Overland Corner Station Pty Ltd & Anor v Gould
[2010] SASC 61
•23 March 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
OVERLAND CORNER STATION PTY LTD & ANOR v GOULD
[2010] SASC 61
Judgment of The Honourable Justice White
23 March 2010
ENVIRONMENT AND PLANNING - TREES AND VEGETATION - NATIVE VEGETATION
The first appellant cleared native vegetation from four separate areas of a property and was convicted for four contraventions of s 26(1) of the Native Vegetation Act 1991 (SA) (NVA) - the second appellant was a director of the first defendant - the second defendant was convicted under s 39 of the NVA for each of the four clearances.
Whether the clearances were for the purpose of maintaining existing fences or for the construction of new fences as contemplated by reg 5(1)(s) of the Native Vegetation Regulations 2003 (SA) (the Regulations) - whether the Magistrate erred in ruling that the onus was on the defendants to prove that the clearance was in accordance with reg 5(1)(s) of the Regulations - discussion of the principles relating to the application of s 56(2) of the Summary Procedure Act 1921 (SA) to s 26(1) of the NVA - whether the Magistrate erred in finding that fences on the first appellant's property did not constitute "existing fences" for the purposes of reg 5(1)(s) - whether the remaining conditions in reg 5(1) were established.
Held: Magistrate did not err - appeals against conviction dismissed.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
A single fine of $60,000 was imposed on the first defendant - a single fine of $20,000 was imposed on the second defendant - the first defendant had one prior conviction for a contravention of s 26(1) of the NVA - several features of the first defendant's offending were aggravating.
Whether the Magistrate erred by failing to give sufficient reasons - whether the Magistrate should have found good reason not to record convictions for the offences of the second defendant.
Held: Magistrate did not err - appeals against sentence dismissed.
Native Vegetation Act 1991 (SA) s 26, s 36; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 18A; Native Title Regulations 2003 (SA) reg 5; Summary Procedure Act 1921 (SA) s 56; Native Title Management Act 1985 (SA) s 19; Native Vegetation (Miscellaneous) Amendment Act 2002 (SA) s 20, referred to.
Lloyd-Groocock v Police [2008] SASC 313; Hemming v Lukin (1996) 67 SASR 248; R v Waugh (2005) 93 SASR 274; R v Symonds [1999] SASC 217, applied.
Chugg v Pacific Dunlop (1990) 1710 CLR 249; R v Edwards (1975) 1 QB 27; Daire v O'Malley (1986) 41 SASR 583; Rowbottom v Nicolitsi (1986) 41 SASR 576; Dowling v Bowie (1952) 86 CLR 136; Robin v Police (2002) 81 SASR 253; McCarron v Akpata (2001) 216 LSJS 153; Dal Piva v Maynard (2000) LGERA 165; Piva v Brinkworth (1992) 58 SASR 92; Hemming v Neave (1989) 51 SASR 427; Lamattina v Gould (2009) 103 SASR 579; Hemming v Mundy (2001) 122 A Crim R 329; R v Major (1998) 70 SASR 488; R v B, RWK (2005) 91 SASR 200; R v M, REM [2008] SASC 348; R v Tran [2009] SASC 341; R v Cramp [2010] SASC 51; El Sayed v Commissioner for Consumer Affairs (2002) 224 LSJS 107; Weir v Police [2005] SASC 276, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"in the course of construction", "existing fence"
OVERLAND CORNER STATION PTY LTD & ANOR v GOULD
[2010] SASC 61Magistrates Appeal
WHITE J: The first appellant has, since September 1999, owned the property near Overland Corner known as Overland Corner Station. The second appellant Giovanni (John) Mitolo has, since 2 February 2004, been the sole director of the first appellant. They appeal against convictions recorded, and sentences imposed, in the Magistrates Court for contraventions of the Native Vegetation Act 1991 (SA) (NVA). It is convenient in these reasons to continue to refer to them by their designations at trial, namely, first defendant and second defendant respectively.
Between 21 January 2006 and 23 April 2007 the first defendant cleared some native vegetation on Overland Corner Station. The Magistrate found that clearances occurring in four separate areas constituted contraventions of s 26 of the NVA. He entered convictions against the first defendant for all four offences and, under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), imposed a single penalty being a fine of $60,000.
