Hill v Holeszko - [2017] QDC 35

DISTRICT COURT OF QUEENSLAND

CITATION:

Hill v Holeszko [2017] QDC 35

PARTIES:

JON PATRICK HILL

(appellant)

v

CHRISTOPHER JOHN HOLESZKO (DEPARTMENT OF NATURAL RESOURCES AND MINES)

(respondent)

FILE NO/S:

D16/2016

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Bundaberg

DELIVERED ON:

1 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2017

JUDGE:

Farr SC DCJ

ORDER:

It is ordered that:

1.   The appeal is upheld regarding the fine of $7,500 only.

2.   The fine of $7,500 ordered by the Magistrates Court at Bundaberg on 15 March 2016 is set aside and substituted with a fine of $4,500.

3.   The appeal in respect of all other orders is dismissed.

CATCHWORDS:

APPEAL – appeal pursuant to s 222 of the Justices Act 1886 – appeal against an order of a Magistrate convicting the appellant of offences under s 578(1) of the Sustainable Planning Act 2009 – whether the fines imposed by the learned Magistrate were excessive – where the requisite permits were not obtained – where the offending works were carried out by contractor on behalf of the appellant.

Fire and Emergency Services Act 1990, s 69
Justices Act 1886, s 222, s 223
Sustainable Planning Act 2009, s 578
Vegetation Management Act 1999, s 60B (repealed)

Coombe v Ashlin and Blinco, unreported, Magistrate Ryan, MAG-00249972/14(2), MAG-00250013/14(1), 2 September 2015
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
Fox v Percy (2003) 214 CLR 118
Hindman v Sargent, unreported, Andrews SC DCJ, BD No 6 of 2011, 5 May 2014
House v King (1936) 55 CLR 499
Shambayati v Commission of Police [2013] QCA 57
Stevenson v Yasso (2006) 2 Qd R 150

COUNSEL:

The appellant was self-represented

R Carroll for the respondent

SOLICITORS:

Department of Natural Resources and Mines for the respondent

Introduction

On 15 March 2016 the appellant pleaded guilty in the Bundaberg Magistrates Court to two offences of contravening s 578(1) of the Sustainable Planning Act 2009 (“SPA”).

He was sentenced as follows:[1]
[1]Decision Transcript pp 5-6.

(a) Charge 1 (relating to the South Bingera property):

(i) Fine of $7,500;

(ii) Costs of court $86.40.

(b) Charge 2 (relating to the Bucca property):

(i) Fine of $16,500;

(ii) Costs of court $86.40;

(iii) Professional costs of $3,703.75.

Facts

The facts surrounding the offences were agreed as follows:

(a) The unlawful clearing of an area of approximately 4.1 hectares of native remnant vegetation took place on various dates between 2 November 2012 and 11 July 2014 on a block of land located at lot 5 on Registered Plan 210603, at South Bingera, south west of Bundaberg (“the South Bingera property”).

(b) The vegetation that was cleared on the South Bingera property consisted entirely “of least concern regional ecosystem” as defined by the Vegetation Management Act 1999 (“VMA”).

(c) The unlawful clearing of an area of approximately 14.8 hectares of native remnant vegetation also took place on various dates between 20 December 2012 and 18 August 2014 on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hill v Holeszko

Details

AGLC: Hill v Holeszko [2017] QDC 35
Case: [2017] QDC 35
Decision Date: 1 March 2017

CaseChat Overview and Summary

The appellant, Hill, appealed against a conviction and orders made by the Magistrates Court at Bundaberg, following an offence under section 578(1) of the Sustainable Planning Act 2009. The conviction arose from the appellant’s failure to obtain requisite permits before carrying out works at a property, which were executed by a contractor on the appellant’s behalf. The primary ground of appeal was the excessiveness of the $7,500 fine imposed by the Magistrate.

The court was required to determine whether the fine imposed was excessive in light of the appellant's lack of direct involvement in the contravention. The appellant argued that the fine was disproportionate given the role of the contractor and the appellant's lack of personal culpability. The court had to balance the need for deterrence against the principle of proportionality in sentencing.

The court found that the fine was indeed excessive. It noted that the appellant had no direct involvement in the contravention, and the primary responsibility lay with the contractor. The court reduced the fine from $7,500 to $4,500, reflecting the appellant’s lesser culpability. The court found that the reduced fine was adequate to serve as a deterrent while still being proportionate to the appellant's role in the offence. The appeal was upheld in part, and the fine was set aside and substituted as ordered.

Orders

Orders of the court

It is ordered that:

1. The appeal is upheld regarding the fine of $7,500 only.

2. The fine of $7,500 ordered by the Magistrates Court at Bundaberg on 15 March 2016 is set aside and substituted with a fine of $4,500.

3. The appeal in respect of all other orders is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hill v Holeszko [2017] QDC 35
PARTIES:	JON PATRICK HILL (appellant) v CHRISTOPHER JOHN HOLESZKO (DEPARTMENT OF NATURAL RESOURCES AND MINES) (respondent)
FILE NO/S:	D16/2016
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Bundaberg
DELIVERED ON:	1 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2017
JUDGE:	Farr SC DCJ
ORDER:	It is ordered that: 1. The appeal is upheld regarding the fine of $7,500 only. 2. The fine of $7,500 ordered by the Magistrates Court at Bundaberg on 15 March 2016 is set aside and substituted with a fine of $4,500. 3. The appeal in respect of all other orders is dismissed.
CATCHWORDS:	APPEAL – appeal pursuant to s 222 of the Justices Act 1886 – appeal against an order of a Magistrate convicting the appellant of offences under s 578(1) of the Sustainable Planning Act 2009 – whether the fines imposed by the learned Magistrate were excessive – where the requisite permits were not obtained – where the offending works were carried out by contractor on behalf of the appellant. Fire and Emergency Services Act 1990, s 69 Justices Act 1886, s 222, s 223 Sustainable Planning Act 2009, s 578 Vegetation Management Act 1999, s 60B (repealed) Coombe v Ashlin and Blinco, unreported, Magistrate Ryan, MAG-00249972/14(2), MAG-00250013/14(1), 2 September 2015 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Fox v Percy (2003) 214 CLR 118 Hindman v Sargent, unreported, Andrews SC DCJ, BD No 6 of 2011, 5 May 2014 House v King (1936) 55 CLR 499 Shambayati v Commission of Police [2013] QCA 57 Stevenson v Yasso (2006) 2 Qd R 150
COUNSEL:	The appellant was self-represented R Carroll for the respondent
SOLICITORS:	Department of Natural Resources and Mines for the respondent