Frank Dal Piva v Thomas Kenneth Brinkworth File No. SCGRG 92/1779 Judgment No. 3629 Number of Pages 5 Environment Protection (1992) 64 a Crim R 239 (1992) 59 Sasr 468 - [1992] SASC 3629

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA Duggan J.(1)

CWDS
Environment protection - general appeal against fine imposed for unauthorized clearing of vegetation contrary to Native Vegetation Management Act, 1985 - argument that s.16 and s.39 of Criminal Law (Sentencing) Act, 1988 should have been invoked and appellant discharged without penalty rejected - fines imposed appropriate - appeal dismissed.
Hemming v Neave and Neave 51 SASR 427; Liddy v Cobiac (1969) SASR 6; Cobiac v Liddy 119 CLR 257 and Walden v Hensler 163 CLR 561 referred to.

HRNG ADELAIDE, 21 September 1992 #DATE 1:10:1992
Counsel for appellant:        Mr W. De Garis
Solicitors for appellant:     Wallace De Garis and Co.
Counsel for respondent:     Mrs R. Cant
Solicitors for respondent:    Crown Solicitor's Office

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J. The appellant appealed against penalties imposed in the Mount Gambier Magistrates' Court for two breaches of the Native Vegetation Management Act, 1985. He was charged on two complaints alleging that he had cleared native vegetation contrary to s.19 of the Act. It was argued on appeal that the monetary penalties imposed were manifestly excessive and that, particularly in the case of the first offence, the magistrate should have discharged the appellant without recording a conviction and without imposing a penalty pursuant to s.39 of the Criminal Law (Sentencing) Act, 1988. Alternatively, it was said that s.16 of that Act should have been invoked and, whatever the penalty, a conviction should not have been recorded. 2. The appellant and his family are the owners of large areas of land in the South-East of the State. 4,290 ha. of the total holding are subject to heritage agreements under the Act and there is no doubt that the appellant has been a significant contributor to the conservation of the environment in the area covered by the holdings, particularly in the upper South-East. He has spent large sums of money on conservation and was entered as a nominee for the Commonwealth Development Bank Ibis Awards for encouraging the conservation of flora and fauna in 1989. 3. The appellant pleaded guilty to the two offences before the magistrate. The first offence took place on an area of land known as "Rosemary Downs" between June and December, 1988 when the appellant cleared 189 ha. of native vegetation contrary to the Act. The penalty imposed in respect of this offence was $28,350. The second offence took place on a block called "Glen Para" in June 1990: 21 ha. were cleared in contravention of the Act and the penalty imposed for this offence was $12,670. 4. The Native Vegetation Management Act prohibits the clearing of native vegetation carried out other than in accordance with the Act. Subject to certain qualifications the Act requires landowners to obtain the consent of the prescribed authority before undertaking such clearing (s.20). Section 19 provides as follows:
    "19.(1) A person shall not clear native vegetation contrary
        to this Part. Penalty: $10 000 or the prescribed sum,
        whichever is greater.
        (2) A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Frank Dal Piva v Thomas Kenneth Brinkworth File No. SCGRG 92/1779 Judgment No. 3629 Number of Pages 5 Environment Protection (1992) 64 a Crim R 239 (1992) 59 Sasr 468 [1992] SASC 3629
Case: [1992] SASC 3629
Decision Date: 1 October 1992

CaseChat Overview and Summary

The appellant, Frank Dal Piva, appealed against fines imposed for unauthorized clearing of native vegetation in breach of the Native Vegetation Management Act, 1985. Dal Piva pleaded guilty to two offences involving the clearing of 189 hectares and 21 hectares of land respectively. The magistrate imposed penalties of $28,350 for the first offence and $12,670 for the second. Dal Piva argued that the fines were excessive and that the magistrate should have discharged him without penalty under sections 16 and 39 of the Criminal Law (Sentencing) Act, 1988.

The court examined the arguments and the relevant legislation. Sections 16 and 39 of the Criminal Law (Sentencing) Act allow for the imposition of penalties without conviction or the discharge of the offender without penalty under certain conditions. However, the court found that these sections have limited application to regulatory offences such as those under the Native Vegetation Management Act. The primary purpose of such legislation is general and individual deterrence, which requires effective enforcement. The court concluded that the penalties imposed were appropriate given the seriousness of the offences and the need for deterrence.

In summary, the appeal was dismissed. The court found that the penalties were appropriate given the circumstances and the purpose of the legislation. The court did not find it necessary to exercise the discretion provided by sections 16 and 39 of the Criminal Law (Sentencing) Act, 1988.

Orders