The second defendant was also convicted of four contraventions arising from the same clearance activities. These convictions resulted from the application of s 39 of the NVA.[1] The Magistrate imposed a fine of $20,000 on the second defendant.
[1] Section 39 of the NVA provides:
Where a body corporate is guilty of an offence against this Act, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence.
Background Circumstances
Overland Corner Station is a property comprising approximately 4,400 hectares.. Some sections of the property have been substantially cleared but there are remaining stands of native vegetation. The prosecution concerned native vegetation growing on two strips of land on the Station. The strips were well separated from each other but both ran in a roughly north-south direction. At the trial these two strips were referred to as Areas One and Two respectively.
The Magistrate did not make a specific finding as to the dimensions of either strip. However, the evidence indicates that Area One, before the first defendant’s clearance of the native vegetation, was some 1,650 metres long. The evidence concerning the width of the strip varied but Mr Storry (an employee in the Department of Water, Land and Biodiversity Conservation (the Department)), whose evidence the Magistrate regarded as reliable, calculated using aerial imagery, an average width of 50 metres. Other evidence suggested that the width of the strip comprising Area One was, at least in some places, less than 50 metres.
The evidence indicated that Area Two was some 1,415 metres long. Again, the evidence as to its width varied. Mr Storry calculated an average width of 25 metres, but he acknowledged that in some places the strip had no vegetation at all, and that in other places the width of the vegetation was less than 25 metres.
The Magistrate found that the first clearance of vegetation took place at some time between 21 January 2006 and 3 October 2006. At this time a portion of Area Two was completely cleared. This portion was referred to at trial as Area 2A. The Magistrate did not make findings as to the dimensions of Area 2A. However, Mr Storry’s evidence indicated that it was approximately 570 metres long and involved an area of 0.9 of a hectare. The clearance of Area 2A left a strip to its south which was some 750 metres long (referred to at trial as Area 2B) and a strip to its north which was some 85 metres long (referred to at trial as Area 2C). In other words, the cleared portion (Area 2A) was closer to the northern end of the strip than it was to the southern end.
On the Magistrate’s findings, the second area to be cleared was a portion of Area One (referred to at trial as Area 1A). The clearance of Area 1A occurred at some time after 3 October 2006 and before 2 April 2007, and involved the complete clearance of 2.7 hectares of native vegetation. Area 1A was approximately 550 metres long. The remaining portion of Area A south of Area 1A (referred to at trial as Area 1B) was approximately 800 metres long, and the remaining area to the north (referred to as Area 1C) was approximately 300 metres long. As with Area 2A, Area 1A was closer to the northern end of Area A than to the southern end.
Areas 1B and 1C were cleared between 2 April 2007 and 23 April 2007, as were Areas 2B and 2C. These areas were partially cleared, with approximately 1.7 hectares cleared in Areas 1B and 1C, and approximately 2 hectares cleared in Areas 2B and 2C.
The total of the areas cleared was 7.3 hectares.
The prosecution identified the period in which the total clearance of Area 2A occurred by a comparison of two images produced from a satellite on 21 January 2006 and 3 October 2006 respectively. It identified the period in which the total clearance of Area 1A occurred by a comparison of observations made by three employees (Messrs Storry, Colquhoun and Connor) of the Department at a site inspection on 2 April 2007 with the satellite image produced on 3 October 2006. Finally, for the clearances which occurred in Areas 1B, 1C, 2B and 2C, the prosecution relied upon a comparison of the vegetation on Overland Corner Station as seen in an aerial survey of the property on 23 April 2007 and as observed by the employees at the site inspection on 2 April 2007.
Relevant Legislative Provisions
In order to understand the Magistrate’s conclusions and the issues on the appeal, it is necessary to set out some of the statutory provisions.
The offence of clearing native vegetation is established by s 26(1) of the NVA. It provides:
(1)A person must not clear native vegetation unless the clearance is in accordance with this Part.
Maximum penalty: 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.
Expiation fee: $500.
Section 27 of the NVA is the principal provision specifying the circumstances in which clearance of native vegetation may be carried out without contravening s 26(1). It provides:
(1) Subject to any other Act or law to the contrary—
(a) native vegetation may, subject to this section, be cleared with the consent of the Council given in accordance with section 29;
(b) native vegetation may, subject to subsection (5)(b), be cleared—
(i) if the vegetation is of a prescribed class; or
(ii) in prescribed circumstances.
