Dal Piva v Jakobovic No. Scciv-02-295
[2002] SASC 209
•25 September 2002
DAL PIVA v JAKOBOVIC
[2002] SASC 209
Magistrates Appeal
Gray J This is a Crown appeal against sentence.
Background
Vinko Jakobovic the respondent was charged with offences against the Native Vegetation Act 1991 (SA) and the National Parks and Wildlife Act 1972 (SA). He pleaded guilty to clearing native vegetation without a permit and to damaging part of a reserve without lawful authority[1]. All other charges were withdrawn. Mr Jakobovic was unrepresented before the magistrate and on appeal.
[1] The complaint was in the following terms:The facts were not disputed. On 14 August 2001 Mr Jakobovic was observed from the air loading a trailer with bundles of broom brush in the Billiatt Conservation Park. He was spoken to by an officer of the Department of Environment and Heritage who then proceeded to conduct an interview. When asked about his activities Mr Jakobovic replied that he thought he was on his land and that he did not think he needed a permit to cut broom brush on his own property.
Proceedings Before the Magistrate
The Crown asserted that because Mr Jakobovic had lived in the area for some time he should have been familiar with the boundary between his property and the conservation park. Emphasis was placed on the existence of a large illegal broom brush cutting industry. It was said that the cutting in this case was for a commercial purpose. It was submitted that a fine of at least $1200 was appropriate.
Mr Jakobovic submitted that there was no fence or boundary to separate or mark his property from the conservation park. He said that he had been cutting broom brush on his property as he believed he was entitled to do and due to fog had strayed into the conservation park.
In sentencing the magistrate said:
“I accept Mr Jakobovic’s explanation that he did not go onto the park area deliberately to cut broom for sale. He says he was under the misapprehension that he was still on his property, not realising that he had strayed over the boundary in the fog. I accept that but warn him he must understand the importance of Native Vegetation Act and its significance generally.”
The magistrate gave Mr Jakobovic credit for his pleas of guilty. Her Honour declined to order that the tractor and trailer used in the clearing be confiscated and imposed the one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). A $600.00 fine was imposed.[2]
[2] In addition Mr Jakobovic was ordered to pay costs so the total amount was $864.70.
Issues on Appeal
Counsel for the Crown submitted that the sentence imposed was manifestly inadequate having regard to the prescribed maximum penalties for the offences. It was said that the fine imposed was nominal. The Crown’s principal contention was that the magistrate had insufficient regard to deterrence. It was submitted that general deterrence was particularly important for offences of this type. Attention was drawn to the commercial purpose of the clearing in this case. It was said that Mr Jakobovic had cut 38 bundles of broom brush to a value of about $266 and that with two “illegal” clearings he would have effectively covered the “cost” of the fine. The difficulty in detecting these kinds of offences was also emphasised.[3]
[3] Mr Jakobovic was detected by an officer of the Department of Environment and Heritage who was a passenger in a light plane flying over the conservation park.
Mr Jakobovic submitted that the penalty should not be increased. It was said that the magistrate had accepted his explanation. Fog had caused him to stray into the conservation park. He said that in any event he had not caused any permanent damage to the area given that the cutting involved in effect a “pruning” of the brush and that it would “grow back”.
Mr Jakobovic suggested that he had consent to clear native vegetation on his land. If correct this would be a material matter given that he believed he was on his land at the time of the offending. The parties were given an opportunity to further investigate this matter. Material has now been provided to the court. It shows that Mr Jakobovic was issued with a permit to clear native vegetation from his land in or about 1983. An area proposed for clearance was specified in the permit. However the permit expired in 1990[4]. There was no evidence that it had been subsequently renewed.
[4] When the Native Vegetation Management Act 1985 (SA) was implemented consents granted pursuant to the Planning Act 1982 (SA) were taken to have expired five years from the commencement of the Act.
The Native Vegetation Act currently governs the clearance of land. A detailed discussion of the Act’s purposes appears in Dal Piva v Maynard.[5] Those purposes were generally described as:
“The development of the Act is reflective of community perceptions. The community continues to recognise the need to preserve native vegetation. Not only is it difficult, if not impossible to replace, but its destruction affects the preservation of biological diversity in South Australia. By increasing the penalty to a maximum fine of $40,000, Parliament indicated how seriously it views these kinds of offences.”
[5] [2000] SASC 349 at [14-24]
Mr Jakobovic did not have consent to clear his land or to cut broom brush within the conservation park. He could have applied for a permit under section 28 of the Native Vegetation Act. He failed to do so.
In Piva v Brinkworth[6] when considering a sentence appeal involving offences under the Native Vegetation Management Act 1985 (SA) Duggan J said:
"In order for legislation such as that under discussion to succeed, there must be effective means of enforcement. The harshness of the statutory penalties must be viewed in this light. Often the clearing of land in circumstances such as this will result in a lasting commercial gain to the landholder. Mitigating factors can be allowed for, but the emphasis on general and individual deterrence remains a vital consideration."
[6] (1992-93) 59 SASR 92 at 96.
