Demaj v Hall[2009] QDC 223

[2009] QDC 223

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE IRWIN

No 2257 of 2008

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 Court at Brisbane on 23 July 2008.

On that date the appellant who represented himself pleaded guilty to 23 offences contrary to section 9 subsection 1 of the Security Providers Act 1993 on the basis that he carried out the functions of a security provider when he did not hold the appropriate licence. Each charge was in the same terms and had the same particulars. The only difference was the date of the alleged offences as the respondent was charged for a separate offence for each day that he carried out those functions over a period of approximately five weeks from the 21st of August 2007 to the 28th of September 2007.

In respect of each charge the particulars were as follows. The respondent carried out the functions of a security provider for reward by being at Centro Toombul Shopping Centre, 1015 Sandgate Road, Toombul, principally for the purpose of maintaining order and guarding property.

The respondent's Security Crowd Controller Licence was refused renewal pursuant to section 21 subsection 1 paragraph (f) of the Security Providers Act 1993 as he was no longer considered an appropriate person to hold a licence. The defendant was convicted on an offence on 16 April 2004. The respondent continued to carry out the functions of a security provider when he no longer held the appropriate licence.

In respect of these offences the Magistrate imposed one penalty pursuant to section 49 of the Penalties and Sentences Act 1992 of $5,000 with a Court costs order of $66.50. The penalties and costs were referred to State Penalties and Enforcement Registry for registration and in default of payment he was ordered to be imprisoned for 60 days. A conviction was recorded.

The offences related to a course of conduct by the respondent of carrying out the functions of a security provider whilst no longer holding an appropriate licence under the Security Providers Act. The facts placed before the learned Magistrate at sentence were as follows:

1. (a)
   On 16 August 2007 Inspectors Demaj and Mellor conducted a security provider compliance check on the premises of the Toombul Centro Shopping Centre;

2. (b)
   Later that day upon referencing the defendant's name against the Office of Fair Trading records it was revealed that the respondent's security officer Crowd Controller Licence was refused renewal on 14 August 2007;

3. (c)
   The licence was refused renewal due to the respondent being no longer considered an appropriate person to hold such a licence as he was convicted of a disqualifying offence on 16 April 2004.

I note that although the outline of the appellant's argument states the nature of the disqualifying offence this information was not particularised nor was it mentioned before the Magistrate therefore neither the Magistrate nor this Court could take it into account in determining the appeal.

4. (d)
   The same day, being 16 August 2007, Inspector Mellor telephoned the respondent at his workplace, Centro Toombul, and directed him to stop working.

This is clearly because he was unlicensed.

5. (e)
   On 27 September, 2007 the respondent was witnessed by Inspector Demaj at Centro Toombul dressed in a security officer uniform appearing to be performing the duties of a security officer;

6. (f)
   On 28 September 2007 Inspectors Demaj and Mellor again attended Centro Toombul and seized time sheets, logbook records and staff rosters from the respondent's employer.

7. (g)
   The documents revealed that the respondent had continued working since his conversation with Inspector Mellor on 16 August 2007.

8. (h)
   The respondent's employer was advised of the situation and immediately terminated the respondent's employment as of 28 September 2007.

1. (i)
   Subsequently, a Notice was served on his employer;

10. (j)
    In response the employer stated that the respondent was employed as a casual security officer from 18 January 2007 to 28 September 2007. The respondent's duties were to maintain security and control of the client's premises and to protect persons and property against crime, threat, fire or hazardous situations and further that he was remunerated for performing these duties;

10. (k)
    A formal record of interview was arranged for the respondent on 26 February 2008 at 10.00 a.m. He did not attend the arranged interview. Subsequent arrangements were made for another time but the respondent has made no attempt to cooperate with the Office of Fair Trading since that time.

I note that this failure to cooperate was not a circumstance of aggravation and the Magistrate did not treat it as such. The effect of the failure to cooperate was that the defendant did not have the benefit of cooperation with the administration of justice as a circumstance of mitigation.

The appellant submitted to the learned Magistrate that a total penalty should be imposed in the vicinity of $12,500 to $15,000 for the 23 counts before the Court in addition to the Court costs. It was also submitted that a conviction should be recorded.

