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

DISTRICT COURT OF QUEENSLAND CITATION: Avery & Ors v Queensland Police Service [2019] QDC 21 PARTIES: NICHOLAS AVERY JEFFREY CANTOR JULIET LAMONT LUCA LAMONT TESS NEWPORT JOHN ROSS LIISA RUSANEN DANIEL SKERRETT ELLA SKERRETT (Appellants) v. QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 10/2018 2/2018 5/2018 4/2018 3/2018 9/2018 6/2018 7/2018 8/2018 DIVISION: Criminal PROCEEDING: APPEAL ORIGINATING COURT: Magistrates Court at Bowen DELIVERED ON: 22 February 2019 DELIVERED AT: Townsville HEARING DATE: 22 August 2018 JUDGE: Lynham DCJ ORDERS: 1. Appeal 10/2018 (Nicholas Avery) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Nicholas Avery filed on 1 June 2018. (b) Appeal allowed. -- 1 of 48 -- 2 (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,500 is imposed. (d) The sentence is otherwise confirmed. 2. Appeal 2/2018 (Jeffrey Cantor) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Jeffrey Cantor filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $3,000 is imposed. (d) The sentence is otherwise confirmed. 3. Appeal 5/2018 (Juliet Lamont) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Juliet Lamont filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 4. Appeal 4/2018 (Luca Lamont) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Luca Lamont filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 5. Appeal 3/2018 (Tess Newport) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Tess Newport filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the -- 2 of 48 -- 3 extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 6. Appeal 9/2018 (John Ross) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of John Ross filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $3,000 is imposed. (d) The sentence is otherwise confirmed. 7. Appeal 6/2018 (Liisa Rusanen) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Liisa Rusanen filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 8. Appeal 7/2018 (Daniel Skerrett) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Daniel Skerrett filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,500 is imposed. (d) The sentence is otherwise confirmed. 9. Appeal 8/2018 (Ella Skerrett) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Ella Skerrett filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and -- 3 of 48 -- 4 in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 10. I order that the respondent file and serve written submissions as to costs within 21 days. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE EXCESSIVE - Justices Act 1886 – section 222 – where each of the nine appellants convicted on their own pleas of three offences arising out of protest action – whether the sentence imposed on each appellant was manifestly excessive in all of the circumstances – whether the sentencing Magistrate failed to give consideration to parity for some of the appellants on account of differences in personal circumstances – whether section 48 of the Penalties and Sentences Act was considered - where each appellant sought to adduce further evidence as to their financial circumstances – whether leave should be granted to adduce the further evidence LEGISLATION: Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act ss 5, 9, 48, 49, 91, 101 Penalties and Sentences Regulation r 3 Police Powers and Responsibilities Act 2000 (Qld) s 791 Summary Offences Act 2005 (Qld) ss 11, 14 Transport Infrastructure Act 1994 (Qld) ss 225, 292 CASES: Allesch v Maunz (2000) 203 CLR 172 Bamsang Pty Ltd v The Commissioner of Taxation [2016] QDC 189 Bradbury v Henfry (1988) 94 FLR 456 Briggs v Commissioner of Police (unreported judgment of District Court of Queensland dated 27 March 2018, Appeal No. 2/2018) Brock v SA Police; Forrester v SA Police. Unreported Supreme Court of South Australia – Magistrates Appeal (18 August 1993) Brown and Another v Tasmania (2017) 349 ALR 398 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Carlson v Hayward [1996] NTSC 24 Darter v Diden [2006] SASC 152 Djou v Commonwealth Department of Fisheries [2004] WASCA 282 Elias v The Queen (2013) 248 CLR 483 Fry v Bassett (1986) 44 SASR 90 Grajewski v DPP (NSW) [2017] NSWCCA 251 Green v The Queen (2011) 244 CLR 462 Gunn v Thompson (1990) 54 SASR 1 Hoskins v Ramsden [2008] WASC 28 House v The King (1936) 55 CLR 499 -- 4 of 48 -- 5 Jahandideh v R [2014] NSWCCA 178 Kumar v Garvey [2010] QDC 249 Levy v State of Victoria (Duck-Shooting case) (1997) 189 CLR 579 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen (2005) 228 CLR 357 Nelson v Commissioner of Police Pavlovic v Commissioner of Police [2007] 1 Qd R 344 Postiglione v The Queen (1997) 189 CLR 295 R v D [1996] 1 Qd R 363 R v Hoad [2005] QCA 92 R v Jackson [2011] QCA 103 R v KAR & Ors [2018] QCA 211 R v Lovell [1999] 2 Qd R 79 R v MCL [2017] QCA R v Mules [2007] QCA 47 R v Murray [2014] QCA 250 R v Pham [2017] QCA 43 R v Prentice [2003] QCA 34 R v Roberts [2018] EWCA Crim 2739 R v Spina [2012] QCA 179 R v Taylor (1999) 106 A Crim R 578 R v Ungvari [2010] QCA 134 Rongo v Commissioner of Police [2017] QDC 258 Sgroi v R (1989) 40 A Crim R 197 Teelow v Commissioner of Police [2009] 2 Qd R 489 The Queen v De Simoni (1981) 147 CLR 383 Veen v The Queen (No 2) (1988) 164 CLR 465 Watson v Trenerry (1998) 12 NTR 1 COUNSEL: A. Boe and S. McGee for the appellants W. Slack for the respondent SOLICITORS: Caxton Legal service for the appellants Director of Public Prosecutions (Qld) for the respondent Background [1] On 13 March 2018 each of the appellants was convicted on their own pleas of guilty of the following three offences: Charge 1: Trespass contrary to s 11(2) Summary Offences Act 2005 (Qld) (“SOA”); Charge 2: Contravene direction or requirement contrary to s 791(2) Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”); Charge 3: Intentionally or recklessly interfere with ports operation contrary to s 292(1)(b) Transport Infrastructure Act 1994 (Qld) (“TIA”). -- 5 of 48 -- 6 [2] Each appellant was sentenced by way of a single fine of $8,000 imposed in respect to all three offences. Convictions were recorded in respect to the appellant Cantor. Convictions were not recorded in respect to the other appellants. [3] Pursuant to s 222 Justices Act 1886 (Qld) (“JA”) each appellant appeals their sentence. Each appellant’s amended notice of appeal identifies as the sole ground of appeal that the sentence imposed was excessive. The outline of submissions on behalf of each appellant further identifies two errors purportedly made by the Magistrate in the exercise of his sentencing discretion, namely: (a) The sentencing Magistrate’s erroneous determination as to the ambit of his sentencing discretion; and (b) The Magistrate’s treatment of the appellants’ individual financial circumstances and the respective capacity to pay in determining the fine amount. [4] In support of their appeals against sentence, each appellant seeks to adduce further evidence both in support of their respective arguments that the sentences imposed were excessive and, if their appeals are allowed, as further evidence to take into account on their resentencing. The offending [5] The offences to which the appellants pleaded guilty arose out of two separate protest actions at the Adani Abbot Point Coal Terminal in January 2018. The first protest actions occurred on 11 January 2018 and involved the appellants Juliet Lamont, Luca Lamont, Nicholas Avery, Jeffery Cantor and Tess Newport. The facts relied upon by the prosecution with respect to the appellant Newport, which the legal representative who appeared for the appellants accepted were the same facts on which the other four co-offenders were to be sentenced, were outlined to the Magistrate as follows:1 “At about 10.40 pm on the 11th of January 2018, the defendant and a group of associates consisting of a group of males and females have approached the offence location, namely, the Adani Abbot Point coal terminal located at Abbot Point, Bowen. The defendant and others have entered the port facility and unlawfully gained access to a structure on the site, namely the coal loading trestle, which is located at the northern side of the facility. The defendant has climbed about 50 metres in the trestle and locked onto the trestle structure. The location that the defendant has locked on is approximately 20 metres from the ground and houses a large conveyor belt, rollers and electric motors moving coal offshore to ships. Being in this area while it is under operation is inherently high risk due to its height above the ground and open moving machinery which could cause serious injury or death. Shortly after locking onto the structure the defendant was located by coal terminal staff and the plant had to be shut down to prevent injury to the 1 T. 1-5 – 1-6 -- 6 of 48 -- 7 defendant. Police were called to the offence location and on arrival observed one female, the defendant, and four other associates locked onto the trestle structure. A representative of the Abbot Point coal terminal and Constable Mark Gasparotto issued the defendant with a direction to immediately leave the offence location, which the defendant did not comply with. The defendant was issued with a number of warnings that if she failed to comply with the direction to leave she may be committing an offence. …. The defendant failed to comply with the direction … After police had cut two of the adult males from the structure, the defendant released herself from the structure.” [6] The Magistrate was informed that the period of disruption caused by the five appellants’ actions was approximately 7.5 hours which resulted in a “cost impact to terminal users” of $3,992,993.00.2 [7] The second protest action occurred one week later on 18 January 2018 and involved the appellants John Ross, Liisa Rusanen, Daniel Skerrett and Ella Skerrett. The facts outlined to the Magistrate in respect to offences committed on 18 January 2018 were substantially the same as the facts outlined in respect to the offending committed by the other five appellants on 11 January 2018, save that the offending on 18 January 2018 began at 5.30 am, the period of disruption was approximately 6.75 hours and the “cost impact to the terminal users” was calculated at $3,477,769.00.3 Relevant principles [8] The present appeal is brought under s 222 JA. As the appeal relates to sentence only, s 222(2)(c) governs the appeal: “(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” [9] Pursuant to s 223 of the Act, an appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. S 223 provides: (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is - (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced. 2 T. 1-7 relying upon a document supplied by Adani – Exhibit 2 3 T 1-27; Exhibit 2 -- 7 of 48 -- 8 [10] In an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”4 [11] In House v The King, the manner in which an appeal against an exercise of discretion should be determined was expressed by the majority as follows: “… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”5 [12] More recently, in Teelow v Commissioner of Police [2009] 2 Qd R 489, Muir JA at [3]-[4] considered the principles to be applied on an appeal by way of rehearing under s 223 of the Act as follows: “[3] A characteristic of an appeal "by way of rehearing" is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal "by way of rehearing" under r 765(1) of the Uniform Civil Procedure Rules 1999, observed: "It is well settled that a provision that characterises an appeal to this Court as a 'rehearing' ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …” [4] It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, 4 Allesch v Maunz (2000) 203 CLR 172 at 180 5 (1936) 55 CLR 499 at 504-505 -- 8 of 48 -- 9 factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.” On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.” [13] Where, as here, it is argued that the sentence imposed is excessive, the observations of Chesterman J in R v Jackson [2011] QCA 103 at [25] are apposite: “The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.” [14] Finally, the principles which are to be applied when determining an appeal against sentence under s 222(2)(c) JA were, in my view, correctly distilled by Devereux DCJ in Rongo v Commissioner of Police [2017] QDC 258, where his Honour helpfully observed at [22]–[23]: “[22] My view of it is that the purpose of that provision is to focus the appellate proceeding on whether the sentence imposed was excessive. Whether a sentence is “manifestly excessive” can be assessed against various criteria. They are collected neatly in R v Morse [1979] 23 SASR 98. King CJ, with whom the other two members of the court agreed, said: To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender. [23] It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal, because, in each case, the question is whether the sentence was excessive.” -- 9 of 48 -- 10 Common considerations [15] Before turning to the arguments raised on behalf of each appellant as to why the sentences imposed were excessive it is convenient to first deal with some of the considerations common to all of the appellants which are in addition to the circumstances of their offending set out earlier. Maximum penalty [16] Each of the three offences to which the appellants entered pleas of guilty carried different maximum penalties. The maximum penalties available for each offence were as follows: Charge 1: Trespass - 20 penalty units or 1 year’s imprisonment (s.11(2) SOA); Charge 2: Contravene direction – 40 penalty units (s 791(2) PPRA); Charge 3: Interfering with ports operation – 200 penalty units (s 292(1) TIA). [17] Having regard to the prescribed value of a “penalty unit” in respect to each offence,6 charge 1 carried a maximum fine of $2,523, charge 2 a maximum fine of $5,046 and charge 3 a maximum fine of $25,230. Moreover, because both charges 2 and 3 carry with them a penalty of a fine only, a sentence in the form of either community service or probation cannot be imposed.7 Conversely, as the penalty for charge 1 also included a penalty of 1 year’s imprisonment, both community service and probation are available sentencing options. [18] The maximum penalty for an offence is an important factor which a court is required to have regard to.8 The relevance of the maximum penalty in sentencing was explained by the plurality in Markarian v The Queen (2005) 228 CLR 357 at 372 [31]:9 “It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.” (citations omitted) 6 At the relevant time a “penalty unit” had a prescribed value of $126.15: s 5(1) PSA and r 3 Penalties and Sentences Regulation 2015 7 See s 91 and 101 PSA 8 S 9(2)(b) PSA 9 See also R v Murray [2014] QCA 250 per Fraser JA at [16]; R v MCL [2017] QCA 114 per Fraser JA at [16] -- 10 of 48 -- 11 [19] More recently, in Elias v The Queen (2013) 248 CLR 483 the plurality again explained the relevance of the maximum penalty for an offence when determining sentence when it was observed at 494 [27]: “[27] The suggestion that the court’s sentencing discretion is subject to constraint requires examination. Plainly enough, the “constraint” on the court’s discretion that is said to arise from the exercise of the prosecutorial discretion is the maximum penalty for the offence charged. The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature’s assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the “worst case”. As explained in Markarian, for these reasons careful attention is almost always required to the maximum penalty. However, this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination. As also explained in Markarian, in some instances - as where the maximum sentence was fixed at a very high level in the 19th century - reference to it may be of little relevance. As this court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted.” (citations omitted) Capacity to pay a fine [20] Where a court decides to impose a fine on an offender for an offence, s 48 PSA is invoked. In so far as is relevant, s 48 provides as follows: “48 Exercise of power to fine (1) If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account - (a) the financial circumstances of the offender; and (b) the nature of the burden that payment of the fine will be on the offender. (2) The court may fine the offender even though it has been unable to find out about the matters mentioned in subsection (1) (a) and (b). ….. -- 11 of 48 -- 12 (5) In fixing the amount of a fine, the court may have regard to, among other matters - (a) any loss or destruction of, or damage caused to, a person’s property because of the offence; and (b) the value of a benefit received by the person because of the offence.” [21] Where, as here, an offender is being dealt with for two or more offences which are founded on the same facts, it is permissible to impose a single fine for all offences, providing that the fine does not exceed the maximum fines that that could be imposed for each of the offences.10 [22] S 48 PSA mandates that in determining the amount of the fine and the way in which it is to be paid, a court is to take into account both the financial circumstances of the offender as well as the nature of the burden that payment of the fine will be on the offender. S 48 reflects common law principles relevant to a determination of the quantum of a fine to be imposed upon an offender. For example, in Fry v Bassett (1986) 44 SASR 90 at 92, Olsson J explained the common law principles as follows: “It seems to me that, in determining penalty, the learned magistrate was bound to bear in mind two cardinal principles. The first is that, if the Court is contemplating the imposition of a fine, with its alternative default period of imprisonment, there must be a true alternative and not an illusory one. It is nothing short of a contradiction in terms to impose a fine which a defendant has little or no prospect of paying, it being highly likely (if not almost a certainty) that he will have to serve the appropriate default period (Reith v Liersch (1970) 55 LSJS 525 at 526; R v Hall (1968) 52 Cr App R 736 at 738). The second is that, if it is appropriate to impose a fine the quantum of it must in any event be related to the means of a defendant in some logical manner, particularly in the case of persons who are of very limited resources. Whilst fines must, in general, constitute a proper reflection of the gravity of the offending, nevertheless subjective consideration must be given to what level of fine will act as a sufficient level of punishment to a defendant in his particular circumstances. A modest fine towards the lower end of a permissible spectrum may well constitute a very salutary penalty and impose significant hardship on an impecunious person whereas, in the case of a person of means, a penalty higher along the relevant spectrum of reasonable tariffs may be more appropriate.”11 [23] To similar effect, it was held by Roberts-Smith J in Djou v Commonwealth Department of Fisheries [2004] WASCA 282: 10 S 49 PSA 11 See also Bradbury v Henfry (1988) 94 FLR 456, per Nicholson J at 459 -- 12 of 48 -- 13 “[24] It is a well-established principle of law that in sentencing an offender, it is generally improper to impose a fine that is beyond the capacity of the offender to pay. As Owen said in Perez, at [47]: Quite clearly, the general rule is that a fine should not be imposed without an assessment of the means of the offender to pay it, and should not be imposed where the offender has no means to pay. I have already referred to Sgroi in this respect. See also Flego v Lanham (1983) 32 SASR 361 at 366; Fry v Bassett (1986) 85 FLR 334 at 336; Rahme v The Queen (1989) 43 A Crim R 81 at 86. The same general principle has statutory recognition, at least in so far as it relates to an inquiry concerning the means of the offender: Crimes Act 1914 (Cth), s 16A(2)(m) and s 16C(1).” [24] That s 48 PSA mirrors the common law with respect to the considerations relevant to quantifying a fine to be imposed on an offender is supported by the reasons of McGill DCJ in Kumar v Garvey [2010] QDC 249 at [28]-[30]: “[28] As a matter of general sentencing principles the penalty imposed must be appropriate to the offender as well as appropriate to the offence. A fine should not be imposed which is beyond the reasonable capacity of the offender to pay. That applies even if there is no period of default imprisonment, as was the case here where the matter was referred to SPER for collection. It is also necessary to scale the fine to the capacity of the offender to pay in order to comply with the requirements of s 48(1)(b), because imposing the same fine on people with different capacities to pay will mean that some of them are punished much more severely than others for the same offence. This was the point made by McMurdo DCJ (as the President then was) in Allan v Coca where a fine imposed on a defendant receiving Austudy of $75 per week was halved. Her Honour held that the fine “would have been a greater penalty than a substantially larger fine imposed upon an older person with a greater capacity to pay.” [29] One way to look at the matter is by comparing the amount of the fine with the weekly income of the offender, though it is still necessary to have regard to differences in the financial obligations of different offenders: one offender who has no or minimal housing costs and no one to support will be in a much better financial position than someone on the same income who is paying rent and has dependents. There is also the consideration that the financial position of the offender is not to be assessed in the abstract, but as part of the whole sentencing process. In the present case, there was good reason to believe that the appellant’s financial position, which was quite modest anyway, would suffer a significant additional burden as a result of the lengthy period of disqualification which he had to suffer as a result of the offences. The magistrate appears to have recognised that it was appropriate to take into account the relationship between the different parts of the penalty imposed in connection with the overall sentencing process, but it is difficult to see how due regard was paid to that, given the amount of the fines imposed. -- 13 of 48 -- 14 [30] I expect fines of the order imposed by the magistrate are common enough for offences of this nature for ordinary offenders, but the point is that the appellant was not an ordinary offender: his financial position was substantially worse than the average to be expected in the community. In my opinion there was a failure to have sufficient regard to that consideration and as a result the discretion as to the amount of the fine miscarried.” (citations omitted) [25] To like effect, in R v Prentice [2003] QCA 34 Williams JA, in accepting that the capacity of an offender to pay a fine will always be a relevant consideration for a court when assessing the quantum of the fine ordered to be paid, observed at [21]- [22]: “[21] Though reference was made in the sentencing remarks to the applicant’s “capacity to pay” it is unlikely that payment of the fine in total could be realistically achieved. I said in R v Kiripatea [1991] 2 Qd R 686 at 702 (with the concurrence of Shepherdson and Ambrose JJ) that a sentence “should not be a crushing one, and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation”. Those remarks are, to my mind, apposite here. The fine in fact imposed is a crushing one and, if the applicant realistically sees he has no hope of satisfying it, the fine loses its effectiveness; the default provision becomes the sentence in fact. [22] Though fines of the magnitude imposed by the sentencing judge are appropriate to offences of this type when committed in the context of substantial business operations, the fine here, given the personal circumstances of the applicant, is manifestly excessive.” [26] Accordingly, s 48 PSA is clear in its terms that the financial circumstances of an offender is a mandatory consideration which a court is obliged to have regard to when determining the quantum of a fine to impose. Nonetheless, other sentencing considerations will remain important to the exercise of the sentencing discretion when determining the quantum of the fine including the seriousness of the offence, its prevalence as well as considerations of both general and personal deterrence.12 As Malcolm CJ observed in Sgroi v R (1989) 40 A Crim R 197 at 200-201: “Where the fine is appropriate it should not be used merely as a soft option but should have some real sting in it from the point of view of the offender and be sufficiently punitive to act as a general deterrent.” [27] Where an offender is to be sentenced for more than one offence founded on the same facts for which a single fine is permitted to be imposed, totality will also have to be considered when assessing the total amount of the fine imposed.13 12 Darter v Diden [2006] SASC 152, per Doyle CJ at [29]-[30]; Jahandideh v R [2014] NSWCCA 178, per Rothman J at [16]-[17] 13 Sgroi v R (1989) 40 A Crim R 197, per Brinsden J at 203; Hoskins v Ramsden [2008] WASC 28, per Templeman J at [92]; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, per Kirby P at 704; Bamsang Pty Ltd v The Commissioner of Taxation [2016] QDC 189, per Smith DCJ at [27]; -- 14 of 48 -- 15 Parity as between co-offenders [28] As each of the nine appellants pleaded guilty to the same three offences which involved similar offending, parity became a relevant sentencing consideration. The parity principle was explained by Dawson and Gaudron JJ in Postiglione v The Queen14 as follows: “The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.” (citations omitted) [29] Offenders who have been involved in the commission of the same offence should, all things being equal, receive the same sentence. However an assessment of whether all things are equal extends beyond merely a comparison of co-offenders roles or culpability in the commission of an offence. Parity also requires a consideration of differences in factors personal to an offender such as their age, background and criminal history when compared to those of co-offenders.15 As was explained by Gibbs CJ in Lowe v The Queen16: “The approach to be adopted by a court of criminal appeal when it appears that the sentences imposed on co-offenders exhibit disparity is not always stated in the authorities with complete uniformity. It is unnecessary for me to discuss in detail the cases which are cited in other judgments. The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part 14 (1997) 189 CLR 295 at 301-302 15 Green v The Queen (2011) 244 CLR 462 at [31]–[32]; R v KAR & Ors [2018] QCA 211, per Henry J at [135] 16 (1984) 154 CLR 606 at 609 -- 15 of 48 -- 16 which he or she played in the commission of the offence, have to be taken into account.” Pleas of guilty [30] Each appellant was sentenced on their pleas of guilty. The Magistrate correctly acknowledged the timeliness of each appellant’s plea. They were each entitled to the full benefit of their pleas. The proceedings in the Magistrates Court [31] All of the appellants were represented by the same solicitor at sentence on 13 March 2018.17 As this appeal and the criticisms levelled at the appellants solicitor at sentence now demonstrates, there are inherent risks in the same legal representative acting for multiple defendants in the same proceedings even on a plea of guilty.18 I will return to this point later. Given that this appeal involves nine separate appellants, it is necessary to summarise their individual antecedents and personal circumstances as well as the submissions made on their behalf at sentence. Tess Newport19 [32] Ms Newport was aged 22 at the time of sentence. She had no criminal history. At the time of sentence she was residing with her parents in Melbourne. Ms Newport was single, had no children, was unemployed and not in receipt of Centrelink benefits. She was undertaking her fourth year of a Bachelor of Arts degree majoring in sociology at Melbourne University. She undertook a variety of volunteer work including volunteering at an immigration detention centre, at an organisation helping immigrants learn English and with local environmental groups. She had savings of $3,000 which she was said to be living off. Her motivation for committing the offences was to “peacefully demonstrate her opposition to Adani’s proposed Carmichael Coal Mine and to convey the frustration surrounding the lack of action being taken” and her reasons for targeting the coal terminal was to “basically disturb Adani’s operations.” She was supported by character references attesting to her good character. She had entered early pleas of guilty. It was submitted on behalf of Ms Newport that she be sentenced by way of a fine with no convictions recorded. Nicholas Avery20 [33] Mr Avery was aged 27 at the time of sentence. He had no criminal history. At the time of sentence he lived in Sydney, was single and had no dependents. He was employed as the deputy to the Education Officer at Sydney University Post- Graduate Representative Association. He held that employment since December 2016. His income comprised $203 per week from his employment and $250 per week which he received from his sister as rent. He had completed a Bachelor of Arts degree at Melbourne University in 2015. He had a certificate III in retail 17 Not the current legal representatives 18 R v Pham [2017] QCA 43 per McMurdo P at [58]-[60] 19 T. 1-9 line 13 to T.1-10 line 38 20 T.1-14 line 18 to 1-19 line 36; T.1-16 lines 8-20 -- 16 of 48 -- 17 supervision he gained in 2008. He was at the time of sentence enrolled in a Masters in Political Economy at Sydney University which he had commenced in July 2016. Mr Avery also undertook volunteer work. His motivation for committing the offences was because of “his grave concerns that Adani Carmichael Coal Mine would be very damaging to the region” and that he was concerned that “not enough was being done and that politicians have not been listening to people concerned about the project.” It was submitted on Mr Avery’s behalf that he had gone “much further than he usually would to raise awareness about the mine.” He was supported by character references attesting to his good character. He had entered early pleas of guilty. Mr Avery accepted that his offending involving interfering with ports operation was serious. It was submitted on behalf of Mr Avery that he be sentenced by way of a fine and no convictions be recorded. Juliet Lamont21 [34] Ms Lamont was aged 47 at the time of sentence. She had no criminal history. At the time of sentence she lived at Byron Bay in New South Wales. She was the widowed mother of two children, one of whom was her co-defendant Luca Lamont. Her other daughter was aged 16 and was in her care. Ms Lamont worked as a documentary filmmaker but was currently unemployed and was in receipt of Newstart allowance. She received “about $400 weekly.” She was described as an award winning documentary filmmaker of social justice films and had previously won an award for a documentary she had made. Ms Lamont had completed a Bachelor of Creative Arts in 1998. She undertook volunteer work three days a week. Her motivation for committing the offences was “to highlight the real environmental threat of the coal industry on Australia and the world’s ability to avert climate change.” Ms Lamont had entered early pleas of guilty and was supported by one character reference attesting to her good character. It was submitted on behalf of Ms Lamont that she be sentenced by way of a fine and that no convictions be recorded. Luca Lamont22 [35] Ms Lamont was aged 19 at the time of sentence. She had no criminal history. She lived in Melbourne, was single and had no dependents. She was employed in screen printing and earned “approximately $300 per week.” At the time of sentence she was on four weeks unpaid leave from her employment and had a fractured wrist. Ms Lamont was receiving Newstart allowance of $330 per fortnight. She was also employed part-time as a waitress from which she earned “approximately $80” per week, but at the time of sentence was not undertaking that employment. She had previously engaged in volunteer work both for Red Cross and Greenpeace. Her motivation for offending was as a “tribute to her late father, … who was a committed environmentalist and was very concerned about the threat of the Adani coal project to Australia’s future.” Ms Lamont was supported by one character reference attesting to her good character. She had entered early pleas of guilty. It was submitted on behalf of Ms Lamont that she be sentenced by way of a fine and no conviction recorded. 