Thimble v Queensland Police Service - [2016] QDC 190

DISTRICT COURT OF QUEENSLAND

CITATION:

Thimble v Queensland Police Service [2016] QDC 190

PARTIES:

JUSTINE FAYE THIMBLE
(appellant)
v
QUEENLAND POLICE SERVICE
(respondent)

FILE NO/S:

APPEAL NO: D73/16

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

2 August 2016

DELIVERED AT:

Cairns

HEARING DATE:

2 August 2016

JUDGE:

Morzone QC DCJ

ORDER:

(1)     Appeal allowed.

(2)     Set aside the orders made by the Magistrates Court on 27 April 2016 and substitute the following orders:

(a)     The appellant is convicted of one charge of possession of liquor in a restricted area.

(b)    No further punishment is imposed.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – contravention of s 173H of Liquor Act 1992 (Qld) – possessing liquor in a restricted area – error of law – whether sentence manifestly excessive.

Legislation
Justices Act 1886 (Qld), ss 222, 223(1) & 227
Liquor Act 1992 (Qld), ss 3, 168B & 173H
Penalties and Sentences Act 1992 (Qld), s 187

Cases

House v The King (1936) 55 CLR 499
Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Norbis v Norbis (1986) 161 CLR 513
Callope v Senior Constable B Elsley (Unreported, Qld District Court, White DCJ, Cairns, 8 March 2005)
Fourmile v Queensland Police Service [2016] QDC 182

COUNSEL:
J. Sheridan for the appellant
A. Dunkerton for the respondent

SOLICITORS: The Aboriginal & Torres Strait Islander Legal Service for the appellant
The Office of the Director of Public Prosecutions for the respondent

On 27 April 2016 the appellant was convicted on her own plea of guilty in the Magistrates Court held in Yarrabah of one charge of possession of liquor in a restricted area, and was fined $2000 with a conviction recorded and disqualified from driving for three months.

The appellant now appeals her sentence on the ground that it is manifestly excessive.

Both parties provided outlines of argument and made further submissions on the hearing of the appeal which I have considered. The respondent has, properly in my view, conceded the appeal subject to resentencing considerations.

Background

At the time of the offence the appellant was driving a car into Yarrabah when she was intercepted by police and found with one 1.125 L bottle of Johnny Walker Scotch whisky.

Yarrabah has an Alcohol Management Plan with the aim to reduce alcohol-related violence, particularly violence against women and children in the community. This includes the imposition of liquor restrictions which are the subject of signage located at the entrance to the area.

By a declaration under s 173H of the Liquor Act 1992 (Qld), the type and maximum amount of alcohol a person can carry in the restricted area is limited to: 11.25 litres (1 x 30 can carton) of light or mid-strength beer; or 750 ml (1 bottle) of unfortified wine. These limits also apply to a vehicle, boat or aircraft regardless of the number of people in it. Cask wine, fortified wine, full-strength beer and pre-mixed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QDC 190
Decision Date: 2 August 2016

CaseChat Overview and Summary

The appeal before the court involved the appellant, Thimble, against the decision of the Queensland Police Service, specifically regarding a conviction under the Liquor Act 1992 (Qld). Thimble was found guilty of possessing liquor in a restricted area, a contravention of section 173H of the Act. The conviction was made by the Magistrates Court on 27 April 2016, and subsequently, Thimble sought to appeal the decision. The central issue in the appeal was whether the sentence imposed was manifestly excessive and constituted an error of law.

The court examined the nature of the contravention and the sentence imposed, focusing on whether it was excessive given the circumstances. The Liquor Act provides for penalties for possessing liquor in restricted areas, and the court considered whether the sentence exceeded what was appropriate or justified under the circumstances. In reviewing the sentence, the court had to balance the statutory requirements with the principles of proportionality and fairness. It was necessary to determine if the punishment was so disproportionate to the offence that it constituted a legal error.

Upon review, the court found that the sentence was indeed manifestly excessive. The court held that the punishment did not align with the principles of proportionality and fairness as required by law. Consequently, the appeal was allowed. The orders of the Magistrates Court were set aside, and new orders were substituted. The appellant was still convicted of the possession charge, but no further punishment was imposed. The court's decision thus provided a clear direction on the appropriate sentence for the offence under the Liquor Act.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the orders made by the Magistrates Court on 27 April 2016 and substitute the following orders:

(a) The appellant is convicted of one charge of possession of liquor in a restricted area.

(b) No further punishment is imposed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thimble v Queensland Police Service [2016] QDC 190
PARTIES:	JUSTINE FAYE THIMBLE (appellant) v QUEENLAND POLICE SERVICE (respondent)
FILE NO/S:	APPEAL NO: D73/16
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	2 August 2016
DELIVERED AT:	Cairns
HEARING DATE:	2 August 2016
JUDGE:	Morzone QC DCJ
ORDER:	(1) Appeal allowed. (2) Set aside the orders made by the Magistrates Court on 27 April 2016 and substitute the following orders: (a) The appellant is convicted of one charge of possession of liquor in a restricted area. (b) No further punishment is imposed.
CATCHWORDS:	CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – contravention of s 173H of Liquor Act 1992 (Qld) – possessing liquor in a restricted area – error of law – whether sentence manifestly excessive. Legislation Justices Act 1886 (Qld), ss 222, 223(1) & 227 Liquor Act 1992 (Qld), ss 3, 168B & 173H Penalties and Sentences Act 1992 (Qld), s 187 Cases House v The King (1936) 55 CLR 499 Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Norbis v Norbis (1986) 161 CLR 513 Callope v Senior Constable B Elsley (Unreported, Qld District Court, White DCJ, Cairns, 8 March 2005) Fourmile v Queensland Police Service [2016] QDC 182
COUNSEL:	J. Sheridan for the appellant A. Dunkerton for the respondent
SOLICITORS:	The Aboriginal & Torres Strait Islander Legal Service for the appellant The Office of the Director of Public Prosecutions for the respondent