Raspudic v Singh
[2024] WASC 317
•2 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RASPUDIC -v- SINGH [2024] WASC 317
CORAM: WHITBY J
HEARD: 12 AUGUST 2024
DELIVERED : 2 SEPTEMBER 2024
FILE NO/S: SJA 1017 of 2024
BETWEEN: JESSICA MAE RASPUDIC
Appellant
AND
TARUNVEER SINGH
Respondent
ON APPEAL FROM:
For File No: SJA 1017 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T WATTS
File Number : PE 65135/2023, PE 65136/2023
Catchwords:
Criminal law - Appeal against conviction - Civil Aviation Regulation 1998 (Cth) - Vaping on a plane - Plea of guilty entered - Whether elements of the offence satisfied - Whether miscarriage of justice
Statutory construction - Meaning of 'for a flight' and 'pilot in command' in Civil Aviation Safety Regulation 1998 (Cth) reg 91.530
Criminal law - Sentencing - Section 19B Crimes Act 1914 (Cth) - Two stage test - Whether offences were of a 'trivial nature' - Whether express or implied error demonstrated
Legislation:
A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Air Navigation Regulations 2016 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Amendment (Part 19) Regulations 2018 (Cth)
Civil Aviation Safety Regulation 1998 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1899 (Qld)
Criminal Procedure Act 2004 (WA)
Patents Act 1990 (Cth)
Result:
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | C T Huntly |
| Respondent | : | K P Kearney & S D Fishbourne |
Solicitors:
| Appellant | : | Gregory Ian Wolff Solicitors |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Borsa v The Queen [2003] WASCA 254
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152
Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54
Federal Commissioner of Taxation v Qantas Airways Ltd (2012) 247 CLR 286
House v R [1936] HCA 40; (1936) 55 CLR 499
Jones Tulloch Pty Ltd v Commissioner of Patents [2016] FCA 1108
Minister for Immigration and Citizenship v Haneef [2007] FCAFA 203; 243 ALR 606
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Russell v Stephen [2013] WASCA 284
Samuels v The State of Western Australia [2005] WASCA 193
SAS Trustee Corporation v Miles [2018] HCA 55
Smith v Hazlitt [2011] WASC 154
Stark v Plant [2010] WASCA 74
Unsworth v Commissioner for Railways (1958) 101 CLR 73
Walden v Hensler [1987] HCA 54; (1987) 153 CLR 561
WHITBY J:
Introduction
On 9 February 2024, the appellant, Ms Jessica Raspudic, was convicted of two counts of smoking on an aircraft contrary to reg 91.530(1)(b) of the Civil Aviation Safety Regulation 1998 (Cth) (Regulations). The appellant was fined $2,500 and $7,000 for the first offence and second offence respectively.
The appellant applies to the Supreme Court of Western Australia for leave to appeal against the conviction for the first offence and the sentence for the second offence.
For the reasons that follow, I grant leave to appeal the conviction for the first offence but dismiss that appeal and I refuse leave to appeal against the sentence for the second offence.
Factual background of the offences
On 22 August 2023 at 2.30 pm, the appellant commenced her shift as a flight attendant for Skippers Aviation at Skipper's Perth Terminal flying to Forrestania. Part of the appellant's duties as a flight attendant included delivering the pre‑flight safety brief to passengers, informing them that smoking is prohibited on all flights, including toilets.
At the commencement of her shift, the appellant delivered the pre‑flight safety briefing to the passengers. Within the cabin, there were six permanently displayed no smoking signs.
At 4.15 pm, the aircraft landed at Forrestania Airport and the passengers disembarked.
At 4.28 pm, the appellant, whilst on her break, was on the aircraft. The appellant used her vape. There were no passengers on board at the time and the aircraft was not in the air. This is charge PE 65135/2023 (First Offence). The First Offence was video recorded by the appellant's colleague on her mobile phone.
At 4.50 pm, the airplane departed Forrestania and returned to Perth. The appellant delivered the pre‑flight safety briefing again.
At 5.40 pm, whilst the plane was in flight, the appellant sat on the floor in the back galley and used her vape again. This is charge PE 65136/2023 (Second Offence). The Second Offence was video recorded by the appellant's colleague on her mobile video.
At 6.10 pm the aircraft landed in Perth.
Decision of the magistrate on 9 February 2024
On 9 February 2024, the appellant pleaded guilty to the First Offence and the Second Offence.
