Brisbane City Council v Natural Lifestyle Homes Pty Ltd
[2023] QDC 234
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- Unreported Judgment
- Brisbane City Council v Natural Lifestyle Homes Pty Ltd[2023] QDC 234
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Brisbane City Council v Natural Lifestyle Homes Pty Ltd[2023] QDC 234
Reported at (2023) 3 QDCR 465
Brisbane City Council v Natural Lifestyle Homes Pty Ltd[2023] QDC 234
Reported at (2023) 3 QDCR 465
DISTRICT COURT OF QUEENSLAND
CITATION: | Brisbane City Council v Natural Lifestyle Homes Pty Ltd [2023] QDC 234 |
PARTIES: | BRISBANE CITY COUNCIL (appellant) v NATURAL LIFESTYLE HOMES PTY LTD (respondent) |
FILE NO: | 1924/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 12 December 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 December 2023 |
JUDGE: | Kent KC, DCJ |
ORDER: |
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CATCHWORDS: | CRIMINAL LAW – APPEAL – SENTENCE – where development approval was granted to the Respondent authorising a residential build contingent on an existing historic cottage being retained as part of the project – where the property was owned by a shareholder of the Respondent – where the Respondent had previously unsuccessfully applied to demolish the cottage and create a replica as part of the new build – where in the course of the project the Respondent demolished the cottage and erected a replica without notifying the Appellant or obtaining approval to do so – where the Respondent pleaded guilty in the Magistrates Court to one count of carrying out assessable development without a permit and one count of contravening a development approval – where the respondent company was fined $20,000 – where the respondent company’s only shareholders were fined $19,000 and $15,000 respectively – where the maximum fine that could have been imposed against the Respondent company is $3,002,625 – whether fine imposed on the respondent company was manifestly inadequate – whether the Respondent has capacity to pay a more substantial fine – whether there should be a resentencing of the Respondent in consideration of the residual discretion to decline to do so on a prosecution appeal despite manifest inadequacy |
LEGISLATION: | Justices Act 1886 ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 9, 48, 181B Planning Act 2016 (Qld) ss 163, 164 Queensland Building and Construction Commission Act (Qld) 1991 s 56AC |
CASES: | ABCC v Pattinson [2022] HCA 13 Bell v Brisbane City Council [2018] QCA 84 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40 Clark v Cook Shire Council (2008) 1 Qd. R. 327 Elias v R (2013) 248 CLR 483 Harris v Laggeroth; Harris Operations Pty Ltd v Laggeroth [2020] QDC 285 Markarian v R (2005) 228 CLR 357 R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 Reckitt v Benckiser (2016) 340 ALR 25 SafeWork NSW v Macquarie Milling Co Pty Ltd [2019] NSWDC 111 |
COUNSEL: | S Holt KC for the appellant J Hunter KC with K Wylie for the respondent |
SOLICITORS: | City Legal for the appellant Milne Legal for the respondent |
Introduction
- [1]The appellant is the prosecuting authority in relation to offences committed by the respondent against the Planning Act 2016 (Qld) (the Act). The respondent pleaded guilty to one count of carrying out assessable development without a permit in breach of s 163(1) of the Act and one count of contravening a development approval in contravention of s 164 of the Act. The matter was heard in the Magistrates Court on 9 June 2023 and the respondent was sentenced to a total fine of $20,000 for the two offences. Its shareholders, Mr Keane and Mr Carroll (also a director), were also sentenced on the same occasion and received fines of $19,000 and $15,000 respectively for the offences. There is no appeal against those orders. The appeal, under s 222 of the Justices Act 1886 (Qld), is essentially one against what is said to be the manifest inadequacy of the penalty imposed on the respondent; it is argued to be “unreasonable or plainly unjust”, see R v Cooper [2021] QCA 169 at [16].
Background
- [2]The offences concern the redevelopment of a residential property at 41 Wilden Street, Paddington, owned by Mr Keane and his wife. Mr Keane had previously applied to demolish the cottage which was on the site and create a replica of it as part of a large new residential build. This was refused by the appellant because of the age of the property (1888) and the need to protect it pursuant to the Traditional building character overlay code of the area pursuant to the Brisbane City Plan 2014, applying as it did to pre-1947 dwellings in the area. The subject dwelling was one of, or the oldest in the street.
