Lewis v Mangano and Mangano
[2015] VSC 592
•28 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 00892
IN THE MATTER OF an appeal on a question of law pursuant to s 272(1) of the Criminal Procedure Act 2009
BETWEEN
| PAUL LEWIS and MORNINGTON PENINSULA SHIRE COUNCIL | Appellants |
| v | |
| ANTOINETTA MANGANO | Respondent |
S CI 2015 00893
| PAUL LEWIS and MORNINGTON PENINSULA SHIRE COUNCIL | Appellants |
| v | |
| SANTO MANGANO | Respondent |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2015 |
DATE OF JUDGMENT: | 28 October 2015 |
CASE MAY BE CITED AS: | Lewis & Anor v Mangano & Mangano |
MEDIUM NEUTRAL CITATION: | [2015] VSC 592 |
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JUDICIAL REVIEW – Question of law – Manifest inadequacy – Sentencing guidelines – Specific and general deterrence – Gravity of offending – Breach of the Planning and Environment Act 1987 (Vic) – Illegal vegetation removal – Illegal earthworks - Planning and Environment Act 1987 (Vic) s 126, s 127 – Criminal Procedure Act 2009 (Vic) s 272, s 290 – Sentencing Act 1991 (Vic) s 5, Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr J Shaw | Mornington Legal |
| For the Respondents | Mr M Simon | LFS Legal |
HER HONOUR:
Background
On 5 February 2015 in the Frankston Magistrates’ Court, the respondents were convicted and fined an aggregate of $500 each for breaching s 126(1) of the Planning and Environment Act 1987 (Vic) (‘the Act’). Antoinetta Mangano was found guilty of two breaches of s 126(1) of the Act and Santo Mangano was found guilty of three breaches of s 126(1) of the Act.
The appellants now appeal against the sentences imposed by Magistrate Smith on questions of law pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic) (‘the CPA’). There are two proceedings on foot, proceeding number SCI 2015 00892, in which Antoinetta Mangano is the respondent, and proceeding number SCI 2015 00893, in which Santo Mangano is the respondent. Paul Lewis and Mornington Shire Council are the appellants in both proceedings. While there are separate proceedings on foot, the notices of appeal and the affidavits in support and legal submissions in the proceedings are effectively identical. As the two separate appeals relate to substantively similar subject matter, I will aggregate the appeals together in my reasons below.
The questions of law in the appellants’ notices of appeal dated 26 February 2015 are:
(a)Did the learned Magistrate err by imposing a sentence on the respondents that was manifestly inadequate?
(b)Did the learned Magistrate err by imposing a sentence on the respondents that was not reasonably open to his Honour in all the circumstances of the case?
The grounds of appeal are:
(a)The sentences imposed were manifestly inadequate.
(b)The sentences imposed were not reasonably open to the learned Magistrate in all the circumstances of the cases.
The appellants seek orders that the appeal be allowed, that Magistrate Smith’s sentences be quashed and that the respondents be re-sentenced.
The appellants rely on the affidavits of:
(a) Anthony Donald Snooks sworn 5 March 2015 and 1 May 2015; and
(b) Brett Andrew Whitwam sworn 4 May 2015.
The respondents rely on the affidavits of:
(a) Antoinetta Mangano sworn 1 April 2015; and
(b) Santo Mangano sworn 1 April 2015.
Both parties relied on written submissions.
Antoinetta and Santo Mangano pleaded guilty to two and three charges respectively of failing to comply with a planning scheme contrary to s 126 of the Act. An additional five charges were withdrawn. The charges related to illegal removal of vegetation from a property at 4 Bembridge Road, Somerville (‘the property’) and an adjoining parcel of government land known as the North Westernport Conservation Reserve.
The respondents pleaded guilty to the following charges:
(a) Charge 1: illegal vegetation removal contrary to the Environmental Significance Overlay, being part of the Planning Scheme that affected the property from where the vegetation was removed;
(b) Charge 4: illegal vegetation removal contrary to the Environmental Significance Overlay, being part of the Planning Scheme that affected the North Westernport Conservation Reserve from where the vegetation was removed; and
(c) Charge 7: illegal earthworks being carried out on the North Westernport Conservation Reserve contrary to the Environmental Significance Overlay.
With regard to the first, fourth and seventh charges, the Council alleged that the respondents removed vegetation without a valid planning permit contrary to clause 42-01-2 of the Environmental Significance Overlay Schedule 5 at the property and the North Westernport Conservation Scheme.
