Murn v Gynther

Case [2022] QDC 26

DISTRICT COURT OF QUEENSLAND

CITATION:

Murn v Gynther [2022] QDC 26

PARTIES:

 Jonathon MURN

(Appellant)

v

 Donald Victor GYNTHER

(Respondent)
FILE NO:

950/21

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

25 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2022

JUDGE:

Kent QC, DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – WITHOUT CONSENT – SENTENCING

where the fine is said to have been manifestly inadequate - whether the refusal to make the enforcement order is said to have been an error of law – whether the Magistrate did not take sufficient account of the principle of general deterrence – where the defendant has not received any meaningful benefit from the unlawful works - where the Magistrate did not consider it necessary to make an order to restore the premises to the condition they were in before development was started

LEGISLATION:

Planning Act 2016 (Qld), s 163, s 176

Justices Act (Qld), s 222

Penalties and Sentences Act (Qld), s 9(1)(c)

CASES:

McDonald v Queensland Police Service [2017] QCA 255, cited

R v Muirhead [2019] QCA 244, considered

House v The King (1936) 55 CLR 499, cited

R v DBY [2022] QCA 20, cited

Markarian v The Queen (2005) 228 CLR 357, cited

Pearce v The Queen (1998) 194 CLR 610, cited

Johnson v The Queen (2004) 78 ALJR 616; (2004) 205 ALR 346, cited

Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600, considered

Department of Agriculture and Fisheries v Seatree Investments Pty Ltd (Magistrates Court of Queensland, Sandgate, Magistrate Rinaudo, 13 October 2011), considered

Department of Agriculture and Fisheries v McMahon (Magistrates Court of Queensland, Cleveland, Magistrate WJ Smith, 9 March 2007), considered

Department of Agriculture and Fisheries v GLB Quarrying and Logistics Pty Ltd (Magistrates Court of Queensland, Brisbane, Magistrate Schubert, 15 March 2015), considered

Esat v Rauchle [2018] QDC 235, considered

Tseng v Brisbane City Council [2020] QDC 487, considered

COUNSEL:

Ms Kirk for the appellant

K W Wylie for the respondent
SOLICITORS:

Department of Resources for the appellant

Big Law for the respondent

Introduction

  1. On 26 March 2021 Mr Gynther pleaded guilty in the Caboolture Magistrates Court to two counts of carrying out assessable development without a development permit contrary to s 163 of the Planning Act 2016 (Qld) (“the Planning Act”). A global penalty was imposed for both counts of a fine of $7,500 without a conviction being recorded. The appellant, an officer of the Department of Natural Resources (“the Department”) had also sought an enforcement order pursuant to s 176 of the Planning Act to, in effect, restore the relevant land to its pre-development condition, however the Magistrate, in the exercise of the discretion conferred by that section, refused to do so.

  2. Mr Murn appeals against the inadequacy of the penalty and the refusal of the enforcement order.  The fine is said to have been manifestly inadequate, and…

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Murn v Gynther [2022] QDC 26
Case
[2022] QDC 26
Decision Date

CaseChat Overview and Summary

The case of Murn v Gynther involves a dispute between Mr Murn and Mr Gynther, where the former appealed against the sentence imposed on the latter for unlawful development without consent. The matter was heard in the Queensland Court of Appeal. The primary issue before the court was whether the fine imposed on Mr Gynther was manifestly inadequate, and if the Magistrate's decision not to make an enforcement order was erroneous. Additionally, the court had to consider if the Magistrate failed to sufficiently account for the principle of general deterrence.

The court carefully examined the Magistrate's sentencing remarks and the applicable statutory regime, including the Penalties and Sentences Act 1992 (Qld). The Magistrate took into account various mitigating factors such as Mr Gynther's age, good standing in the community, cooperation with investigators, and his plea of guilty with remorse. The court also noted that Mr Gynther did not benefit commercially from the unlawful works and that the environmental impact was minimal due to other restrictions on water flow. Based on these factors, the Magistrate imposed a fine of $7,500 along with court and professional costs, and declined to make an enforcement order.

The court upheld the Magistrate's decision, finding that the fine was appropriate given the circumstances, and that the refusal to make an enforcement order was not an error of law. The appeal was dismissed, and the orders made by the Magistrate were confirmed.

