Drew v Bundaberg Regional Council [2013] QDC 1

DISTRICT COURT OF QUEENSLAND CITATION: Drew v Bundaberg Regional Council [2013] QDC 001 PARTIES: RICHARD DOUGLAS DREW (appellant) and BUNDABERG REGIONAL COUNCIL (respondent) FILE NO: 44/2012 DIVISION: Appellate PROCEEDING: Hearing of an Appeal ORIGINATING COURT: The Magistrates Court of Queensland at Bundaberg DELIVERED ON: 3 January 2013 DELIVERED AT: Brisbane HEARING DATE: 30 November 2012 JUDGE: R S Jones DCJ ORDERS: 1. The appeal against conviction is dismissed. 2. The appeal against the cost orders made below is dismissed. 3. The appeal against penalty is upheld and the penalties imposed in the Magistrates Court at Bundaberg on 17 July 2012 are set aside, and in lieu thereof it is ordered that the appellant be fined $5,000 and that no conviction be recorded. 4. I will hear from the parties as to costs. CATCHWORDS: APPEAL – appeal pursuant to s 222 of the Justices Act 1886 – appeal against an order of a Magistrate convicting the appellant of an offence under s 83(1)(d) of the Building Act 1975 – whether learned Magistrate erred in finding that s 83(1)(d) of the Building Act 1975 was applicable – whether respondent was a concurrence agency pursuant to that Act – APPEAL AGAINST THE EXERCISE OF DISCRETION – whether learned Magistrate erred in the exercise of a discretion in imposing a fine of $7,500 – whether discretion miscarried in recording a conviction – whether discretion miscarried in imposing a manifestly excessive sentence APPEAL AGAINST EXERCISE OF DISCRETION – -- 1 of 15 -- 2 LEGISLATION: CASES: whether learned Magistrate erred in awarding costs in excess of prescribed scale of fees ASSESSMENT OF CREDIT – relevance of findings of credit by learned Magistrate Building Act 1975 (Qld), ss 9, 83, Justices Act 1886 (Qld), s 222 Justices Regulation 2004 (Qld), sch 2 Penalties and Sentences Act 1992 (Qld), s 12 Sustainable Planning Act 2009 (Qld), ss 272, 313, 325(4), 351, sch 3 Durrant v Gardner [2000] QDC 198, applied Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered House v R (1936) 55 CLR 499; [1936] HCA 40, applied Mbuzi v Torcetti [2008] QCA 231, cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, considered R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, considered R v Briese; ex parte Attorney General (1998) 1 Qd R 487; [1997] QCA 10, considered Riley v Doyle & Anor [1997] QCA 112, cited Rowe v Kemper [2008] QCA 175, cited COUNSEL: Mr G Barr for the appellant Mrs M Williamson for the respondent SOLICITORS: Payne Butler Lang for the appellant Connor O‘Meara for the respondent [1] This proceeding is concerned with an appeal pursuant to s 222 of the Justices Act 1886 against a decision of the Magistrate of the Magistrates Court of Queensland at Bundaberg. The central issues in dispute were: (i) Whether the respondent was in fact a concurrence agency as defined in s 351 of the Sustainable Planning Act 2009 (‗SPA‘) for the purposes of a building development application assessed and approved subject to conditions by the appellant. If the works proposed under the building development application triggered the concurrence agency province of the respondent, then the application was required to be referred to it by the appellant prior to any decision concerning the application being made.1 (ii) Whether the learned Magistrate erred in finding that the building development approval in issue was one which 1 See Appellant‘s Outline of Submissions, para [8]; Respondent‘s Outline of Submissions, paras [27] and [37]. -- 2 of 15 -- 3 required the building development application to be referred to the respondent as a concurrence agency. (iii) Whether, in the event that the appellant was guilty of the offence charged, the learned Magistrate erred in the exercise of his discretion in fining the appellant $7,500 and ordering that a conviction be recorded. On behalf of the appellant, it is contended that the sentence imposed was manifestly excessive. (iv) Whether the learned Magistrate erred in the exercise of his discretion in awarding costs exceeding the scale of costs set out in Schedule 2 to the Justices Regulation 2004. [2] For the reasons set out below the orders of the Court are: 1. The appeal against conviction is dismissed. 2. The appeal against the cost orders made below is dismissed. 3. The appeal against penalty is upheld and the penalties imposed in the Magistrates Court at Bundaberg on 17 July 2012 are set aside, and in lieu thereof it is ordered that the appellant be fined $5,000 and that no conviction be recorded. 