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…

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

Case: [2008] SASC 149
Decision Date: 5 June 2008

CaseChat Overview and Summary

In the case of Gould v Austral Tree & Stump Services Pty Ltd (No 2), the respondents, a corporation engaged in tree felling and one of its directors, were involved in the unlawful clearing of native vegetation. The matter was before the court following the setting aside of acquittals by a magistrate. The appellant sought to challenge the decision to impose a penalty on the respondents. The court was tasked with determining the appropriate legal framework for reviewing the magistrate's decision and the validity of the penalty imposed.

The central legal issues involved the scope of the court's jurisdiction to review the magistrate's decision to set aside the acquittals and the appropriateness of the penalty imposed on the respondents. The court considered whether the penalty was commensurate with the gravity of the offence and whether there were any errors in the magistrate's approach to sentencing.

The court found that it had the jurisdiction to review the magistrate's decision, as the setting aside of acquittals was an exercise of judicial power that could be subject to review. The court determined that the penalty imposed was appropriate given the severity of the unlawful clearing of native vegetation. The court concluded that the penalty was proportionate and that there were no significant errors in the magistrate's sentencing process. The appeal was dismissed, and the penalty remained in place.

The court ordered that the penalty imposed on the respondents remain in effect, with no further orders regarding the matter. The decision affirmed the court's ability to review decisions made by magistrates and the importance of ensuring that penalties imposed for environmental offences are commensurate with the gravity of the actions.

Orders