At the 5 February 2015 hearing, solicitor Anthony Snooks appeared on behalf of the appellants and Michael Simon of counsel appeared for the respondents. An agreed summary of facts was read to the Magistrate. A bundle of photographs were provided to the Magistrate during the hearing, including:
(a) aerial photographs of the property and surrounding areas;
(b) aerial photographs of the property and the neighbouring North Westernport Conservation Reserve;
(c) photographs of the property taken by Council Planning Compliance Officer Patrick Murphy; and
(d) photographs of the North Westernport Conservation Reserve.
The hearing was brief, and it is convenient to set out the transcript in some detail:
SNOOKS: Your Honour I have prepared a summary and I can hand a copy of it.
HIS HONOUR: Thank you very much.
SNOOKS: I also have some photographs, would you like these now?
…
SNOOKS: Your Honour I will read the summary for the record.
…
SNOOKS: These matters relate to the removal and destruction of vegetation contrary to the requirements of the Peninsula Planning Scheme. In particular, the accused removed and destroyed native vegetation at 4 Bembridge Road, Somerville and the adjacent public land being the Westernport Nature Conservation Reserve between 8 January 2014 and 29 September 2014. 4 Bembridge Road, Somerville is an irregular shape allotment approximately 9.4 hectares in area. A dwelling and outbuildings are situated within the western half of the property. Apart from areas that contain buildings or previously been cleared of vegetation an extensive coverage of native vegetation is situated on the property. The land and the public land exist significant ecological value attributed to the high quality of native vegetation and its habitat value. The public land is owned by the Department of Environment and Primary Industry. Public land abounds Watsons Creek and accordingly situated adjacent to the southern eastern part of the northern boundary of the land. The public land forms part of an area of substantial environmental significance such that it has been included as a RAMSA site. The conventional wetlands, called the RAMSA Convention is an inter-governmental treaty that provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. Approximately 1700 square metres of the public land is of specific relevance and is land that directly abuts part of the south eastern boundary of the land at 4 Bembridge Road. The planning controls, there is a suite of planning controls over both lands before Bembridge Road, Somerville, Green Wedge Zone 2 Schedule 2, Environmental Significance Overlay Schedule 5 and Schedule 18 and Clause 52.17 of the Native Vegetation Provisions. The public land is zoned public conservation and resource zone. It has Environmental Significance Overlay 5 and Clause 52.17 Native Vegetation Provisions. No planning permit has been issued for the removal of the land, for the removal of vegetation on the land or the public land. Your Honour, that’s the summary.
…
SNOOKS: We have had some cordial discussions outside and just before I sit down I’ll tell you that my learned friend and I agreed that their clients would pay the costs of counsel fixed in the amount of $4,000 …
HIS HONOUR: All up, so a split between the two of them $2,000 each.
SNOOKS: Yes sir.
…
SIMON: Thank you, Your Honour. Antoinetta Mangano, Your Honour, is 60 years of age. She has no prior convictions and she bought this land in April 2013. The tenant who is there in situ was the owner of the land. This property is her and her husband’s retirement pension. Her husband, Your Honour, is 65 years of age. He is a, he does concreting works and both of them take this matter very seriously, Your Honour. Prior to, sorry after the purchase of the property my clients went to the local Shire and sought advice about the property that they were purchasing. If I could hand up to Your Honour, I’ve shown my friend these documents.
HIS HONOUR: Thank you.
SIMON: That is a plan that was given to my clients together with other information attached to the back thereof. My clients both are happy to give evidence before Your Honour that they spoke with the council officer who they described as being a female person with blonde hair and a British accent who told them that there were no problems in the inside of the property. Your Honour can see in the photographs there next to the yellow line is the house property and it goes down the road going down there and they say that they were advised by the officers that there were no difficulties in the area that is contained inside that yellow line.
HIS HONOUR: That means that they were free to do what they wished.
SIMON: They wanted to know can we cut down some trees because they wanted.
HIS HONOUR: Okay.
SIMON: The trees that they’ve cut down they are, there had been a bushfire through there. The tenants say – says, was complaining about trees were falling down. It wasn’t a plan to market the trees or anything else. They were cut down and left there. When officers came around they were all in situ. It wasn’t, they felt that they’d done the right thing. Well here today they accept that notwithstanding.
HIS HONOUR: It wasn’t done for the purpose of building or anything like that.
