Esat v Rauchle

[2018] QDC 235

DISTRICT COURT OF QUEENSLAND

CITATION: 

Esat v Rauchle [2018] QDC 235

PARTIES: 

IMRAAN ESAT

(appellant)

v

SCOTT CAMERON RAUCHLE

(respondent)

FILE NO/S: 

1256/18

DIVISION: 

Criminal

PROCEEDING: 

Appeal

ORIGINATING 
COURT: 

Magistrates Court at Wynnum

DELIVERED ON: 

4 December 2018

DELIVERED AT: 

Brisbane

HEARING DATE: 

9 November 2018

JUDGE: 

Farr SC DCJ

ORDER: 

1. Appeal allowed;

2.	The fine of $2,000 imposed in the Magistrates Court at Wynnum on 9 March 2018 is set aside;
3.	The respondent is fined the sum of $6,000 to be paid within 90 days in default 30 days imprisonment;
4.	Application to adduce new evidence is dismissed.

CATCHWORDS: 

CRIMINAL LAW – APPEAL – Justices Act 1886 – section
222 – appeal against sentence – where the respondent pleaded
guilty to one charge of unlawfully damaging marine plants –

where the respondent was fined $2,000 in default 30 days

imprisonment with no conviction recorded – where the
appellant submits that the respondent’s conduct required

Development Approval which would have incurred an

application fee in excess of the fine imposed at sentence –
whether the sentence was inadequate – whether the sentence
adequately recognises the principle of general deterrence –

determination of appropriate penalty

Justices Act 1886 (Qld) s 222, s 223, s 225
Sustainable Planning Act 2009 (Qld)
Sustainable Planning Regulation 2009 (Qld)
Bode v Commissioner of Police [2018] QCA 186
Mbuzi v Torcetti [2008] QCA 231
McDonald v Queensland Police Service [2017] QCA 255

Robinson Helicopter Company Inc v McDermott [2016] HCA 22

Stevenson v Yasso [2006] QCA 40

COUNSEL: 

G M Elmore for the appellant

I A Munsie for the respondent

SOLICITORS: 

Department of Agriculture and Fisheries for the appellant

Australian Law Partners for the respondent

[1]      On 9 March 2018 the respondent pleaded guilty in the Wynnum Magistrates Court to one charge of unlawfully damaging marine plants.[1] He was fined $2,000 in default 30 days imprisonment and no conviction was recorded.[2]

[1] The complaint alleged one charge of contravening s 123 of the Fisheries Act 1994 (Qld).

[2]            The maximum penalty at the time of sentence was 3,000 penalty units which at the time equated to $353,400.

[2] The appellant has appealed against the amount of that fine, pursuant to s 222 Justices Act 1886 (JA) on the grounds that:

1.	The sentence was manifestly inadequate; and
2.	The magistrate erred by failing to giving sufficient consideration to the element of general deterrence.

[3]      The appellant has also sought to adduce new evidence.

Circumstances of offending conduct

[4]      On 18 August 2016, Queensland Boating and Fisheries received information that someone was burning mangroves in Wynnum along the creek and in the backyard of 50 St Catherines Terrace, Wynnum.

[5]      On 23 August 2016 Field Officer Imraan Esat attended at that address and observed a large area of mature mangroves which had been recently removed adjacent to 50 St Catherines Terrace. He could see through the fence at that property a number of trees which had been cut into lengths in the backyard,…