Murn v Gynther[2022] QDC 26

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 26 March 2021 Mr Gynther pleaded guilty in the Caboolture Magistrates Court to two counts of carrying out assessable development without a development permit contrary to s 163 of the Planning Act 2016 (Qld) (“the Planning Act”).  A global penalty was imposed for both counts of a fine of $7,500 without a conviction being recorded.  The appellant, an officer of the Department of Natural Resources (“the Department”) had also sought an enforcement order pursuant to s 176 of the Planning Act to, in effect, restore the relevant land to its pre-development condition, however the Magistrate, in the exercise of the discretion conferred by that section, refused to do so.
2. [2]
   Mr Murn appeals against the inadequacy of the penalty and the refusal of the enforcement order.  The fine is said to have been manifestly inadequate, and the refusal to make the enforcement order is said to have been an error of law.

Nature of the appeal

3. [3]
   There are a number of authorities describing the nature of the jurisdiction conferred by s 222 of the Justices Act.  In my view a helpful summary is in McDonald v Queensland Police Service^[1] at [47] where Bowskill J, with whom Fraser and Philippides JJ agreed said:

“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.  Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”

4. [4]
   In relation to an appeal against sentence, the principles were discussed in R v Muirhead^[2]. A sentencing court exercises a discretionary judgement subject to applicable statutory provisions (such as Part 2 of the Penalties and Sentences Act 1992 (Qld)) and relevant precedents. An appellant must demonstrate either an express or implied material error; express errors include acting on a wrong principle (e.g. mistaking the law or the facts or taking into account an irrelevant consideration). Implied error arises where the outcome is so unreasonable or unjust that a substantial wrong has demonstrably occurred. The discretion conferred on sentencing courts is fundamental and an appellate court may not substitute its opinion for that of the sentencing court merely because it would have exercised the discretion differently.^[3] All relevant considerations (and only relevant considerations) must be taken into account in reaching the conclusion; there is no single correct sentence; and courts at first instance are to be allowed as much flexibility as is consonant with consistency of approach and the statutory regime.^[4]
5. [5]
   An orthodox approach in considering manifest excess is to view the sentence having regard to the maximum penalty, the circumstances of the offence, relevant comparable cases and the personal circumstances of the offender.^[5]

Circumstances of offences

6. [6]
   Mr Gynther, together with his wife, is a joint tenant of the relevant land, Lot 3 on Survey Plan 130698, also described as 14 Korman Road, Griffin (“the Property”).  They have owned the land since 1994.  They renovated a house on the land and moved into the house with their children in 1996.  The property is slightly more than 40 hectares in area, adjoining the Pine River along its southern boundary.  A small number of cattle were kept on the property until about 2001.  The bulk of the property is not able to be developed, as it is a rural zone and low lying with much of it susceptible to flooding in high rainfall events.
7. [7]
   The property is transected by a manmade drainage line constructed prior to the Gynthers’ purchase, and this has apparently become wider over the years.  It is now referred to as “Lobbs Creek”.  This restricts access to the eastern half of the property apart from at low tide.
8. [8]
   Accordingly, in 2019, Mr Gynther, who was in the process of having a shed constructed on his property, sought to improve access by having the contractors construct what amounted to a causeway across the watercourse.  The plan was for a layer of large rocks as a bed, followed by concrete pipes, to be surmounted by a surface trafficable by pedestrians and very light vehicles.  Mr Gynther’s position, which is not contentious, is that he did not consider it necessary to obtain a permit, and relied on his builder’s (incorrect) advice in this regard.
9. [9]
   Accordingly, the construction commenced with the bed of rocks as a base for the causeway, and a driveway leading to it.  Before the construction could go further fisheries inspectors instructed Mr Gynther to stop construction which he complied with.  The present charges followed, referring to both the placement of the rocks (Count 1) and the destruction of marine plants in the relevant area as part of the construction.  These are said to include salt couch, bead weed, seablight, grey samphire and mangroves (Count 2).  Development permits were required for all of this work, and not obtained, as outlined above.
10. [10]
    Mr Gynther resists the appeal, arguing that the sentence is not manifestly inadequate and that no error is demonstrated in the refusal to make an enforcement order.

