Stansby v QPS
[2018] QMC 24
•20 March 2018
CITATION:
Stansby v QPS [2018] QMC 24
PARTIES:
Zachary Michael Stansby
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)
FILE NO/S:
1814/17
DIVISION:
Magistrates Court
PROCEEDING:
Appeal pursuant to s 79K Police Powers and Responsibilities Act 2000
ORIGINATING COURT:
Magistrates Court at Noosa
DELIVERED ON:
20 March 2018
DELIVERED AT:
Maroochydore
HEARING DATE:
6 and 20 March 2018
MAGISTRATE:
Madsen R
ORDER:
1. Appeal is refused.
CATCHWORDS:
Traffic Law – Forfeiture of Vehicle – Appeal against administrative decision heard afresh – whether the appellant would suffer severe financial hardship – whether the Appellant has a right to Appeal Police Powers and Responsibilities Act 2000, s 79A, s 79B, s 79C, s 79D, s 79F, s 79G, s 79H, s 79K, s 79N, s 79O
R v Lake (1989) 44 A Crim R 63
COUNSEL:
SOLICITORS:
Cooroy Community Legal Service
Queensland Police Prosecution Corps for the first and second respondents
The appellant owns a Blue Holden Commodore Utility registration number 598-RBA (“the vehicle”).
It is alleged that the appellant committed the following offences;
1. Wilfully making unnecessary noise or smoke on 3 May 2016
2. Wilfully making unnecessary noise or smoke on 15 September 2017
Both 1 and 2 are type 1 offences[1]. The vehicle was impounded[2] by police on 13th October 2017.
[1] Section 69A (1) (a) (IV) PPRA.
[2] Section 74A (1) (a) PPRA.
The Appellant Pleaded Guilty to the September 2017 Offence on 31 October 2017 and was convicted and was fined $500[3]. This resulted in automatic forfeiture of the vehicle to the State[4].
[3] There was no Appeal lodged.
[4] Section 74B PPRA.
On 28 November 2017 the appellant filed, with the Commissioner for Police, an Application for Early Release[5] of the vehicle. Section 79A (1) of the Police Powers and Responsibilities Act provides;
An eligible person may apply to the commission for the release of a motor vehicle impounded under division 1 or 1A, or immobilised under division 1B, on the basis that the person would suffer severe hardship if the motor vehicle was not released.
[5] Section 79A PPRA.
On 8 December 20147 Inspector Lewis sent to the appellant an Information Notice [6] refusing the early release of the vehicle[7]. The Acting Inspector decided the appellant had refused the application due to the conviction for the September offence.
[6] Attachment 3 to Application for directions Hearing..
[7] Section 79H PPRA.
The appellant appeals[8] against the decision of the Commissioner to the Magistrates Court. He says that the inspector in effect hasn’t properly considered his financial hardship.
[8] Sections 79J to 79O
The matters to be considered, for the purposes of this appeal, will be identical to that of the original decision maker.
Relevantly, the matter to be considered is – whether a refusal of the application would;
“.. Cause severe financial hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living.”[9]
[9] Section 79B (3) (a).
Arguably, more relevantly is the question of whether Mr Stansby has a right of Appeal.
In deciding an appeal[10] I can confirm the decision appealed against or set it aside and substitute another decision that it considers appropriate.
[10] Section 79O.
The appellant’s material in this appeal include the original application, the affidavits and evidence of the appellant.
.
Financial Hardship
1. “Kirby P in R v Lake (1989) 44 A Crim R 63 at 67-67 when addressing proceeds of crime legislation in New South Wales:
“In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship therefore that can give rise to the relief under
S 5(1)(b)(ii)………Something more than ordinary hardship in the operation of the Act is therefore meant.”
2. Similar reasoning is also found in Frohling v Police [2011] SASC 53 per Nyland J at paragraphs [18] to [20].
3. It is my view that the principles found in Lake and Frohling should be applied to this legislation and the appellant should show something more than ordinary financial hardship relevant to his employment (my emphasis), resulting from the loss of the vehicle.
4. The importance of the words “relevant to his employment” is established in the restrictive assessment of “severe financial hardship” as it relates to “depriving the applicant of the applicant’s means of earning a living.”
5. It is not the case that I can consider the financial impact of the loss of the value of the vehicle on the appellant. In fact the act provides that any such loss is in addition to any other penalty that may be imposed for the prescribed offences.
6. Section 72 PPRA;
The impounding immobilisation or forfeiture of a motor vehicle or the imposition of community service on a person under this chapter arising out of the commission of a prescribed offence is in addition to any other penalty that may be imposed on the person for the prescribed offence.”[11]
[11] I’m indebted to my Colleague Magistrate Stjernqvist for his diligence in an unreported decision of Bussey v QPS [2015] – Bowen.
Can Mr. Stansby lodge an appeal?
As noted above, a court making orders on an appeal can set aside the original decision and substitute another. Such new decision needs to be one that could have been made by the Commissioner.
In that respect I need to consider whether or not the effect of the conviction and the lack of any relevant step taken by the appellant prior to conviction to do something about the pending forfeiture of his vehicle.
Relevantly:
1. The impoundment notice given on 13 October 2017 provides that:
(a) “a second or subsequent type I vehicle related offense under section 794A(1) within the relevant period.
(b) The motor vehicle is impounded until the end of proceedings for all charges under section 74A (2).
(c) Please note: if the defendant is found guilty of two type I vehicle related offenses the vehicle will become the property of the state – there is in a reference to Police Powers and Responsibilities Regulations 2012 ss 20B.
