Stephen John Ball Appellant; v; Eric Child and Sons Pty Ltd & Anor
[2025] QDC 173
•21 AUGUST 2025
[2025] QDC 173
DISTRICT COURT OF QUEENSLAND
KENT KC DCJ
Indictment Nos 1478 of 2024 and 1479/2024
STEPHEN JOHN BALL Appellant
v
ERIC CHILD AND SONS PTY LTD & ANOR Respondent
BRISBANE
THURSDAY, 21 AUGUST 2025
JUDGMENT
HIS HONOUR: Today’s proceedings concerning the sentencing of the two defendants are consequent upon my earlier judgment in the appeal in this matter, which is in the court record as Ball v Eric Child and Sons Pty Ltd & Anor [2025] QDC 81. A brief chronology is that after the defendants’ acquittals in the Magistrates Court, the complainant appealed to this court, and after a hearing in April and May of this year I allowed the appeals. The judgments of acquittal were set aside, and on the re-hearing the respondents were found guilty of the offence of carrying out an assessable development without an effective permit contrary to section 163(1) of the Planning Act 2016. As I said in the judgment, the parties were given the opportunity to be heard as to penalty and, thus, the proceeding was adjourned to today for that reason. The parties have, helpfully, given me written outlines and other material has been received as part of the sentence proceedings.
What is said, firstly, by the prosecution is that an important feature – and Parliament has made it an important feature in the Penalties and Sentences Act – is the maximum penalty available for the offence, which in the case of corporate defendants such as this is somewhat in excess of $3,000,000. The prosecution then point to the nature of the offence. It involved destruction of 2.5 hectares, or about 2.5 hectares, of native vegetation which was recognised for its importance.
As I said in the original judgment and has been discussed today, part of the factual matrix is that this land was cleared in the 1970s about probably 50 years ago, and 45 years or so prior to the offence being committed. The planning scheme in force at the time provided that the land in question fell within the primary vegetation management area in the scheme’s biodiversity area overlay, and the purpose of the overlay is explicitly to connect biodiversity corridors, protect and enhance habitat values and ecosystem and functions, and protect scenic amenity values.
The biodiversity areas overlay code purpose 8.2.2.2, sub-purpose (1) says so. Performance outcome 2 required protection of the current extent of native vegetation. There was also State-level mapping – and that is in Exhibit 18 – identifying the relevant vegetation as being remnant vegetation containing endangered regional ecosystem. The protected plants flora survey described it as a high-risk area. It was a koala habitat area and the respondents seem to have been both aware of this, so that a relevant spotter was employed during the clearing as part of the quoted price, and the area contained endangered regional ecosystems.
What I said in the commentary about this in the judgment was that these features do demonstrate the subtleties and complexity of planning issues at times, particularly the aspect that planning instruments and their priorities develop over time. This area, which is obvious on the aerial photos, is zoned medium industrial and there are neighbouring developments of that kind, yet the planning instruments referred to prioritise ecological issues, including connection of biodiversity corridors in the management of this remnant vegetation.
The fact that surrounding land has been developed as industrial uses over years and, as I said previously, perhaps importantly, leaving this remnant vegetation in place did not erode and, in my view, may, in fact, enhance the importance of these planning priorities in the present version of the scheme. Thus, this may counterbalance the feature that the actual physical area cleared is less than in some other cases and, of course, other cases are always instructive as comparables. There are always distinctions to be drawn, as well as similarities and, of course, there is no one correct penalty for each offender and each offence and the sentencing process, as we constantly enunciate, is one of instinctive synthesis.
Taking into account the relevant factors in the struggle to arrive at a just sentence, the prosecution point to the nature of the offending, which they say rises to, or at least very close to, the category of deliberate conduct, it is true that Down Under Construction’s representative was warned by Mr Rice that the approvals were not in place. The prosecution argue that personal and general deterrence are important sentencing principles in the competing factors to arrive at the correct sentence, and that there is a lack of remorse in this case, which is correct in the sense that the parties pleaded not guilty and, perhaps understandably, resisted the prosecution appeal.
In that context, the prosecution’s argument is that the range for the fine is between $120,000 and $150,000 each, pointing out, as it does, that taking into account the seriousness of the maximum penalty, these figures are less than five per cent thereof. Reference was made by the Crown to R v Moore as to relevant factors that arise in this kind of case. It is submitted by the prosecution that the defendants were aware of the environmental risk. Their conduct, if not deliberate, probably rises to the level of recklessness. They profited from it. Down Under Constructions had been warned by Mr Rice. Deterrence is important and there was no remorse shown. The level of offending when compared to other cases is relatively serious, but it stands to the defendants’ credit that neither has any previous convictions.
