Von Stieglitz v Dixon [2016] QDC 298 (23 November 2016)

Last Updated: 16 February 2017

DISTRICT COURT OF QUEENSLAND

CITATION:	Von Stieglitz v Dixon [2016] QDC 298
PARTIES:	PATRICK VON STIEGLITZ (appellant) v KENDALL MARIE DIXON (DEPARTMENT OF TRANSPORT AND MAIN ROADS) (respondent)
FILE NO/S:	D36/16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Magistrates Court at Proserpine
DELIVERED ON:	23 November 2016
DELIVERED AT:	District Court at Mackay
HEARING DATE:	17 November 2016
JUDGE:	Smith DCJA
ORDER:	Application granted. The appellant’s appeal against conviction is struck out. I reserve the question of costs until the hearing of the sentence appeal.
CATCHWORDS:	APPEAL- JUSTICES- Whether District Court has jurisdiction to hear an appeal against conviction where unequivocal plea entered Judicial Review Act 1991 (Q) Part 5 Justices Act 1886 (Q) s 222 Transport Operations (Marine Pollutions) Act 1995 (Q) s 67A Ajax v Bird [2010] QCA 2 Commissioner of Police v James [2013] QCA 403 Costigan v Marshall [2010] QCA 344 Dore and Ors v Penny [2005] QCA 150 Long v Spivey [2004] QCA 118 Phillips v Spencer [2006] 2 Qd R 47; [2005] QCA 317
COUNSEL:	The appellant is self-represented Ms S Gibson for the respondent
SOLICITORS:	Department of Transport legal unit for the respondent

Introduction

[1] This is an application by the respondent to strike out the appellant’s appeal against conviction.

[2] The appellant pleaded guilty to the following charge in the Magistrates Court at Proserpine on 29 March 2016.

“On the eighth day of December 2014 at Shute Harbour in the Mackay Magistrate’s Court District, Patrick Von Stieglitz, being the owner of a ship more than 15 metres in length overall, did not have an insurance policy that, to the limits applying under a regulation, or sufficient to pay for the clean-up costs of the discharge of a pollutant from the ship into coastal waters, and the costs of salvage or removal of the ship from coastal waters if the ship is abandoned or wrecked, contrary to s 67A(2) of the Transport Operations (Marine Pollutions) Act 1995.

Further particulars

Ship: Tateyama Maru, registration 25670 QC

Length: 35.5 metres

Limits applying under a regulation: 10 million dollars pursuant to s 76(1)(c) of the Transport Operations (Marine Pollutions) Regulation 2008.

Insurance policy held: Nil.

[3] The offence was said to be contrary to s 67A(2) of the Transport Operations (Marine Pollutions) Act 1995 (Qld).

[4] He was convicted and fined the sum of $7500.

Respondent’s submissions

[5] The respondent submits that the District Court has no jurisdiction to deal with any appeal against conviction because of appellant pleaded guilty to the charge.

[6] It submits that the plea was unequivocal and the only jurisdiction is to hear the appeal against sentence.

Appellant’s submissions

[7] The Appellant on the other hand says he was given poor advice by his lawyer to plead guilty. He has made a complaint to the legal services commission concerning his lawyers. He says the appeal should wait until the outcome of that investigation.

[8] He also raises other grounds such as no precedent; discrimination; the legislation is flawed; there was no case to answer; and there was a miscarriage of justice. Having considered the facts of the case, the submissions and the proceedings below I find there is no merit in these grounds.

Facts

[9] The transcript of the proceedings on 29 March 2016 shows that the appellant was represented before the Magistrates Court. The Magistrate read the charge to the appellant, he was asked whether he understood the complaint and he pleaded guilty to the charge. The prosecutor referred to comparable decisions and placed before the court the facts of the matter. The prosecutor mentioned the size of the vessel and also mentioned that the defendant had admitted there was no insurance policy for the vessel and that he participated in a recorded interview in which he confirmed this (T1-4.15). The prosecutor mentioned that the appellant was 61 years of age and had previously been convicted in the Proserpine Magistrates Court on 13 August 2012 for failing to have a sufficient policy for the same vessel (T1-4.45). He and his wife had been convicted and fined $1,000 after a summary hearing. The maximum penalty for the offence before the court was 850 penalty units i.e. $96,772.50. The prosecutor then mentioned the details of the comparable decisions.

