Chevor Pty Ltd t/as Sunnyvale Plants v Hughes
[2013] WASC 230
•19 JUNE 2013
CHEVOR PTY LTD t/as SUNNYVALE PLANTS -v- HUGHES [2013] WASC 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 230 | |
| Case No: | SJA:1002/2013 | 26 APRIL 2013 | |
| Coram: | HALL J | 19/06/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1 and 2 Appeal against conviction dismissed Appeal against sentence allowed and appellant re-sentenced | ||
| B | |||
| PDF Version |
| Parties: | CHEVOR PTY LTD t/as SUNNYVALE PLANTS ROD HUGHES |
Catchwords: | Criminal law Appeal against conviction and sentence Cutting back vegetation in protected area Whether done in normal operation of a commercial agricultural operation Meaning of 'commercial agricultural operation' Whether includes a wholesale plant nursery Meaning of 'normal operations' Whether includes irregular pruning of trees to reduce shade Whether fine manifestly excessive |
Legislation: | Swan and Canning Rivers Management Act 2006 (WA), s 5, s 10, s 136 Swan and Canning Rivers Management Regulations 2007 (WA), reg 21 |
Case References: | Blacktown City Council v Grah (1990) 69 LGRA 303 Chan (1989) 38 A Crim R 337 City of Mitcham v MOL Pty Ltd (2003) 85 SASR 279 City of Nunawading and Comptroller-General of Customs [1994] AATA 289; (1994) 36 ALD 628 Clifton v Masini [1967] VR 718 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fremantle Crocodile Park Pty Ltd v Commissioner of State Taxation (1993) 11 SR(WA) 163 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 Lowndes v The Queen (1999) 195 CLR 665 and House v The King [1936] HCA 40; (1936) 55 CLR 499 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 Wym v Sutherland Shire Council (1990) 69 LGRA 322 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ROD HUGHES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 177330 of 2012
Catchwords:
Criminal law - Appeal against conviction and sentence - Cutting back vegetation in protected area - Whether done in normal operation of a commercial agricultural operation - Meaning of 'commercial agricultural operation' - Whether includes a wholesale plant nursery - Meaning of 'normal operations' - Whether includes irregular pruning of trees to reduce shade - Whether fine manifestly excessive
(Page 2)
Legislation:
Swan and Canning Rivers Management Act 2006 (WA), s 5, s 10, s 136
Swan and Canning Rivers Management Regulations 2007 (WA), reg 21
Result:
Leave to appeal granted on grounds 1 and 2
Appeal against conviction dismissed
Appeal against sentence allowed and appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant : Mr M Curwood
Respondent : Mr J Misso
Solicitors:
Appellant : Curwood & Co Pty Ltd
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Blacktown City Council v Grah (1990) 69 LGRA 303
Chan (1989) 38 A Crim R 337
City of Mitcham v MOL Pty Ltd (2003) 85 SASR 279
City of Nunawading and Comptroller-General of Customs [1994] AATA 289; (1994) 36 ALD 628
Clifton v Masini [1967] VR 718
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fremantle Crocodile Park Pty Ltd v Commissioner of State Taxation (1993) 11 SR(WA) 163
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
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Lowndes v The Queen (1999) 195 CLR 665 and House v The King [1936] HCA 40; (1936) 55 CLR 499
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Wym v Sutherland Shire Council (1990) 69 LGRA 322
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- HALL J:
Introduction
1 It is an offence to cut back trees in an area adjacent to the Swan and Canning Rivers referred to as the 'development control area': reg 21(1) Swan and Canning Rivers Management Regulations 2007 (WA) (the regulations). An exception is provided for things done in the normal operations of a farm, orchard, plantation, vineyard or other commercial agricultural operation: reg 21(2)(a).
2 On 22 November 2012 the appellant was convicted of an offence under reg 21(1) in the Magistrates Court. It was not disputed that the appellant had caused the cutting back of Eucalyptus trees on its land. Nor is it disputed that the land was within the development control area. However, the appellant claimed that the trees were cut back as part of the normal operations of its wholesale nursery business.
3 The sole issue, both before the magistrate and on this appeal, was whether the appellant's actions fell within the exception. This raised two questions:
1. was the appellant's nursery business a 'commercial agricultural operation' within the meaning of the regulations?; and
2. was the cutting back of the trees done in the normal operations of that business?
