Lamattina v Gould - [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:

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.
Many of the grounds provided relate to overlapping issues and can be clustered for consideration under the following topics.
Grounds 1 and 3 relate to the alleged error by the Magistrate in his approach to the commercial consequence of the clearance and the outcome of the carrot-growing venture.
Grounds 2, 5, 7 and 9 relate to the alleged error by the Magistrate in relation to the culpability of each of the appellants, and the factors that should have been taken into account in mitigation of the offence.
Grounds 4, 10, 11, 12 and 13 relate to the alleged error by the Magistrate in failing to take into account the civil enforcement proceedings that had been, or were to be, issued against the appellants.
Grounds 6, 8, 14, 15 and 16 relate to the alleged failure of the Magistrate to give adequate weight to relevant factors in fixing the penalties, including having regard to penalties awarded in similar cases.
Factors relevant to the appeal
This appeal involves the exercise of a sentencing discretion. Well-accepted authorities indicate that before a court can interfere with a sentencing discretion the appellant must demonstrate that the sentencing judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect his or her decision, mistook facts, or failed to take into account a material consideration. It is also accepted that a court may interfere with a sentencing discretion if the decision of a sentencing judge is unreasonable or plainly unjust, so as to indicate that although one of the identified errors cannot be found, the decision must nonetheless have been affected by an error of that kind.
It is also clear that merely because a court considers that it would have imposed a different sentence does not mean that the exercise of the discretion of the sentencing Magistrate should be set aside: Cranssen v The King (1936) 55 CLR 509.
Commercial consequence (Grounds 1 and 3)
The Acacia Downs property is freehold land. At present there are eight cleared circular areas on the property suitable for the installation of centre-pivot irrigators. Four of these areas were cleared with the Council’s permission by the previous registered proprietor, Mr Robert Hilton. Mr Hilton had also sought permission to clear further areas of land, but the Council did not provide its consent. Of the four remaining cleared areas, three form the subject of the charges against the appellants. The total of these three circular areas is approximately 73.4 hectares. Only one of these three areas was irrigated and cropped by the appellants for carrot production. The other two cleared areas have not yet had centre-pivot irrigators installed. The appellants estimate that they lost approximately $1.1 million as a result of their carrot production venture as it related to Acacia Downs.
Gap Road was leased by the first appellant for the sum of $320,000 over an 18 month period. The lease contained an option to purchase Gap Road for $1.4 million, with the lease payments to be offset against the purchase price. At present there are twelve cleared circular areas on the property. All twelve areas were cleared by the appellants following their acquisition of the leasehold interest, and are all the subject of the charges against the appellants. The total area cleared is approximately 274.8 hectares. Six of the 12 areas were irrigated and cropped by the appellants. Since the appellants disposed of their interest in Gap Road, three further areas have been irrigated and cropped. Without delving into the intricacies of the overall capital financial outlay and return on Gap Road, the appellants submitted before the Magistrate that the result was more or less even after the leasehold interest was disposed of. There was therefore no loss claimed by the appellants in relation to the carrot production venture as it related to Gap Road.
There was no particularised evidence before the Magistrate as to income and drawings by the directors of the first appellant. Such information as was before the Magistrate was very broad and covered the years 2003 to 2007. Looking at the limited figures available, it shows that in the financial years ending 2005, 2006 and 2007, the directors’ income was about two thirds greater than it had been in the previous two years. However, the income derived was minimal being $1,265 to $1,280 per director for each of the three years. There was no information about the cash drawings taken by the directors save in the financial year ending 2007, which indicated that between $56,000 and $65,000 in general, was drawn by each of the directors. In relation to income, there was no information which would enable any conclusion one way or the other to be drawn as to whether the clearance, and subsequent irrigation and cultivation of carrots on the cleared land, produced a greater income than might have been derived if there had been no clearance and irrigation of those portions of land.
At some point after the clearance was detected the appellants sold Acacia Downs, and their leasehold interest in Gap Road was in some way disposed of. The sale of both properties occurred before the appellants could have obtained any sufficient return on their capital investment. The clearance, and in some cases the cropping and irrigation, of the numerous areas involved a significant financial commitment. It is clear that it was the hope of the appellants that the clearance and subsequent installation of centre-pivot irrigators would result in a financial benefit through an increase in the production capacity of the land. Unfortunately, it was eventually discovered that the land was unsuitable for the production of carrots. It was somewhat a rather unfortunate farming decision.