It is pointed out, as I think I have already canvassed, that pursuant to State instruments the remnant vegetation was endangered regional ecosystems and ecosystems of regional concern. It was a high-risk area for the protected plants flora survey trigger map and it was a koala habitat. For the local planning scheme it was a primary vegetation management area and, of course, the management of the vegetation was removed from the Council’s power by the unpermitted clearance, and retention of this type of vegetation in that particular area is paramount, as recognised by the planning scheme and, of course, as we take as somewhat trite, as the Court of Appeal has previously said, planning schemes of this kind must be taken as representing the public interest.
In relation to Down Under Constructions, the prosecution submit that their conduct was either reckless or intentional. Mr Rice did warn Mr Kenward. The search indicated that 81 per cent of the area was primary vegetation management encumbered and, as I have noted, the Down Under Constructions’ representatives had identified the need for a spotter. There was a commercial gain, so says the prosecution. The development application which was presented – and it seems a version of it at least was eventually approved – estimated a construction cost in the order of $5,500,000. It is indicated by the present photographic exhibits that the construction project proceeded and seems to be fairly close to completion at the moment, bearing as it does the prominent sign, understandably enough, of Down Under Constructions.
So in that kind of budget, presuming that to be not precise but somewhere perhaps in the range, it would be surprising if Down Under Constructions has not made a significant profit from this building project. Certainly, like all commercial enterprises, it is in the business of making a profit.
In relation to Eric Child and Sons, what is pointed out by the prosecution is that its representative did make significant admissions that were given in evidence at the trial, and in that sense cooperated with the investigation. However, being someone in the trade of land clearing for a long time, they are a corporate entity which should have known of the possible problems of unpermitted land clearing. Their going forward in the circumstances on which they were aware is submitted to be reckless. There was a commercial gain at the very least in the sense that they also are in business to make a profit. The contract price was something over $41,000. If, for example, their profit margin was 30 per cent, then it would be something in the order of $14,000. Not a large profit in the scale of things, but a commercial gain which was, no doubt, significant to Eric Child and Sons.
Overall, what is pointed to by the prosecution embracing previous authorities, including a decision of mine, is that the relevant fines should be of a significant level, such that they should represent a deterrence to commercial enterprises that are in this business to the extent that the mere paying of a fine for unpermitted development should not be able to be seen as a mere cost of doing business, and to deter the idea, which apparently has arisen at least in some cases, that it is better for such companies to ask for forgiveness than permission. Those are the broad sweep of the submissions that lead to the conclusion that without really distinguishing between the two because there are counterbalancing features in each case, the quantum of the fine should be between $120,000 and $150,000.
On behalf of Eric Child – and I should just pause to note that both defendants submit that a fine in the order of $40,000 is appropriate. On behalf of Eric Child, it is pressed that it has no criminal history before or since, and that is quite correct and it stands to its credit. Apparently, the business has been working in the area for about 30 years. It was started by Mr Child’s father, I think perhaps and his brother, and is now conducted by Mr Child, who has sworn an affidavit. It is submitted on behalf of Eric Child that there was no, or marginal, benefit to Eric Child and Sons by the unpermitted development.
I think what that submission deals with is the idea that had there been a permit in place, the price quoted and the work done and, presumably, the profit margin would have been the same, so it did not acquire any particular benefit from the clearing being unpermitted rather than permitted. But the fact is that the damage was done unlawfully and, as a result of that, the commercial contract entered into for the work resulted in a benefit to the company.
It is also said that Mr Child received documents which he thought authorised the clearing, and reference is made to a number of matters including the permit in force. I have dealt with these issues somewhat in the primary judgment and I will not descend into fine detail. But it is said in response by the prosecution that receiving the drainage plan, if anything, would have been a red flag rather than an assurance and, with respect, I think that is correct for someone in the trade, as the defendant was, and, as I have already mentioned, I am told that the website said there was a “permit in force”. As I said in the primary judgment, what that means is a matter of utter speculation, but I am told now that if one clicks on it, to use the vernacular, one is told the details, which is that the previous development approval had expired years before.
