Patterson v Queensland Fire and Emergency Services
[2022] QDC 115
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- Unreported Judgment
- Appeal Discontinued (QCA)
- Patterson v Queensland Fire and Emergency Services[2022] QDC 115
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Patterson v Queensland Fire and Emergency Services[2022] QDC 115
Patterson v Queensland Fire and Emergency Services[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: |
|
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
- [1]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]
- [2]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 was that the Magistrate’s finding she was the “occupier” of those premises at the relevant time was contrary to law and the evidence. Further, in the event the convictions are upheld she also appeals against sentence on the basis that the fines imposed were wrong in law being manifestly excessive.
Appeal
- [3]The appellant appeals pursuant to s 222 Justices Act 1886. The appeal has been commenced within time. Section 223(1) provides that the appeal be by way of rehearing on the evidence given in the proceeding before the Magistrate. No application was made to adduce fresh evidence. On hearing the appeal, the court is required to make its own determination of the relevant facts in issue from the evidence giving due deference to and attaching a good deal of weight to the Magistrate’s assessment of witnesses.[2] Generally to succeed on such an appeal, an appellant must establish some legal, factual or discretionary error.[3] However appeals pursuant to s 222 require something different. More recently in Forrest v Commissioner of Police [2017] QCA 132 Sofronoff P observed the following concerning s 222 appeals:
“It has been said many times that such an appeal by way of rehearing requires an appellant Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration would go a long way towards winning an appeal.”
- [4]The president continued
“… an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case. That has been established by numerous cases… Consequently, … (the court has) to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned Magistrate had in seeing the witnesses give evidence, determine for (itself) the facts of the case and the legal consequences that follow from such findings of fact.”
- [5]I proceed on that basis.
The premises
- [6]The buildings are situated at 77 Spencer Street Gatton and 545 Atkinsons Dam Road, Lake Atkinson. They each had different configurations accordingly I will deal with the evidence concerning each premises separately.
545 Atkinsons Dam Road
Ms Jenny Olmos and Inspector Mark Halverson each gave evidence of attending the Atkinsons Dam Road property on 4 May 2018 for the purpose of clarifying whether a building on that location was deemed to be a budget accommodation building or not. At the time of the site visit photographs were taken and a floor plan of the relevant premises was developed by Inspector Halverson. Each of those photographs and plan were admitted into evidence in the trial. The photographs identified the contents of seven of the eight bedrooms located on the site within a structure which comprised two demountables with a covered common area set between them. The common area had at one end a common kitchen and utility area. The other end of the structure was open. It was noted that save for bedroom six which was locked there was otherwise bedding for 13 persons contained within the bedrooms. The ablutions or amenities block was separate. The photographs in particular were relied upon to support the oral testimony of those witnesses that particular features, including the absence of an early warning system, a system of emergency lighting, a sign satisfying that the requirements of s 48 of the regulations and the absence of a fire safety management plan, were then evident.
- [7]In particular Mr Halverson noted a purpose of the inspection was to see whether or not the accommodation was operating as a budget accommodation building and if so whether it was compliant with the relevant fire safety standards provided for by the Building Act 1975 (Qld) (‘Building Act’) and in accordance with the Queensland Development Code (‘QDC’) MP 2.1. Inspector Halverson expressed the view that the donga area was a building which conformed with the definition of budget accommodation building as provided for in the Building Act as it satisfied the definition of a building by being a fixed structure with walls and being roofed. He concluded it was a budget accommodation building because he found evidence of bedding provision for six or more people.
- [8]At the hearing of the appeal the appellant did not challenge any of these matters. It follows in my view that there was ample evidence before the Magistrate to satisfy him in respect of contravention concerning each of the four charges concerning the Lake Atkinson Dam premises. It was a budget accommodation building and it did not have in place (or maintain) the relevant fire safety device or regime as particularised in each of the four charges.
- [9]The only substantive matter in question concerned the allegation in each of those charges that the appellant was “the occupier” of those premises.