The loss claimed by the appellants is the background to Grounds 1 and 3. The appellants took issue with the Magistrate’s reasons at [32]:
However the properties are now sold and no ongoing commercial advantage accrues to the defendant by reason of his continued use of the land but the unfortunate fact remains that by reason of the defendants’ clearance, ongoing use of the land accrues to the subsequent purchaser from the defendant. Seemingly the subsequent purchaser purchased in good faith and for value bearing in mind increased ability to conduct pivot irrigation. (Emphasis added).
And also his Honours comments at [62]:
I was asked to take into account that whilst there was commercial motive there was no ultimate financial gain, just a very significant endeavour but no financial gain … However, I appreciate there was no financial gain but what can not be overlooked is the defendants went into this venture and cleared the land indifferent to the consequences with the full intention of making a financial gain and possibly a significant one. I do not think I can give any weight to the unintended actual outcome, namely a loss. (Emphasis added).
Neither individually, nor in combination, do these findings indicate error by the Magistrate.
The Magistrate was correct in finding that the clearance provides the opportunity for increased irrigation of the land, with a consequential increase in commercial value, and that both accrue as a matter of course to a subsequent purchaser of the land. In the case of Gap Road it is clear that the subsequent lessee, or the owner, has taken advantage of the opportunity created by the appellants by cropping and irrigating a further three cleared areas. This was a commercial advantage not previously available. It is the reality that both properties have now acquired a higher commercial value than would otherwise have been the case had the appellants not cleared the land. The Magistrate did not err in his concluding that this was the case.
The key aspect of Ground 1, however, is the submission that the Magistrate erred in concluding that the appellants received a benefit from this increased capital value. I reject this submission. The Magistrate did not either expressly or impliedly ascribe the benefit of any added capital value of the property to the appellants. On the contrary, as indicated in [62], he was conscious of the fact that the appellants had enjoyed no financial gain at all.
In relation to Ground 3, the appellants submitted that the Magistrate erred when he stated that he could not give any weight to the loss incurred by the appellants when determining the appropriate penalty. The Magistrate’s use of the word “loss” at [62] in this context was, in my opinion, a reference to the $1.1 million loss the appellants contend to have suffered as the net result of the carrot growing venture.
In my view, it was not relevant to the general sentencing discretion of the Magistrate that the appellants suffered a loss by reason of their over capitalisation in two properties not suitable for carrot growing. The aggravating feature of conduct of this kind is the exploitation of the environment for a commercial purpose. The failure of the commercial purpose does not counterbalance this aggravating feature. This may, however, be a consideration when evaluating the time needed to pay a fine imposed. There was no evidence put before the Magistrate indicating that the appellants were unable to pay a particular penalty amount.
The rejection of this ground of appeal is consistent with the approach taken by the Court in relation to monies invested in criminal enterprises. It is clear on the authorities that legitimate monies invested in a criminal enterprise cannot be taken into account in mitigation of a penalty: R v Gee (1988) 148 LSJS 286; Whisson v Mead (2006) 95 SASR 124. In this case the appellants’ loss was directly related to its offending conduct, being the costs of illegally clearing land that was unsuitable for the crop being sown.
For these reasons I would reject Grounds 1 and 3 of the appeal.
Culpability of the first appellant and matters in mitigation (Grounds 2, 5, 7 and 9)
The general circumstances relevant to the culpability of the appellants can be summarised briefly for the purpose of these reasons. The first appellant is one of the largest carrot growers in Australia. In the general course of its business it has had dealings with the Victorian Department of Sustainability and Environment in respect of numerous Victorian rural properties. The second appellant provided evidence of these dealings, stating that the officers within the Victorian Department were always helpful and proactive and had, on occasions, visited properties in order to facilitate the processing of clearance applications.
It is therefore quite apparent that both appellants knew that land clearance involved consideration of that land’s environmental significance, and that it was necessary to go to the relevant state department to find out what legal restrictions were in place.