4. I will hear from the parties as to costs. Background [3] At all material times, the appellant was the principal of a business that traded under the name ―Burnett Country Certifiers‖. The appellant was a ―private certifier‖ within the meaning of that term where used in s 9 of the Building Act 1975. By virtue of that qualification, the appellant was authorised to act as an ―assessment manager‖ in respect of certain building development applications. In that role, he was permitted to receive and assess applications and to decide them by granting or refusing them. That work would otherwise have been the responsibility of the respondent. It was common ground that the building works were to be carried out on land which lay within the local government area of the respondent and was within the boundaries of its Burnett Shire Planning Scheme 2006. [4] On 9 August 2010, the owners of the land engaged the appellant as a private certifier in relation to their application for approval of the construction of two carports on the land. In this process, the appellant received a number of documents some of which will be referred to below. On 1 September 2010, the appellant issued a decision notice approving the construction of the sheds subject to conditions, including a final inspection. [5] By complaint and summons issued on 30 May 2011, the respondent alleged that: ―On 1 September 2010, (the appellant) acting in the capacity of a private certifier contravened section 83(1)(d) of the Building Act 1975 in that he granted a building development approval applied for in relation to land…. as: -- 3 of 15 -- 4 (a) The Bundaberg Regional Council, as a concurrence agency, had jurisdiction for a part of the building assessment work; (b) The building development application was approved by (the appellant) prior to the part of the building assessment work having been assessed by the Bundaberg Regional Council as concurrence agency, as the building development application was not referred to the Bundaberg Regional Council as a concurrence agency in accordance with section 272 of the Sustainable Planning Act 2009.‖ [6] Section 83(1)(d) of the Building Act 1975 relevantly provides: ―The private certifier must not grant the building development approval applied for— …. (d) if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work— (i) that part has been assessed by the concurrence agency, under the building assessment provisions; and (ii) if the concurrence agency is the local government— any security it has required for the carrying out of the building work has been given;….‖ [7] The appellant pleaded not guilty to the charge and the matter was heard in the Magistrates Court at Bundaberg when, on 17 July 2012, the learned Magistrate found the appellant guilty of the offence and heard from the parties in respect of penalty and costs. After hearing from counsel for the respective parties, the learned Magistrate imposed a fine of $7,500 and recorded a conviction against the appellant. His Honour also ordered the appellant to pay the respondent‘s costs of the proceedings in the amount of $21,727.39. Grounds of Appeal [8] The grounds of appeal are: 1. The learned Magistrate erred in finding that s 83(1)(d) of the Building Act 1975 applied in circumstances where the ―building development approval applied for‖ did not require concurrence agency assessment. 2. The learned Magistrate erred in finding that the building development approval granted by the defendant was one which required concurrence agency assessment. 3. The conviction was unsafe and unsatisfactory. 4. In the alternative, the sentence imposed was manifestly excessive, 5. In the further alternative, the learned Magistrate erred in the exercise of his discretion in the award of costs exceeding the scale of costs set out in Schedule 2 to the Justices Regulation 2004. The Conviction -- 4 of 15 -- 5 [9] As identified above, the central issue was whether the application was required to be referred to the respondent in its capacity as a concurrence agency. Pivotal to that question was whether the total gross floor area of the two carports, the subject of the application, and the existing shed on the land was greater or less than 100m2. In the appellant‘s written submissions, it was said:2 ―The respondent asserted that, because the total gross floor area of the existing shed/garage together with the proposed carports exceeded 100m2, referral was required. The appellant conceded that, for a building development application seeking approval to construct a ―shed‖ on the subject land where the result is that the total gross floor area of all such structures would exceed 100m2, concurrence agency referral was required. The appellant contended before the Magistrate and contends on this Appeal, however, that was not the content, or effect of the building development application he had before him for assessment.