The decision

11. [11]
    The Magistrate, in his sentencing remarks, took account of the relevant circumstances and the submissions.  He referred to legislation including the Penalties and Sentences Act 1992 (Qld), which was of course the applicable statutory regime.  He observed that Mr Gynther’s assumption that he was entitled to build the causeway was not unreasonable.  The partially constructed causeway is completely underwater at high tide and thus does not completely restrict the flow of water.  In relation to the penalty imposed, his Honour referred to comparable cases which had been presented including Seatree Investments Pty Ltd^[6] where a fine of $10,000 was imposed for the clearing of 130 mature mangrove trees; further to a matter of McMahon^[7] where a fine of $4,000 was imposed, and GLB Quarrying and Logistics Pty Ltd^[8] where approval for clearance had been obtained but an excessive amount was removed resulting in a fine of $10,000. 
12. [12]
    His Honour referred to Mr Gynther’s age, 74 years; his good standing in the community; his cooperation with investigators and a timely plea of guilty, with remorse shown and expressed; his record in conservation; the fact that he was ignorant of the legal requirements and did not conduct the exercise for commercial gain.  He also referred to the lack of any previous criminal history and that the damage to the grass in the area was minimal.  He also observed that the area had been previously, legitimately, grazed by cattle and that the causeway does not completely block the flow of the creek.  His Honour also referred to Mr Gynther’s war service and that he suffers PTSD as a result.  He thus arrived at the fine of $7,500 collectively for the two counts together with $99 court costs and $250 professional costs.
13. [13]
    In relation to the enforcement order application, his Honour concluded that the construction only restricted waterflow at low tide, and further, there was other restriction to the flow slightly down stream in the form of, in effect, sandbanks, which are visible on photographs attached to Mr Gynther’s statement.  In this context, the sentence proceeded, and it is not suggested otherwise than that this court should proceed, on the basis of paragraph 34 of the statement which was tendered, as follows:

“During the 12-hour tidal window, the rocks are above water for about an hour or two.  However, at this time, about 50 metres downstream the ‘mouth’ of the drainage line is also above water (it is a sandy area, so fish could not enter the drainage line in any event).”

The attached paragraphs support this commentary, and I do not understand it to be contested by Mr Murn.

The appellant’s submissions

14. [14]
    Mr Murn argues for a penalty in the order of $20,000 to $30,000, consistent with his submissions below.  It is said that the existing penalty is manifestly inadequate, and that the Magistrate did not take sufficient account of the principle of general deterrence, which is embodied as one of the purposes of sentencing in s 9(1)(c) of the Penalties and Sentences Act.
15. [15]
    In particular, Mr Murn refers to Esat v Rauchle^[9] where the destruction of marine plants (mangroves) over an area of 52m² resulted in the fine imposed in the Magistrates Court of $2,000 being increased on appeal to $6,000.  The analysis of Judge Farr, SC in this conclusion included the reasoning that the fine represented only 34 per cent of the application fee that would otherwise have been necessary to obtain permission for the removal of the plants.  This, then, is said to represent a lack of deterrence, in that someone inclined to such clearing would be more inclined to do so without a permit in order to pay a fine smaller than the quantum of the application fee. 
16. [16]
    Applying that reasoning to the present case, Mr Murn’s contention is that the fine imposed here represents only 28 per cent of the application fee which, in this case, would have been $26,946.  Therefore, by parity of reasoning, he argues that the fine is demonstrated to be both manifestly inadequate and the reasoning process to have ignored the important principle of general deterrence.
17. [17]
    As to the enforcement order, Mr Murn argues that the jurisdiction under s 176 of the Planning Act should have been exercised.  In effect, it is submitted that the work conducted was development, which required approval and in order to return the area to the status quo the order should have been made.  Such an order is not part of the punishment, but rather a restorative provision.  In this context, s 176(1) provides four examples of actions that such an order may require.  This includes to restore, as far as practicable, premises to the condition the premises were in immediately before the development was started.  The argument is that in circumstances where Mr Gynther admits having changed the environment and removed some plants by the unauthorised works, the legislation provides for restorative orders and there is no reason why such a jurisdiction should not have been exercised in this case. The failure to do so represents an error in the exercise of the discretion created by the section.
18. [18]
    It is argued that no proper reasons were given for declining to make such an order; self-evidently, plants which were previously in existence are now not and thus the gravel of the adjacent driveway and the rocks should be removed so that plants can regrow, returning the land to its predevelopment state.  The causeway should also be removed such that fish are not restricted from navigating the creek at low tide.