(2)Subject to subsection (3), the Council cannot give its consent to the clearance of native vegetation under subsection (1)(a) if the vegetation comprises or forms part of a stratum of native vegetation that is substantially intact (see section 3A).
(3)The Council may, despite subsection (2) but subject to the other requirements of this Division, give its consent to the harvesting of native vegetation if, in its opinion, the harvesting will not result in any lasting damage to the plants comprising the vegetation, lead to significant soil damage or erosion, or result in any long-term loss of biodiversity.
(4)The Council may give its consent under subsection (3) subject to such conditions (if any) as the Council thinks fit to impose.
(5)Native vegetation that is growing or is situated on land that is subject to a heritage agreement under this Act or a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act cannot be cleared—
(a) under subsection (1)(a) unless the Minister has also given his or her consent to the clearance;
(b) under subsection (1)(b) unless a regulation prescribing a class of vegetation under paragraph (b)(i) or circumstances under paragraph (b)(ii) explicitly extends its operation to vegetation on land that is subject to a heritage agreement.
(6)If the Minister attaches conditions to his or her consent under subsection (5)(a), the Council's consent to the clearance will be taken to be subject to the same conditions, in addition to any other conditions imposed by the Council.
The Council to which s 27(1)(a) refers is the Native Vegetation Council established by the NVA.
Later sections in the NVA provide for the making of an application for the Council’s consent to clearance (s 28), the circumstances in which consent may be granted, and the conditions of such consent (s 29).
Regulations entitled Native Vegetation Regulations 2003 (SA) (the Regulations) have been made under the NVA. The Regulations do not prescribe any class of vegetation for the purposes of s 27(1)(b)(i) of the NVA. Regulation 5(1) prescribed some 46 circumstances in which, for the purposes of s 27(1)(b) of the NVA, native vegetation may, subject to any other Act or law to the contrary, be cleared.
The defendants relied upon reg 5(1)(s). That sub-regulation provided that native vegetation may, subject to any other Act or law to the contrary, be cleared:
(s)if the clearance is for the purpose of providing a strip of cleared land of not more than 5 metres in width on either side or both sides of an existing fence or of a fence in the course of construction to provide access for the purpose of maintaining or establishing the fence and—
(i) the fence is reasonably required to control access by people or the movement of animals; and
(ii) the clearance is required to give reasonable access to the fence and is limited to the extent reasonably required to achieve that access; and
(iii) there is no other practicable alternative (including, in the case of a new fence, to the position of the fence) that would involve no clearance or the clearance of less vegetation or the clearance of vegetation that is less significant or (if relevant) the clearance of vegetation that has been degraded to a greater extent than the vegetation proposed to be cleared,
(and the operation of this paragraph extends to vegetation on land that is subject to a heritage agreement but does not apply to vegetation on a road reserve);
It will be necessary to return to the terms of reg 5(1)(s) in more detail shortly.
Section 38 of NVA provides for the vicarious liability of an employer or principal in the following terms:
For the purposes of this Act, an act or omission of an employee or agent will be taken to be the act or omission of the employer or principal unless it is proved that the act or omission did not occur in the course of the employment or agency.
A defendant has a defence to a charge of an offence if the defendant can prove that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care. Section 40 is in the following terms:
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged 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.
The Magistrate’s Decision
At the trial, the defendants did not dispute that the first defendant had, without the consent of the Native Vegetation Council, caused or permitted the clearance of native vegetation from Areas One and Two. They contended, however, that the clearances were carried out in circumstances to which reg 5(1)(s) applied, and so were in accordance with Part 5 of the NVA.
In a preliminary ruling on 26 August 2009, the Magistrate rejected the defendants’ submission that the prosecution had the onus of proving that the clearances which it alleged were not in accordance with Part 5 of the NVA. The trial then proceeded with each of the prosecution and the defendants adducing both oral and documentary evidence.
