Board of Professional Engineers Queensland v Jutte [2009] QDC 170

DISTRICT COURT OF QUEENSLAND CITATION: Board of Professional Engineers Queensland v Jutte [2009] QDC 170 PARTIES: BOARD OF PROFESSIONAL ENGINEERS QUEENSLAND (Appellant) AND WILHELM JOHANNES JUTTE (Respondent) FILE NO/S: 3387/08 DIVISION: Appellate PROCEEDING: Appeal against sentence ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 18 June 2009 DELIVERED AT: Brisbane HEARING DATE: 1 June 2009 JUDGE: Irwin DCJ ORDER: Appeal against sentence is dismissed. CATCHWORDS: CRIMINAL LAW – Appeal against sentence – whether the magistrate erred in principle in the exercise of the sentencing discretion, either on the basis of a discernible error or one that is demonstrated by manifest inadequacy of the sentence – whether exceptional circumstances exist to warrant intervention to establish a sentencing range CRIMINAL LAW – Appeal against sentence – fines – whether regard may be had to the impacts of an associated costs order when the appropriateness of a fine amount is in question Justices Act 1886, s 157, s 158B(2), s 159, s 222(2)(c) Justices Regulation 2004, Sch. 2 Penalties and Sentences Act 1992, s 12(1), s 12(2), s 12(3) Professional Engineers Act 2002, s 55(a), s 56(2)(d), s 56(3), s 114(a), s 115(1), s 115(2), s 131(3)(c) Bennett and Alldrick v Armstrong [2004] QDC 122, applied -- 1 of 47 -- 2 Bentham v Tremearne (1905) 2 CLR 582, distinguished Dever v Creevey, ex parte Creevey [1993] 1 Qd R 232, applied Everett v The Queen (1994) 181 CLR 295, applied House v The King (1936) 55 CLR 499, applied Morely v Senewiratne [2008] QDC 296, applied Oshlack v Richmond River Council (1998) 193 CLR 72, cited R v Bain [1997] QCA 035, cited R v Beissel (1996) 89 A Crim R 210, cited R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; (1997) 92 A Crim R 75, cited R v Cay; ex parte Attorney-General (2005) 158 A Crim R 488, cited R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219, cited R v KU & Ors; ex parte Attorney-General (Qld) [2008] QCA 154, applied R v Lawley [2007] QCA 243, cited Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic; ex parte Attorney-General [2006] QCA 176, applied Schutt v Olsen [2006] QDC 248 applied R v Sittczenko; ex parte Cth DPP [2005] QCA 461, cited R v Wilton (1981) 28 SASR 362, applied Walden v Hensler (1987) 163 CLR 561, distinguished COUNSEL: S.M. Gordon for the appellant E.S. Wilson for the respondent SOLICITORS: Board of Professional Engineers Queensland on its own behalf Schweikert Lawyers for the respondent -- 2 of 47 -- 3 [1] This is an appeal by the Board of Professional Engineers Queensland (the Board) on behalf of which the complaint against the defendant/respondent was made, on the ground that the sentence imposed for a breach of s 115(1) of the Professional Engineers Act 2002 (PEA) in the Brisbane Magistrates Court on 6 November 2008, was manifestly inadequate in all the circumstances. [2] The respondent pleaded guilty before the learned magistrate and was fined $2,000 and allowed six months to pay, in default levy and distress. A conviction was recorded. The magistrate ordered that the respondent pay the appellant’s costs in the sum of $5,860.1 The quantum of costs was not disputed by the Board on the hearing of the appeal. The appellant advises that the penalty and costs have been paid to the State Penalties Enforcement Registry on its behalf. 1. The charge [3] Section 115(1) of the PEA provides: “A person who is not a registered professional engineer must not carry out professional engineering services. Maximum penalty – 1,000 penalty units.” 2 [4] The complaint alleged that the respondent: “being a person who is not a registered professional engineer pursuant to the Professional Engineers Act 2002 (“the Act”): (a) carried out professional engineering services by inspecting piling records for screw piers at the Jimboomba Shopping centre; certifying that the piles were able to carry the loads applied to them; that the installation had been done in accordance with the design and instructions by the engineer; that it is also in accordance with the Building 1 This total was constituted by costs of $1,500 for the instructing solicitor, $1,000 for junior counsel, $250 for the mention of the matter, $2,970 for the preparation of an expert report, and $140 for attempted service of a witness. The prosecutor has sought costs totalling $12,741. See transcript, 1-51 ll 14-49. 2 Therefore, the maximum penalty at the time equated to $75,000. -- 3 of 47 -- 4 Code of Australia, relevant Australian Standards in Queensland in contravention of Section 115(1) of the Act.” 2. Facts of the offence [5] Despite some argument before the magistrate about the basis of the guilty plea, the respondent’s counsel stated before he was sentenced that the Crown case was accepted as it was particularised. 3 Therefore I outline the facts of the offence on the basis of the prosecutor’s statements to the magistrate. [6] Until 24 March 2005 the respondent had been a registered professional engineer. On this date his registration was cancelled on disciplinary grounds.4 [7] A building firm had been engaged to install screw piers in the course of construction of the Jimboomba Shopping Centre. Screw piers were described as a type of piling which was used to extend building foundations, particularly through overlying fill material. This firm engaged the respondent to certify that their design and installation conformed to the relevant engineering standards by being able to carry loads applied to them, and that they had been properly installed in accordance with those standards.5 [8] On 17 December 2005, the respondent submitted to the building firm a document with the heading “Engineer’s Certificate”. It was on his personal letterhead and was signed by him above a signature block which included his qualifications. It contained a declaration that: “… being a Certified Professional Engineer, hereby certify, that I have inspected the piling records for the screw piers for the abovementioned Structure, I also certify that these Piles are able to carry the loads applied to them. That the installation has been done in accordance with the design and instructions by the Engineer. They are also in accordance with the Building Code of Australia, 3 Transcript, 1-47 ll 12-13; 1-48 ll 49-51. 4 This would have been by order of the Commercial and Consumer Tribunal under Part 8 Division 3 of the PEA. See in particular s 131(3)(c). There was no evidence before the magistrate as to the nature of the disciplinary grounds. See also Transcript, 1-45 l 17 to 1-46 l 10. 5 Transcript, 1-3 ll 30-50. -- 4 of 47 -- 5 relevant current Australian Standards and the requirements of the Statutory Authority. All piers are installed with the following torques, load capacity and depth.”6 There was a table below this in which information was recorded under the headings of “Pile Type”, “No of Piers”, “Pile Size”, “Helix Size”, “Torque Nm”, “Load Tones”, and “Depth m.”. The certificate concluded with a qualification that: “This certification is not an inspection report, exact locations and depth of the piers shall be verified with the design drawings and/or with the requirements of the Design Engineer.” [9] The certificate was prepared by him. This is the work which the Board alleged was the professional engineering services as defined in Schedule 2 of the PEA.7 [10] With reference to s 115(2) of the PEA, which provides that a person does not commit an offence under subsection (1) if the person carries out the professional engineering services under the direct supervision of a registered professional engineer who is responsible for the services, the prosecutor said that the respondent had not simply failed to get someone to sign off on the certificate, because there was professional engineering work involved before this could occur, e.g., considering reports and if necessary performing calculations; and there has to be supervision of the work done as professional engineering services. 8 It was accepted by the plea that there was no such supervision. 9 [11] He was unable to properly certify the matters which were the subject of the declaration in the certificate because he had not in fact seen the engineering drawings or geotechnical report as to the nature of the soil into which the screw piers were to be installed. Therefore, he certified in a way that fell short of the expected standards.10 6 Exhibit 3. 7 Transcript, 1-3 ll 56-58. 8 Transcript, 1-17 l 40 to 1-19 l 2 9 Transcript, 1-11 ll 49-50. 10 Transcript, 1-4 ll 1-10. -- 5 of 47 -- 6 [12] The prosecutor emphasised that it was not the Board’s case that the screw piers were in fact unable to carry the loads or were not properly installed. 11 3. Appellant’s submissions to the magistrate on penalty [13] The prosecutor submitted that conduct such as this which involves certifications which go to the very foundations of a construction “strikes at the very heart of the purposes of the [PEA] and particularly the purpose of protecting the public because potentially the safety of members of the public are put at risk.” 12 [14] He further submitted that the maximum penalty of $75,000 reflected the gravity of this kind of offending; and that the respondent was in a more serious category because of the prior cancellation of his registration.13 [15] Reference was made to the respondent’s compliance with a requirement to give information 14 by providing a statement; and without claiming a reasonable excuse from doing so because of a tendency of self-incrimination. 15 [16] The prosecutor then proceeded to say: “But in the statement he provided there is some suggestion, and I emphasise that I say no more than that it is a suggestion, that this may not be an isolated incident, and it’s for that reason that I say that considerations of specific deterrents are important to ensure that this particular individual does not engage in anything like this in future.” 16 This was not referred to by the magistrate in her sentencing remarks. I mention it in order to observe that she was correct in not doing so. The prosecutor couched this in speculative terms and the content of any other incident was never identified. In the circumstances there was no proper basis for her Honour to have regard to this comment as contextual background or otherwise, in exercising her sentencing 11 Transcript, 1-4 ll 11-14. 12 Transcript, 1-4 ll 14-22. 13 Transcript, 1-4 ll 27-33. 14 Section 55(a) of the PEA. 15 Section 56(3) of the PEA. 16 Transcript, 1-4 ll 50-60. -- 6 of 47 -- 7 discretion. It did not provide a basis for application of the principle of personal deterrence. I approach the appeal on this basis. [17] He also emphasised the importance of general deterrence to send a message to the public that this kind of conduct “insofar as it goes to the very heart of the Act will not be tolerated” and people who commit an offence of this kind “cannot expect simply to be slapped on the wrist.” 17 [18] He submitted that the respondent had not entered an early guilty plea as it had been indicated late on the previous day.18 This was explained as follows: “… I’m happy to go on record as saying that the discussions were by penalty and that indications were made … by the board … that are substantially different to the position that has been adopted today.”19 This statement is highly relevant in considering the submissions which are now made by the appellant as to the appropriate sentencing range for this type of offence. 