Condon v Munsie [2015] QDC 148

DISTRICT COURT OF QUEENSLAND CITATION: Condon v Munsie [2015] QDC 148 PARTIES: ROBERT WILLIAM CONDON (applicant) v ISAAC ADAM MUNSIE (respondent) FILE NO/S: Townsville D270/14 DIVISION: Appellate PROCEEDING: Appeal under s 222 of the Justices Act 1886 ORIGINATING COURT: Magistrates Court at Townsville DELIVERED ON: 5 June 2015 (orders made) 11 June 2015 (reasons published) DELIVERED AT: District Court at Gympie HEARING DATE: 1 June 2015 JUDGE: Long SC DCJ ORDER: 1. That the time allowed for the filing of the applicant’s Notice of Appeal be extended to 1 September 2014; 2. The appeal is allowed and the orders made in the Magistrates Court at Townsville on 15 May 2014, are set aside; and 3. The proceedings are sent back to the Magistrates Court at Gympie, to be heard according to law. CATCHWORDS: APPEAL – s 222 of the Justices Act 1886 – where the applicant appeals against his conviction of offences under the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008 – where the applicant was sentenced, in his absence, to a single fine of $1,500 in respect of all three offences and granted two months to pay the fine, in default 14 days’ imprisonment – whether the applicant was appropriately dealt with under s 142 of the Justices Act 1886 – whether for two of the three offences the applicant was charged with and convicted of an offence known to law – whether any consideration of the availability of or previous issue of any penalty infringement notice or the legislated -- 1 of 14 -- 2 amount of fine applied to such notice, is an irrelevant consideration for the purpose of the exercise of sentencing discretion Justices Act 1886 s 142 and s 222 Penalties and Sentences Act 1992 s 48 State Penalties Enforcement Act 1999 s 16(2)(b) and s 22 Pullen v O’Brien [2014] QDC 92 R v Tate [1992] 2 Qd R 667 COUNSEL: No legal representation for the applicant A Honkisz, legal officer, for the respondent SOLICITORS: No legal representation for the applicant Department of Transport and Main Roads -- 2 of 14 -- 3 [1] On 1 September 2014, the applicant filed, in the District Court Registry at Townsville, a notice of appeal in respect of orders made against him in the Magistrates Court at Townsville, in “June 2014”. As this matter has developed, it is apparent that the applicant seeks to appeal the orders made against him in that court, on 15 May 2014, when he was convicted in of three offences: 1. an offence pursuant to s 50(2)(a) of the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008 of exceeding the maximum work time of 12 hours in any 24 hour period (critical risk breach) between 4 p.m. on 23 October 2012 and 4 p.m. on 24 October 2012; 2. failing to record required information in a work diary on 24 October 2012, pursuant to s 71(1)(d) of the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008; and 3. failing to record required information in a work diary on 25 October 2012, pursuant to s 71(1)(a)-(d) of the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008. [2] The maximum penalty applying to each offence was 60 penalty units. The applicant was sentenced to a single fine of $1,500, in respect of all three charges and pursuant to s 49 of the Penalties and Sentences Act 1992. He was granted two months to pay the fine, in default 14 days’ imprisonment. [3] The matter was transferred to be heard at Gympie, at the applicant’s request and so as to enable it to be heard where the applicant resided and was so heard on 1 June 2015. On 5 June 2015, the Court made the following orders: 1. That the time allowed for the filing of the applicant’s Notice of Appeal be extended to 1 September 2014; 2. The appeal is allowed and the orders made in the Magistrates Court at Townsville on 15 May 2014, are set aside; and 3. The proceedings are sent back to the Magistrates Court at Gympie, to be heard according to law. [4] What follows are the reasons for those orders. [5] As the notice of appeal filed by the applicant purported to bring an appeal under s 222 of the Justices Act 1886, the applicant required an extension of time for the filing of -- 3 of 14 -- 4 that notice of appeal and in that regard he had filed a notice of application, on 23 September 2014. [6] As stated in R v Tait [1992] 2 Qd R 667, the principles to be applied involve consideration as to whether there is any good reason shown for the delay and as to whether it is in the interests of justice to grant the extension. In the latter respect it is appropriate to have regard to the prospects of success or merits of the appeal. [7] In this instance and notwithstanding that there are a number of documents attached to the notice filed on 23 September 2014, there is effectively nothing provided by way of reasonable explanation for the delay, except for what purported to be letters sent to the clerk of the court as early as 13 July 2014 and making reference to “asking for legal advice due to first fine in over 47 years on the road”. At least by having regard to another attached document, which refers to the incurrence of demerit points for an apparent driving offence in 2011, this must be taken as an assertion in relation to offending of this kind in relation to the fatigue management regulation. It may also be noted that another attached document is a response by the acting court policy and protocols officer of the Department of Justice and