R v Gardiner

[1992] QCA 213

IN THE COURT OF APPEAL [1992] QCA 213

SUPREME COURT OF QUEENSLAND

C.A. No. 97 of 1992

T H E Q U E E N

v.

VAUGHAN LEONARD GARDINER

(Applicant)

JUDGMENT - THE COURT

Delivered the Thirteenth day of July 1992

The applicant seeks an order extending the time for making application for leave to appeal against sentence. The sentence in question is identified as that imposed at the Magistrates

Court at Atherton on 11 September 1991 in respect of convictions of unlawfully supplying a dangerous drug and unlawfully having possession of a dangerous drug; the language used in the application filed suggests that the applicant desires to challenge, also, what was done in relation to another drug offence at the Magistrates Court at Mareeba on 7 November 1991.

The application was not pressed so far as it related to sentence, but during the course of the hearing it became clear that proceedings in the Magistrates Court had not taken their proper course. A question arises as to whether this Court should make an order to remedy the deficiencies to which attention was drawn.

The applicant appeared on 11 September 1991 in the Magistrates Court at Atherton and then before the same Magistrate on 7 November 1991 in the Magistrates Court at Mareeba. On each occasion, he was sentenced to imprisonment. At Atherton, he was also ordered to pay various sums totalling $2,600 under the Crimes (Confiscation of Profits) Act 1989 ("the

Act") and at Mareeba he was ordered to pay $1,800 under that Act. The Magistrate further ordered that in default of payment of the sums we have mentioned, the applicant should be imprisoned for various specified periods.

The written application for leave to appeal filed by the applicant indicates that the purpose of the application is to attack the orders under the Act. Although the application refers only to the proceedings at Atherton, it identifies the sum ordered by way of "confiscation of alegid (sic) profits" to be $5,000. The total sum ordered to be paid at the two hearings was $4,400 and it seems to us likely that the applicant intended to challenge all the orders made under the Act by the Magistrate.

The Act provides by s.6 for the making of a pecuniary penalty order against a person convicted of a "serious offence", an expression which is defined in s.3 of the Act in such a way as to catch the offences of which the applicant was convicted. The court before which the person was convicted may make such an order and in that case the application for a pecuniary penalty may be made before the passing of sentence; the court may then make a pecuniary penalty order at the time of passing sentence:

see s.6(3)(a). In such a case, the court:

"... shall take into account in determining the application any evidence given in a proceeding against the person for the offence" (s.6(3)(b)).

Section 13 of the Act contemplates that in an application of this sort, there shall be an assessment of the value of the benefits derived by the person against whom the application is

made as a result of committing the offence; the court may order payment of a pecuniary penalty equal to the value as so assessed, less certain sums set out in sub-paras.(i) and (ii) of s.13(1)(b). Under s.13(2):

"An amount payable by a person to the Crown under pecuniary penalty order, for all purposes, is to be taken to be a debt due and owing by that person to the Crown".

Section 13(3) says that:

"A pecuniary penalty order made by a court may be enforced as if it were an order made by the court in civil proceedings instituted by the Crown against the person concerned to recover a debt due by that person to the Crown".

There is nothing in these provisions suggesting that a pecuniary penalty order may be made without evidence to support it; the indications are to the contrary. In addition to those

to which we have referred, we mention ss.14(4), (5) and (10), each of which is drawn on the assumption that the pecuniary penalty application shall be decided on evidence. Of course, if the facts are placed before the court by agreement or admissions, evidence may be unnecessary.

At the hearing at Atherton, the prosecution made submissions including assertions as to what were the facts relevant to the case and a solicitor appearing for the applicant made certain further factual assertions. The solicitor's affidavit says that she submitted that the applicant obtained no financial benefit and the Magistrate rejected that submission. The affidavit goes on:

"I informed the Magistrate that if there was clarification sought on this matter I would seek to call my client and he declined that option".

At the Mareeba hearing, again no evidence was called, but submissions were made. The Magistrate was told the solicitor wished to call evidence on a disputed point, but "the Magistrate said it was unnecessary".