It is said on behalf of Eric Child that the area was somewhat modest that was cleared and I have already dealt with that. In my view, even if one does regard the area as modest compared to some other cases, there are other serious aspects of the biodiversity value of this area which counterbalance to a large extent those distinctions. It is submitted on behalf of Eric Child that general deterrence is not important on the basis of general principles dealing with the idea that offences committed, as it were, by inadvertence are less susceptible to deterrence and that, with respect, is a reasonably general and correct statement of principle.
It was sought to be supported with reference to the decision of the Chief Judge in Dibb. Dibb was different in the sense that it was a natural person doing this on his own land. He was not in the business of doing it as both of these defendants are. Dibb was also a case where his Honour was considering an appeal against conviction and sentence and the sentence of a $10,000 fine was certainly not found to be excessive, whether or not it was actually inadequate for a natural person for whom the maximum penalty would have been, presumably, a fifth of whatever it would have been for a corporate entity at the time. So whether that was an excessive penalty, his Honour found that it was not. Whether it was an inadequate penalty did not really fall for consideration in the context of there being no prosecution appeal.
On behalf of Down Under, it is submitted, essentially, that although it clearly has profited, in my conclusion, from the building project in the circumstances outlined, this particular land and the clearance of these particular trees and other vegetation made no real difference to Down Under, and I understand the thrust of that submission, that is, Down Under were not married to this block and its vegetation. They were just in discussions with the to-be owner, which was Predicate, and is not a party to these proceedings, and it seems that the two of them were engaged in the business of looking around for Down Under to find an appropriate block on which to develop commercial premises for Predicate. I understand that that is the factual background.
It is also said that Down Under thought through its human agents that there was an approval in place. I have dealt with that to a large extent in the primary judgment and I will not repeat what I have said about those things. Some of the features of the case bearing on that issue are recorded in paragraph 97 of the judgment. Just to re-catalogue them briefly, the fact is that there were no development approvals ever given that would have authorised the impugned clearing. That is demonstrated by the evidence at the trial and the appeal and it is not controversial, that proposition.
The only development approval which had previously existed for three months from October 2007, that is, about 13 and a-half years prior to the clearing, was for a material change of use for a general industry shed, but it did not authorise operational work such as clearing. So any mistake as to the continuation, in effect, of that DA would not avail the respondents and, of course, there was no evidence, as I understood it, of any such state of mind. No one went any further than the “permit in effect”.
As regards the first respondent, Eric Child, Mr Halloran spoke to someone on the site named Jason immediately after the clearing. He, Jason, gave Mr Halloran the stormwater management plan which said nothing about clearing, and it is difficult to apprehend how anybody involved in the clearing or building trade could regard a stormwater management plan as an authority for clearing. Fourthly, Mr Child did not inform Mr Halloran of any development approvals other than the 2007 one. Exhibit 12E is an email of the 12th of April from Mr Kenward of Down Under to Mr Child attaching documents that included a copy of the inquiry tool which said “permit in force”. There was no operative date and I have mentioned what, if anything, it meant. As I said in the primary judgment, its meaning is unclear and unexplained.
There is no evidence that prior to the clearing Mr Child had been given a copy of the 2007 material change of use approval, or any evidence of its terms. The email of the 12th of April referred to the “approved plan”, but only attached the stormwater management plan, which says nothing about vegetation and, finally, Mr Child, who was involved in clearing work for some time, described his ordinary practice in relying on the preparatory work of reliable clients for whom he regularly worked, but this was, in contrast, the first time he had worked with Mr Kenward for the second respondent. So against that factual matrix, it is hard to conclude that there was any positive belief by Down Under Constructions as to an appropriate, in effect, approval for clearing at the time that the clearing happened.
It is pressed on behalf of Down Under that it was a mere facilitator of the clearing. My understanding is that it, essentially, retained the clearing work to be done. I was taken today by the prosecution to conversations that Mr Kenward had with the investigator about seven days after he had forwarded relevant documents to Mr Child. It is clear on the evidence that Mr Kenward was warned by Mr Rice that there were no permits in effect at the time. It is said on behalf of Down Under that $40,000 is a sufficient fine to have a deterrent effect.
Pursuant to section 9 of the Penalties and Sentences Act, which as the parties say is trite law, the only purposes for which a sentence may be imposed on an offender are, firstly, to punish the offender to an extent or in a way that is just in all the circumstances, that is, balancing competing factors to arrive at a fair sentence; secondly, providing conditions in the court’s orders that will assist rehabilitation, a purpose which does not really loom very large in the present case because neither of the defendants have committed an offence before or since and both have, apparently, been chastened by this experience, understandably, and will make appropriate thorough inquiries in the future. The third purpose is to deter the offender or other persons from committing the same or a similar offence and, in my view, that purpose does loom somewhat large; fourthly, making it clear that the community acting through this court denounces this kind of conduct; and, finally, to the extent necessary, protecting the Queensland community from future misbehaviour by the offenders.
