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

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

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

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

PARTIES:

MYLES LEONARD parry

Appellant

v

MAYFIELD HOLDINGS (QLD) PTY LTD

Respondent

FILE NO/S:

D24/05

DIVISION:

Civil Jurisdiction

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act

ORIGINATING COURT:

Gympie

DELIVERED ON:

2 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2006

JUDGE:

Dearden DCJ

ORDER:

appeal AGAINST SENTENCE IS DISMISSED. 

APPEAL WITH RESPECT TO THE REFUSAL TO GRANT COSTS IS GRANTED.  ORDER THAT THE RESPONDENT PAY THE APPELLANT’S COSTS FIXED AT $750 WITHIN 6 MONTHS OF THE DATE OF THIS ORDER, IN DEFAULT LEVY AND DISTRESS.

CATCHWORDS:

APPEAL – Appeal Against Sentence – Manifestly Inadequate

Building and Other Legislation Amendment Act 2002

Fire and Rescue Service Act 1990

Justices Act 1886

Penalties and Sentences Act 1992

Cases cited:

R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219

York v The Queen [2005] 79 ALJR 1919

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

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

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

House v The King (1936) 55 CLR 499

R v Prentiss [2003] QCA 34

Hogg v Offshore Holdings Pty Ltd Unreported, Cairns Magistrates Court, 19 October 2004, Spencer M

Evans v Niamalvi Pty Ltd Unreported, Goondiwindi Magistrates Court, 8 November 2004, Barbeler M

Fire and Rescue v Stewart Consolidations Pty Ltd, Unreported, Southport Magistrates Court, 1 July 2004, Costello M

QFRS v Hotel and Hospitality Pty Ltd Unreported, Cunnamulla Magistrates Court, 18 May 2005, Costello M

Pointing v Garry A Taylor Pty Ltd Unreported, Cunnamulla Magistrates Court, 9 November, 2004, Cridland, M

Hogg v Offshore Holdings Pty Ltd Unreported, Cairns Magistrates Court, 19 October 2004, Spencer M

COUNSEL:

Mr Gardner for the appellant

SOLICITORS:

Crown Solicitor for the appellant

Mr N Mayfield, Director, appeared in person on behalf of the respondent

  1. [1]
    This is an appeal by the complainant/appellant Myles Parry asserting that the penalty imposed on the defendant/respondent, Mayfield Holdings (Qld) Pty Ltd for a breach of s 104FA of the Fire and Rescue Service Act 1990 (FRSA), in the Gympie Magistrates Court on 2 December 2005, was manifestly inadequate.
  1. [2]
    The respondent pleaded guilty before the learned Magistrate and was fined $1,500, allowed six months to pay and no conviction was recorded. The learned Magistrate declined to make an order as to costs[1].

Grounds of Appeal

  1. [3]
    The appellant’s outline of submissions[2] asserts that the fine imposed by the Magistrates Court was:
  1. (a)
    manifestly inadequate;
  1. (b)
    less than 0.05% of the maximum;
  1. (c)
    outside the range of penalties imposed by Courts of like jurisdiction for the same offence; and
  1. (d)
    [not reflective of] the need for personal deterrence or general deterrence on owners of budget accommodation.
  1. [4]
    Mr Gardner of counsel, who appeared for the appellant, conceded that the reference (b) above to the fine being “less than 0.05% of the maximum” was mathematically incorrect, but noted that the fine imposed ($1,500) was 4% of the applicable maximum ($37,500)[3].

Legislation

  1. [5]
    Part 9A of the Fire and Rescue Service Act 1990 was inserted into that Act in 2002 as a result of the Building and Other Legislation Amendment Act 2002 (BOLA).  That amending legislation introduced a new regime for building fire safety for budget accommodation buildings, and the obligation to prepare a Fire Safety Management Plan (FSMP) became mandatory, after a 12-month period of grace, upon all owners of a “budget accommodation building”, effective from 1 July 2003[4]. 

