Platinum Cleaners Pty Ltd v Queensland Police Service
[2012] QDC 206
•17 July 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Platinum Cleaners Pty Ltd v Queensland Police Service [2012] QDC 206
PARTIES:
PLATINUM CLEANERS PTY LTD
Appellant
and
QUEENSLAND POLICE SERVICE
Respondent
FILE NO/S:
394/2011
DIVISION:
Crime
PROCEEDING:
Appeal
ORIGINATING COURT:
Richland Magistrates Court
DELIVERED ON:
17 July 2012
DELIVERED AT:
Southport
HEARING DATE:
17 July 2012
JUDGE:
Judge C F Wall QC
ORDER:
Appeal against conviction dismissed.
Appeal against sentence allowed.
Fine of $730 set aside and in lieu thereof the appellant is fined $200 and ordered to pay court costs of $76.90, payable by 17 August 2012.
Set aside default imprisonment and in lieu order that in default of payment of the fine and court costs there be levy and distress in accordance with s161 of the Justices Act 1886.
Set aside the recording of a conviction; no conviction recorded.
No order for costs of the appeal.
CATCHWORDS:
APPEAL – JUSTICES – appeal against sentence – fine imposed – company convicted of speeding – company vehicle – where s181B of the Penalties and Sentences Act 1992 provides that if a body corporate is found guilty of the offence the Court may impose a maximum fine of an amount equal to five times the maximum fine for an individual – where the appellant was fined five times the maximum fine for an individual – where the magistrate gave no reasons for imposing a fine five times the amount for an individual – where no consideration given to traffic history of the appellant and the circumstances of the offence – where the magistrate added a further 10% for putting the court to the extra cost of a hearing to deter pleas of not guilty where there is no “real belief” the defendant is not guilty – whether the fine imposed on the appellant was excessive.
COUNSEL:
Appellant represented himself
Respondent: Mr S JohnsonSOLICITORS:
Director of Public Prosecutions for the respondent
HIS HONOUR: Platinum Cleaners Pty Ltd was convicted in the
Magistrates Court at Richlands of speeding. The offence was
recorded on a camera and was 111 kilometres an hour in a 100
kilometre an hour zone. The appellant was fined $730 plus Court costs of $76.90 cents. The appeal is against conviction and sentence.
A traffic infringement notice had been issued to the appellant
who was the owner of the vehicle. The vehicle was driven by
Mr Dickman, the managing director and shareholder of the
appellant.
Both the appellant and Mr Dickman had unblemished traffic
histories.
The traffic infringement notice fine for such an offence
committed by an individual, I'm told, is $135. It may, in fact, be $133 but if it is, it makes no difference to the result.
The company did not pay the fine and did not identify Mr
Dickman as the driver.
In those circumstances a complaint and summons was issued
against the company and the company was proceeded against in
the Magistrates Court.
No dispute was taken about the speeding. Mr Dickman appeared
for the company before the magistrate and made extensive oral
and written submissions in relation to the system of
penalising drivers.
Briefly, he submitted that a system which did not allow for a
driver with a good driving history, not excessively speeding,
to be first warned rather than fined was a system which was
quite inconsistent with the provisions of the Legislative
Standards Act 1992 and the Transport Operations (Road Use
Management) Act 1995, in particular, the objectives and
guidelines of that Act.
It was submitted by Mr Dickman that a driver with a good
driving history deserves, for a first offence such as the
present, a warning rather than a fine, and that to have in
place a system which does not allow for that is to have in
place a system which is not consistent with, but inconsistent
with the policy and objectives of TORUM.
In the particular TORUM guidelines in section 13 of the Act
and the objectives in section 14 were referred to.
Mr Dickman conceded on behalf of the appellant that the system
of fines for drivers committing traffic offences is not a
system which is inconsistent with or contrary to the
objectives and guidelines of the Act.
What he did submit was that the system established by the Act
was contrary to those guidelines and objectives by not
allowing for first a warning in a situation such as the
present. Effectively, he was asking me and the magistrate to insert into the legislation something which he said should have been there in the first place but is not.