The magistrate sentenced the appellant on the following basis:
(1)the appellant pleaded guilty at an early opportunity and would be afforded a discount of 20%;
(2)the appellant accepted full responsibility for the offences;
(3)there was a very strong state case as the offences were recorded;
(4)the appellant had no prior criminal record;
(5)the appellant had a strong worth ethic as demonstrated by her references;
(6)the appellant resigned from her employment with Skippers Aviation upon being informed of her offending conduct;
(7)the appellant was still employed within the airline industry, working with Services Australia in customer services at the time of sentencing;
(8)a letter of reference from Ms Bindhanene,[1] the appellant's therapist, suggested that the appellant struggled with anxiety, depression, insomnia, and PTSD and was seeking rehabilitative therapy from Ms Bindhanene;
(9)the offences were not of a trivial nature;
(10)the offences were committed in the context of the appellant's four‑and‑a‑half year career as an airline hostess;
(11)part of the appellant's training and job required informing others of the requirement not to smoke on an aircraft;
(12)the appellant was aware of the risks to the public at large of her offending;
(13)there were two offences that occurred on the same day only hours apart;
(14)an aggravating feature of the Second Offence was that it was repetitive behaviour;
(15)there were no extenuating circumstances to bring the appellant's offending within s 19B of the Crimes Act 1914 (Cth) (Act); and
(16)the Second Offence was more serious than the First Offence as there were members of the public on the aircraft at the time of the offending and it was the second offence within a short time.
[1] The qualifications of Ms Bindhanene were not disclosed to the magistrate.
The magistrate imposed a $2,500 fine for the First Offence and a $7,000 fine for the Second Offence.
Grounds of appeal
By application dated 16 April 2024, the appellant sought leave to amend her grounds of appeal. The application was not opposed by the respondent. The amended grounds of appeal comprise of two grounds.
Ground 1
(1)In relation to the First Offence:
(a)Upon the appellant's plea of guilty and acceptance that she had been smoking on the aircraft during her break, the magistrate erred in law by finding that those facts amounted to an offence pursuant to reg 91.530(1)(b) of the Regulations because;
(i)the events in question occurred during an aircraft turn‑around process between flights; and,
(ii)at a time when the appellant was on a break, as described in the Aircraft Cabin Crew Award 2020, Schedule B 'Regional Flying'.
(b)The magistrate acted without jurisdiction by recording a conviction and proceeding to sentence the appellant on her plea in circumstances where the statement of material facts and admissions made by the appellant could not satisfy the elements of such a charge notwithstanding the Criminal Procedure Act 2004 (WA) s 129(5).
(c)The appellant was the subject of a miscarriage of justice because the agreed facts before the court did not support the offence charged.
Ground 2
(2)In relation to the Second Offence:
(a)The magistrate erred in fact by finding that the appellant's conduct amounted to repetitive behaviour and thus constituted an aggravating circumstance for the purposes of sentencing.
(b)The magistrate misdirected herself when sentencing the appellant on the charge, including by taking account of prior conduct of the appellant that did not amount to an offence as though that conduct did amount to an offence, and, by so doing, the magistrate materially denied the appellant procedural fairness and acted without or in excess of jurisdiction.
(c)The magistrate erred in law when she imposed a sentence on the appellant on the basis that she had previously committed an offence and thus, the sentence imposed was excessive in the circumstances.
Relevant legal principles
The Criminal Appeals Act 2004 (WA) (CA Act), by s 7(1), allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction.
A decision of a summary court relevantly includes:
(1)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;[2]
(2)a sentence imposed, or order made, as a result of a conviction or acquittal;[3] and
(3)a refusal to make an order that might be made as a result of a conviction or acquittal.[4]
[2] CA Act s 6(c).
[3] CA Act s 6(f).
[4] CA Act s 6(g).
Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 can be made, including:
(1)that the court of summary jurisdiction -
(a)made an error of law or fact, or of both law and fact;
(b)acted without or in excess of jurisdiction;
(c)imposed a sentence that was inadequate or excessive; and
(2)that there has been a miscarriage of justice.
An appeal may be made against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.[5]
[5] CA Act s 8(2).
Leave is required for the appellant to amend the appeal notice.[6] The appellant must also obtain leave to appeal.[7] If leave to appeal is not granted, the appeal is taken to have been dismissed.[8] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[9]
[6] CA Act s 40(1)(k).
[7] CA Act s 9(1).