- [10]Evidence for the prosecution concerning the element of “occupier” came from the prosecution from witnesses Wendy Bruen and Eryn Bruen. Wendy Bruen gave evidence that in April/May of 2018 she knew the appellant and had a conversation with her about leasing a part of the caravan park known as the roofed donga area to her. In April/May 2018 she and her husband leased the Lake Atkinson Caravan Park at Lake Atkinson. She said that at that time she knew the appellant and that she had some discussion with her about leasing a part of the caravan park known as the roofed donga area to her. She identified that area by reference to the photographs which had been earlier tendered. She said that in April 2018 she leased that area to the appellant by verbal agreement. The price or rental for the area was set at $900 per week and from her discussion with the appellant understood that the appellant was going to on-let the rooms in the donga area to backpackers. In her evidence she said:
“It was to house the backpackers and get them to do some work and then decide which ones would move on to like a housing. So I think it was a bit of a trial to see how they did and then they would move them [indistinct] to Gatton to – into like a share house.”[4]
She continued to observe that she had no control over how many people were to occupy the property as she noted:
“If there was two people in there, it was up to (the appellant) whether it was two people or to maximum capacity. I didn’t have any control over who came or went. It was just she’d rented – basically rented the building.”[5]
She stated that as far as she was concerned the supervision of those matters was in the hands of the appellant and her son.
- [11]She stated that she did not receive any money from the backpackers but relied soley upon the rent that she received from the appellant noting that the appellant paid her and what the appellant collected from backpackers “was nothing to do with me”.[6]
- [12]In cross-examination the witness accepted that she had made a statement to the inspector that, “I think (the appellant) initially in control the people, but we control the building”.[7] Further, she said:
“They are responsible for their own, which they haven’t been, because we have been supplying in - them bedding. We supply the furniture, the fridge, everything that’s in there.”
In response to a question asking if she had signed a lease with the defendant she said:
“No. We got to do it because she going away.”[8]
- [13]Later in her evidence she noted that, concerning the attendance of the QFRS inspectors, they asked if any buildings were being rented out for multiple people, and if so to whom. At that point she informed them that it was the appellant.[9] Subsequently she clarified the situation noting:
“… we had just only been there a couple of weeks at the caravan park and the people that were there were in there we didn’t put in the donga at the time; it was from the owners, so we leased it. And then, it was at once we’d agreed that the accommodation for (the appellant), the two people that were in there, we moved them – we didn’t want to mix anything up so – and it want – it wanted to be all for (the appellant), so (the appellant) was in – (the appellant) could control who was coming and go – I didn’t want anything to do with that. So it was a case of, if where got people there, then, we can con – it’s too difficult to control who was staying in what room. So that’s we thought – we moved the two pe – so there was pe – yeah. … Was two people in there before the backpacker. But we moved them out, for the backpackers.”[10]
- [14]Eryn Bruen gave evidence that she was the daughter of Wendy Bruen and was employed as an administrative assistant at the caravan park. She confirmed that the rents were received from the appellant in respect of the period 10 May and that the rental received was in respect of the donga area. She too stated that she recalls seeing backpackers turning up to the donga area but stated she had no control over who was staying at the donga, that being a matter controlled by the appellant.
- [15]In her evidence concerning this structure the appellant stated that she was overseas at some point and the property was in the charge of her son, who was her manager, and also her assistant Jemma. She said:
“When the inspection took place I was overseas. I didn’t know that I had the responsibility of installation of the fitting that was needed in the place. I thought that caravan park is just normal, and caravan would have fulfilled the obligation according to the standard about the safety standard and everything.
… I feel that I have no responsibility about any installation in the donga because I believe that they would have their own standard, just like the caravan park. How was she to get a commercial, what do you call – how was she able to get the – how was she able to get the permit to operate the business and when her business is similar to running a caravan park” …
- [16]And further
“It should be the owner of the caravan park and not me. I just feel that it’s not fair and it hurts me a lot. I feel that everything has changed, and everything is now my fault or my fault as regards to the caravan park. To this day I don’t understand what is the owner’s responsibility and what is the occupier’s responsibility. There was no written agreement whatsoever. There was no agreement and I can put people there anytime I want, and I can pull them out any time I want. I never received any receipt or anything. It was just vocal.”[11]
- [17]Later in cross-examination the appellant accepted that she rented the donga area at the caravan park and that she paid for that rental. She accepted that she put backpackers into the donga accommodation and charged backpackers for staying in the donga area.
