Corrigan v Pinheiro
[2005] QDC 188
•7 July 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
Corrigan v Pinheiro [2005] QDC 188
PARTIES:
GREGORY RICHARD CORRIGAN
(appellant)
v
PAULO PINHEIRO
(respondent)FILE NO/S:
BD1848 of 2005
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 allowed; order of the Magistrate Court set aside; order in lieu that the Respondent be convicted and fined $3000 for s.67 Quarantine Act offence and $1500 for s.234(1)(d) Customs Act offence; allowing the Respondent 18 months to pay the penalties imposed from the date of this judgment.
CATCHWORDS:
APPEAL – appeal involving offences under Quarantine Act 1908 and Customs Act 1901 dealt with summarily – Quarantine Act 1908 s.67; Customs Act 1901 s.234(1)(d); Justices Act 1886 s.222
APPEAL – Importation of dried meat products – Biltong – Making false statement to an Officer of Customs – various prohibited items.
APPEAL – Fines imposed by Magistrates Court – whether sentence for Quarantine Act offence is manifestly inadequate – whether sentence for Customs Act offence is manifestly inadequate
COUNSEL:
D Boddice SC, with M Hogan, for the appellant
G Handran, for the respondent
SOLICITORS:
Australian Government Solicitors for the appellant
Nathan Lawyers for the respondent
Introduction
This is an appeal from a decision of a Magistrate given on the 23rd April 2004 at Brisbane.
The Respondent had pleaded guilty to one count of importing meat (namely 1300 grams of biltong) into Australia contrary to Section 67(1) of the Quarantine Act 1908 and one count of making a false statement to an Officer of Customs contrary to Section 234(1)(d) of the Customs Act 1901 in respect of the biltong, 4 bottles of sauce, 2 large wooden masks and 3 three wooden boxes.
The maximum penalty for those offences, if dealt with summarily, were $13,200 or 2 years imprisonment or both and $11,000 respectively.
The Respondent was convicted and ordered the pay the following penalties:
· $1,500 for the s.67(1) offence, in default of payment 30 days imprisonment
· $500 for the s.234(1)(d) offence, in default of payment 10 days imprisonment.
The time allowed to pay the penalties imposed was 12 months.
No order was made in respect of costs.
The Notice of Appeal filed on the 25th May 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.
The Hearing before the Magistrate
The Magistrate heard submissions from both parties in respect of penalty.
The Appellant submits before this Court that the sentence imposed on the Respondent should be set aside because:
(a) the sentence is manifestly inadequate; and
(b) the Magistrate has demonstrated error in the exercise of the sentencing discretion.
In support of these contentions, the Appellant relies on several bases:-
(i) the Magistrate was not correct to have more regard to the sentences which had been imposed by the Western Australian courts than to those which have been imposed by Queensland courts.
Consideration was given on this issue to the following:
In her sentencing remarks, the Magistrate made specific reference to the factors which she considered when determining what penalty she should impose.
In particular, the Magistrate stated that she had taken particular notice of the fines that had recently been given by a number of different Magistrates in the Western Australia exercising federal jurisdiction in respect of the same type of offences.
The Magistrate noted the recent disparity between those fines and the fines which have been imposed by Magistrates in Queensland in respect of similar offences and expressed her concern in that regard.
A table of sentences which had been handed down by other Queensland magistrates for Quarantine and Customs Act offences was placed before the Magistrate for her consideration.
Another table, which set out a number of recent sentences which had been handed down by other magistrates in other states exercising federal jurisdiction (namely Western Australia, New South Wales and South Australia), was also placed before her for her consideration.
Those two documents, when read together, clearly demonstrate the disparity noted by the Magistrate in respect of the penalties which have been imposed, for the same type of offences, by Magistrates in other States.
The Appellant contends that the Magistrate made a clear error in her sentencing discretion, when she took particular notice of the fines which had been imposed in Western Australia for similar type offences, when determining what penalty ought to be imposed on the Respondent.
I am inclined to agree.
For there to be a proper exercise of the sentencing discretion, a Magistrate must consider each case on its own facts and have due regard to the legislation applicable, the statutory penalty range, any relevant sentencing principles and case law.
On any view of the Magistrates’ sentencing remarks, it is clear that the fines she ultimately imposed in this case were meant to merely reflect the type of sentences (the penalty) which had recently been handed down (in 2004) for similar type offences in Western Australia, by Magistrates in that State, exercising federal jurisdiction.
