Statutory provision restricting application of probation for certain regulatory offences is not unconstitutional

Quinn J: Criminal Law – constitutional challenge – Finance Act 2005 – offence of offering for sale tobacco products otherwise than in a pack to which a tax stamp is affixed – statutory removal from trial judge of option of applying s.1 of Probation of Offenders Act 1907 in circumstances where a person is found guilty – whether s.78 is too complex – lack of requirement for mens rea in unconstitutional in circumstances where applicant did not know he was committing an offence – removal of option of applying probation act is unconstitutional in a scenario where the alleged offender did not know what he was doing was wrong – plaintiff charged with offence of offering for sale specified tobacco products otherwise than in a pack to which a valid tax stamp was affixed – applicant’s friend gave him tobacco which was bought in Turkey – applicant did not like the tase or smell and decided to sell the remaining 14 packets – attempted sale of the tobacco was intercepted by customs officer posing as a customer – applicant cooperative – applicant concerned that his employer might terminate his employment – excessive complexity in legislation may not be desirable, the authorities do not support the propositions that it is fatal – agreed in this case that offence is a strict liability offence where actual mens rea will not have to be proved – the actual core of the section is neither unclear nor complex – nothing to suggest that the jurisprudence of the courts has been extended to enable a court to strike down legislation on the grounds that it is complex or very complex – no significant moral opprobrium attached to regulatory offences which would require prosecution to prove mens rea – applicant did not come close to meeting test required which is that there is no rational connection between sentencing restrictions and underlying offence – applicant’s claim dismissed.