- [3]There is a clear public interest in such matters as the protections afforded to historical buildings such as this, pursuant to such planning controls as the code under discussion. A planning scheme such as the City Plan is of course an expression of what constitutes the public interest, including in the striking of a balance between interests potentially affected by it; Clark v Cook Shire Council (2008) 1 Qd. R. 327 at 338; Bell v Brisbane City Council [2018] QCA 84 at [66]-[67].
- [4]Mr Keane and Mr Carroll, through the respondent, had been in the business of renovating and on selling inner city properties for many years and were experienced in the industry. Mr Keane has a bachelor’s degree of Built Environment and is a qualified carpenter. Mr Carroll seems to be a registered builder, since 1998. However the project under discussion was a personal one for Mr Keane and his wife; there is not suggested to have been a financial profit intended in the exercise, rather the Keane family were intending to live in the property.
- [5]Development approval was eventually given for the new residential build requiring the existing cottage to be retained as part of the project. This was clearly a very different project from the one which had been rejected and the retention of such an old and presumably somewhat delicate timber structure whilst engaging in new building work around it was a significant undertaking. One of the conditions of the approval was that the cottage be braced to ensure its structural integrity; it was made perfectly clear that all parts of the building not specifically designated for demolition were explicitly required to be retained and protected.
- [6]The site slopes from the street towards the back of the property, and to one side. The plan was apparently to move the (properly braced) protected structure to the back of the site, complete new construction work at the front, then “slide” the preserved structure back onto a part of the new work where it would be integrated with the to-be-completed building and then the rest of the work on the new dwelling would be completed behind and around the preserved heritage structure. The result would include the preserved structure forming part of the streetscape, consistent with the public interest of preserving the amenity of traditional building character in the area according to the code. This brief narrative indicates that what was being undertaken by the respondent in accordance with the approval was no simple task.
- [7]The cottage was moved to the back of the site without apparent difficulty, having been internally braced for the move. A house removalist firm was retained for that purpose. It seems that once it had been relocated at the back of the site the bracing was removed and the respondent at some stage reached a decision that moving it forward and up into location on the new residential build was no longer feasible. There is no explanation as to why structural engineers were not consulted by the respondent as to the feasibility of this relocation plan either before the cottage was relocated to the back of the site or at the point when the time came to attempt to move it forwards and into position; indeed, Mr Carroll frankly says his fundamental error was not undertaking a structural assessment of the building before it was moved. It seems the respondent simply reached its own decision to demolish (disassemble) the cottage and build a replica of it instead. The only retaining artefacts are an original door and a portion of two original windows.
- [8]When this decision was taken, the respondent did not advise the Council or the relevant building certifier of the decision that had been taken. Nor did it apply for permission to demolish the cottage, obtain advice from a structural engineer as to what could be done to remediate the situation, or apparently brace the cottage after the move to the back of the site as it was clearly required to do as part of the development approval. One of the things pointed out by the appellant is that this is a curious set of responses for an experienced inner-city builder and renovator with no claim to naivety in this area. The respondent holds a building licence. Mr Keane is a qualified carpenter. As mentioned above, the approval was in clear explicit terms.
- [9]As the appellant argues, the net result is that the respondent achieved what the Council had earlier refused it permission to do, that is demolish the cottage and build a replica in its place, the replica not being the beneficiary of the same protection under the planning scheme as the original building.
- [10]The penalty imposed by the Chief Magistrate was a fine of $20,000, in the context of the respondent’s said to be difficult financial circumstances and the impact of the fine on the individual co-defendants, who had themselves also been fined, as set out above.
The Issues
- [11]The penalty is simply said by the appellant to be manifestly inadequate and in particular fails to reflect a need for general deterrence in cases of this kind. One of the matters pointed out by the appellant is that the maximum penalty for the offences for a corporate defendant is $3,002,625; five times of that for a natural person (s 181B(3) of the Penalties and Sentences Act 1992 (Qld)). In a purely arithmetic sense, the penalty is miniscule, representing 0.66 percent of the theoretical maximum. This must, of course, be seen in the context that the maximum penalty is reserved for the most serious cases and there are offences of this general nature, under the Act, which are much more serious than the present one. More detail of the factors relevant to the exercise of the sentencing discretion, as agitated below and on appeal, is set out below.