Respondent’s submissions

19. [19]
    Mr Gynther conversely argues that no error is demonstrated, the penalty is not manifestly inadequate, and the Magistrate was not shown to be in error in exercising his discretion not to make an enforcement order.
20. [20]
    In relation to Mr Murn’s reliance on Esat, it is argued that that case was far more serious.  The defendant in that case was evasive and denied knowledge of the unlawful clearing; he had gone ahead recklessly in circumstances where his neighbours had told him that the clearing was unlawful.  His actions were far more serious and deliberate than the present case.  It is also argued that in this case, the causeway being incomplete, Mr Gynther has not received any meaningful “benefit” from the unlawful works, and in those circumstances the relevance of any application fee for a development permit to undertake those works has less relevance.
21. [21]
    The penalty is also contended to be not inadequate when compared, for example to Tseng v Brisbane City Council^[10] where a penalty of $40,000 was imposed for works which were far more extensive, indeed about 10 fold in magnitude, compared with the present case; such works having been undertaken for commercial gain after having been warned by the Council; the defendant being disingenuous and aggressive towards the Council; further that there was a plea of not guilty requiring a lengthy trial and the environment was positively harmed.  Mr Gynther also points to Sea Tree Investments (supra) and QLB Quarrying and Logistics Pty Ltd (supra) as justifying a fine in the order of that imposed by the Magistrate, given the circumstances of the present case.
22. [22]
    In relation to the making of the enforcement order, Mr Gynther emphasises that this is discretionary and urges three broad considerations in support of the conclusion that one ought not have been made.  Firstly, because the creek is cut off by other sandbanks 50 metres closer to the mouth of the waterway in any event, the distinction between the causeway existing or not existing in its present form makes very little difference to marine life; a fish attempting to navigate downstream at low tide is only prevented from going another 50 metres or so.  Secondly, as noted above, it is said that Mr Gynther has not enjoyed any benefit from the works which he should not be permitted to retain.  The situation is contrasted with someone who unlawfully demolishes a heritage or historic house or structure in order to benefit from development thereon; such a person clearly gains a benefit from their wrongdoing, which is not the case here.  Thirdly, it is said that the cost of the rectification works, said to be in the order of $90,000^[11], would impose an unreasonable burden on Mr Gynther in the circumstances outlined above (including the apparently marginal difference to the environment), and this is a relevant consideration to the exercise of the discretion.

Consideration

Penalty

23. [23]
    As to the penalty imposed, it is certainly correct, as Mr Gynther concedes, that the fine imposed is modest when compared with both the application fee and with the maximum penalties available for each of the counts ($261,100 and $391,650 respectively).  However, in my view there is force in Mr Gynther’s argument that this comparison, whilst in some cases such as Esat having relevance to the analysis of the relevant question of general deterrence, does not represent an immutable guideline in every case.  Thus, the distinction drawn here is that, in contrast to Esat, Mr Gynther has not received any benefit from the avoidance of the application fee; that is, the causeway did not proceed to conclusion of its construction.  Further, as outlined above, the harm done to the flow of water, whilst it does exist, makes little difference to the overall result in the environment, given that 50 metres downstream the sandbank further restricts the flow of water to a similar or perhaps greater extent. Thus while I respectfully adopt the accuracy and force of the reasoning in Esat, in my view Mr Gynther is correct to argue that the same analysis does not apply with equal force in this case.
24. [24]
    Mr Murn fairly concedes that a number of circumstances tend to mitigate the penalty to be imposed.  These are set out at paragraph 13 of his outline as follows:-

