_Bryce v Chief Executive Officer of Customs_

Judgment (17 paragraphs)

[1]

The applicant have leave to amend the Originating Application to add as paragraph 2A the declaration sought in respect of the Corrective Services Act 2006 (Qld).
The State of Queensland be joined as a party for the hearing and determination of the separate question of law that was ordered to be decided separately pursuant to r 483.

[2]

(a) Section 19AB of the Act was applicable in respect of the sentencing of Mr Bryce upon conviction for offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) by the Honourable Justice Fryberg on 15 March 2006 as varied by Order of the Court of Appeal made on 9 February 2007; and

[3]

(b) There has been a failure to fix a non-parole period in respect of the said sentencing for the purpose of Section 19AH(1).

[4]

The respondent pay the costs of the applicant and the costs of the State of Queensland of and incidental to the application for the separate determination.

[5]

[1] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2006] QSC 4.

[6]

[2] By s 3(2) of the Crimes Act, a reference to a fine includes a reference to a pecuniary penalty.

[7]

[3] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40 at [31].

[8]

[8] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 558.

[9]

[16] Labrador Liquor Wholesale Pty Ltd & Ors v Chief Executive Officer of Customs [2007] HCATrans 20.

[10]

[18] Affidavit of Scott Alexander Kerrigan filed by leave 28 August 2009.

[11]

[19] This definition accords with what the High Court held in Winsor v Boaden (1953) 90 CLR 345 at 347, said the word "sentence" connotes, namely, "a judicial judgment or pronouncement fixing a term of imprisonment".

[12]

[20] This is s 182A as enacted at the time (reprint no 9). Section 182A of the Penalties and Sentences Act was amended by Act No 3 of 2007.

[13]

[21] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40, particularly at [45].

[14]

[23] See paragraph [106] of the reasons for judgment quoted in paragraph [11] above.

[15]

[24] As the respondent noted in its submissions, the authority to which Jerrard JA referred, R v Booth [1998] 1 Qd R 656 concerned State offences and did not bear upon the construction of s 19AB(1). Reference to Booth by Jerrard JA illustrated how parole provisions may operate in respect of cumulative default terms of imprisonment for non payment of fines.

[16]

[25] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40 at [17]- [19] and [58].

[17]

[26] BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AK and Ors (No 2) [2009] QSC 64 at [8].

"In my respectful opinion, it is appropriate and just to look at the effect of the orders made, imposed on the assumption that there would be no payment of any pecuniary penalty. No time to pay was allowed, and the effect of the orders is that cumulative terms of imprisonment of nearly five years result. In those circumstances the learned judge did imposed (sic) federal sentences that exceed in the aggregate three years. A judge directly imposing aggregate terms totalling more than three years on these offences could not avoid fixing either [a] single non-parole period, or making a recognizance release order, without giving reasons for doing that, and there seems no reason here for excluding the operation of a non-parole period or a recognizance release order. In New South Wales v Commonwealth of Australia [2006] HCA 52; (2006) 231 ALR 1, the joint judgment quotes, at [228] of those reasons, from the judgment of Gleeson CJ in Re Pacific Coal; Ex parte CFMEU (2000) 172 ALR 257 at paragraph [29], where the Chief Justice wrote:

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Judgment (17 paragraphs)

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