Dridan v Brinkworth No. DCCRM-03-1092

DRIDAN v THOMAS KENNETH BRINKWORTH
[2003] SADC 179
Judge P Kelly

The defendant has pleaded guilty to an offence of clearing native vegetation contrary to s26(1) of the Native Vegetation Act 1991.
The maximum penalty prescribed for this offence was, at the relevant time, a fine of $40,000 or a sum calculated at the prescribed rate per hectare, which was at that time $2,000, whichever is the greater.
The matter has been referred to this Court for sentence pursuant to s19(5) of the Criminal Law Sentencing Act, as the Magistrate before whom the plea was taken formed the view, that an appropriate penalty for this offence would exceed the jurisdiction of the Magistrates Court.
I am required to consider the issue of penalty afresh. For this purpose I have been provided with a number of statements and photographs, which were tendered on a hearing before this court on the 7^th November 2003. A list of the photographs and documents on which I was asked to rely is contained in the index attached to these remarks.
The particulars of the complaint to which the defendant pleaded guilty were as follows:
(1)On and from 28^th November 2001 to 30 June 2002, the first and second defendants became the owners of land described in Crown Lease Register Book, Volume 1365 Folio 50 which land included Section No. 3 in the Hundred of Messent, in the County of Cardwell in the said State.
(2)The first and second defendants between 10^th January 2002 and 30^th June 2002, caused or permitted the clearance of native vegetation from part of the said land.
(3)The native vegetation cleared comprised approximately 65% of the species Melaleuca halmaturorum (Swamp Paperbark trees), approximately 30% of the species Melaleuca brevifolio (Short leaf Honey Myrtle shrubs) and approximately 5% of the species Gahnia filum (Smooth Cutting grasses).
(4) The approximate area of the clearance was 266.25 hectares.
(The complaint in relation to the second defendant Patricia Ann Brinkworth was withdrawn upon Mr Thomas Kenneth Brinkworth, the defendant, entering a plea of guilty.)
Stoneleigh Park was formerly owned by GH Michell and Sons Australia Pty Ltd.
In the 1960’s there had been some clearance by the previous owner. There has been no further clearance of vegetation off the land since March 1988. Since that time there has been spasmodic grazing of sheep up until the time of its sale in November 2001. Photographs tendered in evidence before me and contained in the booklet, Flora and Fauna Monitoring Program for the Tilley Swamp Drain and Watercourse 2001, at pages 44 to 47, illustrate the extent of regrowth prior to January 2002.
It appears from the affidavit of Mr David Jupp that prior to the sale to the defendant negotiations were on foot to place the land under a voluntary heritage agreement.
It is not in dispute that here the nature of the clearance involved was broad acre clearance by chaining followed by grazing of cattle. The clearance took place shortly after the defendant purchased the property in December 2001. An Environmental Impact Statement prepared by a manager of Conservation Strategies, a Scientific Officer and a ‘Wetlands Project Officer summarises the significance of the land and the nature of the damage done as a result of that clearance. The authors of that report conclude that some tens of thousands of native plants, including some species with State and regional conservation significance have been destroyed by this clearance. The clearance has also resulted in the immediate loss of in‑situ habitat and the lessening of habitat options for reptiles, mammals, and birds of the Tilley Swamp Water Course.
The authors conclude that the clearance was contrary to the principles of clearance of native vegetation as set out in Schedule 1 of the Native Vegetation Act 1991. In particular, the vegetation, which was cleared, was growing in or in association with a wetland environment, had some rare plant species, contributed significantly to the amenity of the Tilley Swamp Watercourse, and was significant as a remnant of vegetation in an area which has been extensively cleared. (Page 6 Environmental Impact Statement)
The Tilley Swamp drain was constructed on the eastern margin of the Tilley Swamp Watercourse in late 1999 and 2000 as part of the upper southeast dry land and salinity flood management scheme. A set of permanently marked monitoring sites were set up on the land to examine the effect of drain (ground water and surface water) on plant community composition and health. The clearance of the vegetation obliterated the infrastructure associated with these monitoring sites and caused a halt to environmental monitoring of these transects. This research is critical to the future of drainage of the whole area of the upper southeast.
It is plain from the material, which has been provided to me in the statements of Eva Squires and David Jupp that the defendant well knew that those monitoring sites were there. In fact he had given permission on two occasions after purchase of the property for inspectors to enter the land and inspect them.
THE ACT
The objects of the Native Vegetation Act are expressed in s6 and include inter alia:
“(a) the provision of incentives and assistance to landowners in relating to the preservation, enhancement and management of native vegetation;
(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
…
(e)the encouragement of the reestablishment of native vegetation in those parts of the state that have been cleared of native vegetation.”
To that end clearing of native vegetation is prohibited unless the consent of the Native Vegetation Council is obtained.
The circumstances in which native vegetation may be cleared are prescribed by the Act. The Council, in considering whether to grant consent, must have regard to the principles of clearance of native vegetation so far as they are relevant.
Those principles are set out in Schedule 1 of the Act. I refer in particular to the principles contained in paragraph c, e and f:
“1. Native vegetation should not be cleared if, in the opinion of the Council-
…
(c)     it includes plants of a rare, vulnerable or endangered species; or
…
(e)     it is significant as a remnant of vegetation in an area which has been extensively cleared; or;
(f)     it is growing in, or in association with, a wetland environment;
…”
In this case it is not in dispute that the defendant purchased the property in about November 2001 and between that date and June 2002 carried out broad acre clearance by chaining the area, which is the subject of the complaint. As I have already remarked the clearance of this land was contrary to the principles of clearance of native vegetation set out in Schedule 1 of the Act (above).
