Lamattina v Gould

Case [2009] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

LAMATTINA & ANOR v GOULD

[2009] SASC 130

Judgment of The Honourable Justice Layton

15 May 2009

MAGISTRATES - APPEALS AND REVIEW

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

ENVIRONMENT AND PLANNING - TREES AND VEGETATION

Appellants convicted of illegally clearing vegetation in breach of s 26 of the Native Vegetation Act - purpose of clearance was to further appellants' commercial horticultural venture - appellants sentenced by Magistrate - appellants submitted that sentence manifestly excessive - whether Magistrate failed to take into account relevant factors including: failure of appellants' commercial venture; outcome of civil enforcement proceedings issued against appellants; and appellants' guilty plea - whether Magistrate erred in likening environmental impact of clearance to that of "broad acre clearance".

Held: no error shown by Magistrate - appeal dismissed.

Native Vegetation Act 1991 (SA) ss 26, 34 and 40; Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 18 and 483, referred to.
Cranssen v the King (1936) 55 CLR 509; R v Gee (1988) 148 LSJS 286; Whisson v Mead (2006) 95 SASR 124; Dal Piva v Maynard [2000] SASC 349; Hemming v Lukin (1996) 67 SASR 248; Hemming v Mundy (2001) 213 LSJS 453; Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705; R v Smith (1987) 44 SASR 587; WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147; R v Rooke [1998] SASC 6738; R v Morgan [1997] SASC 5980; Piva v Brinkworth (1992) 59 SASR 92; Hemming v Neave and Neave (1989) 51 SASR 427, considered.

LAMATTINA & ANOR v GOULD
[2009] SASC 130

CIVIL

LAYTON J:

  1. On 10 December 2007 the appellants pleaded guilty to offences against s 26(1) of the Native Vegetation Act 1991 (SA) (“the Act”). On 27 November 2008 a Magistrate sentenced the appellants for the offences. The appellants now appeal against that sentence.

    Background

  2. The second appellant is a shareholder and director of the first appellant.  At all relevant times the first appellant was the registered proprietor of a portion of farming land located in the south-east of South Australia named “Acacia Downs”.  The first appellant was also the lessee of another portion of farming land in the same region named “Gap Road”.  Between January and July 2005 the second appellant ordered the clearance of not less than 141 trees from Acacia Downs, and not less than 130 trees from Gap Road.  All of the trees cleared were estimated to have been between 50 to 200 years old, with a likelihood that some of the trees were over 200 years old. 

  3. The purpose of the clearance was to enable the installation of centre-pivot irrigators for the production of carrots.  Centre-pivot irrigation is a method of irrigation whereby a long “irrigation arm” rotates around a centre axis from which water is drawn.  By its nature, centre-pivot irrigation requires the circular area in which it is…

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Lamattina v Gould [2009] SASC 130
Case
[2009] SASC 130
Decision Date

CaseChat Overview and Summary

In the matter of Lamattina v Gould, the appellants were convicted for illegally clearing vegetation in breach of section 26 of the Native Vegetation Act 1991 (SA). The appellants were found guilty of clearing numerous trees on two separate properties with the intention of installing centre-pivot irrigators for carrot production. The appellants appealed the sentence imposed by the Magistrate, arguing that it was manifestly excessive and that the Magistrate failed to consider several relevant factors, including the failure of their commercial venture, the outcome of related civil enforcement proceedings, and their guilty plea.

The legal issues before the court were whether the Magistrate erred in his assessment of the penalty and whether he failed to consider pertinent factors during sentencing. The court examined the arguments presented by the appellants, including the alleged errors in the Magistrate's reasoning and the disproportionate nature of the penalties imposed. The court found that the Magistrate's sentencing was appropriate for the offence, taking into account the severity of the illegal vegetation clearing and its environmental impact.