‖ [10] It was uncontroversial in the Court below that the application made to the appellant was to carry out building works and that those works constituted assessable development under Schedule 3 of SPA. It was also uncontroversial that the appellant in carrying out his functions as a private certifier in relation to the application was an ―assessment‖ manager for the purposes of SPA, and that in that capacity, he was required to assess and decide such applications in accordance with the relevant provisions of that Act. [11] Section 313 of SPA relevantly provides: ―..... (3) ... the assessment manager must assess the part of the application having regard to the following – ... (b) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises; ....‖ (emphasis added) [12] It was not in dispute that the existing shed on the land was an ―adjacent premises‖ for the purposes of s 313 of SPA and that it was the subject of a prior development approval.3 The approval of the existing shed revealed that its dimensions were 6m x 9m with a gross floor area of 54m2. The actual dimensions of the existing shed were not in dispute.4 [13] The building development application received by the appellant sought approval to construct a ―proposed gable carport‖ with dimensions 6m x 7m (GFA of 42m2) and a ―proposed carport‖ with dimensions 4m x 9m (GFA of 36m2) on the subject land. That application also identified that the existing shed on the land had dimensions of 3.6m x 6m (GFA of 21.6m2). Accordingly, the total gross floor area of the proposed and adjacent structures was falsely represented as being 99.6m2. When 2 Paras [9] – [11]. 3 Exhibit 3. 4 Appellant‘s Outline of Submissions, para [7(i)]. -- 5 of 15 -- 6 the actual gross floor area of the existing buildings are taken into account the gross floor area of all the sheds/carports on the land was 132m2. As the appellant acknowledged, if the gross floor area of all of those buildings exceeded 100m2, the application should have been referred to the respondent as a concurrence agency. That is not an insignificant matter as, pursuant to s 325(4) of the SPA, an assessment manager must refuse the application if given such a direction by a concurrence agency. [14] The appellant focuses on the words ―development approval applied for‖ where used in s 83(1)(d) of the Building Act 1975. Pursuant to that Act, a building development application is an application for development approval under the SPA.5 It is contended on behalf of the appellant that as the building development application seeking approval for the proposed works did not seek approval for a gross floor area exceeding 100m2 the appellant was under no obligation to refer the matter to the respondent. [15] The learned Magistrate made a number of findings, some of which will be referred to below, but of particular significance in this regard, His Honour found:6 ―Richard Douglas Drew contends that the building development application did not seek approval for construction of a class 10(a) structure exceeding 100m2 of gross floor area. Mr Drew also contends that his approval was for construction of class 10(a) structures not [sic] exceed 100m2 gross floor area when assessed with the existing shed as detailed in Exhibit 1 Folio 12. He erroneously contends that s 83(1)(d) of the Building Act 1975 had no application.‖7 [16] After referring to that passage, it was submitted that His Honour failed to have proper regard to the application of s 83(1)(d). It was submitted that:8 ―The ‗building approval applied for’ is identified in the IDAS application form itself incorporating a series of plans, including the site plan which depicts the proposed new structures and the existing structure. That the application was later demonstrated to be erroneous does not change the fact that it was that which was applied for. That the approval, once issued, could not have been complied with because of the inconsistency between the submitted plan and the existing structure does not change the fact that it was that which was applied for and later approved.‖ [17] And9 ―... That because, neither the building development application, nor the Decision Notice purported to seek or approve the construction of 5 Building Act 1975, s 6. 6 Transcript 17/7/2012, T3-8, L50-55. 7 It is not in dispute that the structures were class 10(a) structures for the purposes of the respondent‘s planning scheme. 8 Appellant‘s Outline of Submissions, para [21]; see also appeal transcript T1-13, L8-40. 9 Ibid, [25]. -- 6 of 15 -- 7 class 10a structures exceeding 100m2 GFA, concurrence agency referral was not required. As such, s 83(1)(d) of the Building Act 1975 had no application.‖ [18] The appellant contends that the learned Magistrate erred in finding him guilty of the charge because he: first, failed to have proper regard to the application of s 83(1)(d) of the Building Act 197510 and, second, became ―distracted by extraneous matters‖ leading to a failure to properly consider what was ―applied for‖ and what it was that was ―approved‖. 