Campbell v Galea [2019] QDC 53

DISTRICT COURT OF QUEENSLAND CITATION: Campbell v Galea [2019] QDC 53 PARTIES: SENIOR CONSTABLE DARRYL CAMPBELL (appellant) v MARK GALEA (respondent) FILE NO/S: D 170 of 2017 DIVISION: Appellate PROCEEDING: Appeal under s 222 of the Justices Act 1886 ORIGINATING COURT: Magistrates Court at Maroochydore DELIVERED ON: 18 April 2019 DELIVERED AT: Maroochydore HEARING DATE: 22 June 2018 and 2 November 2018 JUDGE: Long SC, DCJ ORDER: 1. The appellant is granted leave to file an amended notice of appeal and the time for doing so is extended to 11 January 2018. 2. The order made by the sentencing magistrate on 1 November 2017 that the respondent be placed on probation for the offence of possession of a controlled drug without authority on 23 September 2017, be varied to be that the respondent is convicted and not punished for that offence. 3. Otherwise, the orders made by the sentencing magistrate on 1 November 2017 are confirmed. CATCHWORDS: CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where respondent pleaded guilty to various offences including an offence of failure to stop a motor vehicle under s 754 Police Powers and Responsibilities Act 2000 – where respondent was sentenced to 2 years probation for failure to stop offence – whether the magistrate erred in imposing probation for the fail to stop offence – whether s 754 excluded imposition of probation orders – whether the sentence was manifestly inadequate in all of the circumstances – whether a case should be stated pursuant to s 227 Justices Act 1886 -- 1 of 27 -- 2 LEGISLATION: Acts Interpretation Act 1954, ss 4, 14A, 14B, 36, 41 Criminal Code, ss 648, 650 District Court of Queensland Act 1967, s 118 Health (Drugs and Poisons) Regulation 1996, s 51(1) Justices Act 1886, s 222, 224, 225, 227 Penalties and Sentences Act 1992, ss 3, 4, 45, 46, 47, 47, 91, 92, 94, 101, 103, 112, 113, 144, 153, 153A, 160A, 180A Police Powers and Responsibilities Act 2000, s 5, 754 CASES: Commissioner of the Police Service v Magistrate Spencer & Ors [2013] QSC 202 Cronin v Commissioner of Police [2016] QDC 63 Doig v Commissioner of Police [2016] QDC 320 Forbes v Jingle [2014] QDC 204 Hili v R (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Kentwell v The Queen (2014) 252 CLR 601 Pogadaev v Commissioner of Police [2015] QCA 25 Pogadaev v Stewart [2016] QDC 316 R v Ham & Anor [2016] QDC 255 R v Pham (2015) 256 CLR 550 Re Australian Federation of Construction Contract Laws; ex parte Billing (1986) 68 ALR 416 at 420 Re Bolton; ex parte Beane (1987) 162 CLR 514 Sbresni v Commissioner of Police [2016] QDC 18 Skinner v The Commissioner of Police [2016] QDC 138 Uittenbosch v Department of Corrective Services [2006] 1 Qd. R. 565 Wong v R (2001) 207 CLR 484 COUNSEL: E Kennedy for the appellant C Reid for the respondent SOLICITORS: Queensland Police Service Legal Services Unit for the appellant Legal Aid Queensland for the respondent -- 2 of 27 -- 3 Introduction [2] This is a prosecution appeal, brought pursuant to s 222(2)(c) of the Justices Act 1886 and against the sentence imposed on the respondent on 1 November 2017, when he pleaded guilty in the Magistrates Court, at Maroochydore, to the following offences:  four offences of possession of a dangerous drug (three committed on 23 September 2017 and the fourth on 11 October 2017);  three offences of possessing a controlled drug without authority (all committed on 23 September 2017);  two offences of possessing utensils/pipes that had been used (respectively committed on 23 September 2017 and 11 October 2017);  an offence of possession of property suspected of having been used in a drug offence (on 23 September 2017);  an offence of unlicensed driving whilst a drug is present (on 23 September 2017);  an offence of driving whilst disqualified (on 23 September 2017);  an offence of failure to stop a motor vehicle (on 23 September 2017);  an offence of failure to appear (on 17 October 2017); and  an offence of contravention of a probation order (on 26 September 2017). [3] Leaving aside the periods of driver licence disqualification imposed and except in respect of the following offences and respective sentences, the sentencing order of the magistrate was that the respondent be placed on probation for two years:  contravention of probation order – $300 fine;  failure to appear – $600 fine;  unlicensed driving whilst drug is present – two months’ imprisonment wholly suspended for three years;  disqualified driving – two months’ imprisonment wholly suspended for two years; and  for two of the offences of possession of a controlled drug without authority – the respondent was convicted and not punished. [4] Broadly, the facts placed before the court were that on 23 September 2017 he was detected, by police, riding a motorcycle in excess of the speed limit. Police activated lights and sirens. The respondent accelerated away, crossing double white lines, -- 3 of 27 -- 4 overtook a taxi and eventually accelerated away from police. However, within 15 minutes another police vehicle located and intercepted the respondent near his motorcycle. He submitted to drug testing which confirmed the presence of methylamphetamine. He admitted to possessing drugs and a search of his backpack located:  72 cold and flu tablets without pharmacist authorisation;  glass cylinders, ice pipes, clip seal bags, mini blow torches and digital scales;  17 dexamphetamine tablets;  8 viagra tablets without prescription;  1.09 grams MDMA in crystal form;  8 MDMA tablets; and  1.14 grams of cocaine. [5] In respect of the further offences committed on 11 October 2017 a bag in the respondent’s vehicle was searched resulting in the location of his identification, one gram of amphetamine and a glass pipe, which he admitted he used to smoke the drug. He also failed to appear at a court mention on 17 October 2017 and a warrant was issued, which was executed when he attended court on 31 October 2017. [6] The respondent was described as being co-operative but lacking remorse. He had prior criminal and traffic histories and a notice to allege relevant previous convictions had been given. [7] For the respondent it was noted that he was 34 years old with a long term history of drug use, which had spiralled out of control about a year previously, which was where his criminal history began. He had lost his ability to work in his chosen profession due to driver licence disqualifications. He had family support and had been placed on probation earlier in 2017. His failure to attend court was as a result of confusion about dates and the ultimate submission was for the magistrate to consider further assistance by way of probation rather than imprisonment, with the appropriate penalties for the failure to stop, health regulation offences, failure to appear and breach of probation being the imposition of fines. [8] However, and upon the magistrate’s indication of a view that probation could be ordered instead of the fine for the failure to stop offence, the defence submission altered to be one supporting probation for that offence. -- 4 of 27 -- 5 The appeal [9] Originally a notice of appeal was lodged within the time period allowed by s 222(1) of the Justices Act 1886. However that notice only identified the “2 year probation order” made in respect of the offence of failure to stop a motor vehicle pursuant to s 754(2) of the PPRA, upon the singular stated ground: “The decision in respect of sentence was in error in that it is inconsistent with the authority of Doig v Commissioner of Police [2016] QDC 320 where it was held that the sentences available to the Court for this offence were limited to a fine or imprisonment or both.” [10] However on 11 January 2018, and therefore outside of the time period allowed in s 222(1), an amended notice of appeal was filed, which sought to identify all of the sentencing orders made on 1 November 2017, as being subject to the appeal upon the following grounds:  “The sentence was manifestly inadequate in all of the circumstances.  