SIMON: No.
HIS HONOUR: Mainly to protect themselves from bushfires.
SIMON: In the back area there was, they understood their property went to where the fence line was on the river. It’s not the case that there were posts along the river.
HIS HONOUR: So that they were jerk up along the property ends?
SIMON: Yes well that’s right. They had, no they were not entitled to … They did put the fence up but they weren’t entitled to remove the vegetation to a degree to re-establish the fence. They come along here and they say well look and as I said they both have been very anxious about this. They both are quite taken aback by it.
HIS HONOUR: What do you say I should be doing, Mr Simon?
SIMON: Well, I would be urging Your Honour to look at, they’ve got a fine, sorry they’ve agreed to pay the costs. They have pleaded guilty to the offence. I would be urging Your Honour to look at a small fine, which will reinforce their position but they are really extenuating circumstances.
HIS HONOUR: Mr Snooks, do you have submissions on sentence?
SNOOKS: Your Honour, I’m very limited in what I can say on sentence.
HIS HONOUR: Sure, it is just that what Mr Simon is putting is look it’s not an offence motivated by greed. It’s not an offence motivated by some sort of ill purpose. They thought they were doing the right thing. They got it wrong.
SNOOKS: Well I think that’s right. The circumstances do mitigate what would otherwise be quite a large penalty.
HIS HONOUR: Absolutely there would be.
SNOOKS: I have discussed the upper limit of these penalties with my friend outside.
HIS HONOUR: They would be massive, that’s why I direct those questions to Mr Simon. If they are getting the property ready to develop or something potentially to develop as a building site or if they are chopping the trees down in ought to flog up the firewood to pay money, well then you know the fines would be very substantial indeed.
SNOOKS: That’s correct but I think sir we have to look at the range of penalties available so that this is a range of penalties and under this particular provision of which they are charged recognised by the State government as having a very very serious consequences.
HIS HONOUR: I think it’s got 40 penalty units doesn’t it for a first offence?
SNOOKS: No it’s a 1200 penalty units sir.
HIS HONOUR: Look better clarify that.
…
SNOOKS: … It is definitely 1200 sir.
SNOOKS: If you are looking at per charge offence of 160 to 170k, so even with those mitigating circumstances, I still think sir that even mitigated down any fine should be of such an amount that it needs to send a signal to others that this sort of behaviour can’t be tolerated in any form and also sir I should say that it should be common knowledge these days that before you do any clearing on any land in any sort of areas on the Mornington Peninsula in particular you need to get advice. You need to get proper advice. Council doesn’t have a record on that conversation. I’m not suggesting that it doesn’t exist. I’m just saying that Council doesn’t have a record of that conversation taking place and it is difficult to assert anything or attach any value to the assertion but I would be urging Your Honour to treat this matter quite seriously. …
SIMON: Well, just the one in my submission as it was rightly pointed out people should take steps to make sure they’re doing the right thing. My clients say they did too Your Honour. That must take them out of the ordinary position where they should be a penalty, a high penalty. In this case they have done everything they thought was sufficient. …[1]
[1]Affidavit of Najihah Idris sworn 6 October 2015, Exhibit NI-1.
The Magistrate ordered that:
(a) the five withdrawn charges be struck out;
(b) the respondents pay an aggregate fine of $500 each on the remaining charges against them (two against Antoinetta Mangano, three against Santo Mangano);
(c) the respondents pay $2000 costs; and
(d) the orders be stayed to 5 April 2015.
The Magistrate gave reasons for his sentencing orders:
… I accept that this clearing of the land has been made through an error on your part. You had gone to the council officers, you got advice, and thought you were free to do what you did, but you were wrong. The offence is a very serious one designed to protect and take care of native vegetation in Victoria from being spoiled, and you have spoiled quite a bit of it. I accept however that this was not done for any financial benefit, it wasn’t done for any ulterior motive, it was done simply because of your concerns in relation to fire issues and the potential danger that it presented. The evil in what you have done is that you had not taken sufficient precautions in my view before you acted. Nevertheless, I regard the offence as being at the lower end of the scale. You are each fined $500. I further order you each pay $2,000 by way of costs. I have lowered the fines substantially from what I would otherwise order because I don’t think there was an ulterior or financial motive, or other motive involved, it was simply a mistake and you should have taken more care. I have had regard to the fact that there is a significant amount of costs involved and I have borne in mind the figure of costs when setting the level of the fine. …
Pursuant to s 127 of the Act, the maximum penalty for each charge was 1200 penalty units ($177,132). The maximum penalty therefore available to the Magistrate in respect of the two charges against Antoinetta Mangano was $354,264, while the maximum penalty in respect of the three charges against Santo Mangano was $531,396.00.