11 [19] In my view, the appellant fails on both of these points. It is clear from the decision of the learned Magistrate that he was alert to the s 83(1)(d) and concurrency agency issues involved.12 It is also clear that his Honour was alert to the central theme of the appellant‘s defence.13 The extraneous matters which are said to have distracted the learned Magistrate were: (i) That the application plans were crudely drawn. (ii) That the gross floor area identified in the application (99.6m²) should have alerted the defendant to make further enquiries to ascertain the true state of affairs. (iii) Further enquiries that could have been made included the making of an information request. Having regard to the nature of the proceedings below, I find it difficult to accept the matters identified could be said to be extraneous considerations. However, accepting for the sake of the argument that they may be properly so described, I was not taken to any material that showed that the learned Magistrate was distracted from the real issues in the proceedings. [20] The construction of s 83(1)(d) of the Building Act 1975 contended for by the appellant is essentially to the effect that the obligations of a private certifier must be determined solely by reference to the development approval applied for. In my opinion, that is not a proper construction of the section for at least three reasons. First, it would provide a defence for a private certifier even in the face of fraud or gross negligence. Second, associated with the first point, it would make redundant the professional responsibilities imposed on a private certifier.14 Third, it ignores the statutory requirement pursuant to s 313(3)(b) of SPA for the appellant to assess the application having regard to, relevantly here, any existing development approvals. [21] As to the last of these matters, it is not in dispute that the appellant did not investigate, let alone take into account, any existing development approvals. His evidence was that he ―took it that there was no approval on the existing shed.‖15 10 Ibid, [19]. 11 Ibid, [22], [23] and [24]. 12 T3-3, L10-15. 13 T3-8, L48-50. 14 Qld Government ‗Code of Conduct for Building Certifiers', effective 14 November 2003. (Exhibit 5) 15 T3-9, L50. -- 7 of 15 -- 8 Whether that was because he was proceeding on the basis that the existing shed was only 21.6m² is unclear. [22] Based primarily on the evidence of a Mr Loadsman16 and a rejection of the evidence of a Mr Kenny, the manager of Burnett Country Certifiers,17 the learned Magistrate said:18 ―The decision notice issued by Richard Douglas Drew on 1st of September 2010 approved the constructions [sic] of the two carports in conjunction with existing shed on the land at 2 Jasper Court, Branyan. What was approved was the construction of the two carports in conjunction with an existing shed measuring 3.6m x 6m, thus with the gross floor area of 99.6m². In reality the existing shed measured 9m x 6m as detailed in Mr Loadsman’s first site plan, Exhibit 1, Folio 32, and when combined with the floor area of each of the proposed carports there was created a gross floor area of 13m². I am satisfied beyond reasonable doubt that the measurements of 3.6m x 6m as amended by Mr Loadsman under the direction of Mr Wallace James Kenny were detailed for the sole purpose of creating a deceptive gross floor area just below the 100m² to attempt to avoid referral to a lawful assessment by the Bundaberg Regional Council as a concurrence agency.‖ (emphasis added) [23] That finding was not challenged in this appeal. The decision of the learned Magistrate is also littered with statements which make it abundantly clear that his Honour found the appellant to be a witness of little credit. The appellant was referred to as being ―unimpressive as a witness, his reliability was extremely questionable as is his honesty in relation to the proceeding of the application‖. He became evasive when pressed. He was not convincing.19 At page 3-11 of the transcript,20 the learned Magistrate said: ―Both honesty of the beliefs of Mr Drew and the reasonableness of his beliefs in relation to the building development application… are in question. There exists a grave doubt that the evidence of Mr Drew of actually carrying out appropriate assessment before his purported approval was honest.‖ [24] The learned Magistrate‘s findings about the credit of the appellant were not challenged in this appeal. [25] It is true that in the application for approval before the appellant, the gross floor area of all the relevant buildings did not exceed 100m² and therefore, prima facie, did not require the application to be referred to the respondent as a concurrence agency. 