The Magistrate erred in determining not to follow Doig v Commissioner of Police [2016] QDC 320 without properly considering the case.  The Magistrate erred in imposing Probation for the Fail to Stop offence.” [11] Further and on 23 April 2018, the appellant filed an application for leave to amend the notice of appeal and an application for an extension of time for filing the amended notice of appeal. The later application may be seen as particularly necessary having regard to the terms of s 222(1) in allowing for appeal in respect of “an order made by justices or a justice in a summary way on a complaint for an offence of breach of duty” and the inclusion of additional such orders in the amended notice of appeal, which was filed out of time. [12] In the result, the respondent did not oppose this appeal proceeding upon the amended notice of appeal or the necessary orders to allow that. Accordingly and in disposing of this matter it will be necessary to make orders granting leave to the appellant to file the amended notice of appeal and extending the time for doing so to 11 January 2018.1 1 See s 224 Justices Act 1886. -- 5 of 27 -- 6 [13] Although there is also a broader contention that the overall effect of the sentence is manifestly inadequate, the crux of the appellant’s contention is as to the submitted illegality of the order that the respondent be admitted to probation for the failure to stop offence. [14] It is also, uncontentiously, noted that there was an error in the imposition of the sentences in that it was not lawfully open to the magistrate to have made the order that the respondent be admitted to probation in respect of the possession of controlled drug offence committed on 23 September 2017. That is because of the offence proscribed by s 51(1) of the Health (Drugs and Poisons) Regulation 1996, providing only for monetary penalty and not imprisonment. [15] As to the failure to stop offence, it is to be noted that, as was the case before the sentencing magistrate, the appellant seeks to have this court follow the decision in Doig v Commissioner of Police [2016] QDC 320 rather than the decision in Forbes v Jingle [2014] QDC 204. It may be noted that the approach of the magistrate was to recognise the conflicting nature of the decisions but to prefer and follow the decision in Forbes v Jingle. The issue [16] The issue arises because of the applicable provisions of s 754(2) of the Police Powers and Responsibilities Act 2000 (“PPRA”), as follow: “(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances. Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility. Maximum penalty—200 penalty units or 3 years imprisonment.” [17] Some context to this issue is to be observed from the decision in Commissioner of the Police Service (Qld) v Magistrate Spencer & Ors [2013] QSC 202. The provisions of s 754(2) of the PPRA and which are applicable in the current case, may be noted to incorporate an amendment made to that sub-section, subsequently to that decision, which was in respect of the interpretation of the sub-section in the following form: -- 6 of 27 -- 7 “(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances. Minimum penalty—50 penalty units or 50 days imprisonment. Maximum penalty—200 penalty units or 3 years imprisonment.” The essential reasoning in Spencer, was as follows: “[15] A breach of s 754 is punishable with imprisonment. Section 91 of the Penalties and Sentences Act 1992 (Qld) provides a probation order may be made if “a court convicts an offender of an offence punishable by imprisonment”. It follows that probation could be imposed by way of penalty under s 754. [16] That possibility is not excluded simply because the maximum penalty is said to be a fine “or” imprisonment. Section 180A of the Penalties and Sentences Act explains such a provision means the sentencing court “may” impose a fine or imprisonment or both. That section’s language is permissive. It does not prescribe that a fine or imprisonment or both are the only forms of sentence that can be imposed under such a provision. It leaves alive the characterisation of s 754 that it is an offence punishable with imprisonment and thus does not exclude the availability of probation under s 91. [17] What though of s 754’s reference to a “minimum penalty” of 50 penalty units? Where, as here, a minimum as well as a maximum penalty is specified then the penalty must not be less than the minimum and not more than the maximum. However, there appears to be no reason grounded in statute or principle why a period of probation ought be regarded as a lesser penalty than a fine. They are inherently different forms of penalty and their relative harshness will vary subjectively, depending on their duration or amount and on the individual circumstances of the offender. Further, the fact that probation arises as a sentencing alternative to imprisonment, whereas a fine is a sentencing option even for offences that are not punishable with imprisonment, suggests as a matter of principle that probation should not be regarded as a lesser sentencing option than a fine. [18] Section 754’s reference to a minimum penalty of 50 penalty units requires that where a fine is imposed it must be at least 50 penalty units. However, it does not require that a fine must be imposed. To construe the penalty provision for the offence in that way would be to ignore that it is also an offence punishable with imprisonment and, it follows, with probation. The wording of s 754 does not inevitably require the imposition of a fine or exclude the availability of a sentence of probation.”2 (citations omitted) 2 Commissioner of the Police Service (Qld) v Magistrate Spencer & Ors [2013] QSC 202 at [15]-[18]. -- 7 of 27 -- 8 [18] In Forbes v Jingle, the Court was required to consider s 754(2) in a relevantly similar amended form to that in which it is to be further considered in this matter,3 as follows: “(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances. Minimum penalty— (a) if the driver is a participant in a criminal organisation within the meaning of the Criminal Code, section 60A—100 penalty units or 100 days imprisonment served wholly in a corrective services facility; or (b) otherwise—50 penalty units or 50 days imprisonment served wholly in a corrective services facility. Maximum penalty—200 penalty units or 3 years imprisonment.” [19] In that case, which also involved a prosecution appeal against the imposition of probation as a sentencing order by a magistrate for an offence pursuant to s 754(2) of the PPRA, the appellant relied upon the amended form of the sub-section and upon the provisions of ss 14A and 14B of the Acts Interpretation Act 1954 (“AIA”) and specifically in the application of s 14B(1)(c), reliance upon the explanatory memorandum to the Bill and in particular the clause providing for the amendment of s 754 and which included the following: “The clause requires the minimum imposition of either the minimum fine or minimum sentence of imprisonment and excludes other sentencing options, for example a good behaviour order, probation, or a suspended sentence.” [20] After noting the reliance by the respondent on observations in Uittenbosch v Department of Corrective Services,4 as to some relevant principles of statutory interpretation, and the contention that “resort should not be had to the explanatory memorandum because the ordinary meaning of the provision did not exclude the power of the Magistrate to impose probation”,5 it was determined that a probation order remained a sentencing option under s 754(2), upon the following essential reasoning: “[24] In Commissioner of Police Service (Qld) v Magistrate Spencer & Ors (supra), Henry J considered the provisions of s 180A of the PSA, which provides: 3 As amended by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013, as in effect from 17 October 2013. 