The law
In relation to the sentencing principles applicable to the present case, the parties were in substantial agreement.[2] The key difference in the parties’ positions largely lay in the application of the principles to the present matter.
[2]Transcript of Proceedings, Paul Lewis and Mornington Peninsula Council v Antoinetta Mangano; Paul Lewis and Morning Peninsula Council v Santo Mangano (Supreme Court of Victoria, S CI 2015 00982, S CI 2015 00983, Zammit J, 15 October 2015) (‘T’) 24, Lines (‘LL’) 1-3.
Section 5(2) of the Sentencing Act 1991 (Vic) provides guidelines of what the Court must take into regard when sentencing. These include the maximum penalty; current sentencing practices; the nature and gravity of the offence; the offender’s culpability and degree of responsibility for the offence; any injury, loss or damage resulting directly from the offence; whether the offender pleaded guilty to the offence (and if so, at what stage); the offender’s previous character; and the presence of any mitigating factors. Section 5 also provides that sentences can be imposed to provide specific and general deterrence.
Under s 272(1) of the CPA, an appeal may be brought to the Supreme Court of Victoria from a final order of the Magistrates’ Court in relation to a question of law. The issue of manifest inadequacy of sentence has been previously held by this Court to be an issue that raises a question of law.[3]
[3]Y v F [2002] VSC 166, [14]; DPP v Moroney & Ors [2009] VSC 584, [21]-[22].
However, something more than manifest inadequacy alone is required to warrant intervention in relation to sentencing.[4] As the High Court has held in House v the King[5] and Hili v the Queen,[6] it is not enough to warrant intervention for the appellate court to consider that it would have imposed a different sentence. It must be determined that the Magistrate misapplied applicable principles or made an error in exercising his or her discretion.[7]
[4]DPP v Moroney & Ors [2009] VSC 584, [22].
[5](1936) 55 CLR 499.
[6](2010) 242 CLR 520.
[7]House v the King (1936) 55 CLR 499, 504-5; R v Alpass (1993) 72 A Crim R 561, 662-3; Lowndes v R (1999) 195 CLR 665, 671–2, [15]; Hili v the Queen (2010) 242 CLR 520, 538-9 [59].
In DPP v Bright, Redlich JA explored what is required to warrant appellate intervention upon an appeal by the DPP against a sentence, stating:
… manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.[8]
[8]DPP v Bright [2006] VSCA 147, [10] (citations omitted).
These principles were confirmed in the recent Court of Appeal case of DPP v Zhuang (‘Zhuang’),[9] where the Court of Appeal explored appeals against sentencing and the concept of manifest inadequacy. The Court of Appeal in Zhuang relied on DPP v Karanzisis,[10] where the majority (Ashley, Redlich and Weinberg JJA) stated the following on manifest inadequacy:
Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[11]
[9][2015] VSCA 96, [43].
[10]DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis (2010) 31 VR 634.
[11]Zhuang [2015] VSCA 96, [40].
The Court of Appeal in Zhuang also warned of the limited benefit of considering sentences in other cases when determining a sentence to impose. The Court of Appeal stated:
Recourse to other cases will, however, only provide some guidance as to the appropriate sentence where, having regard to the offending conduct, those cases may be seen to fall broadly within the same category of seriousness as the subject offence, and where the circumstances of the offender are not dissimilar. If that cannot be said, the cases will not be ‘like’ cases. Cases that are unlike may be useful only to a very limited extent, in that they may assist the court to identify ‘indicative outer limits of an appropriate sentencing range’. Sentencing statistics for particular offences may serve a similarly limited function. Their citation will, save in unusual cases, be unhelpful in the sentencing task.
…
It should be emphasised that whilst like cases provide some insight as to the relevant current sentencing practice, as we have said, sentences passed in other like cases are not precedents which must be followed unless they are capable of being distinguished. The question whether a sentence is manifestly excessive or inadequate cannot be answered by a numerical comparison with other sentences imposed in other cases. As the High Court explained in Munda, past sentencing decisions do not define the limits of the sentencing discretion. Every case must turn on its own facts — including the particular features of aggravation and mitigation, and the individual circumstances of the offender and the offence — and be the product of the intuitive synthesis of those facts. [12]
[12]Ibid [34], [36] (citations omitted).
