Shapley v Wynch
[2005] QDC 115
•12/04/2006
[2005] QDC 115
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE WHITE
Appeal No 297 of 2005
| ANDREW JOHN CRAWFORD SHAPLEY | Appellant |
| and | |
| FEDERAL AGENT GARY WYNCH | Respondent |
| CAIRNS ..DATE 12/04/2006 | |
| JUDGMENT |
12042006 T12/RGC M/T CNS2/2006 (White DCJ)
| HIS HONOUR: The appellant pleaded guilty in the Magistrates | 1 |
| Court at Cairns on the 17th of October 2005 to an offence against section 24 of the Civil Aviation Act 1988 (Commonwealth). |
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The offence was specified as follows: On 15 October 2005 at Cairns in the State of Queensland he while on board Jetstar flight JQ944 did tamper with an aircraft item of equipment namely two lifejackets which he did remove from the said aircraft.
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I take the summary of the facts and circumstances of the commission of the offence from the written outline of submissions on behalf of the respondent which seem to me to accurately reflect the uncontested facts related to the
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Magistrates Court.
About 9.15 on Saturday, 15 October 2005 Andrew Shapley arrived at Cairns Domestic Airport as part of a group from Sydney aboard Jetstar Airways Limited flight JQ944. Whilst
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passengers were preparing to disembark from flight JQ944 a a number of male passengers that "I hope you're not stealing lifejackets as it is an offence and you could be fined".
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| After the passengers exited the aircraft the flight crew were servicing the aircraft for the next scheduled flight when they noticed two lifejackets missing from their compartments under seats designated as row 25. Jetstar subsequently notified AFP 12042006 T12/RGC M/T CNS2/2006 (White DCJ) | 2 | JUDGMENT | 60 |
| Protective Services of the theft and protective services | 1 |
| conducted inquiries with a number of male passengers. | |
| Protective services retrieved one life jacket from the males and were advised that the lifejacket was located under a car |
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in the airport car park and that they could not locate the
other lifejacket.
At this stage Shapley, who was with the group of males, approached the protective services officers and stated "I own
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up. I dumped them". Shapley was then asked "Where did you
dump them" and he replied "In the car park".
Protective services then asked Shapley if he removed them from the aircraft and he replied "Yes". Protective services asked
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Shapley where the other lifejacket was and he replied "I dumped them both in the car park" and he identified the area where he "dumped the lifejackets".
A thorough search of the area identified by Shapley failed to
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locate the remaining lifejacket and Shapley stated that a
different vehicle was parked in the spot when he put the other
lifejacket there. AFP were notified and Shapley was allowed
to depart the area.
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| On Monday, 17 October 2005, Shapley contacted AFP Cairns and subsequently attended the Cairns office of the AFP where he contacted his solicitor and then declined to participate in a tape-recorded record of interview. 12042006 T12/RGC M/T CNS2/2006 (White DCJ) | 3 | JUDGMENT | 60 |
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After hearing submissions from Mr Lloyd on behalf of the prosecution and Mr Silva on behalf of the appellant the learned Magistrate ordered that the appellant be fined the sum of $500 and made a reparation order in respect of the value of
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one lifejacket for $68. The result of that order is that
under Commonwealth legislation a conviction is taken to be
recorded.
There is no power under the Commonwealth Crimes Act as there
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is under the Queensland Penalties and Sentences Act to
consider ordering that a conviction not be recorded
independently of the penalty which is imposed. Rather section
19B makes provision for circumstances in which offenders may
be discharged without proceeding to conviction.
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That section requires consideration of three matters the first being whether or not the charge is proved. That issue does not arise in this case.
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The relevant provision arises under subsection 19B(1) paragraph (b). Where the Court is of the opinion having regard to:
(i) The character, antecedents, cultural background,
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age, health or mental condition of the person;
(ii) The extent (if any) to which the offence is of a
trivial nature; or
(ii) The extent (if any) to which the offence was
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12042006 T12/RGC M/T CNS2/2006 (White DCJ)
committed; 1
under extenuating circumstances that it is inexpedient to
inflict any punishment other than a nominal punishment, the
Court may order - and the relevant paragraph is paragraph (d)
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- discharge the person without proceeding to conviction in
respect of any charge referred to in paragraph (c), upon his
giving security with or without sureties by recognisance or
otherwise to the satisfaction of the Court, et cetera.
