Kennedy v Glew[2005] QDC 342

DISTRICT COURT OF QUEENSLAND

BACKGROUND

1. [1]
   The appellant was charged, along with one Kathleen Jones, by way of complaint and summons, with committing a development offence contrary to s 4.3.5 of the Integrated Planning Act 1997 (“IPA”) by carrying out the unlawful use of a “Vehicle Hire Premises” in relation to premises described as Lot 250 on Survey Plan 141011 situated at 88-92 Ferny Avenue, Surfers Paradise (“the premises”).

2. [2]
   The complaint was particularised as follows:

MAGISTRATES COURT PROCEEDINGS – 15 NOVEMBER 2005

3. [3]
   Mr Kennedy pleaded guilty to the charge in the Magistrates Court at Southport on 15 November 2004 and was fined the sum of $18,000 and was further ordered to pay $800 costs of court in default nine months’ imprisonment.  He was allowed nine months to pay the fine and costs. The Magistrate further ordered that he immediately cease operating the Vehicle Hire Premises at 88-92 Ferny Avenue, Surfers Paradise.  It was further ordered that within 28 working days the premises be restored, as far as practicable, to the condition the premises were in before commencement of the use as a Vehicle Hire Premises, including but not limited to:

   1. (a)
      removal of demountable site office;
   2. (b)
      removal of containers;
   3. (c)
      removal of all signage from the site; and
   4. (d)
      removal of all motor cars, mopeds (motor bikes), trucks and utilities from the premises.

4. [4]
   Mr Kennedy’s co-defendant in Magistrates Court, Kathleen Jones, pleaded guilty to the charge and was fined the sum of $5,000 and was further ordered to pay $500 costs of court in default three months’ imprisonment.  She was allowed five months to pay the fine and costs.

5. [5]
   It was further ordered by the Magistrate that there be no conviction recorded in respect of each defendant.

The Evidence of Mr Ford

6. [6]
   The prosecution placed before the Magistrate a number of affidavits of Ian Ford, Development Compliance Officer of the Gold Coast City Council.  Mr Ford deposed to having first become involved in the matter following a complaint made to the Council by way of letter dated 2 August 2002 from Larkin McDonald, Body Corporate Managers on behalf of Palm Court Apartments, concerning the commencement of the use of a Vehicle Hire Premises on land located at 88-92 Ferny Avenue, Surfers Paradise.  He carried out his initial inspection of the premises on 8 August 2002 and took photographs of the premises. 

7. [7]
   Mr Ford stated that the appellants received a development approval for the use of the premises as a Vehicle Hire Premises on 13 December 2002.  Mr Ford undertook a further inspection of the premises on 21 July 2003 following additional complaints received by Council relating to the use of the premises.  He took an additional series of photographs during this inspection showing the business, “Yahoo Car Rentals”, prominently displaying motor vehicle and motor bikes for hire outside and inside the perimeter fence, together with a shipping container located toward the rear or western side of the property. 

8. [8]
   Following the prosecution of the appellants by Council on 9 September 2003 for non-compliance with development approval conditions, Mr Ford caused a letter dated 23 September 2003 to be sent to the appellants confirming the details of the prosecution and their obligation to comply with the development permit by no later than 21 October 2003.  Mr Ford was subsequently required to monitor the premises on a regular basis to identify whether the appellants had, in fact, taken steps to comply with the development permit.  Mr Ford had cause to pass by the subject premises no fewer than five times per week in the ordinary course of his role as a Development Compliance Officer with the Council.  Since August 2002 whenever Mr Ford passed the premises he noticed that there were signs advertising the business, “Yahoo Car Hire”, and stating that motor vehicles were available for rent, with vehicles being displayed both inside and outside of the perimeter fence.  He also noticed the shipping container situated at the rear of the premises together with regular activity occurring with people entering and leaving the premises.

9. [9]
   On 12 November 2004 Mr Ford attended the premises and spoke with Michael Kennedy who confirmed that the business had operated continuously from December 2003 to February 2004.  Mr Kennedy produced a log book which recorded the hiring of scooters from the subject premises during that period. Mr Kennedy, the appellant, also showed Mr Ford a copy of a landscaping plan for the premises.

10. [10]
    In a further affidavit sworn on 31 May 2004, Mr Ford deposed to having carried out an inspection of the subject premises on 24 May 2004 which revealed that the business “Yahoo Car, Motor Bike and Minibus Rentals” was still operating as a Vehicle Hire Premises as described in the Planning Scheme.  During this inspection Mr Ford noted nine mopeds for hire and a further 30 motor cars within the premises available for rent.  He also noticed a truck parked directly adjacent to the subject premises which had the rear tarpaulin cover endorsed “Yahoo Ute and Truck Rental – 0414 312 379, Cairns and Gold Coast”.  It appeared to Mr Ford that the business had expanded since his previous inspections as this was the first time he had noticed trucks available for rent.

