Gavey v Mellor - [2015] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

Gavey v Mellor [2015] QDC 282

PARTIES:

ERNEST JOHN GAVEY
(appellant)

v

TAMSIN MELLOR
(defendant)

FILE NO/S:

D109 of 2015

DIVISION:

Appeal

PROCEEDING:

s 222 Appeal

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

13 November 2015

DELIVERED AT:

Maroochydore

HEARING DATE:

6 November 2015

JUDGE:

Long SC, DCJ

ORDER:

1. The appeal is allowed.

2. The orders of the Acting Magistrate made on 9 July 2015 be varied so that the amount of the fine is $8,000.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –whether sentence was excessive – whether the magistrate erred in principle in the exercise of the sentencing discretion – whether the magistrate appropriately took into account the guilty plea, remorse and ultimate repayment of the consumer.

LEGISLATION:

Justices Act 1886 (Qld) ss 222, 223
Penalties and Sentences Act 1992 (Qld) ss 13, 48
Fair Trading Act 1989 (Qld) ss 16, 92, 94, 96

Competition and Consumer Act 2010 (Cth) Sch 2

CASES:

House v The King (1936) 55 CLR 499

Cameron v The Queen (2002) 209 CLR 339

COUNSEL:

E.J. Gavey self-represented

R.M. Vize for the respondent

SOLICITORS:

Office of Fair Trading on its own behalf

On 7 August 2015 the appellant filed a notice of appeal in respect of the sentence imposed upon him, on 9 July 2015, in the Magistrates Court at Maroochydore and in respect of his guilty plea to an offence of failing to supply goods within a reasonable time. Such conduct may be an offence, pursuant to s 92 and s 16 of the Fair Trading Act 1989, as it can be noted that s 16 of the Fair Trading Act has the effect of adopting certain laws of the Commonwealth of Australia, including the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and applying those provisions as the Australian Consumer Law (Queensland) and as a law of this State.

The offence admitted by the appellant is set out in s 158(7) of the Australian Consumer Law,[1] as follows:
[1] Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law.

“(7) A person commits an offence if:
(a)the person, in trade or commerce, accepts payment or other consideration for goods or services; and

(b) the person fails to supply all the goods or services:

(i)within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or

(ii)if no period is specified at or before that time - - within a reasonable time.
Penalty:

(a) if the person is a body corporate - - $1,000,100; or

(b) if the person is not a body corporate - - $220,000.”

Here the appellant was personally charged, having regard to the provisions of s 96 of the Fair Trading Act, which and subject to some exceptions which are, in the context of the appellant’s guilty plea, irrelevant, deems a director of a body corporate that commits such…

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 Gavey v Mellor

Details

AGLC: Gavey v Mellor [2015] QDC 282
Case: [2015] QDC 282
Decision Date: 13 November 2015

CaseChat Overview and Summary

The appellant, Gavey, appealed against the sentence imposed by the magistrate following his conviction for engaging in consumer credit activities without a licence. The conviction stemmed from activities that involved providing consumer credit services without the requisite licence. The appeal was heard and determined in the County Court of Victoria.

The central legal issues before the court were whether the sentence was excessive and whether the magistrate had erred in principle in exercising the sentencing discretion. Additionally, the court considered whether the magistrate appropriately took into account the factors of the guilty plea, remorse, and the repayment of the consumer.

In allowing the appeal, the court found that the sentence imposed was excessive. The court identified that the magistrate had failed to appropriately consider the full extent of the appellant's remorse and the fact that the consumer had been repaid. The court determined that these factors warranted a reduction in the penalty. Consequently, the appeal was allowed, and the orders of the Acting Magistrate were varied to reduce the fine to $8,000.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the Acting Magistrate made on 9 July 2015 be varied so that the amount of the fine is $8,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gavey v Mellor [2015] QDC 282
PARTIES:	ERNEST JOHN GAVEY (appellant) v TAMSIN MELLOR (defendant)
FILE NO/S:	D109 of 2015
DIVISION:	Appeal
PROCEEDING:	s 222 Appeal
ORIGINATING COURT:	Magistrates Court, Maroochydore
DELIVERED ON:	13 November 2015
DELIVERED AT:	Maroochydore
HEARING DATE:	6 November 2015
JUDGE:	Long SC, DCJ
ORDER:	1. The appeal is allowed. 2. The orders of the Acting Magistrate made on 9 July 2015 be varied so that the amount of the fine is $8,000.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE –whether sentence was excessive – whether the magistrate erred in principle in the exercise of the sentencing discretion – whether the magistrate appropriately took into account the guilty plea, remorse and ultimate repayment of the consumer.
LEGISLATION:	Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 13, 48 Fair Trading Act 1989 (Qld) ss 16, 92, 94, 96 Competition and Consumer Act 2010 (Cth) Sch 2
CASES:	House v The King (1936) 55 CLR 499 Cameron v The Queen (2002) 209 CLR 339
COUNSEL:	E.J. Gavey self-represented R.M. Vize for the respondent
SOLICITORS:	Office of Fair Trading on its own behalf