Cafun v Phillips [2005] QDC 189

DISTRICT COURT OF QUEENSLAND CITATION: Cafun v Phillips [2005] QDC 189 PARTIES: MICHEL ANDRE CAFUN (appellant) v SCOTT GREGORY PHILLIPS (respondent) FILE NO/S: BD2242 of 2004 DIVISION: Appeal PROCEEDING: Appeal against sentence ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 7 July 2005 DELIVERED AT: Brisbane HEARING DATE: 3 May 2005 JUDGE: Ryrie DCJ ORDER: Appeal dismissed. The Appellant to pay the Respondent’s costs of and incidental to the appeal to be assessed. CATCHWORDS: APPEAL – appeal involving offences under Customs Act 1901 dealt with summarily – Customs Act 1901 ss. 233(1)(b), 234(1)(d); Justices Act 1886 s.222 APPEAL – Importation of prohibited weapon – 3 x knuckledusters – Making false statement to an Officer of Customs APPEAL – Fines imposed by Magistrates Court – whether sentence was manifestly inadequate COUNSEL: D Boddice SC, with M Hogan, for the appellant P Nolan, for the respondent SOLICITORS: Australian Government Solicitor for the appellant Robertson O’Gorman Solicitors for the respondent -- 1 of 13 -- 2 Introduction [1] This is an appeal from a decision of a Magistrate given on the 28th May 2004 at Brisbane. [2] The Respondent had pleaded guilty to one count of importing prohibited imports, namely 3 knuckledusters, contrary to Section 233(1)(b) of the Customs Act 1901 and one count of making a false statement to an Officer of Customs contrary to Section 234(1)(d) of the Customs Act in respect of the 3 knuckledusters. The maximum penalties for those offences, if dealt with summarily, were at the material time, $22,000 and $11,000 respectively. [3] The Respondent was convicted and ordered to pay the following penalties: • $1500 for the 233(1)(b) offence, in default of payment 30 days imprisonment. • $700 for the 234(1)(d) offence, in default of payment 14 days imprisonment. [4] The Respondent was also ordered to pay the Appellant’s costs in the sum of $573.20. [5] The time allowed to pay the penalties imposed and the costs ordered was 1 month. [6] The Notice of Appeal filed on the 24th June 2004 by the Appellant says that the sentence imposed by the Magistrate should be set aside because the penalty imposed in respect of each of the offences was manifestly inadequate. Preliminary Point [7] A preliminary point arose on the hearing of the appeal. -- 2 of 13 -- 3 [8] The Appellant asked for leave to adduce evidence (A Certificate of Indictment Details dated 14th December 2004) which had been annexed to the Appellant’s Amended Outline of Argument filed on the 14 February 2005. [9] The Appellant requested that leave be granted only in order that the public record could be factually corrected. [10] No attempt was made by the Appellant to place before the Magistrate the Certificate which the Appellant now wishes to put before this Court, notwithstanding that the Appellant had tendered the Respondent’s criminal history for her consideration and the Appellant relied upon that history to support its’ submissions on penalty. [11] In Baillie v The Home Company Pty Ltd, Appeal 3443 of 1999, McGill DCJ sets out a helpful and concise summary in respect s.223(2) of the Justices Act 1886 which provides: ‘A 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’. [12] At paragraph 12, His Honour accepted that s.223 could operate to allow additional or substituted evidence to be adduced without interfering with the ordinary principle of an appeal, that a party in bound by the conduct of the case at trial, however he also noted that there was a important difference between the situation where a party seeks to lead additional evidence at a hearing and that is refused and a situation where no attempt is made at the hearing to lead the additional evidence, but on appeal seeks to plug some gap in the case exposed in the decision under appeal. [13] His Honour properly observed that an appeal court should be much less willing to accept that approach, otherwise there is a risk that parties will not take sufficiently -- 3 of 13 -- 4 seriously the conduct of the trial, since they may assume that any deficiencies in their evidence can, if necessary, be made good on appeal. [14] I agree with His Honour’s learned statements on this point. [15] Accordingly, should the Appellant now be allowed to adduce such evidence before this Court? [16] Counsel for the Appellant has only requested that leave be granted by this Court in order that the public record can be factually corrected. [17] I consider that leave ought to be granted in those circumstances but only for that purpose, because to allow otherwise would in effect be allowing the Appellant at this point to ‘plug some gap in its’ case exposed in the decision under appeal’. The Hearing before the Magistrate [18] The Magistrate heard