21 T.1-18 line 12 to T.1-19 line 43; T.1-20 lines 21-46 22 T.1-22 line 12 to T.1-23 line 3 -- 17 of 48 -- 18 Jeffrey Cantor23 [36] Mr Cantor was aged 71 at the time of sentence. He was single, had an adult daughter and grandchildren and lived at Trinity Beach. He had been a Petty officer in the Royal Australian Navy from 1963 to 1975 and served in Vietnam. After discharging from the Navy he worked in heavy industry before retiring in 2003. His income consisted of a military pension of $822.53 per fortnight. He undertook volunteer work. He participated in the offences “to draw attention to the potential damage to our reef from the port.” Mr Cantor’s criminal history consisted of the following: 29/07/2003 Cairns MC Behave in a disorderly manner Assault Police Fined $90 Fined $400 No conviction recorded 03/10/2017 Bowen MC Trespass Fined $500 No conviction recorded 11/12/2017 Proserpine MC Contravene direction Fined $750 No conviction recorded [37] Mr Cantor’s previous convictions were described as being for “similar criminal offences.” He entered early pleas of guilty. It was conceded on his behalf that it would be open to the Magistrate to record convictions. It was therefore submitted on Mr Cantor’s behalf that he be sentenced by way of a fine with the concession that convictions could be recorded. Ella Skerrett24 [38] Ms Skerrett was aged 26 at the time of sentence and had no criminal history. At the time of sentence she was living in Bonville New South Wales. She was in a relationship, had no dependents and had been employed as a horticulturist for about 5 months earning “approximately $400 per week depending on the weather and the season.” Ms Skerrett had obtained a certificate IV in horticulture, a certificate IV in permaculture and a certificate II in fashion design. She undertook volunteer work. She participated in the offences “because she feels it’s very important to raise awareness to the severity of the issues of climate change and how widespread the effects of it will be and to [indistinct] our politicians to transition to renewable sources.” She was supported by character references attesting to her good character. She had entered early pleas of guilty. It was submitted on Ms Skerrett’s behalf that she be sentenced by way of a fine and that no convictions be recorded. Liisa Rusanen25 [39] Ms Rusanen was aged 36 at the time of her offending and had no criminal history. At the time of sentence she was single, with two young children from a previous relationship both of whom were in her care and she was living in Coffs Harbour in New South Wales. Ms Rusanen was employed part-time as an administrative officer earning “approximately $125 per week.” She was not receiving any child 23 T.1-25 lines 4 to 22 24 T.1-29 line 23 to T.1-30 line 7 25 T. 1-31 line 23 to 1-32 line 22 -- 18 of 48 -- 19 support. She was also in receipt of a parenting payment of $770 per fortnight and because her son had cystic fibrosis she received an additional $127 per fortnight in the form of a carer’s pension. She had completed a Bachelor of Economics and Social Science degree in 2004. She was undertaking volunteer work. Her son was being schooled at home and Ms Rusanen was his supervisor. Her motivation for committing the offences was because she was “genuinely concerned for the future of her children and humans and ecosystems in the face of the climate emergency. … She took action to demonstrate the severity of the crisis and call for an end to new coal projects and serious action on the climate emergency.” She was supported by character references attesting to her good character and had entered early pleas of guilty. It was submitted on behalf of Ms Rusanen that she be sentenced by way of a fine and that no convictions be recorded. Daniel Skerrett26 [40] Mr Skerrett was aged 30 at the time of sentence and had no criminal history. He lived in Bonville in New South Wales, was single and had no dependents. He was a qualified carpenter and at the time of sentence was employed on a sub-contract basis building a house. He was being paid by his mother at what was described as at a “discount rate” of $500 per week. Were he to return to the workforce as a carpenter he would earn $800 to $900 per week. He undertook volunteer work. He was said to have committed the offences “because of his deep concern about global warming and the frustration of – at the inaction of big business and the government.” He was supported by character references which attested to his good character. He had entered early pleas of guilty. It was submitted on behalf of Mr Skerrett that he be sentenced by way of a fine and that no convictions be recorded. John Ross27 [41] Mr Ross was aged 69 at the time of sentence. He lived in Coffs Harbour in New South Wales, was divorced and had no children. He owned and operated two small businesses. The first was a native plant nursery which he had been operating for about 30 years. The second was a small environmental bookshop which had been operating for about 6 years. His income was described as “modest” and “in the vicinity of $15,000 to $20,000 per year.” Mr Ross had completed a Bachelor of Agriculture in 1970 and also had attained a Diploma in Nutrition and Dietetics in 1971 as well as a Diploma in Environmental Studies in 1980. He undertook volunteer work. He was a founding member two community groups in his local area engaged in land care. He had committed the offences because “he feels that we’re are facing a climate emergency with unthinkable planetary chaos unless we urgently phase out fossil fuel use and replace them with … competitive renewables.” Mr Ross had one previous conviction in 2017 for an offence of contravening a direction for which he was fined $200 and no conviction was recorded. That offence was described in submissions as “similar sort of offending” but “low level”. He was supported by character references attesting to his good character. Mr Ross entered early pleas of guilty. It was submitted on behalf of Mr Ross that he be sentenced by way of a fine and that no convictions be recorded. 26 T.1-33 line 37 to 1-34 line 46 27 T. 1-36 line 32 to 1-37 line 40 -- 19 of 48 -- 20 The Magistrate’s reasons [42] As has been noted already, each of the nine appellants were sentenced to the same penalty, namely a fine of $8,000 with no convictions recorded except in respect to me Mr Cantor. In sentencing the appellants the Magistrate took into account the following: - That they each were to be sentenced as a group as their activities, for all practical intents and purposes, were the same. Whilst their individual circumstances were not the same there were a “lot of similarities there”; - Most of the appellants were from interstate. All had pleaded guilty and were entitled to the full benefit of their pleas. With the exception of Mr Cantor most had no criminal or traffic history; - By their actions they were wanting to impose their subjective views of the world upon other people and that they still believed their actions were justified. Accordingly their remorse was limited despite their early pleas and personal deterrence was a relevant factor; - The courts must be vigilant to ensure the penalty imposed on protestors were focused on particular offending and not against protestors generally. That each were prepared to stand up for their beliefs should be encouraged; - The circumstances of the offending were to be regarded as both serious and dangerous having regard to the fact it involved trespassing into a working port, climbing up onto a trestle and securing themselves off the ground. Their conduct not only exposed themselves to risk of death or serious injury but also could have also exposed port workers and emergency service workers to consequences resulting from their actions; - Each had to be arrested after failing to comply with a direction to leave. The offending lasted for a number of hours. The cost of the disruption had been estimated at $4,000,000 for the 11 January 2018 protests and $3,500,000 for the 18 January protests. Such estimates were to be treated with caution. The demurrage costs (the costs associated with the delays in loading the coal ships) which were estimated to be $5,000 and $4,500 respectively might be more reliable; - None of the appellants had the capacity to pay substantial restitution. General deterrence was an important sentencing consideration as was denunciation. - As Bowen was a small community their actions stretched the limited capacity of the town’s emergency services. There was a discernible financial cost imposed on the police service because of their actions. Whilst the penalty to be imposed needed to have regard to both general and personal deterrence, but not be so severe as to discourage protests generally; - There were no comparative decisions to assist in determining penalty. They each were offenders with limited financial means. All of the charges arose out -- 20 of 48 -- 21 of a single course of conduct and as such a single fine should be imposed. Totality was also relevant to quantifying the fine to be imposed; - Parity was also a relevant consideration. There was limited distinction between the acts engaged in by each of them. The younger appellants appeared to have promising futures; - The early pleas of guilty would usually warrant the maximum penalty being reduced by two-thirds before other mitigating circumstances were taken into account. The seriousness of the offending largely offset the mitigation and personal circumstances relevant to each appellant; - Even if community based orders were available they would not be an appropriate sentencing option for two reasons. First, most of the appellants lived interstate and secondly the ability to perform community service in Bowen was extremely limited; - Having regard to considerations of parity, totality, the circumstances and seriousness of the offending and the need for denunciation it was appropriate that each appellant be fined the same amount even taking into account their individual circumstances; - A fine of $8,000 was appropriate in the circumstances which would be referred to SPER for payment. With the exception of Mr Cantor who had relevant previous convictions for similar offending, the discretion to record a conviction contained in s 12 PSA would be exercised in favour of not recording convictions. Application to adduce further evidence [43] Each appellant seeks leave pursuant to s 223(2) JA to adduce further evidence as to their financial capacity to pay a fine for purposes of s 48 PSA. That application is not opposed by the respondent. The further evidence comes in the form of affidavits deposed by each appellant setting out their current financial circumstances including their income and expenses. The affidavits provide substantially more detail as to each appellant’s financial circumstances than what was before the Magistrate. The appellants contend that the further evidence as deposed in the affidavits should be admitted as it is directly relevant to matters which must be considered under s 48 PSA in determining the amount of the fine that would be just in all the circumstances to impose on each appellant. [44] S 223(2) of the Act confers on the court a discretion to allow a party to adduce “fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.” As was explained by the Court of Appeal in Pavlovic v Commissioner of Police [2007] 1 Qd R 344, the discretion to grant leave to adduce further evidence is not unfettered. At 348-349 the court observed: “[29] In the appeal to the District Court the applicant sought to tender new evidence. This evidence included Ms Prince's letter and what purport to be sworn statements from other persons said to have witnessed the accident. -- 21 of 48 -- 22 The statements were from B. J. Moore and R. Moore. At the hearing on 14 October 2005, the learned District Court judge refused to grant leave to adduce additional evidence pursuant to s. 223 of the Justices Act 1886. [30] In explaining why leave should not be granted, the learned District Court judge cited the “three main considerations” described by Gibbs C.J. in Gallagher v. The Queen as being relevant to a determination of “whether a miscarriage of justice has occurred because evidence now available was not led at the trial”. It is clear that the reference in s. 223(2) of the Justices Act to “special grounds” indicates that there must be good reason identified to justify a departure from the application of the rule in s. 223(1) that an appeal under s. 222 of the Justices Act is “by way of rehearing on the evidence given in the proceeding before the justices”. While Gallagher did not involve consideration of s. 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of “special grounds” which might be said to justify the grant of leave under s. 223(2). [45] It is obvious that the additional information as to each appellants’ individual financial circumstances would have been available at the time of sentence and should have been the subject of submissions to assist the Magistrate in gaining an understanding of each appellants’ true financial circumstances. Regrettably all that the Magistrate was informed about the appellants’ financial circumstances were their individual incomes but not their liabilities or expenses. [46] The principles applying to the exercise of the discretion to admit further evidence on appeal were explained by McMurdo P in R v Spina [2012] QCA 179 at [32] and [34]: “[32] Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v The Queen; Lawless v The Queen and R v Katsidis; ex parte A-G (Qld). New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence. ……. [34] Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is -- 22 of 48 -- 23 not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen; R v Young (No 2); R v Condren; ex parte Attorney-General; R v Main; R v Daley; ex parte A-G (Qld); and R v Katsidis. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.” (citations omitted) [47] Thus under s 223 JA there is a residual discretion in exceptional cases to admit new or further evidence where refusal to do so would result in a miscarriage of justice.28 To determine whether there would be a miscarriage of justice caused by not granting leave to the appellants to adduce the further evidence of their financial circumstances as contained in the affidavits relied upon it is necessary to summarise the contents of each affidavit. N. Avery Income Total income $1090 per fortnight Assets Joint owner of house in Melbourne – estimated value $925,000 Savings Total savings of $4,708.55 Total asset pool (including house in Melbourne) - $467,208.55 Expenses $994 per fortnight Other liabilities HECS debt of $41,305 J. Cantor Income Military pension of $2,204.41 per fortnight Assets Total assets of approximately $28,500 Savings Total savings of $1,116.25 Expenses Estimate of approximately $3,400 per fortnight Liabilities Loans/credit card debts – approximately $23,900 L. Lamont Income Total income - $700 per fortnight 28 R v Clark [2017] QCA 318, per Philippides JA at [14 -- 23 of 48 -- 24 Expenses Total expenses - $600 per fortnight Savings Nil J. Lamont Income Total income $1,071.92 per fortnight Assets Total assets - $4,000 Expenses Total expenses $1,120 per fortnight Liabilities Total liabilities $32,000 T. Newport Income Total income - $452.80 (Newstart allowance) Savings Total savings - $16,060 Expenses Total expenses - $376 per fortnight J. Ross Income Total income $692 per fortnight Assets Total assets - $715,500 (including a property values at $600,000) Expenses Total expenses - $913 per fortnight Other liabilities Total liabilities - $1,700 (credit union loan) L. Rusanen Income Total income - $1,628 Savings Total savings - $15,000 Assets Total assets - $6,842 Expenses Total expenses - $1,800 per fortnight Liabilities HECS debt - $29,000 -- 24 of 48 -- 25 D. Skerrett Income Total income - $600 per week Savings Total savings - $3,000 Assets Total assets - $158,000 (including half share of property) Expenses Total expenses - $685 per fortnight Liabilities Total liabilities - $66,640 (loan) E. Skerrett Income Total income - $700 per fortnight Savings Total savings - $800 Assets Total - $300 (superannuation) Expenses Total expenses - $650 per fortnight [48] Leaving aside some obvious discrepancies between what was said in sentencing submissions and what is contained in the affidavits, it is plainly obvious from this summary that each appellant’s financial circumstances are not the same and they each would appear to have different financial capacities to pay a fine. To that extent the affidavits provide a more comprehensive picture of the appellants’ financial circumstances and their capacity to pay a fine than that which was before the Magistrate. Thus this further evidence, which each appellant now seeks leave to adduce on the appeal, is especially relevant to what a court has to consider under s 48 PSA when determining the quantum of the fine to impose. [49] Having regard to the principles applicable to the exercise of the discretion to permit further evidence to be adduced on appeal, I am satisfied pursuant to s 223(2) JA that special grounds exist for granting leave to adduce the evidence in the form of the affidavits of each appellant relating to their financial circumstances. The evidence, in my view, provides a substantially clearer picture of each appellant’s financial circumstances. The further evidence is relevant to both the financial circumstances of each appellant which a court must take into account under s 48 PSA and is also relevant to the real issue on this appeal, namely, whether the sentence imposed was excessive. The evidence before the Magistrate was insufficient to properly assess each appellants’ true financial circumstances and capacity to pay a fine. In my view a miscarriage of justice would result were the further evidence not adduced on the appeal. Accordingly I will grant leave to the appellants to adduce the further evidence in the form of the affidavits filed. -- 25 of 48 -- 26 Whether the sentences imposed were excessive [50] I turn then to the principal ground of appeal relied upon by each appellant that the sentence imposed upon them was excessive. It is convenient to deal with the specific errors which the appellants also submit were made by the Magistrate in the exercise of his sentencing discretion as part of this principal ground of appeal. [51] I have earlier identified what appear to be the commonality of features relevant to all of the appellants. Their individual involvement in the offending and therefore in a parity sense the level of criminality of each appellant was broadly the same. (This is not challenged by the appellants on appeal). They each entered timely pleas of guilty. All but Mr Cantor and Mr Young were first time offenders. [52] There were however differences in the personal circumstances of each appellant that were, in my view, particularly relevant to the issue of parity and whether it was just in all of the circumstances that each appellant receive the same fine of $8,000. Perhaps the most obvious feature was the age disparity between some of the appellants. Tess Newport was aged 22 and Luca Lamont was aged 19 when sentenced. They were therefore the youngest of the nine appellants and, given their age and lack of prior convictions, fell to be sentenced as youthful first offenders. The age of an offender is of course always a relevant consideration in sentencing29 and the age of Ms Newport and Ms Lamont in particular was especially relevant by reason of them being youthful first offenders who would ordinarily expect to be extended greater leniency in sentence than what might ordinarily be extended to a more mature offender.30 This, in my view, is an important distinction in their personal circumstances when compared to all of the other appellants which justified a greater degree of leniency in the sentence imposed upon them. [53] Nicholas Avery was aged 27, Ella Skerrett was aged 26 and Daniel Skerrett was aged 30 when sentenced. Although not falling into the same category of youthful first offenders as Ms Newport and Ms Lamont, nevertheless they were each to be sentenced as relatively young and first offenders. Lisa Rusanen was aged 36 and Juliet Lamont was aged 47 when sentenced. Neither could properly be described as youthful offenders but nevertheless they were both to be sentenced as first offenders. Finally, Jeffrey Cantor was aged 71 and John Ross aged 69 at the time of sentence. Neither could be described as youthful offenders and, more significantly, each had at least one prior conviction for similar offending. In the case of Mr Ross, he had one recent previous conviction for contravening a direction which was described in sentencing submissions as “similar sort of offending”. Mr Cantor had been before the Magistrates Court on three previous occasions including twice in 2017, again for what was described in sentencing submissions as similar offending to that which he was being sentenced for. Therefore both Mr Cantor and Mr Young were to be sentenced as mature offenders with a relevant criminal history. [54] This disparity in the appellants antecedents highlighted by this brief summary was an important consideration in terms of parity and whether it was just in all of the circumstances that each appellant should receive the same sentence. Whilst it could be said that each appellant had not dissimilar backgrounds (all appear to be well 29 S 9(2)(f) PSA 30 R v Lovell [1999] 2 Qd R 79; R v Taylor (1999) 106 A Crim R 578; R v Mules [2007] QCA 47 -- 26 of 48 -- 27 educated or otherwise have been productive members of the community), each were supported by character references attesting to their otherwise good character and that their motivation for engaging in the protest action was the same, their personal circumstances, including their age and previous criminal histories, were obviously not the same. In terms of parity, it is difficult to conclude that the personal circumstances of Tess Newport and Luca Lamont, as young first offenders, are on par with those of Jeffrey Cantor and John Ross, who were each being sentenced as mature offenders with at least one prior conviction for similar offending. The personal circumstances of the other five appellants could be said to be roughly similar in that whilst not being youthful offenders per se, they otherwise had unblemished backgrounds, were each supported by favourable character references and were all first offenders. [55] Whilst I accept that in terms of individual culpability there was nothing which materially distinguished each appellant’s conduct in the offending, in my view the parity principle necessitated at least some disparity in the sentences imposed to take into account their personal circumstances. Differences in the age and criminal history of co-offenders will be relevant considerations in terms of parity. Here, taking into account the distinct differences in antecedents and personal circumstances of the appellants, they can in a broad sense be said to fall into three different groups for purposes of parity. Tess Newport and Luca Lamont, who in contrast with the other appellants were youthful first offenders, fell to be sentenced as one group. Nicholas Avery, Ella Skerrett, Daniel Skerrett, Lisa Rusanen and Juliet Lamont who, although not youthful offenders in the same way as Ms Newport and Ms Lamont, nevertheless as first offenders fell to be sentenced as a group. Finally Jeffery Cantor and John Ross, who were both mature offenders with a relevant prior criminal history, because of those particular features fell to be sentenced as a group distinct from their co-offenders. [56] There is also one other feature relevant to parity here which is not commonplace when issues of parity are raised for consideration. This relates to the individual financial circumstances of each appellant and their capacity to pay a fine. This additional feature arises having regard to s 48 PSA and the approach to quantifying a fine under that section as explained in the authorities referred to earlier. What those authorities make clear is that where an offender is to be sentenced by way of a fine, the quantum of the fine imposed should not be beyond the reasonable capacity of the offender to pay. In other words, all things otherwise being equal between co-offenders, the parity principle is not infringed where one offender is ordered to pay a greater fine than another co-offender where there is a manifest difference in their respective capacities to pay a fine. As was explained by McGill DCJ in Kumar, imposing the same fine on people with different capacities to pay may result in some offenders being punished more severely than others for the same offence. [57] Here, the Magistrate did proceed to sentence each appellant on the basis that they were each of limited financial means and that this needed to be reflected in the sentences imposed. However, the further evidence relating to each appellants financial circumstances as set out in their affidavits would appear to show that some appellants have a greater financial capacity to pay a more substantial fine than other appellants. The Magistrate of course was unaware of the differences in the appellants’ capacity to pay a fine now revealed in the affidavit material. Having -- 27 of 48 -- 28 regard to s 48 PSA and the requirement to take into account an offender’s financial circumstances, the further evidence as to each appellants’ financial circumstances as disclosed in the affidavit material would, in terms of parity, seem to necessitate some disparity as between the appellants in the quantum of any fines they be ordered to pay which is in addition to any differences in their personal circumstances in order to properly ensure parity as between them. [58] Unfortunately, given the limited information provided to the Magistrate as to the differing capacities of each appellant to pay a fine, the relevance of this feature to a determination of the fines to be imposed was neither brought to the Magistrate’s attention nor was it the subject of any submissions. The end result is that the Magistrate was not asked to differentiate between the appellants because of their different financial circumstances or capacity to pay a substantial fine. Beyond a submission that a fine would be the appropriate sentence, there was otherwise no assistance provided to the Magistrate as what might be an appropriate fine in all of the circumstances in respect to any of the appellants or indeed whether any distinction between them was justified at all. [59] Having regard to the parity principle and the further evidence contained in the affidavit material which was not available to the Magistrate, I am persuaded that the imposition of a fine in the same amount on each appellant gives rise to a justifiable sense of grievance as between the appellants and involved an error in the exercise of the Magistrate’s sentencing discretion by reason of the failure to differentiate between each appellant’s personal and financial circumstances. Whilst parity has not been specifically raised as a ground of appeal, it falls for consideration, in my view, under the principle ground of appeal whether the sentence was excessive. On this basis I am satisfied that the sentencing discretion miscarried and each appellant’s appeal is allowed. It is appropriate in the circumstances that I resentence each appellant rather than remit the matter to the Magistrates court for that purpose. [60] The principal ground of appeal raised by each appellant is that the fine of $8,000 which was imposed by the Magistrate was excessive having regard to the circumstances of their offending and the matters to be taken into account in mitigation including their financial circumstances. The appellants also rely upon two specific errors by the Magistrate in the exercise of his sentencing discretion to contend that the fine imposed was excessive. Given my conclusion that the appeals be allowed, ordinarily it would be unnecessary for me to then consider those specific errors raised by the appellants. However, as the two specific errors relate directly to the considerations relevant to the quantification of the fine that would be just in all the circumstances to impose, before resentencing each appellant it is necessary that I deal with the arguments raised by the appellants in support of these purported errors. Undue fettering of sentencing discretion [61] First it is argued that the Magistrate unduly fettered his sentencing discretion by incorrectly proceeding to sentence each appellant on the basis that the only penalty available to him was a fine. The curious