The National Parks and Wildlife Act was introduced to consolidate a number of Acts relating to the conservation of flora and fauna and the management of reserves in South Australia. The Act’s purpose was to conserve and protect native flora and fauna. During the 1980’s several amendments were made. In 1987 broader controls over the taking of native plants from reserves were introduced. The Act provided that permits for removal were required. The interaction between the operation of this legislation and the Native Vegetation Management Act was the subject of the second reading speech. The need for permits when collecting native plants regardless of purpose was emphasised. The need for permits for broad acre clearances of vegetation such as broom brush and firewood was the subject of specific provision.
In 2000 further amendments to the National Parks and Wildlife Act were made. The second reading speech again emphasised the dual purpose of the legislative scheme and the conflict between the use of reserves for public benefit and enjoyment and the need to conserve native flora and fauna. The government’s role was described as seeking to maximise public benefit while minimising the impact of human activity on South Australia’s natural assets.
Section 79 of the National Parks and Wildlife Act provides:
“(1) a person who, intentionally and without lawful authority, destroys or damages any part of a reserve or any property of the Minister on a reserve is guilty of an offence.”
The maximum penalty for contravening this section is $2000 or imprisonment for six months. In addition the court has a discretion to order that the offender pay compensation to the Minister. As with offences under the Native Vegetation Act the penalty indicates the seriousness with which parliament views a breach of section 79(1).
The fine imposed by the magistrate has been correctly described by counsel for the Crown as nominal. It provides minimal general deterrence. The conduct involved cutting for commercial purposes in a conservation park. If the legislative scheme is to be given effect to and native vegetation protected, general deterrence must play an important role in the sentencing process. The magistrate failed to have adequate regard to the need for deterrence.
Counsel for the Crown submitted that in the ordinary course a substantial fine would be justified. However it was accepted that because of the history of this matter and the risk of double jeopardy it would be inappropriate to seek a penalty greater than that sought before the magistrate. It was said that otherwise a fine in excess of $1200 would have been appropriate.
Mr Jakobovic was aged 63 years at the time of sentencing. He had owned his property for 16 years. He grew crops and ran sheep. In 1988 he assisted with fighting a fire in the reserve area. His property was damaged and he suffered an injury. He said he felt like he should “get something” from the National Parks and Wildlife Department to compensate for his suffering.
As earlier observed the conduct involved cutting for commercial purposes in a conservation park. There is a need to protect native vegetation. General deterrence is an important consideration.
The appeal is allowed. The magistrate’s orders are set aside. Mr Jakobovic is fined $1200[7]. In addition he is to pay the court costs, levies and prosecution fee of $264.70 as fixed by the magistrate.
[7] It is to be observed that the one course of conduct gave rise to a breach of both the Native Vegetation Act and the National Parks and Wildlife Act. There has been no appeal against the convictions recorded. Mr Jakobovic should not be punished twice for the once incident. The fine imposed on appeal does not do so.
List of judgment citations as they appear in the judgment
1 The complaint was in the following terms:
“That on the 14th day of August 2001 the defendant cleared native vegetation contrary to Part V of the Native Vegetation Act 1991.
Contrary to section 26 of the Native Vegetation Act 1991.On the 14th day of August 2001 the defendant did intentionally and without lawful authority damage a part of a reserve the property of the Minister of Environment and Heritage, on a reserve, namely Billiatt Conservation Park contrary to Part 6 of the National Parks and Wildlife Act 1972.”
2 The complaint was in the following terms:
“On the 14th day of August 2001 the defendant did intentionally and without lawful authority damage a part of a reserve the property of the Minister of Environment and Heritage, on a reserve, namely Billiatt Conservation Park contrary to Part 6 of the National Parks and Wildlife Act 1972.”
Contrary to section 79(1)(a) National Parks and Wildlife Act 1972.
3 In addition Mr Jakobovic was ordered to pay costs so the total amount was $864.70.
4 Mr Jakobovic was detected by an officer of the department of Environment and Heritage who was a passenger in a light plane flying over the conservation park.
5When the Native Vegetation Management Act 1985 (SA) was implemented consents granted pursuant to the Planning Act 1982 (SA) were taken to have expired five years from the commencement of the Act.
6 [2000] SASC 349 at [14-24]
7 (1992-93) 59 SASR 92 at 96.
8 It is to be observed that the one course of conduct gave rise to a breach of both the Native Vegetation Act and the National Parks and Wildlife Act. There has been no appeal against the convictions recorded. Mr Jakobovic should not be punished twice for the once incident. The fine imposed on appeal does not do so.
“On the 14th day of August 2001 the defendant cleared native vegetation contrary to Part V of the Native Vegetation Act 1991.
Contrary to section 26 of the Native Vegetation Act 1991.
On the 14th day of August 2001 the defendant did intentionally and without lawful authority damage a part of a reserve the property of the Minister of Environment and Heritage, on a reserve, namely Billiatt Conservation Park contrary to Part 6 of the National Parks and Wildlife Act 1972.”
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