Facts of the Offence

  1. [6]
    The respondent purchased the relevant premises, then known as the Railway Hotel, comprising a two-storey building of wooden construction with an iron roof, in May 2004[5].  The hotel was classed as a “budget accommodation building” for the purposes of the FRSA and was therefore subject to the provisions of Part 9A of the FRSA, and was classified as a “class C building” by the Fire Service which meant that its construction had minimal fire resistance[6].
  1. [7]
    On 11 August 2004, the respondent was advised in writing by the Queensland Fire and Rescue Service (QFRS) that the relevant premises had “not received a final inspection for it to be compliant with BOLA legislation”[7].  I note in passing that the acronym “BOLA” was not explained in this correspondence, which suffered, in my view, from rather oblique and obscure drafting.  A subsequent letter from QFRS dated 14 September 2004[8] elucidated the meaning of the acronym “BOLA” to mean the Building and Other Legislation Amendment Act 2002.  That letter was also replete in acronyms[9].  Although this letter did explain the derivation of the acronyms it could and should have been drafted in a far more “user-friendly” and “plain English” fashion.  The correspondence did set out, although very poorly drafted, the obligation for an FSMP, said to be required “if the accommodation plus private residence section exceeds five …”[10].  It is implicit (but certainly not explicit) in the letter that the reference to “five” is apparently a reference to five occupants, although that is never specifically stated.
  1. [8]
    On 13 August 2004 the respondent forwarded a letter to the QFRS advising that “This work has been carried out at the Railway Hotel, Gympie” and enclosing copies of paid receipts from Cooloolah Fire Protection Service and John Buckley Electrical in respect of the work that had been undertaken (the installation of smoke alarms, emergency and exit lights and purchase of fire-fighting equipment[11]).
  1. [9]
    An inspection of the respondent’s premises was carried out on 23 September 2004 by Mr Pamenter and the FSMP was unable to be produced[12].  On 9 December 2004 QFRS issued a commissioner’s notice pursuant to s 104G of the FRSA requiring the preparation of an FSMP by 7 January 2005[13].  This notice required the respondent to remedy the contravention (the failure to prepare a FSMP) before 7 January 2005.
  1. [10]
    On 20 December 2004, Dennis Pamenter, QFRS Safety Assessment Officer, wrote again to the Railway Hotel advising that an inspection would be conducted on 5 January 2005 following up on the requirements of the maintenance inspection report conducted on 23 September 2004. That letter enclosed an example of a FSMP and required the respondent to produce specified records in relation to building fire safety and the FSMP[14].
  1. [11]
    On 5 January 2005, Mr Pamenter from QFRS visited the premises to ascertain progress, but was only able to speak with a staff member at the premises who advised (after speaking with Ms Mayfield) that “any necessary documentation had already been sent to the Fire Service”[15].
  1. [12]
    The next contact by the QFRS was on 11 March 2005 when Fire Officer Schneider attended at the premises and spoke with a staff member who said that Ms Mayfield (who was the nominee of the Railway Hotel) was not available and that she (the staff member) was managing the premises in Ms Mayfield’s absence. Fire Officer Schneider asked to see the FSMP and was taken to the office where the acting manager showed Fire Officer Schneider a folder containing a blank copy of an example of an FSMP, but no complete or current FSMP was produced at that time[16].
  1. [13]
    On 17 March 2005, Fire Officer Schneider received a facsimile, apparently under the hand of Kaye Mayfield, authorising Mr Neville Mayfield to “act for the company [Mayfield Holdings (Qld) Pty Ltd] regarding matters dealing with the Railway Hotel, Gympie”[17].
  1. [14]
    On 19 April 2005 Fire Officer Schneider rang the Railway Hotel and spoke with a person who identified himself as Mr Mayfield. Fire Officer Schneider was advised that the FSMP had not been completed, although Mr Mayfield acknowledged that the respondents had been sent an example of one some time earlier[18].  Fire Officer Schneider advised Mr Mayfield of the importance and implications of the FSMP and advised him further of the details of s 104FC of the FRSA, which sets out in detail what is required in the FSMP, and Fire Officer Schneider then couriered an example of an FSMP to the Railway Hotel[19].
  1. [15]
    As Mr Enders (who appeared for the complainant/appellant at the Magistrates Court proceedings) advised that Court:

“The idea behind a Fire Safety Management Plan is that it is designed to structure and regulate correct maintenance procedures and set out programs for the ongoing maintenance of prescribed fire safety installations such as extinguishers, early warning systems, emergency lighting, that type of thing; all the things that aid in first attack on fire and also safety for residents, and also for the training of residents or staff in evacuation procedures in the event of a fire.  The object is thus to ensure that early warning systems and systems assisting the safe and timely evacuation of residents and staff operates correctly and that persons within the premises who are required to evacuate know how to evacuate premises safely and quickly in an emergency.[20]”

  1. [16]
    As Mr Enders also clearly advised the Court, the implication of not having a correct FSMP is that “occupant and staff safety in those particular premises may be severely compromised, possibly resulting in another tragedy of Childers’ …”[21].
  1. [17]
    Subsequently a complaint and summons was taken out against both Kaye Mayfield (an executive officer of the respondent) and the respondent itself, on 5 August 2005.  Both complaints proceeded by way of pleas of guilty in the Gympie Magistrates Court on 2 December 2005.  The original complaints alleged non-compliance between 10 August 2004 and 19 April 2005, but both complaints were subsequently amended by agreement before the learned Magistrate on 2 December 2005 to read (relevantly) that the non-compliance occurred between “23 September 2004 and 19 April 2005, excluding 9 December 2004, up to and including 7 January 2005.”
  1. [18]
    It appears therefore that the basis on which the respondent came to be sentenced was a failure to have a plan compliant with s 104FC of the Fire and Rescue Service Act 1990 for a period of just under six months. 
  1. [19]
    The basis on which the sentence proceeded, it would seem, is that although it was accepted that the respondent had undertaken the necessary work to install the appropriate smoke alarms, exit signs, fire extinguishers etc the mandatory obligation to prepare a FSMP was not complied with until (at the earliest) 19 April 2005. It is not at all clear as to exactly when the compliant FSMP was prepared, but it was accepted by the prosecution that as of the date of sentence (2 December 2005) “a plan for this premises [was] now in place” although “unfortunately due to staff shortages and other constraints on [fire service officers the fire service hadn’t] been able to get back there [the respondent’s premises] since the inspection in March [2004][22].”  No previous convictions were alleged against the respondent[23].
  1. [20]
    Mr Doolan, the solicitor who appeared for the respondent at the Magistrates Court proceedings, but not in the appeal in this Court (Mr Mayfield appeared personally in this court on behalf of the respondent company, of which he is a director) made the point that although his client had undertaken “having the lighting put in, having the smoke alarms installed [and spending] … something like four and a half, $5,000,” and consequently Mr and Mrs Mayfield thought that they had basically complied, the respondent had not put the information “in a format that complied with the Fire Management Plan”[24].
  1. [21]
    Mr Doolan stressed that once Fire Officer Schneider had, in March 2004, couriered an example of a Fire Management Plan to the respondent, then the plan was prepared[25], although the precise date of the preparation of the plan was not specified by Mr Doolan.  Mr Doolan argued that his client’s non-compliance equated “to about five months”[26], although on my calculations the non-compliance period was a shade under six months.