4 [2006] 1 Qd. R. 565 at [12]-[23]. 5 Forbes v Jingle [2014] QDC 204 at [23]. -- 8 of 27 -- 9 ‘A provision of an Act that provides to the effect that the maximum penalty for an offence may be a fine or imprisonment means that the sentencing court may order the offender— (a) to pay a fine; or (b) to be imprisoned; or (c) to pay a fine and also to be imprisoned. Example—‘Maximum penalty—100 penalty units or imprisonment for 2 years' means the offender is liable to— (a) a maximum fine of 100 penalty units; or (b) maximum imprisonment of 2 years; or (c) a maximum fine of 100 penalty units and also maximum imprisonment of 2 years.” [25] For practical purposes, the maximum penalty here is expressed in similar terms to the example provided in s 180A. Section 91 of the PSA provides: ‘If a court convicts an offender of an offence punishable by imprisonment or a regulatory offence, the court may— (a) whether or not it records a conviction—make for the offender a probation order mentioned in section 92(1)(a); or (b) if it records a conviction—make for the offender a probation order mentioned in section 92(1)(b).” [26] The issue that arises here is whether or not the insertion of the words “served wholly in a corrective services facility” after the reference to the minimum penalty of 50 penalty units or 50 days imprisonment means that this was not an offence punishable by imprisonment for the purposes of s 91 of the PSA. [27] As Henry J said in Commissioner of Police Services (Qld) (supra) there appears to be no reason grounded in statute or principle why a period of probation ought to be regarded as a lesser penalty than a fine. [28] Clearly, the offence is one to which s 180A of the PSA applies. Therefore, on its ordinary meaning, s 754 as amended still appears to me to be an offence punishable by imprisonment for the purposes of s 91 of the PSA. It follows, therefore, that the learned Magistrate had the power to make a probation order under s 92(1)(b) of the PSA.”6 (citation omitted) His Honour also dealt with the contentions of the appellant by noting that: (a) Section 14A of the AIA would require resort to the purpose of the PPRA and there was nothing in the purposes set out in s 5 of the PPRA which assisted the appellant’s argument;7 and 6 Ibid at [24]-[28]. 7 Ibid at [30]. -- 9 of 27 -- 10 (b) Given the ability of the legislature to have expressed, in the legislation, that options such as probation or good behaviour bonds were unequivocally excluded and in the absence of such expression and there being no ambiguity or obscurity in the provision, it was not necessary to consider the extrinsic material.8 [21] It is common ground that the decision in Forbes v Jingle was not the subject of any application for leave to appeal,9 and neither, until the decision in Doig v Commissioner of Police [2016] QDC 320, was there any reasoned expression of any contrary view, in this Court. As is noted by the appellant, in Sbresni v Commissioner of Police [2016] QDC 18, Forbes v Jingle was followed and applied but on the expressed concession of the respondent that the magistrate had erred in not doing so.10 And similar circumstances arose when a probation order was imposed in lieu of a sentence of imprisonment suspended after service of 50 days imprisonment, in Skinner v The Commissioner of Police.11 Further and in Cronin v Commissioner of Police,12 the Court proceeded on the basis that: “As already noted, the respondent concedes that the appeal against sentence should be allowed because the learned magistrate impermissibly fettered the sentencing discretion believing no sentencing options other than a mandatory minimum fine were available to him for the failure to stop charge. The appellant therefore must be resentenced.” [22] In addition and for the respondent, references are made to: (a) R v Ham & Anor [2016] QDC 255, where the approach taken in Forbes v Jingle and Spencer, was applied to a conclusion that the minimum penalty prescribed by s 50B(1)(e) of The Weapons Act 1990 does not exclude the operation of ss 91 and 101 Penalties and Sentences Act 1992; (b) R v Shannon Luke Hill, Ind. No. 399/17 at Beenleigh on 2 August 2017, where a probation order was imposed by the same Judge who had dealt with R v Ham, for an offence pursuant to s 754(2) of the PPRA and it was pointed out that there was the same outcome by order 8 Ibid at [29] & [31]. 9 S 118, District Court of Queensland Act 1967. 10 [2016] QDC 18 at [8]. 11 [2016] QDC 138 at [10]-[11] and [14]. 12 [2016] QDC 63 at [39]. -- 10 of 27 -- 11 of a different judge, in R v Greensmith & Ors, Ind. Nos. 503/17 and 139/18, at Southport on 19 March 2018. [23] It is, of course, necessary to note that there may be other examples to be found, where judges of this Court have otherwise and appropriately imposed terms of imprisonment, requiring the service of 50 or more days in actual custody, for such an offence. However and apart from the decision in Doig, no other case is identified as containing any reasoned conclusion that is in conflict with the decision in Forbes v Jingle. And, significantly, it may also be noted that in addition to the history that has been noted, s 754(2) was the subject of legislative attention with effect from 9 December 2016 (coincidently the same date as the decision in Doig),13 when it was amended, by the minimum penalty provision being wholly omitted and reinserted in the form in which it now appears, and was effectively the subject of the decision in Forbes v Jingle. [24] At the outset and in this broader context, it is necessary to note that in Doig the question arose upon an appeal by an offender who had been, respectively, sentenced upon her guilty pleas to the following offences: “1. Dangerous operation of a motor vehicle, Criminal Code s.328A: 9 months’ imprisonment and driver’s licence disqualified for two years. 2. Failing to stop a motor vehicle contrary to s 754 of the Police Powers and Responsibilities Act 2000 (PPRA): 9 months’ imprisonment and disqualified for two years; 3. Driving while over the middle alcohol limit but not the high alcohol limit, Transport Operations (Road Use Management) Act 1995 (TORUM Act) s.78(1A): 2 months’ imprisonment and driver’s license disqualified for one year; 4. Driving while disqualified by court order, s.78(1) TORUM Act: 12 months’ imprisonment and disqualified from driving for three years. Parole release fixed at 27 June 2016 – after serving two months.” And it may be further noted in that specific context and as noted in the judgment, that the particular ground or contention as to the order in respect of the s 754(2) offence was set out as ground 4, as follows: 13 By s 307 of the Serious and Organised Crime Legislation Amendment Act, No 62 of 2016. -- 11 of 27 -- 12 “The sentencing magistrate erred in finding that, if he considered imprisonment was the appropriate sentencing option, that he was constrained by s 754 of the Police Powers and Responsibilities Act 2000 to require that at least 50 days of imprisonment to be actually served, when in light of the decisions of Forbes v Jingle [2014] QDC 204, Sbresni v Commissioner of Police [2016] QDC 18, and Skinner v The Commissioner of Police [2016] QDC 138 his discretion was not constrained in the way he described. The sentencing magistrate consequently failed to consider that, for instance, it was open to impose a sentence of greater than 50 days imprisonment, but with that sentence wholly suspended or with immediate release on parole.”14 [25] In allowing the appeal and substituting various orders, none of which entailed any requirement of actual imprisonment and which in respect of the s 754(2) offence, imposed the minimum fine of 50 penalty units or $5,890, with a direction for registration of those particulars by SPER, the court also noted, in specifically dealing with a broader ground of appeal, which asserted error in the failure of the magistrate to consider the full range of available sentencing options in order to achieve a just sentence including the combination of suspended imprisonment and probation order on respective charges and the imposition of probation orders and fines on respective offences, that the magistrate did say as to the effect of s 754 of the PPRA: “Given the fact that you’re charged with failing to stop the section provides that the alternatives for the court are either a fine or 50 days imprisonment served wholly in a corrective services facility.”15 It was then noted that this was “a reasonable view of the meaning of s 754” but also noted that it is not the view expressed in several decisions of judges of this Court.16 [26] More specifically in relation to the fourth ground of appeal, it was noted that: “[35] In Commissioner of Police Service v Magistrate Spencer and Ors [2013] QSC 202, Henry J was dealing with an application for judicial review of certain decisions of a magistrate including the decision to reopen a sentencing proceeding under s. 188 of the Penalties and Sentences Act 1992 (PSA). [36] With respect to s. 754, which then contained the minimum penalty provision of 50 penalty units, Henry J said probation could be imposed as a penalty under s. 754 because the offence was punishable by imprisonment and s. 91 of the PSA provides that probation may be ordered if ‘a court convicts an 14 See: Doig v Commissioner of Police [2016] QDC 320 at [2(IV)]. 15 See: Doig v Commissioner of Police [2016] QDC 320 at [29]. 16 Doig v Commissioner of Police [2016] QDC 320 at [29]-[30]. -- 12 of 27 -- 13 offender of an offence punishable by imprisonment.’”17 (citations omitted) Then after noting the specific observations in Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202 at [17]-[18], the reasons continued: “[38] Harrison DCJ followed this reasoning in Forbes v Jingle [2014] QDC 204, deciding that the 2013 amendment to the minimum penalty provision did not alter the result. His Honour framed the issue as whether the inclusion of the words, “served wholly in a corrective services facility” excluded the operation of s. 91 of the PSA. These cases were followed in Sbresni, Skinner and Ham & Anor [2016] QDC 255. [39] In my respectful opinion, there are two difficulties with the reasoning in Spencer and Forbes. First, it is not enough to say that because an offence is punishable by imprisonment a probation order is open if a specified minimum penalty is provided for. The question becomes, as Henry J said, what of the minimum penalty provision? If a court were to be required to assess the relative punitive strength of different orders, the question would be not whether, in the abstract or in a particular case, probation is a less serious penalty than a fine, but whether probation would be a less serious penalty than a fine of about $5,500. In any case, the answer that a court must assess the relative punitive strength of different orders in each case requires that there be some hierarchy of sentences, which is the second difficulty.”18 Following that, were reasons for a conclusion that “the scheme of the PSA does not provide a hierarchy of dispositions.” His Honour then expressed his conclusion in the following terms: “[47] Arguably, if there is an implied hierarchy of sentences in the Queensland legislation, probation and community service orders are more serious than a fine. These orders are contained in Part 5 Intermediate Orders, coming after Part 4 Fines and before Part 6 Intensive Correction Orders. But in my opinion the provisions of s.754 do not require or allow a court to decide whether in a particular case, an order of probation or community service is ‘not less than’ a fine of 50 penalty units. [48] The term ‘penalty’ bears a natural meaning - a punishment imposed for a breach. ‘Penalty’ is defined inclusively in PSA s. 4. It ‘includes any fine, compensation, restitution or other amount of money but does not include an offender levy.’ The provisions of the PSA suggest a penalty is something to be paid. Consistently, Schedule 1 to the Acts Interpretation Act provides that “penalty includes forfeiture and punishment”. 17 Ibid at [35]-[36]. 18 Ibid at [38]-[39]. -- 13 of 27 -- 14 [49] The definition of ‘sentence’ in s. 4 of the PSA suggests a distinction between a penalty and imprisonment, and a distinction between those and other orders: Sentence – (a) Means a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded; (Italics added) and (b) …… [50] Once this distinction is understood, the meaning of the penalty provision in s. 754, taken with ss. 41 and 41A of the Acts Interpretation Act and s. 180A of the PSA, is tolerably clear. The range of sentences available to a court under s. 754 is limited to a fine or imprisonment or both not less than the minimum and not greater than the maximum. If this leads to a conclusion which seems unreasonable in a particular case, or which compels the imposition of a fine inconsistent with the capacity of a defendant to pay, that is the result of the legislation. [51] I am not satisfied the learned magistrate erred as argued in support of ground 4.”19 (citations omitted) Discussion [27] It is notable that in none of the decisions which have involved some determination of the meaning of the penalty provisions in s 754(2) of the PPRA, including Doig, has there been any reliance placed upon the provision in the explanatory memorandum. There is good reason for this, in that the primary task in statutory interpretation is to focus upon the text of the provision and to consider it within the context and purpose of the provisions of the statute within which it appears.20 [28] Further, it has been recognised that provisions such as s 14B of the AIA do not permit recourse to extrinsic material: “[F]or the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable”.21 And also that: “The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. 19 Ibid at [47]-[51]. 20 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381. 