[8] CA Act s 9(3).
[9] Samuels v The State of Western Australia [2005] WASCA 193.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[10]
[10] CA Act s 14(2).
Where the appellant has entered a plea of guilty and appeals the conviction, the appellant must show that there has been a miscarriage of justice. A plea of guilty will be set aside if, upon the admitted facts, the appellant could not in law have been guilty of the offence[11] or if the appellant has pleaded guilty on a basis that was incorrect.[12]
[11] Borsa v The Queen [2003] WASCA 254 [20].
[12] Smith v Hazlitt [2011] WASC 154 [12].
On an appeal against sentence, an appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing magistrate has made an error in exercising his or her discretion.[13]
[13] House v R [1936] HCA 40; (1936) 55 CLR 499.
Ground 1
In relation to the First Offence, the appellant submits that she did not smoke on a flight for the purpose of reg 91.530(1)(b) of the Regulations, as each of the elements of the offence have not been satisfied. The appellant says that she pleaded guilty on an incorrect basis because, on the admitted facts, the appellant could not in law have been guilty of the First Offence. The appellant says there has been a miscarriage of justice and that the conviction should be set aside and a verdict of acquittal substituted for the First Offence.
Regulation 91.530(1)(b) provides:
91.530When smoking not permitted
(1)A person on an aircraft (other than a Part 103 aircraft) for a flight contravenes this subregulation if the person smokes:
(a) during take‑off or landing; or
(b)during a period when the pilot in command has directed the person not to smoke.
Note: Section 37 of the Air Navigation Regulation 2016 prohibits smoking anywhere on an aircraft if the aircraft is engaged in certain operations.
(2)A person on an aircraft (other than a Part 103 aircraft) for a flight contravenes this subregulation if the person smokes in the aircraft's toilet.
(3)For the purposes of paragraph (1)(b), the pilot in command is taken to have directed a person on an aircraft not to smoke if:
(a)a permanent 'no smoking' sign is displayed in the aircraft's cabin; or
(b)the pilot has switched on an illuminated 'no smoking' sign in the aircraft's cabin.
(3A)A person on a Part 103 aircraft for a flight contravenes this subregulation if the person smokes on the aircraft.
(4)For the purposes of this regulation, smoking is taken to include the use of electronic cigarettes.
(5)A person commits an offence of strict liability if the person contravenes subregulation (1), (2) or (3A).
The elements of an offence contrary to reg 91.530(1)(b) are:
(1)the person is on an aircraft;
(2)the person is on the aircraft for a flight;
(3)the person smokes; and
(4)the pilot in command has directed the person not to smoke.
Counsel for the appellant submits that the second and fourth elements of the First Offence are not established on the admitted facts. I turn to consider whether each of these elements, on the admitted facts, has been satisfied.
Was the appellant on the aircraft 'for a flight'?
In relation to the second element, the appellant says that she was not on the aircraft 'for a flight' because the aircraft was resting still between flights at the time of the First Offence.
For the purposes of reg 91.530(1)(b) 'flight' is defined in s 3 of the Civil Aviation Act 1988 (Cth) (Civil Aviation Act) as:
… in the case of a heavier-than-air aircraft, the operation of the aircraft from the moment at which the aircraft first moves under its own power for the purpose of taking-off until the moment at which it comes to rest after being airborne.
At the time of the First Offence, on the admitted facts, the appellant was on her break in between the first flight and the second flight and the aircraft was resting still. The appellant says that she was not on the aircraft 'for a flight' at the time of the First Offence.
The respondent says that 'for a flight' does not mean 'during the flight'. Rather, when having regard to the ordinary meaning of the word 'for', the context in which it appears in reg 91.530(1)(b) and the legislative purpose of the Regulations, the appellant, at the time of the First Offence, was on the aircraft 'for a flight'. The respondent submits it is irrelevant that the appellant was on a break.
Ground 1 of the appeal raises the issue of the proper construction of the term 'for a flight' contained in reg 91.530(1)(b).
The starting point is to consider the words of the provision. The natural and ordinary meaning of the words provides a presumptive and persuasive meaning.[14] Regard must then be had to the context in which the provision appears, that is regard must be had to the language and purpose of the legislation as a whole.[15]
[14] SAS Trustee Corporation v Miles [2018] HCA 55 [64].
[15] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
In CIC Insurance Ltd v Bankstown Football Club Ltd,[16] the High Court referred to the 'modern approach to statutory interpretation' in the following terms:[17]
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
[16] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.