The argument in support of this penalty was that the maximum penalty for breaching section 9 subsection 1 paragraph (a) of the Security Providers Act since 1 July 2007 was 500 penalty units or $37,500 for each offence for a first time offence. Prior to the 1 July 2007 amendments the maximum penalty was 1,000 penalty units or $7,500 per offence.

A table of available comparative sentences by Magistrates for pre-amendment penalties was handed to the Magistrate. This has been attached to an affidavit in support of the Notice of Appeal which has been filed by the appellant. I will refer to those sentences shortly.

The appellant further submitted that the pre-amendment comparatives indicated a range of $2,500 to $3,000 as being adequate for the 23 counts. It was further submitted that when transposed to the amended penalty regime the penalty should be increased five-fold so as to give effect to the amended penalties. It was therefore submitted that a fine in the range of $12,500 and $15,000 was appropriate.

The Magistrate was also provided with a dossier of extracts of the recent legislative amendments to assist him in applying the amended penalty regime and this has also been provided to me. That dossier also included extracts from the explanatory memorandum and the second reading speech of the Minister who introduced the Bill.

I note that this was the respondent's first offence of this nature. The penalty escalates above 500 penalty units for further offences, however these aggravated penalties are not relevant in this case.

Reference was made by the prosecutor before the Magistrate to the appellant's past criminal history however the Magistrate said that this was an entirely different matter which dated from 2003. It does not appear to have been placed before the Magistrate after that comment. It is not referred to by the Magistrate or either party from that point of time.

It is not referred to as an exhibit and it does not form part of the record or submissions before me, therefore like the Magistrate, I disregard it.

The respondent, who was self represented, made submissions on his own behalf in mitigation of penalty after having entered a plea of guilty in relation to each of the charges. He submitted that although he was currently working at a pub as a duty manager, he was on leave due to having been recently affected by an armed robbery incident at this new workplace. He said that he was receiving counselling, but hoped to return to work in two weeks. He also stated that he worked without a licence because he needed the money and that he helps to support his mother who lives in Housing Commission accommodation.

The relevant statement by the respondent about this appears at page 8 of the transcript between lines 15 and 25 and I quote:

"The reason why I did do this, I realise that basically I shouldn't have been working without a licence, but in the current circumstances, I had no job. I was unemployed and basically my mum was at home. She's been in hospital, she's been sick and stuff like that. I basically had to get enough money to kind of support her too."

He advised the Magistrate that his mother did receive a pension.

In his short reasons for imposing the total fine of $5000 for the 23 counts, the Magistrate commenced by stating that the respondent was being sentenced under the new legislation which had increased the maximum penalty fivefold.

He expressly quoted from the Second Reading speech as follows:

"We want to make it tougher for rogue operators to enter the security industry. We will be ensuring that they have ongoing training. They will have a code of conduct to ensure this happens."

He said that this was a factor which he must take into consideration. He also referred to the fact that there were 23 counts. He then said that he didn't want to impose a fine on the respondent that was ruinous. I take this to be a reference to not imposing a penalty that would have a crushing effect on the respondent having regard to his financial situation.

It appears that the Magistrate gave the respondent credit for the effect of the hold-up on him and his role as a dutiful son in helping his mother. He said in relation to this at page 2 of his sentencing remarks, between lines 40 and 45, and I quote:  "I have the Government statement which has been handed up to me. The penalties have been increased five-fold, but I will not be imposing a penalty like 10 to $15,000, I'll keep it down to $5000."

And then on page 3, he returned to the issue of the penalty not having a ruinous effect upon the respondent by saying that the fine would go to SPER who would be writing to him shortly about payment of it. He then went on to say that he suggested that the respondent enter into some payment plan with SPER and I quote:  "Something which will not be too ruinous for you and at home for supporting your mum."

As I've said, a conviction was recorded.

The respondent was not represented on this appeal. He was given notice of the appeal in accordance with an earlier order of this Court. He had not appeared before the Court as required on the occasion when that order was made. He has not appeared today. In the circumstances, I have considered it appropriate to hear the argument of the appellant in his absence.