3.1 Comparable cases [19] While commenting that there was a dearth of helpful cases in relation to the penalty range, the prosecutor tendered a table prepared by the registrar of the Board which set out the following information: 20 Board of Engineers v Chandra Prosecution for offences pursuant to s114(a) of Act. Using title RPEQ after name on business card and RPEQ 4864 on pool inspection certificate. 17 Transcript, p 1-5 ll 1-6. 18 Transcript, p 1-5, ll 8-9. 19 Transcript, p 23 ll 9-17. 20 Transcript, p 1-5 ll 8 to 1-6 ll 17. An exhibit number does not appear to have been assigned to this table. -- 7 of 47 -- 8 In this manner Chandra was not employed as an engineer but as a certifier. Chandra pleaded guilty but argued on penalty, costs and no conviction. Magistrate Costello on Friday 10 October 2008: 1. Confirmed guilty plead with a conviction to be recorded; 2. A penalty of $1,500.00; and 3. Ordered Chandra to pay the Board’s costs of $13,659 which included investigator’s costs of $9,460. Board of Engineers v Cowper Prosecution for offences pursuant to s 114(a), 115(1) and 56(2)(d) of the Act. Held himself out to be a professional engineer by completing a Form 15 compliance certificate. Used title RPEQ on Form 15 compliance certificate (114(a)). Carried out professional engineering services in contravention of s 115(1). Failed to produce dated document to investigator pursuant to notice given under section 55 of the Act in contravention of s 56(2)(d). Agreement reached and orders made by Magistrate confirming agreement reached: 1. Guilty plea but no conviction recorded; 2. Penalty of $6,000; 3. Pay Board’s costs of $9,500. -- 8 of 47 -- 9 [20] Chandra was charged under s 114(a) which prohibits a person who is not a registered professional engineer from using titles, including “RPEQ”. The prosecutor noted that the maximum penalty is the same as for an offence against s 115(1). [21] In addition to being charged under s 115(1), Cowper was also charged under s 114(a), and under s 56(2)(d) for which the maximum penalty equated to $3,750. In contrast to the respondent, he was uncooperative. 21 [22] The prosecutor was not able to hand up transcripts of those cases. As the respondent’s counsel observed, he did not make submissions in relation to the quantum of fine based on these cases but said: “I’m not in a position to say that those two cases are necessarily representative of the penalty range but that’s the best the board can point to at this stage.”22 He made no other submission as to the quantum of penalty. It is reasonable to infer from this and his subsequent statement in relation to penalty quoted above in paragraph [18], that indications about penalty had previously been made by the appellant that were substantially different to the position adopted on sentence, and that the prosecutor had agreed with the respondent’s counsel that he would make no submissions to the magistrate on this important issue. 3.2 Submissions on whether or not to record conviction [23] However, the prosecution did press for the recording of a conviction 23 in order to protect the public in accordance with the main objects of the PEA24 and for potential employers (including institutions like the Board) to know about such matters. In support of his submissions he relied on R v Bain,25 R v Briese; ex parte Attorney- General, 26 and R v Beissel. 27 I set out the specific paragraphs relied upon from the 21 Transcript, 1-6 ll 7-8. 22 Transcript, 1-6 ll 12-17. 23 Transcript, 1-6 l 25 to 1-8 l 37. 24 See s 3(2) of the PEA under which one of the main objects is to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way. 25 [1997] QCA 035. 26 [1998] 1 Qd R 487; (1997) 92 A Crim R 75. -- 9 of 47 -- 10 decisions of Briese and Beissel because I consider they are also relevant to the manner in which the magistrate exercised her sentencing discretion and to my determination of the appeal. [24] Reference was made to the judgment of Thomas and White JJ in Briese as follows: 28 “It is therefore obvious that the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth about such matters include potential employers, insurers and various government departments including the Immigration Department.” … For present purposes it is enough to note that the making of an order under s 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court. …” I also note that Dowsett J said to the same effect: 29 “Although the Rehabilitation Act is rather more complex in other respects, it is clear that in cases where no conviction is recorded, the offence does not become part of the criminal history of the person in question. Further, subject to a few exceptions, such person may not be asked about, and is not obliged to disclose for any purpose the fact that he or she has committed the offence. Therefore a decision not to record a conviction will seriously limit public access to that information. Generally speaking, the more serious the offence, the greater the legitimate public interest in knowing that a person has 27 (1996) 89 A Crim R 210. 28 [1998] 1 Qd R at 491; (1997) 82 A Crim R at 79. 29 Ibid at 498; 85. -- 10 of 47 -- 11 been convicted of it. Of course, with time, the significance of past misconduct abates, at least if there is no fresh misconduct. Other provisions of the Rehabilitation Act recognise this. See s 6. However, to treat the recent commission of serious offences as being of no legitimate interest to persons dealing with the offender is to expose members of the public to the risk of serious physical, moral or economic loss of which risk a recorded conviction might well have warned them.” The reference to the Rehabilitation Act is to the Criminal Law (Rehabilitation of Offenders) Act 1986. [25] The prosecutor submitted that Beissel was the most helpful case. He referred to the observations of McPherson JA (with whom Dowsett and White JJ agreed) that: 30 “In my opinion it really misapprehends the purpose and function of provisions like section 12 (of the Penalties and Sentences Act) to suppose that the provisions they confer are designed to enable the fact that criminal convictions have been sustained to be concealed from bodies or authorities whose duty it is to determine whether or not an applicant is a fit and proper person to be licensed under a particular statute.” Having submitted that this is “so clearly the case here that is (sic) hardly calls for elaboration”,31 the prosecutor also cited his Honour’s statement that:32 “In the case of an applicant for a real estate agent’s licence or a salesman’s licence, the affidavit material in this particular case suggests that one question that will be asked of him is whether he has any criminal convictions. A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded, and, that being so, the court should not in my opinion lend its aid to attempts to conceal that fact. Much the same 30 (1996) 89 A Crim R at 212-213. This passage is cited by Thomas and White JJ in Briese at 492; 80. 31 Transcript, 1-8 ll 9-10. 32 (1996) 89 A Crim R 75 at 213. -- 11 of 47 -- 12 consideration applies to the Liquor Licensing Authority. It is no part of this Court’s function to minimise the seriousness of these offences with a view to influencing a government instrumentality like that to disregard or overlook the offences.” [26] On this basis he submitted that if no conviction were recorded, the respondent would be able to deny the conviction if he chose to seek registration in the future. It was his submission that this is precisely the sort of scenario Beissel warns against.33 I note that the magistrate expressly referred to these passages from Beisell in the course of deciding how to exercise her discretion as to whether to record a conviction against the respondent. 34 [27] The prosecutor also referred to Chandra as a case in respect of a “quite similar offence” in which a conviction is recorded. Because of a submission made by Ms Wilson, the respondent’s counsel on this appeal, in relation to the applicability of these words to the quantum of the fine, 35 it is necessary for me to state that I consider that this was intended as a reference to a comparison of the offences against s 114 and s 115 of the PEA rather than an acceptance that the circumstances of the offences in Chandra were similar to the offences in this case. However, it is notable that in contrast to his approach to the quantum of fine, the prosecutor made a strong submission that a conviction be recorded against the respondent, and supported the submission by reference to one of the sentences in the table. [28] Further, in response to a submission made on behalf of the respondent that recording a conviction would have an adverse impact on his employment, the prosecutor strongly submitted: 36 “In my respectful submission, the question is whether or not it will affect his chances of finding employment. In that regard, the considerations that must be taken into account are not just and are not first and foremost and are not primarily his character, but his character, amongst other things, including so says the Act, the nature of the offence. 33 Transcript, 1-8 ll 26-31. 34 Transcript 1-52 l 56 to 1-53 l 20. 35 Respondent’s Outline of Argument, para 18. -- 12 of 47 -- 13 This is, in my submission, a matter where the nature of the – the offence is such that despite the defendant’s otherwise good history, a conviction must be recorded because people need to know. It’s good and well to say on the one hand that he’s going to be looking for work again at some point in the future and that if a conviction is recorded, that may well make it more difficult for him. That’s the one side of the coin. The other side of the coin is that it’s precisely because he’s going to go looking for work again, one would think in the fullness of time, that people need to know about this so that people who employ him are aware of this because of the public safety and public interest I mentioned. It’s not enough to say, ‘Well, you know about it anyway.’ The Queensland Board may know about it, but there – may well be otherwise and I mean other boards within Australia who, in my submission, ought to know about this because it is a mater of such significant public importance that it’s not enough to say, ‘Well, they know about it already, so it’s all good and well.’” In making this submission the prosecutor was placing reliance on the serious nature of the offence and the observations of McPherson JA in Beissel to support his argument that a conviction be recorded. 4. Respondent’s submissions to the magistrate on penalty [29] On behalf of the respondent it was submitted that her Honour should take into account that: (a) he was 73 years of age; 37 (b) he had lived an otherwise unblemished life and this was his first offence; 38 (c) reliance be placed on a character reference39 from the principle of an engineering firm for whom he had worked since March 2005 40 by 36 Transcript, 1-50 l 22 to 1-51 l 3. 37 Transcript, 1-11 l 15. 38 Transcript, 1-15 ll 56-57; 1-45 ll 1-5. 