Gould v Austral Tree & Stump Services Pty Ltd (No 2) - [2008] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOULD v AUSTRAL TREE & STUMP SERVICES PTY LTD & ANOR (No 2)
[2008] SASC 149
Reasons for Penalty Delivered by The Honourable Justice Vanstone
5 June 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - FINES
First respondent a corporation in business of tree felling - second respondent a director of corporation - native vegetation unlawfully cleared by employees of first respondent - acquittals by magistrate set aside - imposition of penalty.
Native Vegetation Act 1991 s 26; Criminal Law (Sentencing) Act 1988 s 16, referred to.
Hemming v Lukin (1996) 67 SASR 248, applied.
Gould v Austral Tree & Stump Services & Anor [2008] SASC 124, discussed.
Piva v Brinkworth (1992) 59 SASR 92; Hemming v Neave & Neave (1989) 51 SASR 427; Ly v Glover (1989) 150 LSJS 449, considered.

GOULD v AUSTRAL TREE & STUMP SERVICES PTY LTD & ANOR (No 2)
[2008] SASC 149
Magistrates Appeal
Criminal

VANSTONE J: The respondents were prosecuted in the Magistrates Court for clearing native vegetation contrary to s 26 Native Vegetation Act 1991. A magistrate acquitted each of them. After an appeal to this court I set aside the magistrate’s order and substituted findings of guilt: Gould v Austral Tree & Stump Services & Anor [2008] SASC 124. The matter was then adjourned so that submissions in mitigation of penalty could be heard. Comprehensive and helpful submissions were made and I further adjourned to consider the matter.
Background
The more detailed background to the matter is set out in my earlier judgment.
As the name suggests, Austral Tree & Stump Services Pty Ltd (Austral), the first respondent, is in the business of pruning and felling trees. It is based in Adelaide. The second respondent, Mr Craig Hosking, is a director of Austral and is involved on a full time basis in the running of the company. However, he had no direct involvement with the offences which were committed.
The offences occurred on land owned by C & L Investments Pty Ltd (and another). Mr Colin Steinert was a director of C & L Investments. As will be seen, both Mr Steinert and C & L Investments were also charged in relation to this unlawful clearance. Both pleaded guilty.
The offences came about in this way. C & L Investments and Mr Steinert were in the process of subdividing and developing a plot of 2.4 hectares of land within the township of Clare. Council approval had been obtained for the development. Mr Steinert engaged Austral to clear some pines, olives and vines from the land. Later the instruction was narrowed to olives and vines. It is accepted that none of this vegetation required Native Vegetation Act approval. Because the operations manager of Austral, Mr Macaitis, had dealt previously with Mr Steinert and knew him well, Mr Macaitis was prepared to send three of Austral’s workers to the site, there to take directions from Mr Steinert, without assessing it for himself. He was also prepared to accept Mr Steinert’s assertion that all relevant approvals were in place; referring there to any required approvals from public authorities or utilities.
In the event, once the workers had completed clearance of the olives and vines, Mr Steinert suggested they could fill the balance of the day removing other (native) vegetation, being 59 blue gums, one peppermint box and one long-leaf box. No approvals were in place for that removal. The blue gums were said to be of various ages up to 200 years old. About 14 of them had a circumference between 35 and 42 cms.
The Austral employees did not contact Mr Macaitis to advise him of the new task, even though they would have appreciated that native vegetation was now involved. It was unclear whether they raised with Mr Steinert the question of an approval. His evidence was that had they done so, he would have assured them that the relevant authorisation was in place.
Another magistrate imposed penalty upon Mr Steinert and C & L Investments. It was accepted by counsel for the prosecution that Mr Steinert – described as “the mind and arm” of the company – did not intentionally arrange for clearance of the vegetation without approval. It was put that he believed (though negligently) that with the council approval he had obtained had come approval for the clearance of native vegetation. That was contrary to clear advice received by him, both in documentary form and by email from the council.
It was also accepted before the magistrate and in this court that had Native Vegetation Act approval been sought, it was very likely that approval would have been given to remove at least the bulk of the trees which were removed by Austral.
The magistrate imposed a fine upon Mr Steinert in the sum of $20,000 and against C & L Investments in the sum of $10,000. These were imposed against the applicable maximum of $100,000. The same maximum penalty applies in the case of each respondent. It is common ground before me that in addition to the financial penalties, the landholders, namely C & L Investments and another corporation, were required to enter into a land management agreement for the purpose of managing the land, reducing the incidence of weeds on the land and encouraging natural regeneration of native vegetation. In addition, there was an order that financial compensation be paid to the Crown in the sum of $6,000. This material underlines the fact that, in the end, it is unlikely that the result of the unlawful clearing is markedly different from what would have occurred had the necessary approvals been sought. As Mr Griffin QC, for the respondents, acknowledged, one cannot be certain of that. Perhaps several of the older blue gums would have been saved. But this is certainly very different from a case where a landowner proceeded in the face of an awareness that permission would never have been granted.