21 Re Australian Federation of Construction Contract Laws; ex parte Billing (1986) 68 ALR 416 at 420. -- 14 of 27 -- 15 It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.”22 And it may be noted that s 14B(1) which allows for the possibility of recourse to extrinsic material, is expressed to be subject to s 14B(2), which sub-section provides: “(2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to— (a) the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonging proceedings without compensating advantage; and (c) other relevant matters.” [29] Accordingly, it is the words in the legislative enactment which have primacy,23 and it has been recognised that explanatory memoranda may contain incorrect statements of the law or as to the legal effect of enacted provisions.24 [30] However and with all due respect, I am not prepared to adopt the reasoning and conclusion in Doig, and particularly in effectively accepting that the magistrate in that case had correctly determined that s 754(2) of the PPRA provided only for a fine or imprisonment as sentencing options. [31] In my view, there are some problems with the reasoning which is based upon the distinction in the definitions of the terms “penalty” and “sentence” in s 4 of the PSA, without noting that such definitions are expressly as to such terms as used in the PSA. It is also convenient to now note that the purposes of the PSA are noted in s 3 to include: “(a) collecting into a single Act general powers of courts to sentence offenders; and (b) providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration.” Accordingly, it may be noted that the PSA is concerned with the powers available to courts in sentencing convicted offenders. 22 Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518. 23 Nominal defendant v GLG Australia Pty Ltd (2006) 225 ALR 643 at [82]. 24 Brooks v Commissioner of Taxation (2000) 100 FCR 117 at 136. -- 15 of 27 -- 16 [32] Section 754(2) of the PPRA is concerned with proscribing certain behaviour as an offence and it is notable that both in the prescription of the “Minimum Penalty” and the “Maximum Penalty”, no singular such penalty is provided. The expression of a maximum penalty for an offence is a common legislative phenomenon. The expression of a minimum penalty is less common. Each prescription may be seen as indicative of a legislative view of the relative level of seriousness of a particular offence.25 However and for present purposes, what must be noted is the reference to the alternative penalties.26 And so much is consistent with the inclusive definition of “penalty” in schedule 1 of the AIA: “penalty includes forfeiture and punishment.” Which definition is made generally applicable to other Acts, by s 36(1) of the AIA.27 [33] It may also be noted that the provision of a maximum penalty by way of an amount of fine or a stipulated term of imprisonment, is not uncommon in respect of offences that may be expected to be dealt with summarily. Such provisions have never and should not be taken as having the effect of limiting the sentencing actions available to a court to a fine or imprisonment. The clearest reason for this is that recognised in Spencer, in that the other sentencing options will be available by reference to the provisions of the PSA, which provide for them. For example and in relation to “intermediate” or “community based” orders, in the nature of probation and community service, respectively, s 92 and s 103 are engaged: “… if a court convicts an offender of an offence punishable by imprisonment or a regulatory offence.” [34] This fundamental concept is further confirmed by the following definitions in s 4 of the PSA, as applicable to the use of such terms in that Act: “penalty includes any fine, compensation, restitution or other amount of money but does not include an offender levy. … sentence— (a) means a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded; and 25 Cf: Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31] and [65]. 26 Noting that s 32C of the AIA provides that words in the singular include the plural and that words in the plural include the singular. 27 Although and pursuant to s 4 of the AIA, such is subject to “displace[ment] wholly or partly, by a contrary intention appearing in any Act”, such as may be noted in respect of the different definition of “penalty” provided in the PSA. -- 16 of 27 -- 17 (b) for part 10A—includes an order made by a court to deal with the offender for an offence instead of passing sentence.”28 It may be noted that such contentions sit conformably with the provisions of the Criminal Code, s 648 and s 650 and noting that s 650 provides: “If a motion to arrest the judgment is not made or is dismissed, the court may pass sentence upon the offender forthwith or make any other order it may make by law instead of passing sentence.” [35] However and because of the absence of any separate definition of the term “penalty” in the PPRA, that term may be seen as being used in s 754(2) in the sense as defined in s 36 of the AIA and in reference to the alternative punishments (both as to maximum and minimum amounts or duration) of a fine or imprisonment. [36] Further and without any limitation upon the potential availability of “another order”, so much is also anticipated in the PSA in s 180A and s 46, noting that the expression of the power of a court to impose a fine is expressly found in s 45, with s 47 providing that “[u]nless an Act otherwise provides, a court may impose a lesser fine than the fine stated in the Act”. Further, s 45(3)(b) and s 46 deal with the situation where the offence creating provision does not state a maximum amount for any penalty by way of fine, or provide for any sentence. It may also be noted that s 153 of the PSA expressly recognises that less than the prescribed maximum period of imprisonment may be imposed and also that an offender “liable to imprisonment” may be sentenced to pay a fine not exceeding the limits prescribed in s 46 in addition to, or instead of, the imprisonment. And also that s 153A makes provision for maximum terms of imprisonment when “an offender is convicted of an offence punishable by imprisonment, but the maximum term of imprisonment is not prescribed by law”. [37] Neither may the general provisions of s 41 of the AIA be seen to be to any different effect. That section provides: “In an Act, a penalty specified at the end of— (a) a section (whether or not the section is divided into subsections); or (b) a subsection (but not at the end of a section); or (c) a section or subsection and expressed in such a way as to indicate that it applies only to part of the section or subsection; indicates that an offence mentioned in the section, subsection or part is punishable on conviction (whether or not a conviction is recorded) 28 PSA s 4. -- 17 of 27 -- 18 or, if no offence is mentioned, a contravention of the section, subsection or part constitutes an offence against the provision that is punishable on conviction (whether or not a conviction is recorded)— (d) if a minimum as well as a maximum penalty is specified—by a penalty not less than the minimum and not more than the maximum; or (e) in any other case—by a penalty not more than the specified penalty.” The singular expression, particularly in sub-paragraphs (d) and (e) of “a minimum as well as a maximum penalty”, “the minimum”, “the maximum” and “the specified penalty” are not conducive to any conclusion that the prescription in s 754(2) is otherwise than as to the minimums and maximums for the respectively available penalties of fine or imprisonment. Neither can such provisions be taken as carrying any implication as to otherwise available options being necessarily excluded. To so conclude would require a hitherto unprecedented conclusion that such is also the effect of what is commonly employed in prescription of the maximum levels of fine or imprisonment that may be imposed for particular offences.29 And as has been noted, the PSA operates upon an expectation that such alternatives are available along with the other sentencing options made available by that statute. [38] Further, such conclusions may be seen as tending to be confirmed by the immediate context provided by s 754(3) of the PPRA: “(3) If a court convicts a person of an offence against subsection (2), the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for 2 years.” Apart from noting the clarity of the express provision of the requirement of a mandatory order for driver licence disqualification, of the stated duration and no other, it must be noted that by s 754(8), the definition of “sentence” in s 4 of the PSA is adopted into the phrase “whether or not any other sentence is imposed.” As has been noted, that definition relevantly provides that the term means, in addition to a penalty (such as by fine) and imprisonment, “or another order made by a court after an offender is convicted.”30 29 For example and in the PPRA see: s 53BH(1), s 53BI(1), s 53BJ, s 56(4), s 194(3), s 204(5), s 210(5), s 218(2), s 293(3), s 355(2), s 547(1) and (2), s 744(1), s 789AG(2), s 789AI and s 790(1). 