It was an agreed fact that the Form 1 Statement prepared for the sale of the Acacia Downs property to the first appellant contained a decision notification from the Department explaining that an application to clear native vegetation on Acacia Downs had been approved, and that other native vegetation clearance applications had been refused. The acknowledgment of receipt of the Form 1 Statement was signed by the second appellant’s son (one of the other directors of the first appellant). The second appellant asserted that he did not read the Form 1 Statement, and was therefore unaware of the rejected applications. Further, the lease agreement for the Gap Road property contained a clause prohibiting the clearance of any vegetation without the prior written consent of the registered proprietor. The second appellant asserted that he was not aware of the clause.

Following the purchase of Acacia Downs, the second appellant spoke with an officer from the Department. The second appellant and the officer provided different versions of the precise conversation, but it was agreed that the perception held by the second appellant after the conversation was that any discussion with the Department about clearing the land would not occur for at least three months, and could take up to six months. As a result, the second appellant was disgruntled and frustrated by the process, and ordered the clearance without seeking any further clarification of his, or the first appellant’s, legal obligations. This decision was motivated by the pressing financial considerations that the appellants were facing, which included significant losses suffered as a result of a fire in a packing shed in Victoria, and the efforts made to keep some 50 employees in employment.
The clearance process was a significant operation. It involved the use of heavy equipment over a period of 6 months. At no time did the second appellant return to the Department, or seek any further information as to his or the first appellant’s legal obligations. Also, no consent was obtained from the lessor of Gap Road. This was quite astounding behaviour for an experienced farming entity, even if the lease agreement clause had not been read.
The Magistrate concluded at [51] that the second appellant was “indifferent as to the seriousness of the consequences” and “was unaware of the seriousness of the consequences simply by reason of his own lack of proper enquiry”. He was correct in this conclusion.
I now turn to the grounds of appeal in relation to the culpability and matters of mitigation.
The first error alleged by the appellants in the Magistrate’s approach is his Honour’s comments at [47]:
Further the complainant says that in the context of a regulatory offence for there to be any mitigation effect the Supreme Court has held that it is necessary for a defendant to demonstrate real and reasonable steps to attempt to comply with the Act notwithstanding the breach. Dal Piva v Maynard [2000] SASC 349 was cited as reference.
In Ground 2, it was submitted by the appellants that the case of Dal Piva was not authority for the proposition, and further, that the Magistrate had incorrectly held that the only relevant mitigating feature was whether the appellants had taken real and reasonable steps to comply with the Act.
It was rightly conceded by the respondent that Dal Piva was an incorrect reference. Instead, the respondent submitted that the proposition referred to by the Magistrate in [47] was to be found in other authorities, namely Hemming v Lukin (1996) 67 SASR 248 and Hemming v Mundy (2001) 213 LSJS 453. I am satisfied that the two latter authorities support the respondent’s submission that a relevant mitigating factor in strict liability offence prosecutions is any positive steps taken by a defendant in compliance with the statutory requirement.
Counsel for the appellants correctly conceded before the Magistrate, and before me, that this mitigating feature was not available to the appellants. The appellants’ argument was that the Magistrate erred in his treatment of this issue as he held that “real and reasonable” steps was the only relevant mitigating feature to be taken into consideration. The appellants submitted that the Magistrate did not take into account numerous other mitigating features, such as: the pressing financial concerns that led to the offending behaviour; the frustration experienced by the second appellant after his contact with the Department; and the fact that the appellants made a loss on the venture.
I do not agree with the appellants’ characterisation of the Magistrate’s comments at [47]. When the Magistrate’s statement is viewed in the context of the entirety of his reasons, his Honour was not indicating that the existence of “real and reasonable steps” was the only element of mitigation that could be taken into account. On the contrary, the Magistrate clearly recognised other relevant mitigating features at [54] to [55], and from [56] to [80] under the heading “Further Matters Taken into Account for the Defendant”. Further, in the Magistrate’s conclusion as to penalty at [84] to [97] his Honour clearly set out the matters he had taken into account, which included all of the mitigating features contended for by the appellants’ counsel.
I conclude that the Magistrate at [47] was simply referring to one aspect of mitigation which is particularly relevant when dealing with a strict liability offence. Accordingly, no error was made in holding that the appellants were required to show that real and reasonable steps were taken to comply with the Act, and that this feature was unavailable to the appellants in this case. Ground 2 of the appeal is dismissed.
Grounds 5, 7 and 9 of the appeal focus on the alleged erroneous approach taken by the Magistrate with regard to the culpability of the first appellant, and the good character of both appellants.
