Arndt v Sao [2006] QDC 419

[2006] QDC 419 DISTRICT COURT APPELLATE JURISDICTION JUDGE ROBIN QC No BD1857 of 2006 BENJAMIN ARNDT Respondent/Plaintiff and SUETENA SAO Appellant/Defendant BRISBANE ..DATE 04/12/2006 JUDGMENT CATCHWORDS: Justices Act 1886 s 222 - appeal against imposition of maximum sentences on each of separate offences of assuming the designation or description of a police officer with 150 days imprisonment in default in respect of each separate fine, no time being allowed to pay - undesirability of that sentencing practice - appeal allowed, with fines and default imprisonment adjusted to correspond with 168 days' imprisonment already having been served. 1 -- 1 of 7 -- 04122006 T10-11/BC(BNE) M/T CMS140/2006 (Robin DCJ) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The appellant in this appeal under s 222 of the Justices Act 1886 is a recidivist offender in various categories but most pertinently in the category of assuming the designation or description of a police officer contrary to the Police Service Administration Act 1990 Section 10.19(d)(i). He appeals against penalties imposed in the Magistrates Court at Brisbane on 20th June this year in respect of three such charges placed on 14th June 2006 as to one, and 8th May 2006 as to two. He was fined the maximum amount of 100 penalty units separately for each offence and ordered to serve 150 days default imprisonment in respect of each $7500 fine. No time was allowed to pay. The Magistrates expressly stated that the default imprisonment periods were cumulative. There is a troubling passage in the transcript at page 6 where these words were said from the Bar table: "I agree with my friend that there's no option for your Honour other than fines. He's in a situation where he's had a number of those fines." The Magistrate responded, according to the transcript: "Oh, I've got an option for him; don't worry. I'll fix him up." Ms Rouse then said, and I quote: -- 2 of 7 -- 04122006 T10-11/BC(BNE) M/T CMS140/2006 (Robin DCJ) 3 JUDGMENT 1 10 20 30 40 50 60 "I can anticipate what your Honour is thinking of doing. I do wish to place on record that he's now spent seven days in custody." - something which the Magistrate said would be taken into account. Although it is far from unprecedented for default imprisonment to be imposed with time to pay the relevant fine being refused, that is a problematic sentencing approach. See Reeves (1972) 56 Criminal Appeal Reports at 366 which was followed in Cameron [1978] Queensland Reports 118. One can understand the Magistrate's lack of patience with the appellant. He first assumed the designation or description of a police officer on 22nd October 2003. On the eve of his appearance in Court in relation to that matter on 26th April 2004, he committed the offence again. He thus found himself on 26th April 2006 convicted of the 2003 offence and the one on Anzac Day 2006. He was back in the Magistrates Court on 27th April 2006 pleading guilty to having assumed the designation or description of a police officer on 26th April 2006. He committed the offence again the day after his appearance in Court on 27th April 2006. This time the authorities were slower to get him before a Magistrate. It happened on 5th May 2006. For those offences, the fines imposed were $2625, $2625, $4500 and $1000 with default imprisonment periods of 35 days, 35 days, 60 days and 20 days respectively. For all that appears, those fines remain unpaid. The appellant may be facing the -- 3 of 7 -- 04122006 T10-11/BC(BNE) M/T CMS140/2006 (Robin DCJ) 4 JUDGMENT 1 10 20 30 40 50 60 custody indicated as the periods of eight months, eight months, six months and six months allowed to pay run out. He went straight into custody on 20th June 2006 and, accordingly, has been there for 168 days. As the outline of argument filed by the respondent indicates, the default imprisonment could have been much heavier than it was. The respondent has in a sense conceded the appeal having regard to Woods [2004] QCA 2004 which indicates that an appeal court obtains jurisdiction to review a sentence wherever, as happened here, the sentencing court omits to state in open court that consideration has been given to a guilty plea. That must be a very frequent occurrence even where that factor is taken into account by the sentencing court. It is useful to a person such as the appellant, however. The seriousness of his offending is clear. It is important for the community to have confidence that those identifying themselves as police officers are legitimate. It rather seems that here none of the appellant's victims took him seriously. There could be real dangers where a person who was not a police officer but pretended to be was taken seriously and was relied on as offering himself for assistance in some genuine emergency. Mr Fong has submitted that Section 97 of the Criminal Code would be available to charge his client. It establishes a misdemeanour of impersonating a public officer and fixes a -- 4 of 7 -- 04122006 T10-11/BC(BNE) M/T CMS140/2006 (Robin DCJ) 5 JUDGMENT 1 10 20 30 40 50 60 potential penalty of three years. Counsel have not demonstrated today whether or not that provision would be available. It certainly was not taken advantage of in the present prosecution. I would think without hearing argument on the matter that this was one of those contexts in which equity might become the handmaid of the criminal law and make available an injunction against the appellant, rendering him liable to proceedings for contempt which might well include imprisonment if there is a repetition of the offending in the face of an injunction, but there is no basis upon which the Court could make an order of that kind today. In my opinion, these were not instances in which imposition of the maximum penalty was called for. It is difficult to know how the matter ought to be resolved. I was attracted to Ms Rankine's submission that the Court might retain the fines and fix default imprisonment periods of two months. She also suggested remitting the matter to the Magistrates Court. One of the great difficulties is that there is no way in which credit can be declared for the time the appellant has been in custody. Mr Fong's submission was that the Court ought to reflect what has already occurred by leaving no more remain than convictions of his client without any further penalty. He expresses the proper concern that it would be undesirable if this Court in the circumstances were to appear to endorse the imposition of fines associated with default imprisonment with -- 5 of 7 -- 04122006 T10-11/BC(BNE) M/T CMS140/2006 (Robin DCJ) 6 JUDGMENT 1 10 20 30 40 50 60 no time allowed to pay. It is not an attractive course to require further court days to be spent on these matters. It seems to me the most practical course is to accept what has occurred but to reduce each of the fines to $2800 and impose default imprisonment of 56 days in respect of each, cumulative. That applies the rate of $50 per day which the Magistrate used. I am aware that it is open to the Court to equate a much smaller number of dollars to a day in custody. The total of the 56 days for each of the fines has already been served, so the fines, I suppose, may be taken as acquitted. ... HIS HONOUR: In respect of the minor matter of evasion of a fare for which the penalty was one of $300 in default six days imprisonment, having regard to the appellant having served six days without his liberty before being brought before the Court, it seems to be justice is done if Mr Fong's suggestion is taken up in respect of that offence. So that all that remains is the recording of the conviction without any further punishment. ... HIS HONOUR: I declare that the default imprisonment has been served. -- 6 of 7 -- 04122006 T10-11/BC(BNE) M/T CMS140/2006 (Robin DCJ) 7 JUDGMENT 1 10 20 30 40 50 60 ... HIS HONOUR: The intention of the Court is that he is entitled to release now. ... ----- -- 7 of 7 --