30 This adoption of terms from the PSA occurred by amendment made by s 20 of the Transport and Other Legislation Amendment Act, No 43 of 2014, with effect from 5 September 2014 and accordingly, after the hearing but prior to delivery of judgment in Forbes v Jingle. -- 18 of 27 -- 19 [39] Such an approach is also consistent with what was recognised in Uittenbosch v Department of Corrective Services,31 as to the requirement for clarity of expression in respect of derogation from or curtailment of the fundamental right to personal liberty, which is an obvious effect of the provision of a minimum period of actual incarceration for an offence. In the absence of an express statement of such a result, the intention may be found by necessary implication. An example of the first situation may be found in s 9(4)(b) of the PSA.32 [40] As was recognised in Forbes v Jingle, a critical question is as to determining the effect of the addition of the words “served wholly in a corrective services facility”, to the pre-existing statement of the minimum penalty of 50 days imprisonment. [41] As has been noted, the provision of the minimum and maximum parameters for the imposition of penalty by way of fine is the first indication contrary to any necessary implication that the intention was to require the imposition of the penalty of imprisonment, within the stated parameters, as any minimal requirement. Further and once it may be determined, as has been the subject of the reasons stated above, that the provision may be read disjunctively and as directed at stating the parameters within which the specific penalties of fine and imprisonment might be imposed, if appropriate, that may be taken as indication of the relative level of seriousness to be attached to the offending and in that way, relevant to but not necessarily inimicable to consideration of other sentencing options which remain open pursuant to the PSA. And in relation to the imposition of probation as a sentencing order, there is no necessary implication of exclusion because s 91 of the PSA is engaged by this offence being “punishable by imprisonment.” [42] Accordingly, there is no need to attempt the unedifying task of attempting to compare the relative hierarchy of available sentencing options, either generally or in any specific circumstances. And neither is there any necessary implication otherwise to be found in the more specific conclusion in Doig and in respect of the contention expressly raised by the fourth ground of appeal, and with which I agree, that the effect of the minimum prescription for an order involving imprisonment, is a necessary implication of the exclusion of a wholly suspended term of imprisonment and the 31 [2006] 1 Qd. R. 565 at [12]-[18]. 32 Which is a provision that acts as a specific fetter, in the absence of the determination of exceptional circumstances, upon the exercise of sentencing discretion and in ousting the application of other sentencing alternatives. -- 19 of 27 -- 20 fixing of a parole release date earlier than the point at which an offender has served 50 days in actual custody.33 That is because such orders may only be made once it is determined that the imposition of a term of imprisonment is the appropriate response,34 and requires that the term of imprisonment be first imposed,35 and: (a) In respect of an order suspending a term of imprisonment, “may be made only if the court is satisfied that it is appropriate to do so in the circumstances”; and (b) In respect of the fixing of a parole release date, s 160A of the PSA is expressly made applicable “subject to any express provision to the contrary, in an Act, about a particular sentence” and a specific example given is “a provision providing that a minimum term of imprisonment be served”.”36 [43] Another point which arises is as to why in circumstances where s 91 of the PSA is expressed to engage both of the types of probation order mentioned, respectively, in s 92(1)(a) and (b), that it is only the type of order mentioned in s 92(1)(a) that would be excluded. Although, it is necessary to note that s 92(1)(b) is expressed to operate upon the basis that the offender “is sentenced to a term of imprisonment for not longer than one year”, and for similar reasons it would follow that such a term may not be less than 50 days. [44] It may also be that there is such inconsistency as to necessarily exclude the making of an intensive correction order. This is because s 112 of the PSA only allows the making of such an order “[i]f a court sentences an offender to a term of imprisonment of 1 year or less” and s 113 states that “[t]he effect of the order is that the offender is to serve the sentence of imprisonment by way of intensive correction in the community and not in a prison”. [45] Otherwise, it should be concluded that there is no express nor necessary implication of exclusion of sentencing options that are otherwise made available to a court dealing with an offence under s 754(2) of the PPRA. And further that the clear effect of 33 Which may of course be influenced by any declaration as to pre-sentence custody pursuant to s 159A of the PSA. 34 Having regard to the relevant principles to be applied generally and as noted specifically in s 9 of the PSA, including s 9(2). 35 See, respectively, s 144(1) and s 160A(1) of the PSA. 36 See s 160A(4). -- 20 of 27 -- 21 expression of the maximum and minimum parameters relate only to the imposition of each respective sentencing option, where such an option is considered appropriate. [46] Accordingly and albeit for the reasons which have been expressed, it may be noted that the substantial history of acceptance of the effect of the decision in Forbes v Jingle, may be seen as not being coincidental or misplaced and it should be concluded that the sentencing magistrate did not err merely because she imposed probation for the failure to stop offence. Manifest inadequacy? [47] Upon the determination that the sentencing magistrate was not precluded from imposing probation for the failure to stop offence, the remaining question is as to whether “the sentence was manifestly inadequate in all the circumstances”. [48] It may be seen that this ground of appeal is appropriately directed not only at the engagement of s 222(2)(c) of the Justices Act 1886, but also in recognition of the appeal being brought in respect of an exercise of sentencing discretion and which attracts the application of the principles established in House v The King.37 Such a ground of appeal invites attention to the question as to whether the resultant sentence is so inadequate in effect, in the circumstances, as to manifest some error in the exercise of the sentencing discretion and which may otherwise not be apparent or discernible. A manifest error may be demonstrated where the sentence imposed is “out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”.38 In Wong v R,39 and distinguished from cases involving specifically identified error of principle, this “residual category of error” was described as applicable, as follows: “In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” And by way of further explication, it has been observed that: 37 (1936) 55 CLR 499 at 504-5. See: Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] and [18]-[20] and cf: McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 38 Hili v R (2010) 242 CLR 520 at 539 [60]. 