11. [11]
    On 26 May 2004 Mr Ford carried out a review of Council’s records which revealed there had been no new application submitted by either Mr Kennedy or Ms Jones seeking to regularise the use as an approved Vehicle Hire Premises.

The Chief Executive Officer’s certificate

12. [12]
    A certificate provided by the Chief Executive Officer of the Gold Coast City Council pursuant to s 1117(3) of the Local Government Act 1993 was placed before the Magistrate.  This certificate detailed relevant matters from the records of the Council in relation to Mr Kennedy and Ms Jones and the premises situated at 88-92 Ferny Avenue, Surfers Paradise as follows:

The Evidence of Mr Webb – the 9 September 2003 hearing

13. [13]
    An affidavit of Troy Anthony Webb, sworn 31 May 2004, formed part of the material relied upon by the prosecution in the Magistrates Court.  Mr Webb is a solicitor employed by McCullough Robertson, lawyers, which firm had been retained by the Council to act on its behalf in prosecuting Mr Kennedy and Ms Jones on 9 September 2003 in relation to an offence under s 4.3.15 of IPA (non-compliance with an Enforcement Notice).  That prosecution concerned premises at 92 Ferny Avenue, Surfers Paradise.  The Enforcement Notice alleged a breach of conditions of a development permit, being conditions 1 and 21 of the development approval.

14. [14]
    Condition 1 of the development approval relevantly provided as follows:

Condition 1:  An amended plan shall be submitted generally in accordance with the Plan No. B1885-01, drawn by BC Currey (Surveys) and dated  3 September 2002, drawn to a scale of 1:200 and showing the following modifications:

...

d. The removal of the shipping container/s and caravan from the subject premises, provided that such facilities may be replaced by suitable storage shed or demountable offices, of a suitable aesthetic standard, subject to such facilities being clearly indicated on the site layout plan;

e. The provision of a minimum of two (2) metre wide landscaped buffer along the entire length of both street frontages, excluding road resumption areas;

f. The details of any fencing, excluding shade cloth (which shall not be permitted) to be erected along the boundaries of the subject site and along the new Ferny Avenue boundary as depicted after road resumption requirements.  The applicant shall not display mopeds and/or vehicles outside the fenced area.

15. [15]
    Condition 21 of the development approval was in the following terms:

Condition 21:  The applicant shall permanently remove, at his own expense, the existing shipping container/s located within the subject site, within four (4) weeks from the date of this Decision Notice.

16. [16]
    Both Mr Kennedy and Ms Jones pleaded guilty at the 9 September 2003 hearing.  The Court ordered that they be fined $900 each and in addition, ordered to pay professional costs of $250 each.  The total amount of fines and costs was $2,300.

Further certificate of the Chief Executive Officer of Gold Coast City Council

17. [17]
    A further certificate of the Chief Executive Officer of Gold Coast City Council pursuant to s 1117(3) of the Local Government Act 1993 was also placed before the Magistrate in relation to the proceedings of 15 November 2004.  This certificate contained the following assertions:

Submissions made by the prosecution in the lower Court

18. [18]
    In his submissions on penalty in the lower Court, counsel for the prosecution, Mr Everson, stated that “A high maximum penalty is prescribed and a severe penalty should be imposed to reflect the fact that the appellant has knowingly continued to operate an unlawful business to his commercial advantage, and used all means at his disposal to prevent the Council from bringing him to account.”  Mr Everson further submitted that the prosecution was also seeking an order that the unlawful use cease and that the premises be restored as far as practicable to the condition they were in prior to the commencement of the use as a Vehicle Hire Premises.

19. [19]
    The maximum penalty prescribed under IPA in respect of the subject offence is $124,875 (1,665 penalty units, the monetary value of a penalty unit at the relevant time being $75).

Submissions made on behalf of Mr Kennedy in the lower Court

20. [20]
    The advocate for the appellant in the lower Court, Mr Brady, informed the Magistrate that his client was 46 years of age and had been operating car rental businesses for more than 25 years.  He commenced training in Sydney prior to moving to the Gold Coast from where he has operated for over 20 years.  He also operated a business from Cairns for a period of time.