Seriousness of the conduct
- [12]The seriousness of the conduct includes the lack of compliance with the development application; the choice, taken not in emergent circumstances but apparently a decision reached over some weeks, to demolish the property; the choice not to contact the Council before, or indeed after, doing so, removing from the Council the possibility of any scrutiny or challenge of the unilateral decision to demolish. As the learned Chief Magistrate (who sentenced the respondent) accepted, the very essence of the approval scheme in place was to protect important heritage in Brisbane’s built environment, a protection which is undermined if approval requirements are disregarded. Her Honour accepted in that context that general deterrence was a significant consideration.
Penalty five times that for natural persons
- [13]The appellant also points out that there seems to have been little recognition in the decision-making process of the significant feature of the maximum penalty for the corporate defendant being five times that of the penalty for natural persons. In Harris v Laggeroth; Harris Operations Pty Ltd v Laggeroth [2020] QDC 285 it was emphasised that attention must be paid to the higher maximum penalty for companies, even where both the company and its director are being sentenced. At [156] Porter KC DCJ observed that even where double punishment is an issue, the penalty should be no less than if the company had been the sole contravener, requiring attention to the much higher maximum penalty. This seems to me, with respect, to be a correct statement of principle.
Cost of doing business
- [14]General deterrence is important (for example, see s 9(1)(c) of the Penalties and Sentences Act 1992 (Qld)). An important aspect of prosecutions of this kind is that the justice system should impose significant penalties such that developers do not see moderate or minimum penalties for wrongdoing as merely a “cost of doing business”; see inter alia Harris v Lagerroth at [178]. In Harris the behaviour was clearing first and seeking permission afterwards; here it is disobeying the conditions of approval, destroying the protected structure and not informing Council or the certifier at all; although as mentioned it was not a “for profit” exercise. Nevertheless the principle remains relevant. Most other cases of this kind will involve the motivation of profit.
Relationship to maximum penalty
- [15]Further there must ordinarily be some reasonable relationship between the theoretical maximum and the penalty imposed; ABCC v Pattinson [2022] HCA 13 at [53]-[55] with reference to Reckitt v Benckiser (2016) 340 ALR 25 at 63 [155]-[156] and Markarian v R (2005) 228 CLR 357 at 372 [30]-[31]. The maximum is enacted by the legislature as more than a mere formality. Judges need sentencing yardsticks and the maximum in some cases is greatly relevant, because the legislature has legislated for them; they invite comparison between the instant case and a worst possible case; and because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick. Thus the maximum is a yardstick that must ordinarily be paid careful attention, albeit it is one of a number of relevant factors; but there must ordinarily be the reasonable relationship mentioned.
- [16]Caution must, however, be exercised not to conduct a purely mathematical-type exercise of looking first at the maximum and proceed by making proportional deductions from it, as happened at first instance in Markarian. An assessment of the sentence called for by the objective facts and the way in which it compares with the worst kind of case is necessary; Markarian at [32]-[33]. Individualised justice is important in the exercise of the sentencing discretion; Elias v R (2013) 248 CLR 483 at [27].
- [17]In the present case, the minimal nature of the penalty is, in the appellant’s words, so untethered to the maximum penalty available that the error in the exercise of the sentencing discretion is apparent, without separate identified discrete legal error in reasoning.
- [18]The evidence indicates that the total building cost of the redevelopment was in the range of $2,000,000 to $2,400,000. This is again a value which dwarfs the amount of the fine. By committing the offences the respondent avoided the costs of consultants to advise on whether the cottage could be moved and reinstated prior to the exercise being commenced as well as the associated costs of performing the entire operation effectively, which may well have been significant; it appears to have been a difficult and complex exercise. The actions which were taken had the effect of overturning the Council’s earlier refusal without recourse to the Council itself, or the Planning and Environment Court; rather the Council was in effect presented with a fait accompli.
Capacity to pay
- Indemnity by insurer
- [19]Relevant factors in the sentencing exercise include the capacity of the corporation to pay the fine. Section 48 of the Penalties and Sentences Act provides that where a court is imposing a fine, features which must as far as practicable be taken into account include the financial circumstances of the offender and the nature of the burden that payment of the fine will be on the offender. Subsection (5) also has some relevance; it provides that the Court may have regard to loss or destruction of a person’s property because of the offence and the value of a benefit received by the person because of the offence; here, possibly the unknown cost of having the problem properly examined by a structural engineer, with appropriate remedial/preventative engineering works.
- [20]The nature and weight of this factor in the present case is slightly complicated. The respondent has indicated that subsequent to the imposition of the penalty, the respondent’s insurer was provided a copy of the sentencing remarks of the Chief Magistrate and thereupon concluded to indemnify the respondent in relation to not only legal costs but also the fine. However, it is said that it does not necessarily follow that any varied fine would be indemnified in the same way. The insurer would apparently consider the outcome and this Court’s reasons before determining that issue.