4 The magistrate concluded that the appellant's nursery business was not a commercial agricultural operation and that the exception did not apply. Accordingly, her Honour found the appellant guilty of the charge. A fine of $10,000 was imposed and the appellant was ordered to pay the respondent's costs. The appellant now seeks leave to appeal against both the conviction and the sentence.
Grounds of appeal
5 The grounds of appeal are as follows:
1. The Learned Magistrate erred in fact and law by:
(a) failing to find that the Appellant, at the time that it pruned the relevant eucalyptus trees, was conducting a 'commercial agricultural operation'; and
- (b) failing to find that the pruning of the trees was within the normal operations of the Appellant's commercial agricultural operation;
and thereby the defence available to it under Regulation 21(2)(a) of the Swan and Canning Rivers Management Regulations applied.
- 2. Alternatively, the Learned Magistrate erred in fact and law by determining the Appellant's sentence by:
(a) failing to give due account to the Appellant's circumstances, and, specifically, its lack of any prior record;
(b) giving insufficient weight to the fact that any breach of the regulations by the Appellant was an inadvertent breach insofar as the Appellant was pruning trees (which it had previously pruned prior to the relevant regulations applying), which was in the normal operation of its commercial enterprise and was on its own property;
and thereby imposed the sentence that was excessive.
6 The appellant was charged that between 24 June 2010 and 29 June 2010 it had cut back vegetation, namely 12 Eucalyptus trees, within the development control area without a permit, contrary to reg 21(1). The appellant entered a plea of not guilty to that charge and the matter was set down for a hearing in the Magistrates Court on 22 November 2012.
7 Prior to the hearing it was agreed that a statement of agreed facts could be provided to the court. These agreed facts can be summarised as follows.
8 The appellant operates a nursery on Lot 7 Bullfinch Street, Huntingdale. The property is privately owned, however part of it comes within the development control area created under the Swan and Canning River Management Act 2006 (WA) (the Act).
9 Between 24 June 2010 and 29 June 2010 the appellant engaged Beaver Tree Services to prune a number of Eucalyptus trees on the property. The trees were at the rear of the property and in proximity to the Southern River, a tributary of the Canning River. Twelve of the 13 trees subsequently pruned by Beaver Tree Services were located in the development control area. Following pruning none of those trees had any leaf mass remaining and two of them were reduced to stump height.
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10 When approached by an officer of the Swan River Trust a manager of the appellant explained that, 'The tunnel house was shaded and we couldn't grow anything due to the shade from the trees'. This was a reference to a greenhouse on the property. The manager also stated that it would have been cheaper to remove the trees completely but that they did not want to kill the trees, only have them pruned. The appellant did not have a permit to cut back the Eucalyptus trees.
11 Given these admitted facts the evidence at the trial was limited to the issue of whether the exception applied. Evidence was called by the prosecution from a surveyor who confirmed that the trees were within the development control area. Evidence was also called from Mr Matthew Broadbent, a senior investigations officer with the Swan River Trust (the Trust). Mr Broadbent had conducted an inspection on 21 July 2010 and had observed the cut trees. The trees were on the outside of the fence and close to the Southern River. Mr Broadbent said that the property appeared to be a commercial nursery and that there were a number of greenhouses, one of which was located on the south east corner of the site, close to the location of the lopped trees. He observed some seedlings within the nearest greenhouse which appeared to be small tomato plants in punnets.
12 Mr Steven Gay gave evidence for the appellant. He is the managing director of the appellant which trades as Sunnyvale Plants. The business dates back to early 1922 and was started by Mr Gay's great-grandfather. The business has been at its present location since 1942.
13 Mr Gay said that the appellant's business is a wholesale production nursery. This involves the growing of large volumes of edible plants and some ornamental plants. These are then sold to retailers, local authorities and landscape gardeners. The business employs between 35 and 60 staff; the variation being explained by seasonal requirements.
14 Mr Gay said that the greenhouse closest to the lopped trees is used for a number of crops annually. At the time in question it was being used to grow advanced tomatoes, chillies and capsicums. These were grown in a square pot 100 millimetres wide which holds a volume of around 500 millilitres of soil. These plants are grown up to a height of 45 centimetres maximum. The plants are grown in a greenhouse so that they can be raised through winter and be ready for sale in spring. They continue to be grown in the greenhouse until it becomes too warm.