39 Exhibit 2. -- 13 of 47 -- 14 providing supervised engineering services. This referee who held the respondent in high regard described him as: (i) a professional, honest and reliable employee; (ii) a person who had a lifetime of experience in the engineering industry; (iii) a genuine asset to the business; and (iv) a valuable member to the community. (d) he had been an engineer since approximately 1963; 41 (e) his whole career had been in engineering and he carried appropriate qualifications;42 (f) he was a chartered professional engineer and a member of the Institute of Engineers;43 (g) he was working part time – 4½ days a week; 44 (h) there was no danger to any person or property from his actions;45 (i) he had departed from his ordinary practice of issuing the certificate under the supervision of a registered professional engineer in the course of his employment;46 (j) there was no greed involved as he only received $32 from issuing the certificate;47 (k) although it was accepted that the description in the certificate was not entirely accurate, in that it referred to the respondent as a “certified 40 His registration was cancelled during this month. He would have been working for this firm at the time of the offence. 41 Transcript, 1-11 ll 26-31. 42 Transcript, 1-12 ll 48-50. 43 Transcript, 1-11 l 21; 1-14 ll 21-23. 44 Transcript, 1-41 l 47; l-42 ll 36-37. 45 Transcript, 1-11 ll 47-48; l-15 ll 57-58. 46 Transcript 1-11 ll 48-53. I note that the respondent’s counsel withdrew the use of the words “technicality” or technical to describe his offending after an intervention from the magistrate at 1-12 ll 25-26. -- 14 of 47 -- 15 professional engineer” this was a mistake and did not involve holding himself out as a “registered professional engineer”; 48 and (l) he cooperated fully with the prosecution authorities. 49 As I have observed, there was some argument before the magistrate about the basis of the guilty plea before the respondent’s counsel stated that the Crown case was accepted as particularised. I have outlined the submissions in mitigation on the respondent’s behalf which are not inconsistent with that case. 4.1 Comparable cases [30] The respondent’s counsel also relied on Chandra and Cowper on the issue of penalty. He submitted that Cowper was a worse case because there were three offences; he was holding himself out as a registered engineer; and there was less cooperation with the authorities. 50 [31] In resisting the appeal, Ms Wilson argued that it is relevant that the appellant did not contest this submission in reply.51 4.2 Submissions on whether or not to record a conviction [32] The respondent’s counsel argued against recording a conviction on the basis of his age, character, and the fact that it was his first offence. It was also submitted that recording a conviction would cause embarrassment in his professional life and would have an impact on his employment. He referred to R v Cay; ex parte Attorney-General (Qld), 52 but did not appear to strongly rely on it. He also submitted that if a conviction was not recorded the Board would still know that there was a finding of guilt. 53 47 Transcript, 1-15 ll 55-56. 48 Transcript 1-14 11 10-11, 20, 48-52; 1-15 ll 5-22. The respondent’s counsel said that the respondent held himself out as a “professional engineer”, but he did not hold himself out as a “registered professional engineer”, although “he conducted work that had to be conducted by a registered professional engineer.” 49 Transcript, 1-16 ll 1-2. 50 Transcript, 1-17 ll 17-28. 51 Respondent’s Outline of Argument, para 52. 52 (2005) 158 A Crim R 488; Transcript, 1-44 ll 46-50. 53 Transcript, 1-46 ll 5-9. -- 15 of 47 -- 16 [33] In contrast to the prosecutor not contesting the respondent counsel’s submissions about Cowper, as indicated at [28] he did respond strongly to these submissions that no conviction be recorded. 5. The sentencing process [34] The sentencing process did not follow the usual order of submissions by the prosecutor, followed by the defence counsel, any reply by the prosecutor, and the imposition of sentence by the magistrate accompanied by an explanation directed to the defendant. [35] These proceedings involved more of an ongoing dialogue between her Honour and both counsel, with the defendant being more of an interested bystander. As she observed, it was done in a piecemeal way.54 Although the proceedings commenced in the traditional manner, after the prosecutor’s reply which was largely in support of his application for costs, the magistrate adjourned to read material which had been placed before her on this issue. When court resumed, she read into the record the factual scenario 55 and then asked counsel questions about costs56 and recording a conviction, to which they each responded.57 There was also discussion concerning his ability to pay a fine.58 The magistrate then proceeded to make the costs order.59 This was followed by consideration of the quantum and imposition of the fine.60 She then considered whether or not to record a conviction. 61 Before determining this, her Honour again engaged in discussions with both counsel about the potential impact of recording a conviction, including whether it would have any affect on his ability to remain in Australia, given that he was a Dutch national. 62 She then adjourned for an hour to give the respondent’s counsel an opportunity to make inquiries about this. Upon resumption she received advice that a recorded conviction for this offence would have no adverse impact in this way, and she then completed her decision and recorded the conviction against him. 63 As the sentence 54 Transcript, 1-55 ll 56-58. 55 Transcript, 1-24 l 38 to 1-25 l 45. 56 Transcript, 1-25 l 47 to 1-41 l 36. 57 Transcript, 1-44 l 44 to 1-51 l 3. 58 Transcript, 1-41 l 37 to 1-44 l 42. 59 Transcript, 1-51 ll 14-49. 60 Transcript, 1-51 l 50 to 1-52 l 25. 61 Transcript, 1-52 l 26 to 1-53 l 20. 62 Transcript, 1-53 l 21 to 1-55 l 5. 63 Transcript, 1-55 ll 19-51. -- 16 of 47 -- 17 evolved in this manner, sentencing remarks were not directed to the defendant in the usual manner. [36] The relevance of this approach to the resolution of this appeal is that aspects of the reasons for sentence are to be found throughout the discussion, including with reference to the issue of costs, and not in one place at the conclusion of proceedings. I will address the issues which arise for consideration on this basis. 6. Appellant’s submissions on appeal [37] It is submitted by the appellant that the learned magistrate operated under some manifest error by: (a) depreciating the importance of general deterrence as a part of the sentence; (b) proceeding on the basis of flawed reasoning; (c) taking account of unnecessary or otherwise peripheral issues.64 [38] It is further submitted that founded on such error, the penalty imposed is manifestly inadequate and necessitates the intervention of the court. 65 [39] In the alternative, it is submitted that if her Honour did not err so as to warrant intervention, the penalty imposed still requires appellate review in order to establish a more appropriate sentencing range for this type of offence. 66 [40] It is submitted that her Honour should have imposed a fine falling within the range of 15-20 per cent of the maximum penalty then available, that is some $11,250- $15,000.67 7. Respondent’s submissions on appeal [41] The respondent argues that the sentence imposed was not manifestly inadequate in all the circumstances and that the penalty imposed was not outside the scope of proper sentencing discretion. 68 64 Appellant’s Outline of Argument, para 1. 65 Ibid at para 2. 66 Ibid. 67 Ibid at para 28. 68 Respondent’s Outline of Submissions, para 29. -- 17 of 47 -- 18 [42] It is submitted that none of the matters relied upon by the appellant demonstrate significant error by the magistrate. 69 [43] The respondent says that her Honour clearly considered the issue of general deterrence in the sentencing process. It is argued that the appellant’s submission ignores the position that the appellant took regarding penalty at the sentence and that the penalty imposed was within the range as contained in the cases forwarded and not distinguished by the appellant. The magistrate, as urged by the appellant, also exercised her discretion and ordered a conviction be recorded.70 [44] The respondent submits that her sentencing remarks do not demonstrate that she laboured under flawed reasoning. This is supported by reference to her statement in the course of reading the factual scenario into the record, as follows: “It is clear that such work should be done by a registered engineer because the failure of the work to be to the stand (sic) would, I accept the submission, that there is potential for risk and harm. I also accept that the structure of the legislation in this offence strikes at the heart of the Act or the legislation.” 71 [45] In relation to the argument that the magistrate took unnecessary or peripheral issues into account by being overly concerned with the issue of costs in determining the penalty to be imposed on the respondent, it is submitted that this did not involve an appellable error. Reference is made to authorities which are said to establish that when the appropriateness of a fine amount is in question, regard may be had to the impacts of an associated costs order. 72 [46] With reference to the appellant’s alternative submission set out in paragraph [39], it is submitted that such an intervention for these circumstances only exists in exceptional circumstances that do not exist here, particularly having regard to the position of the appellant regarding penalty at the sentence. 73 69 Ibid at paras 30-31. 70 Ibid at paras 24 and 36. 71 Transcript, 1-25 ll 15-20. The reference to “such work” is to the appellant’s certification “that the design and installation conformed with the standards and also that the foundation would bear the building and the piers were properly installed.” See Transcript, 1-25 ll 10-15. 72 Ibid at paras 42 and 43. The authorities referred to are Morely v Senewiratne & Anor [2008] QDC 296 and Dever v Creevey; ex parte Creevey [1993] 1 Qd R 232 at 247. 73 Ibid at paras 45-50. -- 18 of 47 -- 19 [47] The respondent argues that the appellant should be bound by its submission and conduct before the sentencing magistrate. After a review of the authorities on the issue of prosecutorial conduct on a sentence which is subsequently appealed, it is submitted that there are no exceptional circumstances to warrant intervention in this case. 74 Appeal principles [48] The appeal is brought under s 222(2)(c) of the Justices Act 1886 (JA) which limits the appeal to manifest excessiveness or inadequacy of sentence. The parties agree that the principles governing this appeal are those espoused in R v Melano; ex parte Attorney-General75 in relation to Attorney-General’s appeals under s 669A of the Criminal Code. It was there acknowledged that the application of this provision is generally consistent with the established principles relating to appeals against discretion referred to in House v The King. 76 Section 669A is an analogue provision to the right of a complainant aggrieved by a decision of the Magistrates Court to appeal against sentence. 77 [49] It follows from House78 that before an appellate court will interfere with the exercise of a sentencing discretion, the appellant must demonstrate that the judicial officer: “… act[ed] upon a wrong principle … allow[ed] extraneous or irrelevant material to guide or affect him … [mistook] the facts … [or did] not take into account some material consideration.” [50] The principle in Melano79 is that: “Unless the sentencing judge had erred in principle, either because an error is discernable or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be “proper”. 74 Ibid at paras 51-57. 75 [1995] 2 Qd R 186. 76 (1936) 55 CLR 499 per Dixon, Evatt, and McTiernan JJ at 504-5. See also on this issue the review of authorities in R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219. 