In the present case, the appellants provided the court with a table listing the outcomes of 31 prosecutions brought by the Mornington Peninsula Shire Council in respect of breaches under s 126 of the Act (‘Exhibit ADS8’).[13] There were no materials before the Court which explained the context or full factual circumstances of each case. Nor were they presented to the Magistrate at the original hearing of the matter. This lack of background into those prior prosecutions means that they are of limited benefit to this Court. As per the approach in Zhuang, these prior examples cannot define the exercise of my discretion, and accordingly I will turn to the particular facts of the present matter in reaching a conclusion.
[13]Affidavit of Anthony Donald Snooks sworn 1 May 2015, Exhibit ADS8.
Several of the cases cited by the parties dealt with cases decided prior to the abolition of double jeopardy under s 290(3) of the CPA. One such case was DPP v Josefski,[14] in which Chernov JA (Callaway JA and Maxwell P agreeing) stated that in determining manifest inadequacy, one of the key considerations is whether the sentence “is clearly outside the range of sentences open to the sentencing judge in the exercise of sound discretionary judgment.”[15] The current position, as confirmed by the authorities, is that double jeopardy has been abolished but the Court retains a residual discretion to refuse an appeal by a prosecuting body against the severity of a sentence, even in circumstances where it is satisfied that the original sentence was inadequate.[16] The burden lies on the appealing body to persuade the Court that it should not exercise its discretion to refuse an appeal.[17]
[14](2005) 13 VR 85.
[15]Ibid 99 [65] (emphasis in the original).
[16]Zhuang [2015] VSCA 96, [45].
[17]Ibid [47], [49].
Ultimately, as the High Court observed in Lowndes v The Queen, ‘the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’[18]
[18](1999) 195 CLR 665, 672.
In exploring the question of current sentencing practices, the appellants rely on the case of DC Consolidated Investments Pty Ltd v Maroondah City Council (‘DC Consolidated’)[19] as an example where an appeal on the ground of manifest excess was dismissed. DC Consolidated, the appellant, was found guilty in the Magistrates’ Court of a breach of s 126 of the Act and fined $40,000 in respect of the poisoning and killing of 33 native trees on land it owned. DC Consolidated appealed the decision, with one ground of appeal being that the sentence imposed upon it was manifestly excessive.
[19][2011] VSC 634.
The Supreme Court rejected the appeal, including the ground that the sentence was manifestly excessive. Osborn J held that manifest excess is a difficult argument to raise, referring to the comments of Bongiorno JA in Hanks v R,[20] where it was stated that:
… to succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[21]
[20][2011] VSCA 7.
[21]Ibid, [22]; DC Consolidated [2011] VSC 634, [36].
Osborn J found that 33 healthy trees with an estimated life expectancy of 50 years or more and worth over $146,000 were deliberately poisoned; the site in question was of, at the very least, regional significance in terms of the pre-existing vegetation; and that DC Consolidated was a company involved in property development which was seeking to undertake a substantial commercial development on the site in question. Osborn J found that the penalty could not be said to be manifestly excessive, if the view of the facts most adverse to DC Consolidated was taken.[22]
[22]DC Consolidated [2011] VSC 634, [37]-[40].
The respondents submit that DC Consolidated bears no relevance to the current matter and seek to distinguish it on the basis that DC Consolidated involved a developer offender who was seeking to benefit from the deliberate removal of a number of significant native trees on its land.[23] The respondents contrast that with the present matter, where the Magistrate accepted the respondents’ submissions that they had not sought to benefit from the removal of the vegetation in any way, such as through building on the land or selling firewood. Rather the unchallenged submission at the original hearing was that the vegetation had been removed in response to bushfires.[24]
[23]Respondent’s Outline of Submissions dated 25 June 2015, 9 [20]; T 30, LL 12-22.
[24]T 30, LL 23-31; T 31, LL 1-5.
DC Consolidated is distinguishable from the present circumstances. The respondents in this matter were not seeking to develop the land, nor was there any allegation they were seeking to benefit in some way from the removal of the vegetation. The evidence before the Magistrate was that the respondents had removed the vegetation in response to bushfires and that they had attempted to make enquiries with the Council prior to undertaking the removal. The two cases stand in stark contrast and accordingly little weight can be given to DC Consolidated in determining this appeal. Again, the approach in Zhuang, as to the limited benefit of dissimilar cases, must be borne in mind.[25]
[25]Zhuang [2015] VSCA 96, [34], [36] (citations omitted).