15 Mr Gay said that the plants grown in the greenhouse at the relevant time required a certain amount of daylight hours per day. They also
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- required controlled day and night temperatures to grow at their optimum. He said that as at the middle of 2010 it was noticed that the greenhouse was too dark early in the morning. The particular plants growing in the greenhouse utilised morning sunlight more than afternoon sunlight and the greenhouse was not getting any direct sunlight before 10.00 am in the morning. This caused the crop to struggle in its first few weeks of being planted. He investigated the reasons for the lack of sunlight and concluded that the trees in question were blocking the sun in the morning. He decided that the shade problem could be alleviated by pruning the trees.
16 Mr Gay said that 12 trees were tagged and Beaver Tree Services were retained to prune these trees back to previous pruning points. Those points were where the trees had been pruned back by the appellant some seven to ten years earlier. Beaver Tree Services recommended that it would be more economical to take the trees down to ground level than to prune them. The reason for this was that it was a difficult site to access and tree climbers rather than a cherry picker would have to be utilised. The cheaper option was not taken as the appellant was not interested in completely removing the trees. Mr Gay said that the trees formed part of the natural bushland which was a good screen from the residential development on the other side of the river. The appellant was willing to prune the trees every five to ten years to suit its needs.
17 Mr Gay said that the quote from Beaver Tree Services was accepted and the work of pruning the trees back to the old growth points was done. This had a desired effect on the plants in the greenhouse and improved growth was noted within a week.
18 Mr Gay said that at the time the pruning was done he was not aware that there was any restriction on pruning the trees, or indeed any other restrictions in respect of vegetation on the land. He had not heard of the development control area at the time the work was undertaken. The first he learnt of it was when he was told of it by Mr Broadbent.
19 In cross-examination Mr Gay accepted that three of the trees were cut back to stumps rather than the old growth points. He also accepted that whilst the trees had been cut back before, this was not something that was done on a weekly, monthly or even yearly basis.
20 As regards the plants growing in the greenhouse, Mr Gay accepted that these were seedlings grown in containers or punnets rather than directly in the ground. He said that these plants were sold as seedlings
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- from between seven days to 12 months old. No crop was harvested from the plants. He said that the greenhouse was built somewhere in the early 1980s and was a steel structure with a polycarbonate covering built onto a concrete base. He said he had determined which trees were shading the greenhouse by visually inspecting it as the sun rose and marking those trees that were tall enough to cast shade and block the morning sun. His estimation was that the tallest tree was 30 metres tall.
Magistrate's decision
21 The magistrate reserved her decision and delivered written reasons on 19 December 2012. Her Honour identified the crucial question as being whether a commercial nursery is a 'commercial agricultural operation' within the meaning of that term as used in reg 21(2)(a).
22 The magistrate set out a number of dictionary definitions, including for the words 'farm', 'orchard', 'vineyard', 'plantation' and 'agricultural'. Her Honour also referred to the definition of the word 'agricultural' appearing in the Agriculture Act 1988 (WA) (since repealed) and 'agricultural activity' appearing in the Biosecurity and Agriculture Management Act 2007 (WA).
23 The magistrate noted that the appellant operated a commercial nursery producing punnets and pots of edible and ornamental plants on a wholesale basis. She stated that the appellant did not operate a farm, orchard, plantation or vineyard, but that its activities were of a commercial nature because it supplied plants on a wholesale basis for the purposes of resale.
24 The magistrate then stated:
In my opinion 'other commercial agricultural operation' must be a continuation or a similar activity to a farm, orchard, plantation or vineyard. Agricultural activity is defined in the 'Biosecurity and Agriculture Management Act' 2007 to include plants and animals and their by-products, used for agricultural activity. This includes the raising of sheep for wool or meat, a piggery, a chicken farm used for meat or eggs or other agricultural activity.
Agricultural product is given a wide meaning in the definition section to include plant, stock, animal product, a commodity derived from a plant or an animal product or any other product of an agricultural activity.
If the nursery was producing plants for a plantation, strawberry runners for a strawberry farm or saplings for an orchard, it is feasible that they are involved in an 'agricultural activity' by supplying stock for such an
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- activity. It must have a connection to an agricultural purpose. In this case Chevor Pty Ltd is supplying a retailer who in turn supplies plants to consumers for mainly domestic consumption.