- [18]In essence, as the appellant stated in her evidence, she did not believe she was the occupier of the premises. In his decision concerning this structure, the Magistrate concluded that the appellant was, on all the evidence adduced, the occupier of the donga building as the sub-lessee of the premises.[12] He noted she was the person “apparently in charge of the premises and was a person who was conducting a business at the premises by receiving rent from the backpackers who she had arranged accommodation for at those premises.”
- [19]The offences the subject of the complaints are provided for in s 104D of the FESA. Relevantly, it provides,
104D Occupier of building to maintain prescribed fire safety installations
(1) the occupier of a building must maintain at all times every prescribed fire safety installation to a standard of safety and reliability in the event of fire…”
Schedule 6 of FESA provides a dictionary which defines relevant terms including “building, occupier and, owner and premises.” Relevantly they provide,
“Building – Includes any wall, fence, bridge, dam, reservoir, wharf, jetty or other structure whether temporary or permanent
Occupier of premises, means –
- (a)The owner, lessee, or person apparently in charge of the premises; or
- (b)A person who has the care, management, or supervision of the premises or is conducting a business at the premises
Owner, of premises –
- (a)Generally – means the person who is entitled to receive rent for the premises, or would be entitled to receive rent for the premises if the premises were leased
- (b)…
premises –
- (a)Means any land or building; and
- (b)…
- [20]In his decision, the Magistrate found in respect of the issue of “occupier” that the appellant was an occupier because, on the evidence, “she was the sublessee of the premises and the person apparently in charge of the premises and was a person who was conducting a business at the premises by receiving rent from the backpackers who she arranged accommodation for at those premises.”[13] Each of those matters was open to be found by the Magistrate on the evidence. Having made those findings they supported the conclusion that the appellant was the occupier: first, as the sublessee of the premises by reference to the term “lessee” as it applies to the definition of occupier, sub-paragraph (a); secondly, as the person apparently in charge of the premises by reference to the definition of occupier, sub-paragraph (b); and finally, as the person who was conducting a business at the premises as captured by the definition of occupier, sub-paragraph (b).
- [21]Further, he concluded the appellant was caught as she was an “owner” as defined in Schedule 6 as she was “the person who is entitled to receive rent for the premises” as provided for by the definition of owner, sub-paragraph (a).
- [22]Finally he noted that the definition of each of “occupier” and “owner” also related to premises. Premises means any land or building. Section 104 of the act provides that “building” means, “a fixed structure that is wholly or partly enclosed by walls and is roofed and includes… .” As the evidence concerned premises she was the occupier of those premises.