However, DC Consolidated does bear relevance for its confirmation that offences under s 126 of the Act are offences of strict liability:
In summary, the language and statutory context of the section support this view; there is an absence of language in s 126 suggesting the contrary; the subject matter of the statute is the regulation of land use in the public interest, including the conservation of native vegetation and the maintenance of ecological processes and genetic diversity; that subject matter is properly characterisable as regulatory and involving matters of public interest of a kind in which statutory offences have been recognised which do not require proof of mens rea; the imposition of liability without proof of mens rea will directly respond to difficulties of proof otherwise inherent in effective enforcement of the planning scheme, will impose a burden upon owners in circumstances where owners ordinarily have a capacity to manage what occurs on their land, and will have a general deterrent effect; and, lastly, neither the gravity of the offence, nor the penalty applicable, support the view that Parliament intended mens rea be a necessary element of the offence. [26]
[26]DC Consolidated [2011] VSC 634, [21]-[25], [34] (emphasis added).
As to the issue of specific and general deterrence, they assume particular importance in light of s 1 of the Act, which establishes that the purpose of the Act is, amongst other things, to establish a framework for the protection of land in Victoria in the present and long-term interests of all Victorians. Further, as the passage above from DC Consolidated illustrates, by imposing strict liability, s 126 of the Act aims to have a general deterrent effect against potential breaches.
Should the Court decide that the sentences of the original Magistrate were manifestly inadequate, it has the power under s 272(9) of the CPA to make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.
Appellants’ submissions
In summary, the appellants submit that:
(a) there was substantial inadequacy in the sentences imposed on the respondents, having regard to the maximum penalty, the gravity of the offending, the need for general and specific deterrence and current sentencing practices;
(b) the Magistrate misapplied the relevant sentencing principle and the sentences were ‘manifestly wrong’;
(c) the sentences imposed were at the very lowest range of the penalties that could have been imposed;
(d) the sentences imposed were clearly disproportionate to the gravity of the offending;
(e) the sentences imposed on the respondents would be appropriate for a minor breach of the Act. The offending involved extensive damage to the vegetation that the Act and Planning Scheme are designed to protect. The penalty imposed would not deter the respondents or others from similar conduct in the future; and
(f) the sentences appealed from are not in accordance with current sentencing practices for similar offending. As discussed, the appellants rely on the decision of DC Consolidated. The appellants also rely upon a table found in Exhibit ADS8 to the Snooks’ 1 May 2015 affidavit. The table purports to set out the findings of 50 prosecutions in the Magistrates’ Court of contraventions of s 126 of the Act, conducted by the appellants and the sentences imposed in 31 of the prosecutions.
Respondents’ submissions
The respondents submit the penalties imposed were not at the lowest end of the range and was appropriate given the unusual aspects of the offence. It is submitted that the agreed summary presented at the Magistrates’ Court as evidence does not support the appellants’ assertion that a significant amount of vegetation was illegally removed over an extensive area. The Magistrate acknowledged that the circumstances of the offences mitigate what would otherwise be quite a large penalty and the appellants acknowledged at the hearing that there were such mitigating circumstances. Further, the Magistrate took into account the amount of legal costs when setting the level of the fine.
In relation to general and specific deterrence, the respondents submit that general deterrence should only be a factor in sentencing if an offence was a deliberate act, unlike the circumstances of this case where the respondents’ belief was that they were permitted to cut down the vegetation.
The respondents submit that the appellants do not proffer any reason why there should be specific deterrence, in circumstances where the respondents had no prior convictions and offered to give evidence as to the circumstances of the advice received from the appellants’ employee in relation to permission to cut down vegetation. The respondents, at the time of the offending, were in their 60s and pleaded guilty at the first opportunity. They also agreed before the hearing to pay half the appellants’ legal costs of $2,000 each. Importantly, the appellants were invited but did not seek to cross-examine the respondents and the Magistrate accepted the respondents’ position as not being motivated by greed or some ill purpose and that they considered they were doing the right thing.
The respondents submit that given their responsible behaviour, even taking into account the maximum penalty and allowing for mitigating circumstances, specific deterrence has no place in such circumstances and general deterrence was clearly not needed.
As discussed, the respondents submit that the decision of DC Consolidated can be distinguished.