2. The rear of that document contains the following:
(a) In accordance with section 20 B of the Police Powers and Responsibilities Regulation 2012, take notice of the following –
(b) if a police officer has impounded the motor vehicle under section 74A(1) of the Police Powers and Responsibilities Act 2000 [the act] because of a type I vehicle related offense and the officer reasonably suspects that, in addition to the initiating impoundment offence, and within the relevant period
(i) The driver of the motor vehicle has been charged with having committed a type I vehicle related offence on one previous occasion and the charge has not been decided or;
(ii) The driver of the motor vehicle has previously been found guilty of a type I vehicle related offense on one previous occasion then,
if the motor vehicle is impounded until the end of the proceedings under section74A(2)( of the Act
a.The motor vehicle becomes the property of the state if the driver of the motor vehicle
i. Has been found guilty of a type I vehicle related offence committed on one previous occasion within the relevant period and
ii. Is found guilty of a second or subsequent top one vehicle related offence and
b.The motor vehicle is taken to be forfeited to the state if the court orders that a warrant issued for the rest of the drive the motor vehicle…..”
(c) “The definition of found guilty, of an offense, mean….. There is a finding of guilt, or the acceptance of the plea of guilty, by a court, whether or not a conviction is recorded.
A Not Dissimilar situation was considered by her honour judge Claire[12] :
[12] COMMISSIONER OF THE QUEENSLAND POLICE SERVICE v DESMOND JAMES GOUGH [2015] QDC 254 @14-16
[13] “Even more fundamentally, as conceded by the respondent, the application was lodged too late. An application under s 79A is an application for release of an impounded or immobilised vehicle. All applications available under sections 79A, 79C, 79E or 79G are only for the release of vehicles that are impounded or immobilised. This is clear from the plain language of those sections, and confirmed by the headings. There is no mention of a forfeited vehicle within the subdivision. There is no provision within the subdivision for an application for release of a forfeited vehicle.
[14] By necessary implication, under the legislative scheme a forfeited vehicle is not an impounded or immobilised vehicle. They are mutually exclusive concepts. The relevant police powers to impound are found in Divisions 1 and 1A of Chapter 4. Division 1B offers immobilisation as an alternative to impoundment. While forfeiture involves the transfer of ownership, impoundment and immobilisation are temporary states. They prevent the owner’s use of the vehicle for periods defined by the Act. By virtue of s 74 E (3), a vehicle impounded under s74E may be impounded until the conclusion of all proceedings under s74E. If the vehicle does remain impounded until the conclusion of proceedings, the impoundment ceases at that point. Thereafter its status will depend upon the outcome of the proceedings. If the driver is found not guilty, the car must be released pursuant to s 117. But if the driver is convicted, the car immediately “becomes the property of the State” pursuant to s 74F (2).
[15] An impoundment could not persist past the resolution of the outstanding charge. The conclusion of proceedings was the maximum impoundment period permitted under s 74E (2). It follows that subsequent to the conviction on 21 January 2015, the ute was not impounded. It could not then be the subject of an application under s 79A. As Mr Crews conceded, the commissioner had no authority to grant Ms Eichmann’s application. It follows that Mr Gough’s appeal should have been dismissed.
[16] The Act does make provision for the protection of innocent third parties after a vehicle has been forfeited. An application may be made in the Magistrates court under s 123. There was however no application of that kind for the Magistrate to consider in the present case.”
The solicitor who appeared for the appellant asked me to consider whether her honour will have reached a different conclusion by virtue of Section 74B (3) . In that respect:
1. I believe her honour made and gave extensive reasons and consideration;
2. The example given in the legislation makes clear that under the division the Commissioner may grant an application for the release of an impounded or immobilized motor vehicle, not a forfeited vehicle;
3. The effect contended in relation to subsection is not correct. The subsection when properly considered relates to the ability of the person to make an application before the relevant finding of guilt in this case relevantly the second or subsequent type one vehicle related offense. It must be before, otherwise the vehicle could not become the property of the state in a practical sense.
4. The appellant could have made release from impoundment request before being convicted and the effect of subsection 3 would be to prevent the automatic forfeiture of the vehicle in the event that that request was agreed to by the commissioner, or in the event of an appeal against that decision.
The appellant has no right to bring the appeal. Even though he may well be an eligible person, by the time he made his online request the plea of guilty resulted in the automatic forfeiture of the vehicle and the motor vehicle became the property of the state.[13]
[13] Section 74B2)(a) Police Powers And Responsibilities Act
That there was no time limit in which to lodge the current appeal is a reflection of the reality that there was never any rights to bring such an appeal the vehicle becoming the property of the state. The omission of any right of appeal in those circumstances also achieves a practical effect which is ultimately the disposal of the vehicle by the state which I’m informed was due to occur on the date that the current application was lodged.
As I have concluded, consistent with the decision in Gough that the application is lodged too late, it is not necessary for me to consider whether or not the commissioner’s delegate failed to give proper reasons or took relevant considerations into account. The commission’s delegate might not have used the form that he chose to use, as that form strictly speaking should only be used in the event of a properly made request which should result in a proper consideration of the financial hardship of an appellant. He ought to in my view have refused the request using his usual QPS letterhead. In saying that the online request probably needed to be cleared off somehow.
If I were to have applied the law as referred to by my brother magistrate in relation to financial hardship I would have concluded that the applicant had established such a hardship. However, the consideration is redundant.
Mr Stansby did not have an ability to lodge an Appeal when he did. He lost that right upon being convicted.
The appeal is refused.
Magistrate Madsen
Maroochydore
20th of March 2018
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