Dal Piva v Maynard

[2000] SASC 349

DAL PIVA v MAYNARD
[2000] SASC 349

Magistrates Appeal (Civil)

1................ GRAY J.......................... This is an appeal by a complainant against penalty on the ground of manifest inadequacy.

The Magistrates Court Proceedings

2      Frank Dal Piva, a National Parks and Wildlife Officer of the Department of Environment, Heritage and Aboriginal Affairs (“The Department”) made a complaint against the respondent, Stephen Reid Maynard and others.  The complaint alleged that during April 1999 they cleared native vegetation contrary to Part 5 and s 26 of the Native Vegetation Act 1991 (SA).

3      The particulars were as follows:-

"(1).. During April 1999, the defendants were the owners of land, namely section 3009 Hundred of Milne also described as allotment 5, FP 112460 Hundred of Milne, being part of the land comprised and described in Certificate of Title Register Book Volume 5204 Folio 835.

(2)During April 1999, the first defendant cleared, and together with the second, third and fourth defendant caused or permitted the clearance of native vegetation from allotment 5 of the said land.

(3)... The native vegetation cleared was ten (10) South Australian Blue Gum (Eucalyptus leucoxylon)  and one (1) River Red Gum (Eucalyptus camaldulensis).”

4      The matter came before the Clare Magistrates Court on 10 July 2000.  The respondent pleaded guilty.  The proceedings against the other defendants were withdrawn.

5 The court was informed by the prosecutor that the respondent admitted to cutting down the trees. It was said that he had contacted the Department and been provided with a booklet entitled "Guide to the Native Vegetation Act". He had read that guide and believed that he could remove the trees pursuant to exemption 3(1)(g) of the Native Vegetation Regulations 1991.

6      Regulation 3(1)(g) is as follows:

“(1). Pursuant to section 27 of the Act, native vegetation may, subject to any other Act or law to the contrary, be cleared -

...

......... (g)    where -

(i)the purpose of the clearance is to prevent, or reduce, the risk of personal injury or damage to property (but not injury or damage caused by fire);

and

(ii)... the plant or plants comprising the vegetation exceed two metres in height;

and

(iii).. the nature and extent of the clearance is reasonable. "

7      The respondent made no attempt to contact the Department to clarify his interpretation of the exemption.  He did not engage anyone to assess the significance of the trees or any danger they may have presented.

8      In his submission counsel for the respondent informed the magistrate that the respondent believed that:

"cleared the trees as he thought they were a risk to property and possibly to his staff in the vineyard where these trees existed”.

9      Submissions as to the personal circumstances of the respondent were as follows.  He had lived in the Clare area throughout his life.  After leaving school he obtained work in the drilling industry.  He had held a drilling licence as well as operating his own vineyards and manufacturing business.  He employed up to 30 people at a time in the Clare area, some casual, some permanent.  He had two young children and his wife assisted with the business.  It was submitted that this was a technical breach and that the respondent had been mistaken.

10     The prosecutor informed the court that the penalties for contravening  s 26 of the Act ranged from a fine of up to $40,000 and/or a gaol term of up to ten years.[1]  He informed the magistrate that whilst the Department did not consider the matter to be a technical breach, it did consider that the offence was towards the lower end of the scale of seriousness.  The magistrate was also informed that recent penalties had ranged from $2,000 to $4,000 but in the past have been up to $25,000.

[1]   This is incorrect.  There is no power to imprison.

11     The magistrate convicted the respondent and imposed a fine of $100.00.  According to the prosecutor, he also suggested that the respondent make a generous donation to his favourite charity - the Anti-Cancer Foundation.  The magistrate acknowledged that this was unenforceable and did not nominate the amount to be donated.  The respondent's case was that the magistrate required a contribution to a worthy charity and directed that he should do so through his counsel.  This was to be in addition to the conviction and fine.

12     The magistrate made the following ex tempore remarks:

"Mr Maynard, this matter is one where I have obviously a degree of sympathy with your position.  You made some enquiry, you did some reading.  All of it has unfortunately created a degree of activity that I am sure you did not initially anticipate.

In the circumstances here I will impose a modest fine.  There will be a conviction recorded, a fine of $100 plus court fees etc.  Time to pay 28 days.”

13     Nothing was said in his remarks or order about a donation to charity.

The Legislative Scheme

14     In the early 1980's, public interest in the conservation of native vegetation was widespread. This interest was accompanied by a concern for wildlife habitat, soil preservation and the need for conservation of natural resources generally.  A Native Vegetation Retention Scheme was introduced in 1983.  A number of conservation concerns were identified in the rural community and considerable community debate ensued.  In response to this, a Native Vegetation Management Program was developed.  A review of this program led to the enactment of the Native Vegetation Management Act 1985 (SA).  This legislation was said to be pioneering legislation for Australia.  In turn, it was reviewed, repealed and replaced by the Native Vegetation Act 1991 (SA) (the Act).