21. [21]
    Mr Brady told the Magistrate that his client had moved into premises at 80 Ferny Avenue, some four doors south of the subject premises, approximately eight years before these proceedings commenced.  He operated from there for approximately three years until the site was sold, whereupon the appellant looked for other premises and identified an unkempt, overrun, vacant block some three doors north of the former site.  The appellant approached the owner of that premises and asked whether or not he could use the premises as a motor vehicle hire property.  The appellant assumed, at that stage, that no zoning difficulty existed because of the presence of half-a-dozen other car rental facilities within 100 metres of the site.  Mr Brady submitted that his client had asked the owner of the site, a company called Millennium World Proprietary Limited, whether or not the premises could be used as a vehicle hire property and was informed that it could.  Mr Kennedy did not discover that the site had not been zoned appropriately for car rental use until he was approached by Council officers approximately three years before the proceedings in the Magistrates Court.

22. [22]
    As a result of discovering that a motor vehicle hire business was a non-conforming use, Mr Kennedy made a development application which was approved for 12 months, subject to conditions which included the removal of a shipping container and the provision of landscaping.

23. [23]
    It was submitted on behalf of the appellant that at about the time the Council approved the development application, the owners of the site, Millennium World, advised Mr Kennedy that approval had been forthcoming to construct an 18-storey apartment building on the site and that, accordingly, Mr Kennedy should be ready to move at short notice because Millennium World was either going to sell the lot or construct the approved building itself. As a result, submitted Mr Brady, the appellant regarded his future at 90 Ferny Avenue as short term.  It was claimed that Millennium World kept dragging the matter on saying that the lot was to be sold and that the appellant could remain for another month thus, in effect, keeping Mr Kennedy on a lead.

24. [24]
    Mr Brady further submitted that his client had suffered liver failure brought on by a genetic blood condition.  He underwent a liver transplant in July 2000 and since then his health had been quite impaired.  It was suggested by Mr Brady that many of the adjournments sought by his client in respect of the subject proceedings were not for his own commercial benefit but because of Mr Kennedy’s medical condition.  Subsequent to the liver transplant Mr Kennedy’s doctors have been attempting to institute an appropriate drug regime to deal with rejection of the liver.  Unfortunately those drugs have caused osteoporosis, requiring Mr Kennedy to undergo a hip replacement with a second such operation being required as at the date of the hearing before the Magistrate.  Accordingly, submitted Mr Brady, his client had been unable to attend to the operation of his business as he would have hoped.

25. [25]
    Knowing that his occupation at the site would end when construction of the proposed building commenced, Mr Kennedy and Ms Jones purchased a site on the Gold Coast Highway with a view to conducting their vehicle hire business from this new location.  Unfortunately, however, the partnership between Mr Kennedy and Ms Jones dissolved and Mr Kennedy was not able to access the site.  Mr Brady informed the Court that the site is the subject of a dispute between his client and Ms Jones and that pending resolution of the dispute, some sharing of motor vehicles would occur but the business to be operated from the recently purchased site would be conducted by Ms Jones.

26. [26]
    Mr Brady informed the Magistrate that the subject premises had been sold recently to a company which intended to lodge an amended development application with the Council within six months.  Preliminary work had been carried out; architects and traffic engineers engaged to prepare various reports and it was expected that building would commence within approximately 18 months.  Pending commencement of construction, and subject to Council approval, it was hoped that Mr Kennedy could maintain his occupancy of the site for a period somewhat longer than that expected under the previous owners. 

27. [27]
    Mr Brady stated that an application had been made in June 2004 and following discussions between Council and Mr Kennedy’s agent, an amended application had been lodged with Council on 11 November 2004.  The application itself was some 30 pages in length and contained considerable detail.  Council responded by letter to Mr Kennedy’s agent and that letter was not seen by Mr Kennedy until a few days before the commencement of the proceedings in the Magistrates Court.  That, submitted Mr Brady, is the explanation as to why no response had been received by the Council since the application in June of 2004.

28. [28]
    According to Mr Brady a considerable, but unspecified, amount of money was spent by Mr Kennedy in cleaning the site up.  This work included removal of the shipping containers and preparation of a landscaping plan to include a two-metre buffer of gardens on the site’s perimeter.

29. [29]
    Mr Brady further submitted that, along with the new application, Mr Kennedy had delivered to Council a letter from the site’s new owners giving details of the continued occupancy and an indication to Council that the new owners will do whatever is necessary to ensure compliance by Mr Kennedy with Council requirements.

30. [30]
    Mr Brady informed the Magistrate that his client had attempted to be a good corporate citizen, for instance, by donating the use of a number of mopeds during schoolies week to enable the chaplaincy service to have some transport after hours to facilitate its work.