submissions by both parties in respect of penalty. [19] The Appellant submits before this Court that the sentence imposed on the Respondent should be set aside because: (a) the sentence was manifestly inadequate, and (b) the Magistrate had demonstrated error in the exercise of the sentencing discretion. [20] In support of these contentions the Appellant relies on several bases:- (i) the penalty imposed by the Magistrate was not consistent with the pattern of penalties previously imposed by Queensland Courts. [21] Consideration was given on this issue to the following: -- 4 of 13 -- 5 [22] A table of sentences which had been handed down by other Queensland Magistrates in respect of Customs Act offences was placed before the Magistrate for her consideration. [23] Only three (3) of those involved knuckledusters, see King; Chan and Gaerlan. [24] Only one (1) of those cases however involved knuckledusters alone (see King). [25] The penalty imposed by the Magistrate hearing the matter of King imposed fines of $3000 and $1500 respectively (for the s.233(1)(b) and 234(1)(d) Customs Act offences). In Chan, the Magistrate imposed fines of $2500 and $1800 respectively and in Gaerlan, the Magistrate imposed fines of $3500 and $2500 respectively. [26] However, in Chan and Gaerlan, those cases also involved other prohibited items, namely knifes. [27] The Appellant submits that the Magistrate made a demonstrable error when she failed to impose in this case, the same level of penalty as that which had been imposed in those cases. [28] It is difficult, on any view of this matter, to accept the Appellant’s contention on this issue. [29] For there to be a proper exercise of the sentencing discretion, a Magistrate must consider each case on its own facts, have regard to any relevant sentencing principles and give proper consideration to any relevant legislation and the maximum statutory penalties applicable. [30] If the Appellant’s contention was true, then a Magistrate could simply ‘delegate’ his or her sentencing function by reference to what other members of his or her court -- 5 of 13 -- 6 have previously handed down by way of penalty in ‘similar’ type cases, and impose the same level of penalty. [31] To do so, in my view, would amount to a clear error by a Magistrate in the exercise of his or her sentencing discretion in those circumstances. [32] Accordingly, I cannot accept the Appellant’s contention that the Magistrate, in this case, failed to exercise her sentencing discretion properly. [33] Nor is a Magistrate, in any event, bound to follow another Magistrate’s decision on penalty simply because the latter has dealt with a similar type case, notwithstanding that parity in sentencing is always an important consideration. [34] Accordingly, I cannot accept the Appellant’s contention on this issue. (ii) the Magistrate appears to have taken little or no notice of the Prosecution’s submissions on penalty. [35] In support of this contention, the Appellant refers to the fact that the Magistrate made no specific reference in her sentencing remarks to the submissions made by the Prosecution. [36] It is difficult to accept the Appellant’s contention on this issue. [37] The Magistrate has clearly accepted the Prosecution’s submissions regarding the type of penalty it considered appropriate as demonstrated by the imposition by the Magistrate of a fine in respect of both offences. [38] The transcript of proceedings also reveals that the Magistrate, in her discussions with the parties, considered the nature of the offences, the number and type of prohibited items in question, the fact that the Respondent should have known that -- 6 of 13 -- 7 knuckledusters could be used weapons and that the Respondent had entered Australia 21 times previously. iii) the Magistrate failed to have regard to other factors which were important, namely consideration of deterrence, particularly in respect of deliberate conduct; the statutory penalty range; the Weapons Act (Qld); the Respondent’s prior criminal history involving weapons; and the fact that he was a seasoned traveller who had a capacity to pay a fine. [39] Consideration was given on these issues to the following: [40] In respect of deterrence, particularly in respect of deliberate conduct, it is difficult to accept the Appellant’s contention on this issue in circumstances where the Appellant cannot, on any view of the evidence, assert that the Respondent had deliberately, by his conduct, tried to bring the prohibited items (3 knuckledusters) into Australia. [41] When asked by the Customs Officer if he had any items to declare, the Respondent declared an axe with a wooden handle to the Officer. The Magistrate was entitled to accept that the declaration he made to the Customs Officer at that time, adequately