Having done so, it is my view, the Magistrate has unfortunately, fallen into error.
While parity is always considered to be an important feature in the sentencing process, a Magistrate may not ‘delegate’ his or her sentencing function by simple reference to what other members of another state magistrates court may have handed down by way of penalty in similar type cases by imposing that range of penalty.
The same can also be said, had the Magistrate in this case, simply chose to (blindly) adopt the penalties that have been imposed by other magistrates, sitting in his or her own jurisdiction, for similar type cases.
As such, the Magistrate was quite correct in expressing her concerns regarding the ‘trend’ which she considered was developing in that regard in the Magistrates Court, Queensland.
While the Magistrate may have properly noted her concern in respect of the disparity of sentencing which was occurring between Queensland and the other States, unfortunately that is beside the point.
Before a proper determination by a sentencing court may be made in respect of the question of penalty, regard must be had to the particular facts of the individual case, the relevant legislation applicable, the relevant principles of sentencing and any case law which must be considered.
I am not persuaded that the Magistrate gave the necessary due regard to those matters when determining the appropriate penalty that ought to be imposed.
Having determined then, that the Magistrate did fall into error when exercising her sentencing discretion, should this Court now, in any event, increase the penalties which were imposed at 1st instance?
The Appellant contends that the sentence which was imposed was manifestly inadequate because of several bases:
(i) the Defendant’s financial circumstances does not constitute a valid reason for reducing the fines to the level imposed by the Magistrate; and
(ii) the Magistrate had failed to have sufficient regard to other factors namely consideration of deterrence, particularly in respect of deliberate conduct; the statutory penalty range; the risk to Australia’s primary industry in respect of quarantine offences and the fact that the Respondent was a frequent traveller.
The relevant statutory penalty in respect of the offences, if dealt with summarily, is $13,200 or 2 years imprisonment or both in respect of the Quarantine Act offence and $11,000 in respect of the Customs Act 1901 offence.
It would be trite to say that the relevant case authorities cite the importance of deterrence particularly in respect of the Quarantine Act for offences which involve the importation of food items which may have devastating effects on this country’s primary industry.
The legislature has also increased the maximum statutory penalty in respect of the Customs Act offence (on 1 July 2002) from $5000 to $11,000 to reflect the gravity of the relevant offending behaviour.
This court must give due regard to those maximum statutory penalties and the need for deterrence, particularly in light of the potential risk for harm, when the importation of prohibited food items into Australia are involved.
A Statement of Disease Risk dated the 1st December 2003 by G H Parker, Veterinarian (tendered at 1st instance) clearly sets out the potential for significant risk to this country’s primary industry and international trade with diseases such as Foot and Mouth Disease, which have the real potential to devastate Australia’s livestock and primary industry.
Against those considerations, this court must also take into account the factors set out in s.16A(2) of the Crimes Act 1914 when determining what an appropriate penalty should be.
There can be no doubt that these offences (particularly involving the importation of prohibited food items) must be viewed by this Court as serious.
Having said that however, this Respondent did not commit the Quarantine Act offence in circumstances where it could be said that he had deliberately tried to bring a particular food item (namely the 1300 grams of vacuum sealed biltong) into Australia.
He was acting on the advice and information which he says he had received from a vendor at the airport where he had purchased the meat, such advice being that he was allowed to bring biltong into Australia.
The Respondent, accepting that advice, believed that he did not have to declare the biltong in question upon his arrival at Australia, under those circumstances.
While that explanation is accepted by this court, that explanation does not however sufficiently explain why the Respondent did not declare the other food items in his possession namely 4 bottles of sauce (also the subject matter of the Customs Act offence).
Nor does it explain why the Respondent did not declare on his Incoming Passenger Card or at the airport’s customs point, the 2 large wooden masks and 3 wooden boxes (also the subject matter of the Customs Act offence) which were also in his luggage.
It was not disputed before the Magistrate or before this Court, that there was clear signage at the airport which indicates to all incoming passengers, what items they are required to declare at the customs point upon entry to Australia.
Nor can it be said that this Respondent was, on any view, an inexperienced traveller.
He had travelled overseas on 3 previous occasions.
The Respondent has however, no prior criminal history and has certainly shown contrition by his early plea of guilty to both offences.
Nor can it be said that this Respondent’s offending behaviour, formed part of a course of deliberate conduct on his part, in respect of the 1300 grams of biltong, the subject matter of the Quarantine Act offence.