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5 JUDGMENT 60
12042006 T13/LET M/T CSN2/2006 (White DCJ)
| The learned Magistrate was specifically referred to these | 1 |
| provisions and, in fact, Mr Silva made extensive submissions to his Honour in an attempt to persuade his Honour to proceed pursuant to paragraph (d). The penalty which I have earlier set out makes it clear that his Worship was not so persuaded. |
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The first submission made by Mr Murray on behalf of the appellant is that his Worship failed to correctly apply the provisions of subsection 19B(1) and, as such, made an error of law. It seems to be accepted that if I were satisfied that
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his Honour made such an error then the sentencing discretion
would be exercised afresh by this Court. If I am not
satisfied that his Honour made such an error then the
appellant adopts a fall-back position that the penalty imposed
was manifestly excessive.
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I was referred to the judgment of the New South Wales Court of
Appeal in Commissioner of Taxation v. Baffsky (2001) 122
Australian Criminal Reports 568. In that case the New South
Wales Court of Appeal dealt with what I would describe as a
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multitude of questions posed for it on a case stated by a fine detailed consideration which her Honour the learned District Court Judge gave to the comprehensive case stated, and the comprehensive analysis contained in the judgment of
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| the Chief Justice, seemed to me to be far removed from the practicalities of conducting a busy Magistrates Court. 12042006 T13/LET M/T CSN2/2006 (White DCJ) | 6 | JUDGMENT | 60 |
| I have read the whole of the transcript. It may be said that | 1 |
| his Honour's final sentencing remarks before imposing the penalty are quite brief. However, it is also the case that during the course of submissions there was a considerable degree of dialogue between particularly Mr Silva, who appeared |
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for the appellant, and his Worship. It seems to me that his Worship sufficiently revealed his thinking during the course of that dialogue and in his brief concluding sentencing
remarks.
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It is not really disputed by Mr Murray, on behalf of the appellant, that it was open to his Honour to take the view that there was no extent to which the offence was of a trivial nature. Indeed, if Mr Murray had pressed such submissions, I would have rejected them. Mr Murray also concedes that it was
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open to his Worship to conclude that there was no extent to
which the offence was committed under extenuating
circumstances and concedes that his Worship did not make any
error in coming to such a conclusion. Once again, had Mr
Murray pressed such a submission, I would have rejected it.
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Really, the only factor to which Mr Murray refers in paragraph (b), or factors, really amounts to the character and antecedents of the appellant. Possibly it might be said that his age was of some relevance.
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| There is no doubt that he was a person of prior very good character. He had no criminal history. He was in long-term useful and gainful employment. At the material time he was 28 12042006 T13/LET M/T CSN2/2006 (White DCJ) | 7 | JUDGMENT | 60 |
| years of age. According to the judgment of the New South | 1 |
| Wales Court of Appeal in Baffsky, once there were relevant factors to which the Court might have regard in forming the relevant opinion, it was a matter of then returning to subsection 16A(2) in forming the relevant opinion. That |
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subsection lists a considerable number of factors which a Court is required to take into account in determining the sentence to be passed. It also leaves the way open to
consider any other relevant matters.
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However, in my view there is nothing in section 16A which requires a Court to, as it were, go through the list and make a determination whether any particular items are relevant or irrelevant, and to consider the weight to be given to that relevance.
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12042006 D.1 T14/JFG M/T CNS2/2006 (White DCJ)
| It is also accepted that general deterrence as well as | 1 |
| individual deterrence is a matter to be taken into account. | |
| Another matter is the prospect of rehabilitation of the offender. There are of course features of the case for which |
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the appellant was to be given credit and which might be
described as positively pointing to the Court forming the
opinion that it would be inexpedient to inflict any punishment
other than a nominal punishment.