16 T3-5, L30-60, T3-6, L1-32. 17 T3-6, L35-60. 18 T3-8, L15-35. 19 See generally T3-9. 20 Lines 50-60. -- 8 of 15 -- 9 However, based on the evidence, the learned Magistrate‘s unchallenged finding was that the application approval documents which the appellant had regard to were, insofar as they addressed the issue of gross floor area, a deception deliberately designed to avoid referral to the respondent.21 It was of course open to the appellant to contend that he had acted under a mistaken belief as to the existence of the state of things and thereby be excused at law pursuant to s 24 of the Criminal Code 1899 (Qld). The appellant in fact ran that defence22 and it was rejected. The rejection of that defence was not under challenge in this appeal. [26] Essentially the appellant‘s argument in respect of the conviction is that an extremely literal view ought to be taken of the words ―development approval applied for‖ where used in s 83(1)(d) of the Building Act 1975. Such a construction is not open in my view as it would lead to potentially undesirable, if not absurd, consequences. Also, in my respectful opinion, the appellant‘s argument misapprehends the true nature of the building development application. It was not concerned with approval of buildings in excess of 100 m2.23 The material24 makes it clear that what was being applied for was two class 10(a) carport structures in circumstances where there was an existing adjacent structure. The existing structure was clearly a matter relevant in the approval process but it was not an integral part or component of what was being sought to be approved. That was, as the decision notice identified,25 two carports, being class 10(a) buildings under the respondent‘s planning scheme. The appellant‘s duty was to then properly consider the application. The learned Magistrate found that the appellant failed in carrying out his obligations as a private certifier and, on the evidence before him, it was entirely open for his Honour to reach that conclusion. [27] For the reasons given, the appeal against conviction is dismissed. Penalty and costs [28] The imposition of a penalty upon conviction necessarily involves the exercise of a discretion which must be exercised judicially. In House v R,26 Dixon, Evert and McTiernan JJ stated the well known proposition that: ―The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide him or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in 21 T3-8, L28-32. 22 T3-9, L10-18. 23 Appellant‘s Outline of Submissions, paras [15] and [25]. 24 Exhibit 1, pp 1, 4, 27. 25 Exhibit 1, p 4. 26 (1936) 55 CLR 499. -- 9 of 15 -- 10 substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court must infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…‖ [29] The maximum fine that could have been imposed on the appellant was $16,500. The penalty imposed was $7,500 and a conviction was recorded. [30] In the appellant‘s written submissions, it was contended that the penalty imposed, including the recording of a conviction was manifestly excessive having regard to the appellant‘s age, good character and that the breach was minor and ―the error would, in any event, have been picked up by the appellant upon undertaking the final inspection.‖ [31] The learned Magistrate clearly had regard to the age and character of the appellant when imposing the penalty that he did.27 Notwithstanding those factors it seems clear from the transcript that His Honour considered the aggravating features and the level of culpability of the appellant to be significant. At page 3 of his decision on penalty and costs, His Honour said:28 ―From the evidence adduced it is clear, in my opinion, that there was no display of remorse by Mr Drew at any stage during the proceedings. It is clear, on my observations of Mr Drew, whilst hearing testimony and what was related during this testimony was that he put pecuniary reward ahead of carrying out professional actions as a private certifier in compliance with statutory provisions and the Code of Conduct applicable to him in that professional capacity.‖ [32] The unchallenged findings of fact warrant such observations in my view. [33] To describe what occurred as an ―error‖ tends, in my view, to materially understate the real facts. To describe something as an ―error‖ tends to suggest that what occurred involved some innocent mistake or oversight or error of judgment. That is not what occurred in this case. The appellant‘s breach of the law was a direct consequence of his failure to act in a way even remotely consistent with his statutory obligations. That private certifiers act in a professional manner in accordance with their statutory duties is an important component of orderly development under local authorities‘ planning regimes. In cases involving flagrant disregard of statutory duties, as is the situation here, deterrence is an important consideration. 