- [23]On the evidence it was open for the Magistrate to find that the donga structure in the caravan park was a building and in turn by definition, “premises”. By any number of routes, it was open to the Magistrate to find that the appellant was the occupier as that term is defined in the Act. It is not to the point that the building was owned by a third party. The plain intent of the legislation is to invest the responsibility for compliance with prescribed fire safety installations upon the occupier of a building. Obviously, that might include an owner, but the definition is expressed in very broad terms in order to capture those who are most proximate to the use of the building. In this case, I am satisfied that the evidence demonstrates the appellant had the legal right to exclusive possession of the dongas, in particular to the exclusion of the head lessee of the caravan park who was the appellant’s sub lessor. That finding is open not only upon the direct evidence of the manner in which the appellant conducted the sub-letting of rooms to backpackers in the donga area, but is also implicit in the conduct of the caravan park operators who, upon entering into the agreement to lease that building to the appellant, relocated two tenants to another part of the caravan park so as to enable the donga area to be left for the exclusive possession of the appellant. The characteristic of exclusive possession is one which is indicative of a lease as opposed to a license and enlivens a relationship with lessor and lessee between parties to such an arrangement.[14]
77 Spencer Street
- [24]Garry Shum is a building certifier employed by the Lockyer Valley Regional Council. He gave evidence that the property at 77 Gatton Street was a house constructed in the late 30’s, early 40’s and that it was defined as a “Class 1A single storey dwelling”. Station Officer McDowell gave evidence that he attended the Spencer street property acting on information that the premises was operating as a possible illegal budget accommodation building. Section 216 of the Building Act makes provision for budget accommodation buildings and relevantly defines “Budget Accommodation Building.” Relevant characteristics include occupants having shared access to a bathroom or sanitary facilities other than a laundry, and accommodation being a boarding house, back packer, share house, or similar type of accommodation for six or more persons. A building is not excluded from characterisation as a budget accommodation building because some or all of the persons have a right to occupy parts of the building other than parts used to provide the accommodation.[15] A building is not a budget accommodation building if the building is used as a Class A building.[16] Section 216(4) provides that evidence the building has beds available for use by persons is evidence that it provides accommodation to persons whether or not the persons are present in the building.[17]
- [25]Station Officer McDowell gave evidence that he attended the Spencer Street property and assessed that by reason of the number of beds which were provided, the shared accommodation presented as back packer type accommodation and satisfied the definition of a “budget accommodation building”. As it was a budget accommodation building, a code of requirements of the Queensland Development Code MP2.1, otherwise known as the Queensland Development Code Mandatory Part 2.1, governed the structure. Those provisions provide for fire safety standards within a budget accommodation building and the mandatory code applied. Given his characterisation of the building, it required him to ascertain whether the building had an early warning system, compliant emergency lighting, unit signage, a compliant prescribed door hardware and a fire safety management plan. From his observation, none of those features were evident on this inspection on 29 May 2018. It was each of those elements that was alleged as a particular of each of the five charges relevant to 77 Spencer Street.
- [26]The evidence plainly supported the conclusion that the premises were being used as a budget accommodation building and in each instance was absent the particular fire safety feature required. The only issue alive at the trial in respect of each charge was whether or not the appellant was the occupier of the building.
- [27]Station Officer McDowell was accompanied by Station Officer Corey on the occasion of the inspection of 29 May 2018. He too agreed with the observations of Station Officer McDowell that the Spencer Street property constituted a four-bedroom premises which contained six single beds and a shared facility and was operating as a share house or backpacker style accommodation. Upon his assessment, he too agreed that it was a budget accommodation building to which the Queensland Development Code MP2.1 applied, and he too agreed that the relevant fire safety features were absent.
- [28]Concerning the issue of occupancy the court heard evidence from Christina Susilaningrum (Ms Suzie). She gave evidence that she was the lessor of the premises at 77 Gatton Street. She paid rent of $290 per week to a real-estate agent at Gatton Realty in respect of the premises. She recalled the fire officers attending the premises in May of 2018 and at that time she was living there with a number of backpackers and her grandson. She stated “it’s four or five backpackers. I can’t remember.”[18] Allowing for herself and her grandson together with four or five backpackers, there were between six and seven people residing in the house at the time of inspection. I note the evidence in chief on this point was somewhat confusing. A witness required the assistance of an interpreter and I suspect something was lost in the interpretation because when asked how many bedrooms the house had, she stated four and then when asked how many beds were in the house, she again stated four. It will be recalled that Mr McDowell observed six single beds in the residence contained within three bedrooms. He was unable to enter into the bedroom of Ms Suzie which was reportedly occupied by her and another. So it was open for him to find that the house contained more than six beds.