While no specific submissions were made at 1st instance in respect of the co-operation given to authorities subsequently by the Respondent after he was charged, this Court is prepared to accept that the Respondent fully co-operated with Customs Officers after the offences were committed (which is, in any event, demonstrated by his plea).
The Respondent’s relevant personal circumstances which this Court also takes into account are:-
· he was 22 years of age at the time of the offences;
· he is a Portuguese citizen who resides in Australia under a provisional spouse residence visa;
· he is working full time as a labourer in the building industry earning around $600 per week and is studying business at TAFE.
· he has a capacity to pay a fine.
It was submitted on behalf of the Respondent for the purpose of this appeal, that another factor which ought to be taken into account is the fact that the Respondent would, on his present level of income, take 16 weeks to pay the $2000 penalty imposed.
Counsel for the Respondent had calculated the Respondent’s level of income for the purpose of that calculation to be $140 per week, after a deduction of $460 per week was made to account for living expenses and the necessities of life.
No reference to that expenditure however was made at 1st instance.
While it is true this Court is not entitled to conduct a hearing de novo, but rather a re-hearing on the evidence given in the proceedings before the Magistrate, I am prepared to allow this evidence to be considered for the purpose of this appeal.
No objection was taken by the Appellant on this issue before this Court.
This Court is also required to take into account, an offender’s personal financial circumstances when imposing a fine. (s.16C of the Crimes Act)..
As observed by Mulligan J in Chief Executive Officer of Customs v Rota Tech Pty Ltd (1999) SASC 64, the appropriate amount of a fine to be imposed is to determine it by reference to the gravity of the offence for which it is imposed.
Mulligan J went on to say that ‘if the court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offenders’ means and impecuniosity’.
Having regard to all the factors to which I have already referred, in particular the financial and personal circumstances of the Respondent, the serious nature of these offences and the need for deterrence, the serious potential risk of harm to Australia’s primary industry and the applicable maximum statutory penalties, I am inclined to consider that the penalties which were imposed by the Magistrate were manifestly inadequate in all the circumstances.
Counsel for the Appellant was unable to provide me with any assistance with respect to any superior court authority in respect to these types of offences and the range of penalty that ought to be imposed.
The only authority which Counsel for the Appellant was able to refer me to, was the decision of Trafford-Walker DCJ in Tseng v Cafun (unreported, Appeal No D2406 of 2002).
In that case, His Honour Trafford-Walker DCJ was required to deal with the question of whether or not a sentence was manifestly excessive for the same type of offences.
While it is true that the facts of that case are distinguishable from the facts of the present case under appeal, it does provide some general guidance with respect to the question of penalty which His Honour considered was not, manifestly excessive, having regard to the particular circumstances of that case.
It should be noted that the relevant maximum statutory penalties to be applied in that case were $13,200 and $5000 respectively, in view of the fact that the offences in question had been committed on 19th April 2002.
Ms Tseng (at 1st instance) had been convicted and fined $5000 and $1100 respectively for the Quarantine Act and Customs Act offences and was given 2 years to pay those sums.
When hearing the appeal, His Honour Trafford-Walker DCJ made some general observations, namely the need for customs officers to have to rely upon the accuracy of documents presented to them and the honesty of persons entering the country and in particular, the need for deterrence, and in particular, with respect to deliberate acts involving ‘potential for serious harm’ food items.
I accept His Honour’s learned statements on these issues.
Even after taking into account that this Respondent did not deliberately bring the biltong into Australia, this Court cannot ignore that it was not the only item which he did not declare upon his arrival.
No adequate explanation has been provided regarding his failure to declare the wooden articles and the other food items which he had in his possession.
This court must give due regard to the deterrence aspect and the relevant maximum statutory penalties which are now applicable for this type of offending behaviour.
Having regard to the potential risk of serious harm when bringing certain food items into this country, the penalty imposed by the Magistrate in respect of the Quarantine Act, even after taking into account all the factors set out in s.16A of the Crimes Act, was, in all the circumstances, manifestly inadequate.
It is also this Court’s view that the penalty imposed by the Magistrate in respect of the Customs Act offence, was also manifestly inadequate, having regard to the failure by the Respondent to provide any explanation in respect of the other prohibited items, the subject matter of that charge.
Accordingly, this court considers that the penalties ought to be increased.
I therefore set aside the penalty orders made by the Magistrate and substitute in lieu thereof, the following orders:
That the Respondent be convicted in respect of both offences.