- [21]The respondent submits that this subsequent indemnification is not relevant to the issues on the appeal, in that the appeal is by way of rehearing on the evidence given in the proceeding before the justices (s 223(1)) of the Justices Act 1886). Secondly, there is no nexus between the error alleged by the Council in the Chief Magistrate’s reasoning and the subsequent indemnification of the respondent. Thirdly, the grounds of appeal are really only concerned with manifest inadequacy by failing to give effect to general deterrence or properly take into account the maximum penalty, which are not of themselves matters bearing on the indemnification; and finally, there is authority for the proposition that indemnification does not ordinarily impact upon the quantum of a fine; see SafeWork NSW v Macquarie Milling Co Pty Ltd [2019] NSWDC 111 at [108]. As was said there, the existence of insurance is a neutral matter. Where the insurance policy means that a personal burden is not being imposed on the respondent by way of the fine, there is no reason to adjust it upwards, however nor is there a reason to adjust it downwards. The Court made reference to objects of sentencing including preventing crime by deterring the offender and other persons from committing similar offences; similar to the position under the Penalties and Sentences Act as mentioned above. In my view, this question of indemnity is neutral as to the issues on the appeal.
(b) Capacity to pay generally; possible insolvency
- [22]As to the broader issue of capacity to pay, the respondent embraces the reference by the learned Chief Magistrate to the company’s somewhat tenuous financial circumstances and apparent difficulty in paying the fines. Her Honour commented that five times the amount imposed on the natural persons would be crushing. It was also said that the fine was informed by the totality of punishment that Keane and Carroll will also bear given their close connection to the company; both are shareholders and one is a director. In that context, however, the comments of Porter KC DCJ in Harris, outlined above at [13] above, are relevant; the penalty should be no less than if the company had been the sole contravener.
- [23]Further, the fact that a corporate defendant has limited capacity to pay a fine does not preclude the imposition of a fine at an appropriate level; see R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at [132]; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 040 at [17]-[22].
- [24]As to the capacity to pay, the respondent refers to the unchallenged evidence of Carroll and a letter from the company’s accountant stating if any unforeseen short-term liability of $50,000 or more was incurred, the company would struggle to pay it and it did not have the net assets to pay a significant fine of more than $75,000, nor was there a history of profitability suggesting this would change in the short term.
- [25]This is argued to have a consequence of insolvency for the company requiring it to abandon existing building projects with consequences for other owners as well as the apparent termination of the employment of its employees. It is also said that insolvency of the company would be a trigger under the relevant QBCC “anti‑Phoenix” provisions (possibly a reference to s 56AC of the Queensland Building and Construction Commission Act (Qld) 1991), preventing the company but also Mr Carroll from holding a QBCC licence, ending Mr Carroll’s capacity to work as a builder.
- [26]The letter of 8 March 2023 from Angus Morrison, the respondent’s accountant, says (unsurprisingly) that third party lenders typically rely on security to make loans of any significance to privately owned businesses. The respondent has no fixed assets for such security and thus it is extremely unlikely that a third-party lender would lend any significant sum without security to the company, especially considering its net asset position, history of profitability, its industry and the purpose of the loan. This seems to have been discussed in the context of a putative fine possibly in the range of $900,000 to $1,200,000 which had apparently been raised by the Council at some stage.
- [27]Mr Carroll’s affidavit indicates salary for him in the last three financial years between $130,000 and $155,000. Mr Keane’s salary is apparently similar. His taxable income for those years varied between $122,000 and $129,000 per annum. His wife is an occupational therapist earning a taxable income of between $258,000 and $270,000 per annum for that time. They own the property as joint tenants. It is encumbered to the extent of $2,057,000. There does not seem to be evidence of a current valuation.
- [28]Ms Keane has unfortunately been unwell and consequently received an insurance payout of $400,000, $230,000 of which remains in a joint mortgage offset account. This money is quarantined for Ms Keane and her ongoing and future health needs. She has, however, recommenced work as an occupational therapist.
- [29]These matters were ventilated in submissions at the hearing of the appeal. The position seems to me to be that Mr and Ms Keane have an interest in both retaining the property and attempting to ensure that the respondent remains solvent so that it may retain its licence and continue trading; the second of these interests is of course shared by Mr Carroll.