31. [31]
    Mr Brady’s submissions concluded with the following two paragraphs which are set out in full as the matters raised in them are of no little importance in the determination of this appeal:

“Your Worship, the only other matter that I’d ask you to take into account is that on my instructions the majority of the – of the adjournments to date have been as a result of matters beyond Mr – Mr Kennedy’s control.  He – as I’ve mentioned, the major one was when he was in – in hospital and that resulted from the – the ex parte application to convict Ms Jones.  Your Worship, in the cool light of day he determined that the best method of dealing with this was to change his plea and that he’s done so, thus saving the Council a considerable expense.  And, in fact, I don’t think there’s any argument about the fact that on the day that I was instructed in this matter a letter was written to council solicitors advising that there would be a plea of guilty, and that was done on the 5^th of November.

Your Worship, as to the financial state, I’m told by my client – when I discussed with him payment of a penalty he indicated to me that the business is not travelling terribly well, that the most that he believes that he would be able to pay by way of penalty would be at the rate of, say, a $1,000 a month.  So, carrying on of this business has not, with the greatest of respect, been a financial – been the financial success that – that my learned friend would – would have you believe…”

32. [32]
    Before delivering reasons for his decision the Magistrate was informed by counsel for the prosecution, Mr Everson, that it was understood that Ms Jones intended to change her plea from not guilty to guilty.  Mr Everson told the Magistrate that he had indicated to Ms Jones’ legal representative, Mr Mawson that the Council would be seeking a fine of $5,000 and $500 costs of court in her case, together with an order that there be no conviction recorded.

33. [33]
    It should be noted that no material in documentary form was placed before the Magistrate on behalf of the appellant.  In particular, no attempt was made to produce medical records or certificates or copies of taxation returns in respect of Mr Kennedy or the vehicle hire business operated by him.  No part of the prosecution material comprising the certificates of the Chief Executive Officer of the Gold Coast City Council or the affidavits tendered to the Court were contradicted or challenged by the appellant.

The Magistrate’s Decision

34. [34]
    In his reasons the Magistrate noted that the prosecution had painted a picture of a appellant who was “somewhat opportunistic in his actions and who has taken every chance to delay or frustrate finalisation of this matter for his own financial gain.”  By contrast, however, Mr Brady had described his client as an experienced operator in the car hire business who came across a vacant lot of land, was told the proposed use was allowed in circumstances where the site was surrounded by other car hire premises, and then went ahead.  The appellant was faced with uncertainty in relation to his occupation of the premises, notwithstanding the lodging of an amended application for use.  The Magistrate noted that the site is now owned by new owners who support the appellant’s application.

35. [35]
    The Magistrate specifically mentioned the significant health issues affecting the appellant, especially since July 2000, which had impacted upon the appellant’s ability to resolve this matter, his good corporate citizenship, his involvement in litigation in relation to the business, and the fact that the business had not been “going well in the present climate”.  The Magistrate concluded that he did not find it credible for Mr Kennedy, given his background, to simply rely on statements of third persons as a basis for setting up the business.  The Magistrate found that Mr Kennedy was resolved to start the business on the subject site without regard to Council regulation.  The Magistrate did accept that the appellant had experienced health problems but notwithstanding that, he formed the view that the most recent and somewhat belated application could have been made earlier in an attempt to address and resolve the outstanding issues.

36. [36]
    The Magistrate noted that the maximum penalty was a fine of $124,875 and stated that he agreed that the penalty should be substantial but having regard to the matters referred to by him, in particular the health concerns raised by Mr Brady, he had moderated the penalty.  He then ordered that the appellant was convicted and fined $18,000 together with $800 costs of court in default nine months’ imprisonment.  A further order was made requiring the appellant to immediately cease operating the business from the subject site and that the premises be restored within 28 working days to the condition they were in prior to commencement of the use.

THE APPEAL TO THE DISTRICT COURT – 28 OCTOBER 2005

37. [37]
    Mr Kennedy has appealed against the Magistrate’s orders pursuant to s 222 of the Justices Act 1886 (as amended).  Because Mr Kennedy pleaded guilty in the lower Court, the sole ground of appeal under this section is that the fine, penalty, forfeiture or punishment was excessive (s 222(2)(c)).  The written outline of submissions filed on behalf of the appellant on 7 March 2005 identified, in paragraph 11, the ground of appeal and contended that in imposing sentence the Magistrate:

    1. (a)
       failed to have regard, or sufficient regard, to relevant mitigating circumstances and matters required by legislation;
    2. (b)
       attached undue weight to assertions of the respondent that were not the subject of evidence and that the Magistrate’s failure to have embarked upon a fact-finding exercise in relation to such matters amounted to an error in the exercise of the sentencing discretion;
    3. (c)
       attached undue weight to the fact that the applicant did not seek Council approval prior to moving into the premises; and
    4. (d)
       erred in concluding the circumstances of the present matter required a substantial penalty.