The appellant submits that the learned Magistrate's order was inadequate as a penalty under a section which allows for a maximum penalty of 500 penalty units per offence since its amendments last year. Reference is made to the fact that prior to those amendments on 1 July 2007, the maximum penalty was 100 penalty units per offence.

It is submitted that the order made by the Magistrate in these circumstances does not reflect the Parliamentary intention of the legislative amendments to the Security Providers Act which were effective from 1 July 2007.

It is submitted that in imposing a fine of $5000 for the 23 counts, the Magistrate erred by giving insufficient consideration to the newly introduced penalty regime and gave excessive consideration to the respondent's personal circumstances.

It is submitted further that the sentence is inadequate because it:

(a)fails to give adequate reflection to the gravity of the offence;

(b)fails to make it clear that the community, acting through the Court, denounces the sort of conduct in which the respondent was involved in;

(c)fails to sufficiently take into account the aspect of general deterrence;

(d)fails to take into consideration the need to protect the public from unlicensed security providers;

(e)fails to give adequate consideration to the purpose of licensing security providers under the Security Providers Act;

(f)fails to reflect the respondent's disregard for the law in carrying out the functions of a security provider whilst not being licensed;

(g)fails to take into account the possibility of compromising the safety and security of patrons and the public by inadequately penalising the respondent for carrying out the functions of a security provider whilst not being licensed.

In oral argument before me, Mr Vize, on behalf of the appellant, places particular stress on the fact that after the respondent had been informed by the inspector that he was to stop working because he was unlicensed, he continued to do so in defiance of that direction in circumstances in which his employer was unaware of the true situation.

Mr Vize also submits that the level of penalty now available is between $10,000 and $12,500 in preference to the submission made in the outline that the fine that should be imposed is in the range of $12,500 to $15,000.

This appeal is brought under Section 222 subsection 2, paragraph C of the Justices Act 1886, which limits the appeal to manifest inadequacy of sentence. The principles governing this appeal are espoused in The Queen v. Melano Ex Parte Attorney-General (1995) 2 Queensland Reports 186 in relation to Attorney-General's appeals under Section 669A of the Criminal Code.

It was there acknowledged that the application of this provision is generally consistent with the established principles relating to appeals against discretion referred to in House v. The King (1936) 5 CLR 499 at 504-5. Section 669A is an analogue provision to the right of a complainant aggrieved by a decision of the Magistrates Court to appeal against sentence.

I refer to the decision of his Honour, Judge Dearden, in Parry v. Mayfield Holdings Qld Pty Ltd (2006) QDC 250 at paragraph 28 to this effect.

It follows from House that before an appellate Court will interfere with the exercise of a sentencing discretion, the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him, mistook the facts or did not take into account some material consideration.

The principle in Melano at page 189 of the joint judgment is that "unless the sentencing Judge had erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be proper."

The Court of Appeal also said at page 190:

"Support for the view that ordinarily this Court should not allow an appeal under Section 669A subsection 1 unless the sentence is outside the sound exercise of a sentencing Judge's discretion is to be found in factors that are material to the exercise of the Court's discretion."  Accordingly as stated by Judge Dearden at paragraph 29 of his decision in Parry v. Mayfield Holdings the question is whether the sentence appealed against was "outside the sound exercise of the sentencing Court's discretion." 

In Mladenovic Ex Parte Attorney-General (2006) QCA 176 the President of the Court of Appeal said at page 15 that the appellant must establish error in the exercise of a sentencing Judge's discretion (here, that the sentence is manifestly inadequate) before this Court can intervene and re-exercise the sentencing discretion.

I also refer to the decision of Justice of Appeal Keane at paragraphs 25 and 26 of The Queen v. Sittczenko Ex Parte Commonwealth DPP (2005) QCA 461 in support of this proposition.

In these circumstances, having regard to the principle in Melano, it is necessary for me to consider both whether or not the Magistrate erred in principle in the exercise of his sentencing discretion either on the basis of discernible error or one that is demonstrated by manifest inadequacy of the sentence.

In addressing this issue it is relevant to consider the comparable sentences which were placed before his Honour with an additional more recent sentence being tendered to me today and marked as Exhibit 1.