77 See Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [28]. I am indebted to his Honour for the review of the relevant authorities at paras [27] to [29]. 78 (1936) 55 CLR 499 at 504. 79 [1995] 2 Qd R 186 at 189 (joint judgment of Fitzgerald P, Davies JA, Lee J). -- 19 of 47 -- 20 … Variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate … ” The Court of Appeal also said:80 “Support for the view that, ordinarily, this Court should not allow an appeal under s 669A(1) unless the sentence is outside the sound exercise of a sentencing judge’s discretion is to be found in factors that are material to the exercise of the Court’s discretion.” [51] Accordingly, as stated by Dearden DCJ in Parry v Mayfield Holdings (Qld) Pty Ltd81 the question is whether the sentence appealed against was “outside the sound exercise of the sentencing [court’s] discretion.” [52] In R v Mladenovic, ex parte Attorney-General82 McMurdo P said that the appellant must establish error in the exercise of the sentencing judge’s discretion (here, that the sentence is manifestly inadequate) before this court can intervene and re- exercise the sentencing discretion. 9. Discussion [53] In this case the appellant’s primary argument is that the penalty is manifestly inadequate because of significant errors by the magistrate. In the circumstances, having regard to the principle in Melano, it is necessary for me to consider both whether or not the magistrate erred in principle in the exercise of her sentencing discretion, either on the basis of a discernible error or one that is demonstrated by manifest inadequacy of the sentence. [54] As indicated, the appellant asserts that there were three significant errors by the magistrate. In relation to this aspect of appeal, I confine my consideration to whether or not the appellant has established that these errors were made by the magistrate. 80 Ibid at 190. 81 [2006] QDC 250 at [29]. 82 [2006] QCA 176 per McMurdo P at [15]; see also R v Sittczenko, ex parte Cth DPP [2005] QCA 461 per Keane J at [25] and [26]. -- 20 of 47 -- 21 9.1 Depreciating general deterrence [55] It is submitted that her Honour failed to give proper consideration or weight to general deterrence as a core factor, either under the Penalties and Sentences Act 1992 (PSA) or the PEA, when sentencing the respondent. 83 [56] In relation to the PSA, the appellant asserts that although the personal circumstance of an offender is an important consideration, for s 9 of this Act to be given its full meaning and effect, the court must also give proper consideration to broader general deterrence. 84 [57] Moreover, it is submitted that, given that here the offending arises within the context of specific legislation relating to professional engineers and engineering work, attention should be given to the objects of the PEA in the sentencing process. [58] Reference is made to the main objects of the PEA as set out in s 3. As is submitted, these objects focus on public safety, public confidence in the profession and upholding standards of practice. It is submitted that in order to meet these objectives, the parliament deliberately set “substantial” penalties in relation to, inter alia, the performance of relevant engineering work by someone other than a registered professional engineer. It is said that this step was taken in full knowledge that an unequivocal preference was given to the public interest above those of an individual transgressor of the PEA. It is therefore said that general deterrence is an obvious and necessary feature of properly meeting the objectives of the Act. 85 [59] In support of this contention, I have been referred to the Explanatory Notes to the Professional Engineers Bill 2002. 86 In particular, I note the statement that: 87 “The size of the substantive penalties raises a fundamental legislative issue about whether the legislation has sufficient regard to the rights and liberties of a person potentially subject to the penalties. 83 Appellant’s Outline of Argument, para 9. 84 Ibid at para7. 85 Ibid at para 10. 86 See pp 6-7 at <http://www.legislation.qld.gov.au/Bills/50PDF/2002/ProfEnginB02Exp.pdf>. I have also had regard to p 8. 87 Ibid at p 7. -- 21 of 47 -- 22 The main objects of the Bill are expressed in clause 3 as being to protect the public by ensuring the professional engineering services are only provided by registered professional engineers. The Bill then provides for the standard according to which a professional engineer may be registered. The intent is to protect the health and safety of the community by ensuring that only competent persons provide professional engineering services.” Further, the discussion of penalties concludes as follows:88 “The substantive penalties in the Bill are aimed at being a disincentive to those who may be persuaded to provide or offer to provide (to a person who may not be well informed) a service for which they are not professionally qualified. The financial penalties have been sized as being in the public interest.” [60] The appellant submits that although the magistrate appeared cognisant of the purposes of the PEA, 89 she failed to take into account, in any meaningful way, its paramount public policy objectives. [61] In support of this argument, reference is made to the following aspect of her sentencing remarks in the course of talking about recording a conviction:90 “I’m – also accept that the defendant has many years of experience and likely a good reputation as a professional engineer and his – that’s what his reference says and I’m confident that this would certainly act as a personal deterrence for [the respondent]. I’m confident that he won’t be back before the Court with this type of matter again. That there was an argument in relation to general deterrence, I don’t – I can’t see any précis. I don’t – I don’t know if there’s going to be 88 Ibid at p 8. 89 This is with reference to her Honour’s statement at Transcript 1-25 ll 25-30, in the course of reading the factual scenario into the record which is set out in para [44] above. 90 Transcript, 1-52 ll 39-49; see also Transcript, 1-55 ll 47 -48 and Appellant’s Outline of Argument at para 13. -- 22 of 47 -- 23 much of an argument for general deterrence. It’s probably not going to be spoken about by people down the pub tonight as well as the elections. I don’t think there will be much general deterrence unless there’s a grapevine in the – amongst engineers and I’m confident [the respondent’s] not going to be publishing this, so I don’t know whether there is some scallywag network amongst engineers, but probably not.” [62] It is submitted on this basis that her Honour approached the issue as one where there is almost no need for general deterrence and in the absence of clear reasoning to the contrary, it must be assumed that her Honour’s view on general deterrence carried into the process of setting the fine imposed on the respondent; and that no reasonable view of her sentencing remarks taken as a whole, contradicts such a conclusion. It is further submitted that this approach is palpably wrong because it is not based on the evidence presented, is contrary to the PEA and does not conform to the sentencing guidelines enunciated in the PSA.91 [63] However, it is also important to consider as a whole, her Honour’s sentencing remarks in determining whether or not to exercise her discretion to record a conviction. Immediately before the passage of her sentencing remarks set out at paragraph [61] she said: 92 “The only other matter then is whether or not I record a conviction. In the usual course, a conviction would not be recorded against a first offender. In the – when the matters are criminal and this is a quasi criminal matter and I’m also told that the certificate signed at the end of the day after investigations, it was not disagreed with that what was signed off on was in fact certifiable.” (emphasis added) [64] Then immediately after her sentencing remarks set out at paragraph [67] she says:93 91 Appellant’s Outline of Argument, at paras 14 and 15. 92 Transcript, 1-52 ll 25-31. 93 Transcript, 1-52 ll 51-58. -- 23 of 47 -- 24 “I don’t know if there’s a big general deterrence for this, but the more important factor is this, so in the usual course I would not record a conviction. The only matter to take into consideration is that – it’s in the case of that Kelleher [sic] case where it says, ‘In my’ – where we’re speaking about section 12, it says ‘In my opinion it really’ – and – that’s about an auctioneer. ‘In my opinion …’.” [65] Her Honour then quotes in full the observations of McPherson JA from Beissel at 212-213 which are set out above at paragraph [25]. The reference to “Kelleher” in the transcript of the sentencing remarks must be a mishearing by the transcriber.94 [66] After further discussion with both counsel and the adjournment to which I have referred to allow the respondent’s counsel the opportunity to make some inquiries which the magistrate considered relevant to her determination of this issue, she concluded: 95 “… taking into consideration all of the relevant matters that I have said in relation to the recording of a conviction even though as I say, I’m – I – considering [the respondent’s] good character and having – never having any matters before the Court of any nature whatsoever, it’s unlikely he would re-offend. But considering the nature of the offence and the relevance of this type of information to a – to a statutory body, I do record a conviction and – I exercise my discretion and I record a conviction.” (emphasis added) [67] Section 12(2) of the PSA requires that: “In considering whether or not to record a conviction, a court must have regard to all the 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— 94 It was probably heard by the transcriber at “earlier” case. -- 24 of 47 -- 25 (i) economic or social wellbeing; or (ii) chances of finding employment.” [68] Her Honour clearly took all of this non-exhaustive list of matters into account in determining how to exercise this discretion. [69] With reference to s 12(2)(b) she properly referred to his experience and good reputation as an engineer and the personal deterrence of the penalty imposed upon him, such that she was confident that he would be unlikely to reoffend. She had earlier referred to his age, character, experience, and lack of a criminal history as part of reading the factual scenario into the record.96 [70] She also referred to the impact of recording a conviction on his social wellbeing for the purpose of s 12(2)(c)(i). 97 [71] She must also be taken to have had regard to the effect of recording a conviction on his economic wellbeing and chances of finding employment for the purposes of s 12(2)(c)(i) and s 12(2)(c)(ii) by quoting the passage from the judgment of McPherson JA in Beisell and referring to the relevance of this type of information to a statutory body. This is because the relevance of this information to a statutory body is to assist it in determining whether or not the applicant is a fit and proper person to be licensed 98 under a particular statute. As submitted by the prosecutor in support of recording a conviction, “because he’s going to go looking for work again, one would think in the fullness of time, that people need to know about this so that people who employ him are aware of this because of the public safety and public interest … there may well be others … other boards within Australia who … ought to know about this … .”99 [72] Importantly, her Honour also expressly had regard to “the nature of this offence” 100 in exercising her discretion to record a conviction. In doing so, she must have 95 Transcript, 1-55 ll 42-51. 