39 (2001) 207 CLR 584 at [58]. -- 21 of 27 -- 22 “Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”40 [49] In this case, the appellant also applied to have new evidence admitted for the purpose of any resentencing of the respondent by this Court. However, that application may be put aside, for present purposes, because it was, correctly, also accepted that what is first required is the demonstration of error warranting interference with the orders made by the magistrate and such as to require such resentencing.41 [50] In this regard, the legislative provisions relating to this appeal differ from the provisions which are the subject of the observations in Kentwell v The Queen,42 as to the triggering of a resentencing process. Here it is necessary to note that s 222 of the Justices Act 1886 permits appeals against specific orders made in the exercise of summary jurisdiction under that Act,43 usually and in the absence of any successful application to adduce “new evidence”, conducted as a rehearing on the record,44 rather than a strict appeal, and not requiring the grant of any leave to appeal. Notwithstanding the noted applicability of the House v The King principles, the appeal pursuant to s 222 has been recognized as requiring the Court to conduct a review of the record of the hearing below and ultimately correct any legal, factual or discretionary error of the court below, determined on the basis of that review and this Court’s own conclusions, having regard and giving due weight, to the decision under appeal.45 Necessarily, regard must be had to the issues raised by the grounds of 40 R v Pham (2015) 256 CLR 550 at [28]. 41 And that is quite apart from any consideration of whether the additional material and particularly as it may relate to matters arising subsequently to the orders made by the magistrate and which may involve separate proceedings against the respondent, may be considered in those separate proceedings. 42 (2014) 252 CLR 601 at [42]-[43]. 43 See s 222(1) and the definition of “order” in s 4 of the Justices Act 1886. 44 S 223, Justices Act 1886. 45 See McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]; Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313 at [33]-[34]; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686-7; Fox v Percy (2003) 214 CLR 118 at [25]; Teelow v Commissioner of Police [2009] QCA 84, at [2]-[4]; Tierney v Commissioner of Police [2011] QCA 327 at [26]; Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 at [10]; Commissioner of Police v Al Shakarji [2013] QCA 319; and White v Commissioner of Police [2014] QCA 121. -- 22 of 27 -- 23 appeal.46 And to do so for the purpose of the potential application of the available powers in s 225(1) of the Justices Act 1886: “On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.” As is then apparent from s 225(2), it is only when it has been determined that an order should be set aside that the issue arises as whether to return the matter to the court below or for this Court to resentence the offender. [51] In this case, the identified error in respect of the making of the probation order in respect of the single possession of controlled drug offence, may be seen as an error of a technical or sequencing kind in the imposition of sentence, in that this offence was bundled within the magistrate’s dealing with a particular grouping of offences.47 It is an error of a type which may be seen as having no other effect (potential or actual) upon the exercise of sentencing discretion and entirely amenable to a simple variation as to the formal order made for this offence.48 [52] The further contentions, however, are directed at the exercise of the sentencing discretion. In that respect, the appellant does not seek to refer to comparable cases but rather contends that the imposition of the probation order for two years was a manifestly inadequate sentencing response, in the sense of “fall[ing] outside the permissible range of sentences for the offender and the offence”.49 It is contended, more specifically in respect of the failure to stop offence, that: “… the minimum period of imprisonment ought to have been imposed… given that:  The Respondent was disqualified from driving, has the presence of a drug in his system and was driving erratically, placing other motorists in danger, at the time of the evade;  The Respondent had been sentenced for a s60 Fail to Stop offence only 2 months earlier and that fine had little deterrent effect, in fact the respondent escalated his offending;  The Respondent was already on probation at the time of offending and had not engaged with Probation nor otherwise complied with that order in a meaningful way;  The Respondent showed no remorse other than what can be ascertained by his early plea of guilty.” 46 Justices Act 1886, s 222(8)(a) and see: Forrest v Commissioner of Police [2017] QCA 132 at 5-7. 47 D3.42–4.9, noting that the Verdict and Judgment Record for 1/11/17 includes the subject offence as number 4 in the grouping of 8 offences dealt with in this passage. See also the Bench Charge Sheet for offence 4 of 8, committed on 23/9/17. 48 Which, consistently with s 97 of the PSA was made for a number of offences in one form of order. 49 Kentwell v The Queen (2014) 252 CLR 601 at [35]. -- 23 of 27 -- 24 And further contended that the imposition of the same order: “ … for the 4 Possess Drug offences, Fail to Stop, Possess Property Suspected offence and 2 Possess Utensil offences was inadequate given that:  The not inconsequential amount of drugs found in the Appellant’s possession;  The Respondent had been sentenced to 18 months probation for drug offending only 2 months earlier and had failed to engage or comply, showing that probation had little deterrent effect, in fact the Respondent escalated his offending;  The Respondent submitted that his offending was as a result of drug habit however he had not taken the opportunity afforded to him by the prior probation order and had not taken any other steps towards rehabilitation;  The Respondent showed limited co-operation and no remorse, other than what can be ascertained by his early plea of guilty.”50 [53] There is, as has been noted, the need to have regard to the inherent seriousness of the offence of failing to stop and the remainder of the respondent’s offending must also be regarded as concerning and involving a significant level of seriousness, particularly in the light of the criminal and traffic records and the incidence of reoffending after being placed on probation for 18 months, on 25 July 2017. It may be noted that that was mainly for drug related offending and included an offence under s 60 of the PPRA in failing to comply with a requirement to stop a vehicle. [54] However, and as was particularly noted by the sentencing magistrate, there was an underlying issue in the respondent’s drug addiction and his reoffending had come relatively early in the period of probation that had been imposed in July, and that he had the benefit of the support of Corrective Services as to the prospective utility of ongoing intervention by way of probation, given the minimal engagement under the prior order and with willingness to re-engage with such an order.51 [55] As had been pointed out in submissions made for the respondent, at the age of 34 years his prior criminal history commenced in October 2015, when he was convicted and not punished, without recorded conviction, for an offence of contravention of a domestic violence order, on 29 August 2015. That history then mainly involves drug related offending in March 2016 and the earlier offending in 2017 and for which the earlier probation order was imposed in July 2017. It is also to be noted that whilst the traffic record extended back further, the more recent history also demonstrated an 50 See appellant’s outline of submissions filed 11 January 2018 at [32]-[33]. 