Culpability of the first appellant
Counsel for the appellants submitted that the Magistrate should have treated the first appellant, being the corporation, “less severely” than the second appellant because the second appellant was the complete author of the offending. The appellants’ counsel also took issue with the Magistrate’s finding at [89] that the first appellant’s failure to have regard to the Form 1 Statement in relation to the Acacia Downs property was “grossly negligent”:
The corporate defendant is grossly negligent in this regard. It seems to me an astonishing level of negligence to invest such significant sums invested with a view to clear the land to grow carrots and would not look at and have regard the Form 1 which set out the encumbrances over the land. It clearly sets out the prior refusal and clearly set out the very high environmental values of the land and that this level of culpability for the company must be regarded as high for that reason as well.
In my view the Magistrate was not in error in ascribing culpability to the corporation when it was the second appellant who was the author of the breach. It was the first appellant which owned and leased the land, and the clearance was for a farming activity conducted by the first appellant. The actions of the second appellant in approaching the Department, and then ordering the clearance, were the actions of a director authorised by the first appellant to make these types of decisions. A corporation may only act through its directing minds: Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705.
I also note that there was no attempt by the first appellant to utilise s 40 of the Act whereby a defence to a charge may be contended if the defendant can prove that the offence was not committed intentionally, and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. Both appellants pleaded guilty.
Finally, there is an evidentiary presumption pursuant to s 34(2) of the Act that when in a prosecution for an offence it is proved that vegetation has been cleared, it is to be presumed in the absence of proof to the contrary that the vegetation was cleared by the owner and occupier of the land on which it was growing. In this instance the owner and occupier was the first appellant.
Taking into account the factual circumstances in this case, the first appellant was clearly responsible for the clearance albeit that it acted through the mind of the second appellant. Bearing in mind that the purpose was a commercial one to benefit the company, that purpose must be ascribed in this instance to the first appellant insofar as this is an aggravating feature.
With regard to the Magistrate’s characterisation of the first appellant’s actions as “grossly negligent”, I agree that this was an accurate description of the first appellant’s role in the offending. A Form 1 Statement is an important document which sets out the details, and limitations, of a property to a potential purchaser. The complete disregard of the contents of the Form 1 Statement when making decisions as to the use of the land was grossly negligent, particularly for such a large and experienced farming entity. The Department’s decision was attached to the Form 1, it was not simply referred to in a paragraph which could have been easily overlooked.
In my view, the Magistrate made no error in his approach to penalising the corporation. I dismiss Grounds 5 and 7 of the appeal.
Good character
Counsel for the appellants submitted that the Magistrate failed to give adequate weight to the good character of both appellants. A significant portion of the Magistrate’s reasons set out in some detail the uncontested evidence of the second appellant’s good character, and the lack of any prior convictions for both appellants. The penalties ascribed do not suggest to the contrary. I dismiss this ground of appeal.
Civil enforcement provisions (Grounds 4, 10, 11, 12 and 13)
These five grounds of appeal relate to the alleged failure of the Magistrate to take into consideration the likely financial impact of state and federal civil enforcement proceedings that had been, or were going to be, issued against the appellants as a consequence of the clearance.
In relation to the state civil enforcement proceedings, s 26(2a) of the Act requires the Council to initiate civil enforcement proceedings against any person convicted of an offence against s 26(1) in order to compel the offender to make good the breach. As the conviction is the trigger for the civil enforcement proceedings to be issued, this had not occurred at the time of the hearing before the Magistrate.
The existence of federal civil enforcement proceedings was known at the time of the hearing before the Magistrate, but the Magistrate was informed that the appellants intended to dispute the allegations. The proceedings related to the impact of the appellants’ actions on the Red Tailed Black Cockatoo (a listed threatened species included in the endangered category) in contravention of s 18(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the Commonwealth Act”).
In support of the appellants’ submissions that the impact of the civil enforcement proceedings ought to be given more weight, counsel for the appellants sought to tender fresh evidence, being an affidavit of the second appellant. The second appellant deposed that:
·The federal proceedings had settled with the discontinuance of the proceedings against the first appellant, on the condition that the second appellant pay the sum of $110,000 by equal monthly instalments of $10,000, and $22,500 for legal costs.