27 Penalty transcript T2, L40-48; and T4, L10-20. 28 Lines 11-31. -- 10 of 15 -- 11 [34] Further, to say that the true state of affairs would have been ―picked up‖ again tends to understate the appellant‘s conduct in his management of the application. As was conceded by his counsel on appeal, it would have likely been the appellant who would have been responsible for the final inspection. Given his past performance, I am not at all satisfied that the true state of affairs would have been picked up on final inspection. The so-called error was even less likely to be revealed if it was Mr Kenny who carried out the inspection, he of course being involved in the falsified plans that accompanied the application. [35] However, despite there being a clear breach of s 83(1)(d) of the Building Act, the consequences were relatively minor in the scheme of things. The application was subsequently approved by the respondent with only minor changes. [36] During oral submissions before me, it was contended that the Learned Magistrate erred in the exercise of his discretion concerning costs because His Honour erred in his assessment of the seriousness of the offence but, primarily, by reference to Tasker and McCahon it could be inferred that the penalty was manifestly excessive.29 The Learned Magistrate did not have the benefit of those precedents when deciding penalty. [37] In Tasker, the defendant was fined $3,000 after entering a plea of guilty one week prior to trial. The plea was clearly a factor to be taken into account. The Learned Magistrate, in determining the fine also took into account the following facts: punishment imposed by the Building Services Authority and the defendant‘s personal financial circumstances. It seems tolerably clear that but for those matters a more severe penalty would have been imposed. [38] In McCahon a fine of $1,500 was imposed after a hearing where no witnesses were required to give evidence. Of significance, it appears that this case involved an ―oversight‖ on the part of the defendant and the prosecution sought a fine of between $1,500 - $2,000 and that no conviction be recorded. It seemed to have been accepted by all those involved in McCahon that the Tasker case involved a more serious level of offending. [39] Tasker was concerned with three offences under the Building Act but under a different section to that involved here. Section 83 is concerned with restrictions on granting building development approvals while s 84 is concerned with approvals which were inconsistent with issued development permits. That a legislature set a maximum penalty of 165 penalty units for offences under both sections strongly suggests that the mischief sought to be addressed in both instances was of a similar order. [40] In Tasker, there were more offences involved but a plea of guilty was entered. The subject case involved only one offence which, at the end of the day, had only minor consequences but involved a trial and submissions, that extended over three days. It 29 Appeal transcript T1-18, L48-60; see Tasker v Leung and McCahon v Gerhardt: decisions of the Central Magistrate‘s Court 24/10/11 and 29/11/11. -- 11 of 15 -- 12 is also clear from the findings of the Court below, none of which were challenged, that the appellant displayed no remorse and acted in total disregard of his obligations. [41] It is tolerably clear that but for the mitigating factors referred to above, the fine in Tasker would probably have exceeded $3,000 by a material margin but not, I think, by more than double. Probably in the order of that contended for by the complainant, namely, $5,000 plus costs. In this context, it is relevant to note that although there were three separate breaches, the Learned Magistrate proceeded on the basis that they involved ―one course of conduct.‖30 [42] During submissions below, based on the nature of the offending, the respondent in this case contended for the maximum penalty of $16,500. On behalf of the appellant, a range of $3,000 to $5,00031 was contended for and it was submitted that the Learned Magistrate had to be mindful that the deceptive conduct involving his employee Mr Kenny and Mr Loadsman had not been sheeted home to the appellant. There is nothing within His Honour‘s reasons, save for perhaps the recording of a conviction, which indicates that he did proceed on that basis. Indeed, if a penalty had been imposed on that basis one could readily envisage it being at or close to the maximum provided for. [43] As to the precedents set by Tasker and McCahon a number