feature of the offences to which each appellant pleaded guilty is that charge 1, the trespass offence, carried a maximum penalty of 20 penalty units or 1 year’s imprisonment whereas charges 2 and 3 -- 28 of 48 -- 29 carried maximum penalties of 40 and 200 penalty units respectively but no penalty of imprisonment. Therefore the trespass offence, which carried the least maximum fine, also carried a period of imprisonment as part of the penalty that could be imposed. [62] It is true, as the appellants submit, that in respect to the trespass offence, as it carried with it a term of imprisonment, a community based order or a bond were sentencing options available to the Magistrate in addition to a fine. Conversely, charges 2 and 3 could only be dealt with by way of a fine as neither offence carried with them a period of imprisonment. [63] It is also true, as the appellants argue, that a reading of the Magistrate’s sentencing remarks would suggest that the Magistrate sentenced the appellants on the basis that his only sentencing option was a fine and that a community based order could not be imposed for any of the offending. As it was open to the Magistrate to impose a community based order in respect to charge 1 it would therefore appear that the Magistrate did fetter his sentencing discretion by excluding as a possible sentencing option community service in respect to the trespass offence. That said, the Magistrate’s sentencing remarks make clear that he did specifically turn his mind to whether the imposition of a community service order, had it been available, would have been a practical sentencing option. In the end he concluded that even if he could have imposed community service it would not have been practical to do so. [64] Whilst I accept that a community based order was a sentencing option available to the Magistrate in respect to the trespass offence and that by proceeding to sentence the appellants on the basis that a fine was the only available sentencing option available to him the Magistrate did fetter his sentencing discretion, I do not consider this error to be of any consequence. [65] However because it is submitted on behalf of one of the appellants that on the basis that their appeal is allowed they should be resentenced by way of either a bond or a community service order in combination with a fine of $1,000, it is necessary that I give consideration as to whether a community based order would in the circumstances be an appropriate sentence to impose. The obvious impediment to imposing a community service order on any of the appellants relates to their personal circumstances. With the exception of Mr Cantor, all of the appellants reside outside of Queensland. Were an order made for those appellants residing interstate to perform community service it would be necessary for them to return to Queensland to perform community service. In this regard, I note that enquiries have been made on behalf of the appellants as to whether a community based order can be transferred from Queensland to New South Wales.31 Those enquiries indicate that whilst a probation order is capable of being transferred to New South Wales a community service order can only be performed in Queensland. Further, transferring a probation order to New South Wales for example, will first require the consent of their probation and parole authorities which of course is not automatic. 31 Affidavit of Faye Austen-Brown -- 29 of 48 -- 30 [66] In any event, given that a community service order can only be performed in Queensland, I would concur with the view expressed by the Magistrate that it would be impractical to require any of the appellants to perform community service. As such an order has to be undertaken in Queensland and cannot be transferred interstate, that would necessitate any appellant residing interstate having to return to Queensland in order to perform their community service. That, in my view, would be impractical especially having regard to some of the appellants’ financial circumstances. Assessment of the seriousness of the offending and the appellants’ culpability [67] A second error raised by the appellants in submissions relates to the Magistrate’s assessment of the seriousness of the appellants offending and their culpability. I have summarised earlier the Magistrate’s sentencing remarks. In assessing the seriousness of the appellants offending and their culpability, the Magistrate noted the following: - The appellants’ acts were to be considered very serious and very dangerous. They had placed their lives in the hands of port workers who were not expecting them to be there. To place themselves in that position was to risk death or significant injury which could also have consequences for the port workers; - The appellants’ behaviour was to be denounced and the penalty imposed must reflect the seriousness of the danger. The risks associated with the appellants activities were so high and the margin for error so apparently thin, that no one else should be encouraged to engage in similar behaviour; - The emergency response capacity of a community such as Bowen was limited. The actions of the appellants stretched that capacity beyond breaking point. There was evidence32 which quantified the costs to police in being called to and ending the protests; - The seriousness of the appellants conduct largely offset each appellant’s mitigation and personal circumstances. [68] The appellants contend that the Magistrate fell into error in his assessment of the seriousness of their offending. In essence, what is argued is that an assessment of the seriousness of the appellants offending had relevance only to charge 1 (trespass) and charge 3 (interfering with ports operations) in that the conduct relied upon for charge 2 (contravene a direction) had no bearing on that assessment. If so, then the features identified by the Magistrate which he regarded as making the offending serious impermissibly elevated that assessment beyond what was supported by the evidence. Thus, it is argued, the evidence accepted by the Magistrate as to the cost impact to the port’s operations caused by the appellants’ protest activities did not objectively permit a finding that the offending fell into the serious category described. It is further argued that the Magistrate also erred in elevating the relevance of general deterrence and denunciation above that of the features personal to each appellant. The appellants buttress their submission by 32 Referring to exhibit 1 in the proceedings -- 30 of 48 -- 31 pointing to the fact that they had each originally been charged with a further offence of unregulated high-risk activity contrary to s 14 SOA. That charge was subsequently withdrawn by the prosecution. The features identified by the Magistrate, especially relating to the dangerous nature of the protest activities engaged in by the appellants, whilst they might have potentially been relevant to assessing the seriousness of the withdrawn charge, were less relevant to the offences the appellants were being sentenced for. [69] It is trite to observe that a court, when sentencing an offender, is entitled to take account of all the circumstances of the offence of which the offender has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender and that common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes.33 The Magistrate’s assessment of the seriousness of the appellants offending involved a consideration of different aspects of it. First, there was the financial aspect. There was evidence before the Magistrate concerning the costs incurred by Adani as a result of port operations being shut down for the duration of the protests. There was also other evidence provided by the Queensland Police Service as to the costs incurred in policing protest activities at the port and, more broadly, the effect the protest activities had both on police resources and other police functions. As to the latter, the affidavit of Senior Sergeant Shepherd,34 Officer in Charge Bowen Police Station, deposed the following: - Bowen Police have implemented Operation KINSHASA described as the policing plan developed and initiated to respond to and manage protest activity associated with protests groups targeting the Adani Coal Mining project; - Operation KINSHASA has been divided into two phases – phase one dealt with policing response to the so called “week of action” by protest groups in September 2017. Phase one resulted in a total of 118 police officers being deployed to the Bowen area to manage and respond to protest activity particularly in the Abbot Point port facility. Police officers were deployed from around Queensland to assist in the policing response. Approximately 100 protesters participated in the “week of action” which resulted in 13 arrests for charges of trespass and interfering with railway. Costs associated with phase one totalled $112,418; - Phase two has been ongoing and is directed towards protest activities which have occurred since 25 October 2017. At the time of sentence police had responded to 21 protest activities which have included “lock on” activities at the Adani Mine camp site, “lock on” and “tree sit” activities on the Aurizon rail corridor and “lock on” activities within the Abbot Point port facilities; - A total of 57 protesters have been arrested as part of phase two for offences which have included trespass, interfere with railway, interfering with port operations, undertaking high risk activities and contravening police 33 R v D [1996] 1 Qd R 363 at 403; The Queen v De Simoni (1981) 147 CLR 383, per Gibbs CJ at 388-392 (Mason and Murphy JJ agreeing) 34 Exhibit 1 -- 31 of 48 -- 32 requirement. A further 27 infringement notices and 142 move on directions have been issued by police to protestors; - At various times police have been rotated through Bowen to supplement local resources with police having to come from Townsville and Mackay and surrounding local areas to assist in policing the protests. Costs associated to policing phase two have amounted to $18,571 in expenses including 252 hours in overtime; - There has also been an impact in local policing brought about by police having to respond to numerous incidents associated with the protests which are outside the normal business activity undertaken by Bowen police. This takes police away from the core duties in responding to and policing the Bowen community. Furthermore, Bowen police have had to be trained and rostered to specialist roles associated with removing protestors from infrastructure who have used devices to lock onto infrastructure. [70] Costs estimates provided by Adani concerning the disruption to their port operations caused by the protests35 estimated that the total cost impact to terminal users from the 11 January 2018 protests was $3,992,99336 including demurrage costs of $5,340. The estimate for the 18 January 2018 protests was $3,477,769 including demurrage costs of $4,651. Ultimately the Magistrate in sentencing the appellants expressed reservations as to these estimations and he elected to sentence the appellants on the basis of the demurrage costs incurred by Adani only. That is, the Magistrate indicated that he was not prepared to sentence the appellants on the basis that they had caused Adani financial detriment in the vicinity of $4,000,000 on each occasion by the protest activities. The appellants were therefore sentenced only on the basis that the financial detriment to Adani related to the demurrage costs of $5,340 and $4,651 respectively or around $10,000. The Magistrate’s approach in the circumstances was entirely appropriate. [71] Therefore, in terms of the financial detriment caused by the appellants by their protest activities, there was uncontested evidence which the Magistrate accepted which supported his findings that the protest activities did have a financial impact both on the Queensland Police service and on Adani. The costs to Adani were in the vicinity of $10,000 and, although not quantifying the costs to the Queensland Police Service, the Magistrate also accepted that the protest activities caused police some detriment both financially in having to police the protests as well as to resourcing in the sense that Bowen police were impeded in undertaking routine policing operations because personnel and resources had to be diverted to policing the protests. [72] This financial and other detriment caused by the appellants protest activities was, in my view, relevant on at least two bases. First, such detriment is expressly relevant under s 48(5) PSA. That section permits a court to have regard to “any loss … to a person’s property because of the offence” when fixing the amount of the fine. The term “property” is defined in the PSA simply to mean “includes electricity.” In my view, the term “property” in s 48(5) is not to be construed restrictively. The section is capable of being interpreted as including any loss or 35 Exhibit 2 36 Calculated as the saleable tonnage of coal not loaded over the 7.75 hours of the protest -- 32 of 48 -- 33 detriment caused to business operations from the commission of an offence such as here the costs incurred by Adani and the Queensland Police Service arising out of the protest activities. However, even if a more narrow interpretation were favoured in respect to s 48(5) PSA and it was construed in a way that did not allow consideration to be given to the financial and resourcing impacts the protest activities had on Adani and the Queensland Police Service, such matters in any event are to be taken into account under s 9(2)(e) PSA. This section, which is expressed in far broader terms than is s 48(5), requires a court when sentencing an offender to have regard to any damage, injury or loss caused by the offender. In my view, s 9(2)(e) PSA is cast in sufficiently broad terms as to allow the financial and other resourcing impact caused by the appellants protest activities to be taken into account when assessing the seriousness of their offending. [73] The other basis upon which it was appropriate for the Magistrate to have regard to the financial and other detriment caused by the appellants protest activities is that such matters in any event fell for consideration as part of an assessment of the objective seriousness of the offending in a general sense. An assessment of the objective seriousness of particular offending requires a consideration of all relevant facts and circumstances. Where, as here, offending causes an identifiable loss or detriment, whether that be financial or in some other way, that necessarily becomes part of the circumstances of the offending relevant to an assessment of its objective seriousness. [74] The other aspect of the Magistrate’s assessment of the seriousness of the offending which the appellants also take issue with is in relation to the findings that the appellants offending was dangerous. Again, the unchallenged facts were that the appellants had climbed onto the trestle structure of coal loading equipment at the port, positioned themselves some 20 metres off the ground, locked themselves to the equipment resulting in port operations being suspended for the appellants’ safety. There was therefore ample evidence upon which to make a finding that the appellants offending was inherently risky not only to the appellants but also to port staff and