Penalty in the Magistrates Court

  1. [22]
    After addressing in some detail the issues which distinguished the respondent’s case from various comparatives which had been placed before the learned Magistrate by Mr Enders, who appeared for the appellant, Mr Doolan submitted that his client was always intending to (and had) pleaded guilty, the failure to prepare the FSMP, although acknowledged, did not mean that the respondent had failed to install early warning, emergency lighting and other such obligatory fire safety requirements, and therefore any fine imposed should be “somewhere at the lower end of the scale”[27].  The penalty, as noted above, was a fine of $1,500, allowed six months to pay, with no conviction recorded.

Submissions re Penalty on Appeal

  1. [23]
    Mr Gardner, on behalf of the appellant, submits[28] as follows:

“The learned Magistrate failed to accord sufficient weight to the following matters:

  1. (a)
    the defendant’s obligation to comply with s 104FA;
  1. (b)
    the defendant bought the building in May 2004, 22 months after the obligation to have a FSMP came into existence;
  1. (c)
    the blatant disregard of Fire Officers’ requests for compliance between 11.8.04 and 19.4.05;
  1. (d)
    the fact that the defendant only acted to prepare a FSMP after contact with the Fire Service on 11.8.04, 23.9.04, 9.12.04, 5.1.05, 11.3.05 and 19.4.05;
  1. (e)
    the fact that the defendant’s representative, Mr Mayfield, was the nominee of another hotel in Gympie and was aware of its obligation to comply;
  1. (f)
    that no other corporate defendant in Queensland had been fined less than $6,000 for the offence, four times the fine of the defendant before the Court;
  1. (g)
    the building owned by the defendant was a two-storey old wooden building, with 12 residents;
  1. (h)
    statements made by Mr Mayfield which disclosed:
  1. (i) a belligerent attitude to the significance of the FSMP and to an extent, a lack of remorse;
  2. (ii) in contrast to his own conduct, the seriousness with which other budget accommodation building owners took their obligations.” …

“The learned Magistrate placed too much emphasis on:

  1. (a)
    the defendant’s submissions that the breach was due to “poor communication”;
  1. (b)
    s 104FA-FC squarely places the obligation on building owners to comply;
  1. (c)
    the defendant’s expenditure in installing the fire safety installations which are the subject of separate unrelated statutory obligations;
  1. (d)
    the defendant’s claim he was never appraised of what he had to put in place.  The obligation is set out in s 104FC of the Act;
  1. (e)
    the defendant equating the plan to “a piece of paper.”  The Magistrate used the same expression.”
  1. [24]
    Mr Gardiner correctly notes that although FSRA s. 104FA imposes a maximum penalty of 100 penalty units ($7,500), pursuant to Penalties and Sentences Act s 181B(3), the maximum penalty for a corporation, where the legislation does not specify a maximum penalty for a body corporate defendant separate to an individual, is five times the specified penalty, i.e. in this situation, $37,500.
  1. [25]
    Mr Mayfield, a director of the respondent, appeared without legal representation on the hearing of the appeal. The respondent did not comply with the obligation to provide a formal outline of submissions, but in a letter faxed to the Registrar of the District Court, Gympie on 2 June 2006, Mr Mayfield made the following submissions:

“(1) In the Magistrates Court proceedings the prosecutor referred to four cases, which my solicitor sought to distinguish those cases on their own individual facts.

  1. (2)
    The appellant now seeks to rely on additional cases, which were not raised before the Magistrate, which could have been raised and those cases seem to contain more charges and higher fines.
  1. (3)
    The basis of the appellant’s argument to increase the fines relies on R v Prentiss where the salesman wound back odometers on used motor cars prior to selling them and this involved 34 charges.
  1. (4)
    Whereas Mayfield Holdings Pty Ltd and the director were charged with one charge each, for failing to lodge a Fire Safety Management Plan.
  1. (5)
    The maximum fine that a corporation in the case R v Prentiss could have been fined was $200,000, with a maximum fine for an individual of $40,000.
  1. (6)
    Whereas in this appeal the maximum fine for a company was according to the appellant’s outline $37,500 with an individual fine of $7,500.
  1. (7)
    The Magistrate … gave fines which were within the range according to R v Prentiss.”
  1. [26]
    There has, to date, been no appellate decision either of the District Court or of the Court of Appeal in respect of penalties under FRSA s 104FA. The comparative sentences, therefore, urged upon the learned sentencing Magistrate in this case, and subsequently upon this Court upon appeal, are, at best, a guide as to how judicial officers in the Magistrates Court have approached the sentencing discretion under this or similar legislation, but certainly do not provide any binding authority on the appropriate exercise of the sentencing discretion by any individual Magistrate pursuant to FRSA s 104FA, nor of course do they bind this court in the exercise of its appellate jurisdiction.
  1. [27]
    Mr Gardner, on behalf of the appellant, conceded that the appeal before this Court, asserting as it does that the Magistrate’s penalty was “manifestly inadequate” was subject to the principles relating to Attorney-General’s appeals as set out in R v Melano[29]and further elucidated in subsequent decisions in the Court of Appeal[30].  In R v Dullroy and Yates, ex parte Attorney-General (Qld)[31], White J set out a useful summary to the appellate approach in Queensland in respect of an appeal by a  prosecuting authority (i.e. “an Attorney-General’s appeal at the Court of Appeal level”):