At the conclusion of the trial, the Magistrate found that the first defendant had cleared native vegetation from each of the Areas 1A, 2A, 1B and 1C, and 2B and 2C at the times alleged. The Magistrate accepted that it was reasonably possible that there were pre-existing fences in each of those Areas. He also accepted that it was reasonably possible that the first defendant had made a decision to repair or replace existing fencing in those Areas in order to permit stock to be re-introduced on to the property. However, he went on to find, on the basis of the evidence of the second defendant and of the defendants’ witness Mr Schutz, that any pre-existing fences in those areas were in such a state of disrepair that they could not be described as “existing fences” for the purposes of reg 5(1)(s). Accordingly, the Magistrate found that there were no “existing fences” to be maintained in any of the areas where the clearances occurred.
That meant that in order for the defendants to bring themselves within reg 5(1)(s) they had to establish that the clearance of the vegetation was for the purpose of providing a strip of cleared land on either side or both sides of a fence “in the course of construction” to provide access for the purpose of establishing the fence. The Magistrate considered that there was no evidence of any fence “in the course of construction” in any of the areas where the clearances took place, except in the Area marked 2A. In relation to Area 2A, the Magistrate considered that, as its clearance had been completed by 3 October 2006 and construction of the fence in that Area had not commenced before “early 2007”, it was improbable that a fence was “in the course of construction” at the time that the native vegetation was cleared from the area.
The Magistrate also considered that the circumstantial evidence indicating that the native vegetation was cleared from Area 2A in order to facilitate centre point pivot irrigation was compelling. Aerial photos showed that centre point pivot irrigation had occurred in an area which included Area 2A, which irrigation would have been quite difficult without the clearance of Area 2A. In those circumstances the Magistrate considered that the defendants had not proved on the balance of probabilities that the native vegetation was cleared from the Area marked 2A for the purpose contemplated by reg 5(1)(s).
The Magistrate had reservations about the reliability of the second defendant’s evidence, saying that his confidence in the credibility of the second defendant was “seriously undermined”. That assessment of the second defendant’s evidence is, on my reading of the transcript, quite understandable. It would have been surprising had the Magistrate come to any other view.
Finally, the Magistrate considered that the defendants had not proven that they had taken reasonable care to avoid the commission of the offences.
Issues on the Appeal
The issues on the appeal are these:
(i)Did the Magistrate err by holding that it was for the first defendant to show that its clearance of native vegetation occurred in circumstances to which s 27(1)(b)(ii) applied?
(ii)If so, is the effect that the trial has so miscarried that the convictions should be set aside and a retrial ordered?
(iii)Should the Magistrate have found that fences in Areas One and Two were “existing fences” for the purposes of reg 5(1)(s)?
(iv)In the alternative to (iii) should the Magistrate have found that the clearances were made for the purpose of providing a strip of cleared land on either or both sides of a fence “in the course of construction”?
(v)If either (iii) or (iv) are answered in the affirmative, were the remaining conditions for the application of reg 5(1)(s) made out?
(vi)Did the Magistrate give insufficient reasons in relation to his credibility findings concerning the second defendant’s evidence?
(vii)In relation to sentence, did the Magistrate give adequate reasons, did he err in the application of the totality principle, and were the sentences he imposed manifestly excessive?
(viii)Finally, in relation to the second defendant only, did the Magistrate err in recording convictions in respect of the counts concerning the clearance of Areas 1B and 1C, and Areas 2B and 2C?
I will address these issues in turn.
Section 26(1) and the Onus of Proof
The defendants’ submissions concerning the allocation of the onus of proof raise the application of s 56 of the Summary Procedure Act 1921 (SA) (SPA) to an alleged contravention of s 26(1) of the NVA. Section 56 provides:
(1)No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the complaint.
(2)Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the complaint, no proof in relation to it shall be required on the part of the complainant.
The question is whether the words in s 26(1) of the NVA “unless the clearance is in accordance with this Part” constitute an exception, exemption, proviso, excuse or qualification to which s 56(2) refers with the effect that it is not a matter upon which the prosecution bears the onus.
The principle which s 56 of the SPA reflects, together with many of the authorities concerning its application, were reviewed recently by Doyle CJ in Lloyd-Groocock v Police.[2]I respectfully adopt that review. That makes it unnecessary to refer to the authorities in detail.
[2] [2008] SASC 313 at [35] – [42].
The following propositions are discernible in the authorities concerning the application of s 56 and its equivalents.