Attorney-General, indicating a response to a letter dated 11 August 2014, to the then Chief Magistrate. However, it is apparent from the contents of that letter that it relates to correspondence in respect of another appeal by the applicant and in respect of matters heard in the Magistrates Court at Gympie, on 8 August 2014 and the lodgement of an appeal on 13 August 2014, in that respect.1 That appeal was also heard in the same sittings at the Gympie District Court and this only serves to indicate the prompt action taken by the applicant in respect of that other appeal. Otherwise and on the hearing of this application and as it was understood, the applicant attempted to point to his difficulties as a self- represented litigant. [8] As I have already noted, it is also necessary to have regard to the merits of the proposed appeal. [9] As pointed out for the respondent, as this matter was dealt with in the absence of the applicant, the justification for the magistrate doing so, is pursuant to s 142 of the Justices Act 1886. The prosecution was by way of complaint and summons, filed on 15 April 2014 and there was an affirmed oath of service of the complaint and 1 See District Court file, D15/14. -- 4 of 14 -- 5 summons on the applicant, by registered post sent on 3 April 2015. That summons required appearance on 15 May 2014 and before then, the applicant had forwarded to the Court some written material. There were three pages: (a) first, a letter addressed to the magistrate and bearing the date 6 April 2014. It makes reference to a summons and relevantly states (as it appears): “Your worship, please find copys of letters as to said matter. Your Worship I cannot be at your court due to my wife being call3ed on and off to Nambour Hospital due to her having a lot of trouble with her kidneys it looks like she will being having one taken out as she can not drive I need to be here said matter with kidney stones now has come her as well may be going on a kidney machine. Sir I have not had a log book fine in all the years on the road I hope that you will please take that in to account as my Centre link income is not much and after having a large hart attack said medication is getting out of hand and the cost is going up all the time. Sir I do not drive that much now but my doctor has given me the full OK”; (b) the second, bearing the date 20 September 2013, is addressed to Transport and Main Roads Prosecutions Unit and is headed “Re work diary 25/10/2012”. Relevantly, it reads (as it appears): “Dear sir/madam. I am mailing this letter as to my infringements No A5989892 7 as well, A26989 6. Back in October I had a phone call from my son Glen asking if I could come up to help him out due the fact that he was in a state of being ill. I was given a lift in Volvo up to where he was I found that he had not been taking his medication due to him having a lot of problems with the mother of his two sons as well he had a cold and was running a high temperature as well he was sleeping a lot he would not wanted to see a doctor but to finish the job that he took on so there for I drove for some time and I dove again at times it was not a two up from the start of my son’s trip. We rest at Atherton as well I had lunch at Raven Shoe my son was a sleep so I my self had some sleep under the trailer for around two hours from there I got behind the wheel as my son was out to it. I was driver a long Stuart Drive Townsville and a call came over UHF for me to pull over that I did it was a officer of transport was asked for ID as well log book which gave to him I was given a infringement notice as well as a -- 5 of 14 -- 6 Prohibition notice from there we drove to a truck stop and stay there to it was time to leave. By the time is was for us to go my son had got over most of it and he drove from there. I was mail a copy of my demerit points notice of offense details where it reads that you have taken from me a total of 6 points. I under the circumstances at the time as well as to the way of one your officer may not be CAMPBELL if so his has sleep trouble. If so it was the other officer that put one finger at a time and blow his nose out in front of people then wipe its on his shirt slave is this the way of now treating people by a Government officer what would be the out come if he carried on like this in front of a police officer or in a court.”; and (c) the third is a very brief letter addressed to the Northern Compliance Officer, Main Roads, Townsville and dated 23 September 2013, which appears to make some reference to a phone call in relation to “conduct of officer”. It appears largely inconsequential. [10] Consistently with the experience of this court in dealing with the applicant, this correspondence does not provide any clear or unequivocal indication of the applicant’s position in respect of this matter. This was partly recognised, in the proceedings below: MR LUNDIE: Yes, that’s correct, your Honour. I believe there is a letter on the court file by Mr Condon. It doesn’t detail a plea, as such, but he does detail and request a matter of mitigation be taken into account. I’m in your hands in relation to it, sir. BENCH: Well, it’s probably ex parte, but that being said, the correspondence can be taken into account. 