“[28]The approach by this court to an Attorney-General’s appeal was laid down in R v Melano, ex parte Attorney-General [1995] 2 Qd R 186 (Fitzgerald P, Davies JA and Lee J) and has been acted upon since.  The court said at 189:

‘While the present power of the Court on an appeal by the Attorney-General is very widely expressed, it must be borne in mind that an ‘unfettered discretion [to] vary’ is an unfettered discretion either to do so or to decline to do so.’

Furthermore, the exercise of the discretion, wide as it is, must be informed by the inherent limitation that the power may only be exercised for the purpose for which it was given and the application of relevant sentencing principles set out in the Penalties and Sentences Act 1992.  The court may only vary a sentence in order to impose one which, as to the court, seems proper, s 669A(1).  In Melano this court endorsed at 189 what was said by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 612:

‘As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors, it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.’

It went on,

‘Unless the sentencing judge has erred in principle, either because an error is discernable or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be “proper” … Variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate …’

[29]It was there acknowledged that the application of s 669A(1) is generally consistent with the established principles relating to appeals against discretion, House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-5.  This was said to be so largely because of the discretionary nature of the original sentencing process.  Accordingly, the court concluded at 190:

‘Support for the view that, ordinarily, this Court should not allow an appeal under s 669A(1) unless the sentence is outside the sound exercise of the sentencing judge’s discretion is to be found in factors that are material to the exercise of the Court’s discretion.  For example, an appeal against sentence by the Attorney-General ‘has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed’ … And a sentencing judge, who has seen the accused, perhaps the witnesses and heard oral evidence, ‘is uniquely well placed … to exercise a discretion’.’

It was not submitted before us by the Attorney-General that Melano should be revisited. 

[30]Finally, before turning to the facts of these appeals the relevant provisions of the Penalties and Sentences Act 1992 need to be kept in mind. The principles which must govern sentences imposed in Queensland (subject to the exceptions relating to children and Island Courts in s 6) are to be found in s 9(1) which provides:

‘9(1)    The only purposes for which sentences may be imposed on an offender are-

  1. (a) to punish the offender to an extent or in a way that is just in all the circumstances; or
  2. (b) to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or
  3. (c) to deter the offender or other persons from committing the same or a similar offence; or
  4. (d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
  5. (e) to protect the Queensland community from the offender; or
  6. (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e)’.”
  1. [28]
    In R v Sitczenko ex parte Cth DPP[32], Keane JA held that the Court of Appeal in respect of appeals under Criminal Code s 669A(1) (an analogue provision to the right of a complainant aggrieved by a decision of the Magistrates Court to appeal against sentence[33]) “is required to undertake two tasks.  The first of these tasks is to determine whether or not an error has occurred in the exercise of the discretion possessed by the learned sentencing Judge.  One way to demonstrate such an area is to demonstrate that the sentence imposed was manifestly inadequate (R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, 189; York v The Queen [2005] HCA 60 [66]; [2005] 79 ALJR 1919, 1931)[34]; and “… once an error has been identified … to exercise the sentencing discretion afresh and to impose such sentence as to the Court seems proper”[35].  In R v Mladenovic, ex parte Attorney-General[36], McMurdo P succinctly summarised the applicable law to be “… that despite McHugh J’s observations in York v The Queen [2005] 79 ALJR 1919, 1925, the appellant must establish error in the exercise of the sentencing Judge’s discretion (here, that the sentence is manifestly inadequate) before this Court can intervene and re-exercise the sentencing discretion.  This approach is consistent with the observations of Callinan and Heydon JJ in York [2005] 79 ALJR 1919, 1931 and with White J’s observations in R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219”[37].
  1. [29]
    As it was put very succinctly in R v Melano[38], the question is whether the sentence appealed against was “outside the sound exercise of the sentencing [court’s] discretion.”

Comparable Cases

  1. [30]
    It is useful, at this stage, to examine in a tabulated format the comparable cases relied upon in the Magistrates Court proceedings and/or on this appeal.

Name

Date

Court

Plea/Trial

Judicial Officer

Counts

Evans v Niamalvi Pty Ltd and Henderson & Shakespeare

8 November 2004

Goondiwindi Magistrates Court

Trial

Barbeler M

1 (FRSA s 104FA)

Penalty

Niamlvi Pty Ltd fined $6,000, ordered to pay $61.20 costs of court and $750 professional costs, in default levy and distress.  No conviction recorded, allowed 2 months to pay.

Comments

Corporate defendant was convicted of one count under FRSA s 104FA at the conclusion of a two-day summary trial.  The non-compliance period was 14 months (but there was a one-year grace period granted from the commencement of FRSA s 104FA on 1 July 2002 (expiring 30 June 2003).

The premises involved were the Victoria Hotel, Goondiwindi, a “budget accommodation building” at 81 Russell Street, Goondiwindi.