- [29]When asked where the backpackers came from, Ms Suzie informed the court that they were referred to her by the appellant. She stated “(the appellant) came to her house with all the backpackers”.[19] She stated the appellant would allocate the backpackers to her and she would receive payment from the appellant for the provision of that accommodation.[20] The terms upon which each backpacker stayed was explained by the witness as follows:
“When (the appellant) explained to me that she will charge each backpacker $200. And $100 for me and $100 for her (that was per week).”[21]
- [30]The money was paid by cash. She noted that the beds were provided by a “gentleman from Indonesia” who would come and assemble the beds, that being arranged by the appellant. When the appellant put to Ms Suzie that she received the money from the backpackers directly Ms Suzie rejected that proposition. She also rejected the proposition that she was responsible for the backpackers. In response to that suggestion she said:
“Because I have a job. I am not responsible for that.”[22]
- [31]In his findings, the Magistrate stated:
“Whilst Christina Susilaningrum was the lessee of 77 Spencer Street Gatton, she stated before the Court that her friend Doortje Houser introduced her to (the appellant) and they came to an agreement for the use of three bedrooms in the dwelling by backpackers arranged for and placed there by (the appellant). Ms Susilaningrum made it clear that (the appellant) had control over the backpackers who resided in the rooms, including collection of rental money. Ms Susilaningrum advised that rent for each person was portioned as to $100 for (the appellant) and $100 for her. Ms Susilaningrum also testified as speaking to (the appellant) at the house of (the appellant) about $400 being owed to her by (the appellant) for rent for rooms sub-let by (the appellant).”
- [32]His Honour rejected the appellant’s evidence that she never knew the exact number of backpackers residing at 77 Spenser Street, finding that her evidence was “not reliable and was given intentionally on oath in an endeavour to deceive the court”. His Honour was satisfied beyond reasonable doubt that the appellant controlled the letting of three of the rooms at 77 Spencer Street, Gatton, collected rental monies for their occupation, and provided bedding for those rooms. He rejected her contention that she was not in control, such evidence lacking foundation and having been contradicted by other evidence. That included evidence from her son who stated that he moved backpackers to the building at 77 Spencer Street and that he was aware of the arrangement between the appellant and “Suzie” in relation to their apportinment of rent for individual backpackers.
- [33]Although this building was also occupied by another, it was contended for the prosecution that it fell within the definition of “building” provided for, meaning:
“A fixed structure that it is wholly or partly enclosed by walls and is roofed and includes a floating building or any part of a building” (emphasis added).
- [34]Section 104D imposed an obligation upon the “occupier of the building”. Given the expanded definition of building can include “any part of a building”, the fact that one of the four bedrooms was not within the exclusive domain of the appellant’s occupation did not serve to exclude the appellant’s obligations in respect of that part of the building which was occupied by the appellant. There was no issue that that part of the building lacked the requisite of fire safety equipment.
Generally
- [35]Although the appellant challenges some of the findings of that made by the Magistrate, those findings are in part informed by his assessment of the credit of the witnesses. In particular, I note that the Magistrate’s observations concerning the appellant and her witnesses in part observed:
“When considering the whole of evidence adduced and viewing witnesses while giving testimony, the person Mayreidy Patterson was assessed by the Court as an unreliable and undependable witness, was promoting of an air of overconfidence, he was not forthright and exhibited a propensity to give inaccurate evidence while on oath. Grave concern is also held when assessing the testimony of Myla Patterson. Overall, she was not considered to be an open, honest and reliable witness.”[23]
- [36]Specifically, on certain issues, the Magistrate observed:
“(the appellant’s) evidence that she had no agreement with Wendy Bruen in relation to a sub-lease of the donger area was not accepted by the Court as either honest or reliable.”[24]
- [37]And further,
“(the appellant) informed the court that on oath she never knew the exact number of backpackers residing at 77 Spencer Street, Gatton in the three rooms. The court finds that that evidence was not reliable and was given intentionally on oath in an endeavour to deceive the court.”[25]
- [38]In contrast, he observed witnesses for the complainant appeared to “relate testimony openly and honestly.
- [39]Although the appeal is by way of rehearing, in the absence of any reason to reject the Magistrate’s findings in respect of credit, I should and I do act upon them.[26]
- [40]I am satisfied that the evidence supports the conclusions drawn by the Magistrate and that his conclusions were not only open on the evidence but they are also correct in law.
