Dal Piva v Maynard (No 2) No. Scgrg-00-655

[2001] SASC 2

DAL PIVA v MAYNARD (No 2)
[2001] SASC 2

Ex parte Application for Leave to Appeal

1. Gray J     On  2 November 2000[1] I allowed an appeal against the sentence of a magistrate.  The defendant had pleaded guilty to a breach of the Native Vegetation Act 1991 (SA). I set aside the fine imposed and re-sentenced the defendant. I imposed a fine of $17,000. The defendant now seeks leave to appeal.

   [1] Dal Piva v Maynard [2000] SASC 349

2. A further appeal may not be brought unless leave to appeal is obtained from the Judge or from the Full Court.[2]  The defendant has elected to seek leave pursuant to Rule 94.01(1)(b)(i) of the Supreme Court Rules.

   [2] Paragraph 3 (a) of the proviso to s 50(1) of the Supreme Court Act 1935 (SA)

3. In Stokolosa & Anor v Weeks Peacock Quality Homes Pty. Ltd.[3] it was said:

   “The court’s practice has been to grant leave to appeal only if a question of general principle arises, and usually the court considers also whether there is reason to doubt the correctness of the decision under consideration.  However, in the end the court must act as the interests of justice may require.”

   [3] [2000] SASC 334

4. I do not consider that the defendant has made out a case for leave in accordance with these principles.  I refuse leave to appeal.

5. A number of matters necessitate comment.

6. During the course of submissions I intimated that I proposed to allow the appeal.  I requested additional information for use in re-sentencing.  This led to a fundamental change in the case.

7. The Crown produced photographs which showed that no vineyard existed at the time the trees were cleared.  Until this time, the proceedings, both before the magistrate and on appeal, had been conducted on the false basis that a vineyard had existed in close proximity to the trees.  The correct position was that the trees had been removed to completely clear a paddock for the commercial purpose of a planned vineyard.  A number of submissions put to me earlier by the defendant and the Crown including submissions as to a possible range of penalties had also been made on the same false basis.

8. The defendant’s counsel accepted that his submissions about the defendant’s concerns for the safety of employees and property with respect to an existing vineyard were incorrect.

9. Against this background, I made the defendant’s counsel aware that I considered the breach to be a serious matter and that I was contemplating imposing a substantial fine.  Opportunity was given for further submissions following these intimations, but none were made.  I reject the submission that any procedural unfairness occurred.

10. I reject the submission that a tariff was increased without warning.  The clearing of the trees effected a broad acre clearance for commercial purposes.  However, this was not a case in which the land was completely cleared.  Useable land existed prior to the clearance.  It was for this reason that the Crown did not seek a per hectare penalty.  As the circumstances of native vegetation clearance are so variable, there is, in my view, no tariff.  Rentiers Pty. Ltd. v Native Vegetation Authority[4] provides guidance as to the appropriate approach to sentencing.

    [4] (1990-91) 55 SASR 1

11. The order of the court is that the application for leave to appeal is refused.