·The state proceedings are continuing. The orders sought by the Council include:
-The preparation and implementation of a comprehensive rehabilitation management plan for works to rehabilitate and re-establish prescribed native vegetation species on the cleared areas.
-The payment into the Native Vegetation Fund of an amount to be determined by the Court to be appropriate in the circumstances on account of any financial benefit the appellants have gained as a result of the offence.
-The publication of an advertisement in both a regional and daily newspaper containing the details of the offence, the environmental consequences flowing from the breach and the terms of the orders made by the Court.
The application to tender fresh evidence raises the question of whether it is appropriate to take into account events which have occurred after sentence. The existence of federal proceedings was a fact before the Magistrate, as was the fact that civil enforcement proceedings would be issued against the appellants under the Act. Counsel for the appellants submitted that the affidavit ought to be admitted because the contents disclose new and further aspects of these facts that could not have been known at the time.
I agree that it is appropriate in this case to admit the second appellant’s affidavit insofar as the matters deposed within the affidavit assist me in understanding the extent and implications of the civil enforcement proceedings. I refer to R v Smith (1987) 44 SASR 587. However, as I discuss hereafter, I do not agree that the extent and implications of the civil enforcement proceedings establish any error by the Magistrate.
State proceedings
The approach taken by the Magistrate with regard to the state proceedings is discussed in [64] of his reasons:
Counsel admits that it is somewhat problematical to those that might determine those proceedings given that the defendant no longer owns the land, it is owned by a third party. It seems unlikely that the subsequent purchaser or third party who purchased in good faith is going to be prejudiced by his now use of the land or purchase of the land. It is suggested by counsel that some more creative solutions might be applied, namely the compulsory purchase of other land or other place to remediate. It seems to me I can only give very little weight to this. I do accept that there will be some proceedings, the outcomes it seems to me are entirely uncertain.
It was submitted that the Magistrate was incorrect in finding that “very little weight” could be attached to the likelihood that the outcome of the state civil enforcement proceedings would have a financial impact on the appellants. I do not agree that the Magistrate erred. The Magistrate acknowledged that a civil enforcement proceeding would be issued, but quite properly concluded that the likely outcome of that proceeding was uncertain. The Magistrate could hardly be asked to take into consideration a financial impact that was entirely incapable of calculation at the time of the hearing. Similarly, I cannot be asked to do the same in the current circumstances because the state proceeding remains incomplete.
In any event, the legislation itself provides that both criminal and civil enforcement proceedings will flow from a breach of the Act. The setting of a maximum penalty for a criminal conviction by s 26(1) of the Act recognises that the offender is liable to have civil enforcement proceedings issued against him or her, and that the resolution of these proceedings is likely to involve a financial element. The fact that a person convicted of a breach of the Act will eventually be ordered, in some way, to make good the breach in a civil proceeding, is not a consideration of any great weight for the judicial officer presiding over the criminal proceeding.
With regard to the relevance of the appellants’ expressed indication at the hearing before the Magistrate that they would agree to effect remediation of the land, this is also not a consideration of any great relevance to sentencing in this matter. In WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147, the Full Court was asked to consider the significance of a defendant’s offer to effect restitution in relation to a WorkCover prosecution when a restitution order was required to be made by the Court in any case by the relevant legislation. Duggan J held at [26] that the offer could be considered relevant to a consideration of the defendant’s contrition, but could not be a mitigating feature given the offer was simply an indication that the defendant was prepared to “facilitate a course of recovery which the Corporation (WorkCover) was entitled to pursue in any event.” In this case, remediation is a course that is open for the Environment, Resources and Development Court to direct in the civil enforcement proceedings against the appellants. This suggests, as indeed the Magistrate found, that “very little weight” can be applied to the appellants’ intentions to assist with remediation.
I dismiss Grounds 4, 10 and 11 as misconceived.
Federal proceedings
The second appellant’s affidavit deposes that the financial impact of the federal proceedings has been determined. However, this does not alter my view that it is not a relevant mitigating factor that ought to be taken into account. The appellant was not charged with a criminal offence under the Commonwealth Act. The federal proceedings relate to the civil penalty provisions that enable the Commonwealth to seek payment of an amount to compensate for the loss and damage caused by a defendant’s contravening conduct. Indeed, s 483 of the Commonwealth Act clearly states that the contravention of a civil penalty provision is not an offence.