Growing seedlings in punnets or pots is not growing or cultivating a 'crop' or cultivating the land. The definition of Agriculture includes the cultivation of land, including crop raising. A 'crop' is defined as plants grown or gathered for food or produce for the field. It does not include 1000 different varieties of edible and ornamental plants in individual pots or punnets. These plants are grown in individual pots or punnets in special soil to sell to be planted in a larger pot or in the land.
The meaning of 'other commercial agricultural operation' does not include a commercial nursery because it is not associated with an agricultural activity. It is a commercial operation, but not an agricultural operation. Therefore the exemption does not apply to Chevor Pty Ltd under regulation 21(2)(a) [36] - [40].
Relevant statutory provisions
25 The long title of the Act states, inter alia, that it is an Act to make provision for 'the protection of the Swan and Canning Rivers and associated land to ensure maintenance of ecological and community benefits and amenity'.
26 The objectives of the Act are set out in s 5. That section relevantly provides as follows:
Objectives of Act and principles to be regarded
(1) The objectives of this Act are -
(a) to provide for the restoration and protection of the development control area and the Riverpark;
(b) to provide for the management of activities that affect the ecological and community benefits and amenity of the development control area and the Riverpark;
(c) to provide for the needs of future generations in relation to the ecological and community benefits and amenity of the development control area and the Riverpark;
...
(e) to promote and facilitate the good management of the catchment area to meet the objectives referred to in paragraphs (a) to (d).
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- (2) In pursuing the objectives of this Act regard should be had to the following principles -
Table
1. Sustainability principles
(1) Sound environmental practices and procedures should be adopted as a basis for sustainability for the benefit of all human beings and the environment today, while considering the environmental, social and economic needs of future generations.
(2) Environmental, social and economic factors should be considered in decision making, with the objective of improving community well being and the benefit to future generations.
(3) Environmental practices and procedures should be cost effective and in proportion to the significance of the environmental risks and consequences being addressed.
...
4. Biodiversity and ecological integrity
Biodiversity and ecological integrity should be maintained or enhanced as part of the irreplaceable life support systems upon which the earth depends.
5. Shared responsibility
Protection of the environment is a responsibility shared by Government, industry, business, the community and the people of the State.
28 Section 136 provides that the Governor may make regulations for giving effect to the purposes of the Act. One of the things for which regulations may be made is the regulation, control or prohibition of the doing of any thing in or in relation to the development control area: s 136(2). The purposes of such regulations are stated as:
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- (i) protecting or enhancing the ecological and community benefits and amenity or good management of the land and waters in those areas or any part of those areas; or
(ii) without limiting subparagraph (i), protecting or enhancing the ecological and community benefits and amenity of any area that has been identified under a management programme as being an area that requires priority protection or priority remediation (s 136(2)(b));
29 The regulations may also regulate or control an activity by prohibiting it from being carried out by a person except under a licence or permit issued by the Trust: s 136(2)(c). The regulations can provide that a contravention of a regulation constitutes an offence and for penalties not exceeding a fine of $5,000.
30 The regulations are made pursuant to s 136 of the Act. Part 3 of the regulations deals with protection of the river park and the development control area. Regulation 21 provides as follows:
Vegetation, protection of
(1) A person must not, unless the person has a permit to do so, destroy, pull up, cut back or injure any tree, shrub, aquatic plant or other perennial plant that is in the Riverpark or development control area.
Penalty: a fine of $5 000.
(2) Nothing in subregulation (1) applies to anything done -
(a) in the normal operations of a farm, orchard, plantation, vineyard or other commercial agricultural operation; or
(b) for the purpose of routine maintenance of any reserve under the Land Administration Act 1997 or the Conservation and Land Management Act 1984, land owned by a Schedule 5 authority or any garden or grassed area; or
(c) by way of removal of plants usually regarded as weeds; or
(d) by way of fire control in the course of fighting a fire, including the making of fire breaks, providing access, burning or other means used to reduce fire hazards; or
(e) by way of fire hazard reduction carried out in accordance with a management programme; or
(f) in the creation of access tracks for fire hazard reduction in accordance with a management programme.
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31 As reg 21(1) implies, a permit can be obtained to cut back trees in the development control area. Part 4 of the regulations provides for the granting of permits by the Trust. An application for a permit must be made in a form and in the manner approved by the Trust, provide the information required by the form and be lodged with the Trust together with any application fee prescribed by the regulations: reg 28. The Trust may grant or refuse to grant a permit to carry out an activity for which a permit is required under the regulations: reg 29. Conditions or restrictions on a permit may be imposed: reg 31.