demonstrated that the Respondent was not deliberately trying to bring prohibited items into Australia per se, for had he intended to do so, he would not have declared the wooden article in question, an item also deemed to be a prohibited item under the Customs Act. [42] The Magistrate was entitled in those circumstances, to accept the submissions made on his behalf, namely that he did not intentionally try to bring the knuckledusters -- 7 of 13 -- 8 into Australia based upon his genuine but mistaken belief that he didn’t have to declare them. The Magistrate was entitled to accept in those circumstances that this Respondent, (unlike in the case of King), did not knowingly try to attempt to enter Australia with knuckledusters in his possession. Accordingly, the Magistrate has imposed a penalty which she considered, in her view, properly reflected that the Respondent had not embarked upon deliberate conduct. [43] It is also difficult to accept the Appellant’s contention that the Magistrate failed to consider other relevant factors when exercising her sentencing discretion. [44] She was provided with the Respondent’s criminal history which included serious offences involving the use of weapons in the past, she noted that he had entered Australia 21 times previously, she would have been aware of the Weapons Act (Qld) and she also noted that the Respondent had a capacity to pay a fine. [45] She was provided facts in mitigation in respect of all of those matters however, that she was entitled and in fact, did accept. (iv) the Magistrate was also led into error by the submission made (at 1st instance) in respect of the type of weapon/s that had been used in respect of the Respondent’s previous offending behaviour in 1997. [46] I cannot accept the Appellant’s contention on this issue. [47] The Magistrate had before her, the Respondent’s criminal history which clearly demonstrated the level of the Respondent’s previous offending behaviour in 1997. -- 8 of 13 -- 9 [48] The Certificate of Indictment Details (now before this Court) in respect of those offences does little to assist the Appellant’s contention on this issue in any event. [49] This is the case, even if this Court were to accept that due regard should be had to that Certificate, for a purpose other than correcting the public record. [50] The fact remains the same. [51] Merely because a knife and a vacuum cleaner pipe were used in respect of two (2) of those offences (in circumstances still not known even before this Court) rather than a vacuum cleaner alone, does not in itself, demonstrate that the Respondent would have known or should have known, that he was required to declare the knuckledusters upon his arrival to Customs, because they were prohibited items under the Customs Act. [52] The Appellant’s contention on this point may have carried more weight had the Respondent’s previous offending behaviour involved knuckledusters. [53] Accordingly, the Appellant has failed to demonstrate that the Magistrate has made a demonstrable error of law in the exercise of her sentencing discretion. [54] The Appellant has also failed to demonstrate that the sentence which the Magistrate imposed in all the circumstances of this case, was manifestly inadequate. [55] As properly conceded by Counsel for the Appellant, it is not enough for the Appellant to simply say that had another Magistrate heard this matter, (or even had this Court heard this matter afresh), that a different penalty might have been imposed. -- 9 of 13 -- 10 [56] This Court can only intervene, where a matter of discretion is involved, if it can be demonstrated that there has been a clear error in the exercise of that discretion of such a magnitude, that an appeal court should properly intervene. [57] On any view of this matter, it cannot be said that the penalties imposed by the Magistrate were so manifestly inadequate (my emphasis added) that the sentence could be said to outside the applicable statutory range. Costs of the Hearing [58] One other matter raised by the Appellant before this Court, was in respect of the quantum of the costs ordered by the Magistrate to be paid by the Respondent. [59] The Magistrate assessed those costs at a total of $573.20. [60] The Prosecution had asked for costs in the order of $981.40. [61] The Appellant says that the Magistrate erred as a matter of law in respect to quantum of the costs assessed and the manner of that assessment. [62] The Notice of Appeal filed by the Appellant in this Court however does not state, as a ground of appeal, this point. [63] s.222(1A) of the Justices Act 1886 allows for an appeal to be made by a complainant aggrieved by the decision of a Magistrate may appeal against an order by a Magistrate dealing summarily with an indictable offence but