15     The Act is directed towards the protection of South Australia’s biological diversity.  Biological diversity is defined in the Act as the:

"... diversity of ecosystems and ecological processes and of the plants, animals and micro-organisms that comprise or participate in those ecosystems or processes.”

The objects of the Act include -

“(a).. the provision of incentives and assistance to landowners in relation to the preservation, enhancement and management of native vegetation; and

(b)the conservation of the native vegetation of the State in order to prevent further reduction of biological diversity and further degradation of the land and its soil; and

(c).... the limitation of the clearance of native vegetation to clearance in particular circumstances including circumstances in which the clearance will facilitate the management of other native vegetation or will facilitate the efficient use of land for primary production; and

(d)the encouragement of research into the preservation, enhancement and management of native vegetation; and

(e).... the encouragement of the re-establishment of native vegetation in those parts of the State that have been cleared of native vegetation.”

16     The Act seeks to preserve and enhance native vegetation in two ways; by cooperation and consensus through a heritage agreement scheme, and by regulation of acts done in contravention of its provisions.

17     Part 5 of the Act deals with the control of clearance.  A person who clears land other than in accordance with Part 5 commits an offence. 

18     Section 26(1) provides:

"A person must not clear native vegetation unless the clearance is in accordance with this Part.

Penalty:... Division 2 fine or a sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed, whichever is greater."

19     In 1995 a Division 2 fine was increased from $10,000 to $40,000.[2]

[2]               In this matter the complainant accepted that it was not possible to impose a penalty on the basis of a 'per hectare' calculation.

20     Section 27 provides that the clearance of native vegetation can only occur in two circumstances.  Either with the consent of the Native Vegetation Council[3] or alternatively, if the clearance is of a prescribed class or is undertaken in prescribed circumstances.

[3]      The administration of the Act is entrusted to the Native Vegetation Council (the Council), Members of which are appointed by the Governor.  The Council of seven has a wide knowledge of conservation and rural issues.  At least one member has specialised knowledge about the preservation and management of native vegetation.

21     To obtain consent from the Council strict procedures must be followed.  A native vegetation management plan must be prepared by the applicant in accordance with the guidelines published by the Council.  In considering whether to grant, consent the Council is guided by s 29 which provides:

"(1)Subject to subsection (4), in deciding whether to consent to an application to clear native vegetation, the Council -

(a)... must have regard to the principles of clearance of native vegetation so far as they are relevant to that decision; and

(b)must not make a decision that is seriously at variance with those principles."

22     The principles of the clearance of native vegetation are set out in Schedule 1 to the Act as follows:

"Native vegetation should not be cleared if, in the opinion of the Council -

(a)    it comprises a high level of diversity of plant species; or

(b)    it has significance as a habitat for wildlife; or

(c)     it includes plants of a rare, vulnerable or endangered species; or

(d)... the vegetation comprises the whole, or a part, of a plant community that is rare, vulnerable or endangered; or

(e)it is significant as a remnant of vegetation in an area which has been extensive cleared; or

(f)     it is growing in, or in association with, a wetland environment; or

(g)... it contributes significantly to the amenity of the area in which it is growing or is situated; or

(h)the clearance of the vegetation is likely to contribute to soil erosion or salinity in an area in which appreciable erosion or salinization has already occurred or, where such erosion or salinization has not yet occurred, the clearance of the vegetation is likely to cause appreciable soil erosion or salinity; or

(i).... the clearance of the vegetation is likely to cause deterioration in the quality of surface or underground water; or

(j)the clearance of the vegetation is likely to cause, or exacerbate, the incidence or intensity of flooding; or

(k)     -

(i).. after clearance the land will be used for a particular purpose; and

(ii). the land is the subject of assessment under section 35 of the Soil Conservation and Land Care Act 1989; and

(iii) according to that assessment the use of the land for that purpose cannot be sustained."

23     The Act authorises district councils to instigate civil enforcement proceedings and to seek injunctive relief, including make good orders.

24     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.

The Appeal

25     The ex tempore remarks of the magistrate failed to disclose the basis on which he concluded that a nominal fine was appropriate.  The simple expression of sympathy with the defendant's position did not provide a proper basis.  The magistrate was obliged to provide sufficient reasons to enable an appellate court to review the penalty imposed.  His reasons are inadequate. 

26     The course taken by the magistrate in directing a substantial donation to the respondent's favourite charity - the Anti Cancer Foundation was contrary to general sentencing principles. There is no apparent connection between the Anti Cancer Foundation and the preservation of biological diversity. There may be circumstances where conduct of a defendant either before or after sentence might have relevance.[4]  This was not such a case.  The magistrate’s failure to specify the amount and the inability to enforce its payment makes the suggested “penalty” meaningless.  Counsel for the respondent could not confirm that any donation to charity had been made.