96 Transcript, 1-25 ll 31-36. 97 Transcript, 1-53 ll 22-24, where she said that “I actually haven’t been told where the recording of a conviction might have an effect on the defendant other than his social wellbeing”; and also at 1-54 ll 18-20, where she raised if the respondent’s continued residence in Australia would be affected, and then adjourned to allow inquiries to be made about this. 98 Or “registered” in the context of this case. 99 Transcript, 1-50 l 51 to 1-51 l 1. It is notable that this submission was made shortly before the magistrate addressed the issue as to whether or not to record a conviction. 100 Transcript, 1-55 l 48. -- 25 of 47 -- 26 regarded this to be a serious offence because as observed by Dowsett J in Briesse, “Generally speaking, the more serious the offence, the greater the legitimate interest in knowing that a person has been convicted of it.”101 [73] Further, as the appellant concedes, her Honour appeared cognisant of the purpose of the PEA by reference to her statement during the recording of the factual scenario which is set out above at paragraph [44]. The appellant’s submission is that notwithstanding this, she failed to take into account, in any meaningful way, the paramount public policy objectives of the PEA. [74] However, this was not the only aspect of the magistrate’s statements which demonstrated that she was cognisant of these public policy objectives in addition to the serious nature of the respondent’s offending. [75] Her Honour challenged a submission by the respondent’s counsel that the offence was one of a technical nature, by saying: “You wouldn’t call it technical. I’m – and I’m a bit unsure what that even means.” As a result, there was a concession that this was probably the wrong term to use. 102 [76] The respondent’s counsel then submitted that the respondent was still allowed to practice as an engineer subject to being supervised by a registered engineer. He added that his whole career has been in engineering and he carried the appropriate qualifications. Her Honour responded: 103 “Yes. So he knew what the playing field was, that there’s no – wasn’t ignorant here. He had been deregistered, he gets a supervisor to sign off for him, but on this occasion, he … took on himself to provide the certificate.” [77] There was then the following exchange between the respondent’s counsel and the magistrate:104 101 [1998] 1 Qd R 487 at 498; (1997) 92 A Crim R 75 at 85. 102 Transcript, 1-12 ll 20-28. 103 Transcript, 1-12 l 40 to 1-13 l 8. 104 Transcript, 1-13 ll 15-38. -- 26 of 47 -- 27 “MR WILSON: His – his thoughts which he – he certainly told the investigator was that he considered the work that he did was – he was not – did not fit into the definition of professional engineering services, but he accepts that the case is – that that is the case against him and that what he did in hindsight was wrong. BENCH: You – what you say at the time he didn’t think that was a professional engineering service to provide … MR WILSON: They’re my – they are my instructions. BENCH: --- a certificate for foundations on a building? MR WILSON: Mmm. BENCH: What would it be? MR WILSON: No. that’s – and hence, we are here on – we are doing a plea of guilty instead of the hearing. BENCH: Or – or is it more – and you might say that’s the instruction that he turned a blind eye to what his obligation was.” [78] Her Honour also observed that his declaration in the “Engineer’s Certificate” that he was a “Certified Professional Engineer” was “not entirely accurate”. 105 [79] It was following this that her Honour read the factual scenario into the record, including the statement at paragraph [44]. It is to be noted that in doing so she adopted the language of the prosecutor in stating that the offence “strikes at the very heart of the Act.” This is a statement that the prosecutor made in support of his submission of the importance of the principle of general deterrence in the circumstances of this case. 106 Her Honour must be taken to have used this 105 Transcript, 1-14 l 20. 106 Transcript, 1-5 ll 1-6. -- 27 of 47 -- 28 terminology advisedly and to be aware of its connection with the application of general deterrence as submitted by the prosecutor. [80] Her Honour also said during the course of discussions with the prosecutor about the issue of costs:107 “at the end of the day [the respondent] issued that certificate when he wasn’t a registered engineer – that’s really the gravaman – that’s what we are interested in here, and its’ relevant whether or not they did – it did comply with the standards, like in sentence, so for example if he signed a document and those piers were inadequate … the building would fall over.” The prosecutor did not seek to contradict the accuracy of this statement but said “I think I understand your Honour’s point”. 108 [81] Then in response to a submission that a conviction should not be recorded which would adversely impact on his employment and upon his standing in the community for “an oversight”, her Honour said:109 “I – yes, know that you say that although what Mr Irwin says is actually it was much more than an oversight for him to have issued a certificate … there was so much more that should have been done than was done.” Mr Irwin was a person who had provided an expert statement for which the prosecutor sought costs. [82] Finally, in relation to an issue which had arisen as to whether it was necessary for the matter to proceed as a contested sentence on the issue of whether the respondent was mistaken about what he was entitled or not entitled to do, her Honour said: 110 “Well, if I put it this way, from the – so the – from the – all of the submissions I would infer considering [the respondent’s] wealth of 107 Transcript, 1-33 ll 24-34. 108 Ibid at l 32. 109 Transcript, 1-45 ll 45-52. -- 28 of 47 -- 29 experience and background, that he would have known at the time that this was one document to be signed by a registered engineer.” [83] Therefore, not only was the magistrate cognisant of the policy objectives of the PEA but by recording a conviction she recognised the seriousness of the offence. [84] Although the appellant is critical of the magistrate for taking into account that the structures were, later, independently certified, in doing so she took into account the appellant’s own submission111 and clearly weighed this as a factor in reaching the ultimate conclusion that the nature of this offence was nonetheless serious enough to require the exercise of her discretion to record a conviction. Therefore she did not allow it to depreciate the seriousness of the offence. [85] Her reference to “I don’t know if there’s going to be much of an argument for general deterrence”, “I don’t think there is much general deterrence”, and “I don’t know if there’s big general deterrence for this,” must be viewed in this context. When this is done, I conclude that her Honour was saying that she did not know if there was significant general deterrence in recording a conviction as a matter of fact, and not that she considered that there was no need for general deterrence as a matter of principle in the circumstances of the case. This is made clear when her last reference to general deterrence is analysed. What her Honour said was, “I don’t know if there’s a big general deterrence for this – but the more important factor is this, so in the usual course I would not record a conviction. The only matter to take into consideration is that … .” As I have noted, she then quotes in full the observations of McPherson JA in Beissel. Therefore, she was saying that while she did not know that recording a conviction would have a significant deterrent effect as a matter of fact as opposed to as a matter of principle, it would be significant in relation to the performance of functions of a statutory body such as the Board. [86] By then recording a conviction in circumstances in which she would not usually do so, her Honour not only recognised the seriousness of the offence, but also supports the paramount policy objectives of the PEA with its focus on public safety, public confidence in the profession and upholding standards of practice. She has done this 110 Transcript, 1-50 ll 1-5. 111 Transcript, 1-4 ll 11-14, which is referred to above at para [12]. Also, as set out at para [80], when her Honour referred to this fact as a relevant consideration, the prosecutor did not contradict this but said that he thought he understood her point. -- 29 of 47 -- 30 by ensuring that the Board and any other Boards or employers throughout Australia can use the information in any case in which the respondent is seeking registration or employment in future, as submitted to her by the prosecutor on behalf of the appellant. She has considered that it is important to do this in circumstances where she is concerned, to adopt the appellant’s terminology that the offence will not be a conversation piece; she does not know whether there is any “scallywag network” or gossip system among engineers; and the respondent is unlikely to flag being convicted of the offence. In doing so, to also adopt the words of McPherson JA in Beissel, she has not minimised “the seriousness of these offences with a view to influencing a government instrumentality like that to disregard or overlook the offences.”112 She has also been conscious of the principle in s 12(3)(a) of the PSA that: “a conviction without recording the conviction is taken not to be a conviction for any purpose.” [87] In fact, despite her Honour’s reservations about the significance of general deterrence in the circumstances of this case she has imposed a sentence which of its very nature will have such a deterrent effect. [88] It must also be remembered that while the prosecutor made no specific submission on the quantum of penalty, he did press for the recording of a conviction. [89] Further, her Honour recorded a conviction despite the fact that no conviction was recorded in Cowper, which was one of the cases in the table tendered to her by the prosecutor. This was a case where the Board had agreed to the orders made by the court on sentence. [90] In these circumstances, although it would have been better if her Honour had expressed her approach to the issue of whether or not to record a convict in different terms, I do not consider that she has approached it as one where there is almost no need for general deterrence. As such, I also do not consider that any such approach in relation to this specific issue has carried into the process of setting the quantum of the fine imposed. To the contrary, there is no reason to conclude that her decision that the nature of the offence was serious enough to warrant the recording 112 (1996) 86 A Crim R 210 at 213. -- 30 of 47 -- 31 of a conviction did not carry into the process of setting the quantum of the fine. Nor do I consider that she adopted any approach which is contrary to the evidence presented, the PEA, or the sentencing guidelines enunciated in the PSA. [91] This is particularly so, when the position that the appellant took concerning the quantum of penalty at sentence is further analysed. [92] As I have indicated, the prosecutor limited these submissions to tendering a table containing two cases. While he referred to the dearth of helpful cases and to not being in a position to say that these cases are necessarily representative of the penalty range, he made no other submission as to the quantum of penalty. In fact, as I have observed, his submissions are consistent with an agreement with the respondent’s counsel that he make no submissions on penalty to the magistrate. In particular, he made no submissions of the nature made by the appellant on the hearing of the appeal, that the appropriate penalty is within the range of 15-20 per cent of the maximum penalty then available, namely $11,200-$15,000. This position was taken in circumstances where the maximum penalty in the cases to which the magistrate was referred was $6000 in Cowper, which was the subject of the appellant’s agreement at that time. [93] Further, as the respondent submits, the prosecutor made no effort to distinguish Cowper; 113 and it was prima facie, a more aggravated case than the present, as it involved more breaches of the PEA and lack of cooperation. 