[17] CIC Insurance Ltd v Bankstown Football Club Ltd (408).
The purpose of the legislation may be ascertained from express statements of objectives in the legislation itself and/or by reference to the scheme and function of the legislation overall. Extrinsic materials such as Second Reading Speeches, Explanatory Memoranda or Reports of Law Reform Commissions may assist in determining the purpose of legislation and the meaning to be given to words contained therein.[18]
[18] Minister for Immigration and Citizenship v Haneef [2007] FCAFA 203; 243 ALR 606 [105]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 [96] - [98].
However, it is not open for a court to legislate a meaning to promote the purpose of legislation; that meaning must be found in the words of the legislation themselves.[19]
[19] Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54 [52].
Two competing constructions of the term 'for a flight' are before the court. The first, put forth by the appellant, is to construe 'for' as meaning during a flight. The second, put forth by the respondent, is to construe 'for' as meaning in connection with a flight; that is, the word 'for' indicates a connection or relationship between the person and a flight.
In Federal Commissioner of Taxation v Qantas Airways Ltd,[20] the High Court was required to consider the phrase 'the supply for consideration' (emphasis added) in the context of the definition of 'taxable supplies' in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). The definition of 'taxable supplies' provides that a party makes a taxable supply if, inter alia, that party makes 'the supply for consideration'. The High Court, in the majority decision, held that the word 'for' in this context requires a 'connection or relationship between the supply and the consideration'.[21]
[20] Federal Commissioner of Taxation v Qantas Airways Ltd (2012) 247 CLR 286 [14].
[21] Federal Commissioner of Taxation v Qantas Airways Ltd [14].
In Jones Tulloch Pty Ltd v Commissioner of Patents,[22] the issue before Jagot J (as her Honour then was) was the proper construction of the definition of 'relevant proceedings' in the Patents Act 1990 (Cth) (Patents Act), which term was defined as including 'court proceedings for infringement of the patent' (emphasis added). Her Honour, in acknowledging that the potential ambiguity associated with the word 'for' was not unknown to the law,[23] said:[24]
… The relevant conjunction for present purposes is 'court proceedings … for infringement of the patent'. The word 'for' is a preposition. The function of the word 'for' is to express a relationship between two matters (here, the proceedings and the infringement). The question is thus the character of the relationship between 'the proceedings' and 'infringement' which the definition of 'relevant proceedings' requires.
[22] Jones Tulloch Pty Ltd v Commissioner of Patents [2016] FCA 1108 (Jones Tulloch).
[23] Jones Tulloch [11] citing, inter alia, Unsworth v Commissioner for Railways (1958) 101 CLR 73; and Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152.
[24] Jones Tulloch [13].
Her Honour was of the view that, because the term 'relevant proceedings' was used in a number of other provisions within the Patents Act which served to constrain the power of the Commissioner and that the constraints were of a temporary nature, 'for' was not to be construed narrowly. Her Honour determined that the purpose of the Patents Act was:[25]
… best achieved by construing proceedings 'for infringement' as encompassing any proceeding in which infringement has been found and has been the subject of orders ... but relief consequential upon the infringement … remains to be determined.
[25] Jones Tulloch [28].
As illustrated by the cases to which I have referred, on its natural and ordinary meaning, the word 'for' is a word of wide import which is capable of more than one meaning. In addition to the proffered alternate constructions, the word 'for' is often used as a word to indicate purpose. In this sense, the word 'for' could also be understood as meaning the person was on the aircraft 'for the purpose of' a flight.
The decision in Jones Tulloch demonstrates the importance of looking at the whole of the legislation and purpose of the legislation when construing a term contained within that legislation.
The words 'for a flight', 'during the flight' and 'on an aircraft' all appear on multiple occasions in the Regulations. Division 91D.4 of the Regulations uses the words 'for a flight' in the preamble of many of the regulations.
For example, reg 91.570 provides:
The pilot in command of an aircraft for a flight contravenes this subregulation if, before doing a thing mentioned in subregulation (2), a passenger is not directed to do the following:
To fasten the passenger's seatbelt or harness …
…
2 The things are the following:
(a)taxiing;
(b)taking off; and
(c)landing.
(emphases added)
'Taxiing' is defined as manoeuvring on the surface of the aerodrome under the aeroplane's own power except when taking off or landing.[26]
[26] Reg 64.010.
