Dridan v Kent No. Scciv-03-1724

[2004] SASC 100

DRIDAN v KENT
[2004] SASC 100

Magistrates Appeal

1. VANSTONE J:     The respondent pleaded guilty before Mr Brown SM to an offence against the Native Vegetation Act1991 (“the Act”) and three offences against the National Parks Regulations 2001 (“the Regulations”). Fines totalling $5,580 were imposed and a chainsaw of unknown value was forfeited. The most serious offence, being that against the Act, accounted for $4,500 of the total. In relation to that penalty the Crown appeals on the ground that it is manifestly inadequate.

2. The offences were all said to have occurred between 1 April 2002 and 24 September 2002 at the Reedy Creek Conservation Park in South Eastern South Australia.  They were the following:

   Count 1 – Clearing native vegetation other than in accordance with the Act, contrary to s 26 of the Act. The particulars alleged that the respondent cleared two River Red Gums, 171 Blackwoods and areas of native Bracken Fern. The applicable maximum penalty at that time stood at a fine of $40,000.

   Count 2 –Removing wood from a reserve without permission, contrary to Regulation 31(a)(ii).  The particulars alleged that the respondent took between 40 and 600 tonnes of dead vegetation, namely River Red Gums from the reserve.

   (Count 3 was withdrawn).

   Count 4 –Using a chainsaw in a reserve without permission, contrary to Regulation 17(2).

   Count 5 –Driving a vehicle in a reserve other than on a road or track set aside for that purpose without permission, contrary to Regulation 11(1).

3. The applicable maximum for each offence against the Regulations was, pursuant to Regulation 43, a fine of $1,000.

4. The learned Magistrate imposed fines of $4,500 on count 1, $630 on count 2 and, for counts 4 and 5, a collective amount of $450 was fixed. The chainsaw was forfeited pursuant to s 23(4)(b) of the National Parks and Wildlife Act1972, in relation to count 4.  The wood recovered was also forfeited.  The fines were discounted to this level by allowing a 10 per cent reduction for the pleas of guilty.  The Magistrate also took into account that the respondent had no prior history of similar offending, and that it was reasonable for the respondent to have believed that one of the two River Red Gums concerned in count 1 was dead.  The other was knocked over in the course of clearing the first.  The Blackwood trees were cleared for the purpose of establishing access to the areas which contained the 30 dead River Red Gums, which were the subject of count 2.  The respondent gained entry to the Conservation Park by cutting a perimeter fence.  It was put to the Magistrate by the respondent’s counsel that although the respondent had limited income, he had very substantial assets and could afford to pay a significant fine.

5. The gravamen of the appellant’s complaint is that in relation to count 1 the Magistrate gave little or any weight to the fact that the offence occurred within a conservation park and that very substantial damage of a long term nature was caused.

6. It is true that perhaps the great majority of offences against s 26 of the Act are episodes of clear felling, deliberately undertaken by a landowner for his own purposes. This offence is quite different. It was committed by the respondent as a trespasser on Crown land, which he must have known was a conservation park. The park was dedicated in 1973 because of its stand of mature River Red Gums. The Blackwoods were about 20 years old. The damage was caused over an area of about 0.6ha. It included destruction of the nesting and shelter habitat of threatened species and rendering the area vulnerable to future weed infestation. Further, the offence was committed in the course of a venture which had as its aim the cutting of (dead) Red Gum for use both as furniture wood and firewood. Accordingly, the commission of count 1 was an incident of the respondent’s determination to commit count 2. It is perhaps ironic that count 1 carries by far the greater penalty, yet the greater environmental degradation was associated with count 2. These features of the respondent’s enterprise raise the question of whether the offence constituted by Reg 31(a)(ii) was the appropriate one or an adequate one to reflect the respondent’s conduct; but that is now water under the bridge. Plainly the respondent had to be, and was dealt with for the offences to which he pleaded guilty. Nonetheless, these matters rendered comparison with other penalties imposed for like offences less than instructive and made the task of imposing penalty more difficult.

7. In the respondent’s favour was that he was a man in his forties with an unblemished record who pleaded guilty.  It was accepted that count 1 was negligent in the sense that he did not intentionally clear two live Red Gums and that the balance of the trees were less significant and were casualties of his plan to take dead Red Gums.

8. In determining penalty on count 1 the Magistrate chose a starting point of one-eighth of the maximum and discounted it for the plea.  In arriving at that level he made specific mention of the offence being “borne out of recklessness and not intentional”.  The weight of that matter seems to me to be rather undermined by the respondent’s purpose in committing the offence and his status as a trespasser.  The fines fixed on the other counts were a much higher proportion of the applicable maxima.

9. In the end I have decided that the penalty on count 1 was manifestly inadequate.  The damage caused by the respondent, no doubt over at least several visits to the Park, was quite calculated.  In my mind it does not mitigate his conduct to say that he was really interested in dead trees rather than live ones.  The fact remains he embarked upon a process involving destruction of a significant number of live trees and bracken for financial gain and that occurred in an area set aside for the very purpose of conserving those plants and the animals and birds which live there.  In my view even allowing for the plea at the rate chosen by the Magistrate a fine of not less than $9,000 was appropriate.

10. Accordingly, I allow the appeal for the purpose of setting aside the penalty imposed on count 1 and imposing in lieu thereof a fine of $9,000.  The balance of the orders made by the Magistrate stand.