Demaj v Hall - [2009] QDC 223

[2009] QDC 223

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE IRWIN

No 2257 of 2008

DEBBIE DIANE DEMAJ	Appellant
and
CHRISTOPHER HALL	Respondent
BRISBANE ..DATE 13/07/2009
ORDER

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HIS HONOUR: This is an appeal on behalf of the Chief
Executive of Fair Trading, Department of Justice
Attorney-General pursuant to section 222 of the Justices Act
1886 against what is asserted to be the inadequacy of a fine
imposed on the respondent by the learned and experienced
Magistrate in the Magistrates Court at Brisbane on 23 July
2008.

On that date the appellant who represented himself pleaded guilty to 23 offences contrary to section 9 subsection 1 of the Security Providers Act 1993 on the basis that he carried out the functions of a security provider when he did not hold the appropriate licence. Each charge was in the same terms and had the same particulars. The only difference was the date of the alleged offences as the respondent was charged for a separate offence for each day that he carried out those functions over a period of approximately five weeks from the 21st of August 2007 to the 28th of September 2007.

In respect of each charge the particulars were as follows. provider for reward by being at Centro Toombul Shopping Centre, 1015 Sandgate Road, Toombul, principally for the purpose of maintaining order and guarding property.

The respondent's Security Crowd Controller Licence was refused renewal pursuant to section 21 subsection 1 paragraph (f) of the Security Providers Act 1993 as he was no longer considered an appropriate person to hold a licence. The defendant was convicted on an offence on 16 April 2004. The respondent continued to carry out the functions of a security provider when he no longer held the appropriate licence.

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ORDER

In respect of these offences the Magistrate imposed one penalty pursuant to section 49 of the Penalties and Sentences Act 1992 of $5,000 with a Court costs order of $66.50. The penalties and costs were referred to State Penalties and Enforcement Registry for registration and in default of payment he was ordered to be imprisoned for 60 days. A conviction was recorded.

The offences related to a course of conduct by the respondent of carrying out the functions of a security provider whilst no longer holding an appropriate licence under the Security Providers Act. The facts placed before the learned Magistrate at sentence were as follows:

(a)	On 16 August 2007 Inspectors Demaj and Mellor conducted a security provider compliance check on the premises of the Toombul Centro Shopping Centre;
(b)	Later that day upon referencing the defendant's name against the Office of Fair Trading records it was revealed that the respondent's security officer Crowd Controller Licence was refused renewal on 14 August 2007;
(c)	The licence was refused renewal due to the respondent being no longer considered an appropriate person to hold such a licence as he was convicted of a disqualifying offence on 16 April 2004.

I note that although the outline of the appellant's…

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.

Continue reading Demaj v Hall

Details

AGLC: Demaj v Hall [2009] QDC 223
Case: [2009] QDC 223
Decision Date: 13/07/2009

CaseChat Overview and Summary

Debbie Diane Demaj, acting on behalf of the Chief Executive of Fair Trading, Department of Justice and Attorney-General, appeals against the penalty imposed on Christopher Hall by the Magistrate in the Magistrates Court at Brisbane. Hall pleaded guilty to 23 offences under section 9 of the Security Providers Act 1993 for carrying out the functions of a security provider without holding the appropriate licence. The Magistrate imposed a penalty of $5,000 and ordered a conviction. The appellant argues that the penalty was manifestly inadequate, given the legislative amendments that increased the maximum penalty to 500 penalty units or $37,500 per offence for a first-time offence. The District Court Judge, Irwin DCJ, considers the principles governing the appeal and the relevant sentencing factors. The Court finds that the Magistrate erred in principle by not giving sufficient weight to the legislative intention and the principle of general deterrence, and by giving excessive consideration to the respondent's personal circumstances. The appeal is allowed, and the penalty is set aside. In its place, the respondent is fined $12,500, with a direction that the penalty be referred to the State Penalties Enforcement Registry. A conviction is recorded. No order is made as to costs.

Orders