapa v Commonwealth Director of Public Prosecutions [2019] QDC 202, [48]. 25 Sentencing remarks p.2, ll 1 – 9; s 16A(2)(a). 26 Sentencing remarks p.2, ll 8 – 10; s 16A(2)(f) & (h). 27 Sentencing remarks p.2, ll 12 – 16; p.2, ll 36 – 47; p.3, ll 1 – 11; p.3, ll 36 – 39; s 16A(2)(m). 28 Sentencing remarks p.2, l 1; p.3, ll 13 – 16; s 16A(2)(g). 29 Sentencing remarks p.5, ll 7 – 12, s 16A(1). 30 Sentencing remarks p.2, l 29; s 16A(1). 31 Sentencing remarks p.2, ll 33 – 34; p.4, ll 45 – 47; s 16A(2)(ja). -- 9 of 11 -- 10 any impact, as her Honour stated. The recording of the conviction may result in some questions being asked, but it was open to find that there would be no real impact. [43] The affidavit of Mr Harman advances the issue a little, but stops short of saying that there is a likelihood the appellant will lose his employment or even that there is a possibility of that. It does refer to an “ongoing impact” in his employment including maintaining “the requisite clearance with Australian Federal and NSW State Government to access recruitment data”, and the ability to access data to pitch for new projects. However, it is not specific about what those ongoing impacts in fact are. [44] It also makes it clear that the appellant has customers other than those referred to above, and it is not suggested that the recording of a conviction would affect his work with those customers. [45] I conclude that the affidavit of Mr Harman advances matters a little but, when proper weight is afforded to it, it does not materially change the conclusions reached by the sentencing Magistrate. [46] I also observe that whilst general deterrence was only one of several matters considered by the sentencing Magistrate, it was in my view deserving of some weight, as it was in fact given. In addition to the dangers of fire and the like on an aircraft, which were minimal here given that there was no naked flame or exposed bed of heat, the potential for panic if passengers saw smoke in the enclosed aircraft cabin was high. In a panic situation the potential for physical harm is wide-ranging. I do not accept that the Magistrate placed undue weight on this factor. [47] Finally, the appellant relies on two decisions of this Court as comparable decisions, namely Taylor v Lanyon32 and Warapa v Commonwealth Director of Public Prosecutions33 to submit that the present sentence is manifestly excessive. [48] Firstly, the decision in Taylor v Lanyon establishes only that the sentencing Magistrate in that matter erred. Rackemann DCJ invited further submissions as to the appropriate sentence, including whether s 19B of the Crimes Act should be activated, but the judgment is silent on the outcome of the appeal. It is not a comparable authority. [49] Secondly, Morzone QC DCJ did re-sentence under s 19B of the Crimes Act in Warapa, but for an entirely different offence committed in materially different circumstances. The submission that because the offending in Warapa was worse than here – which assumes something I am not necessarily convinced of – and so an order should therefore be made in the present matter under s 19B of the Crimes Act is entirely unattractive and does not warrant further consideration. 32 [2006] QDC 321. 33 supra. -- 10 of 11 -- 11 [50] It may well have been that a different Magistrate would have sentenced under s 19B but, as is almost invariably the case, there was not only one appropriate sentence open in the circumstances of the matter. What others might have done is not to the point. It appears to me that the sentence imposed was properly capable of being arrived at in all of the circumstances. Although another sentence could have been imposed, the one that was imposed was not unreasonable or plainly unjust, as that concept is understood as a matter of principle. Conclusion [51] For the reasons contained herein, the affidavit of the appellant is inadmissible and a miscarriage of justice will not result if Mr Harman’s affidavit is not admitted. Therefore leave to adduce further evidence must be refused. [52] The sentence imposed is not the result of appealable error and is not manifestly excessive. Orders [53] The orders I make are as follows: 1. Application for leave to adduce additional evidence refused. 2. Appeal dismissed. -- 11 of 11 --