of issues arise. First, while those cases may provide some guidance, they do not, in my respectful opinion, establish an acceptable range of penalty for offences of this type. Second, in considering the penalties imposed in those cases some regard has to be given to the penalty contended for by the respondent in each case. The penalty contended for no doubt was intended to reflect the degree of seriousness the local authority attached to the breaches. In Tasker, the penalty contended was $5,000 and in McCahon $1,500 - $2,000. It appears that in neither case was a conviction advocated for. Finally, neither of those cases involved the level of offending involved in this case. In McCahon the breach was described as being at the lower end of the scale involving an oversight in the approval process. In Tasker the breaches occurred in what the Learned Magistrate appeared to have accepted as being a period when the ―industry was undergoing a period of transformation‖ and where different practices existed at the time. As identified above, a number of other mitigating factors were also taken into account in Tasker in determining the penalty ultimately imposed. [44] In my opinion it cannot be inferred that the sentence was manifestly excessive by reference to Tasker and/or McCahon. However, while the Learned Magistrate was correct to treat the breach as a flagrant one and to proceed on the basis of there being no display of remorse, His Honour erred, in my respectful opinion, in failing to have regard to the minor consequences of the breach. Notwithstanding the vastly different circumstances involved in the respective cases, the observation of Pincus JA in R v Amituanai32, to the effect that under our system of law, punishment may 30 Affidavit of Mr Godfrey: Ex LG1 at p 7. 31 Before me a fine in the order of $1,500 was contended for (T1-17, L1-10). 32 (1995) 78 A Crim R 588 at 589. -- 12 of 15 -- 13 depend on the extent of damage caused by the breach of the law. The damage, injury or loss (i.e. consequences) caused by the offender is, of course, a matter the Court must have regard to under s 9(2) of the Penalties and Sentences Act 1992. [45] The level of offending in this case is materially more than that involved in McCahon and more serious than that involved in Tasker but, when the consequences of the offending are properly brought into account, not significantly more so. And while Tasker does not reflect an established range of penalty it is, in my respectful opinion, of useful guidance. When regard is had to the absence of the mitigating factors present in Tasker, it suggests a fine in the order of $5,000 would be appropriate in all the circumstances. [46] For the reasons given, I have concluded that the Learned Magistrate erred in the exercise of his sentencing in imposing the fine of $7,500 in failing to have sufficient regard to the consequences of the offending. Also, for the reasons given, I have reached the conclusion that a fine of $5,000 is appropriate in the circumstances of the case. [47] It was also argued on behalf of the appellant that no conviction ought to have been recorded having regard to the appellant‘s age and absence of prior convictions.33 [48] Section 12(2) of the Penalties and Sentences Act 1992 provides: ―In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including— (a) the nature of the offence; and (b) the offender‘s character and age; and (c) the impact that recording a conviction will have on the offender‘s— (i) economic or social wellbeing; or (ii) chances of finding employment.‖ [49] It is recognised that the recording of a conviction may lead to an ongoing form of punishment which might, depending on circumstances, be oppressive and prejudicial to rehabilitation.34 This is particularly so in cases involving young offenders where their prospects of employment might be jeopardised. [50] It is common ground that the appellant had no prior conviction. I was not told of the appellant‘s age but he was obviously a mature man having been in the building industry since ―around 1970‖.35 It was not contended before me, and I was not taken to any material from the proceedings below, which would indicate that the recording of a conviction might impact on the appellant‘s economic or social well- being or his chances of finding employment. 33 Appellant‘s Outline of Submissions, para [30]. 34 R v Briese; ex parte Attorney General [1998] 1 Qd R 487 at 491. 