In doing so, I bear in mind that the sentences referred to the learned Magistrate did not bind his sentencing discretion and do not bind this Court in the exercise of the appellate jurisdiction. The same can be said of the more recent sentence which has been placed before me this morning although the Magistrate was clearly entitled to be informed by the comparative sentences.

In referring to the table of sentences which was placed before the Magistrate I limit my consideration to those where multiple offences were dealt with by Magistrates, comparable to the number of offences committed by the appellant in this case, or in excess of that number of offences. In doing so it is relevant that these sentences were imposed under the previous sentencing regime where the maximum fine for an offence was $7,500.

Having done so, I agree with the submission on behalf of the appellant that the pre-amendment comparatives indicate a range of $2,500 to $3,000 as being adequate for the counts which the Magistrate had to deal with in the present case, had those counts been dealt with prior to the amendment. I refer to some of the sentences in the comparatives.

In the case of Baker on the 13th of March 2008, the Maroochydore Magistrates Court recorded a conviction and fined the defendant $5,000 for 17 offences against Section 9, subsection 1, paragraph (a) of acting as a security provider whilst unlicensed, and two counts under Section 9, subsection 1, paragraph (b) of holding himself out to act as a security provider. I note that the penalty for both offences is the same. In that case the defendant had performed duties of a crowd controller at a tavern from the 17th of April 2007 to the 12th of May 2007.

I consider that those offences were more serious than the offences here on the basis that the defendant in that case provided his employer with false details of a license number he did not hold and he also provided his employer with a false document purportedly issued by the Queensland Government. There is no suggestion that the respondent did this in the present case, although I do not minimise the seriousness of his omitting to inform his employer that his license was not renewed and therefore impliedly representing to his employer that he had a valid license during the period covered by these offences.

I next refer to the case Mangano in which the Brisbane Magistrates Court, on the 17th of October 2007, sentenced the defendant for 25 counts against Section 9, subsection 1, paragraph (a), and fined the defendant $4,000 whilst recording a conviction. I also regard that case as more serious than the present case because the defendant again used a false license to obtain work.

I note that in that case the Magistrate accepted that unlicensed activities exposed the public to heightened risk as such persons have no training in dealing with difficult patrons. However I consider that that issue is less relevant in the present case due to the fact that the respondent had been licensed up until the time that it had not been renewed. It can therefore be assumed in his favour that he had whatever training was required to carry out those duties prior to that date.

I next refer to the decision on the 15th of October 2007, by Magistrate McLaughlin in  the Ipswich Magistrates Court where the defendant was Fasavalu. In that case the defendant was sentenced for 29 counts against Section 9, subsection 1, paragraph (a), as well as one count each against Section 24 and Section 41, subsection 3 of the Security Providers Act.

He was fined $2,000 for all 31 offences and a conviction was recorded. But in that case the Prosecution submitted a penalty in the lower range, due to the defendant having received a notice to renew license. The Court also gave the defendant a further benefit of doubt for possibly being confused about receiving a notice to renew license after his conviction which was automatically cancelled pursuant to Section 24 of the Security Providers  Act.

On the 8th of January 2007, Magistrate Driscoll, in the Southport Magistrate Court, sentenced Gregory Thomas Smith for 82 offences against Section 9, subsection 1, paragraph (a). In that case the defendant acted as a crowd controller when he knew that his license had been suspended after being charged with an offence of assault occasioning bodily harm. On 82 days over a period of three months he was employed as a crowd controller at a tavern. He was fined $7,000. The facts do not indicate whether a conviction was recorded.

The circumstances of that offence are more similar to this offence, in that like this respondent, the defendant in that case knew that his license had been suspended when he acted as a crowd controller, however, it is more serious because it involves more offences over a longer period of time than in respect of this case.

The final case that I refer to from the table that was provided to the Magistrate is the sentence by Magistrate Gordon in the Brisbane Magistrates Court on 19 July 2006 in which the defendant was Togiapahiva. In that case his Honour sentenced the defendant for 28 counts against Section 9, subsection 1, paragraph (a), to a fine of $2,750, after he entered a plea on the hearing date. No conviction was recorded due to potential damage to his future employment prospects.