[4]      Rentiers Pty Ltd v Native Vegetation Authority (1990-91 55 SASR 1

27     I consider that the imposition of a $100 fine is manifestly inadequate.  The magistrate implicitly recognised this, given his reference to a charitable donation.

28     The penalty must be reviewed. I formed the view that it was appropriate to deal with the matter myself.  No objection was raised.  In view of the paucity of the factual material put before the magistrate, I invited both parties to provide additional material and make further submissions as to penalty.

29     The appellant tendered a set of photographs and a report of observations made on 10 May 1999.  A subsequent report dealing with the age and health of the trees was also provided.

30     In submissions to this court, counsel for the respondent accepted that the magistrate had been misled.  I was informed that counsel appearing before the magistrate misunderstood the circumstances of the case.  The magistrate was led to believe that there was an established vineyard proximate to the trees.  This was incorrect.  It was also untrue to suggest that the safety of employees at the vineyard was a matter in the respondent's mind when he made the decision to clear the trees.  The photographs show that there was no vineyard on the land.  The sympathy for the respondent engendered in the magistrate was occasioned by false representations of fact.  The respondent must have been aware of the true state of affairs.  The magistrate acted on an incorrect basis. 

31     The reports disclose that the fallen trees were clearly visible from the roadside extending some 250 metres north-south along a ridge running parallel to the road.  The trees appear to have been pushed into a long line following the ridge and just within a boundary of trees following the ridge.  There were nine trees in this area varying in height to 16.7 metres.  The age of the trees has been estimated to be between 50 and 200 years.  All but one of the trees were healthy specimens.  The photographs confirmed their substantial size.  At least one additional tree, a large River Red gum, had been felled from the centre of the paddock and pushed down adjacent to an established erosion gully.

32     The felling of the trees and the clearing of the land increased the area of land available for vineyard development.  During the appeal, no other reason was advanced which justified the respondent’s actions.  A cursory examination of the Act and Regulations would have revealed that the removal of the trees required consent.  This was not a technical breach of the Act.

33     As mentioned earlier, the photographs show that at the time the trees were removed no vineyard existed.  Issues of employee safety or property damage could not have arisen.  Such concerns could only arise if a vineyard had been established in close proximity to the trees.  Given the absence of a vineyard these potential problems could be avoided by appropriate planning.  The Act and regulations do not contemplate clearance in anticipation of yet to be created dangers.

34     The booklet read by the respondent was tendered.  It is a publication of the Government of South Australia and provides a short summary of the Act and Regulations.  It describes the public interest in native vegetation and the reasons justifying its protection.  The booklet does not suggest that the respondent could remove the trees without consent.

35     I invited submissions from counsel for the respondent as to penalty and in particular sought explanations for the respondent’s conduct.  I was informed that a vineyard has now been planted and the cleared area utilised.  It was accepted that the value of the respondent’s land has increased accordingly.  Its ability to produce an income stream has improved although the vineyard has yet to come into production.  No information about the respondent’s financial position was proffered.  There was no suggestion that he suffered any particular financial difficulty.  No explanation of his conduct was put forward.

36     In Piva v Brinkworth[5] Duggan J in considering a sentence appeal in respect to offences under The Native Vegetation Management Act  1985 (SA) 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."

[5] (1992-93) 59 SASR 92 at 96.

37     These remarks are entirely apposite to the circumstances under consideration in this appeal.

38     I consider this to be a serious breach of the Act. This is an offence where the respondent acted with indifference towards the protection of native vegetation. He removed mature trees in breach of the Act.

39     The respondent has no prior convictions and is of good character.  He is a respected and useful member of the rural community where he has lived and worked for many years.

40     I have regard to the respondent’s plea of guilty, although it came very late in the proceedings.  I would have made a reduction in the order of 10 per cent on account of that plea but given that it was accompanied by materially misleading information, I consider that there should be no reduction.

41     It is important that an appropriate punishment be imposed.  General deterrence is a matter of considerable importance.  A substantial fine must be imposed. 

42     I allow the appeal and impose a fine of $17,000.00.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1      This is incorrect.  There is no power to imprison.

2In this matter the complainant accepted that it was not possible to impose a penalty on the basis of a 'per hectare' calculation.

3The administration of the Act is entrusted to the Native Vegetation Council (the Council), Members of which are appointed by the Governor.  The Council of seven has a wide knowledge of conservation and rural issues.  At least one member has specialised knowledge about the preservation and management of native vegetation.

4      Rentiers Pty Ltd v Native Vegetation Authority (1990-91 55 SASR 1
(1992-93) 59 SASR 92 at 96.

5 (1992-93) 59 SASR 92 at 96.