Other contentions
- [41]In the grounds of appeal a number of other issues were raised. They were not pursued by the appellant with any vigour on the appeal. She acknowledged them as incidental.
QFRS’ Failure to interview the appellant.
- [42]The explanation provided by the relevant witness was that reasonable effort was made to interview the appellant but enquiries revealed she was absent overseas. There was in any event no obligation upon the appellant to conduct an interview with her. She was the respondent to a prosecution and arguably the failure to interview her could only have been to her advantage. In any event any prejudice that might have been occasioned by the failure to interview her (and in my view there was none) was ultimately resolved by her giving evidence. This ground has no merit.
Unfairness of process of trial
- [43]She complains in ground five of the notice of appeal that as a self-defendant, the prosecutor “cut me off or would not allow my evidence to be heard”. A review of the transcript gainsays that complaint. She was afforded more than ample opportunity to ask questions and was interrupted only as was lawfully permitted on occasions when she sought to ask improper questions or to adduce inadmissible evidence. In my view this ground is not made out.
Absence of financial means for legal representation
- [44]An additional ground is alleged that as she had no money she had to engage in her own self defence. Whilst this was so she was not disadvantaged. The magistrate afforded her latitude and procedural fairness. Likewise nothing in the prosecution of the case could suggest her lack of legal representation occasioned her any unfairness. The ground is not made out.
Misuse of previous convictions.
- [45]She contended in her notice of appeal that there had been a miscarriage of justice against her because of previous convictions. As the transcript reveals, evidence of her previous convictions was not considered, except in respect of the matter of sentence. I reject this contention.
Appeal against sentence
- [46]In her notice of appeal she contends:
- The current charges do not carry a six month gaol sentence, but the magistrate has guaranteed me one because I cannot raise $65,000 in 28 days.
- The magistrate knew I had no money, no job, no business, no assets and was on Centrelink because of two years of drought followed by one year of Covid-19. He guaranteed me a gaol sentence with his order which overreached of the law.
- [47]In essence, the appellant’s claim is
- (a)The sentence was manifestly excessive; and/or
- (b)At least in one respect the sentence was wrong in law.
- (a)
- [48]In respect of sentence the magistrate took into consideration the following relevant factors:
- (a)The defendant had been found guilty in respect of nine offences following trial.
- (b)The offences are serious offences with the provisions giving rise to the offences having come about by reason of the palace backpackers hostel fire in Childers in June 2000. It was following that event that amendments were made to the Fire and Emergency Services Act relating to budget accommodation buildings. The explanatory notes at the time observed,
- (a)
“budget accommodation generally has a higher occupation density than other forms of accommodation, and a large number of older buildings have been used as budget accommodation. Given the nature of the occupation, the age of the buildings, the lack of fire safety facilities and the predominate timber construction, fire risk is very high in a large proportion of budget accommodation buildings.”
- [49]The purpose of the amendments was to achieve a satisfactory standard of fire safety in budget accommodation, particularly by requiring those buildings that were not approved under the Building Code of Australia to comply with fire safety standards for safe evacuation of occupants. Plainly with those matters in mind, 100 penalty units was set in respect of contraventions of s104D(1) for circumstances such as those presented in this case. In respect of contravention of the requirements of the Building Fire Safety Regulation 2008, 30 penalty units was set as the appropriate penalty for an offence in the circumstances presented here.
- [50]In respect of the nine offences, five offences relation to 77 Spencer Street, a total of 430 penalty units constituted the maximum. At $137.85 per penalty unit, that gave a total maximum fine in respect of those five charges of $59,275.50. In respect of the Atkinson Dam property, the maximum number of penalty units over the four offences was 330, which had an aggregate value of $45,490.50. In total the maximum penalty that could have been imposed in respect of all offending was $104,766.