In this context, the words 'for a flight' in reg 91.570 clearly include a time before the 'flight' commences, that is before the aircraft moves under its own power, given the pilot in command must direct passengers to fasten their seat belts before taxiing.
Another example is reg 91.575(1) which provides:
(1)A passenger on an aircraft for a flight contravenes this subregulation if, during the flight:
(a)a direction mentioned in regulation 91.570 is given to the passenger; and
(b)the person does not comply with the direction.
(emphasis added)
Regulation 91.575 limits the criminality attributable to a passenger to a point in time that is 'during the flight'. The words 'for a flight' are used in conjunction with the words 'during a flight' - indicating that, in this context, 'for a flight' has a different meaning to 'during a flight' and are not terms that are used interchangeable.
By way of final example, reg 91.215(2) provides:
(2)The pilot in command of the aircraft:
(a)has final authority over:
(i)the aircraft; and
(ii)the maintenance of discipline by all persons on the aircraft; and
(b)must ensure:
(i)the safety of persons on the aircraft; and
(ii)the safety of cargo on the aircraft; and
(iii)the safe operation of the aircraft during the flight.
(emphasis added)
Regulation 91.215(2) does not limit the final authority of the pilot in command by reference to a flight - instead it does so by reference to the aircraft and persons on the aircraft. Regulation 91.215(2)(b)(iii) does, however, use the words 'during the flight' to specify the period during which the pilot in command must ensure the safe operation of the aircraft, that being the period during which the aircraft is moving under its power.
In my view, when construing the words 'for a flight' in the context of the Regulations as a whole, the words 'for a flight' do not mean 'during a flight'. Regulation 91.530 does not refer to smoking 'during a flight', even though the term 'during a flight' is used in many of the Regulations. In my view, on reading the legislation as a whole, the words 'for a flight' mean 'in connection with' or 'for the purpose of' a flight. This construction is also consistent with the purpose of the legislation which I now turn to consider.
Section 98 of the Civil Aviation Act provides that the Governor-General may make regulations, which are not inconsistent with the Civil Aviation Act, in relation to prescribed matters. The main object of the Civil Aviation Act is to 'establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents'.
Iterations of the offence of smoking on an aircraft have been in operation since December 1987. The Civil Aviation Safety Amendment (Part 91) Regulations 2018 (Cth) introduced reg 91.530 in its current form. The explanatory statement to that amendment stated:
… the strict liability offences are considered reasonable, necessary and proportionate to the objective of ensuring aviation safety. In this regard, the offences are regulatory in nature, in other words their aim is to insist on reasonable compliance with regulated safety standards by those conducting activities which are otherwise intrinsically or potentially unsafe unless such high standards of compliance are met. Not having to prove fault in the relevant circumstances aims to provide a strong deterrent. To this extent, and in this context, they are consistent with other safety-focussed regulatory regimes and do not unreasonably or impermissibly limit the presumption of innocence. The offences are designed to achieve the legitimate objective of ensuring the integrity of the overall aviation safety regulatory scheme by promoting compliance and deterring non-compliance.
The purpose of the Regulations, and in particular reg 91.530, is to prohibit activities which are otherwise intrinsically or potentially unsafe, in this case vaping on an aircraft. It would defeat the purpose of the Regulations if reg 91.530 was construed narrowly, as contended for by the appellant, so as to only prohibit vaping by a person on an aircraft during a flight.
Regulation 91.530 refers to s 37 of the Air Navigation Regulation 2016 (Cth) (ANR), which provides:
37Smoking on an aircraft
(1)A person commits an offence if:
(a)the person smokes on board an aircraft; and
(b)the aircraft is engaged in:
(i)the carriage of passengers between airports in Australian territory as part of an air transport service; or
(ii)Australian international carriage (other than the carriage of freight only) as part of an air transport service.
A court should attempt to construe interrelated statutes so that there is a sensible, efficient and just operation of both statutes as opposed to an inefficient, conflicting or unjust operation.[27]
[27] Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 - 724 cited with approval in Russell v Stephen [2013] WASCA 284 [51] - [53].
While s 37 of the ANR prohibits smoking on an aircraft that is performing the 'carriage of passengers' in domestic and international settings, reg 91.530 provides the pilot in command of any aircraft with the authority to direct a person on the aircraft for a flight not to smoke in the interests of safety. The overarching purpose of both statutes, on their sensible, efficient and just operation, is to maintain the safety and good order of the aviation system.