114 It is also relevant that no conviction was recorded in Cowper and the prosecutor did not contest the submission by the respondent’s counsel that it was a more serious case. 115 [94] In the absence of an appellate decision of either the District Court or of the Court of Appeal in respect of the penalties under s 115(1) of the PEA, the sentences referred to the magistrate, and subsequently upon this court on appeal, are, at the best a guide as to how magistrates have approached the sentencing discretion under this legislation, but do not provide any binding authority on the appropriate exercise of the sentencing discretion by any individual magistrate pursuant to s 115(1), nor do they bind this court in the exercise of the appellate jurisdiction.116 113 Respondent’s Outline of Argument at para 24. 114 Ibid at 25 and 26. 115 Ibid at 25 and 27. 116 Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [26]. -- 31 of 47 -- 32 [95] However having regard to the position that the appellant made no submission on the quantum of penalty, provided the magistrate with the table of guideline sentences, and made no attempt to contest the submission that Cowper was a more serious case, I do not consider that in imposing a $2000 fine in conjunction with recording a conviction that the magistrate did not have regard to and give sufficient weight to the seriousness of the offence and the need for general deterrence in determining the appropriate sentence. This is particularly so, having regard to her Honour’s statements set out above at paragraph [44] and paragraphs [75] to [82]. [96] Therefore, I do not consider that the magistrate depreciated the importance of general deterrence as part of the sentence. Proceeding on the basis of flawed reasoning [97] In support of this proposition, the appellant refers to the magistrate’s reference to the structures, later, being independently certified. 117 In relation to this, her sentencing remarks were: 118 “… the amount of fine which I will make $2000 so as to reflect … but also that for this offence itself that at the end of the day the certificate which was signed, the information contained in it was not erroneous. Although Mr Irwin had things to say in his statement, those matters weren’t necessarily accepted and I’m told that the defendant made his own calculations and in any event, he’d been working for so long in the area it’s likely that he had an understanding of these matters.” I have previously quoted her other remarks about this at paragraphs [63] and [80]. For completeness, I note that her first reference to this was immediately after reading into the record that part of the factual scenario quoted at paragraph [44], when she said: 119 117 Appellant’s Outline of Argument at para 16. 118 Transcript, 1-52 ll 11-20. 119 Transcript, 1-25 ll 23-25. -- 32 of 47 -- 33 “I also take into consideration that upon investigation it was found that the piers, for which the certificate was given, could in fact carry the load and were properly installed.” [98] It is submitted that for this reason, her Honour adopted a rationale that the process engaged in by the respondent as somehow correct in terms of proper engineering practice. 120 It is asserted that this is irrelevant and her Honour was in no position to distinguish between good luck and good science; there was no logical conduct between the veracity of the two certificates; and it was the certificate issued by the respondent which founds the complaint, investigation, and prosecution. 121 Mr Gordon submitted during oral argument that the consequences of issuing the certificate are not necessarily part of the conduct that constitutes the offence. [99] Further, it is submitted that his previous conduct, leading to the cancellation of his registration as a professional engineer, cannot leave the court with a feeling of security on the presumption adopted. However it is conceded that the findings on cancellation were not before her Honour at the time of sentencing.122 [100] In conclusion on this point, it is submitted that: 123 “They very purpose of the PEA is to ensure that the type of work that was required to be done in this case was performed by a registered engineer. [The respondent] was not so registered and no exception applied to otherwise excuse his conduct. The public’s confidence in work performed by registered professional engineers is of fundamental importance. To rationalise or downplay contrary conduct necessarily leads to a failure of public policy. The courts cannot be a party to such an outcome.” [101] However in none of the remarks relied on by the appellant to support this submission, did the magistrate seek to rationalise or downplay the respondent’s conduct, and nor did she conclude that the process that he had engaged in was correct in terms of proper engineering practice. This is contrary to the whole of her 120 Appellant’s Outline of Argument at para 16. 121 Ibid at para 17. 122 Ibid at para 18. 123 Ibid at para 19. -- 33 of 47 -- 34 remarks which I have quoted at paragraphs [44] and [75] – [82]. This makes it clear that she understood the gravaman and seriousness of his offending and did not labour under any flawed reasoning. [102] In addition, as I have previously stated, in referring to this, her Honour took into account the appellant’s own submission; and as set out at paragraph [80] when her Honour referred to this fact as a relevant consideration, the prosecutor did not contradict this, but said that he thought he understood the point. [103] The prosecutor adopted this approach, because the fact that it was not the appellant’s case that the screw piers were unable to carry the loads or were not properly installed was relevant to the exercise of the sentencing discretion. This was because at the very least the magistrate was entitled to proceed on the basis that the respondent’s conduct was not aggravated by the certification made contrary to s 115(1) being one which was in fact erroneous and had resulted in adverse consequences. [104] In any event, as I have said with reference to the magistrate’s decision to record a conviction, she concluded that the nature of the offence was serious enough to warrant the exercise of her discretion in this manner. There is no reason to conclude that she adopted different considerations in determining the quantum of the fine. [105] The submission concerning the respondent’s conduct, leading to the cancellation of his registration as a professional engineer is irrelevant, because as conceded the findings about this were not before her Honour. This is particularly so when the PEA provides for five separate grounds for disciplining a registered professional engineer.124 [106] In these circumstances, I do not consider that the magistrate proceeded on the basis of flawed reasoning of the type relied on by the appellant. 124 PEA, s 36. -- 34 of 47 -- 35 9.3 Taking account of unnecessary or otherwise peripheral issues [107] The basis of this proposition is that her Honour was overly concerned with the issue of costs when determining the penalty imposed on the respondent.125 Reference is made to her statement that:126 “But considering the amount of costs which are significant for any person, the amount of the fine which I impose I will make $2000 so as to reflect firstly, a number of matters which – but more particularly the amount of costs.” [108] The appellant accepts that there were clear grounds for such an award. However, it is submitted to the extent this issue affected a reduction in the penalty imposed against the respondent personally and, more generally, inadvertently lowered the proper sentencing range, the approach is erroneous. 127 [109] It is submitted that the issue of penalty should have prevailed over the issue of costs. 128 [110] Reference is made to her Honour’s correct observation during the prosecutor’s submission on costs that: 129 “It’s not to punish, but to indemnify.” [111] It is submitted that if the quantum of costs had been a compelling concern to her Honour, the appropriate course was to not award them or, alternatively, to limit them below that actually incurred. It is said that she was not required to exercise her discretion as to costs in favour of the appellant, and such an order should only be made where it is just and reasonable to do so. 130 125 Appellant’s Outline of Argument at para 20. 126 Transcript, 1-52 ll 10-14. 127 Appellant’s Outline of Argument at para 23. 128 Ibid at para 20. 129 Transcript, 1-22 l 20. This statement is consistent with the basis for the usual costs order which was explained by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 that: “Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.” 130 Appellant’s Outline of Argument at para 21; the JA 1886, s 157. -- 35 of 47 -- 36 [112] However, as the respondent submits,131 it is established that when the appropriateness of a fine amount is in question, regard may be had to the impacts of an associated costs order: Morely v Senewiratne & Anor, per Robin QC DCJ.132 In support of this proposition, his Honour referred to Dever v Creevey, ex parte Creevey133 where Thomas J said:134 “Penalty The appeal also raises the ground that the penalty was manifestly excessive. The stipendiary Magistrate imposed a fine of $2000 and ordered the appellant to pay costs fixed at $1936, allowing one month to pay. The maximum penalty (prescribed in penalty units) translates into a maximum penalty of $24,000 (s 94(3)). It was not suggested that it was inappropriate to order costs or that the quantum of the costs was unfairly assessed. However, the incidence of the costs order needs to be kept in mind in considering the question whether the fine is unduly oppressive or inappropriate.” [113] His Honour also referred to the statement of McPherson ACJ: 135 “As regards the appeal against penalty, it was submitted that a fine of $2000 was manifestly excessive, the more so when account is taken of the order that the defendant pay the costs of the prosecution. The latter may well be a relevant factor in the assessment of penalty; but it must be said that it is primarily the natural consequence of the defendant’s own decision to defend the complaint laid against him, and of having done so unsuccessfully and, as it now appears, without justification in fact or law.” 131 Respondent’s Outline of Argument at para 43. 132 [2008] QDC 296 at [28]. 133 [1993] 1 Qd R 232. 134 Ibid at 247. 135 Ibid at 239. -- 36 of 47 -- 37 [114] In Morely v Senewiratne & Anor his Honour was not satisfied that the fines imposed on the respondents were manifestly inadequate, although they may have appeared light. 