1. Mr Gynther’s age (74 years at the time of sentence).
2. His umblemished record.
3. His status as a retiree.
4. His suffering PTSD as a consequence of his service in Vietnam.
5. His community service through his church.
6. He is a commissioner for declarations.
7. He has done voluntary work with Vietnam veterans.
8. He did not realise that his actions were unlawful.
9. His cooperation with the authorities.
10. The clearing was not done for commercial gain.
11. He pleaded guilty at an early stage.
12. He has demonstrated commitment to the enhancement of the environmental values on his property, including the establishment of a koala tree corridor and consent to the State, and university students undertaking investigations on his property.

25. [25]
    Taking into account the circumstances in mitigation, and reaching the conclusion, as I do, that the analysis in Esat - referring as it does to the amount of the application fee as giving guidance to the concept of general deterrence - has less force in this case, my conclusion is that it is not demonstrated that the penalty imposed was manifestly inadequate.

Enforcement Order

26. [26]
    In relation to the question of the imposition of an enforcement order, again I am of the view that there is force in Mr Gynther’s arguments.  When one understands that the restriction on the waterway being navigable by marine life is only a restriction in the order of approximately 50 metres, the need for it to be removed under s 176 diminishes, in my view.  Mr Murn also makes the further point that there is also a more extensive area of the land which was cleared, and a gravel driveway installed.  However, there is no precise evidence as to the number or quantity of plant life removed (or even the particular species) and it is hard to conclude that significant rehabilitation of that area is necessary. 
27. [27]
    In an appeal of this kind, as outlined above, the consideration is not whether this court would exercise the discretion in the same way that the Magistrate did at first instance.  Rather, the issue is whether the Magistrate, acting as he did, can be shown to have erred in the exercise of the discretion in an impermissible way^[12].  His Honour observed as follows when dealing with this issue:

“When one – looking at the photographs.  If one looks at the photograph that depicts the roadway at low tide, there is a significant distance between the roadway and the river.  There’s – is also out of water, high and dry, so to speak.

So lets not call it – the existence of the wall as it is is not causing any more – at low tide, its not causing any impediment, and at high tide the water can flow in a normal manner on which the creek would flow without the wall there.  So its not a dam.  It’s not completely blocking the waterway.  So in those circumstances, I decline to make an enforcement order.”

28. [28]
    This language, with respect, is not completely clear at first reading, but is made so when looking at the photographs to which his Honour referred. Mr Gynther argues, and I accept, that the Magistrate appropriately turned his mind to the discretion available under s 176 and did not consider it necessary to make an order to restore the premises to the condition they were in before development was started, for the reasons outlined above.  The first stage of the causeway simply did not make sufficient difference to the flow of water to require remediation, and the vegetation in the area where the driveway was constructed was also not significant.

Conclusion

29. [29]
    It is understandable that the regulatory authority saw fit to challenge the result in this case; no doubt it is an important jurisdiction, protection of the environment is essential, and appropriate penalty ranges should not be eroded by allowing inadequate penalties to stand. Further the maximum penalties are significant. However my conclusion, for the reasons outlined above, is that the appellant has not demonstrated, in the particular circumstances of this case, either that the penalty imposed was manifestly inadequate nor that the discretion to refuse an enforcement order was wrongly exercised in a way which amounts to appellable error.  In all the circumstances the appeal should be dismissed.