(i)The question of whether an enactment contains a provision in the nature of an exemption or proviso for the purposes of s 56(2) is to be resolved by the construction of the statute under which the charge is laid.[3] When some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”.[4]
(ii)The focus on the process of statutory construction should be on the substance (“the essence or thrust”), rather than the form, of the statutory provision in question.[5] However, that does not mean that the form of the statutory provision is irrelevant as the way in which a section is set out may be a useful guide to the intention of Parliament with respect to any postulated exception or proviso.[6]
(iii)A qualification or exception which assumes the existence of facts upon which the general rule of liability is based and which depends on additional facts of a special kind is, depending on issues of substance, more likely to be a qualification or exception to which s 56(2) applies,[7] or, as it was put by Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop,
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule.[8]
(iv)If a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.[9]
(v)There are many authorities indicating that the fact that defendants are likely to have peculiar knowledge bearing upon the application of the exemption or proviso, or enabling them to prove the positive of any negative averment is immaterial in the process of construction involved.[10] However, the circumstance that a relevant fact would be difficult for the prosecution to establish and easy for a defendant to establish might well dispose the legislature to make the proof of that fact an exception within the meaning of s 56.[11] In this respect Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop said:
If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.[12]
(vi)Ultimately, the application of s 56 depends upon a postulated legislative intention which is to be determined by reference to all of the relevant circumstances. This makes it difficult to state any general rule on the subject and can limit the utility of comparison of one case with another.[13]
[3] Chugg v Pacific Dunlop (1990) 170 CLR 249 at 257; R v Edwards [1975] 1 QB 27 at 39-40; Rowbottom v Nicolitsi (1986) 41 SASR 576 at 580.
[4] Chugg v Pacific Dunlop (1990) 170 CLR 249 at 257.
[5] Chugg v Pacific Dunlop (1990) 170 CLR 249 at 258; Daire v O’Malley (1986) 41 SASR 583 at 586-7.
[6] Rowbottom v Nicolitsi (1986) 41 SASR 576 at 580.
[7] Dowling v Bowie (1952) 86 CLR 136 at 139-140.
[8] (1990) 170 CLR 249 at 258.
[9] Chugg v Pacific Dunlop (1990) 170 CLR 249 at 258.
[10] R v Edwards [1975] 1 QB 27 at 39-40.
[11] Rowbottom v Nicolitsi (1986) 41 SASR 576 at 580.
[12] (1990) 170 CLR 249 at 258-9.
[13] Lloyd-Groocock v Police [2008] SASC 313 at [42].
The application of s 56 of the SPA to s 26 of the NVA is not easy. Section 26(1) is expressed in very general terms, providing simply that a person must not clear native vegetation “unless the clearance is in accordance with this Part”.
Ms Fuller, counsel for the defendants, submitted that s 26(1) is expressed in a way which makes clearance other than in accordance with Part 5 of the NVA an element of the offence. Ms Fuller also referred to evidentiary aids in the NVA which are of assistance to prosecutors. Section 34 contains a number of sub-sections requiring allegations or facts to be accepted or taken as proved in the absence of proof to the contrary. In addition, as noted earlier, s 38 facilitates proof of the vicarious liability of an employer or principal and s 40 provides for matters which a defendant can prove as a defence to a charge. The presence of provisions of those kinds, but the absence of any provision to the effect that a clearance of native vegetation is, in the absence of proof to the contrary, to be presumed to be other than in accordance with Part 5, is, she submitted, striking. However, it is to be remembered that many of the cases in which s 56(2) has been held to apply have involved legislation which also contained evidentiary aids to proof of the offence in question.
It is possible to regard s 26(1) of the NVA as establishing a norm (or, in the language of Cox J in Daire v O’Malley[14] a “basic policy”) that there should not be any clearance of native vegetation but, at the same time, contemplating that there may be some circumstances in which clearance may be permissible. That, in my opinion, is the “essence or thrust” of the provision. It is also the “essence or thrust” of the NVA as a whole. This is evident in the Principles of Native Vegetation Clearance set out in Schedule 1 to the NVA. Those are the Principles to which the Native Vegetation Council must have regard when determining an application for consent to the clearance of native vegetation.
[14] (1986) 41 SASR 583 at 586.
