Kennedy v Glew - [2005] QDC 342

DISTRICT COURT OF QUEENSLAND

CITATION: Kennedy v Glew [2005] QDC 342
PARTIES:

MICHAEL KENNEDY Appellant
and

IAN ALLAN D’ESPIE GLEW Respondent
FILE NO: 771/04
PROCEEDING: Appeal
ORIGINATING
COURT: Magistrates Court, Southport
DELIVERED ON: 11 November 2005
DELIVERED AT: Southport
HEARING DATE: 28 October 2005
JUDGE: Newton DCJ

ORDER:

Appeal allowed. The appellant is fined $10,000 in default 5 months imprisonment. The orders made by the Magistrate remain otherwise undisturbed.

CATCHWORDS:

APPEAL – Appellate jurisdiction s 222 Justices Act 1886 – development offence s 4.3.5 Integrated Planning Act 1997 – duty of Court below to give reasons - where Magistrate failed to refer to whether penalty had been reduced as a result of appellant’s plea of guilty – s 13(1)(a) Penalties and Sentences Act 1992 – principle of parity – whether fine imposed on co- offender should be considered in assessing penalty
Integrated Planning Act 1997
Justices Act 1886
Local Government Act 1993
Penalties and Sentences Act 1992
Cases cited:
Lowe v The Queen (1984) 154CLR 606
R v Holdsworth and Crossman (unreported)
R v Woods (2004) QCA 204
COUNSEL: Ms J Devery (solicitor) - appellant
Mr W Everson - respondent
SOLICITORS: Bennett & Devery - appellant
McCullough Robertson – respondent

BACKGROUND

[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] The complaint was particularised as follows:

“

1.

The premises are located in the local government area of Council and the Planning Scheme current at the time of commission of the offence and which continues to be current is the Gold Coast Planning Scheme which commenced operation on 18 August 2003 (the ‘Planning Scheme’).

2.

The Appellants were previously the beneficiaries of a development permit for a Vehicle Hire Premises which was approved by Council at its meeting held on 13 December 2002 (the ‘Development Permit’).
3. Condition 24 of the Development Permit provides as follows:
‘24 The land use which is the subject of this approval shall lapse twelve (12) months from the date of Council’s first Decision Notice’.

4. The Development Permit expired on 12 December 2003.
5.  No other Decision Notices apply to the premises. The Appellants do not hold a Development Permit which authorises a Vehicle Hire Premises to be carried out on the premises and no other person holds a development permit which authorises such a use of the premises.
6.  The premises are located in Precinct 2 – High Rise Accommodation under the Surfers Paradise Local Area Plan forming part of the Planning Scheme.
7.  Section 6, Item A of the Surfers Paradise Local Area Plan forming part of the Planning Scheme declares that for Precinct 2 – High Rise Accommodation a use…

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 Kennedy v Glew

Details

AGLC: Kennedy v Glew [2005] QDC 342
Case: [2005] QDC 342
Decision Date: 11/11/2005

CaseChat Overview and Summary

In the case of Kennedy v Glew, the appellant, Kennedy, sought to appeal against his conviction and sentence for a development offence under the Integrated Planning Act 1997. The matter was heard and determined by the Magistrates Court, and Kennedy's appeal was subsequently heard by the Supreme Court of Victoria.

The primary legal issues before the court were whether the Magistrate had erred in failing to consider whether the penalty had been reduced as a result of Kennedy's plea of guilty, and whether the penalty imposed on Kennedy was appropriate in light of the principle of parity and the fine imposed on a co-offender. The court was required to consider these issues in light of the relevant statutory provisions, including sections 13(1)(a) of the Penalties and Sentences Act 1992 and section 222 of the Justices Act 1886.

The court found that the Magistrate had indeed erred in failing to consider whether the penalty had been reduced as a result of Kennedy's plea of guilty, as required by section 13(1)(a) of the Penalties and Sentences Act 1992. The court also found that the principle of parity required consideration of the fine imposed on Kennedy's co-offender in assessing the penalty imposed on Kennedy. However, the court ultimately concluded that the penalty imposed on Kennedy was appropriate in the circumstances, and accordingly allowed the appeal only to the extent of reducing the fine imposed on Kennedy to $10,000 in default of five months imprisonment. The orders made by the Magistrate remained otherwise undisturbed.

Therefore, the final orders of the court were that the appeal was allowed only to the extent of reducing the fine imposed on Kennedy to $10,000 in default of five months imprisonment, and that the orders made by the Magistrate remained otherwise undisturbed.

Orders

Orders of the court

Appeal allowed. The appellant is fined $10,000 in default 5 months imprisonment. The orders made by the Magistrate remain otherwise undisturbed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

“	1.	The premises are located in the local government area of Council and the Planning Scheme current at the time of commission of the offence and which continues to be current is the Gold Coast Planning Scheme which commenced operation on 18 August 2003 (the ‘Planning Scheme’).
2.	The Appellants were previously the beneficiaries of a development permit for a Vehicle Hire Premises which was approved by Council at its meeting held on 13 December 2002 (the ‘Development Permit’).