In that case the defendant had relied on his employer to lodge application forms for a license. That was regarded by the Magistrate as an excuse but not an explanation. The Magistrate took into account his plea, his age, the fact he had no criminal history and also that he showed remorse. Although the defendant there performed duties over a period of about four and a-half months during 2005, I regard the case as less serious than the present case because of the explanation that the Magistrate took into account in imposing sentence.

Finally I refer to Exhibit 1, which is the decision of Magistrate Morgan in the Beenleigh Magistrates Court on the 30th of April 2009, in the case of Nathan Josef Crowe, in which he recorded a conviction and fined the defendant $15,000. That decision was not placed before the Magistrate in this case because it was given after his Honour's sentence of the respondent. There were 58 offences against Section 9, subsection 1, paragraph (a).

Mr Vize accepts that this is a worse case than the case involving the respondent because the defendant had used a false receipt claiming to his employer that he had paid his license renewal fees to obtain work. No remorse was shown or reasons offered by the defendant who had acted as a crowd controller over a period of about four and a-half months.

The sentencing Magistrate in this case recognised, as I have said, that there had been a five-fold legislative change in the penalty for the offence. He also recognised the reason for that change. He simply said he would not impose a penalty like 10 to 15 thousand dollars, but would keep it down to $5,000. To arrive at a penalty of this nature, although he did not comply with Section 13, subsection 3 of the Penalties and Sentences Act 1992, to state that he took the plea of guilty into account I accept that to impose this penalty he must have done so. Although the failure to refer to the fact that he had taken the plea into account is an error, I consider that the respondent has not been prejudiced by it.

The other factors that appear from the decision to have influenced the Magistrate are that the respondent had been subsequently stressed and terrorised by being the victim of an unrelated robbery offence; that he was a dutiful son looking after his mother; and that he did not want to impose a penalty that is ruinous upon him, including on him at home where he has to support his mother. I also consider that if he has referred to that proposition, the learned Magistrate must have taken into account the respondent's submission that he kept working, although he knew his license had not been renewed because he needed the money, including needing it to support his mother. I would also expect that he would have taken into account, in his favour, the fact that he had no prior convictions of a relevant nature.

In sentencing the respondent to a fine, the Magistrate was obliged to comply with Section 48, subsection 1 of the Penalties and Sentences Act, which provides that if a Court decides to fine an offender then in determining the amount of the fine and the way in which it is to be paid, the Court must, as far as practicable, take into account the financial circumstances of the offender and the nature of the burden, the payment of the fine will be on the offender.

Section 48, subsection 2 then provides that the Court may fine the offender even though it has been unable to find out about the matters mentioned in Section 48, subsection 1. This recognises that in some circumstances a lower penalty may be equally burdensome to one offender with limited financial means as a higher penalty would be to a person with significant financial means and as such there would be a deterrent penalty imposed in either case.

I consider from the manner in which the Magistrate framed his sentencing remarks that he approached the penalty with reference to Section 48, subsection 1 of the Penalties and Sentences Act. In addition in determining whether the penalty is manifestly inadequate, regard must be had to the combined effect of the penalty and to the recorded conviction, which together constitute the sentence.

This follows from the decision of the Queensland Court of Appeal in R -v- Briese, [1997] 92 Australian Criminal Reports 75. I refer in particular to the judgment of Justices Thomas and White at page 77, while noting that Justice Dowsett took a differing view on that point.

Their Honours said that it is impossible to consider the discretion that is involved in section 12 in isolation from the particular sentencing option that is being considered, and it is likewise inappropriate to consider those sentencing options in isolation from the circumstances whether the conviction is recorded or not.

It is the combined effect of the orders which needs to be looked at before the Court decides that a sentence is appropriate. Their Honours did, however, agree with the remarks of Justice Dowsett that the more serious the offence the greater the legitimate public interest in knowing that a person has been convicted of it.

I therefore consider that by recording a conviction the Magistrate was regarding the offences committed by the respondent as serious offences and sending a message to others that this is to be regarded as a serious offence. Notwithstanding this, the Magistrate made no specific reference to the principle of general deterrence which I consider is a particularly relevant factor in this case.