Name

Date

Court

Plea

Judicial Officer

Counts

Queensland Fire and Rescue Service v Hotel and Hospitality Pty Ltd

18 May 2005

Cunnamulla Magistrates Court

Guilty

Costello M

1 count FRSA s 104 FA (Fire Safety Management Plan requirement) and 1 count FRSA s 104D (prescribed fire safety installation requirements)

 

Penalty

Convicted and fined $6,500; ordered to pay court costs of $787 in default levy and distress, allowed 9 months to pay.

Comments

The defendant company owned premises known as the Club Hotel, Louise Street, Cunnamulla, a single-storey building of wood and brick construction roofed with iron.  Period of non-compliance with both the FSMP and the prescribed fire safety installation equipment was at least 8 months, with final compliance still not complete as at the date of the plea.

Name

Date

Court

Plea

Judicial Officer

Counts

Queensland Fire and Rescue Service v Caysand No. 110 Pty Ltd and Caysand No. 121 Pty Ltd

14 December 2004

Innisfail Magistrates Court

Guilty – (prepared for trial but late plea)

Sarra M

1 count FSA s 104FA (on 1st complaint), multiple counts re FRSA breaches on 2nd complaint

Penalty

1st complaint – fined $8,000; 2nd complaint – fined $3,000, in default levy and distress and ordered to pay $1,183.37 costs, six months allowed to pay.  No convictions recorded.

Comments

Relevant legislation commenced 1 July 2002, Fire Safety Kit delivered to defendant 25 September 2002, request for Fire Safety Management Plan August 2003, Fire Safety Management Plan prepared November 2003, full compliance with prescribed Fire safety installation requirements April 2004.

The premises were the Garradunga Hotel, Garradunga Road, Garradunga, a budget accommodation building.  Non-compliance with FSMP 19 July-27 August 2003.

Caysand No. 110 Pty Ltd pleaded guilty to one count; Caysand No. 121 Pty Ltd pleaded guilty to 6 counts.  The Gurrandunga Hotel was built in 1888, rebuilt in 1929, is a wooden hotel with a corrugated iron roof and has seven bedrooms and is a “budget accommodation” building.  Other offences against Caysand No. 121 included blocking the path of travel to an exit, failing to provide adequate instructions to persons working or residing in a building in the event of fire, failure to produce maintenance records for fire safety equipment, failure to ensure fire exit door opens outwards, non-compliance emergency lighting and early warning systems remedied only in April 2004.

Name

Date

Court

Plea

Judicial Officer

Counts

Pointing v Garry Taylor and Garry A Taylor Pty Ltd

9 November 2004

Cunnamulla Magistrates Court

Guilty

Cridland M

1 count

Penalty

Fined $6,500, ordered to pay $61.20 costs of Court and $1,000 professional costs, in default levy and distress allowed 3 months to pay.

Comments

Warrego Hotel, 9 Louise Street, Cunnamulla, a two-storey timber, brick and concrete building, classified as “budget accommodation”.  Premises inspected by the fire service on 13 August 2003 and plan finally prepared in “the last few days” before sentence on 9 November 2004, being non-compliance of approximately 16 months.

The following decisions were not placed before the sentencing Magistrate but were referred to and relied upon on appeal in the District Court:

Name

Date

Court

Plea

Judicial Officer

Fire and Rescue v Stewart Consolidations

Pty Ltd

1 July 2004

Southport  Magistrates Court

Plea of guilty on morning of trial

 

Costello, M

Counts

FRSA s 104FA (failure to prepare a safety management plan), FRSA s 104FB(3) (failure to ensure the current safety management plan was implemented, FRSA s 104G (failure to comply with a notice by the Fire Services Commissioner)

Penalty

Convicted and fined $10,000 on each of the three offences and ordered to pay costs of $1,627 in default levy and distress, allowed six months to pay. 

Comments

The premises were the Sunset Strip Budget Resort, a 45-year-old brick building providing “budget accommodation” on the Gold Coast.  Legislative obligation commenced 1 July 2003, premises inspected 23 July 2003, revealing no emergency warning system, deficiencies in the emergency lighting, no Fire Safety Management Plan, non-compliance continued (in part at least) effectively to the date of sentence (1 July 2004) with (at that date) “still an ongoing safety issue with respect to [the] premises.” 

Name

Date

Court

Plea

Judicial Officer

Counts

Department of Fire and Rescue Services v Hurst

18 August 2004

 

Brisbane Magistrates Court

Guilty

McLauglin M

Multiple

Penalty

Fined $15,000 in respect of each group of offences in respect of each of the two Spring Hill buildings, and $10,000 in respect of the group of offences for the Woolloongabba building; in default six months (re Spring Hill building charges) and four months (re Woolloongabba building charges).  Convictions recorded. Ordered to pay professional costs of $1,000 plus $62 costs of Court within six months.

Comments

Personal defendant pleading guilty to multiple offences involving three separate boarding houses, two in Spring Hill which were substantial three-storey buildings housing 40 or 50 occupants, and a smaller building in Woolloongabba housing nine occupants in a two-storey building.  Multiple complaints related to emergency evacuation lighting, evacuation plans, testing of equipment. 

Name

Date

Court

Plea

Judicial Officer

Hogg v Offshore Holdings Pty Ltd

19 October 2004

Cairns Magistrates Court

Guilty

Spencer M

Counts

4 counts of failure to have a Fire Safety Management Plan (FRSA s 104FA 1 July-15 August 2003), 4 counts of failure to implement a current Fire Safety Management Plan by failing to install emergency lighting (FRSA s 104FB(iii) 1 July - 4 December 2003) and 1 count re locked and damaged front door (s 9(4) building, Fire Safety Regulation 1991) and 1 count (15 August 2003) of failure to produce a record of the fire instructions (s 12(2) of the Building Fire regulation).

