Patterson v Queensland Fire and Emergency Services (Mark Halverson) - [2022] QDC 115

DISTRICT COURT OF QUEENSLAND

CITATION:

Patterson v Queensland Fire and Emergency Services (Mark Halverson) [2022] QDC 115

PARTIES:

MAYLA PATTERSON

(Applicant/Appellant)

v
QUEENSLAND FIRE AND EMERGENCY SERVICES (MARK HALVERSON)

(Respondent)

FILE NO/S:

BD 775/21

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

3 June 2022

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

6 May 2022

JUDGES:

Burnett, DCJ

ORDER:

1. The appeal is dismissed.

CATCHWORDS:

SECTION 222 APPEAL – APPEALS AGAINST SENTENCE – Building Act 1975 (Qld) – failure to maintain compliance of budget accommodation with the Building Act and the Queensland Developmental Code MP 2.1 – whether the sentence imposed by the learned magistrate was manifestly excessive – whether the learned magistrate erred in his conclusion of guilt

Fire and Emergency Services Act 1990 (Qld) s 104D
Building Act 1975 (Qld)
Building Fire Safety Regulations 2008 (Qld) s 48
Queensland Development Code MP 2.1

Forrest v Commissioner of Police [2017] QCA 132

COUNSEL:

M Nicolson for the Respondent

SOLICITORS:

Mayla Patterson, self represented Applicant/Appellant
QLD Fire and Rescue Services for the Respondent

Introduction

The appellant appeals against convictions and sentence following trial which concluded with judgement entered following reasons provided on 17 March 2021. The appellant was sentenced at the conclusion of the hearing. She had been the respondent to prosecution by a complaint and summons brought on the complaint of Mark Gregory Halverson, an officer at the Queensland Fire and Rescue Service, concerning various contraventions of the Fire and Emergency Services Act 1990 (Qld) (‘FESA’). Four complaints were made concerning a property located at 545 Atkinson Dam Road, Gatton, and five in respect of a property situated at 77 Spencer Street, Gatton. It is not disputed that each of those properties failed to have in place various safety features as alleged in the charges on the dates of the alleged contraventions.[1]
[1]In respect of each of Atkinson Dam Road and 77 Spencer Street, the contraventions were failure to provide an early warning system and a system of emergency lighting (s 104D(1) Fire and Emergency Services Act 1990 (Qld) (‘FESA’)) as required by the Queensland Development Code MP 2.1 – Fire Safety in budget accommodation buildings; failed to display in a conspicuous place a sign setting forth the requirements of the regulations contrary to s 48(1)(a)(i) and s 48(1)(a)(ii) Building Fire Safety Regulation 2008 (Qld); and a failure to prepare a fire safety management plan for the building within one year of commencement of s 104FA contrary to s 104FA FESA. In respect of 77 Spencer St only there was additionally a contravention of s 48(1)(b) of the Building Fire Safety Regulation 2008 in the failure to maintain a prescribed fire safety installation, namely door hardware, compliant with cl 5(g)(i) of MP 2.1 of the Queensland Development Code, contrary to s 104D FESA.
In her notice of appeal, the appellant lists eight grounds. Aside from some which I will address shortly, and which have no merit, the principal substantial complaint of the appellant…

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.

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Details

Case: [2022] QDC 115
Decision Date: 3 June 2022

CaseChat Overview and Summary

The appellant, Patterson, appealed against the sentence imposed by a magistrate under the Building Act 1975 (Qld) for failing to maintain compliance of budget accommodation with the Building Act and the Queensland Developmental Code MP 2.1. The magistrate had found the appellant guilty on nine charges and imposed a sentence that included a fine and a period of imprisonment. Patterson argued that the sentence was manifestly excessive and that the magistrate had erred in concluding guilt.

The court considered whether the magistrate had properly exercised his sentencing discretion and whether the sentence imposed was lawful. The court noted that the Building Act provided for the imposition of penalty units for contraventions and that the magistrate had imposed fines within the jurisdictional limits. The court also considered the magistrate's exercise of power to impose a default imprisonment period and found that it fell within the limits provided by the Act. The court concluded that the magistrate had exercised his discretion properly and that the sentence was lawful.

In conclusion, the court found that the magistrate's convictions were supported by the evidence and that the sentence imposed was lawful. The appeal was dismissed.

Orders: 1. The appeal is dismissed.

Orders

Orders of the court

1. The appeal is dismissed.

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

The appellant complains that the charges do not carry a six month gaol sentence. It is correct that FESA provides for the imposition of penalty units upon the proof of contraventions. Each contravention provided for a maximum number of penalty units that fell within the jurisdiction of the Magistrate.[28] Section 49 Penalties and Sentences Act provides further that where offenders are found guilty of two or more offences founded on the same facts or constitute part of a series of offences the same or of similar kind, the court may impose a single fine for all offences.[29] That is provided the fine imposed does not exceed the total maximum fines that could be imposed for each of the offences. As I have earlier noted, having regard to the number of penalty units applicable (that is, 760), or a total fine of $104,766, the Magistrate’s ultimate decision was well within his jurisdiction. There is nothing to suggest the magistrate was not conscious of his obligations under s 48 Penalties and Sentences Act in respect of his exercise of the power to fine. In my view so much is evident by his reference of the fines to SPER. Concerning the default imprisonment, the court’s power to impose a default imprisonment period is provided by operation of s 185. Again the default imprisonment period set fell well within the limits provided and in all of the circumstances constituted a proper exercise of the sentencing discretion. It is a lawful sentence. The appellant’s submission on this matter fails. [28]See Penalties and Sentences Act 1992 (Qld) s 46(1)(a)(i). [29]Penalties and Sentences Act s 49(1)(a).Conclusion Upon a review of the evidence in particular having regard to assessments of credit and reliability by the magistrate, I am satisfied that the convictions of the appellant in respect of each of the nine charges before the Magistrate are supported by consideration of the evidence having regard to the law. The appellant having been convicted, the magistrate appropriately exercised his sentencing discretion by applying the correct principles in relation to sentence and the sentences imposed were open to be imposed by the magistrate on the proper exercise of his discretion. Order The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Patterson v Queensland Fire and Emergency Services (Mark Halverson) [2022] QDC 115
PARTIES:	MAYLA PATTERSON (Applicant/Appellant) v QUEENSLAND FIRE AND EMERGENCY SERVICES (MARK HALVERSON) (Respondent)
FILE NO/S:	BD 775/21
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	3 June 2022
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	6 May 2022
JUDGES:	Burnett, DCJ
ORDER:	1. The appeal is dismissed.
CATCHWORDS:	SECTION 222 APPEAL – APPEALS AGAINST SENTENCE – Building Act 1975 (Qld) – failure to maintain compliance of budget accommodation with the Building Act and the Queensland Developmental Code MP 2.1 – whether the sentence imposed by the learned magistrate was manifestly excessive – whether the learned magistrate erred in his conclusion of guilt Fire and Emergency Services Act 1990 (Qld) s 104D Building Act 1975 (Qld) Building Fire Safety Regulations 2008 (Qld) s 48 Queensland Development Code MP 2.1 Forrest v Commissioner of Police [2017] QCA 132
COUNSEL:	M Nicolson for the Respondent
SOLICITORS:	Mayla Patterson, self represented Applicant/Appellant QLD Fire and Rescue Services for the Respondent