McSweeny v Spiller[2002] QDC 295

DISTRICT COURT OF QUEENSLAND

1. [1]
   These applications were heard together.

2. [2]
   On the 17^th August 2001 both appellants pleaded guilty before Acting Magistrate P.W. Hasted to an offence of carrying on unlawful use of premises pursuant to s. 4.3.5 of the Integrated Planning Act 1997. The plea followed legal argument which resulted in the charge (in each case) being amended to read:

“Between 31.10.2000 and 22.3.2001 (the appellant) used premises at 98 Menary Road West Woombye for the purpose of a vehicle depot, that use being unlawful under the town planning scheme for the Shire of Maroochydore.”

3. [3]
   The appellants were each convicted and fined $7,500.00 and ordered to pay $58.00 costs of court together with professional costs assessed at $1,000.00. Both appeal against the fine imposed on the grounds that it is manifestly excessive. The appeal against the quantum of the professional costs ordered was not pursued. Insofar as the outlines of argument filed on behalf of the appellant by Mr Fahl suggest some conflict as to the factual basis on which the Magistrate sentenced. This was resolved by a concession by Mr Fahl that there was no contest as to the facts relied upon by the respondent in the lower court.

4. [4]
   The appellant James Robert McSweeny was at all material times the principal director and “guiding mind” of the corporate appellant. They operated a vehicle depot for their haulage business from the premises during the relevant period in contravention of the existing town plan.

5. [5]
   The premises are situated in a rural area comprising a mix of residual commercial farms, hobby farms, cleared and forested land and some steep lands and alluvial plains with some small scale tree and other horticultural cropping predominant. The previous town plan and indeed the Maroochy Plan 2000 clearly contemplate that its appropriate use does not include intensive commercial activity of the type carried out unlawfully by the appellants.

6. [6]
   The Magistrate was informed that for some time prior to the actual offence period, the respondent had been aware of the activities of the appellants, and that they should therefore have been on notice that their activities were unlawful. An example of this is Exhibit 10 which is a letter dated the 3^rd August 2000 from the respondent to the appellant’s solicitors tendered without objection. It appears that notwithstanding such notice the appellants continued to use the premises as a vehicle depot. As much is acknowledged by their own counsel at pages 39-40 of the record when he said:

“Your Worship, Mr McSweeny has been operating the haulage business at the relevant premises since around about 1996. He – the business was operating prior to that time, but he operated the business from the relevant premises from about 1996 onwards. Mr McSweeny has, at times, had up to four or five trucks at the premises at any one time, but has been also employing around about 14 people in this business. The scale of the – or the operations themselves have now been substantially scaled back, and have been scaled back to a point now where there is only one truck being housed or stored at the relevant premises in question.”

7. [7]
   In his written submissions, Mr Fahl submits that the Magistrate may have sentenced the appellants for conduct not covered by the charge in saying in his reasons:

“… the operations that you have conducted at those premises over an extensive period of time … It is clear that this operation is not a small operation and it is something that has continued for some considerable period of time.”

8. [8]
   It is a well established principle of sentencing law that a person should not be punished for an offence of which he has not been convicted: per Gibbs CJ in R v. De Simoni (1981) 147 CLR 383 at 389, however a sentencing court can take into account evidence of other unlawful conduct to rebut any suggestion that the offence complained of was an isolated incident or incidents: R v. Jobson [1989] 2 Qd R 465 at 466-467 per Thomas J (as His Honour then was). This is in part what occurred here, however the fact that unlawful activity had occurred prior to, and indeed subsequent to the actual offence dates was admitted by the defendants expressly or impliedly in the submissions made by their counsel quoted above: see s. 132C of the Evidence Act 1977. There is nothing in the record or the reasons to suggest that the learned Acting Magistrate erred by sentencing for offences for which the appellants were not convicted.

9. [9]
   Mr Fahl’s principle submission was that the sentences are manifestly excessive. His argument is that a $15,000 fine for essentially one course of unlawful activity is out of line with sentences imposed by other Magistrates in similar circumstances. It is true that the unlawful behaviour of the corporate appellant is essentially the same as that of the other appellant, however, after an argument that the charging of both appellants was wrong as a matter of law was (correctly in my view) rejected by the Magistrate, both appellants then pleaded guilty to the offences alleged against each of them. However, I agree with Mr Fahl that the fines have been imposed in respect of the same conduct, and for the purposes of assessing his submission I am prepared to proceed on the basis of the total fine of $15,000.

10. [10]
    Indeed, as far as I can tell, Mr Murray who appeared for the respondents both here and below, essentially submitted for one overall penalty. Although he did relate his submission of a fine of $20,000-$30,000 to the corporate appellant, he did not make any separate submission concerning the other appellant, and I assume he was arguing for an overall penalty of such a sum covering both offences. Unlike the learned Magistrate, I receive the benefit of a helpful schedule (obtained by Mr Fahl) of penalties imposed as a result of prosecutions by the Brisbane City Council under this provision. I have annexed a copy of that schedule and I incorporate it as part of these reasons. I was also provided with copies of the Council Solicitor’s conviction advice which provided more detail. Certainly, the schedule does suggest at first glance that an overall penalty of $15,000 might be high compared with the fines imposed in these other matters. However, what is immediately obvious is that in each case the offence is confined to one day (although it appears that some of the activity did proceed over more than one day), but more importantly in none of the cases was the unlawful activity carried out in a rural setting. No actual environmental harm was alleged in this case, however such harm is a potential effect particularly in a rural setting.

11. [11]
    I am informed that there are no previous decisions of the Court of Appeal or this Court which deal with the levels of penalties for offences against IPA. Without being exhaustive, as each case will depend on its own facts, in my opinion factors likely to aggravate the conduct the subject of a charge under s. 4.3.5 are:

1. (a)
   the period of time over which the offence has been committed;

2. (b)
   whether or not the offender has had prior notice from the relevant local authority of the unlawfulness of its actions;

3. (c)
   the scale and commerciality of the unlawful use;

4. (d)
   any other conduct (apart from (b)) which suggests a wilful disregard of planning laws;

5. (e)
   previous convictions for like or similar offences;

6. (f)
   the potential for environmental harm, and interference with the cultural, economic, physical and social wellbeing of other people in the particular community.

As well, the relevant planning schemes and policies for the particular area may apply in such a way so as to make the conduct more serious.

12. [12]
    IPA introduced very significant penalties for development offences. The maximum penalty for a breach of s. 4.3.5(1) is 1,665 penalty units or $124,875 in monetary terms. The Magistrate properly took into account in mitigation the pleas of guilty and the lack of previous convictions. The Magistrate’s findings relating to commerciality were not challenged, nor was his specific finding as to prior notice namely “that there has been negotiations on both the Maroochy Shire Council (sic) to attempt to bring your operations in line with the town plan”.

13. [13]
    General and personal deterrence are important principles applicable to sentencing for development offences, so that local authorities are assisted in carrying out their obligations to ensure the orderly and proper use of land in accordance with the relevant Plan. An overall fine of $15,000 represents just over 8% of the maximum. I am not persuaded that the Magistrate has erred in principle in any way. The appeals are dismissed. I will hear further submissions in relation to the costs of the appeal.