38. [38]
    Pursuant to s 223 of the Justices Act 1886 (as amended), an appeal under s 222 is by way of rehearing on the evidence (“original evidence”) given in the proceeding before the Magistrate.  However, this Court may give leave to adduce fresh, additional or substituted evidence (“new evidence”) if the Court is satisfied there are special grounds for giving leave.  If the Court does give leave to adduce new evidence, the appeal is by way of rehearing on the original evidence and on the new evidence adduced.

Submissions made by, and on behalf of, the appellant, Mr Kennedy

39. [39]
    The special ground said to justify giving leave to adduce new evidence in this matter was identified by Ms Devery as follows:

“The special ground is, my client hasn’t been afforded the opportunity to give evidence as to the extent he complied with Council’s wishes to obtain approval, and that has an impact on the quantum of the fine.  It’s on the record, that application had been lodged, but not the additional steps to which  Mr Kennedy had gone to obtain approval.  The transcript suggests, and indeed, at the hearing before the learned Magistrate, it’s virtually stated there that my client was flouting the law.  The reference before the Court was only that application had been filed, not anything further than that an application had been filed, and my submission is, that impacts directly on the fine.” (Transcript p 11, l l 36-49)

40. [40]
    When asked to identify the evidence expected to be forthcoming from the appellant if leave were granted to adduce new evidence, Ms Devery stated that she expected her client to refer to correspondence he received from Council in relation to what further steps he was required to undertake to progress the application. Ms Devery also submitted that the lower Court had glossed over Mr Kennedy’s ongoing health problems as a partial explanation for the delay in furthering the application.

41. [41]
    The evidence foreshadowed by Ms Devery appeared to be relevant and leave was granted to the appellant to adduce new evidence.  However, it should be noted that Mr Kennedy could have placed such evidence before the Magistrate and no explanation for his failure to do so was forthcoming.  In any event, Mr Kennedy gave oral evidence on the hearing of this appeal and some further documents were tendered through him, principally in relation to business name searches that had been conducted in respect of Yahoo Car Rentals, Queensland Coastal Car Rentals and Mike Kennedy’s Mechanical and Panel Works (Exhibit 1).

42. [42]
    Mr Kennedy told the Court that the first application was made in 2002 and expired on 12 December 2003.  The second application was made to Council in June 2004, after Mr Kennedy had been informed that his permit had expired.  This application was rejected because it did not include an acceptable landscape design which included identification of plants proposed to be used in the landscaping.  Mr Kennedy was asked what step he next took, if any, to comply with Council’s request in relation to the proposed landscaping plan.  He replied:

“I went and organised a professional landscape architect company called, Habitat, and got them to do the exact precise drawings which were required by the council, nominating the type of plants that were going to be used in the – in the landscape, and I got them to – to design it to the council’s specifications and then I got that back to the draftperson, back to Lutterall, and he submitted – resubmitted the application, with another application fee again, so it was two application fees that had been – ‘cause the first application fee, because it was deemed unacceptable, we had to pay a second application fee, had to pay another – the – had to pay the draft – the architect landscape company two and a-half thousand dollars for their information about what sort of plants were going to go into the application.  And the application was resubmitted back to the council and the council wrote a letter back to me, to state that they were too busy to process the application, of which we’ve got a letter to state that…”  (Transcript p 16, ll 30-48)

43. [43]
    Mr Kennedy seemed to be critical of the Council in either being tardy in dealing with the revised application or in maintaining the prosecution against him while the application was before Council.  His evidence continued as follows:

“So, on the day that I came to the Court, I was guilty of the fact that I didn’t have a permit to say, ‘Yes, I am operating the business’ because I didn’t have the actual permit to say, ‘Yes, I did’ but the application was – and was still in the hands of the Gold Coast City Council waiting for them to process the application.  And had been sitting there – they took the money for the fees.  They took the money for everything to do with the application.  They turned around and they were the people that wrote the letter back to me to say that they – that they accepted my application, they took the fees, they took everything to do with the application.  The application was in the process of being done, but they were too busy to process it at the time and the Court case came up on the interim, so the fact that I was guilty, ‘cause I didn’t have a permit, but the – the point of this issue is, I’m not guilty and the fact that they are still holding my – my application while this Court case was performed back in November last year.  And that was the whole – the crux of the whole situation.”  (Transcript p 17, ll 2-20)

44. [44]
    When asked to identify the fees he had paid to Council in respect of his application for a permit to operate the vehicle hire business Mr Kennedy said:

