Wilson v Queensland Police Service

[2013] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilson v Queensland Police Service [2013] QDC 40

PARTIES:

MILFORD WILSON
(appellant)

And

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

D24/12

DIVISION:

Appellate

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

Mt Isa, Magistrates Court

DELIVERED AT:

Mt Isa

HEARING DATE:

8 February 2013

JUDGE:

Reid DCJ

ORDER:

Appeal allowed. Sentence amended to probation of six months, conditional upon appellant obeying directions of community justice group. Respondent to pay Appellant’s costs in the sum of $1,400.   Sum to be paid to the trust account of the appellant’s solicitors.

CATCHWORDS:

POSSESSION OF LIQUID IN A RESTRICTED AREA – FINE – PROBATION

COUNSEL:

WL Hunter (Warren Hunter and Associates) for the appellant
CW Winlaw (ODPP) for the respondent

HIS HONOUR:  Milford Wilson is the appellant before me in respect of the sentence imposed upon him on the 29th of August 2012, for the offence of possession of liquor in a restricted area.

The circumstances of his offending were that on that day police attended premises at Lardil Street, Mornington Island, in relation to another matter.  They located the appellant inside the residence and observed him to be intoxicated.  They formed the suspicion that there was home brew at the residence and a search was conducted.  As a result of that they located a 10 litre container containing approximately one litre of a yellow, cloudy liquid in the appellant's bedroom beside his bed.  When they smelt the container it smelt like alcohol, and, indeed, that what it was.  It was alcohol that was in the container as a result of his home brew of it.  He  had used it to drink with his girlfriend prior to police arriving.  He was charged with the offence.

He  was convicted and sentenced to three months' imprisonment, wholly suspended for a period of 12 months.

He has a relevant criminal history.  In particular he has offences relating to possession of liquor on a reserve or in a restricted area, generally Mornington Island, in March 1976, September 1976, February 2005, September 2006, August 2008, March 2009, May 2009, November 2009, and May 2010.  In respect of those matters, in particular since 2005, fines of between $200 and $700 have been imposed.  It doesn't appear that on any occasion he was given probation. A perusal of his overall criminal record, which extends to a number of relatively minor matters involving some domestic violence, assaults and so on, reveals that on no occasions has he had the benefit of a community based order.  There have been periods of imprisonment which were immediately suspended.

I've had the significant benefit of hearing from Dr Berry Zondag, who is the CEO of Junkuri Laka, the community justice group on Mornington Island.  In my view it is clear from material prepared by him, and from hearing from Dr Zondag, that the impositions of a fine on offenders such as the appellant in this case has not had any ameliorating effect on problems with liquor, and in particular home made liquor, on Mornington Island.

He stated in submissions to the Magistrate in a belated matter of Peters, "Mr Peters is an alcoholic who lives in a family of alcoholics in a part of the community where the neighbouring three houses are occupied by families with severe alcohol problems.  We have submitted previously these problems cannot be solved by the criminal justice system.  As a social and psychological observation increasing fines (which are referred to SPER in any event) will not change Mr Peter's attitude."  In my view exactly the same position applies in respect of Mr Milford Wilson, although I note that Mr Wilson, who was born in 1954, has been fully employed as a plumber by the local authority, earning about $450 per week, which I assume is a net figure, for the last two years.

To have identified the problem as Dr Zondag has, and with which I agree, does not of course make the issue of sentencing in this matters easy.  In my view the submissions of Junkuri Laka give information that should however have informed the Magistrate's decision in this matter when he imposed his sentence.  In my view the learned Magistrate ought have considered the benefit to the appellant of programs available by way of probation and/or community service when sentencing him.

In particular, in my view, he should have been aware:

(1) That the availability of home brew continues unabated to the stage where it is a, as Mr Zondag says in written material tendered before me, "a veritable cottage industry despite the regular imposition of fines".

(2) That Junkuri Laka had, in 2012, signed a service delivery agreement with the Department of Justice for delivery of peace keeping and mediation services on Mornington Island, which were likely to have been of significant benefits to persons such as the appellant in this case.

When speaking to Dr Zondag he indicated to me that such services are not currently funded and not available, but I nevertheless am strongly of the view that the imposition of a period of probation, conditioned that the appellant also obey the lawful directions of the local community justice group, is more likely to lead to an amelioration of his personal problems associated with the consumption and making of alcohol than the imposition of a fine.

