Demaj v Hall - [2009] QDC 278

DISTRICT COURT OF QUEENSLAND

CITATION:

Demaj v Hall [2009] QDC 278

PARTIES:

DEBBIE DIANE DEMAJ

(Appellant)

AND

CHRISTOPHER HALL

(Respondent)

FILE NO/S:

2257/08

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

13 July 2009 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2009

JUDGE:

Irwin DCJ

ORDER:

1.                Appeal against sentence is allowed.

2.                The sentence of the Magistrate on 23 July 2008 is set aside and in lieu thereof the respondent is fined $12,500 with a direction that the proper officer of the court refer the penalty to SPER for registration.

3.                A conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – Appeal against sentence – grounds for interference – sentence manifestly excessive or inadequate – whether the magistrate erred in principle in the exercise of the sentencing discretion, either on the basis of a discernible error or one that is demonstrated by manifest inadequacy of the sentence – respondent pleaded guilty to 23 charges of carrying out the functions of a security provider when he did not hold the appropriate licence – the respondent’s licence had not been renewed as he was no longer considered an appropriate person to hold a licence – the respondent subsequently continued to work as a security officer in defiance of a direction to stop working – the offences were committed after the maximum penalty was increased from 100 penalty units to 500 penalty units – the respondent was sentenced to a fine of $5000 with a conviction being recorded – whether the court erred by giving insufficient consideration to the newly introduced penalty regime and giving excessive consideration to the respondent’s personal circumstances – whether general deterrence was sufficiently taken into account – whether the penalty was sufficient to denounce the sort of conduct in which the respondent was involved

Justices Act 1886, s 222(2)(c), s 225(1), s 225(3)

Penalties and Sentences Act 1992, s 13(3), s 48(1), s 48(2)

Security Providers Act 1993, s 9(1)(a), s 21(1)(f)

House v The King (1936) 55 CLR 499, applied

R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; (1997) 92 A Crim R 75, cited

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited

R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, applied

R v Mladenovic; ex parte Attorney-General [2006] QCA 176, applied

R v Sittczenko; ex parte Cth DPP [2005] QCA 461, cited

COUNSEL:

R. M. Vize for the appellant

The respondent did not appear

SOLICITORS:

Office of Fair Trading on its own behalf

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE IRWIN

No 2257 of 2008

DEBBIE DIANE DEMAJ	Appellant
and
CHRISTOPHER HALL	Respondent

BRISBANE

..DATE 13/07/2009

ORDER

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…

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 278
Case: [2009] QDC 278
Decision Date: 13 July 2009

CaseChat Overview and Summary

In the case of Demaj v Hall, the respondent was convicted and sentenced by a magistrate for 23 charges related to carrying out the functions of a security provider without holding the appropriate licence. The respondent had previously had his licence revoked as he was deemed unfit to hold such a licence. Despite this, he continued to work as a security officer in direct contravention of an order to cease his activities. The penalty for such offences had been increased from 100 to 500 penalty units at the time of sentencing. The respondent was fined $5000 and a conviction was recorded. The appeal against the sentence was based on the grounds that it was manifestly excessive or inadequate, and that the magistrate erred in principle in the exercise of the sentencing discretion.

The court was required to consider whether the sentence was excessive or inadequate, and whether the magistrate erred in principle in the exercise of the sentencing discretion. Specifically, the court needed to determine if the magistrate gave insufficient consideration to the newly introduced penalty regime and excessive consideration to the respondent's personal circumstances. Furthermore, the court had to consider whether general deterrence was sufficiently taken into account and whether the penalty was sufficient to denounce the conduct in which the respondent was involved.

The court found that the magistrate did not give sufficient consideration to the newly introduced penalty regime, and that the sentence was manifestly inadequate. The court considered that the penalty should reflect the seriousness of the offence and serve as a deterrent to others who may be inclined to commit similar offences. The court held that the penalty of $5000 was inadequate and that the sentence should be increased to $12,500, with a direction that the penalty be referred to SPER for registration. The court allowed the appeal against sentence and set aside the original sentence. The court also recorded a conviction against the respondent.

In light of the above, the court ordered that the appeal against sentence be allowed, the sentence of the magistrate be set aside and in lieu thereof the respondent be fined $12,500 with a direction that the proper officer of the court refer the penalty to SPER for registration, and a conviction be recorded.

Orders

Orders of the court

1. Appeal against sentence is allowed.

2. The sentence of the Magistrate on 23 July 2008 is set aside and in lieu thereof the respondent is fined $12,500 with a direction that the proper officer of the court refer the penalty to SPER for registration.

3. A conviction is recorded.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Demaj v Hall [2009] QDC 278
PARTIES:	DEBBIE DIANE DEMAJ (Appellant) AND CHRISTOPHER HALL (Respondent)
FILE NO/S:	2257/08
DIVISION:	Appellate
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	13 July 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2009
JUDGE:	Irwin DCJ
ORDER:	1. Appeal against sentence is allowed. 2. The sentence of the Magistrate on 23 July 2008 is set aside and in lieu thereof the respondent is fined $12,500 with a direction that the proper officer of the court refer the penalty to SPER for registration. 3. A conviction is recorded.
CATCHWORDS:	CRIMINAL LAW – Appeal against sentence – grounds for interference – sentence manifestly excessive or inadequate – whether the magistrate erred in principle in the exercise of the sentencing discretion, either on the basis of a discernible error or one that is demonstrated by manifest inadequacy of the sentence – respondent pleaded guilty to 23 charges of carrying out the functions of a security provider when he did not hold the appropriate licence – the respondent’s licence had not been renewed as he was no longer considered an appropriate person to hold a licence – the respondent subsequently continued to work as a security officer in defiance of a direction to stop working – the offences were committed after the maximum penalty was increased from 100 penalty units to 500 penalty units – the respondent was sentenced to a fine of $5000 with a conviction being recorded – whether the court erred by giving insufficient consideration to the newly introduced penalty regime and giving excessive consideration to the respondent’s personal circumstances – whether general deterrence was sufficiently taken into account – whether the penalty was sufficient to denounce the sort of conduct in which the respondent was involved Justices Act 1886, s 222(2)(c), s 225(1), s 225(3) Penalties and Sentences Act 1992, s 13(3), s 48(1), s 48(2) Security Providers Act 1993, s 9(1)(a), s 21(1)(f) House v The King (1936) 55 CLR 499, applied R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; (1997) 92 A Crim R 75, cited Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic; ex parte Attorney-General [2006] QCA 176, applied R v Sittczenko; ex parte Cth DPP [2005] QCA 461, cited
COUNSEL:	R. M. Vize for the appellant The respondent did not appear
SOLICITORS:	Office of Fair Trading on its own behalf