2 [11] Clearly this was not a situation where there was a written guilty plea and s 146A did not apply. Following that the proceedings continued as follows: BENCH: So you can walk me through it, Mr Lundie. MR LUNDIE: Yes, your Honour. Your Honour, the facts of the matter are that on the 25th of October 2012, at 1.20, transport inspectors from the Department intercepted a heavy vehicle. The driver of the vehicle was identified as Robert William Condon, the defendant, by his drivers license. The defendant was required to produce his work diary. The defendant 2 T1-2-15-23. -- 6 of 14 -- 7 complied. An inspection of the work diary identified that for the 24 hour period between 4 pm on the 23rd of October 2012 and 4 pm on the 24th of October 2012, the defendant worked more than 13 and a half hours, namely, 17 hours in a 24 hour period, being a critical risk breach. Also identified that, on the 24th of October, the defendant, who was engaged returning from work and failed to record in his work diary whether he was engaged in either work – either a work/rest option prior to starting work, being that it didn’t indicate if he was working standard hours, BFM hours or AFM hours in his work diary. So he had failed to indicate in a diary what work/rest option he was operating under. BENCH: Well, so you have a choice? MR LUNDIE: Yes, they can operate under certain ones and it needs to be indicated. There’s boxes on the work diary for each category of work/rest option. BENCH: And then that identifies what sort of breaks you need to have and when you have to have - - - MR LUNDIE: That and how many hours they can work, yes, that’s correct, your Honour. BENCH: All right. MR LUNDIE: Also, on the inspection of the work diary for the 25th, that the defendant was engaged in returning from work but had failed to record any information in his work diary prior to starting work. That information would be in relation to his name, the work/rest operation he was operating under, his licence number - - - BENCH: He just hadn’t filled it in. MR LUNDIE: He hadn’t filled the top section of the work diary out, your Honour. BENCH: Sorry, that’s all, but the rest of it was filled in? MR LUNDIE: That’s the information I have in the statement of facts, your Honour. BENCH: Well, what are the diaries. What, have they got a header up the top: name and address and everything? MR LUNDIE: They do, yeah. That’s correct. BENCH: And then they have some columns there when you work, when you stop - - - MR LUNDIE: For the work/rest hours, yes, that’s correct. -- 7 of 14 -- 8 BENCH: Was that part filled in? MR LUNDIE: That part’s a different offence actually, your Honour. BENCH: All right. So we’ll get to that. MR LUNDIE: Your Honour, in relation to the work diary entries, it indicated that, on the 23rd, he’d commenced a journey from Rockhampton, through which he travelled through Townsville north up to Ravenshoe. The work diary for the 24 hour period from 4 pm on the 23rd to 4 pm on the 24th, had a two and a half hour period that wasn’t recorded and, as such, the complainant was not satisfied, to a certainly, which district the offence may have been committed in and, as such, pursuant to section 139 of the Justices Act (1)(c), I recall briefly, as the defendant’s work diary has shown that he clearly travelled through Townsville, has issued the complaint in the Townsville Magistrates Court. BENCH: I see, he passed through, yes. All right then. So he was given a ticket for this, was he? MR LUNDIE: That’s correct, your Honour. Each – he was issued two infringement notices initially: the first being in relation to his hours breach, and the second in relation to one of the offences in relation to failing to record the required information prior to starting work – or immediately after starting work, I should say, your Honour. The complainant alleges three offences. BENCH: He’s not very comfortable with Mr Campbell. Have you seen that? That - - - MR LUNDIE: Sorry, your Honour, you’re referring – in the letter, your Honour? BENCH: Yes. That’s: Re: Work diary. This is 20th of September 2013, and it’s concerns about his person hygiene. MR LUNDIE: I can’t recall if that was Inspector Campbell or the other officer that was present with him. BENCH: Yes. In any event, I don’t think it changes whether or not he wrote in his diary. MR LUNDIE: No, that’s correct, your Honour. BENCH: This adds to the general affection that truck drivers have for transport officers. -- 8 of 14 -- 9 MR LUNDIE: I’m certain that would be the case, your Honour. BENCH: What were the ticket [indistinct] MR LUNDIE: Each infringement amount is $660 per offence, your Honour. The maximum penalty being 6600. BENCH: So 360, all right. MR LUNDIE: 1980, would that be correct, your Honour. BENCH: Well, if I multiply it by three, yes. MR LUNDIE: Yes, it would be, by three, yes, yeah. The total for the three infringements. BENCH: But this fellow has had a heart attack since and doesn’t drive too much. MR LUNDIE: I know that was in his letter, yes, your Honour. BENCH: So he’s convicted and fined $1500. What are your costs? MR LUNDIE: $84.50. Sorry, your Honour. BENCH: $84.50. He’ll be allowed two months to pay. In default – so in default 15 days. No, it can’t be right. 