The court held that the Magistrate did not err in his reasoning or in the penalties imposed. The court determined that the penalties were within the range of penalties appropriate for the offence and that the Magistrate had considered all relevant factors, including the appellants' early guilty pleas and cooperation. The court rejected the appellants' argument that the penalties were grossly disproportionate compared to other cases. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

On 10 December 2007 the appellants pleaded guilty to offences against s 26(1) of the Native Vegetation Act 1991 (SA) (“the Act”). On 27 November 2008 a Magistrate sentenced the appellants for the offences. The appellants now appeal against that sentence. Background The second appellant is a shareholder and director of the first appellant. At all relevant times the first appellant was the registered proprietor of a portion of farming land located in the south-east of South Australia named “Acacia Downs”. The first appellant was also the lessee of another portion of farming land in the same region named “Gap Road”. Between January and July 2005 the second appellant ordered the clearance of not less than 141 trees from Acacia Downs, and not less than 130 trees from Gap Road. All of the trees cleared were estimated to have been between 50 to 200 years old, with a likelihood that some of the trees were over 200 years old. The purpose of the clearance was to enable the installation of centre-pivot irrigators for the production of carrots. Centre-pivot irrigation is a method of irrigation whereby a long “irrigation arm” rotates around a centre axis from which water is drawn. By its nature, centre-pivot irrigation requires the circular area in which it is installed to be completely free of vegetation so the arm may circulate unobstructed. Following the detection of the clearance of both properties, the appellants were charged by the Native Vegetation Group from the South Australian Department of Water, Land and Biodiversity (“the Department”) with offences against s 26(1) of the Act. Section 26(1) of the Act provides that it is an offence to clear native vegetation without the consent of the Native Vegetation Council (“the Council”), and prescribes two alternative methods for calculating the penalty. Each appellant was charged with one count of breaching the Act in relation to each property, amounting to four counts in total. The appellants pleaded guilty to all four counts. The Magistrate fined the first appellant, being the corporation, $29,750 in relation to the clearance of Acacia Downs, and $38,250 in relation to the clearance of Gap Road. The second appellant was fined $21,250 and $29,750 respectively. Grounds of appeal The appellants submit that the sentence was manifestly excessive. Sixteen grounds were provided in support of this submission. They are as follows:1The Magistrate erred in finding that the purchaser of the land purchased in good faith and for value “bearing in mind increased ability to conduct pivot irrigation” thus implying that the first appellant benefited from the clearing on the basis that it added to the capital value of the property. 2The Magistrate erred in holding that in the context of a regulatory offence “for there to be any mitigating effect … it is necessary for a defendant to demonstrate real and reasonable steps to attempt to comply with the Act notwithstanding the breach”.3The Magistrate erred in holding that, “I do not think I can give any weight to the unintended actual outcome, namely a loss”. 4The Magistrate failed to give any or sufficient weight to the fact that the appellants would be required to effect remediation. 5The Magistrate failed to have any or sufficient regard as against the first appellant to the fact that the second appellant was the complete author of the offending and was being separately proceeded against and punished in relation to that conduct. 6The Magistrate erred in holding that, “This is not broad acre clearing for the purpose of formally calculating the penalty, but in my view it was the removal of scattered trees to achieve the same effect as broad acre clearing and of land not otherwise available at all to the purpose the [appellants] had in mind”. 7The Magistrate erred in holding that the level of culpability for the first appellant is high by reason of the fact that the first appellant was grossly negligent in not looking at and having regard to the Form 1 setting out the encumbrances over the land. 8The Magistrate erred in holding that the offences are at the upper end of the scale of offending. 9The Magistrate failed to give adequate consideration to the good character of the appellants.10The Magistrate failed to have sufficient regard to the fact that s 26(2a) of the Act requires the Council to initiate proceedings to compel the appellants to make good the breach of the Act, and that such action will cause significant financial detriment to the appellants. 11In the alternative, the appellants sought to lead fresh evidence, that on 16 December 2008 the Native Vegetation Council made application to the Environment Resources and Development Court seeking re-establishment of native vegetation on the sites where the appellants had removed vegetation. 12The Magistrate failed to give sufficient weight to the fact that the appellants were charged with a breach of s 18(3) of the Environment Protection and Biodiversity Act 1999 (Cth) alleging the same conduct of which they were charged. 13In the alternative, the appellants sought to lead fresh evidence that on 12 February 2009, at a mediation between the Minister of Environment, Heritage and the Arts and the appellants, the second appellant agreed to admit allegations in the Federal Court and to submit to a pecuniary penalty of $125,000 in respect of the clearance of the land at Acacia Downs.14The Magistrate erred in fact and law by giving inadequate weight to the following factors:a.The early pleas of guilty;b.The full and frank admissions of the second appellant to authorities;c.The extensive cooperation shown by the appellants.15The Magistrate erred in giving disproportionate weight to the principle of general deterrence to the exclusion of other principles of sentencing. 16The Magistrate erred in imposing penalties which were grossly disproportionate to previous penalties imposed by the Magistrates Court in relation to the same offence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have read the cases provided and conclude, as was suggested by the respondent, that they offer little assistance to my consideration of this appeal. Sentencing is not a matter that is to be approached as a mathematical equation. Each matter is to be determined according to the particular circumstances of the case. The appellants have not put forward any submission to satisfy me that the penalties imposed by the Magistrate are outside the range of penalties appropriate for such offending. Conclusion For these reasons I reject the grounds of appeal. I find no basis to suggest that the Magistrate erred in his reasoning, or in the ultimate penalty that was imposed.