emergency service workers who were called upon to remove the appellants. That the offence of high risk activity had been withdrawn by the prosecution did not preclude the Magistrate from taking into account these particular features when assessing the gravity of the offences. Those features fell to be considered again as part of the circumstances of the offending relevant to all of the charges and not confined to any one charge. [75] I am not therefore persuaded that the Magistrate erred in his assessment of the appellants’ culpability in the offending either by elevating the seriousness of the offending beyond that which was supported by the evidence or by elevating the importance of deterrence and denunciation over that of the appellants subjective circumstances. The features referred to by the Magistrate were supported by the evidence. The appellants’ activities shut down the Abbot Point port for several hours on both occasions and there were financial and other impacts for both Adani and the Queensland Police Service resulting from the appellants’ actions. The actions of the appellants not only placed themselves in danger and at risk of serious injury but also emergency service workers who were required to remove them after they refused directions to leave. Accordingly, in my view the assessment by the Magistrate that the appellants offending was both objectively serious and inherently dangerous was well open on the facts. -- 33 of 48 -- 34 [76] The sentencing of offenders charged with offences arising out of protest activities has received relatively limited judicial attention in Australia.37 One of the few occasions an appellate court in Australia has considered an appeal against sentence arising out of protest activities is in the judgment of Olsson J in Brock v SA Police; Forrester v SA Police.38 The appellants, aged 21 and 24, who were Adelaide university students of “high personal achievement and impeccable prior character” and who had “a deep interest in community issues”, joined in a protest demonstration at the Narrungar joint Defence facility in South Australia. They were part of a protest group comprising some 700 protestors who had assembled outside a boundary fence to the facility which was being protected by a contingent of police and protective services officers. There were signs erected on the fence warning the protestors that they would be trespassing if they crossed the fence line and the protestors were also warned by security staff that they would be trespassing and arrested if they did so. The two appellants were sentenced on the basis that they were well aware that they would be committing an offence if they trespassed onto the facility. On 11 April 1993 the appellants were part of a group of demonstrators who breached the fence of the facility and trespassed some distance on to the prohibited area. All together 185 protestors were arrested that day including the appellants who were charged with trespass. [77] Each appellant was sentenced by way of a “modest fine” and a conviction was recorded. The appeal related only to whether a conviction should have been recorded. In dismissing the appeal, Olsson J said in respect to the appellants protest activities: “As I see it the important features of the offending are these:- (1) The offences were deliberate. They were committed after due warning and in full knowledge that their commission would almost certainly lead to arrest and prosecution. (2) As a result of the mounting of the demonstrations, being of a type which, historically, almost invariably precipitates this type of offending, the taxpayer was required to bear policing costs of some $300,000, plus the costs of repairing damage to the fence. 37 Some examples include: Grajewski v DPP (NSW) [2017] NSWCCA 251 – the appellant was convicted after trial of one charge of damaging property contrary to s 195 Crimes Act 1900 (NSW) (maximum penalty 5 years imprisonment). The appellant was involved in protest activities against coal mining. He locked himself onto a coal loader which was rendered inoperable for 2 hours before being removed. Sentenced by way of a fine of $1,000; Deacon v Tudor-Stack [2003] NTSC 15 – the appellant was convicted on his own plea of one charge of intentionally disturbing Legislative Assembly contrary to s 61 Crimnal Code Act (NT) (maximum penalty 3 years imprisonment). The appellant was part of a group of protestors who entered the Northern Territory Legislative Assembly causing a disruption to proceedings. The appeal against sentence was allowed and a sentence of 4 months imprisonment suspended after 14 days was set aside and in lieu a $500 bond imposed; Carlson v Hayward [1996] NTSC 24 - The appellant pleaded guilty to an offence of trespass contrary to s 5 Trespass Act (NT) (maximum penalty $2000 or 6 months imprisonment). The appellant was one of three offenders who engaged in protests activities to disrupt the loading of uranium on a ship. They climbed the container loading train and secured themselves to the top of its raised arm. The appeal against sentence was allowed and the fine of $2000 imposed at first instance was set aside and in lieu a fine of $750 was imposed. 38 Unreported Supreme Court of South Australia – Magistrates Appeal (18 August 1993) -- 34 of 48 -- 35 (3) The nature and circumstances of the offending are such that they have a propensity to lead to situations getting out of hand and thus the possibility of persons being injured in the course of the inevitable struggles which ensue. (4) Whilst there can be no possible objection to citizens exercising their democratic right to freedom of speech and expression, it is entirely another question when persons with particular views deliberately seek to breach laws which have also been enacted by democratic process. If this type of activity is allowed to go unchecked then it potentially encourages more general anarchy in our society. It is clear to me that the learned magistrate quite correctly assessed that the factors of general and personal deterrence must loom as paramount considerations in cases of this type. Not only do I see no reasonable basis for criticising that conclusion come to by him but I also entirely agree with it. Persons who behave in the manner here under consideration must normally expect to have a conviction recorded against them. The right to freedom of expression does not carry with it a licence to flout the law and join in activities involving damaging public property and potential injury to other persons, simply because one does not agree with what has lawfully been done by a relevant agency of Government. Other members of the community are equally entitled to their views and to have the law upheld. In so saying I by no means put to one side and ignore the excellent character of each of the appellants and the other significant mitigating or extenuating factors arising in relation to them. However, like the learned magistrate, I cannot accept that these were offences of a trivial nature, as has been submitted. Having regard to the circumstances as I have outlined them and as was pointed out by Duggan J in Gunn v Thompson (1990) 54 SASR 1 at 5, actions of this type are not mere simple trespasses. His characterisation in that case related to a similar situation which arose in 1989, but is equally pertinent to the matters now before me. As he there stressed:- "... the deliberate movement onto the property with knowledge of the signs stating that entry was prohibited meant that a confrontation [with the police] was inevitable and these circumstances provide the aggravation which would, if necessary, take her actions beyond a simple trespass. In all the circumstances, therefore, I am of the view that the appellant was properly convicted.” [78] It will be obvious that the offending of the present appellants involved some of the same features as those which Olsson J regarded as the important features which rendered the offending in the appeal before him serious and for which both general and personal deterrence loomed large. Olsson J also however referred to a further matter which needs to be carefully weighed when sentencing offenders involved in protest actions, namely the democratic right to protest. There is in Australia a long -- 35 of 48 -- 36 history of political protests including those involving environmental issues which under Australian constitutional law is recognised as an incident of the implied freedom of political communication.39 The implied freedom protects the free expression of political opinion, including peaceful protest, which is regarded as “indispensable to the exercise of political sovereignty by the people of the Commonwealth.”40 However the freedom of political communication is not unfettered - it is a freedom to communicate by lawful means, not a licence to do what is otherwise unlawful and it does not authorise, for example, the unlawful trespassing onto land.41 [79] Acknowledging that there is a legitimate right conferred on all Australian citizens to protest enshrined under Australian law, there inevitably needs to be a careful balancing of sentencing considerations including deterrence and denunciation on the one hand, with the right of all citizens to engage in legitimate protest actions on the other, when sentencing offenders for offences committed in the course of protest actions. That balancing exercise was recently considered by the Court of Appeal in England in R v Roberts42. The appeal involved two applicants who were each sentenced after trial to terms of imprisonment with actual time to serve in respect to an offence of public nuisance. The applicants convictions arose out of their conduct in protesting against the authorisation granted to an oil exploration company to begin fracking at a site in the United Kingdom. The applicants sat on top of the cabs of lorries for between two and half and three and a half days with the result that one carriageway of the road was blocked. Substantial disruption was caused to thousands of people. The applicants appealed their sentences. [80] In allowing the appeal and expressing the view that the appellants should at first instance have been sentenced by way of a community order, Lord Burnett of Maldon CJ explained the considerations that should be taken into account when sentencing offenders charged with offences committed in the course of protest activities, observing: “31. Miss Brimelow QC's core submission was that those convicted on any offence in the course of protesting, as a matter of domestic and ECHR law, should not receive a custodial sentence in the absence of violence against the person. She submits that in such cases it is punishment enough to receive the stigma of a conviction and that, in this case, the judge should have imposed absolute discharges, or at most a fine. 32. We were unable to accept that submission. There is a wide range of offences that may be committed in the course of peaceful protest of differing seriousness; and within the offending very different levels of harm may be suffered by individuals or groups of individuals. They carry various maximum sentences. Some are triable only as summary offences (for example low level criminal damage or wilful obstruction of the highway) and others are indictable. Many protests are directed at 39 Brown and Another v Tasmania (2017) 349 ALR 398; Levy v State of Victoria (Duck-Shooting case) (1997) 189 CLR 579; Watson v Trenerry (1998) 12 NTR 1, per Angel J at 6-7 40 Brown and Another v Tasmania (2017) 349 ALR 398, per Kiefel CJ, Bell and Keane JJ at 419 [88] 41 Levy v State of Victoria (Duck-Shooting case) (1997) 189 CLR 579, per McHugh J at 625-626; Brown and Another v Tasmania (2017) 349 ALR 398, per Nettle J at 456 [259], per Gordon J at 489 [380] 42 [2018] EWCA Crim 2739 -- 36 of 48 -- 37 government or official bodies and the harm is suffered at what might be described as official level only. Trespassing at military bases or damaging their perimeter fences, are examples. But the essential approach to sentencing by looking at harm and culpability and with the three aims of sentencing in mind (punishment, deterrence and rehabilitation) remain in play. The motivation of an offender can go to increase or diminish culpability. It forms no part of a court's function to adjudicate, even sub silencio, on the merits of controversial issues but it is well established that committing crimes, at least non-violent crimes, in the course of peaceful protest does not generally impute high levels of culpability. 33. It is in this context that the observations of Lord Hoffmann in Margaret Jones have resonance. The case concerned many appellants who were said to have caused damage at military bases for which they were criminally responsible, unless there was legal justification for what they were said to have done. The issue in each appeal concerned the legal justification. The common feature of the appeals was that they raised the question whether the crime of aggression, if established in customary international law, was a crime recognised by or forming part of the domestic criminal law of England and Wales. The appellants' argument was that they acted as they did because they wished to disrupt the commission of that crime, or what they believed would be the commission of that crime against Iraq, by Her Majesty's Government or the Government of the United States. They relied upon the defence that they acted reasonably to prevent crime. Those contentions failed, but Lord Hoffmann made important observations about protest and the criminal process in the course of his speech. They bear repetition: “89. My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions. 90. These appeals and similar cases concerned with controversial activities such as animal experiments, fox hunting, genetically modified crops, nuclear weapons and the like, suggest the emergence of a new phenomenon, namely litigation as the continuation of protest by other means. … The protesters claim that their honestly held opinion of the legality or dangerous character of -- 37 of 48 -- 38 the activities in question justifies trespass, causing damage to property or the use of force. By this means they invite the court to adjudicate upon the merits of their opinions and provide themselves with a platform from which to address the media on the subject. They seek to cause expense and, if possible, embarrassment to the prosecution by exorbitant demands for disclosure, such as happened in this case. …. 34. Paragraph 89 echoes the understanding that the conscientious motives of protestors will be taken into account when they are sentenced for their offences but that there is in essence a bargain or mutual understanding operating in such cases. A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. When sentencing an offender, the value of the right to freedom of expression finds its voice in the approach to sentencing. 