32 Although the maximum penalty provided for an offence against reg 21(1) is a fine of $5,000 the appellant, as a body corporate, was liable to a fine of five times the maximum that could be imposed on a natural person: s 40 Sentencing Act 1995 (WA). Accordingly, the maximum penalty in this case was $25,000.
33 The matters referred to in reg 21(2) are in the nature of exceptions. Where a written law creates a simple offence and provides for an exception, the exception is taken not to apply unless the accused proves in the balance of probabilities that it does: s 79(3) of the Criminal Procedure Act 2004 (WA). Thus the onus was on the appellant to prove that its actions in causing the trees to be pruned were part of the normal operations of a commercial agricultural operation.
Ground 1(a) - Commercial agricultural operation
34 The appellant submits that its wholesale nursery business was a commercial agricultural operation within the meaning of reg 21(1). This was said to be because the business involved the growing of a large volume of plants for the purposes of sale. It was also submitted that the pruning of the trees was done as part of the normal operations of the business because its purpose was to facilitate the growth of plants in the appellant's greenhouse.
35 The task of statutory construction must begin with a consideration of the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). This includes taking into account the statute as a whole; that is to say the statutory context in which particular words appear: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
36 Where the words used are simple and clear there will be no need to have recourse to secondary materials. Secondary materials, such as the
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- explanatory memorandum to the bill and the second reading speech, cannot be substituted for the text of the legislation: K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [53].
37 However, where different interpretations are open a construction should be preferred that would promote the purpose or object underlying the law: s 18 Interpretation Act 1984 (WA). Furthermore, regard can be had to secondary material if the meaning of a provision is ambiguous or obscure or when the ordinary meaning of the words, taking into account their context and the purpose underlying the law, leads to a result that is manifestly absurd or is unreasonable: s 19 Interpretation Act.
38 In this case the appellant did not seek to argue that its business was a farm, orchard, plantation or vineyard. It was accepted that the ordinary meaning of each of those words did not extend to a wholesale plant nursery of the type involved here.
39 The critical words in this case are 'other commercial agricultural operation'. It is necessary to take into account both the ordinary meaning of those words and the statutory context in which they appear. It was not disputed that the appellant's business was of a commercial nature. In these circumstances, the critical word is 'agricultural'.
40 The Shorter Oxford English Dictionary defines the word 'agriculture' as meaning, 'the science or practice of cultivating the soil and rearing animals'. The word 'agricultural' is the adjective meaning of or pertaining to agriculture. Similarly, the Macquarie Dictionary defines 'agriculture' as meaning, 'the cultivation of land, including crop raising, forestry, stock raising etc; farming'.
41 Neither the Act nor the regulations provide any definition of the phrase 'other commercial agricultural operation' and there is nothing to suggest that it was intended to have some meaning that was unusual or peculiar to the regulations. It is always possible for an Act to give a word or term a specific or wider definition than it would otherwise have. This is commonly done, but where it is not done the words must be given their ordinary meaning unless to do so produces manifest absurdity.
42 The ordinary meaning of the word 'agriculture' has been considered in other cases. In Clifton v Masini [1967] VR 718, 720 Menhennitt J said that the word is not confined to cultivation of the soil but extends to the raising of livestock. This is consistent with the dictionary definition. See also Fremantle Crocodile Park Pty Ltd v Commissioner of State Taxation (1993) 11 SR(WA) 163.
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43 Reference was made in submissions to other cases in which consideration had been given to the word 'agriculture' in the context of other statutes. These cases are of limited assistance because of the different wording and purpose of the other legislation under consideration in those cases. However, I will refer to them for the sake of completeness.
44 In Blacktown City Council v Grah (1990) 69 LGRA 303 the issue was whether a plant nursery was engaged in 'horticulture' for the purposes of a rate assessment under the Local Government Act 1919 (NSW). In that case the relevant Act specifically defined agriculture as including horticulture. Stein J said that he did not understand that horticulture required any necessary tilling of the soil. It is difficult to see how that decision can assist because there is no reference to horticulture in the Act or the regulations. There is no reason to think that agriculture would ordinarily encompass all forms of horticulture. 'Horticulture' is a word that includes some activities that would not normally be described as agriculture. See also Wym v Sutherland Shire Council (1990) 69 LGRA 322 and City of Nunawading and Comptroller-General of Customs [1994] AATA 289; (1994) 36 ALD 628.