While I do not consider that a five fold increase in the maximum penalty for an offence requires a five fold increase of the penalties imposed under the previous sentencing regime in every case because sentencing is not a mathematical exercise, and each case requires a penalty to be imposed which is objectively appropriate to the individual circumstances of that case, the Magistrate did not refer to the comparative sentences and did not expressly recognise that an increase of the maximum penalty to the extent that has occurred in respect of the Security Providers Act requires the Court to give effect to the legislative intention that such offending is to be treated more seriously by sentencing Courts in future.

At page 2 there is a general statement that the legislation is consistent with the Government's priority to protect and enhance community safety through implementing strategies which contribute to safe communities, and that the aim was for a nationally consistent approach to licensing, probity and character checks which will ensure that rogue elements do not flock to the State with the lowest standards. In particular at page 3 the policy objectives of the bill are stated to include an increase in the statutory penalties for persons and entities operating without a licence.

In my view the learned Magistrate should have given greater weight to this legislative intention as demonstrated by the significant increase in penalties, and to the principle of general deterrence. I consider that he gave excessive weight to the respondent's personal circumstances, and in particular the effects on him of the subsequent offence.

The fact is that the learned Magistrate could have properly balanced these personal issues through his recognition that having imposed a penalty appropriate to the financial circumstances of the respondent it could be left for the respondent to enter into a payment plan with SPER which was not ruinous to him.

Therefore I consider that the Magistrate erred in principle and the sentence was manifestly inadequate. In these circumstances where it has been demonstrated that the Magistrate's sentencing discretion has miscarried I am entitled to exercise the sentencing discretion afresh. In doing so it will also become apparent that I am satisfied that the sentence imposed by the Magistrate was manifestly inadequate, being outside the scope of the sound exercise of a sentencing discretion.

I'm therefore in the position that under section 225 subsection (1) of the Justices Act I am able to set aside or vary the sentence appealed, and under section 225 subsection (3) of the Act, exercise any power which could have been exercised by the Magistrate.

I consider that the relevant feature in this case is the necessity to give sufficient weight to the deterrent principle of sentencing and to denounce the sort of conduct that was involved, particularly in circumstances where despite the respondent's licence not being renewed on the 14th of August 2007, and being directed by an inspector of the appellant's department two days later to stop working, for this reason the respondent contemptuously and in defiance of that direction engaged in a course of conduct which involved breaching the legislation on 23 occasions over a period of about five weeks, the first occasion being only 11 days after the direction.

I note, however, that I consider that the need to protect the public from unlicensed security providers and the proposition that the fine failed to take into account the possibility of compromising the safety and security of patrons and the public by inadequately penalising the respondent for carrying out the functions of a security provider whilst not licensed are less relevant in this case because until the 14th of August 2007 the respondent had been legally licensed as a security provider, and as I have said, in those circumstances is likely to have met the criteria for holding such a licence which would have been designed to protect the public and to ensure that safety and security of patrons and the public is not compromised by functions being carried out by unlicensed security providers.

I consider that under the previous sentencing regime to which I have referred the respondent's conduct would have warranted a penalty towards the top of that range, namely in the vicinity of $3,000, however taking a moderate approach to the substitution of a new sentence for the sentence appealed upon, I consider that in the circumstances of the present case, and having regard to the appellant's submission before me as to the appropriate range of penalties in the circumstances of this case, I consider that the appropriate penalty is $12,500.

In these circumstances the orders of the Court will be as follows:

1.The appeal 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 this Court refer the penalty to SPER for registration.

3. A conviction is recorded.

Are you seeking costs, Mr Vize?

MR VIZE:  No, no costs to the appeal.

4.I make no order as to costs.

I also note that I impose no default period, which is in accordance with my general approach of referring the fine to SPER and allowing an instalment plan to be entered into with SPER and for the issues of default to then be the responsibility of SPER.

Unless there is anything further, Mr Vize, that is the order of the Court.

MR VIZE:  Yes. No, nothing further, your Honour. Might I be excused?

HIS HONOUR:  You're excused. Thank you.

MR VIZE:  Thank you.

HIS HONOUR:  Thank you for your assistance.