- [30]Thus although I am not in a position to make positive findings about matters necessarily involving some contingencies, there seems a strong possibility that some security, for example in the form of guarantees by shareholders/directors for a loan to the company by a third-party lender or other security would be attractive, in order to pay a fine and keep the company solvent and trading, if necessary. Further the fine was referred to SPER (the State Penalties Enforcement Registry) by the learned Chief Magistrate. The mechanisms under the State Penalties Enforcement Act 1999 (Qld) deal with the way in which such penalties are managed when unpaid; for example, there can be an application for payment by instalments under s 42. In short, while a significant fine would no doubt be a serious impost on the respondent, it is not clear to me that the consequences would be immediate and inevitable disaster.
- [31]In any case, as set out at [23] above it seems to me that considerations of the financial circumstances of the offender as outlined in s 48 are relevant, but not determinative as to the precise quantum of the appropriate penalty; other sentencing considerations as outlined above are also clearly important, not least deterrence (appropriate punishment, s 9(1)(a), and community denunciation, s 9(1)(d) of the Penalties and Sentences Act are also important). Fines are intended to penalise offenders; even if an increased fine were in excess of the respondent’s capacity to pay – which is not clearly shown to be the position – this would not by that fact alone render it excessive.
Nature of the offending; mitigatory aspects
- [32]The respondent also emphasises the particular nature of the offending under discussion. The specific conduct for which the respondent was dealt with is argued to be at the lower end of a spectrum of culpability, in that the Council accepts that this was not a deliberate plan by the parties to flout the conditions of the development approval; it was not the intention of the parties, from the outset, to demolish the cottage contrary to those conditions. In those circumstances, the respondent urges that the conduct must be seen as simply, in effect, an honest mistake. When viewed in that way, the argument is that deterrence has a lesser part to play in the sentencing process. It is argued to be a highly unusual set of circumstances and conduct not deliberately in defiance of the scheme nor with an eye on profit. There was no commercial benefit to the respondent.
- [33]Accepting that this is the case, nevertheless it seems reckless of the respondent, particularly considering its considerable experience in the area, to have attempted the exercise under discussion without early and thorough advice from structural engineers, rather than a house removalist. Mr Keane’s affidavit describes how, in summary, the major problems with the plan to move and re-incorporate the cottage became clearer over time, and no doubt this is correct; conversely there was a structural engineer, NGS Structural Engineers, already involved in the new construction aspect of the project on the site; clearly enough they could have been consulted in a timely way as to proper preservation of the cottage and were not, which is not explained. I do not accept that these factual aspects of the matter – the apparent good intentions and, in effect, an honest mistake - place the respondent’s conduct in a category of culpability as low as contended for by the respondent on this appeal. The facts remain that, bound by the conditions of the development approval, the respondent did not abide by them, and proceeded to unauthorised disassembly without notice to the Council or the building certifier; again, presenting Council with a fait accompli.
Conclusion re: manifest inadequacy
- [34]For the reasons outlined above, my conclusion, with great respect to the learned Chief Magistrate, is that the penalty imposed on the respondent was manifestly inadequate. The fine fails to create a financial cost that gives effect to general deterrence. It is so low that it does have a tendency to be potentially seen as simply a cost of doing business for developers in this area. It does, in the circumstances, pay insufficient regard to the maximum penalty enacted by the legislature and it pays little recognition to the significant feature of the statutory scheme that the maximum penalty for the corporate defendant is five times as high as that available for the natural persons. As outlined above, the serious actions taken, not in emergent circumstances, had the effect of overturning the Council’s refusal of demolition without recourse to the Council itself, the building certifier, or the Planning and Environment Court; rather the Council was presented with the fait accompli of the total destruction of the 1888 cottage which was explicitly protected by the statutory scheme, and by the conditions of the development approval which, as outlined above, the respondent disregarded. Further, for the reasons outlined above, questions of capacity to pay the fine do not have any decisive impact on the result. The penalty imposed below on the respondent must be set aside, and the respondent resentenced.
Resentencing
- [35]There is a schedule of previous sentences imposed in the Magistrates Court showing fines between $8,000 and $20,000 had been imposed on companies on previous occasions. The Council submitted that the pattern of sentences which the schedule revealed were an inadequate reflection of the maximum penalty and the need for deterrence. The maximum penalty, for present purposes $3,002,625, is significantly larger than at the time of some of those previous sentences. The learned Chief Magistrate considered that the schedule was of little assistance in determining the appropriate penalty including for the reason that it did not provide sufficient details of the circumstances of the cases to allow for proper comparison. This is said by the Council to have been a reasonable position for her Honour to take and thus the matter proceeded, in effect, from first principles. In my view, this is correct and there is little assistance from the previous comparable sentences.