This is not a case where the appellants have been charged with two offences with overlapping elements, and the risk arises that they could incur a double penalty, or suffer a double punishment. In one case a fine has been imposed as a consequence of an illegal clearance of vegetation, in the other an amount has been agreed between the parties to enable remediation of the impact the appellants’ actions have had on the Red Tailed Black Cockatoo. The subject matter is different in each case.
If anything was to be taken into account at all its only possible relevance may have been with regard to the agreement reached in the federal proceedings. It is unknown whether this agreement, which was reached after the sentencing in this case, took into account the penalty imposed by the Magistrate. It is not for the Magistrate to second guess what otherwise might happen under federal legislation which was dealing with a different aspect, namely the effect on a specified endangered species of bird, particularly when the appellants were disputing the allegations.
There was no error by the Magistrate in concluding that no great weight could be given to the potential financial impact of either the state or the federal civil enforcement proceedings on the appellants. I therefore reject this argument.
Relevant factors when fixing penalty (grounds 6, 8, 14, 15 and 16)
The maximum penalty for a breach of s 26(1) of the Act is a sum calculated at the “prescribed rate” for each hectare (or part of a hectare) of the land in relation to which the offence was committed, or $100,000, whichever is greater. The “prescribed rate” is calculated pursuant to s 26(3):
the prescribed rate means –
(a)the amount (if any) per hectare by which the land in relation to which the offence was committed has increased in value as a direct result of the commission of the offence; or
(b) $2 500,
whichever is the greater.
The Magistrate was invited by the parties to calculate the penalty on the basis of the $100,000 maximum, and not on a per hectare basis as it was agreed that this basis was inappropriate in all of the circumstances.
The Magistrate determined that an appropriate starting point was a penalty approaching 50 per cent of the maximum penalty of $100,000. The Magistrate held that the clearance achieved the same effect as “broad acre clearance” and was therefore at the upper scale of offending. The Magistrate reduced the penalty by 15 per cent to take into account the appellants’ plea and cooperation with authorities. The Magistrate declined to utilise s 18A of the Criminal Law (Sentencing) Act 1988 (SA) because the offences related to two different properties. The Magistrate also declined to apply the totality principle because the final penalty was appropriate in all of the circumstances. The appellants have alleged a number of errors by the Magistrate in this approach.
Characterisation of clearance as amounting to “broad acre clearance”
Grounds 6 and 8 of the appeal allege that the Magistrate erred in his characterisation of the clearance as having the same effect as “broad acre clearance” and that the clearance was at the upper end of the scale of offending. The appellants submitted that the meaning of broad acre clearance is to denude or take everything of value within an area cleared. It was contended that in this case the clearance was of individual trees interspersed with non-native pasture, and that therefore it was wrong to equate this type of clearance with “broad acre clearance”.

In considering this submission it is necessary to consider the extent and nature of the clearance. There were two separate and quite distinct locations that underwent the clearance process. At Acacia Downs 141 trees were cleared, which amounted to 2.9 hectares of canopy. In relation to Gap Road, 130 trees were removed amounting to 1.9 hectares of canopy. The canopy of the cleared area was considered to be intact with its pre-European occupation condition, but the undergrowth was not totally intact because it had been partly degraded by the introduction of non-native grasses. The cleared area at Acacia Downs had been assessed in the past as containing both endangered and vulnerable types of “grassy woodlands”. It was not disputed that the vegetation cleared at Gap Road was of the same quality.
The evidence was that the clearance was such that 73.4 hectares at Acacia Downs and 274.8 hectares at Gap Road were freed of vegetation to enable the centre-pivot irrigators to be installed. The clearance resulted in the destruction of an entire endangered community of vegetation, which had previously provided a significant habitat and source of food for native wildlife, including vulnerable and rare species of native birds. Ultimately, therefore, the effect of the clearance was the same as a broad acre clearance.
The appellants’ counsel’s submission that this was not a serious type of clearance, along with the extreme hypothetical analogies he provided in support of this submission, indicate a misunderstanding of what was lost by the clearing of this land. The number of trees cleared and their proximity to each other is not the only relevant feature in determining that a clearance had the same effect as a broad acre clearance. All of the other features I have discussed go to establishing that the Magistrate did not err in his treatment of this issue.
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
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.