35. The succeeding paragraphs emphasise the limits of an appeal to legal justification in the offending behaviour. But Lord Hoffmann's dicta do not support the proposition that there is a bright line between custody and non- custody in such cases. It should not be overlooked that public nuisance is a serious offence, the commission of which would suggest that the protestor in question has not kept his side of the bargain adverted to by Lord Hoffmann.” [81] Whilst the decision of Lord Burnett in Roberts involved an offence of public nuisance under English common law and was determined under a different sentencing regime to that which applies to the appellants here, nevertheless it echoes the earlier reasoning of Olsson CJ in Brock as to the features which are to be taken into account in assessing the seriousness of offending committed in the course of protest actions. In that regard, whilst offending committed in the course of a peaceful protest would not generally impute a high level of culpability, and while the conscientious motives of protestors are to be taken into account, whether the protestors have behaved with a sense of proportion by not causing excessive loss, damage or inconvenience by their protest actions will be an important consideration in assessing the objective seriousness of the offending and the culpability of the offenders involved. Resentencing [82] Having determined that each appellants appeal be allowed on the basis that it was an error in the exercise of the sentencing discretion to impose the same fine on each appellant and having regard to the further evidence as to each appellants financial circumstances, I now turn to resentencing each appellant. [83] In resentencing each appellant, I concur with the assessment of the Magistrate for reasons explained earlier that the appellants offending is to be assessed as objectively serious and dangerous. The features of the appellants offending which rendered it objectively serious, include the following: -- 38 of 48 -- 39 - Each appellant unlawfully entered the Abbot Point coal terminal in circumstances in which they must have been aware that by doing so they were trespassing and would almost certainly be arrested and prosecuted. Their offending was committed in company. The Abbot Point coal terminal was at the time of entry operational; - The appellants then proceeded to scale a coal loading trestle before climbing about 50 metres in the trestle and locking themselves onto the equipment. They were at that point positioned about 20 metres above the ground, attached to operational coal loading equipment, and remained in that position for several hours before being removed; - The position of the appellants was inherently dangerous given the height they were positioned above the ground and that the coal loading equipment was still operating when they first locked themselves to it. The loading equipment housed a large conveyor belt and other moving equipment which exposed the appellants to a risk of injury or death; - The port’s operations had to be shut down as a result of the appellants’ actions and remained so for several hours until the appellants were removed. This caused a disruption to coal loading. The costs of the shutdown borne by Adani was in the order of $10,000 (being the demurrage costs only). The taxpayer was required to bear the costs of police involvement in attending the port and removing the appellants along with the more general financial and resourcing imposts that had been caused to police as a result of ongoing protest activity in the Bowen area; - The nature and circumstances of the offending were such that they had the propensity to lead to situations getting out of hand. The appellants refused directions given to them by police to remove themselves. There was the possibility of both the appellants and emergency services personnel being injured in having to cut the appellants from the equipment they had locked themselves onto; - Whilst the appellants in the exercise of their democratic right of freedom of speech and expression were entitled to engage in protest action against Adani providing it was done in a lawful manner, they chose to do so unlawfully and in a manner intended to disrupt port operations. [84] By reference to the maximum penalties prescribed for each offence, the combined total maximum fine that could have been imposed on each appellant in respect to the three offences was $32,799. Whilst that total maximum fine provides a yardstick to assist in determining a fine that was just in all the circumstances, it is only one of many factors bearing on the ultimately discretionary determination of sentence. Assuming that a fine was the appropriate penalty to impose on each appellant, it is also an important sentencing consideration that the quantum of the fine should not exceed what is proportionate to the gravity of the appellants offending having regard to the objective circumstances.43 43 Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 -- 39 of 48 -- 40 [85] The Magistrate determined that a fine of $8,000 was an appropriate fine to impose on each appellant. That represented about 25% of the total maximum fine that could be imposed. The appellants offending, whilst both serious and dangerous for the reasons explained, could not be said to fall into the “worst case” for offences of the type committed by the appellants. The Magistrate was neither assisted by comparative sentencing authorities from which he might have gained some guidance as to the amount of the fine to impose that would balance all relevant sentencing considerations nor were any sentencing submissions made as to the amount of the fine contended for. The Magistrate was therefore left in the invidious position of having to determine the quantum of the fine to impose without any real assistance. [86] The Magistrate, in quantifying the fine he intended to impose upon each appellant, appears to have used what he described as a “rule of thumb” which involved starting with the maximum penalty available for the offending, reducing the maximum penalty by two-thirds before allowing a further discount for other relevant mitigating factors.44 Whilst in Queensland there is what has been described as a “common sentencing practice”45 of making provision for parole or suspension of imprisonment after approximately one third of the head sentence has been served, there is no sentencing practice by which the quantum of a fine is determined by using as a starting point the maximum fine available and then reducing that by two-thirds to arrive at a notional starting point of the amount of the fine to be imposed. If this had been the approach of the Magistrate in determining the fines to be imposed upon the appellants then that approach, in my view, would clearly have involved error in the exercise of the sentencing discretion although this is not a complaint raised on behalf of the appellants. [87] There are two comparative sentencing decisions which the Magistrate was not referred to but would have provided at least some guidance as to the sentencing range applicable to the appellants here. These were my appeal judgments in Briggs v Commissioner of Police46 and Nelson v Commissioner of Police47. Both appellants were dealt with for a single offence of interfering with a railway contrary to s 225(1) TIA arising out of the same ongoing protest activities as involving the present appellants directed towards the construction of the proposed Adani mine. Both appellants had locked themselves to a railway line operated by Aurizon and had to be cut free by police after blocking the movement of trains on the line for a number of hours. The appellants were at first instance each sentenced by way of a fine of $4,000. It was conceded on appeal by the respondent that in sentencing the appellants the (different) Magistrate who heard the matter had not had his attention drawn to s 48 PSA and therefore had not taken into account their respective financial circumstances when determining the fine imposed. Further evidence adduced on the appeal demonstrated that each appellant was effectively impecunious and had a limited capacity to pay a fine. Their appeals were allowed and in substitute a fine of $1,200 was imposed. The outcome of these appeals was distinguishable on a number of bases: The appellants there were dealt with for only one offence. Their offending was absent many of the features of the offending in 44 Decision page 5 lines 14-23 45 R v Hoad [2005] QCA 92, per Jerrad J at [31]; R v Ungvari [2010] QCA 134, per White JA [30] 46 (unreported judgment of District Court of Queensland dated 27 March 2018, Appeal No. 2/2018) 47 (unreported judgment of District Court of Queensland dated 27 March 2018, Appeal No 13/2017) -- 40 of 48 -- 41 the present appeal which thereby rendered their offending less serious and the maximum fine which could be imposed for their offending was $20,184. Nevertheless the results of these two appeals would have provided some guidance to the Magistrate in sentencing the appellants. [88] Having determined that each appellants appeal against sentence be allowed, it is appropriate that I undertake the task of resentencing them. Given the relevance of parity, as well as differences in personal and financial circumstances, it is necessary that each appellant be resentenced individually. Tess Newport [89] At age 22 Ms Newport is to be sentenced as a youthful first offender. Her offending was motivated by a genuine concern for the environment. She is well educated, otherwise of impeccable prior character and entered early pleas of guilty. In terms of her financial circumstances, the further evidence adduced on appeal would demonstrate in my view that although her income consists of the Newstart allowance and she is of limited financial means, Ms Newport does have some savings which satisfies me that she does have the capacity to pay a fine. A fine is the appropriate penalty having regard to Ms Newport’s personal circumstances. [90] Taking into account the nature and circumstances of Ms Newport’s offending, its objective seriousness, the maximum penalties, her level of culpability, considerations of parity and her personal circumstances which include in particular her youth and lack of prior convictions, her pleas of guilty and other relevant sentencing considerations, it would be just in all the circumstances to resentence Ms Newport by imposing a single fine of $2,000 in respect to all three offences. Luca Lamont [91] At age 19 Ms Lamont is the youngest of the appellants and like Ms Newport falls to be sentenced as a youthful first offender. Her offending was also motivated out of her concern for the environment. She is of impeccable prior character and has demonstrated her commitment to environmental and other causes by volunteer work. In terms of Ms Lamont’s financial circumstances, the further evidence adduced on appeal would demonstrate that her circumstances are less favourable than say Ms Newport. Her primary income is from part-time employment supplemented by a youth allowance. However, whilst of more limited financial means, Ms Lamont’s financial circumstances nevertheless persuade me that she does have the capacity to pay a fine commensurate with that of Ms Newport. [92] Taking into account the nature and circumstances of Ms Lamont’s offending, its objective seriousness, the maximum penalties, her level of culpability in the offending, considerations of parity and her personal circumstances which include in particular her youth and lack of prior convictions, her pleas of guilty and other relevant sentencing considerations, it would be just in all the circumstances to resentence Ms Lamont by imposing a single fine of $2,000 in respect to all three offences. Nicholas Avery -- 41 of 48 -- 42 [93] At 27 Mr Avery does not have the benefit of youth in the same way as either Ms Newport or Ms Lamont. Nevertheless he is a first offender motivated to commit the offences out of concern for the environment. He is well educated, been a productive member of the community and is also of impeccable prior character. In terms of Mr Avery’s financial circumstances, he jointly owns a property with his sister valued at $925,000. He has savings of $4,700 and whilst his income is modest when expenses are taken into account, he nevertheless in my view has the ready capacity to pay a fine. [94] Taking into account the nature and circumstances of Mr Avery’s offending, its objective seriousness, the maximum penalties, his level of culpability in the offending, considerations of parity and his personal circumstances including his lack of prior convictions, his pleas of guilty and other relevant sentencing considerations, it would be just in all the circumstances to resentence Mr Avery by way of a single fine of $2,500 in respect to all three offences. Juliet Lamont [95] Ms Lamont is aged 47 and as such also does not have the benefit of youth in the same way as either Ms Newport or her daughter Luca Lamont. Nevertheless she too is a first offender motivated to commit the offences out of concern for the environment. She has otherwise lived a productive life, is well educated, has undertaken volunteer work and is also of impeccable prior character. In terms of Ms Lamont’s financial circumstances, the further information adduced on appeal and not available to the Magistrate would indicate that Ms Lamont has liabilities of approximately $32,000 and that her expenses each fortnight exceed her income. The contents of Ms Lamont’s affidavit have not of course been tested and the documents supporting the contents of the affidavit provide only a narrow snapshot of her weekly expenses. Nevertheless, it would appear, having regard to the further evidence, that her capacity to pay a fine is more limited than the majority of the other appellants. [96] Taking into account the nature and circumstances of Ms Lamont’s offending, its objective seriousness, the maximum penalties, her level of culpability in the offending, considerations of parity and her personal circumstances including her lack of prior convictions, her pleas of guilty and other relevant sentencing considerations, it would, all things being equal, have been appropriate to have resentenced Ms Lamont by way of a single fine of $2,500 in respect to all three offences. Parity, as I have observed already, is an important consideration here as between all of the appellants and in the absence of the further evidence as to Ms Lamont’s capacity to pay a fine, on a parity basis it would have been appropriate to have approached resentencing Ms Lamont in a similar way as, for example, Mr Avery. But having regard to the further evidence adduced on appeal demonstrating her more limited capacity to pay a fine, there should be some further adjustment in the fine ordered to be paid by her to reflect the disparity in her financial circumstances as compared to other appellants. In my view it is just in all of the circumstances to resentence Ms Lamont by way of a single fine of $2,000 which, whilst burdensome given her financial circumstances, balances the various considerations which must be weighed in determining an appropriate fine for the offending involved. -- 42 of 48 -- 43 [97] For completeness, it was submitted on behalf of Ms Lamont that she be resentenced by way of a bond or a community service order coupled with a $1,000 fine having regard to her financial circumstances which, it is submitted, provides her no realistic prospect of paying a fine. As I explained earlier, I do not regard a community service order as a practical sentencing option in respect to any of the appellants. Were I to resentence Ms Lamont to community service she will be required to return to Queensland to perform the order. Given that she resides