In my view, as the prosecution submit, general deterrence is important in this case. It is simply the case that this kind of behaviour must be met with a penalty of sufficient significance that its imposition cannot be a simple cost of doing business. It is also correct to argue, as the prosecution do, that the maximum penalty is a relevant feature that features in section 9(2)(b) of the Penalties and Sentences Act, that is, in sentencing an offender a court must have regard to, amongst other things, the maximum and any minimum penalty prescribed for the offence. The maximum is over $3,000,000. There is no prescribed minimum and the range pressed by the Crown does not exceed five per cent of the potential maximum, which underlines the fact that deterrence can really only be achieved by a significant fine.
Balancing all of the circumstances, my conclusion is this. True it is that Eric Child and Sons were the actual actor that cleared the block. It was also in the business of land clearing and should have known better. I do accept that there was a problem for it at the time in that its guiding mind, Mr Child, was under stressors at the time which were not his fault, just contingencies that were imposed on him at the time, and that made it more difficult for him. I also accept that Eric Child and Sons through Mr Child did cooperate with the prosecution investigation to the extent that those conversations were led in evidence at the trial and that stands in its favour. It is also true to say that although not benefitting in the way challenged by Ms O’Gorman KC, there was a benefit flowing to Eric Child and Sons in the sense that the clearing operation was conducted for commercial reasons and, no doubt, at a profit.
So taking all those matters into account, Ms O’Gorman’s argument is that really the culpability of Eric Child and Sons, even though it is the actual physical actor, is somewhat less than that of Down Under Constructions. With respect, I accept that submission, however, I do find, particularly for reasons of general deterrence in the way that I have, hopefully, outlined, that the penalty should be significantly higher than the one submitted for by Ms O’Gorman. So, in the result, my conclusion is that the fine for Eric Child and Sons should be in the amount of $125,000 and I will hear more from the parties in a moment about whether – sorry, in what way that is further clarified.
In the case of Down Under, as discussed with Ms O’Gorman, in particular, the fact is that even though it was not the physical actor, it was Down Under that retained the work to be done and in that sense is legally culpable. It is also reasonably clear and an inference I do not understand to be significantly challenged, that the contract price for the building work being apparently in the order of $5,500,000 – and there is no precise evidence of the contract price, but that is what was mentioned in a development approval application – the actual benefit flowing to Down Under was much more significant. I accept, as Mr Smith says, that there is no reason why Down Under would have been particularly interested in this block of land compared to any other. It just wanted to build a building for profit and I accept that that is correct, and in the same way Mr Smith says it had no particular interest in clearing vegetation in an unpermitted way and I am sure broadly that is correct.
However, for the reasons I have mentioned this morning and those teased out in the original judgment, I just cannot accept that this conduct by, apparently, the guiding mind of Down Under at the time, Mr Kenward, was other than reckless in view of the varying factual features that were within his knowledge at the time, particularly the warning by Mr Rice, I must say. The fact of Down Under’s slightly greater degree of culpability in that sense, and the fact that the gain to them – to it, I should say, does seem to have been greater than that of Eric Child and Sons drives me to the conclusion that the penalty should be slightly higher for Down Under, so in its case the fine will be $135,000.
Okay. Now, I have the draft orders in each case. Usually, when one imposes a fine, there is, you know, some mechanism for its enforcement. Usually, there is time to pay and in default it gets referred to SPER. I am not sure if that is correct for corporate defendants, though.
MR WYLIE: Corporate defendants do have fines referred to SPER and that’s what the orders specify.
HIS HONOUR: Do they? They do, too. Yes, okay. So, really, it’s just necessary for me to insert the amount. Yes?
MR WYLIE: Yes, your Honour.
HIS HONOUR: So I’ve made the orders in terms of the drafts with the amounts of the fines inserted where relevant. I note as the orders contemplate that in the circumstances of the cases and consistent with the submissions of both parties, no convictions are recorded. Okay. Hesitantly, I ask if there’s anything else.
MS O’GORMAN: No, thank you, your Honour.
HIS HONOUR: Okay. Thanks, for your assistance everyone. I’m not adjourning. I’ve got another thing to do.
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