In respect of the Quarantine Act offence, the Respondent be fined $3000.
In respect of the Customs Act offence, the Respondent be fined $1500.
I consider that these penalties adequately reflect the gravity of the offences, the need for deterrence generally, the applicable maximum statutory penalties, and all of the factors which I have accepted in mitigation, as already set out in this decision, in particular, that this Respondent (unlike the Respondent in Tseng), could not be said to have been deliberately trying to bring the biltong in question into Australia.
These penalties also reflect the moderation which this Court has exercised when allowing an appeal such as this, brought on behalf of the Australian Government.
Having regard to the Respondent’s particular financial circumstances, which have been accepted by this Court, I allow the Respondent a further 18 months, such period to commence from the date of this judgment, to pay the penalties which have now been imposed by this Court.
Costs of the Hearing at 1st instance
One other matter raised by the Appellant before this Court, was in respect of the quantum of the costs ordered by the Magistrate.
The Magistrate when making no order as to costs did not provide any reasons in her sentencing remarks for not doing so.
The Prosecution had asked for Costs in the order of $997.90.
That amount represents separate professional costs and filing fees in respect of each complaint.
While it is true that each complaint pleads a separate offence, that is not the end of the matter.
The Notice of Appeal filed by the Appellant in this Court does not state, as a ground of appeal, this point.
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.
An appeal however shall only be made by giving a Notice of Appeal in the approved form stating the ground of the appeal (s.222(2)(a)(i)).
The Appellant did not seek to amend its Notice of Appeal before this Court to include this ground of Appeal.
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.
That section allows this Court to amend the Notice upon certain terms as this Court may think just.
No objection was taken by the Respondent on this point and both parties made written and oral submissions on this issue.
Accordingly, I shall determine this issue notwithstanding the defect in the Notice of Appeal.
Has the Magistrate made a demonstrable error when determining the question of costs?
It is true that a failure to provide any or any adequate reasons demonstrating how a decision on costs was reached may amount to an error of law.
However, even if the Court was to accept the Appellant’s contention on this issue, should this Court now award costs and assess the quantum of those costs which ought to be paid by the Respondent?
The Appellant has sought to rely on several bases to support its contention that costs ought to be awarded to the Appellant and that the amount of those costs should be assessed by this Court at $997.90.
(i) The Appellant contends that there is no reason in principle why awarding costs 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.
Consideration was given on this issue to the following:-
s.158 and s.158A of the Justices Act 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.
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.
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 accordingly and made no distinction.
Accordingly, I cannot accept the Appellant’s contention on this issue.
As the legislation presently stands, costs pursuant to s.157 may be ordered in the exercise of discretion by the Magistrate who having determined that costs should be awarded, then assess those costs which he or she considers to be just and reasonable.
Should this Court now exercise its discretion and award the Appellant its’ costs?
It is this Court’s view that it should not.
Even if this Court was to consider that the Appellant was entitled to costs in respect of the hearing at 1st instance, this Court is unable to assess costs which it may consider just and reasonable, in any event, at this point.
(ii) The Appellant also contends that this Court ought to now assess those costs and include in that assessment, separate professional costs and filing fees because each complaint pleaded a separate offence.
While it is true that each complaint pleaded a separate offence under the Quarantine Act and Customs Act respectively, that is not the end of the matter.
No assistance was provided to the Magistrate (or to this Court) regarding how the professional costs being sought by the Appellant have been calculated.
As observed by His Honour, Wylie DCJ in Keating v Kneipp, while costs may be awarded in the exercise of the discretion, proper reference to appropriate itemisation by the party seeking them must be provided to the Court.
The Appellant did not seek the leave of this Court to adduce any such evidence on this issue.
Thus this Court is left in no better position than the Magistrate was in respect of this issue.
The Appellant contends that if this Court was minded to order costs in the Appellant’s favour, this Court could also order that the Appellant provide an appropriate itemisation so that a proper assessment might now be made. (the course adopted by Wylie J in Keating v Kneipp).
This Court is not inclined to follow that approach.
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.
To allow the Appellant to provide such an itemisation in the manner now suggested, would be to allow the Appellant to do so, in circumstances where no proper application was made before this Court for such leave to be granted.
Accordingly, I do not intend to interfere with the order which was made by the Magistrate with respect to the question of costs, made by her at 1st instance.
Costs of the Appeal
In accordance with s.232(4)(a) Justices Act 1886, I make no order as to costs in
respect of this Appeal.
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