Consistent with its plain and ordinary meaning, a reading of the Regulations as a whole and the purpose of the Regulations, I find that the proper construction of the words 'for a flight' contained in reg 91.530 is that the person is on an aircraft 'in connection to a flight' or 'for the purpose of a flight'. I find that, on the admitted facts, the appellant was on the aircraft in connection with or for the purpose of a flight. The appellant was employed as a flight attendant and there was no other purpose for her being on the aircraft, other than for a flight.
The fact that the appellant was on her break at the time of the First Offence is not relevant to the second element of the First Offence. The appellant is a 'person' for the purposes of reg 91.530, it is irrelevant that she was flight attendant and therefore, whether she was on a break.
I find that the second element of the First Offence, on the admitted facts, is established.
Did the 'pilot in command' direct the appellant not to smoke?
The appellant submits that there was no 'pilot in command' at the time of the First Offence because the plane was resting still with its doors open. Therefore, the appellant says there was no 'pilot in command' that could direct the appellant not to smoke. The appellant relies upon reg 91.215 in support of this contention. The appellant says that reg 91.215 provides for the jurisdiction of the pilot and the limits of the pilot's authority while exercising that jurisdiction. The appellant says that, in relation to the First offence, the pilot ceased to be a 'pilot in command' when the doors of the aircraft opened.
Regulation 91.215 provides:
91.215Authority and responsibilities of pilot in command
(1)This regulation applies in relation to the operation of an aircraft during the following period:
(a)from the earlier of:
(i)the time the aircraft's doors are closed before take‑off; and
(ii)the time the flight begins;
(b)to the later of:
(i)the time the aircraft's doors are opened after landing; and
(ii)the time the flight ends.
(2)The pilot in command of the aircraft:
(a)has final authority over:
(i)the aircraft; and
(ii)the maintenance of discipline by all persons on the aircraft; and
(b)must ensure:
(i)the safety of persons on the aircraft; and
(ii)the safety of cargo on the aircraft; and
(iii)the safe operation of the aircraft during the flight.
'Pilot in command' is defined in the Regulations as:[28]
In relation to a flight of an aircraft, means the pilot designated by the operator of the aircraft as being in command and charged with the safe conduct of the flight.
[28] Reg 1.4.
On a plain reading of reg 91.215, it does not limit the period within which there is a pilot in command of the aircraft. Rather, the regulation sets out the matters over which the pilot in command has final authority and the things that the pilot must ensure from the time the doors close before take‑off and the time the doors open after landing. Regulation 91.215 does not mean that there is no pilot in command of the aircraft outside of this period or that the pilot in command has no jurisdiction, for example, once the doors of the plane are open. Consistent with the definition of 'pilot in command' in reg 1.4, there is no requirement for the aircraft to be in flight or have its doors closed for there to be a pilot in command of that aircraft.
This interpretation of reg 91.215 is consistent with the words of reg 91.530. Regulation 91.530(3)(a) provides that 'for the purposes of [91.530(1)(b)], the pilot in command is taken to have directed a person on an aircraft not to smoke if a permanent "no smoking" sign is displayed in the cabin's aircraft'. In my view, consistent with the purposes of the Regulations to which I have referred above, if a permanent 'no smoking' sign is displayed in the cabin of the aircraft, the pilot in command is taken to have directed a person not to smoke. It is the existence of a permanent no smoking sign that is all that is required to satisfy the fourth element of the First Offence. It would be entirely inconsistent with the purposes of the Regulations if a person were permitted to smoke, or in this case vape, as soon as the aircraft had come to rest and the doors of the aircraft were open.
It was an admitted fact that there were six 'no smoking' signs permanently displayed in the aircraft cabin. I find that the fourth element of the First Offence was established.
Disposition on Ground 1
All of the elements of the First Offence having been established on the admitted facts, I find that there has been no miscarriage of justice occasioned by the magistrate recording a conviction on the appellant's plea of guilty to the First Offence.
While I grant leave to appeal on ground 1, I dismiss the appeal on ground 1.
Ground 2
Ground 2 relies entirely upon the appellant being successful on ground 1 of the appeal.
Given I have dismissed ground 1, ground 2 also fails.
I refuse leave to appeal on ground 2 and dismiss ground 2.