Penalty

Defendant fined $15,000 in total (for 10 offences) in default levy and distress, plus costs of $1,000, in default levy and distress, allowed three months to pay.

Comments

The premises were known as the Belair Hostel at 155 Esplanade, Cairns comprising four high-set Queenslander style buildings used as backpacker accommodation.  The buildings accommodated approximately 107 persons in total.  Period of non-compliance was (re Fire Safety Management Plan) six weeks. 

Basis of Magistrate’s Decision

  1. [31]
    It is clear that in imposing the sentence, the learned Magistrate was cognisant of the defendant’s obligations to comply with FRSA s 104FA and the relevant time frames for compliance, both generally (in terms of the legislative framework) and specifically (in terms of the defendant’s actual delay in preparing the required FSMP).
  1. [32]
    In my view it could not be said that the learned Magistrate was obliged to give any special weight to any of the factors outlined in paragraph 8 of the appellant’s outline of submissions, except in a global sense. In particular, the learned Magistrate was not bound by (although clearly entitled to be informed by) fines imposed by fellow Magistrates in respect of corporate defendants convicted of the same offence.
 
  1. [33]
    On the other hand, the learned Magistrate clearly adverted to:
  1. (a)
    the early plea of guilty;
  1. (b)
    the compliance by the respondent with the fire safety installation and equipment obligations of the legislation;
  1. (c)
    the ultimate compliance (albeit delayed) by the defendant with the requirement to complete a FSMP;
  1. (d)
    the lack of previous convictions of the defendant;
  1. (e)
    the fact that the defendant ran another hotel which did have a compliant FSMP;
  1. (f)
    the purposes of the relevant legislation; and
  1. (g)
    the practical necessity for the implementation of a FSMP (i.e. to avoid another “Childers tragedy” type scenario).

Appellate Considerations

  1. [34]
    Examining those comparable cases that were placed before the learned sentencing Magistrate in this matter, it appears that the fine of $6,000 imposed in Evans v Niamalvi Pty Ltd[39] involved a sentence after a two-day trial where the non-compliance period was in the order of 16 months.  The fine of $6,500 imposed in QFRS v Hotel and Hospitality Pty Ltd[40] involved a matter where, even as at the date of entering the plea of guilty, the defendant had not provided a compliant FSMP pursuant to FRSA s 104FA, nor had the defendant complied with the relevant statutory obligations in respect of re-installation of fire safety equipment.
  1. [35]
    In QFRS v Caysand No. 110 Pty Ltd, the fine imposed of $8,000 also reflected a substantial period of non-compliance of some months with much of that period also involving non-compliance by the defendant with the fire safety equipment installation obligations of the legislation.  In Pointing v Garry A Taylor Pty Ltd[41] the fine of $6,500 was imposed in the context of non-compliance over a period of some 16 months with compliance only finally being completed “in the last few days” prior to the date of sentence.
  1. [36]
    These following cases were cited in the appeal, but were not placed before the learned sentencing Magistrate at first instance. In Fire and Rescue v Stewart Consolidations Pty Ltd there were three separate charges (one of which was an offence under FRSA s 104FA).  Each brought a fine of $10,000.  However, this was a plea of guilty on the morning of trial, and the non-compliance had continued, in part at least, for almost 12 months up to the date of the entry of the plea.
  1. [37]
    In Department of Fire and Rescue Services v Hurst, three global fines (for multiple offences at separate buildings) of $15,000, $15,000 and $10,000 (rerspectively) were imposed for a personal (not corporate) defendant who was the owner of three separate boarding houses in Spring Hill (two buildings) and Woolloongabba, (one building) housing in total more than 100 residents.  There were further complicating factors in the case including the defendant’s psychiatric depressive illness, the wide range of various offences pursuant to the FRSA, and the large number of occupants of the relevant buildings.  In Hogg v Offshore Holdings Pty Ltd[42] the plea of guilty was entered to 10 separate counts, four of which related to a failure to have a FMSP for each of four separate buildings housing backpackers on a site on the Cairns Esplanade.  The single penalty of $15,000 in respect of all 10 counts equates, as outlined above, to a penalty of $1,500 per count.
  1. [38]
    In the circumstances, there are clearly factors which serve to distinguish all of the comparatives, each of which in any event are single magistrate decisions of the Court from which this appeal originates. The range which this examination of the comparatives reveals indicates, in my view, that the fine imposed by the learned Magistrate in the matter under appeal was at the bottom of the range, and a more substantial fine, depending on the defendant’s individual circumstances and the facts of the offence(s) may well be applicable in respect of other matters which come before the Court in the future.
  1. [39]
    The fine imposed was, however, quite substantial and was not, as the appellant’s outline of submission originally asserted, less than 0.05% of the maximum corporate financial penalty. Mr Gardner, who appeared for the appellant, conceded in oral submissions that the fine was, in fact, 4% of the corporate maximum penalty[43].  In any event, however, such formulistic approaches to penalties are not, in my view, of any particular assistance in assessing whether or not a particular penalty which has been imposed could be said to be “manifestly inadequate”.
  1. [40]
    I consider that the imposition of a substantial penalty, which in this case followed well after actual compliance with the defendant’s statutory obligations, achieves adequately the aims of both personal and general deterrence. I do not believe that anything said by the Court of Appeal in R v Prentiss[44] conflicts with this view as to deterrence. 
  1. [41]
    Interestingly, although Mr Gardner for the appellant indicated that the appellant was seeking, effectively, to utilise this appeal as a vehicle to establish a tariff of substantial fines for breaches of this legislation, he conceded that the sentence in Hogg v Offshore Holdings Pty Ltd[45] (which if the global fine imposed of $15,000 was divided between the 10 applicable counts, four of which were for FRSA s 104FA offences, results in a penalty per count of $1,500) was effectively the same penalty imposed for a single count in the current appeal before this Court.  It is clearly arguable that Hogg v Offshore Holdings Pty Ltd, which involved four separate buildings accommodating some 107 occupants, was a significantly more serious matter, factually, than the circumstances of this current appeal.  It can, therefore, in my view, clearly be seen as representing the bottom of a range which relevantly appears to extend as far as a fine of $10,000 imposed for a similar offence under FRSA s 104FA[46], and involves a penalty congruent with the penalty the subject of this current appeal.
  1. [42]
    Ultimately, in weighing a wide range of relevant factors, and without placing undue weight on any factor, either aggravating or mitigatory, the learned Magistrate formed a view on penalty which, in my view, was not “outside the sound exercise of the sentencing [Magistrate’s] discretion”[47].  As the Court observed in R v Maleno[48] “a sentencing [judicial officer] … has an extremely wide discretion to be exercised within the limits of the principles which are applicable” and “unless the sentencing [judicial officer] has erred in principle, either because an error is discernible or demonstrated by manifest inadequacy or excessiveness, the sentence he or she has imposed will be ‘proper’.”