- [51]In sentencing the appellant, the magistrate took particular notice of her having “ample warning in relation to her behaviour.” She had 96 prior convictions for similar types of offences and a number of convictions in that 96 were for matters where imprisonment could be imposed. It was noted that on the last occasion the appellant was before the Toowoomba magistrates court a total of $50,000 in fines was imposed together with three months imprisonment suspended for four years. The four year operational period continued until 24 May 2021. In other words, this offending occurred during the operational period. His Honour observed that because none of the offences dealt with by him had as maximums a sentence of imprisonment, he was unable to activate any of the earlier sentences. However, he appropriately recognised that the commission of these further contraventions during the operational period of the suspended imprisonment sentence demonstrated that the appellant had taken “no constructive steps to stop offending”. He noted also that previously substantial fines had been imposed, none of which appeared to have had a deterrent effect. As he observed,
“… even today, on your submissions… you really are showing no remorse for what you have done in relation to these nine offences. You want to attempt to lay the blame on others, but the court on legally admissible evidence has made formal findings (against you), as it must, according to law.”[27]
- [52]His Honour continued to note that he would impose substantial penalties because of the 96 prior convictions and the nature and seriousness of the present offences. He appropriately referred to s 9 of the Penalties and Sentences Act 1992 (Qld) noting the offences were serious and the appellant’s culpability for the offences and their prevalence, and the (absence) of assistance to law enforcement agencies in the investigation. He noted the maximum penalty the court could impose, $94,874. Although I think there is an arithmetic error in the calculation, it is none the less is a significant sum. He took into account her age, character and intellectual capacity, and the matters outlined to the Magistrates Court in Toowoomba in May 2017, particularly concerning her major depressive disorder. He determined to exercise his discretion under s 49 of the Penalties and Sentences Act and imposed one penalty for the nine breaches. In that regard he set upon a sum of $65,000 and in default of payment of the monetary penalty, six months imprisonment. That default period was well within the boundaries provided by s 185 and in particular could be seen to be a punishment satisfying the requirement that it would be one which would satisfy “the justice of the case”.
- [53]In my view, the approach to sentence in this instance was orthodox and the magistrate considered all the relevant factors to be considered in the imposition of sentence. It is not one which in my view is manifestly excessive. Indeed it could be considered modest having regard to the appellant’s history which plainly calls for weighting to recognise the principle of specific deterrence.
Unlawfulness
- [54]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.
Conclusion
- [55]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
- [56]The appeal is dismissed.
Footnotes
[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.
[2] White v Commissioner of Police [2014] QCA 121; Rowe v Kemper [2008] QCA 175, [3].
[3] Commissioner of Police v Al Shakarji [2013] QCA 319, [65]; Teelow v Commissioner of Police [2009] QCA 84, [3]-[4]; White v Commissioner of Police (n 2), [8].
[4] T1-104, ll 1-5.
[5] T1-104, ll 32-36.
[6] T1-105, l 30.
[7] T1-113, l 11.
[8] T1-113, ll 21-30.
[9] T1-117, ll 4-10.
[10] T1-118, ll 1-11.
[11] T2-34-35.
[12] Decision p 6, ll 31-33.
[13] Decision p 6.
[14] See generally McDonald et al, Real Property Law in Queensland (Thompson Reuters, 3rd ed, 2010) 14 [14.80].
[15] Building Act 1975 (Qld) ss 216(1) and (2).
[16] Building Act 1975 (Qld) s 216(3).
[17] Class 1A building means a building that under the 2004 addition of the BCA is classified as a Class A building; it is not in contention that such a building is a building commonly understood as a dwelling house.
[18] T1-78, l 5.
[19] T1-79, l 20.
[20] T1-79, ll 40-45.
[21] T1-80, ll 14-15.
[22] T1-85, l 36.
[23] Decision p 4, ll 18-24.
[24] Decision p 4, l 4
[25] Decision p 10, ll 21-25
[26] Warren v Coombes (1979) 142 CLR 531.
[27] Decision p 12, ll 10-13.
[28] See Penalties and Sentences Act 1992 (Qld) s 46(1)(a)(i).
[29] Penalties and Sentences Act s 49(1)(a).