45 In City of Mitcham v MOL Pty Ltd (2003) 85 SASR 279 the issue was whether the establishment of a vineyard was consistent with the provisions of a development plan. The development plan distinguished between agriculture and horticulture. The way in which the words were used in the development plan did not enable a conclusion to be drawn that agriculture included horticulture. That case turned on the particular words of the development plan and provides no assistance in the present case.
46 The magistrate had regard to the meaning of the word 'agriculture' in the repealed Agriculture Act 1988 (WA) and the current Biodiversity and Agriculture Management Act 2007 (WA). It is not obvious why definitions in those other Acts were relevant. There is nothing in the Act or the regulations to suggest that the words in question are to be interpreted in a way that is consistent with those other Acts. The objectives of those other Acts are not the same as those of the Act and the regulations. In my view, it was erroneous to take into account definitions used in other statutes, however that error is only significant if the interpretation of reg 21(2) favoured by the magistrate cannot otherwise be supported.
47 In the present case, the appellant's business involved no cultivation of the land, crop raising or raising of livestock. Whilst the plants in the greenhouse were in that location for the purposes of being grown to a
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- saleable height they were at all times grown in punnets or pots and not in the ground. This is an activity that does not fall within the ordinary meaning of the term 'agriculture'. However, the appellant suggests that, when viewed in context, the term should be interpreted as encompassing the appellant's activities.
48 The context is that reg 21 is a provision designed to further the purpose of ensuring that the natural environment in the proximity of the river is protected and maintained. The regulation is intended to prevent unauthorised cutting back or removal of natural vegetation. It must have been envisaged that a blanket prohibition could have the effect of unduly hindering the normal operations of businesses within the development control area. However, in making an exception to the general prohibition, only some business activities were excluded.
49 The words that precede the relevant term, namely, 'farm', 'orchard', 'plantation' and 'vineyard' are all words that describe types of agricultural activities. This, and the use of the word 'other', suggest that the term 'commercial agricultural operations' should be read as being an extension to activities that fall within a similar class. If that is so, it is difficult to see how the context suggests that the term 'agricultural operation' could have a meaning which would encompass a commercial nursery. Such a nursery is not analogous to a farm, orchard, plantation or vineyard because it involves no cultivation of the soil or raising of livestock. The ordinary meaning of the words 'agricultural operation' are only confirmed by the words that precede them.
50 Even if the words were capable of different interpretations the purpose of the Act would not favour the appellant's contentions. Given that the purpose of the regulation is to protect vegetation in the development control area an interpretation that is consistent with that objective should be favoured. An interpretation that any commercial operation involving the growing of plants for sale is a commercial agricultural operation would expand the ambit of the exception. Every exception is, by its nature, antithetical to the predominant purpose of the prohibition. Protection of the environment and amenity of the development control area is better achieved by taking a more limited view of what constitutes a commercial agricultural operation.
51 This is not a case that involves ambiguity or words that are obscure as to their meaning. Nor does the ordinary meaning of the words lead to a result that is manifestly absurd or unreasonable. In those circumstances there is no reason to have recourse to secondary materials. In any event
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- there was nothing in the materials that were referred to at the appeal hearing that suggested that anything other than the ordinary meaning was intended.
52 Having regard to the literal meaning of the words in question, the statutory context in which they appear and the purpose of the regulations, the exception cannot extend to a commercial wholesale nursery of the type operated by the appellant. The magistrate's conclusion in this regard was correct and this aspect of ground 1 cannot succeed.
Ground 1(b) - Normal operations
53 It is relevant to note that the pruning of the trees was not something that on the evidence called by the appellant was necessary to be done on any regular basis. It would appear that it had been done on only two occasions in the past with a seven to ten year interval. This was therefore an activity that, in practical terms, could readily be the subject of an application for a permit without disrupting the ordinary operations of the appellant. That would suggest that it is not the type of activity that was envisaged as falling within the exception.
54 The word 'normal' is not necessarily used to connote something that is frequently occurring. It may mean a thing that happens in the ordinary course of an activity. Thus in this case it might be arguable that pruning of the trees was normal because it was incidental to the usual business of the appellant in growing seedlings. However, the fact that provision is made for permits suggests that in this context 'normal operations' is intended to only relate to events that are integral to the primary activity and frequently occurring in carrying out that activity.