In relation to the sentences imposed, the respondents submit that the appellants do not allege that the Magistrate acted on a wrong principle of law or took into account extraneous or irrelevant matters.
The respondents submit that even if the sentences are inadequate, which is not admitted, they say that it is not ‘clear and egregious’ and so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of courts to follow their path in determining the commission of crimes’. Finally, the respondents submit that on appeal, the Court is not rehearing the matter and is not entitled to substitute its own opinion for that of a sentencing judge just because it considers a sentence inadequate or excessive. Importantly, the respondents rely upon the decision of R v Allpass[27] where the New South Wales Court of Criminal Appeal stated:
An appellate court has no right in discretion which may lead it to incline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown of the original sentencing proceedings may be a matter of significance.
[27](1993) 72 A Crim R 38, 562–3.
Analysis
I will deal firstly with the appellants’ submission in relation to current sentencing practices. It is correct that a sentencing court must take into account current sentencing practices.[28]
[28]Section 2(2)(b), Sentencing Act 1991 (Vic).
As discussed, the appellants now seek to rely on a table of outcomes of prosecutions which were not before the Magistrate and therefore cannot be produced and relied upon in this appeal. It is new evidence. The table simplifies the outcomes with minimal detail. There is no information about the reasons and motives for the offending and it is not known if any of the prosecutions dealt with similar factual scenarios to the respondents’ position. Further, the decisions are not reported and are confined to Mr Snooks’ personal experience.
Even if the evidence could be considered, the lack of detail about each prosecution renders it of no assistance to this Court.
I agree with the submissions made by the respondents in relation to DC Consolidated Investments Pty Ltd in that the circumstances of that case were so different to the current circumstances that the case is of little assistance in the analysis of the current proceedings.
What is relevant in this case is that the only evidence before the Magistrate, which was not contradicted, is that the appellants received information from the Council officer that there was no problem cutting down the trees on the inside of the property and that there were no difficulties in the area that was contained inside ‘that yellow line’. There was no evidence that the respondents were getting the property ready for some commercial development or residential development or that the property was being prepared as a potential building site or that they were chopping down the trees ‘in order to flog the firewood to make money’. The trees were cut down and left in situ. The respondents were provided with a written document[29] by the Council’s employee, which stated amongst other things, that ‘All native vegetation has value. The Council asks that existing native vegetation is retained and protected on your land and adjoining areas. Removal of native vegetation requires Council Planning Permit’. The respondents were in attendance at the Magistrates’ Court hearing and were available to give evidence. There was no request by the appellants that the respondents be cross-examined on the evidence before the Magistrate. The fact of the conversation with the Council employee was accepted as were all other matters in the agreed summary.
[29]Affidavit of Antoinetta Mangano sworn 1 April 2015, Exhibit AN1.
The appellants made no submissions on sentencing and conceded ‘those circumstances do mitigate what would otherwise be quite a large penalty’.[30] For completeness, the appellants in this proceeding filed an affidavit of Brett Whitwam on 4 May 2015. Mr Whitwam deposes investigations of Council records in relation to the conversation the respondents had with the Council employee. While the appellants did not pursue or directly rely upon Mr Whitwam’s affidavit in the hearing of this appeal, the evidence is not admissible on the grounds that it seeks to lead fresh evidence in this appeal. It is no more than an attack on the findings of fact made by the Magistrate which is not open in an appeal on a question of law.
[30]Affidavit of Najihah Idris sworn 6 October 2015, Exhibit NI-1.
While the penalty imposed was at the lower end of the range, the Magistrate gave consideration to mitigating circumstances of the offences. The appellants conceded when it was put to them by the Magistrate that there were mitigating circumstances of the offending, that it was not an offence motivated by greed, for some sort of ill purpose and the respondents thought they were doing the right thing. The appellants’ solicitor agreed that those circumstances do mitigate what would otherwise have been a large penalty.
In summary, I do not consider that the sentences imposed by the Magistrate on the respondents was manifestly wrong or inadequate. The sentences were open to the Magistrate and not disproportionate to the seriousness of the crime. I do not consider in light of the offending, the circumstances of the offending and the seriousness of the offending that the sentences would shock the public conscience and undermine public confidence in the ability of courts to play their part in deterring the commission of crime. In the circumstances, I consider the appellants appeal should be dismissed. Save for any submissions on costs, I consider the appellants should pay the respondents costs of the appeal.
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