- [36]It is noteworthy that the maximum penalty in the present case was increased in 2016 by almost 200 percent. The Council refers to the explanatory note to the Planning Act 2016 (Qld):
“This increase is justifiable as it contemporises and aligns the maximum penalty to analogous offences across the Queensland statute book to ensure it provides a deterrent.”
- [37]The learned Chief Magistrate acknowledged this as reflecting the seriousness of Parliament’s intention to uphold sustainable planning law for the betterment of the whole community.
- [38]In the resentencing process, it is important to take into account the relevant factors including the company’s plea of guilty, which was an early one, its cooperation with authorities and lack of prior convictions. The nature of the offending behaviour, including that there was no deliberate intent to flout the conditions of the development approval is also relevant; but the conduct in not taking structural engineering advice, and demolition of the protected building without reference to Council, the building certifier or the Planning and Environment Court (for example, to challenge the conditions of the development approval, if they were felt to be, or had become, impracticable) involved deliberate decisions not taken in emergent circumstances, and as mentioned removed the chance of any input from the Council. Capacity to pay, as outlined above, is relevant but not a determinant factor, particularly in the circumstances outlined. The fine should be sufficiently large to have a deterrent affect as well as serving as a punishment.
- [39]The ultimate submission of the Council is that the increased fine would be no lower than $150,000 and could justifiably be substantially higher. In my view, this submission has much force. However, the circumstances are that the penalties imposed upon the natural persons have not been the subject of an appeal and in a resentencing exercise after a successful prosecution appeal, moderation is called for. The higher of the fines imposed on the natural persons is $19,000 imposed on Mr Keane, the owner and project manager and the culpability appears to be similar between the natural persons and the company, given that the natural persons were together the controlling minds of the company, and considerations of parity arise. The effect of the statutory scheme is that the maximum penalty for a company is five times that for the natural person. In my conclusion, the appropriate fine for the company in all the circumstances is $100,000. This is arrived at not by the application of a mathematical formula, but rather taking into account the factors outlined above, and weighing the competing factors in the exercise of the sentencing discretion; an instinctive synthesis.
Residual discretion
- [40]There was reference at the hearing of the appeal to what is sometimes described as “the residual discretion”. This arises where error is established in an appeal by the prosecution, nevertheless the appeal may be dismissed notwithstanding that the sentence is erroneously lenient. Generally, manifest inadequacy in the sentence imposed below does not of itself justify resentencing on appeal. The circumstances where such an appeal would be allowed are often said to be confined to rare and exceptional cases, with reference to a rationale of concern with double jeopardy, that is not to unnecessarily subject a defendant to the distress and anxiety of being twice vexed as a result of facing resentencing by an appellate court. Appropriate cases include where it is desirable to address an error of principle or to establish and maintain adequate standards of sentence. It also extends to correcting a sentence which is so inadequate that an error of principle is demonstrated, or there is undermining of public confidence in the administration of justice. The question of whether a manifestly inadequate sentence requires correction on appeal involves questions of degree and a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed; see R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150 at [56]-[61], [72]-[75].
- [41]Some of the concerns expressed in Schulz and CMB v Attorney-General (NSW) [2015] 256 CLR 346 as to the residual discretion have, it seems to me, more direct relevance to a respondent to a prosecution appeal who is a natural person facing the consequence of, for example, a further custodial sentence – particularly, as referred to in some of the cases, where a defendant was granted liberty at first instance but may now be returned to custody - rather than a corporate defendant exposed to an increased fine. One of the relevant considerations is the extent to which the determination of this court would provide guidance to courts or practitioners in the future, and in that sense in my conclusion this is an appropriate case for resentencing. In my conclusion the prosecution has discharged its onus in relation to the residual discretion; there is no injustice resulting from the respondent being resentenced.
- [42]In the result then the orders will be that the appeal is allowed; the sentence below set aside and in its place for the two offences there will be a fine imposed of $100,000 (i.e. $100,000 total) with no conviction recorded, in default of payment within 28 days the matter of the non-payment to be referred to the State Penalties Enforcement Registry. I will hear the parties as to costs.