In my view, sentencing options which combine frequent reporting and reinforcing of appropriate messages, perhaps combined with solid community service workloads in suitable cases, such as, for example, where the defendant in a particular case is not in employment, are significantly preferable to the imposition of fines.  As Dr Zondag told me, the reality is that almost always fines are merely referred to SPER, they do not have an immediate ameliorating effect on people's conduct and the overall effect is just that the pension is reduced by the amount of any weekly or fortnightly payments made to SPER.

In my view, the imposition of a period of imprisonment, albeit wholly suspended with an operational period of three months, demonstrates an appellable error on the part of the learned Magistrate.  In my view, such a sentence was manifestly excessive, and in the circumstances the appeal ought to be allowed.

In its place I substitute an order for six months' probation, conditioned as I have previously indicated during submissions.  I note in particular the additional requirement to the general conditions of probation that you, Mr Wilson, obey the lawful directions of the community justice group.

I won't record a conviction in view of the small amount of alcohol, because I still think it's a useful precedent in other cases.

I'll fix costs in the sum of $1,400.  You didn't want to make any submissions, Mr Winlaw?

MR HUNTER:  No, your Honour.

MR WINLAW:  No, your Honour, thank you.

HIS HONOUR:  A condition of those costs is that they be paid by the respondent to the trust account of the appellant's solicitors.

Dr Zondag, that's all I need do at the moment, and I probably don't need to have you on line when I consider the sentence of Mr Howard Wilson.  I can probably do that without, I think, if we can contact him within the next few days.  If he reappears on Mornington Island in the next few days, and we haven't been able to contact him, can you please get him, perhaps with you, to ring Mr Hunter and we can bring the matter back on so I can formally pronounce my sentence in that matter?

DR ZONDAG:  Yes, I can do that, your Honour.

HIS HONOUR:  Two things, I wanted to thank you for your participation in this process, and, secondly, I hope that that's a useful precedent for you for other matters that might come before you in the near future.

DR ZONDAG:  Thank you, your Honour, and in that respect I have a question for you, if I may, would you please ask your associate to send to me via email, and Mr Hunter will have my email address, the sentence you just passed as well as the one you refer to that you did yesterday.

HIS HONOUR:  Oh, well, it wasn't yesterday, it was earlier this morning.  The Peters one?  I'll do both of them.  It will probably take a day or two before I get them back, it may not, but we'll do that in the next couple of days.

DR ZONDAG:  Yes, thank you, because I would like to add those to the firming application, as I just said, I'm making to the Federal Government next week.

HIS HONOUR:  Thanks very much.

DR ZONDAG:  Thank you, your Honour.

HIS HONOUR:  Thank you, and thanks for your help, and we'll break the line in respect of that.

DR ZONDAG:  Thank you, your Honour.

MR WINLAW:  Your Honour, just one matter, upon review of those remarks your Honour said "three months' imprisonment, wholly suspended for an operational period of three months", I believe‑‑‑‑‑

HIS HONOUR:  It's 12 months, isn't it?

MR WINLAW:  Twelve months.

HIS HONOUR:  I'll correct that.  I actually don't know why I said "three months", because when I read I saw it was 12 months.

MR WINLAW:  Yes.

HIS HONOUR:  Okay.  Now, is there any submissions either of you want to make in respect of the Howard Wilson Matter at the moment?

MR WINLAW:  No, your Honour.  The Crown's in exactly the same position.

HIS HONOUR:  Rightio.  Well, I'll give judgment in that when we get him online.  If you can get someone, Mr Hunter, to go to 21 Abel Smith Parade and leave a message there for him, and get him to ring you, and as soon as you hear from him, hopefully today, but otherwise any stage next week, just let me know and we'll bring it on one morning.  Otherwise if he goes back to Mornington Island Dr Zondag will contact you no doubt‑‑‑‑‑

MR HUNTER:  No doubt he will.

HIS HONOUR:  ‑‑‑‑‑and we'll get it on at some stage and I just can just pronounce judgment when that happens.

MR WINLAW:  Yes.  Thank you, your Honour.

HIS HONOUR:  Thanks.  In respect of that matter I'll also allow costs of $1,400.  Thanks both of you for your help on that and you submissions.

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