Another important aspect of the matter is that unlike Mr Steinert and C & L Investments, the respondents had nothing to gain by proceeding unlawfully. The invoice rendered for the work of the team which performed the unlawful clearing was $2,600, including GST. This was not a large, or very remunerative contract.
Mr Griffin assured me that, since this event, Mr Hosking and Austral’s administration have put in place regimes which will ensure that in future, in cases where the client is other than a major instrumentality or a public corporation having its own compliance regime, relevant approvals are sighted and unsupervised workers will contact their operations manager where there is any change on site in the nature of the work they are required to do. I accept the submissions to that effect.
Mr Griffin submitted that this was an appropriate case to exercise the discretion vested in the court under s 16 Criminal Law (Sentencing) Act 1988 to impose penalty without recording convictions. In support of that position he pointed to the inadvertent nature of the breach of the Act and the fact that neither Austral nor Mr Hosking has any prior conviction for an environmental offence. It was suggested that should convictions be recorded, that fact would very much impede Austral in its future bids for contracts. It was acknowledged by Senior Counsel that Austral has a prior conviction for an occupational health and safety matter in which one of its employees was injured on site after having fallen from a cherry-picker. It was said that after that had occurred, Austral’s competitors used that fact to enhance their own claims for work and to depreciate Austral’s claims.
Courts have been reluctant to exercise the discretion under s 16 in relation to regulatory offences, unless having regard to relevant factors, there are extenuating circumstances or good reasons not to record a conviction: Hemming v Lukin (1996) 67 SASR 248 at 250; Piva v Brinkworth (1992) 59 SASR 92 at 96; Hemming v Neave & Neave (1989) 51 SASR at 428-429; Ly v Glover (1989) 150 LSJS 449 at 453-454.
A person’s good character or record is only a pre-condition to the exercise of the discretion and not a make-weight: Piva v Brinkworth; Hemming v Neave & Neave. Particularly where the offence is committed knowingly, that is a strong consideration in favour of recording a conviction: Piva v Brinkworth at 96; Hemming v Neave & Neave. General and personal deterrence are also vital considerations, especially for blatant regulatory offences: Piva v Brinkworth at 96; Hemming v Neave & Neave at 429.
In Hemming v Lukin, the Chief Justice considered s 16 of the Sentencing Act in the context of an offence under the Fisheries Act 1982 (SA) of using pots, not marked with the respondent’s licence number, to take rock lobster. At the time of the infringement, the respondent’s boat and licence were being used by a registered master under an arrangement between them. By virtue of s 69(4) of the Fisheries Act the respondent (as well as the registered master) was guilty of an offence.
The respondent was a person of good character. The magistrate declined to record a conviction. The Chief Justice upheld the informant’s appeal and recorded a conviction. Doyle CJ said at 250:
To my mind, the sort of thing which would entitle a person such as the respondent to favourable treatment would be evidence of efforts made by the respondent, in a practical sense, to ensure that the licence user complied with the requirements of the law. In the present case, there is no suggestion at all that the respondent gave the user of the licence regular reminders of his obligations, or made any efforts to check the state of the pots or the state of the vessel when the vessel was in port.
In the case before me the first respondent’s employees proceeded to fell native vegetation without reference back to the first respondent’s operations manager. It is not suggested that they acted in any way contrary to standing instructions. I have found that the regime in place with respect to ensuring that approvals were in place was generally deficient.
That situation has now been addressed. It is also relevant to the exercise of a discretion under s 16 that the first respondent does not have an unblemished record in relation to the running of its business. I also take into account that, as will be seen, I adjudge these offences to be at the lowest end of seriousness of such offences. However, I do not find good reason to decline to record convictions.
I turn to consider the financial penalty. In my view the respondents were much less culpable in this offence than were Mr Steinert and C & L Investments. There is a clear case to impose a penalty far less than was imposed on those offenders. The critical matters of distinction are the fact that the respondents had no financial interest in the development and that their financial interest in the work itself was extremely modest. Further, unlike Mr Steinert, who was plainly informed that separate approval under the Native Vegetation Act was required, Mr Macaitis did not ignore any advice. Indeed, he was never aware that it was contemplated that native vegetation would be cleared. His fault, and the fault of the corporation and Mr Hosking, was to allow someone unconnected with the company to direct its workers, while failing to instruct those workers to advise of any change to the foreshadowed nature of the work. In effect, Austral abdicated its responsibilities with respect to the work done by its employees.
I am persuaded that, at least where Austral works for individuals or small development companies in the future, the measures taken will likely prevent a recurrence of unlawful conduct. No doubt the rather extended history of this prosecution and the effort and expense associated with it for Austral and Mr Hosking (including the burden of costs which I have dealt with separately) will serve as a strong deterrent to allow any similar course of events to occur. In my view the history of the matter, as a whole, and the penalties and sanctions imposed on all the participants, are apt to deter others from interfering with native vegetation without ensuring that there is an entitlement to do so.
I make the following orders:
1.each respondent will be convicted;
2.Austral Tree & Stump Services Pty Ltd will be fined the sum of $2,500;
3.Mr Craig Hosking will be fined the sum of $1,500;
4.liberty to apply.