in New South Wales and has limited financial means it would be impractical to impose such a burden on her. That is not to say that community service would not, in appropriate circumstances, be a sentencing option well within range for offending of the kind the appellants are being sentenced for. I am also not persuaded there is any utility in imposing a bond on any of the appellants. Ella Skerrett [98] At 26 Ms Skerrett enjoys similar antecedents to those of Mr Avery in that she does not have the benefit of youth in the same way as either Ms Newport or Ms Lamont but she is to be sentenced as a first offender. She too was motivated to commit the offences out of concern for the environment. She has qualifications in horticulture, appears to have enjoyed a good work history and is also of impeccable prior character. In terms of Ms Skerrett’s financial circumstances, the further evidence adduced by her on appeal would suggest she has limited capacity to pay a fine. She has an income of approximately $700 per fortnight and expenses of $650. Again the contents of Ms Skerrett’s affidavit have not been tested. She is in a relationship and she says that she is living in a property owned by her mother. Curiously she lists as one of her fortnightly expenses a contribution to a mortgage and rates but there is no indication in her affidavit of her owning any real estate. I would also note that according to a bank statement attached to her affidavit that between January 2018 and April 2018 her savings increased from $440 to $800 suggesting at least some modest capacity to save. Nevertheless, whilst I am satisfied that Ms Skerrett does have capacity to pay a fine, it is clear from the evidence before me that she falls into a similar category as Juliet Lamont in terms of that capacity being more limited. [99] Taking into account the nature and circumstances of Ms Skerrett’s offending, its objective seriousness, the maximum penalties, her level of culpability in the offending, considerations of parity and her personal circumstances including her lack of prior convictions, her pleas of guilty and other relevant sentencing considerations, it would, all things being equal, have been appropriate to have resentenced Ms Skerrett by way of a single fine of $2,500 in respect to all three offences. However all things are not equal in relation to her financial circumstances, and the further evidence adduced on appeal demonstrating her more limited capacity to pay a fine, necessitates as it does with Juliet Lamont, some further adjustment in the fine ordered to be paid by her to reflect the disparity in her financial circumstances as compared to other appellants. In my view it is just in all of the circumstances to resentence Ms Skerrett by way of a single fine of $2,000 which, whilst burdensome given her financial circumstances, balances the various considerations which must be weighed in determining an appropriate fine for the offending involved. Liisa Rusanen -- 43 of 48 -- 44 [100] Ms Rusanen is 36 and is therefore older than some of the other appellants and in that regard she does not have the benefit of youth in the same way as say either Ms Newport or Ms Lamont do, but she is to be sentenced as a first offender. She like the other appellants was motivated to commit the offences out of concern for the environment. Ms Rusanen is the mother of two young children one of whom suffers from cystic fibrosis. She lives in rented accommodation, works only 4 hours per week in part-time employment and her income is primarily sourced through Centrelink and other benefits. The further evidence adduced by Ms Rusanen on appeal would suggest she too has a limited capacity to pay a fine. She has an income of approximately $1,600 per fortnight and she estimates her expenses at $1,800 per fortnight. Again the contents of Ms Rusanen’s affidavit have not been tested. She has savings of approximately $15,000 but she deposes that this has diminished from savings of $25,000 she had when she separated from her partner two and half years earlier. Ms Rusanen otherwise has limited assets. It is apparent on the evidence before me that Ms Rusanen falls into a similar category as that of Juliet Lamont and Ella Skerrett in terms of her financial circumstances and her more limited capacity to pay a fine. [101] Taking into account the nature and circumstances of Ms Rusanen’s offending, its objective seriousness, the maximum penalties, her level of culpability in the offending, considerations of parity and her personal circumstances including her lack of prior convictions, her pleas of guilty and other relevant sentencing considerations, it would, all things being equal, have been appropriate to have resentenced Ms Rusanen by way of a single fine of $2,500 in respect to all three offences. However as with Juliet Lamont and Ella Skerrett, all things are not equal in relation to her personal and financial circumstances, and the further evidence adduced on appeal demonstrating her more limited capacity to pay a fine, necessitates as it does with both Juliet Lamont and Ella Skerrett, some further adjustment in the fine ordered to be paid by her to reflect the disparity in her financial circumstances as compared to other appellants. In my view it is just in all of the circumstances to resentence Ms Rusanen by way of a single fine of $2,000 which, whilst burdensome given her financial and other personal circumstances, balances the various considerations which must be weighed in determining an appropriate fine for the offending involved. Daniel Skerrett [102] Mr Skerrett is aged 30 and like most of the appellants does not have the benefit of youth in the same way as either Ms Newport or Ms Lamont. Nevertheless he is to be sentenced as a first offender who was motivated to commit the offences out of concern for the environment. He is a qualified carpenter, appears to have been a productive member of the community and is also of impeccable prior character. In terms of Mr Skerrett’s financial circumstances, the further evidence adduced on the appeal would indicate that his fortnightly expenses exceed his income but it is to be noted that he was at the time of the hearing of the appeal continuing to build a house for his mother on a sub-contract basis being paid $600 per week, which was described at sentence as a “discount rate”. In any event he deposes to having $3,000 in savings and having a part interest in a property valued at $150,000. He also has liabilities in the form of a loan in the amount of $67,000. Whilst on the -- 44 of 48 -- 45 evidence deposed by Mr Skerrett his weekly expenses exceed his income, he has substantial assets and savings and, in my view, has the capacity to pay a fine. [103] Taking into account the nature and circumstances of Mr Skerrett’s offending, its objective seriousness, the maximum penalties, his level of culpability in the offending, considerations of parity and his personal circumstances, including his lack of prior convictions, his pleas of guilty and other relevant sentencing considerations, it would be just in all the circumstances to resentence Mr Skerrett by way of a single fine of $2,500 in respect to all three offences. John Ross [104] Mr Ross is the second oldest of the appellants at age 69. Unlike most of the other appellants he is burdened by one previous conviction for contravening a direction described as being for “similar sort of offending” but “low level” for which he was fined $200 in 2017. He therefore is not to be sentenced as a first offender, a point of distinction when compared to the other appellants resentenced so far. Given his age he also does not have the benefit of youth. His motivation for committing the offences was out of concern for the environment. He is well educated, been a productive member of the community and is also otherwise of impeccable character. The further evidence adduced on the appeal would indicate that Mr Ross is self-employed and that his expenses exceed his fortnightly income. Nevertheless Mr Ross has assets of $715,000, negligible liabilities and having regard to his financial circumstances has a capacity to pay a fine. [105] Taking into account the nature and circumstances of Mr Ross’s offending, its objective seriousness, the maximum penalties, his level of culpability in the offending, considerations of parity and his personal circumstances including his prior conviction for similar offending, his pleas of guilty and other relevant sentencing considerations it would be just in all the circumstances to resentence Mr Ross by way of a single fine of $3,000 in respect to all three offences. In determining that to be an appropriate fine, particular regard must be paid to Mr Ross’ one previous conviction in 2017 for contravening a direction, that this was for “similar offending” and that pursuant to s 9(10) PSA this previous conviction is to be treated as an aggravating factor. Also relevant in imposing a higher fine on Mr Ross are his financial circumstances that would indicate his greater capacity to pay a fine than most of the other appellants. These two features justify, in terms of parity, some disparity between the quantum of the fine imposed on Mr Ross and that imposed on most of the other appellants. Jeffrey Cantor [106] Mr Cantor, at age 71, is the oldest of the appellants to be resentenced. Mr Cantor was the appellant with the most significant criminal history. Most relevant to sentence, Mr Cantor’s criminal history included having been dealt with on two separate occasions in 2017 for offences described in sentencing submissions as involving “similar criminal offences” for which he was fined $500 and $750 respectively. As with Mr Ross, Mr Cantor was therefore not being sentenced as a first offender, a point of distinction when compared to all the other appellants. Given his age Mr Cantor did not have the benefit of youth. His motivation for commit the offences was out of concern for the environment. He has been a -- 45 of 48 -- 46 productive member of the community having served in the Australian Navy and later working in heavy industry before retiring in 2003. Other than his prior criminal convictions he is otherwise someone of impeccable prior character. The further evidence adduced on the appeal would indicate that Mr Cantor’s only source of income is a military pension of $2,200 per fortnight and that his expenses exceed his income. He has assets of $28,500, does not own any real estate and has limited savings. Mr Cantor’s affidavit has not been tested. He details his expenses as including $750 per fortnight for credit card repayments as well as $608 per fortnight for entertainment “including gifts to family and donations”. A close analysis of Mr Cantor’s expenses would demonstrate in my view that he does have the capacity to pay a fine despite what he calculates to be his fortnightly expenses. He is currently making payments to SPER of $40 per fortnight. I am therefore satisfied that Mr Cantor does have the capacity to pay a fine. [107] Taking into account the nature and circumstances of Mr Cantor’s offending, its objective seriousness, the maximum penalties, his level of culpability in the offending, considerations of parity and his personal circumstances including his prior convictions for similar offending, his pleas of guilty and other relevant sentencing considerations it would be just in all the circumstances to resentence Mr Cantor by way of a single fine of $3,000 in respect to all three offences. In determining that to be an appropriate fine, I have had particular regard to Mr Cantor’s three previous convictions and, most relevantly, his two previous convictions in 2017 for an offence of trespass and an offence of contravening a direction, that this was for “similar offending” to that which he is to be resentenced, and that pursuant to s 9(10) PSA these previous convictions are to be treated as an aggravating factor. In terms of parity, Mr Cantor’s previous offending means that personal deterrence is more relevant in his case than most of the other appellants and sufficiently aggravates his offending as to justify some disparity as between the sentence imposed upon him and that of the other appellants. Mr Cantor’s criminal history is more serious than that of Mr Ross. Balanced against that, the further evidence adduced on appeal as to Mr Cantor’s capacity to pay a fine, would demonstrate that his financial circumstances are less favourable than those of Mr Ross and the burden of paying a fine will impact more greatly upon Mr Cantor. Therefore in my view, in terms of parity, there is no real basis to distinguish between Mr Cantor and Mr Ross in terms of the quantum of the fine imposed. Other matters [108] With the exception of Mr Cantor, the Magistrate did not record convictions against the appellants. Mr Cantor has not appealed this aspect of his sentence. In those circumstances there is no basis to consider whether convictions should not have been recorded against Mr Cantor. Costs [109] At the hearing of the appeal an outline of submissions on costs was filed on behalf of the appellants. It is appropriate before deciding costs of the appeal the respondent be afforded the opportunity to also file submissions on costs. I will therefore order that the respondent file and serve written submissions on costs with 21 days. -- 46 of 48 -- 47 Orders: [110] The orders will be as follows: 1. Appeal 10/2018 (Nicholas Avery) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Nicholas Avery filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,500 is imposed. (d) The sentence is otherwise confirmed. 2. Appeal 2/2018 (Jeffrey Cantor) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Jeffrey Cantor filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $3,000 is imposed. (d) The sentence is otherwise confirmed. 3. Appeal 5/2018 (Juliet Lamont) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Juliet Lamont filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 4. Appeal 4/2018 (Luca Lamont) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Luca Lamont filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 5. Appeal 3/2018 (Tess Newport) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Tess Newport filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 6. Appeal 9/2018 (John Ross) -- 47 of 48 -- 48 (a) Leave is granted to the appellant to adduce the evidence in the affidavit of John Ross filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $3,000 is imposed. (d) The sentence is otherwise confirmed. 7. Appeal 6/2018 (Liisa Rusanen) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Liisa Rusanen filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 8. Appeal 7/2018 (Daniel Skerrett) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Daniel Skerrett filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,500 is imposed. (d) The sentence is otherwise confirmed. 9. Appeal 8/2018 (Ella Skerrett) (a) Leave is granted to the appellant to adduce the evidence in the affidavit of Ella Skerrett filed on 1 June 2018. (b) Appeal allowed. (c) The sentence imposed below is varied to the extent that the fine of $8,000 is set aside and in lieu thereof a fine of $2,000 is imposed. (d) The sentence is otherwise confirmed. 10. I order that the respondent file and serve written submissions as to costs within 21 days. -- 48 of 48 --