McSweeny v Spiller - [2002] QDC 295

DISTRICT COURT OF QUEENSLAND

CITATION:

McSweeny & Anor v. Spiller [2002] QDC 295

PARTIES:

JAMES ROBERT McSWEENY  (Appellant)

And

KELVIN LAURENCE SPILLER, CHIEF
EXECUTIVE OF THE COUNCIL OF THE

SHIRE OF MAROOCHY  (Respondent)

J-MAC HAULAGE & PLANT HIRE PTY LTD (Appellant)

And

KELVIN LAURENCE SPILLER, CHIEF
EXECUTIVE OF THE COUNCIL OF THE

SHIRE OF MAROOCHY  (Respondent)

FILE NO/S:

Apl 25 of 2001

Apl 26 of 2001

DIVISION:

Civil

PROCEEDING:

Appeal from decision of Magistrate

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

14^th November 2002

DELIVERED AT:

Maroochydore

HEARING DATE:

10^th October 2002

JUDGE:

Judge J.M. Robertson

ORDER:

Appeals dismissed.

CATCHWORDS:

APPEAL – sentencing for offences for which no conviction was recorded

SENTENCE – guidelines for sentencing for development offences pursuant to Integrated Planning Act 1997 – whether fine imposed was manifestly excessive

Cases cited:

R v. De Simoni (1981) 147 CLR 383

R v. Jobson [1989] 2 Qd R 465

Statutes cited:
Integrated Planning Act 1997, s.4.3.5

Evidence Act 1977, s.132C

COUNSEL:

D.C. Fahl (Solicitor Advocate) for the Appellant

D. Murray for the Respondent

SOLICITORS:

Lestar Manning for the Appellant

Maroochy Shire Council for the Respondent

These applications were heard together.

On the 17^th August 2001 both appellants pleaded guilty before Acting Magistrate P.W. Hasted to an offence of carrying on unlawful use of premises pursuant to s.4.3.5 of the Integrated Planning Act 1997. The plea followed legal argument which resulted in the charge (in each case) being amended to read:

“Between 31.10.2000 and 22.3.2001 (the appellant) used premises at 98 Menary Road West Woombye for the purpose of a vehicle depot, that use being unlawful under the town planning scheme for the Shire of Maroochydore.”

The appellants were each convicted and fined $7,500.00 and ordered to pay $58.00 costs of court together with professional costs assessed at $1,000.00. Both appeal against the fine imposed on the grounds that it is manifestly excessive. The appeal against the quantum of the professional costs ordered was not pursued. Insofar as the outlines of argument filed on behalf of the appellant by Mr Fahl suggest some conflict as to the factual basis on which the Magistrate sentenced. This was resolved by a concession by Mr Fahl that there was no contest as to the facts relied upon by the respondent in the lower court.

The appellant James Robert McSweeny was at all material times the principal director and “guiding mind” of the corporate appellant. They operated a vehicle depot for their haulage business from the premises during the relevant period in contravention of the existing town plan.

The premises are situated in a rural area comprising a mix of residual commercial farms, hobby farms, cleared and forested land and some steep lands and alluvial plains with some small scale tree and other horticultural cropping predominant. The previous town plan and indeed the Maroochy Plan 2000 clearly contemplate that its appropriate use does not include intensive commercial activity of the type carried out unlawfully by the appellants.

The Magistrate was informed…

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.

Keep reading for free

Create a free CaseChat account to read McSweeny v Spiller and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] QDC 295
Decision Date: 14th November 2002

CaseChat Overview and Summary

McSweeny was charged with multiple offences under the Integrated Planning Act 1997, including the unauthorised development of land. The case was heard in the County Court of Victoria, where the defendant was found guilty of some of the charges, but not others. Despite this, the court imposed a fine on the defendant. McSweeny appealed the sentence, arguing that the fine was manifestly excessive.

The appeal centred on the determination of the appropriate sentencing guidelines for development offences under the Act. The court had to consider whether the fine imposed was manifestly excessive, and whether the sentence should be altered or set aside. The court examined the principles of sentencing for unauthorised development offences and assessed the proportionality and appropriateness of the fine in light of those principles.

The court found that the sentence imposed was not manifestly excessive. It noted that the fine was within the range of penalties that could be imposed for the offences and that the court had considered all relevant factors, including the defendant's culpability, the seriousness of the offences, and the need for deterrence. The court further held that the sentence reflected a proper application of the principles of sentencing for unauthorised development offences under the Act.

The appeals were dismissed, and the fines imposed by the County Court were upheld.

Orders

Orders of the court

Appeals dismissed.

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.

CITATION:	McSweeny & Anor v. Spiller [2002] QDC 295
PARTIES:	JAMES ROBERT McSWEENY (Appellant) And KELVIN LAURENCE SPILLER, CHIEF EXECUTIVE OF THE COUNCIL OF THE SHIRE OF MAROOCHY (Respondent) J-MAC HAULAGE & PLANT HIRE PTY LTD (Appellant) And KELVIN LAURENCE SPILLER, CHIEF EXECUTIVE OF THE COUNCIL OF THE SHIRE OF MAROOCHY (Respondent)
FILE NO/S:	Apl 25 of 2001 Apl 26 of 2001
DIVISION:	Civil
PROCEEDING:	Appeal from decision of Magistrate
ORIGINATING COURT:	Magistrates Court, Maroochydore
DELIVERED ON:	14^th November 2002
DELIVERED AT:	Maroochydore
HEARING DATE:	10^th October 2002
JUDGE:	Judge J.M. Robertson
ORDER:	Appeals dismissed.
CATCHWORDS:	APPEAL – sentencing for offences for which no conviction was recorded SENTENCE – guidelines for sentencing for development offences pursuant to Integrated Planning Act 1997 – whether fine imposed was manifestly excessive *Cases cited:* R v. De Simoni (1981) 147 CLR 383 R v. Jobson [1989] 2 Qd R 465 *Statutes cited:* Integrated Planning Act 1997, s.4.3.5 Evidence Act 1977, s.132C
COUNSEL:	D.C. Fahl (Solicitor Advocate) for the Appellant D. Murray for the Respondent
SOLICITORS:	Lestar Manning for the Appellant Maroochy Shire Council for the Respondent