He submitted that parliament was wrong in not having in place
a warning system and that the company should have been found
not guilty for this reason.
Unfortunately, for Mr Dickman and the appellant, I'm unable to
agree with his arguments. I don't have power to insert
penalties into the legislation, even if I thought that they
may also be consistent with the objectives and guidelines, in
particular, a warning system. The fact of the matter is I don't have the power to insert such provisions into the legislation and nor does the magistrate.
Mr Dickman submitted that the guidelines and objectives of the
Transport Operations (Road Use Management) Act would be better
achieved if there was in place a warning system for first
offender drivers with a good driving history and not excessively exceeding the speed limit. That may be so, but its absence
does not mean that the system which is, in fact, in place is
inconsistent with the objectives and guidelines of the Act.
I am unable to conclude that because there isn't a system of
warning that the system which is in place for fining is ultra
vires.
The appellant submitted - Mr Dickman submitted that to better
achieve the objectives and guidelines of the Transport
Operations (Road Use Management) Act there should be a power
to warn good drivers who do not excessively exceed the speed
limit, in particular, those who commit a first offence. That
may be desirable, but its absence is not a reason why the
defendant should have been found not guilty.
So to the extent that the appeal relies on these arguments, I
cannot agree with it.
Turning now to the quantum of the fine, section 181 B of the
Penalties & Sentences Act 1992 provides that if a provision
does not expressly prescribe a maximum fine for a body
corporate different from the maximum fine for an individual
the maximum fine is taken only to be the maximum fine for an
individual and if a body corporate is found guilty of the
offence the Court may impose a maximum fine of an amount equal
to five times the maximum fine for an individual.
It was submitted to the magistrate by the Prosecutor that five
times the maximum fine for an individual was $666.
This was an arithmetical mistake. The traffic infringement
notice was for $135. In the context of the present appeal
this was treated as the maximum fine for an individual. Five
times $135 is $675 not $666. Five times $133 is $665.
Mr Dickman made the following submissions to the magistrate: he said that in over a 30 year driving period he had never been involved in an accident, had never been booked for drink-driving or drug related offences, and had never lost his licence. The company, the appellant, is in a similar situation.
Mr Johnson, who appeared for the respondent on the appeal,
conceded that the company is a first offender.
Mr Dickman also referred the magistrate to the fact that the
section of the road where the offence occurred has no
intersections, has dual carriageways, is primarily a straight
road, is not a black spot, and 11 kilometres over the speed
limit posed no real danger to those other persons on the road.
He objected to the appellant being penalised five times the
individual amount, because he submitted that he had sought to
maintain and establish his own small business.
The magistrate gave no reasons for imposing a fine believed to
be five times the amount for an individual.
Section 181 B of the Penalties & Sentences Act is
discretionary. The Court is not required to impose a fine
equal to five times the maximum fine for an individual. It
may do so and an amount equal to five times the maximum for an
individual is expressly stated to be a maximum fine.
So it was incumbent on the magistrate to take into account the
circumstances of the appellant and the circumstances of the
offence.
In my view, she did not do so and to this extent fell into
error.
Mr Johnson conceded, correctly, that the magistrate erred in
the method used in arriving at the amount of the fine.
The magistrate said, "In this matter the defendant was
travelling at 111 kilometres per hour in a 100 kilometres per
hour section. The fine for a proprietary limited company in
this matter is $666." That is incorrect.
She continued, "The defendant argues that a $666 fine is
revenue raising in this type of offence. Now, if the
defendant had filed an affidavit saying who was the driver of
the vehicle then the proper driver could have been not only
penalised by virtue of points against his driver's licence,
but by a smaller fine. That fine would have been somewhere
about $200, less than a third of this fine."
Now, the reference to $200, if it is intended to be a
reference to the traffic infringement notice penalty for an
individual, is also a mistake.