55 In my view, given the infrequency with which the pruning occurred this was not something that could be described as part of the normal operations of the nursery. It is also relevant that the trees were outside the appellant's fence, that is to say outside the area in which its business activities normally occurred. In those circumstances, even if the appellant's business fell within the definition of a 'commercial agricultural operation' this was not part of its normal operations and thus did not fall within the terms of the exception.
56 In my view, the magistrate was correct in her conclusion that the appellant's business was not a commercial agricultural operation within the meaning of reg 21(2). However, even if her Honour was wrong in that regard, the particular activity was not part of the normal operations of the business and therefore did not fall within the terms of the exception in any
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- event. Accordingly, whilst I would grant leave in respect of ground 1 it cannot succeed.
Ground 2 - Was the fine manifestly excessive?
57 The appellant submits that the fine of $10,000 imposed by the magistrate was manifestly excessive. In this regard, the appellant relies upon the fact that this was a first offence, that whilst it did not plead guilty it admitted all of the material facts, that it had previously caused the same trees to be pruned before the regulations applied, that it had no knowledge of the prohibition and that it adopted a course of action in pruning the trees that was more expensive to it than simply removing them.
58 Sentencing is a discretionary exercise. It is not enough that an appellate court might have exercised a discretion differently or that other dispositions might have been open. In order to succeed the appellant must show that there has been an error in exercising discretion such as acting on a wrong principle, mistaking the facts or taking into account irrelevant considerations: see Lowndes v The Queen (1999) 195 CLR 665 and House v The King [1936] HCA 40; (1936) 55 CLR 499.
59 A ground of appeal that alleges that a sentence is manifestly excessive asserts the existence of an implicit error: See Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). A claim of manifest excess depends upon establishing implied error in the type, length or size of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the proper exercise of sentencing discretion.
60 In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentences customarily imposed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: See Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).
61 The maximum penalty for an offence under reg 21 is $5,000 for an individual and $25,000 for a body corporate. No other cases involving similar prosecutions were referred to and it was not suggested by either party that a customary range of penalties exists for offences of this type.
(Page 18)
62 The purpose of the Act is to ensure that the ecosystem of the Swan and Canning River systems is maintained and properly managed. Unauthorised acts of damage or destruction to vegetation can potentially occur in a wide range of circumstances. It is relevant to take into account the degree and nature of the damage caused. In this case, 12 mature Eucalyptus trees were heavily pruned. It may be true that greater damage could have been done if the trees had been cut down entirely, however at least three of the trees were cut to stump level. As is well-known, Eucalyptus trees have the capacity to regenerate after significant damage or pruning. That provides some level of mitigation, however it must be taken into account that the need to protect native vegetation must arise not only from its intrinsic value but also because of its place within an ecosystem. The canopies of trees may provide habitat for native animals and birds and removal may have an impact on surrounding plants and on erosion.
63 It was relevant that the appellant had no previous record and this was a matter that was taken into account by the magistrate when she referred to the appellant as, 'a good corporate citizen'. The fact that the appellant acted in ignorance of the relevant law does not excuse its conduct, however that conduct is not as serious as an offender who acts in deliberate defiance of the law. It must be accepted that the appellant acted in good faith; it never sought to deny or minimise its actions and it defended the charges solely on the basis of the applicability of the exception. Its reasons for pruning the trees were genuinely connected to the running of its business; this was not a case of wanton destruction. It is also relevant that the trees were on the appellant's own land. It believed, not entirely unreasonably, that it was entitled to prune trees on its land.
64 Whilst general deterrence was an important consideration, there was no reason to think that personal deterrence was required. There was no realistic possibility that the appellant would commit a similar offence in the future. Furthermore, given the appellant's previous unblemished record and the circumstances in which the offence was committed it was not the most suitable vehicle for general deterrence. A conviction was itself a significant penalty in the circumstances.
65 Taking into account all of the circumstances, I am satisfied that the fine in this case was not merely high, it was manifestly excessive. Accordingly, leave to appeal on ground 2 must be granted and the sentence set aside. In lieu thereof a fine of $5,000 will be imposed.
(Page 19)
Conclusion
66 The appeal against conviction must be dismissed. The appeal against sentence will, however, be allowed. The following orders will be made:
1. Leave to appeal is granted in respect of grounds 1 and 2.
2. The appeal against conviction is dismissed.
3. The appeal against sentence is allowed.
4. The fine imposed by the magistrate is set aside and in lieu thereof a fine of $5,000 is imposed.
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