“I paid three fees in total to the council for an application for this permit to operate the business.  They accepted my fees on three occasions.  They turned around and the – the – the current application that was in there at the time, they’ve – that had been processed, it was – been in their – in their system for up to eight weeks prior to this Court case that was on in November of last year.  The council officers were fully aware of the situation.  They came around and – and came to the business premises.  I said, ‘What can – what can I do?  I’ve – I’ve submitted the application to you people.  I’ve paid the fees, which I’ve done everything which is required in the Act, the – down to the draftpersons, the environmental study, the impact study, the road study, the – the landscape designer, the yard, the construction of the – and the design of the premises.  I did everything that was required by myself to turn around, to organise, to conduct, and to conduct the business from the premises, and to organise a current legal permit with the council.’”  (Transcript p 17, ll 23-41)

45. [45]
    Mr Kennedy stated that the cost of the application in respect of the third application cost him in excess of $12,000, the second application cost $8,000 and the first application cost $15,000.  In addition, Mr Kennedy was required to pay professional fees to his town planner, Mr Lutterall, in the amount of $5,000. 

46. [46]
    In cross-examination Mr Everson, counsel for the respondent, put to Mr Kennedy that he had not responded, either directly or through his town planner, to the letter received from the Council dated 5 July 2004 (Exhibit 2) informing him of the Council’s rejection of the application made in June on the basis that it was not properly made pursuant to the provisions of IPA.  Mr Kennedy did not accept that proposition and a short adjournment was granted to enable him to locate further documentation to support his position. 

47. [47]
    The document produced by the appellant following the adjournment comprised a letter addressed to him dated 9 December 2004 from a Matthew Hulse, Manager, Implementation and Assessment Branch of the Gold Coast City Council (Exhibit 3).  The letter was in the following terms:

“EXTENSION TO THE INFORMATION REQUEST PERIOD

With further reference to the Development Application lodged by:

Michael Kennedy

P. O. Box 1667

BROADBEACH  QLD 4218

In relation to development of land / premises described as:-

92 Ferny Avenue, Surfers Paradise

Lot 250 SP141011

In accordance with Section 3.3.6(6) of the Integrated Planning Act 1997, Council as the assessment manager has elected to extend the information request period by a further 10 business days.

Such an extension is due to the current high workload of Council Officers…”

48. [48]
    A submission from B C Currey, surveyors, addressed to the Chief Executive Officer of the Gold Coast City Council dated 11 November 2004 in respect of a material change of use application for Vehicle Hire Premises at the premises was tendered by Ms Devery at the request of the prosecutor (Exhibit 4).  This document comprises the third application referred to by the appellant. 

Chronology of the applications

49. [49]
    The chronology of the applications, therefore, appears to be as follows:

    1. (a)
       the appellant’s 12-month permit for use of the premises for Vehicle Hire Premises expired on 12 December 2003;
    2. (b)
       in June 2004 an application was made for material change of use;
    3. (c)
       that application was rejected and by letter dated 5 July 2004 the Council explained how the defects in the application could be rectified;
    4. (d)
       the letter dated 11 November 2004 from B C Currey Surveys was sent to the Council; and
    5. (e)
       by letter dated 9 December 2004 the appellant was notified that the assessment manager had extended the information request by 10 business days because of the current high workload of Council officers.

50. [50]
    Accordingly, it seems that the Council was in possession of the development application that had been lodged by the appellant at the time of the proceedings before the Magistrate.  Subsequent to the proceedings in the lower Court, the information request was extended by 10 business days.  Notwithstanding Mr Everson’s contention that it is likely that the Council had not had sufficient time to consider fully the matters raised by the appellant’s application prior to the determination of the proceedings in the Magistrates Court, it is of relevance, in my opinion, to note that the application had been submitted to Council by the date of the hearing in the lower Court.  I should make it abundantly clear that I do not attribute any blame to Mr Everson’s client in these circumstances.

51. [51]
    A further document comprising a letter dated 26 November 2004 from the Manager, Implementation and Assessment Branch of the Gold Coast City Council, and addressed to Mr Kennedy care of B C Currey (Surveys), was tendered by Ms Devery (Exhibit 5).  This document notes that the proposed development will require impact assessment and that public notification will be required in accordance with Part 4 – Division 2 of IPA with an information request to be made by Council as the assessment manager.  Little is added to the overall picture as to the state of the appellant’s application by this document beyond confirming that the Council indeed had acknowledged receipt of  Mr Kennedy’s development application.