The magistrate continued, "Therefore, it is always the case
that in offences involving corporate bodies that the fines are
higher because they attract no points against one's licence.
To me, that is a very valuable way of making sure that people
are discouraged from relying on their corporate entity."
She then asked the police Prosecutor about what the penalty was having just convicted the appellant. The police Prosecutor said, "It's a company rate. The applicable ticket amount is $666. I'd seek costs of Court in the usual amount, plus the ticket - the applicable ticket amount is $666."
Well, that again is incorrect.
The magistrate then said, "This is a situation where, Mr
Dickman, you have put the Court and the prosecution to a
serious amount of expense in preparing a case. A simple
matter at the start and probably anyway along would have been
to identify who was the driver and have them wear the
penalty."
Well, the fact of the matter is that Mr Dickman said that had
he identified himself as the driver he still would have taken
the point which the company took and that was a point which he
was perfectly entitled to take. He seems, as will be apparent
shortly, to have been punished for taking the point.
The magistrate continued, "I'm of the opinion that because
you", that is, Mr Dickman, "have not taken appropriate steps,
I consider that a further amount should be added to the fine
to recognise that people who want to run a Court hearing in
respect of other matters other than a real belief that they
are not guilty of the matter should pay an additional sum for
putting the Court to the extra cost. It's well known that
people get a benefit for an early plea. People who run to
trials don't get that benefit any more. Therefore, I think I
should impose a 10 percent increase on the fine to be a
warning to you and other people that applications such as this
type need to have full information before they're made and be
carried out in a manner that is appropriate. Therefore, I
convict and fine you the sum of $730." 10 percent of $666 is
$66 and that amount added to $666 comes to $732 which
approximates to $730 arrived at by the magistrate.
Now, the magistrate, it is conceded, was in error to penalise
the appellant 10 percent in the way in which she did.
She also considered that the company should be penalised
because there was no real belief that it was not guilty.
I accept the sincerity of the arguments made by Mr Dickman,
and the magistrate erred in concluding that they were made
without any real belief in the legitimacy of the arguments
advanced.
The fine imposed on the appellant is excessive for the reasons
I have given both in being an automatic five times the amount
of the individual traffic infringement notice and for imposing
a penalty of 10 percent.
Mr Johnson submitted that it is correct to have regard to the
fact that the company is not an entity which has a driver
licence and, therefore, does not incur any demerit points.
I'm told, and I accept, that an individual for this type of
offence would have been penalised to the extent of one demerit
point.
Mr Johnson submitted that the appropriate penalty for the
company, having regard to its traffic history and the
circumstances of the offence, should be twice the prescribed
amount.
I think a fairer result, recognising those matters, would be a
fine of $200.
The magistrate also recorded a conviction, but without giving
any reasons why she did so.
The appellant was a first offender and the circumstances in
which the offence were committed were quite benign.
Mr Johnson, again, correctly conceded that he was unable to
argue against the non-recording of a conviction.
The magistrate, therefore, I conclude, erred again in relation
to the recording of a conviction and one should not have been
recorded.
The result is that the appeal is allowed, but only to the
extent of setting aside the fine of $730 and imposing in lieu
a fine of $200; setting aside the recording of a conviction
and in lieu not recording a conviction.
The Court costs awarded of $76.90 will stand.
The magistrate imposed a period of 9 days' imprisonment in
default of payment of the fine, but that is not appropriate
for a company.
Mr Johnson submits that the penalty to that extent should be
varied to order that the appellant suffer levy and distress in
accordance with section 161 of the Justices Act, and I think
that is correct.
The result is that the appeal against sentence will be allowed, the appellant will be
fined $200, in default levy and distress in accordance with
section 161 of the Justices Act 1886, plus Court costs of
$76.90 cents. The appeal against conviction will be dismissed.
No costs are sought on the appeal and no order for costs will
be made.
That's as far as we can go, Mr Dickman.
As I said, the fine is now $200 plus $76.90 Court costs and no
conviction is recorded.
MR DICKMAN: Thank you, your Honour.
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