Orders

Orders of the court

Appeal 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

Mr Gynther resists the appeal, arguing that the sentence is not manifestly inadequate and that no error is demonstrated in the refusal to make an enforcement order.The decision The Magistrate, in his sentencing remarks, took account of the relevant circumstances and the submissions. He referred to legislation including the Penalties and Sentences Act 1992 (Qld), which was of course the applicable statutory regime. He observed that Mr Gynther’s assumption that he was entitled to build the causeway was not unreasonable. The partially constructed causeway is completely underwater at high tide and thus does not completely restrict the flow of water. In relation to the penalty imposed, his Honour referred to comparable cases which had been presented including Seatree Investments Pty Ltd[6] where a fine of $10,000 was imposed for the clearing of 130 mature mangrove trees; further to a matter of McMahon[7] where a fine of $4,000 was imposed, and GLB Quarrying and Logistics Pty Ltd[8] where approval for clearance had been obtained but an excessive amount was removed resulting in a fine of $10,000. [6]Magistrates Court, Sandgate, 13 October 2011; referred to in the comparative Schedule, Exhibit 7.[7]Magistrates Court, Cleveland, 9 March 2007.[8]Magistrates Court, Brisbane, 15 March 2015. His Honour referred to Mr Gynther’s age, 74 years; his good standing in the community; his cooperation with investigators and a timely plea of guilty, with remorse shown and expressed; his record in conservation; the fact that he was ignorant of the legal requirements and did not conduct the exercise for commercial gain. He also referred to the lack of any previous criminal history and that the damage to the grass in the area was minimal. He also observed that the area had been previously, legitimately, grazed by cattle and that the causeway does not completely block the flow of the creek. His Honour also referred to Mr Gynther’s war service and that he suffers PTSD as a result. He thus arrived at the fine of $7,500 collectively for the two counts together with $99 court costs and $250 professional costs. In relation to the enforcement order application, his Honour concluded that the construction only restricted waterflow at low tide, and further, there was other restriction to the flow slightly down stream in the form of, in effect, sandbanks, which are visible on photographs attached to Mr Gynther’s statement. In this context, the sentence proceeded, and it is not suggested otherwise than that this court should proceed, on the basis of paragraph 34 of the statement which was tendered, as follows:“During the 12-hour tidal window, the rocks are above water for about an hour or two. However, at this time, about 50 metres downstream the ‘mouth’ of the drainage line is also above water (it is a sandy area, so fish could not enter the drainage line in any event).”The attached paragraphs support this commentary, and I do not understand it to be contested by Mr Murn.The appellant’s submissions

Ratio Decidendi

Legal Principle Established

In relation to the making of the enforcement order, Mr Gynther emphasises that this is discretionary and urges three broad considerations in support of the conclusion that one ought not have been made. Firstly, because the creek is cut off by other sandbanks 50 metres closer to the mouth of the waterway in any event, the distinction between the causeway existing or not existing in its present form makes very little difference to marine life; a fish attempting to navigate downstream at low tide is only prevented from going another 50 metres or so. Secondly, as noted above, it is said that Mr Gynther has not enjoyed any benefit from the works which he should not be permitted to retain. The situation is contrasted with someone who unlawfully demolishes a heritage or historic house or structure in order to benefit from development thereon; such a person clearly gains a benefit from their wrongdoing, which is not the case here. Thirdly, it is said that the cost of the rectification works, said to be in the order of $90,000[11], would impose an unreasonable burden on Mr Gynther in the circumstances outlined above (including the apparently marginal difference to the environment), and this is a relevant consideration to the exercise of the discretion.Consideration[11]The evidentiary basis for this estimate is not clear, but the parties were happy for the appeal to proceed on the basis of this general estimate, which had been referred to without demur belowPenalty As to the penalty imposed, it is certainly correct, as Mr Gynther concedes, that the fine imposed is modest when compared with both the application fee and with the maximum penalties available for each of the counts ($261,100 and $391,650 respectively). However, in my view there is force in Mr Gynther’s argument that this comparison, whilst in some cases such as Esat having relevance to the analysis of the relevant question of general deterrence, does not represent an immutable guideline in every case. Thus, the distinction drawn here is that, in contrast to Esat, Mr Gynther has not received any benefit from the avoidance of the application fee; that is, the causeway did not proceed to conclusion of its construction. Further, as outlined above, the harm done to the flow of water, whilst it does exist, makes little difference to the overall result in the environment, given that 50 metres downstream the sandbank further restricts the flow of water to a similar or perhaps greater extent. Thus while I respectfully adopt the accuracy and force of the reasoning in Esat, in my view Mr Gynther is correct to argue that the same analysis does not apply with equal force in this case. Mr Murn fairly concedes that a number of circumstances tend to mitigate the penalty to be imposed. These are set out at paragraph 13 of his outline as follows:- Mr Gynther’s age (74 years at the time of sentence). His umblemished record. His status as a retiree. His suffering PTSD as a consequence of his service in Vietnam.