Other matters raised by the appellant
The appellant raised two other matters. The first was whether the magistrate had correctly applied s 19B (1)(b)(ii) of the Act.[29] The second was whether the prosecution notice was adequately particularised. These two matters were not the subject of any ground of appeal and therefore, cannot succeed. In any event, for the following reasons, I consider they have no merit.
Section 19B of the Act
[29] Appeal transcript 5 - 6, 15 - 16; Appellant's submissions [53] - [78].
The appellant submitted that the magistrate did not adequately or properly consider s 19B of the Act in relation to the First and Second Offences for either, or both, of the following reasons:
(1)the inherent seriousness or triviality of an offence is a separate consideration from the seriousness or triviality of the offending conduct - the magistrate conflated these two considerations which resulted in a miscarriage of justice; and
(2)the magistrate did not apply the right test as the magistrate considered whether it was 'expedient to inflict any punishment', when the proper test was whether it was 'inexpedient to inflict any punishment'.
Section 19B(1) of the Act provides:
(1)Where:
(a)a person is charged before a court with a federal offence or federal offences; and
(b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)dismiss the charge or charges in respect of which the court is so satisfied; or
…
Section 19B of the Act requires the application of a two-stage test. The first stage requires an identification of one or more of the factors in s 19(1)(b)(i)‑(iii). It is only if at least one of those factors is determined to be present that the second stage of the test is considered. If none of those factors are present, then the application of s 19B fails at the first stage. The second stage of the test is whether, having regard to a factor(s) identified in s 19B(1)(b) that is established, it is inexpedient to inflict any punishment, or to inflict only nominal punishment. In determining the second stage of the test, the court must have regard to the matters set out in s 16A of the Act.
The power to make an order under s 19B is discretionary.[30] Therefore, a judge hearing an appeal cannot intervene to disturb an order made in the exercise of a discretion because he or she would have imposed a different order. The judge hearing the appeal can only intervene if he or she is satisfied that the sentencing magistrate made an express or implied material error of law or fact. An example of an express error is a failure to have regard to a relevant consideration. An unreasonable or unjust order will amount to implied error. However, an order will only be unreasonable or unjust if it is outside the range of a sound exercise of the statutory discretion.[31]
[30] Stark v Plant [2010] WASCA 74 [9].
[31] Stark [13].
In considering the first stage of the s 19B test, specifically the personal circumstances factor, the magistrate had regard to the following personal circumstances of the appellant:[32]
(1)the appellant resigned from her job as a result of her offending;
(2)the appellant had been employed thorough her adult life and had no prior criminal history;
(3)the appellant took full responsibility for her offending and entered an early plea of guilty;
(4)the appellant's risk of re‑offending was low;
(5)the appellant's offending is likely to have a significant impact on the appellant's future desired employment as a flight attendant; and
(6)the appellant was suffering from PTSD, anxiety and insomnia as a result of an assault she had sustained in 2018. Although the appellant submitted that her coping mechanism for dealing with her anxiety was to vape, there was no psychological evidence before the magistrate to confirm any diagnosis or any causal link between any diagnosis and the appellant's offending.
[32] Primary transcript 13 - 14.
In relation to the remaining two factors of the first stage of the s 19B test, counsel for the appellant at the hearing before the magistrate conceded that the offences were not of a trivial nature and that there were no extenuating circumstances for the purposes of s 19B.
Irrespective of that concession, the magistrate independently formed the view that the offences were not of a trivial nature, saying:[33]
The offences are not of a trivial nature and they're aggravated by the fact that, firstly, that [sic] you were in the industry as an airline hostess for four and half years and, during that period of time, your training and your work requirements required that you were to inform others of the need not to smoke on an aircraft every time you got on a plane to perform that role. That was your job.
So you were well-aware of the risk and well-aware of the requirements, and that's an aggravating factor. In fact, it became a risk to the public at large because of the health risks that it poses to the public at large, I need to consider that also. And there were two offences before the court that occur on the same day hours, or a short time apart, really, but the second one, therefore, is more aggravated than the first, in my view, because it is repetitive behaviour.
[33] Primary transcript 14 - 15.
The magistrate also independently formed the view that there were no extenuating circumstances:[34]
The language of the section makes it clear that it is only the circumstances under which the offences were committed which may qualify for extenuating for the purpose of the section. There must be some link between the circumstances said to be extenuating [and] the commission of the offence.
… I can't be satisfied of extenuating circumstances in this matter.
[34] Primary transcript 15.