52. [52]
    In his oral evidence Mr Kennedy repeatedly emphasised that the reason he pleaded guilty to the charge before the Magistrate was because he acknowledged he did not have a permit for the operation of the Vehicle Hire Business but seemed to blame the Council for that situation by claiming that “the application was in at the Council being processed, and the bottom line is I didn’t have a permit because it was still being processed.”  (Transcript p 35, ll 40-43)

FINDINGS

53. [53]
    I found Mr Kennedy to be rather overbearing in his manner when testifying.  Indeed, on occasions he attempted to talk over his own advocate and at times was quite rude to Mr Everson.  I did not find him to be an impressive witness.  However, the facts relating to the history of Mr Kennedy’s development application appear to be satisfactorily established by the production and tendering of the documents to which I have referred.  Although that history demonstrates clearly enough that the Council had received the so-called “third application”, it does not explain the appellant’s somewhat cavalier approach in assuming that no application was required for him to operate a vehicle hire business from the premises.  The appellant relied on what he was allegedly told by the owners of the subject site together with the fact that similar businesses were operating from sites in close proximity to the premises.

54. [54]
    The chronology of correspondence between the appellant (through his town planner) and the Council indicates that time was certainly not of the essence in Mr Kennedy’s attempts to formalise his position.  In this regard, while the very serious health concerns of the appellant must be considered, the absence of any written medical records makes it somewhat difficult to comprehend the extent to which the lack of urgency apparent from the chronology was due to Mr Kennedy’s medical condition.  Ultimately, I conclude that while the appellant’s state of health undoubtedly contributed to the length of time taken to formalise the non-conforming use of the premises, that does not provide a complete answer to the extended period over which the various applications and responses continued.  However, I do not accept that the appellant had embarked upon a deliberate course of action to breach and frustrate the Planning Scheme.

55. [55]
    Similarly, when one turns to an evaluation of the contention for the appellant that he was, as at the date of the lower Court hearing, and remains to the present time, a man of straw, one is frustrated by a complete lack of documentary evidence to support the contention.  No copies of tax returns or letters from an accountant were placed before the Magistrate and none were adduced on the hearing of this appeal.  The appellant has had every opportunity of clarifying his financial status by the production of such documents and his failure to do so suggests that such evidence would not support his advocate’s contention.  Accordingly, although regard must be had to the submissions made on behalf of Mr Kennedy in relation to his finances, little weight can be given to them in these circumstances.  The prosecution, of course, is in no position to comment on the submissions made in this regard.  Although the material clearly suggests that the vehicle hire business continued to operate even when Mr Kennedy was in hospital, no accurate assessment can be made as to how lucrative the business had been during the relevant period.

56. [56]
    Two matters which are of undoubted importance in the assessment of penalty in this case relate to the extent to which any fine imposed should be ameliorated because of parity with the fine imposed upon Mr Kennedy’s co-defendant in the Magistrates Court, Ms Jones, and the value to the prosecution and the Court of the appellant’s plea of guilty.

Parity

57. [57]
    In relation to parity, Mr Everson made submissions concerning the penalty imposed on Mr Kennedy’s co-defendant.  He told this Court that:

“…I negotiated the penalty.  Ms Jones wanted an adjournment, the Council wanted the matter finalised because we’d already got an order shutting the use down, and an arrangement was made whereby if Ms Jones pleaded guilty that day, that Council would seek a fine of no more than $5,000.  And Council made that submission and the Magistrate duly fined Ms Jones $5,000, concluding the matter.  And the reason why we were minded to do that was mainly to bring the matter to an end, because the use was then going to terminate, which was the main concern at that point.

…

[Mr Kennedy] was, according to the official records we had, with respect to that business name, [Yahoo Car Rentals], the proprietor of the business for the majority of the period that that business was being conducted unlawfully.  And because of this proportionality that was demonstrated by the business name search and because of the fact that Mr Kennedy had already been dealt with and the business was going to come to an end because of the consequential order, Council was happy to negotiate a plea bargain with respect to Ms Jones.

The Magistrate did not exercise any sentencing discretion with respect to Ms Jones.  We said we’d agreed that $5,000 would be an appropriate penalty and he was happy to impose it.”(Transcript pp44-45).

58. [58]
    As I observed during the hearing of the appeal, this reflects a highly unusual approach by any judicial officer.  Any Judge or Magistrate, in my view, is obliged to turn his or her mind to the proper exercise of the sentencing discretion, having regard to the positions adopted by the parties but nevertheless, of necessity, reserving to himself or herself the final sentencing decision based on proper considerations.  I hasten to add that in this case there is nothing on the material to suggest that the Magistrate played any part in a “plea bargain”.  I understand Mr Everson’s submission to mean no more than the parties had apparently entered into some negotiations between themselves as to the quantum of any monetary penalty. 