only against sentence or an order for costs. [64] An appeal however shall only be made by giving a Notice of Appeal in the approved form stating the grounds of the appeal (s.222(2)(a)(i)). -- 10 of 13 -- 11 [65] The Appellant did not seek to amend its Notice of Appeal before this Court to include this ground of appeal. [66] s.228 of the Act provides that no appeal shall be defeated merely be reason of any defect whether of substance or of form in any notice of appeal or in the statement of the grounds of appeal. [67] That section allows this Court to amend the Notice upon certain terms as this Court may think just. [68] No objection was taken by the Respondent on this point before this Court and both parties made written and oral submissions on this issue. [69] Accordingly, I shall determine this issue notwithstanding the defect in the Notice of Appeal. [70] Has the Magistrate erred as a matter of law on the question of costs? [71] The Appellant contends that the Magistrate’s failure to provide any or any adequate reasons demonstrating how her decision on costs was reached may amount to an error of law. It is true that such a failure in this regard may amount to an error of law. [72] However, even if this Court was to accept the Appellant’s contention on this issue, should this Court now assess the quantum of costs to be paid by the Respondent in a different amount than that which was assessed by the Magistrate? [73] The Appellant has sought to rely on several bases to support its contention that the amount of costs that the Respondent should have been ordered to pay be $981.40. [74] (i) The Appellant contends that there is no reason in principle why awarding costs -- 11 of 13 -- 12 under s.157 of the Justices Act 1886 should be approached on different basis to the awarding of costs against an unsuccessful complainant under s.158. [75] I cannot accept the Appellant’s contention on this issue. [76] s.158 and s.158A specifically deals with the situation in respect of costs on dismissal of a complaint and the exercise of the discretion in relation to an award of costs in a defendant’s favour in those circumstances. [77] s.157 on the other hand, specifically deals with the situation in respect of costs on conviction or order in relation to an award of costs in a complainant’s favour. [78] If the Legislature had intended that an order for costs should automatically be awarded in favour of every successful Complainant, then the Act would have provided for that accordingly and not have made any distinction. [79] Costs under s.157 and s.158 may only be ordered in a successful party’s favour in any event, where such costs are, in essence, considered to be ‘just and reasonable’ by the Magistrate in the exercise of his or her discretion. [80] Accordingly, I cannot accept the Appellant’s contention on this issue. [81] (ii) The Appellant also contends that separate professional costs and filing fees should have been awarded because each complaint pleads a separate offence. [82] While it is true that each complaint pleads a separate offence under the Customs Act, that is not the end of the matter. [83] No assistance was provided to the Magistrate (or to this Court) regarding how the professional costs being sought by the Appellant had been calculated. -- 12 of 13 -- 13 [84] As observed by His Honour Wylie DCJ in Keating v Kneipp, such costs may be awarded but only after proper reference to appropriate itemisation. [85] The Appellant did not seek the leave of this Court to adduce any such evidence on this issue. [86] Thus this Court is left in no better position than the Magistrate was in respect of this issue regarding how the costs have been calculated in the amount being sought. [87] The Appellant contended that if this Court was minded to revisit the order made by the Magistrate in respect of costs, this Court could order that the Appellant now provide an appropriate itemisation of those costs so that a proper assessment might be made. (which was the course adopted by Wylie, DCJ in Keating v Kneipp) [88] As already stated, an appeal court should be reluctant to allow a party to ‘plug some gap in its case’ exposed in the decision under appeal. [89] To allow the Appellant to provide such an itemisation in the manner now suggested, would be to allow the Appellant to do just that, in circumstances where no application was made before this Court, for such leave to be granted. [90] Accordingly, I do not intend to interfere with the order which was made by the Magistrate in respect to the quantum of costs to be paid by the Respondent to the Appellant in all the circumstances. [91] Accordingly, I dismiss the appeal and order that the Appellant pay the Respondent’s costs of and incidental to this Appeal to be assessed. -- 13 of 13 --