SUPREME COURT OF QUEENSLAND
CITATION:
McDonald v Holeszko [2019] QCA 285
PARTIES:
McDONALD, Daniel James
(applicant)
v
CHRISTOPHER JOHN HOLESZKO
(respondent)FILE NO/S:
CA No 4 of 2019
DC No 1 of 2017DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Brisbane – [2018] QDC 204 (Dearden DCJ)DELIVERED ON:
6 December 2019
DELIVERED AT:
Brisbane
HEARING DATE:
27 August 2019
JUDGES:
Sofronoff P and Philippides JA and Flanagan J
ORDERS:
1. Grant the application for leave to appeal against sentence only.
2. Allow the appeal against sentence.
3. In lieu of the orders made by the learned magistrate in respect of the fine and costs:
a. The applicant is fined a global sum of $5,000.
b. Pursuant to s 68C of the Vegetation Management Act 1999 (Qld), the applicant pay investigation costs and outlays fixed at $5,000.
c. In respect of the proceedings in the Magistrates Court, the District Court and this Court, there be no order as to costs.
d. The fine of $5,000 and investigation costs and outlays of $5,000 are referred to the State Penalties Enforcement Registry.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the applicant seeks leave to appeal against his conviction after trial of six counts of carrying out assessable development without an effective development permit – where the applicant is one of the registered proprietors of a freehold interest in rural property – where the applicant cleared vegetation for the purposes of his livestock business – where it is asserted that the applicant held an honest albeit mistaken belief that he was entitled to clear vegetation – whether the applicant’s clearing of vegetation was an exercise of an honest claim of right
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and his wife were charged with six counts of carrying out assessable development without an effective development permit – where the applicant was found guilty but his wife was acquitted – where the magistrate imposed a fine of $40,000 and ordered the applicant to pay the prosecution’s investigation and legal costs – where the applicant’s livestock business has been struggling due to the effects of drought – where the applicant asserted that the fine and the prosecution’s costs imposed a crushing burden on him and his family – whether the magistrate took into account the applicant’s financial circumstances – where the applicant appealed to the District Court with the appeal being dismissed – whether the costs ordered at first instance were appropriately apportioned to the applicant – whether the fine and costs imposed were manifestly excessive
Justices Act 1886 (Qld), s 157
Penalties and Sentences Act 1992 (Qld), s 48
Sustainable Planning Act 2009 (Qld), s 578, s 682
Vegetation Management Act 1999 (Qld), s 68CBone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120,…
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- AGLC
- McDonald v Holeszko [2019] QCA 285
- Case
- [2019] QCA 285
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether McDonald's clearing of vegetation was an exercise of an honest claim of right, and whether the sentence imposed was manifestly excessive or inadequate. The court found that the applicant's clearing of vegetation was not an exercise of an honest claim of right, as there was no evidence to support his claim that he believed he was entitled to clear the vegetation. However, the court found that the sentence imposed was manifestly excessive, as the magistrate failed to consider the applicant's financial circumstances and the burden that the fine and costs would place on him and his family.
The court found that the imposition of a penalty in excess of $112,000 constituted a crushing burden on McDonald and his family. The court also found that the magistrate failed to exercise his discretion when ordering the applicant to pay the prosecution's investigation and legal costs. The court concluded that the magistrate's failure to consider the applicant's financial circumstances and the burden of the fine and costs was an error of law.
The court granted leave to appeal against sentence only and allowed the appeal against sentence. In lieu of the orders made by the magistrate, the court imposed a fine of $5,000 and ordered the applicant to pay investigation costs and outlays fixed at $5,000. The fine and costs were referred to the State Penalties Enforcement Registry. The court made no order as to costs in respect of the proceedings in the Magistrates Court, District Court, and this Court.
Orders
Orders of the court
1. Grant the application for leave to appeal against sentence only.
2. Allow the appeal against sentence.
3. In lieu of the orders made by the learned magistrate in respect of the fine and costs:
a. The applicant is fined a global sum of $5,000.
b. Pursuant to s 68C of the Vegetation Management Act 1999 (Qld), the applicant pay investigation costs and outlays fixed at $5,000.
c. In respect of the proceedings in the Magistrates Court, the District Court and this Court, there be no order as to costs.
d. The fine of $5,000 and investigation costs and outlays of $5,000 are referred to the State Penalties Enforcement Registry.
Background
Background to the litigation
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
The respondent further submits that the evidence at the sentencing hearing showed that Mr McDonald had the ability to pay the fine and costs orders, particularly as they were referred to SPER.[79][79]Submissions on behalf of the Respondent filed 13 August 2019, paragraph 47.Consideration The respondent’s submission that the evidence showed that the applicant had the ability to pay the fine and costs and that his capacity to do so was taken into account by the magistrate must be rejected. Although the magistrate referred to s 48 of the Penalties and Sentences Act, the sentencing remarks neither reveal any actual consideration of the financial circumstances of the applicant nor the nature of the burden that a payment of a fine of $40,000 (together with costs) would have on Mr McDonald and his family. Any such analysis of Mr McDonald’s financial circumstances, as outlined in [34] to [40] above, would have demonstrated that the applicant’s capacity to pay the fine and costs in the amount of $112,468.82 was extremely limited. A consideration of those circumstances leads to the conclusion that the imposition of a penalty in excess of $112,000 constitutes a crushing burden on Mr McDonald and his family. This Court has the benefit not only of the personal financial information that was before the magistrate, but also Mr McDonald’s notices of tax assessment. These reveal that he has not generated any taxable income from primary production for the years 2011 and 2013 to 2017.[80][80]Exhibit DM-005 to the affidavit of Daniel James McDonald filed 16 April 2019. As to costs, including investigation costs, sought by the prosecution, the magistrate observed:[81]“The Prosecution are also asking for investigation costs of $46,397.70. The investigation costs are assessable under section 68C of the Vegetation Management Act.Again, I have considered these costs, and they appear to be necessary, and I allow the amount of $46,397.70, having regard to the way these proceedings were undertaken. I also have regard to the submission or claims for outlays. And once again, having regard to the way these proceedings were undertaken, I am satisfied that the outlays that have been claimed appear to be reasonable, and I allow the amount of $19,709.72.”[81]RB, Vol 2, pp 825-6: Transcript of Proceedings, 13 October 2017, pp 10 l 46 to 11 l 6. The magistrate’s remarks demonstrate that he made the order because the costs “appear[ed] to be necessary” and because the outlays “appear[ed] to be reasonable”. He did not consider whether the discretion should be exercised. There was, therefore, an error of law because, in making the order, the magistrate failed to consider the exercise of discretion as the VMA required him to do. It is not readily apparent from the sentencing remarks what is meant by the magistrate’s reference to “the way these proceedings were undertaken”. It was the DNRM that brought the prosecution. Mr and Mrs McDonald were self-represented. They were entitled to defend the proceedings. Mrs McDonald was successful in doing so. Although Mr McDonald had raised Mrs McDonald’s acquittal as a relevant consideration in respect of costs, the sentencing remarks do not reveal that this consideration was taken into account by the magistrate in the exercise of his discretion under either s 157 of the Justices Act 1886 or s 68C of the VMA. Both sections give the Court a discretion to order a defendant to pay such costs. Section 157 of the Justices Act provides:“Costs on conviction or orderIn all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.”