Conclusion

  1. [43]
    As indicated above, I do not consider that the Magistrate’s sentencing discretion can be said to have miscarried, and neither consequently nor otherwise could it be said that the sentence was manifestly inadequate. The appeal on sentence is therefore dismissed.

Costs

  1. [44]
    The learned Magistrate, when costs were sought by the appellant’s solicitor, responded by saying: “I exercise my discretion not to award costs.” I accept that the complainant/appellant’s counsel was not given any opportunity by the learned Magistrate to articulate a submission in respect of costs, nor was any submission sought by the learned Magistrate from the defendant’s solicitor. Submissions should have been invited by the learned Magistrate prior to any decision being made involving the exercise of the Magistrate’s discretion as to costs. In the circumstances, there has been a clear lack of procedural fairness and I come to the inevitable conclusion that the learned Magistrate’s discretion as to costs has miscarried.
  1. [45]
    The review of the comparable decisions contained in this judgment indicates that costs (ranging between $750 and $1,627) have been awarded in all other similar matters which have proceeded as pleas of guilty.
  1. [46]
    Given (as submitted on behalf of the appellant):
  1. (a)
    the relevant statutory regime;
  1. (b)
    comparable costs where costs have been awarded;
  1. (c)
    the extent of costs incurred by the prosecution; and
  1. (d)
    the principle that costs are compensatory rather than punitive[49]

it is, in my view, clear that costs should have been awarded, even on a plea of guilty, by the learned sentencing Magistrate.

  1. [47]
    I set aside the learned Magistrate’s decision with respect to the issue of costs only and order that the defendant pay the complainant’s costs, fixed at $750, within a period of six months, in default levy and distress.

Orders

  1. [48]
    The appeal against sentence is dismissed. The appeal with respect to the refusal to grant costs is granted and I order that the respondent pay the appellant’s costs fixed at $750 within six months of the date of this order, in default levy and distress.
  1. [49]
    I will hear the parties in respect of the costs of the appeal.

Footnotes

[1]  Sentence T p 3

[2]  Appellant’s outline of submissions p 1

[3] Appeal hearing T p 5

[4]  Sentencing submissions T p 4

[5]  Sentencing submissions T p 5

[6]  Sentencing submissions T p 5

[7]  Exhibit 1 (letter Dennis Pamenter, Safety Assessment Officer to Kaye and Nev Mayfield, Railway Hotel, 11 August 2004)

[8] Exhibit 1 (letter Dennis Pamenter, Safety Assessment Officer, QFRS to Railway Hotel, 14 September 2004)

[9] MIR (Maintenance Inspection Report); BAR (Budget Accommodation Report); QFRS (Queensland Fire & Rescue Service); FSMP (Fire Safety Management Plan).  It is acknowledged, of course, that these reasons for judgment are also replete with acronyms, all of them (hopefully) defined and explained!

[10]  Exhibit 1, (letter Dennis Pamenter, Safety Assessment Officer, Queensland Fire & Rescue Service to Railway Hotel, 14 September 2004)

[11] Exhibit 1, (letter Railway Hotel to QFRS, 13 August 2004 & invoices from Buckley Electrical 26/2/2004 & Cooloolah Fire Protection Service, 9/2/2004)

[12] Sentencing submissions T p 5

[13] Sentencing submissions T p 6, Exhibit 1, QFRS Notice by Commissioner s 104G and 0.EN1364- 9/12/2004

[14] Sentencing submissions, T p 6, Exhibit 1, Letter Dennis Pamenter, Safety Assessment Officer QFRS to Railway Hotel 20 December 2004

[15]  Sentencing submissions, T p 6

[16]  Sentencing submissions, T p 6

[17]  Sentencing submissions T p 6 and Exhibit 1 (fax - the Railway Hotel to QFRS 17 March 2005)