59. [59]
    The transcript of the proceedings in respect of Ms Jones is, regrettably, not included in the material relied upon by the parties in this appeal.  Even accepting, as I am prepared to do, that Mr Kennedy is shown by the business name searches to have been the nominated proprietor of the Yahoo Car Rentals business from 1 February 2004 and that Ms Jones ceased to be the nominated proprietor of the business from that same date, the respective degree of participation in the business of each co-defendant has never been satisfactorily delineated.  I think it must be accepted that both were involved in the operation of Yahoo Car Rentals and that probably, when Mr Kennedy’s health prevented him from actively overseeing the activities of the business, Ms Jones’ role intensified.

60. [60]
    No criticism on the ground of parity may be made of the Magistrate’s decision to fine Ms Jones $5,000 and Mr Kennedy $18,000 because separate proceedings were held in respect of each defendant, with independent legal representation.  Nevertheless, I am somewhat uneasy with the marked discrepancy of the fines imposed in the lower Court.  It may well have suited the convenience of the respondent Council to have settled for a much lower fine in the case of Ms Jones in order to bring the matter to an end, but it is not easy to reconcile the fines having regard to the fact that each co-defendant played an active role in the business.  In R v Holdsworth and Crossman (unreported, Qld Sup Court CA, nos 150 & 156 of 1999, 20 August 1999) the Court observed, “It is fundamental in the sentencing function that the offender be punished according to his own conduct…although several offenders may be convicted of the same offence, each must be punished according to the reprehensibility of his own conduct.”  This observation reflects the statement of principle from the High Court with respect to the principle of parity in Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ who stated that, “It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”  In my view, some adjustment of the fine to be imposed in respect of Mr Kennedy must be made to more fairly balance the punishment of each co-defendant.

Effect of the appellant’s plea of guilty

61. [61]
    I turn to a consideration of the reduction in penalty to which the appellant is entitled as a result of his pleading guilty to the charge before the Magistrate.  Mr Everson is critical of the relatively late indication of Mr Kennedy’s intention to enter a plea of guilty, and claims that, in fact, the Council was relieved of very little expense, having prepared for trial, prior to being notified.  The Council, or perhaps more accurately the Council’s solicitors, received notification of the appellant’s intention to plead guilty in the lower Court five days before the scheduled hearing of the trial.  Of that period, only three days were normal business days with a weekend intervening. 

62. [62]
    It may be more appropriate to describe the appellant’s plea of guilty as a timely plea rather than an early plea.  Nevertheless, he is entitled to a reduction in penalty as a result of his plea.  Such cooperation undoubtedly spared the Court considerable time in finalising the matter and no doubt resulted in some saving of the time that would otherwise have been necessary for Council officers to attend Court.  It is not apparent, from a perusal of the reasons for the Magistrate’s decision, that any reduction in penalty flowed from the defendant’s plea.  In R v Woods (2004) QCA 204 the sentencing Judge had failed to state in open Court that he had failed to take the pleas of guilty into account.  The Court of Appeal stated, at para 10:

“The necessity to take a guilty plea into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process.  In R v Taylor & Napatali: Ex parte Attorney-General (Qld) [1999] QCA 323 McPherson JA observed:

‘Section 13(1)(a) [of the Penalties and Sentences Act (1992)]… requires a sentencing court to take a guilty plea into account.  It uses the expression ‘must take the guilty plea into account’. Having done so, the court ‘may then reduce the sentence imposed’…and, in doing so, have regard to the time at which the offender pleaded guilty or advised the intention of doing so: s 13(2).  This confers a discretion on the sentencing court, but it is plainly intended that the sentence will ordinarily undergo some reduction on that account.  If it is not so reduced, the reasons for not so doing must be stated in open court: s 13(4).’”

63. [63]
    I indicate, then, that I have taken into account the appellant’s plea of guilty in the resolution of this appeal.  It is, in my opinion, appropriate to reduce the sentence that would have been imposed had the appellant not pleaded guilty to reflect the degree of cooperation and resultant saving of Court time and expense, as well as the benefits to the Council in respect of these matters.

CONCLUSION - ORDERS

64. [64]
    Upon a consideration of the material placed before this Court as well as that considered by the Magistrate, and having regard to the matters contained in the submissions of Mr Everson and Ms Devery, I have concluded that the fine imposed in the lower Court of $18,000 was excessive.  In my view, the appellant should be fined $10,000 in default 5 months imprisonment.  This sum better reflects the requirements of parity and recognition of the benefits flowing from his plea of guilty.  In all other respects the orders of the Magistrate should stand.  Accordingly, the appeal of Mr Kennedy is allowed.  I vacate that part of the Magistrate’s order whereby he imposed a fine of $18,000.  I order that the appellant be fined $10,000 in default 5 months imprisonment and that the orders made by the Magistrate remain otherwise undisturbed.

65. [65]
    I will, if required, receive submissions in due course as to costs.