It is, we think, desirable to stress that pecuniary penalty claims under the Act cannot result in the imposition of fines, but, if allowed, give rise to a civil debt. The remedies

available, if the debt is unpaid, do not include imprisonment; they are confined to those to which recourse may be had if a money judgment is given in civil proceedings: see s.13(3) of the Act, quoted above.

Further, it is important to notice that a pecuniary penalty is not a sentence and there is no provision in the Act enabling

the Court to deal with a claim for a pecuniary penalty as if it were a sentence. The practice is to impose sentences, where there is a plea of guilty, having regard to the submissions made on each side. It is unusual for evidence to be called on sentence; of course, if there has been a trial, a court will take into account the evidence given on the trial.

To establish a right to a pecuniary penalty, the Crown has to prove its case. If there has been a trial of the charge in question, the Court may do so with the assistance of the provisions obliging the court to take into account "evidence given in a proceeding against the person for the offence": see ss.6(3)(b) and 6(4). The court may also act on any agreement between the parties as to the facts of the case and such an

agreement may, in some circumstances, be inferred from the course of submissions. In the absence of agreement, any necessary facts must be proved by evidence and the defendant's right to call evidence on disputed questions is clear.

Here, the Magistrate appears to have been under the misapprehension that the application for a pecuniary penalty was part of the sentencing process. One may infer that from his having decided the case merely on the submissions and, perhaps,

from his having ordered that the applicant be imprisoned in default of payment of the pecuniary penalties. There was no

power to order such imprisonment.

Under s.69 of the Act, the applicant was entitled to appeal against the Magistrate's pecuniary penalty orders to the Full Court and this Court has inherited that jurisdiction, under s.29(1) of the Supreme Court Act 1991. The applicant has not filed the appropriate notices of appeal and if he were to do so

now, the notices would be out of time. What we have, in substance, is an oral appeal made by Mr. Rafter of counsel, on behalf of the applicant. We propose to treat the failure to

file notices of appeal as an irregularity, under O.93 r.17(1), and give effect to Mr. Rafter's oral appeal as if notices of appeal had been filed in due time. We have decided to take this course because there appears to have been a misapprehension on the part of the Magistrates Court as to the true nature of the proceedings before it, in consequence of which the proceedings miscarried. The appeals will be allowed and the orders for payment of pecuniary penalties made against Vaughan Leonard Gardiner at the Magistrates Court at Atherton on 11 September 1991 and at the Magistrates Court at Mareeba on 7 November 1991 set aside.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 97 of 1992
Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice McPherson

T H E Q U E E N

v.

VAUGHAN LEONARD GARDINER

(Applicant)

JUDGMENT - THE COURT

Delivered the Thirteenth day of July 1992

MINUTE OF ORDER:The appeals are allowed and the orders for payment of pecuniary penalties made against the applicant at the Magistrates Court at Atherton on 11 September 1991 and at the Magistrates Court at Mareeba on 7 November 1991 are set aside.

CATCHWORDS:	CRIMINAL LAW - PECUNIARY PENALTY - Applicant sentenced to imprisonment and pecuniary penalty orders made against him - whether magistrate erred in making penalty orders without evidence - whether part of sentencing process - whether power to order imprisonment in default of payment - Crimes (Confiscation of Profits) Act 1989 s.6, s.13.
Counsel:	M. Byrne for the Crown. A. Rafter for the Applicant.
Solicitors:	The Director of Prosecutions for the Crown.
The Legal Aid Office for the Applicant.
Hearing Date(s):	13 July 1992

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. 97 of 1992

T H E Q U E E N

v.

VAUGHAN LEONARD GARDINER

(Applicant)

_______________________________________________

The President
Mr. Justice Pincus
Mr. Justice McPherson

_______________________________________________

Judgment of the Court delivered on the 13th of July,

1992.

_______________________________________________

APPEALS ALLOWED.

ORDERS FOR PAYMENT OF PECUNIARY PENALTIES MADE AGAINST THE APPLICANT AT THE MAGISTRATES COURT ATHERTON ON 11 SEPTEMBER 1991 AND AT THE MAGISTRATES COURT MAREEBA ON 7 NOVEMBER 1991 SET ASIDE.

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