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There was his disclosure of the offence, his plea of guilty,
his good character. At paragraph 10 of Mr Murray's submissions
he lists numerous items relied upon by the appellant to
suggest that the requisite opinion should have been formed.
In my view, some of those matters to some extent overlap the
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appellant's disclosure or admission of his commission of the
offence in the circumstances earlier described and his plea of
guilty, form an overall cooperation with the authorities,
unfortunately rather belatedly because it occurred after the
offence was committed.
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Some matters mentioned by Mr Murray, in my view are not taken in the appellant's favour and I will expressly deal with those. It is said that the appellant and his group had been drinking prior to embarkation and continued to consume alcohol
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| during the flight. If, as I was told, the flight arrived in but in my view the fact that a person commits an offence under the self-inflicted influence of alcohol, even if it might well 12042006 D.1 T14/JFG M/T CNS2/2006 (White DCJ) | 9 | JUDGMENT | 60 |
| be said that the offenc would not have been committed but for | 1 |
| that factor, it is not a matter which in my view, contributes in any meaningful way to forming the opinion that it would be inexpedient to impose other than a nominal sentence. | |
| Similarly, the appellant's belief that he was committing a |
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humorous prank is of no great assistance.
It is said that the prospect of serious consequences arising were remote. I think that is probably right. The flight attendant was obviously alerted to the possibility that
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somebody might be stealing life jackets. I gather that there
is usually a check of life jackets before every take-off, but
even if that were not so, the flight attendant's suspicion may
well have led to that. In any event, a check was made and the
fact of the missing life jackets was discovered.
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Even if the aircraft had taken off with missing life jackets, the fact is that passenger transport by aircraft in Australia is extraordinarily safe. For those reasons, it might be said
that the prospect of any actual danger to any person was
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remote in the extreme. I really think that this is not a
matter to which great weight can be given. Life jackets are a
safety device. This must be looked upon as being more serious
than stealing towels from a hotel room.
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| In examining the matters in paragraph 10 of Mr Murray's submission, I take them into account. I am unpersuaded that the recording of a conviction which resulted from the penalty imposed has any particular consequence for this appellant. He 12042006 D.1 T14/JFG M/T CNS2/2006 (White DCJ) | 10 | JUDGMENT | 60 |
| was in long term gainful employment. This is a matter to be | 1 |
| antecedents, but nothing was suggested to the learned | |
| taken into account in respect of his character and theoretical possibility that if certain circumstances arise in |
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the future, he may have some employment difficulties.
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11 JUDGMENT 60
12042006 D.1 T16/MCN (White DCJ)
| It is suggested also that the recording of a conviction may | 1 |
| obtain visas, if required to disclose convictions. Coupled | |
| impact upon the appellant's ability to travel freely and in spite of the good things that can be said about this appellant, I am not persuaded that it would be necessarily in the interests of the travelling public and the commercial airlines upon which he might wish to travel should not at least have the opportunity to know about this conviction. | 10 |
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| In summary, therefore, I am not satisfied that his Worship made any error of law in his approach to the imposition of punishment and nor am I satisfied that in the whole of the circumstances the punishment ultimately imposed is manifestly | |
| excessive. | |
| 40 | |
| I order that the appeal be dismissed. Any consequential orders? | |
| MR LLOYD: No, your Honour. I don't know whether your Honour | |
| would be of the view to comment upon the appropriate penalty | 50 |
| your Honour might've been imposed. I know that I've seen that in various appeals. It may not be something that your Honour would consider but it might be of a lot of assistance - a lot of these matters are dealt with in the Magistrates Court, whether - a fine range or something your Honour might've arrived at. 12042006 D.1 T16/MCN (White DCJ) | 12 | JUDGMENT | 60 |
| HIS HONOUR: It's so theoretical, it's hard to say, Mr Lloyd, | 1 |
| but I do not consider that the $500 fine to be manifestly excessive. Nothing about the facts of the case suggests to me that I would've imposed any other penalty. | |
| MR LLOYD: Thank you, your Honour. |
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