In summary, the magistrate determined that it was inappropriate to apply s 19B (1)(b)(ii) of the Act because:[35]
(1)the appellant's personal circumstances did not warrant an order pursuant to s 19B;
(2)the offences were not of a trivial nature; and
(3)the offences were not committed under extenuating circumstances.
[35] Primary transcript 14 - 15.
I turn first to consider the appellant's submission that the magistrate conflated the triviality of the appellant's conduct with the triviality of the offence itself.
In Walden v Hensler,[36] when considering whether an offence was 'trivial' for the purposes of s 657A of the Criminal Code Act 1899 (QLD), a section in substantially similar terms as s 19B, Brennan J said:[37]
Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty.
[36] Walden v Hensler [1987] HCA 54; (1987) 153 CLR 561, 577.
[37] Walden v Hensler (577).
In my view, the magistrate was correct to consider the appellant's conduct which constituted the offences and the circumstances in which the offences were committed when assessing whether the offences were of a trivial nature. There is no merit in the appellant's submission that the offence itself was of such a trivial nature to satisfy that factor in the first stage of the s 19B test. If the offence itself were of a trivial nature, then every offence contrary to reg 91.530 would satisfy the first stage of the s 19B test. Such a position is clearly inconsistent with the Regulations.
Accordingly, I find that there is no express error on the part of the magistrate on the basis of any failure to have regard to the inherent triviality of the offences.
I turn now to consider the appellant's submission that the magistrate did not apply the right test as she referred to 'expedient' rather than 'inexpedient'.
After considering the first stage of the s 19B test, the magistrate said:[38]
And then, if there is that information, if it is expedient to inflict any punishment, or to inflict only nominal punishment, or expedient to release the offender on probation without recording a conviction.
(emphasis added)
[38] Primary transcript 15.
In my view, there is no merit in the appellant's submission that the magistrate applied the wrong test and thereby occasioned a miscarriage of justice. The magistrate had regard to the appellant's personal circumstances, the fact that the offences were not of a trivial nature, and the lack of extenuating circumstances and decided that the first stage of the s 19B test was not satisfied. The magistrate was therefore, not required to consider the second stage of the s 19B test. As a result, there is no miscarriage of justice arising from the fact that the magistrate referred to the word 'expedient', rather than 'inexpedient' as that consideration is only relevant to the second stage of the test.
The appellant's submissions do not raise any express or implied error on the part of the magistrate that is capable of enlivening my power to intervene. The magistrate took into account all relevant considerations at the first stage of the s 19B test - those being the appellant's personal circumstances, whether the offences were of a trivial nature and whether there were extenuating circumstances. Having determined that the first stage of the test was not satisfied, the magistrate was not required to consider the second stage of the test.
I am also satisfied that, having regard to all of the matters before the magistrate, the magistrate's order to impose a fine and to record a conviction in relation to each of the First and Second Offences was not outside the range of a sound exercise of the statutory discretion.
Was the prosecution notice adequately particularised?
There is no merit to the appellant's submission that the prosecution notice was not adequately particularised because it did not specify the time of the offending and the flight number related to the offending.
Schedule 1 div 2 s 5 of the Criminal Procedure Act 2004 (WA) relevantly provides that:
(1)A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
(a)describe the offence with reasonable clarity; and
(b)identify the written law and the provision of it that creates the offence; and
(c)identify with reasonable clarity -
(i)the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii)where the offence was committed;
…
(2)For the purposes of subclause (1) -
(a)it is sufficient to describe an offence in the words of the written law that creates it; and
…
(d)it is not necessary to allege -
(i)any matter, or any particulars as to a person or thing, that need not be proved …
The prosecution notice, for each of the First and Second Offences, states:
On 22 August 2023, [the appellant], whilst onboard an aircraft namely Skippers Aircraft XKJ, was smoking during a period when the pilot in command has directed the person not to smoke contrary to regulation 91.530(1)(b) of the [Regulations].
The time at which the offences occurred and the flight number in relation to which the offending occurred are not matters that are required to be proved. The prosecution notice is therefore not required to provide those particulars.
Conclusion
For these reasons, leave to appeal is granted on ground 1 but the appeal is dismissed and leave to appeal on ground 2 is refused.
The parties are requested to confer in relation to the final orders and costs and file a consent notice. If the parties do not consent to orders within seven (7) days, each party is to file a minute of proposed orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
2 SEPTEMBER 2024
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