[10] The defence solicitor informed the Magistrate that the appellant was a 62 year old man born in Tasmania. He attended school until he was 17 and then moved to Western Australia where he attended a technical college and completed a 12 month certificate in seamanship and fishing which was his predominate work. He had been in a relationship with his wife for 16 years. The vessel in question had been purchased on 30 June 2004 at an auction in Brisbane. He paid about $100,000 for it and spent an excess of $600,000 in a full refit of the ship. He had exhausted all of his funds so he made a decision to charter the vessel and try and get some money. It was chartered for two years but it sustained a significant damage from some individuals who chartered it who had no repaired it. He initiated some court action but was unable to pursue this because of his financial situation. He was left with a vessel with significant damage. He had spent more funds on it so it was at a level where it was suitable for private use but not for commercial use.

[11] The appellant had been attempting to obtain insurance. He also had a number of health issues. He was diagnosed with mouth cancer in October 2012. It was diagnosed as terminal but he had had treatment and had a 15 percent chance of survival after five years. A medical report in this regard was tended (Exhibit 1). He had lost his teeth and 30 percent of his body weight. The appellant had listed the vessel for sale for an extended period and no one had made any offers. There was no one in Australia who wanted to scrap the vessel. He originally obtained insurance through a Spanish broker underwritten in Uruguay but the insurer refused to renew it. The difficulty with Australian insurance was that it was prohibitive in terms of cost. He found himself in a situation where he had expended all of his funds and he could not afford to pay for insurance. The appellant was on a disability pension because of his health issues. It was submitted that a penalty towards the lower end of the range should be imposed.

[12] The magistrate ultimately took into account a plea of guilty and noted there should be a reduction of penalty because of this. He took into account the appellant’s financial difficulties and health issues in determining the penalty. He took into account the previous conviction and ultimately determined that a fine in the sum of $7,500 was appropriate with a conviction report recorded, with the matter referred to the State Penalties Enforcement Registry.

Discussion

[13] Section 222 of the Justices Act 1886 (Qld) (“JA”) provides:

(1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.

(2) However, the following exceptions apply –

...

(c) If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.

[14] Section 222(2)(c) of the JA has been considered in a number of decisions. In Dore and Ors v Penny[1] it was noted by Williams JA that “this court has on numerous occasions indicated that s 222 of the Justices Act cannot provide an avenue of appeal against conviction [where there is a please of guilty]”. It was noted by Williams JA that the remedy available to a person who pleads guilty and wished to submit that the plea of guilty was to an offence not known to law or was a plea that was not freely and voluntarily made is pursuant to Part 5 of the Judicial Review Act 1991 (Qld).

[15] Similar statements were made in Phillips v Spencer[2] and Long v Spivey[3].

[16] Dore v Penny and Phillips v Spencer were followed by Commissioner of Police v James[4] it was noted at [11] that the cases “make it quite clear that where a defendant enters an unequivocal plea of guilty that person has no right of appeal against conviction under s 222 of the Justices Act 1886”.[5]

[17] There is no reason to suspect that the plea of guilty was equivocal here. The appellant was represented by an apparently competent solicitor who made appropriate submissions for him towards mitigation of penalty.

[18] In the circumstances the court orders that the appeal against conviction be struck out.

[19] It is appropriate to reserve the question of costs until the sentence appeal.

Orders

[20] My orders are:

1. The application is granted.

2. The appellant’s appeal against conviction is struck out.

3. I reserve the question of costs until the sentence appeal.

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^[1] [2005] QCA 150.

^[2] [2006] 2 Qd R 47; [2005] QCA 317.

^[3] [2004] QCA 118.

^[4] [2013] QCA 403.

^[5] Also see Costigan v Marshall [2010] QCA 344 at [14-15] and Ajax v Bird [2010] QCA 2 at [4].