I have been referred to a number of authorities relevant to the imposition of penalty in this matter. It is of some significance that the two Supreme Court authorities to which I was referred were handed down at a time when the penalties prescribed in the Act were less than they are now. At that time the maximum penalty for clearance contrary to the Act was $10,000 or at the rate of $1,000 per hectare, which ever was the greater.
The Parliament has twice amended the prescribed penalties since that time, the most recent amendment being in 2003. The relevant penalty at the time when this offence was committed was $40,000 or $2,000 per hectare whichever is the greater.
The remarks of His Honour Justice Duggan in the case of Piva v Brinkworth 59 SASR 92 at 96 are as relevant today as they were in 1992:
“The same considerations are relevant to the level of the pecuniary penalties. 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.”
The only explanation which has been proffered for the defendant’s actions was to the effect that it would make mustering of the cattle easier.
It is apparent from the defendant’s history that the defendant is well aware of the need for consent to any clearance upon his land. I infer from his conduct on this occasion that he made a conscious and deliberate decision to ignore the provisions of the Act and proceeded to destroy the vegetation anyway. I have already referred to the consequences of that clearance set out in the Environmental Impact Statement. Whilst some aspects of that statement were criticised by the defendant’s counsel, in particular the reference to some of the trees and vegetation being possibly 100 years old, the defendant does not dispute the basic thrust of that report.
There are a number of mitigating circumstances surrounding his offence. In the first place, the vegetation cleared was not virgin scrub and the nature of the clearance was not such as to totally denude the landscape but to allow for regrowth in the future, albeit it will take some decades for the regrowth to be re‑established to the same extent as prior to the clearance.
The defendant has also pleaded guilty to the charge. Although I was urged by counsel who appeared for the complainant not to give any discount for the plea in the light of the blatant and repeated offending of the defendant, I am of the view that a plea, even in those circumstances, must involve a saving to the State of considerable time and expense and I therefore allow a discount something in the order of 10% to reflect that fact.
On the other hand, although in the sense that virgin scrub was not cleared, this could not be said to be in the worse category of clearance, there are two factors which are of considerable aggravation:
-the defendant has a prior history of offending and in this case obviously chose to clear the land shortly after purchase in deliberate contravention of the law.
-the second matter of aggravation is that whether or not the defendant knew the precise location of the monitoring sites for the Tilley Swamp Watercourse, he well knew that those monitoring sites were on the area of land to be cleared and went ahead anyway, at the very least, reckless as to whether those monitoring sites were destroyed. In the event they were. It is clear, again from the material provided to me, that that monitoring work is critical for the future of drainage programs in the upper southeast.
The defendant has been prosecuted and convicted on 4 separate occasions for unauthorised clearance of native vegetation. The first of those offences involved a similar broad acre clearance of 189 hectares on a property known as Rosemary Downs. At that time the penalty prescribed by the Act was $10,000 or $1,000 per hectare whichever was the greater. In that case the defendant was fined an amount based on 15% of the maximum of $1,000 per hectare.
Two years later the defendant was involved in a further broad acre clearance of 21 hectares of land. On this occasion the defendant was involved in clearing virgin remnant scrub and was penalised at the rate of $600 per hectare, which at that time represented approximately 60% of the maximum available penalty.
A further unauthorised clearance for the purpose of drain construction over land, which was subject to a heritage agreement, was carried out by the defendant in November 2001. For that the defendant was fined the sum of $30,000, which represented about 75% of the maximum penalty available at that time.
There is one other matter for which the defendant has been penalised and fined a similar amount but that offence postdates the offence with which I am to deal and I have no regard to it.
If other members of the community were to adopt this defendant’s attitude and act in the same way then the objects of the Native Vegetation Act would be seriously frustrated and the scheme set up under the provisions of the Act would become unworkable.
In view of the defendant’s prior history and in view of the circumstances of the current offence, in particular, the conscious and deliberate disregard of the provisions of the Act, the time has come where principles of general and personal deterrence must be given considerable weight in arriving at a just penalty.
The starting point for my assessment of an appropriate penalty in this case is in the order of 50% of the available maximum, which is $1,000 per hectare. I intend to allow a discount in the order of about 12% for the plea. Based on that discount, the defendant will be fined a total sum of $230,000. That figure was arrived at by calculation of a fine at the rate of $1,000 per hectare, discounted as I have said, by an amount approximating 12% for the plea.
There are court fees and levies totalling $123.00 payable in respect of this offence.
INDEX OF DOCUMENTS
One booklet containing:
1.     Six photographs of various aspects of the subject property taken
in June 2002.
2.     The complaint and summons dated 21/11/2002.
3.     Summary of previous illegal clearances of land related to the
defendant.  (2 pages)
4.A bundle of court documents relating to offences relating to
properties known as “South Flagstaff” and “Taunta Downs”.
5.Written submissions of the Crown in the relation to penalty                  (11 pages)
6.Environmental Impact Statement undated prepared by B Grear,
C Baulderstone and M Giraudo.  (4 pages)
7.Statement of Eva Squire dated 3^rd June 2002.  (2 pages)
8.Statement of Eva Squire dated 10^th May 2002.  (3 pages)
9.Affidavit of David Leslie Jupp, 1^st September 2003 with
2 aerial photographs   (Exhibit E)
10.South Australia “Parliamentary Debates”, Legislative Council,
16^th October 2002, 1061 – 1064.
11.A large aerial photograph of Stoneleigh Park taken
30^th June 2002.  (Exhibit A)
12.Statement of David Geoffrey Hart dated 29^th August 2002                   (Exhibit B)
13.A large aerial photograph of Stoneleigh Park dated
1^st February 2002  (Exhibit C)
14.A large aerial photograph taken 11^th January 2003 of
Stoneleigh Park.   (Exhibit D)

[2003] SADC 179

18 December 2003