136 In addressing this issue he considered that a significant aspect was that the magistrate sentenced on the assumption that there would be a substantial financial detriment to the respondents by way of costs to be paid to the complainant (of course, there was the further burden of having to bear their own costs).137 Having referred to the passages from Dever v Creevey; ex parte Creevey, he said that to the extent that the fines under appeal may appear lenient, he thought this was the explanation. He also observed that the comparable sentences made available showed a pattern of the costs exceeding the fine in matters of this nature.138 [115] In that case, although the appellant did not satisfy the court that the fines were inadequate and so ought to be set aside, it did persuade the court that the orders were made in error by being made contrary to s 159 of the Justices Act 1886 with the consequence of preventing the magistrate implementing his intention to make an order for costs in favour of the appellant. On this basis, the orders were set aside, and the court proceeded to fix the costs. 139 [116] As a consequence the appeal was allowed. The magistrate’s orders, except for his finding the elements of the charges proved, were set aside. Instead, the court, without recording convictions, fined the first respondent $4000, the second respondent $1000 (as the magistrate did), and ordered them to pay the appellant prosecutor’s costs of the trial fixed at $41,180.65. 140 [117] As this court may have regard to the impacts of an associated costs order in determining the appropriateness of a fine amount that is in question, I agree with the respondent’s submission that there was no error by the magistrate in this case in taking into account the financial detriment of the costs order in determining the quantum of the fine. 141 This is especially so, when in Morely v Senewiratne & Anor, Robin QC DCJ was not satisfied that the fines imposed by the magistrate ought to be set aside in circumstances in which the magistrate intended to make a 136 [2008] QDC 296 at [23]. 137 Ibid at [28]. 138 Ibid at [30]. 139 Ibid at [32]. 140 Ibid at [40]. 141 Respondent’s Outline of Argument at para 42. -- 37 of 47 -- 38 substantial costs order and, in allowing the appeal, imposed the same quantum of fines together with a substantial costs order which significantly exceeded the fines. [118] It is also important to keep in mind that it was the submissions of the prosecutor on behalf of the appellant that made the quantum of costs a significant issue in these proceedings. [119] As with the issue of recording a conviction, the prosecutor pressed more strongly on the issue of the quantum of costs than on the quantum of penalty. One way to demonstrate this is to compare the extent of the transcript devoted to the prosecutor’s submissions on the issue of quantum costs as opposed to penalty. [120] The initial submission about the facts and penalty occupied five pages. 142 The initial submission on the quantum of costs occupied two pages.143 However, he returned to this issue for a further three pages following the respondent’s submissions.144 He made a further 12 pages of submissions on the issue after the magistrate had read the factual scenario into the record.145 [121] Although the appellant now argues that her Honour was not required to exercise her discretion as to costs in favour of the appellant, and that if the quantum of these costs had been a compelling concern to her, the appropriate course was to exercise her discretion to not award them or, alternatively, to limit them to below what was actually ordered, it is conceded that there were clear grounds for such an award. [122] In the proceedings before the magistrate, not only was a submission made that costs should be awarded in favour of the appellant, but also that the quantum of those costs should be $12,741. This was over 100 per cent more than her Honour awarded. In addition, while the appellant now argues that under s 157 of the JA the magistrate’s discretion was to order such costs as were just and reasonable in its favour, the prosecutor asked the magistrate to allow a higher amount for costs for legal work than allowed under the prescribed scale, having regard to the special importance of the case. 146 142 Transcript, 1-3 l 9 to 1-8 l 37. 143 Transcript, 1-8 l 39 to 1-10 l 49 (I note that the prosecutor is incorrectly identified as Mr Wilson for much of this submission). 144 Transcript, 1-19 l 10 to 1-22 l 26. 145 Transcript, 1-26 l 17 to 1-35 l 50 (This is with the exception of 1-31 ll 1-18); 1-38 l 13 to 1-41 l 6. 146 Transcript, 1-9 ll 1-28. This submission under s 158B(2) of the JA was for a further $1650 for the costs of junior counsel. This was above the $1500 allowed under Schedule 2 of the Justices -- 38 of 47 -- 39 [123] At that time, the compelling concern advanced in favour of the award of these costs to the appellant was that it was not funded and:147 “without that indemnification, the board will not be in a position in future to properly carry out its work in the way that it is obliged to under the Act. And that, in my submission, is a very relevant consideration in determining whether costs ought to be awarded.” The prosecutor also said that this was a relevant matter because it bears directly on the purposes of the PEA and “the reason we’re here in the first place”. 148 [124] The prosecutor subsequently emphasised with reference to s 158B of the JA that: “The board’s submission is that this is a case of special importance because of the public interest and public safety dimension.” [125] This strong submission was made on behalf of the appellant in circumstances where the table of guideline sentences provided to the magistrate on its behalf contained only two cases, in each of which the costs exceeded the fine. And in one of these cases – Cowper – this structure of penalty and costs had been agreed by the appellant. [126] In circumstances where the prosecutor made no submission on the quantum of penalty, made no attempt to contest the submission that Cowper was a more serious case, made strong submissions that costs be awarded in favour of the appellant to an extent above those allowed under the prescribed scale because of the special importance of the case and made no submission that the issue of penalty should have prevailed over costs, I do not consider that the magistrate took unnecessary or peripheral issues into account in determining the appropriateness of the fine amount by reference to the financial detriment of the costs order. [127] In particular, I do not consider that there is any principle that the issue of penalty should have prevailed over the issue of costs. In my view, this is not supported by Walden v Hensler, 149 which is relied on by the respondent. Regulation 2004 for instructions and preparation for the hearing, including attendance on day 1 of the hearing. 147 Transcript, 1-22 ll 22-26. -- 39 of 47 -- 40 [128] In Walden v Hensler, the appellant was convicted of keeping prescribed fauna, fined $100, and ordered to pay $260 by way of royalty, $30.50 court costs, and $529 professional costs. The High Court of Australia granted special leave to appeal, quashed the conviction and order, and in lieu thereof without recording a conviction discharged the appellant absolutely under s 657A(1) of the Criminal Code (Qld) and ordered that he pay $30.50 court costs. The appellant refers to the judgments of Deane, 150 Brennan, 151 and Dawson JJ 152 in support of their proposition. [129] However, Deane J merely concluded that orders for costs, totalling $559.50 was disturbingly high for a prosecution of this kind, which was disposed of in less than a day in the Magistrates Court: 153 I also note that he had earlier concluded that the primary penalty of a fine of $100 could not be allowed to stand because the magistrate might have been influenced in proceeding to a conviction and imposing this penalty because of his erroneous view that he was constrained to impose the additional penalty of $260 by way of royalty.154 These circumstances are far removed from those of the present case. [130] Brennan J agreed with Deane J in relation to the magistrate’s order for the payment of costs, and gave as a further reason in relation to professional costs, that it was appropriate in the circumstances of that case that the costs of conducting the prosecution should be borne by the public purse rather than a person who honestly and in ignorance contravenes the law.155 This is distinguishable from the present case where it is not suggested that the respondent honestly and ignorantly contravened the law, and the appellant concedes that there was clear grounds for a costs award in its favour. [131] Dawson J also agreed with Dean J that the imposition of double royalty was not obligatory and that the magistrate had a discretion to impose a lesser additional penalty than he did. 156 On the question of costs, he referred to Bentham v 148 Transcript, 1-22 ll 14-16. 149 (1987) 163 CLR 561. 150 Ibid at 589-590. 151 Ibid at 578. 152 Ibid at 595-596. 153 Ibid at 589. 154 Ibid at 588. 155 Ibid at 578. 156 Ibid at 578. -- 40 of 47 -- 41 Tremearne. 157 However, this case is also distinguishable because Griffith CJ (with whom Barton and O’Connor JJ agreed) said no more than as it appeared that the respondent bona fide believed that he was authorised in what he did, the appeal might be very properly allowed without costs. [132] Not only does this case not support such a principle as contended for the appellant on the hearing of this appeal, but I do not consider that in the circumstances I have referred to, the appropriate course was for her Honour to exercise her discretion not to award costs, or to limit them below the quantum that was actually ordered. In fact, as contended for by the appellant before the magistrate, in my view it was within her Honour’s discretion to determine that it was just and reasonable for her to award at least the quantum of costs that she ordered. As I have indicated, the quantum of costs was not disputed by the appellant on the hearing of this appeal. [133] I also do not consider that her Honour’s award of costs in practical terms undermines the fundamental aspect of general deterrence under the PEA by inadvertently lowering the proper sentencing range. Once it is appreciated that there is no error in a magistrate taking into account the financial detriment of a costs order in determining the quantum of fine, it will be appreciated by magistrates in future cases that this is how the quantum of fine was been arrived at in this case. Those magistrates will also appreciate that the payment of those costs to the complainant would be a substantial detriment to the respondent. It will of course be open to the appellant in future cases to argue that the issue of penalty should prevail over the issue of costs, if they wish to do so. [134] However as I have indicated, no such submission was made to the magistrate in this case and for the reasons that I have given she made no error in taking the approach that she did on the issues of penalty and costs. 