51 T1-2.29-34, Court Report dated 23/10/17 and D-2.1-30. -- 24 of 27 -- 25 underlying issue of drug use, albeit with unlicensed driving also involved. It was further explained that his more recent escalation in drug use and offending, was to be viewed in the context of a broken relationship of some 13 years and of which there were two children aged 12 and 8 years, and the loss of a substantial contract for the respondent’s cabinetmaking business. It was also submitted that the driver licence disqualifications which had been attached to the relevant earlier offending also had a substantial impact on his ability to pursue his business. And further pointed out that whilst there were the disqualified driving and failure to stop offences involved, there was no accompanying offence of dangerous operation of a vehicle. In those circumstances, the sentencing magistrate was pressed to consider the prospect of some more intensive supervisory requirements of the respondent and it was submitted that the stage had not then been reached where the imposition of a term of imprisonment was required. [56] Whilst it may be said that acceptance of those submissions required a generous approach to the respondent’s offending and circumstances, having regard to all of the purposes to be achieved in sentencing the respondent, including having regard to his prospects of rehabilitation and the balance to be achieved in the application of the relevant principles, including those in s 9(2) of the PSA, it was open to the sentencing magistrate to do so and the sentences which she imposed and which included an additional requirement for probation for 2 years, with specific additional requirements in respect of drug testing to achieve avoidance of drug use, combined with wholly suspended terms of imprisonment, are not such as to reflect a manifest error or inadequacy in overall effect or specifically in respect of the offence pursuant to s 754(2) of the PPRA. [57] Accordingly it should be concluded that apart from the noted error in respect of the inclusion of the possession of a controlled drug offence in the probation order and which may be addressed by a simple variation of the magistrate’s orders, the appeal should be dismissed. -- 25 of 27 -- 26 A case stated? [58] However and before determining the appropriate orders to be made in disposition of this matter and as was raised in conjunction with the hearing of this appeal, an intention of the appellant was to seek clarification of the position in respect of the sentencing options available to courts dealing with offences pursuant to s 754(2) of the PPRA and that the decision in Doig be followed in that respect. That was noted to occur in the context that there were conflicting District Court decisions on the point and the specific notation, by the sentencing magistrate, of that conflict and awareness of divided views amongst the magistracy as to the appropriate approach.52 [59] Accordingly, submissions were made as to whether this might be an appropriate case for the application of the power in s 227 of the Justices Act 1886 to state a special case for the opinion of the Court of Appeal on “any question or questions of law arising upon the facts of the case”. However and as is apparent from the power of the Court of Appeal there being expressed in terms that the judgement of this Court being subject to being “affirmed amended altered or reversed”, and as confirmed by reference to Pogadaev v Stewart,53 it is first necessary that this Court make a decision on the appeal. Therefore and as appears to have been the case in other instances where the Court of Appeal has considered and dealt with such stated cases,54 in the context of the necessary decision of this Court, the case may be stated by the identification of the question or questions of law to be considered by the Court of Appeal. Subject to the further opportunity of the parties to be heard on the point, if that were to occur here, it may be appropriate to simply state such question in the following terms: “Is the effect of s 754(2) of the Police Powers and Responsibilities Act 2000, in respect of an offender convicted of the proscribed offence, to exclude the operation of s 91(a) of the PSA 1992, so as to preclude the making of an order under s 92(1)(a) of the PSA 1992?” [60] On the hearing of this appeal and whilst the appellant, consistently with the noted approach to this appeal, endorsed the prospect of such a case being stated, the respondent did not do so. That approach may be seen in understanding the individual interest of the respondent in the actual outcome of this matter and concern as to the potential exposure to the cost of further proceedings. In the later respect and 52 T1-10.10-46. 53 [2016] QDC 316 and see: Pogadaev & Ors v Commissioner of Police [2015] QCA 25. 54 E.g: Harrison v Wilkins [1996] QCA 170 and Hodgson v Turner [1996] QCA 482. -- 26 of 27 -- 27 dependant on the determination of this appeal, the prospect of some undertaking by the appellant in respect of such costs was reserved. [61] However when it is noted that those positions have been without the benefit of any clarification of the issues to be obtained from this decision, and also the ability of the appellant to obtain any necessary further clarification, by at least applying for leave to appeal this decision pursuant to s 118 of the District Court of Queensland Act 1967, there arises a question as to whether further consideration of the matter should be pre- empted by stating such a case. Further, even allowing for further consideration of the question, in this Court, would only serve to preserve uncertainty over and further delay in respect of finalization of the respondent’s position. Although there would still remain the fact of the conflicting decision in Doig, this decision and more importantly, given the basis upon which the appellant has approached the matter in this Court, the approach of the appellant as to whether there is any challenge to it, may be expected to substantially add to the history in respect of that issue and be capable of putting the matter to rest, subject, of course, to any further legislative intervention or conflicting decision that may emerge upon a reasoned basis, from this Court. And that, if it occurs, may be an appropriate point at which to act pursuant to s 227 of the Justices Act 1886. Conclusion [62] Accordingly, the appeal is allowed (to the limited extent as has been noted) and the appropriate orders, subject to the parties being heard as to any other necessary order, are: 1. The appellant is granted leave to file an amended notice of appeal and the time for doing so is extended to 11 January 2018. 2. The order made by the sentencing magistrate on 1 November 2017 that the respondent be placed on probation for the offence of possession of a controlled drug without authority on 23 September 2017, be varied to be that the respondent is convicted and not punished for that offence. 3. Otherwise, the orders made by the sentencing magistrate on 1 November 2017 are confirmed. -- 27 of 27 --