Ratio Decidendi

Legal Principle Established

For these reasons I reject the argument that the Magistrate erred in characterising the clearance as at the upper end of the scale of offending. The facts entirely support this conclusion. Guilty pleas and cooperation Counsel for the respondent further submitted that the Magistrate failed to give adequate weight to the early pleas of guilty, the full and frank admissions and the extensive cooperation shown by the appellants. It was submitted that the discount of 15 per cent for the pleas of guilty was inadequate in all of the circumstances. The Magistrate referred to the fact that the appellants were first offenders (at [93]), that there had been early pleas of guilty (at [11], [56] and [96]), that there had been full and frank admissions (at [56]) and that there had been extensive cooperation (at [56] and [91]). The Magistrate also referred to the strength of the prosecution case. Having considered all of those matters, the reduction by 15 per cent was within the Magistrate’s discretion and was applied in a circumstance in which the evidence against the appellants was overwhelming.[1] I am not satisfied that there was any error by the Magistrate. [1] See, for example, R v Rooke [1998] SASC 6738; R v Morgan [1977] SASC 5980.Weight to general deterrence It was also submitted that the Magistrate erred in giving disproportionate weight to the principle of general deterrence. The penalties prescribed in the Act for illegal clearance reflect the seriousness of the offence. The objects of the Act are to conserve, protect and enhance native vegetation. The environment can be so easily affected, and for such a long time, or even on a permanent basis, that parliament has seen fit to impose significant penalties against those found guilty of offences against the Act. In cases such as these, general and individual deterrence is paramount: Piva v Brinkworth (1992) 59 SASR 92 and Hemming v Neave and Neave (1989) 51 SASR 427. In my view the Magistrate did not err in regarding general deterrence as vital in this case. Disproportionate penalties Ground 16 of the appeal alleges that the penalties imposed were “grossly disproportionate” compared with other penalties imposed in relation to prosecutions for breaches of the Act. Counsel for the appellants provided a table listing 12 cases and their outcome in order to illustrate the differing penalties imposed. When counsel for the respondent questioned the relevance of such a table, given the need for penalties to be determined on the facts of each particular case, the appellants’ counsel undertook to supply copies of each case referred to for the Court’s later consideration. I have read the cases provided and conclude, as was suggested by the respondent, that they offer little assistance to my consideration of this appeal. Sentencing is not a matter that is to be approached as a mathematical equation. Each matter is to be determined according to the particular circumstances of the case. The appellants have not put forward any submission to satisfy me that the penalties imposed by the Magistrate are outside the range of penalties appropriate for such offending. Conclusion