[18]  Sentencing submissions, T p 6

[19] Sentencing submissions T p 6

[20]  Sentencing submissions, T p 7

[21]  Sentencing submissions, T p 7

[22] Sentencing submissions,

[23] Sentencing submissions T p 8

[24] Sentencing submissions, T p 9

[25] Sentencing submissions, T p 9

[26] Sentencing submissions, T p 10

[27] Sentencing submissions, T p 11

[28] Paras 8 & 9, outline of submissions

[29] [1995] 2 Qd R 186

[30] See for example, R v Dullroy and Yates, ex parte Attorney-General [2005] QCA 219; R v Sittczenko, ex parte Cth DPP [2005] QCA 461; R v Mladenovic ex parte Attorney-General [2006] QCA 176

[31] [2005] QCA 219

[32] [2005] QCA 461

[33] Justices Act 1886 s 222 (2)(b) and (c)

[34] R v Sittczenko, ex parte Cth DPP [2005] QCA 461 per Keane JA, paras 25

[35] R v Sittczenko, ex parte Cth DPP [2005] QCA 461 per Keane JA, paras 26

[36] [2006] QCA 176

[37] R v Mladenovic, ex parte Attorney-General [2006] QCA 176 per McMurdo P at para 15

[38] [1995] 2 Qd R 186, 190

[39] Unreported, Goondiwindi Magistrates Court, 8 November 2004, Barbeler M

[40] Unreported, Cunnamulla Magistrates Court, 18 May 2005, Costello M

[41] Unreported, Cunnamulla Magistrates Court, 9 November 2004, Cridland M

[42] Unreported, Cairns Magistrates Court, 19 October 2004, Spencer M

[43] Appeal hearing T p 5

[44] [2003] QCA 34

[45] Unreported, Cairns Magistrates Court, 19 October 2004, Spencer M

[46] Fire and Rescue v Stewart Consolidations Pty Ltd, Unreported, Southport Magistrates Court, 1 July 2004, Costello M

[47] R v Melano ex parte Attorney-General [1995] 2 Qd R 186,190 per Fitzgerald P, Davies JA, Lee J

[48] [1995] 2 Qd R 186,189

[49] Appellant’s outline of submissions, p 6, para 15

Close

Editorial Notes

  • Published Case Name:

    Parry v Mayfield Holdings (Qld) Pty Ltd

  • Shortened Case Name:

    Parry v Mayfield Holdings (Qld) Pty Ltd

  • MNC:

    [2006] QDC 250

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    02 Aug 2006

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lowe v The Queen (1984) 154 CLR 606
1 citation
Jump To
Cite 1 - (1984) 154 CLR 606
R v Dullroy & Yates; ex parte Attorney-General [2005] QCA 219
4 citations
Jump To
Cite 1 - [2005] QCA 219
Cite 2 - [2005] QCA 219
Cite 3 - [2005] QCA 219
Cite 4 - [2005] QCA 219
R v Melano[1995] 2 Qd R 186; [1994] QCA 523
7 citations
Jump To
Cite 1 - [1995] 2 Qd R 186
Cite 2 - [1995] 2 Qd R 186
Cite 3 - [1995] 2 Qd R 186
Cite 4 - [1995] 2 Qd R 186
Cite 5 - [1995] 2 Qd R 186
Cite 6 - [1995] 2 Qd R 186
Cite 7 - [1995] 2 Qd R 186
R v Mladenovic; ex parte Attorney-General [2006] QCA 176
4 citations
Jump To
Cite 1 - [2006] QCA 176
Cite 2 - [2006] QCA 176
Cite 3 - [2006] QCA 176
Cite 4 - [2006] QCA 176
R v Prentice [2003] QCA 34
2 citations
Jump To
Cite 1 - [2003] QCA 34
Cite 2 - [2003] QCA 34
R v Sittczenko; ex parte Director of Public Prosecutions (Cth) [2005] QCA 461
5 citations
Jump To
Cite 1 - [2005] QCA 461
Cite 2 - [2005] QCA 461
Cite 3 - [2005] QCA 461
Cite 4 - [2005] QCA 461
Cite 5 - [2005] QCA 461
York v The Queen [2005] HCA 60
1 citation
Jump To
Cite 1 - [2005] HCA 60
York v The Queen (2005) 79 ALJR 1919
4 citations
Jump To
Cite 1 - (2005) 79 ALJR 1919
Cite 2 - (2005) 79 ALJR 1919
Cite 3 - (2005) 79 ALJR 1919
Cite 4 - (2005) 79 ALJR 1919

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Anderson v Kerslake [2013] QDC 2622 citations
BJI v NRS [2010] QDC 4472 citations
Board of Professional Engineers Queensland v Jutte [2009] QDC 1704 citations
Chisholm v Wanklin [2009] QDC 2863 citations
Demaj v Hall [2009] QDC 2231 citation
Demaj v Hall [2009] QDC 2782 citations
Edalaty v Caie [2009] QDC 3012 citations
Hess v McKeown [2009] QDC 3022 citations
Hill v Lette [2010] QDC 1362 citations
JRB v Bird [2009] QDC 2772 citations
Purcell v Bateup [2009] QDC 4302 citations
Queensland Police Service v Gregory [2010] QDC 3882 citations
Smith v Benson [2010] QDC 1892 citations
TDO v Sperling [2009] QDC 2803 citations
Yassir v Bone [2010] QDC 112 citations
1

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