14 days. A conviction’s recorded. MR LUNDIE: Your Honour, just [indistinct] ex parte 142 [indistinct]. BENCH: Yes. MR LUNDIE: Thank you, your Honour. I have no further matters, may I be excused? BENCH: Thank you. MR LUNDIE: Thank you.3 [12] An immediate difficulty is in reconciling what was done, with the power given to the magistrate under s 142 and which is relevantly expressed as allowing the court to: “(a) proceed ex parte to hear and determine the case as fully and effectually to all intents and purposes as if the defendant had personally appeared before them in obedience to the said summons.” 3 T1-2.25-T1-5.5. -- 9 of 14 -- 10 [13] There is some practical significance here. Even if the applicant’s correspondence could be taken as not taking issue with the matters referred to and as being only expressly indicative of a plea in mitigation, there was express reference to the two infringement notices that had been issued. Whilst there was also reference to the summons, which included the third offence and which was added in the complaint, that allegation under s 71 of the regulation, required proof that a relevant driver had failed to record some stipulated information “immediately after starting work on a day”. Neither in the proceedings below did the prosecutor, nor on this hearing was the legal representative for the respondent able to, articulate the factual basis for that allegation. It is apparent that all of the offences were at least closely related and involved what was a related if not single course of conduct, in respect of the applicant’s involvement in driving a relevant truck. Further and as counsel for the respondent accepted, there is a potential difficulty in attempting to apply this section to omissions relating to discrete days, in circumstances where a period of work commences on one day and continues into another. Here it was common ground that the interception of the applicant, in Townsville and which led to these charges, was at about 1.20 am on 25 October 2012. [14] However there is a more fundamental difficulty, in that each of the two charges brought under s 71 of the regulation, incorrectly allege that particular information was not recorded “immediately before starting work” on each of the days 24 and 25 October 2012. [15] The effect of those observations is that there is demonstrated merit in the proposed appeal and as matters stood before this court, the convictions for the two offences under s 71 of the regulation are irregular, in that the complaint did not charge an offence known to law and accordingly, the single fine and consequential orders made in respect of all offences must also necessarily be set aside. [16] Before concluding, there is another matter that should be noted, at least in deference to this issue being addressed in the written submissions of the respondent. It would appear that in cognisance of the express reference made by the prosecutor in the proceedings before the magistrate, to the amount of penalties applied by legislative effect to a penalty infringement notice (“PIN”), issued for such offences and the magistrate’s engagement in that comparison, reference was made to a passage in my -- 10 of 14 -- 11 decision in Pullen v O’Brien4 and the terms of s 16(2)(b) of the State Penalties Enforcement Act 1999 (“SPEA”). It was submitted: “11.3 Pursuant to Section 9(2)(a) Penalties and Sentences Act 1992, the Magistrate had regard that the maximum penalty prescribed for each offence was 60 penalty units, amounted to $6,600 per offence. Further, it is submitted that it was a relevant circumstance5 to consider the prescribed amount of infringement notices for these offences, had the applicant been issued with such infringement notices because it is in the interests of parity of penalty with other people who commit similar offences and are issued with infringement notices. In line with Section 16(2)(b) State Penalties Enforcement Act 1999, although the Magistrate was not bound by the amount of the infringement notice, Long SC, DCJ considered this to be an acceptable approach in Pullen v O’Brien and found that the Magistrate in that matter acted fairly.” [17] It is first appropriate that I observe that this submission should not be accepted as an apt rationalisation of my earlier decision. Although the outcome of that case was that an extension of time for filing a notice of appeal was refused, in circumstances where a magistrate had exercised a sentencing discretion in respect of a common driving offence, to impose the equivalent amount provided for a PIN or ticket, plus court costs, by way of orders in dealing with the matter, as is clear from the extract in Pullen v O’Brien at [22], the particular reference by the magistrate to that approach and the amount of fine applied to the PIN, occurred in the exercise of a discretion, rather than by way of any adoption of statutory decree, and in the context of examining the weight to be given to that applicant’s guilty plea. That case, for obvious reasons, presented unusual circumstances and it is also clear that, as set out at paragraphs [22]-[24], the reference to s 16(2)(b) was only in the context of that applicant’s contention as to apparent bias on the part of the magistrate because of what was sought to be characterised as a threat to increase the penalty and the tendency for assumption that the PIN amount acted as some limitation for the magistrate. Hence, the reference to s 16(2)(b) was to demonstrate that it did not. [18] In light of the circumstances of this case and the submission to which I have referred, some further examination of the effect of s 16 of SPEA is appropriate. The full section should be noted, as providing the immediate context for s 16(2)(b): “16 Effect of this part on prosecution (1) The fact that an infringement notice has been, or could be, served on a person for an offence, does not affect the starting 4 [2014] QDC 92 at pages 12-13. 