35 T3-22, L25. -- 13 of 15 -- 14 [51] Notwithstanding that the Learned Magistrate referred himself to the relevant statutory provisions it seems again tolerably clear, in my respectful opinion, that His Honour again failed to have sufficient regard to the actual consequences of the offending. Also, while reference is made to the appellant‘s character, the fact that he had no prior convictions is not specifically mentioned. It appears to me that His Honour failed to have sufficient regard to this aspect of the appellant‘s character. [52] For the reasons given, I have concluded that the Learned Magistrate erred in the exercise of his sentencing discretion. In my respectful opinion, as a first time offender, the level of offending involved did not warrant the recording of a conviction. [53] I would observe, however, that in the event that the appellant had been shown to be complicit in the falsified application, the recording of a conviction would have been entirely warranted. Costs [54] The learned Magistrate awarded costs in the sum of $21,727.39 which included an allowance of $11,261 for counsel‘s fees. As I understand the appellant‘s argument, it was only the allowance for counsel fees which was under challenge.36 There was no suggestion that Mr Williamson‘s (counsel for the respondent) fees were of themselves unreasonable. Instead, the complaint was that the learned Magistrate failed to have sufficient regard to the court‘s scale of fees. In paragraphs 32 and 33 of the appellant‘s written submissions it was asserted:37 ―The Magistrate allowed the amount of $11,261 in respect of the fees of Mr Williamson of counsel who appeared for the respondent. Such amount was awarded in the purported exercise of the discretion invested in the Magistrate by s 158B of the Justices Act 1886 to award a higher amount than that prescribed by the scale contained in Schedule 2 of the Justices Regulation 2004. The amount was in addition to the scale amount of $3,575 allowed for legal professional work. Despite the interwoven statutory provisions it is submitted there was no such special difficulty, complexity or importance that would warrant any award beyond the scale amount. That is demonstrated by the matters which were not in dispute between the parties. Points ventilated before the Magistrate and not pursued on this appeal related to whether or not the structures fitted within the definition of ‗shed‘ within the planning scheme and an honest and reasonable but mistaken belief exculpatory defence. Notwithstanding this, it is submitted those points, in combination with the central point ventilated on this appeal, did not elevate the matter to one that would enliven the exercise of the discretion. Alternatively, if it was proper 36 Refer to Appeal Transcript 1-17 L50-60 – T1-18 L1-30; Appellant‘s Outline of Submissions, paras [32]-[37]. 37 Also at T1-19 L20-30. -- 14 of 15 -- 15 to make an award of costs beyond the scale amount, the additional amount awarded was excessive.‖ (footnotes deleted) [55] Mr Barr, counsel for the appellant, properly conceded that the prescribed scale of fees was not binding but contended that it was a guide and provided a starting point for the exercise of the discretion to award costs. In support of that proposition, reliance was placed on the following observations of McGill DCJ in Durrant v Gardner:38 ―When a statutory scale is provided then the starting point is always that the amount of costs is to be in accordance with the scale prescribed, and even where there is a discretion to award a larger amount, the prescribed scale should be used as a guide to the proper exercise of the discretion.‖ [56] His Honour‘s assessment of the complexity of the case may perhaps seem to be somewhat overstated by persons with a degree of familiarity with the subject legislation. However, as Mr Williamson, correctly in my view, submitted, the interrelationship between the Sustainable Planning Act 2009 and its regulations and the Building Act is not without its complexities. The fact that both sides considered it necessary to brief counsel tends to confirm that view. His Honour‘s assessment of the complexity of the case has not been shown to be an unreasonable one. [57] The purpose of any costs order is not as a form of punishment for the unsuccessful but, as a matter of fairness, to indemnify the successful party.39 In this case, I consider that the appellant has failed to reveal any error in the reasoning of the learned Magistrate in respect of costs. Accordingly, the appeal against the cost orders made ought be dismissed. Orders 1. The appeal against conviction is dismissed. 2. The appeal against the cost orders made below is dismissed. 3. The appeal against penalty is upheld and the penalties imposed in the Magistrates Court at Bundaberg on 17 July 2012 are set aside and in lieu thereof it is ordered that the appellant be fined $5,000 and that no conviction be recorded. 4. I will hear from the parties as to costs. 38 [2000] QDC 198, at para [46]. 39 Oshlack v Richmond River Council (1998) 193 CLR 72 at paras [67]-[69] per McHugh J. -- 15 of 15 --