9.4 Whether the sentence is manifestly inadequate [135] Although I have concluded that the magistrate did not err in principle in the exercise of her sentencing discretion on the basis of any discernable error asserted by the appellant, it remains necessary to determine whether such an error is demonstrated 157 (1905) 2 CLR 582 at 589-590. -- 41 of 47 -- 42 by manifest inadequacy of the sentence. That is to say, whether the sentence appealed from was outside the sound exercise of her sentencing discretion. [136] In answering this question it is necessary to consider the combined effect of the penalty and the recorded conviction which together constitute the sentence. [137] It is also essential to consider the breadth of the sentencing discretion, which includes the difficult task of balancing the competing consideration of deterrence and protection of the community which was relied on by the appellant in the present case, on the one hand, and the mitigating factors on the other.158 [138] Other factors relied upon by the appellant as aggravating penalty are the purpose and objectives the PEA, the fundamental need for public confidence to be maintained in the engineering profession, the prior cancellation of the respondent’s registration as a professional engineer, and the fact that he knew that he was prevented from undertaking professional engineering work without supervision. As I have indicated, the appellant argues that in these circumstances, the fine that should have been imposed by her Honour is one falling within the range of 15-20 per cent of the maximum penalty, then available, that is some $11,250-$15,000.159 [139] In this case the mitigating features expressly referred to by the magistrate in reading the factual scenario into the record were the respondent’s age, his good character, his engineering career of over 40 years, his lack of a criminal history and other convictions, his co-operation with the authorities, and his plea of guilty (although not made until the afternoon before the trial). 160 Another relevant factor relied upon by the respondent’s counsel is that there was no greed involved in the commission of the assault. The appellant was entitled to a reduction in the penalty imposed on the basis of these mitigating factors. As I have also concluded, the fact that it was not the appellant’s case that the screw piers were unable to carry the loads or were not properly installed, was relevant to the exercise of the sentencing discretion, because at the very least, the respondent’s conduct was not aggravated by the certification being erroneous and resulting in adverse consequences. 158 See, for example, the observations in R v Lawley [2007] QCA 243, per Keane JA (with whom Williams JA and Mullins J agreed) at [18]. 159 Appellant’s Outline of Argument at para 28. 160 Transcript, 1-25 ll 31-42. -- 42 of 47 -- 43 [140] It is also relevant, as I have previously indicated, that the prosecutor limited his submissions on the quantum of penalty to tendering a table containing two cases. While he was not in a position to say that these cases were representative of the sentencing range, he made no other submissions as to the quantum of penalty, and in particular made no submissions that the penalty should be between two and two and a half times greater than the maximum penalty in the cases referred to her Honour.161 As I have observed, this is consistent with an agreement by the prosecutor with the respondent’s counsel that no submissions would be made on penalty to the magistrate, and the prosecutor made no effort to distinguish that case or to contest the respondent counsel’s submission that it was a more serious case. [141] Although, as I have also previously observed, the sentences referred to the magistrate did not bind her sentencing discretion and do not bind in this court in the exercise of the appellate jurisdiction, having regard to these circumstances and balancing the factors relied on by the appellant with the mitigating factors mentioned, I do not consider a $2000 fine in conjunction with recording a conviction to be outside the sound exercise of the court’s sentencing discretion, and therefore manifestly inadequate. This is particularly so when regard is also had to the impacts of the associated costs order, as I am entitled to do, notwithstanding that such an order is not really part of the sentence.162 [142] In coming to this conclusion, it is irrelevant whether it would have been open to the magistrate to have imposed a heavier fine. 163 And even if I would have done so, mere tinkering is unacceptable on the part of an appellate court.164 9.5 Otherwise exceptional circumstances – establishment of a sentencing range [143] Although I have concluded that her Honour did not err in principle in the exercise of her sentencing discretion, either on the basis of a discernable error or one that is demonstrated by manifest inadequacy of sentence, the appellant submits that the lack of a clear sentencing range and the need to reinforce the community’s denunciation of the conduct in breach of s 115 of the PEA requires a higher penalty 161 As previously stated, this is the case of Cowper where a $6000 fine was imposed without recording a conviction for three breaches of the PEA. As conceded in the Appellant’s Outline of Argument at para 25, the cases in the table showed fines being imposed in a range of $1500 to $1600. 162 See the discussion of this issue above at paragraphs [112]-[117]. 163 Bennett and Alldrick v Armstrong [2004] QDC 122, per Newton DCJ at [11]. 164 Schutt v Olsen [2006] QDC 248, per Dearden DCJ at [8]. -- 43 of 47 -- 44 than was imposed here. It is argued that this court should intervene so as to facilitate the administration of justice by setting an authoritative range of penalties for future offences under the PEA and s 115 specifically.165 [144] It is pointed out that until now, no superior court has had an opportunity to review sentences (or any other aspect) under s 115 specifically or the PEA penalty provisions generally.166 [145] The penalty which the appellant argues should have been imposed and the reasons in support of this have previously been set out in this decision. 167 [146] As the appellant recognises by his reliance on Melano, in support of this submission such an intervention by this court is only permissible in exceptional circumstances. [147] Further, as has recently been confirmed by the Queensland Court of Appeal, 168 citing from the judgment of King CJ, with whom Mitchell and Williams CJ agreed in R v Wilton:169 “It is necessary to consider whether the prosecution should be allowed to raise on appeal the contention that the sentence ought not have been suspended when that contention was not put in the court below. … In my opinion, this court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course. … In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made. Generally speaking, if the 165 Appellant’s Outline of Argument at para 24. 166 Ibid at para 26. 167 See paragraphs [40], [92], and [138]. 168 R v KU & Ors; ex parte Attorney-General [2008] QCA 154 at [94]. -- 44 of 47 -- 45 submission is not made to the sentencing judge the prosecution should not be able to advance that contention on an appeal by the Attorney-General.” As the Court of Appeal observed, 170 this passage was referred to with approval by Brennan, Deane, Dawson, and Gaudron JJ in Everett v The Queen. 171 [148] In this case the appellant did not contend before the magistrate that a fine of 15-20 per cent of the maximum penalty then available should be imposed. As I have previously stated, while submitting that this case was in a more serious category because of the cancellation of the respondent’s registration for disciplinary reasons and referring to the principles of general and specific deterrence, and protection of the community, the appellant’s prosecutor did no more than to tender the table of two cases which showed fines being imposed in the range of $1500-$6000. Although he said that he was not in a position to say that the cases were representative of the sentencing range, he made no submissions that the penalty to be imposed in this case should not only exceed the maximum of those penalties in a case where the penalty had been imposed with the appellant’s agreement, but also did not submit that it should be increased by the extent which is now contended for. [149] As I have also observed, this approach is consistent with an agreement by the prosecutor with the respondent’s counsel that no submission would be made on penalty to the magistrate. This can be inferred by the prosecutor’s statement which is quoted above at paragraph [18]. This statement is also consistent with the view that a considered position had been reached by the appellant to move from an earlier position that it had taken in relation to penalty to the substantially different position adopted before the magistrate. It is reasonable to conclude that this considered position was to not contend for a particular penalty or range of penalties before her Honour, and in particular to not contend for the quantum of fine which is now sought. [150] Further, consistently with the approach in Wilton, no submission being made by the prosecutor to distinguish the case of Cowper or to contest the submission by the 169 (1981) 28 SASR 362 at 367-369. 170 [2008] QCA 154 at [94]. 171 (1994) 181 CLR 295 at 302. -- 45 of 47 -- 46 respondent’s counsel’s that it was a more serious case, the appellant should not now be able to advance that contention on appeal. [151] In these circumstances I do not consider that this is one of those exceptional cases in which a contention to significantly increase the quantum of fine imposed upon the respondent, beyond the maximum fine which had been imposed in the table of guideline sentences referred to the magistrate, should be allowed when this contention was not put to her. Any other approach would be tantamount to sending a message to prosecuting authorities that notwithstanding they have taken a considered approach to the quantum of penalty before sentencing court, but on reflection are disappointed with the result, they may seek a higher penalty on appeal by arguing the it is necessary to establish an authoritative range of penalties. To allow such an approach in the present case would be contrary to the interests of finality so as to protect the respondent from ongoing harassment by the state.172 I note that unlike KU & Ors, this is not a case of the sentencing magistrate’s “failure to appreciate, and give sufficient weight to, exactly what the [respondent] was admitting in the circumstances of the case, by [his plea] of guilty.”173 This is clearly established by her reading of the factual scenario into the record and her statements set out at paragraphs [75] to [82] above. [152] The fact that this is not an appropriate case to set an indicative but authoritative range of penalties for future offences under the PEA and s 115 specifically is emphasised by the arbitrary manner in which the appellant has determined the top of the range contended for. As Mr Gordon advised during argument, this has been calculated by adding together the penalty and costs in the guideline sentences in the table. In the case of Chandra, the total was $15,159 ($1500 penalty + $13,659 costs). In the case of Cowper, the total was $15,500 ($6000 penalty + $9500 costs). It is on this basis that $15,000 has been suggested as the top of the range in the circumstances of the present case. [153] Therefore, I have concluded that this is not a case in which exceptional circumstances exist to warrant the intervention of this court to establish a sentencing range as contended by the appellant. 172 See R v KU & Ors; ex parte Attorney-General [2008] QCA 154 at [95]. 173 Ibid at [96]. -- 46 of 47 -- 47 Conclusion and orders [154] The appeal is dismissed. [155] I will hear the parties in respect of the costs of the appeal. -- 47 of 47 --