5 Section 9(2)(q) Penalties and Sentences Act 1992. -- 11 of 14 -- 12 or continuation of a proceeding against the person or anyone else in a court for the offence. (2) This part does not— (a) require the serving of an infringement notice on a person for an offence, as opposed to proceeding against the person in another way; or (b) limit or otherwise affect the penalty that may be imposed by a court for an offence.” [19] A critical question which is sought to be addressed by the respondent’s submission, is as to whether the words “limit or otherwise affect” means that any consideration of the availability or previous issue of any PIN or the legislated amount of fine applied to any such notice, is an irrelevant consideration for the purpose of the exercise of sentencing discretion, when an offence for which a PIN was or could have been issued, is before a court. [20] Although it is not necessary or desirable to come to a finally concluded view, I am inclined to a view that s 16(2)(b) does not necessarily have such an effect. In the first instance, it can be noted that it would not have been difficult to expressly state that effect, if that was what was intended. Further there is an alternative interpretation and that simply requires reading that “otherwise affect”, in context, means not allowing any direct effect, by way of constraint on the exercise of the sentencing discretion. That is, that the legislative intent is to make clear that the exercise of the judicial discretion as to fixing a penalty on sentence, is not in any way fettered or constrained, by any reference that may be made to the provisions in SPEA, allowing or providing for penalty infringement notices. [21] Necessarily and once such a matter is before a court, the principles embodied in the Penalties and Sentences Act 1992 are engaged, as far as they may be relevant to the judicial discretion to be exercised, and in the situation commonly involving the imposition of a fine, as a penalty, the provisions of Part 4 of that Act are engaged, including s 48(1), which provides: “(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.” -- 12 of 14 -- 13 [22] Although it is not possible to ascribe or predict how any consideration of the amount legislatively provided for a PIN for some offences, may or may not become a relevant consideration in any given case. it can be noted that reference to the amount legislatively provided for a PIN for some offences, may have some relevance in gauging the relative seriousness of an offence, just as reference is necessary to the prescribed maximum penalty for each offence. It may also be relevant to an understanding of the relevant legislative scheme and the purposes of that legislation. [23] However and what is clear and must be borne in mind, is that the prohibition in s 16(2)(b) is in respect of allowing any limitation or constraint or fettering of an appropriate exercise of sentencing discretion. In other words, when the matter is before a court, it is to be determined by the exercise of independent judicial decision in the exercise of a sentencing discretion, having regard to all the relevant considerations in any given case and not according to legislative dictate. [24] There is also difficulty with the contention that such regard may be “in the interests of parity of penalty with other people who commit similar offences and are issued with infringement notices”. In part, that may be because of the particular reference to the narrow principle of parity. As was explained In Lowe v R6 and Postiglione v R:7 “The parity principle… 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”.8 [25] The amount which is legislatively applied to a PIN is a standard penalty amount, so applied irrespective of the particular circumstances of an offender or a particular instance of offending. Moreover, it is not imposed in the same sense as or with the finality attaching to a judicial order. Rather and pursuant to s 22, when a PIN is served on an offender there is an election to be made between specific options and leaving aside the situation where it may be contended the offender is someone else using a vehicle, they are to pay the specified fine or to have the matter dealt with in a Magistrates Court. 6 (1984) 154 CLR 606. 7 (1997) 189 CLR 295. 8 Ibid at 301. -- 13 of 14 -- 14 [26] Particularly, where it is clear that the usual manner of imposition of penalty for more common offending, is by way of PIN (for example, common driving or traffic infringements), some weight may be attached to the PIN amount in consideration of the broader concept of equal justice. More particularly, that may be so where the amount of the PIN is unlikely to realistically lead to issues that may require consideration under s 48 of the Penalties and Sentences Act 1992. [27] However and if the matter is before a court, then it must be kept firmly in mind that an exercise of judicial discretion according to the individual circumstances of that case, is required and the terms of s 16 of the SPEA must also be kept in contemplation. -- 14 of 14 --