Mar v Queensland Building and Construction Commission

DISTRICT COURT OF QUEENSLAND

CITATION:

Mar v Queensland Building & Construction Commission [2017] QDC 304

PARTIES:

ZLATKO MAR
(Appellant)

QUEENSLAND BUILDING & CONSTRUCTION COMMISSION
(Respondent)

FILE NO/S:

876/17

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2017 and 8 December 2017

JUDGE:

Dearden DCJ

ORDER:

1.        Appeal granted.

2.        Order that a default period of two months’ imprisonment be imposed in respect of each of the following restitution orders (for which no default period was imposed in the Magistrates Court):

           Roberts  $45,618.75

           Heckenberg               $70,899.89

           Watkins  $37,125.00

           Taplin  $28,500

           Grainger  $43,500

3.        Otherwise confirm the orders made by the learned magistrate at Caboolture on 13 February, 2017.

CATCHWORDS:

LEGISLATION:

CASES:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty before the learned magistrate to 33 offences under the Queensland Building and Construction Act 1991 – where the learned magistrate imposed a global fine of $100,000 in respect of all 33 offences, legal costs of $4,446.25 (in default two years imprisonment for fine and costs) and six restitution orders totalling $225,643.64 – the fine, legal costs and restitution orders were all referred to the State Penalties Enforcement Registry for recovery action – whether the sentence is manifestly excessive – whether the restitution that was ordered is unfair

Justices Act 1886 ss. 222E, 223, 224

Penalties and Sentences Act 1992, ss. 5, 5A, 35, 36, 37, 48, 181B

Penalties and Sentences Regulation 2005, s. 3

State Penalties Enforcement Act1999, ss. 9, 34, 36, 37, 41, 52, 52A, 63, 119, 120, 155, schedule 2

State Penalties Enforcement Regulation 2014 ss. 24, 25

Queensland Building and Construction Act 1991, ss. 42, 51, Schedule 1B

Forrest v Commissioner of Police [2017] QCA 132

McDonald v Queensland Police Service [2017] QCA 255

R v Matauaina [2011] QCA 344

COUNSEL:

L Menolotto for the appellant

C Minnery for the respondent

SOLICITORS:

Towns Wilson Lawyers for the appellant

Queensland & Building Construction Commission for the respondent

1. The appellant pleaded guilty before the learned magistrate at the Caboolture Magistrates Court on 13 February 2017 to 33 offences pursuant to the Queensland Building and Construction Act 1991 (Qld) ‘QBCCA’, as follows:

Counts	Charges	Legislation
10	Unlawfully carrying out building work	QBCCA 1991 s.42(1)
6	Improper use of a license card, certificate, number or PIN	QBCCA 1991 s.51(2)
3	Failing to provide a commencement notice	QBCCA 1991 Schedule 1B s.16
3	Failing to provide a copy of the Consumer Building Code	QBCCA Schedule 1B s.18
6	Commencing services before completing the requirements of a regulated contract	QBCCA Schedule 1B s.30
5	Demanding or receiving a deposit in excess of the allowed amount for a regulated 1 or regulated 2 contract	QBCCA Schedule 1B s.33.

1. The sentence imposed was as follows:

(1)   Global fine for all offences - $100,000; and

(2)   Legal costs $4,446.25 (in default two years imprisonment for fine and costs);

(3)   Restitution:

(a)…