The effect of s 27(1) is to establish circumstances in which, despite the general prohibition contained in s 26(1), native vegetation may be cleared. Using the language of Dixon CJ in Dowling v Bowey, s 27(1) assumes the existence of facts to which the general prohibition in s 26(1) applies. The application of s 27(1) in a given case depends upon proof of additional facts of a special kind, ie, proof of the Native Vegetation Council’s consent, proof that the vegetation was of a prescribed class, or proof that the clearance occurred in prescribed circumstances. That points in favour of s 27(1) creating a proviso or exception to which s 56(2) of the SPA applies.
There are other considerations which point to the same conclusion. Two of the circumstances in which native vegetation may be cleared in accordance with s 27(1) are not fixed by the NVA itself, but are to be determined by the Executive. The Parliament must have contemplated that the Executive could, in the implementation of s 27(1)(b)(ii), prescribe a variety of circumstances in which clearance of native vegetation should be permissible. By way of illustration, reg 5(1) of the Regulations presently contain 46 separate circumstances in which clearance of native vegetation is permissible. Whether or not Parliament contemplated that number of circumstances is presently immaterial. What is material is that Parliament can be taken, as I have said, to have contemplated that a variety of differing circumstances may be prescribed. To my mind it is unlikely that the legislature intended s 26(1) to have the effect that an absence of the existence of each of the circumstances which the Executive may prescribe was, in effect, to be an element of the s 26(1) offence. Had Parliament intended s 26(1) to be understood in that way, it is reasonable to suppose that it would have included in the NVA additional evidentiary aids to proof of a contravention.
The context in which ss 26(1) and 27(1) operate is also pertinent. It is reasonable to suppose that it must have been apparent to the Parliament that many of the circumstances which the Executive may prescribe under s 27(1)(b)(ii) would depend upon matters peculiarly within the knowledge of the person carrying out the clearance. Parliament must have contemplated, for example, that a particular purpose to be achieved by the clearance would be a criterion in the determination of prescribed circumstances. It must also have contemplated that the very act of clearance itself, involving the destruction of native vegetation, would make proof of the absence of a requisite purpose by a prosecutor quite difficult. In other words Parliament must have contemplated that there could be a large number of prescribed circumstances in which clearance of native vegetation could be permissible and that the question of whether or not a particular clearance came within one or more of those circumstances would depend upon the purpose of the person carrying out that clearance.
I also note that, as a matter of structure of the NVA, the circumstances contemplated by s 27(1) are separated from the general prohibition contained in s 26(1). It can be said that by separating s 27(1) from s 26 in this way, the NVA indicates that the prescribed circumstances are different from the subject matter of the general prohibition and do not form part of it. In my opinion, it does not do undue violence to the language of s 26(1) to understand it as providing that “a person must not clear native vegetation unless one of the authorised exceptions applies to that clearance”.
As I said at the outset, I consider the application of s 56(2) of the SPA to s 26(1) of the NVA to be difficult. However, the matters which I have mentioned indicate, to my satisfaction, that s 56(2) of the SPA is applicable and that the Magistrate was correct in ruling that it was for the first defendant to bring himself within the exception created by reg 5(1)(s).
Effect of Magistrate’s Ruling on the Course of the Trial
The appellants submitted that if s 56(2) of the SPA did not apply, this Court should conclude that the trial had miscarried and, for that reason alone, order a mistrial. That was so, it was said, because the ruling determined the manner in which the defence case was presented. The appellants may have made different decisions as to the presentation of evidence and as to the content of the evidence which they did present. Reference was made to Robin v Police[15] and to McCarron v Akpata.[16]
[15] [2002] SASC 33 at [60]-[63]; (2002) 81 SASR 253 at 274-5.
[16] [2001] SASC 365 at [45]-[48]; (2001) 216 LSJS 153 at 163.
Strictly speaking, my conclusion concerning the onus of proof makes it unnecessary to consider what the consequences may have been had I considered the Magistrate’s ruling to be an error. However, some observations may be made.
I do not consider it to be self-evident that an erroneous ruling by the Magistrate at the commencement of the trial as to the onus of proof would necessarily have resulted in such a miscarriage of justice that the guilty verdict should be set aside. I do not consider that the decisions in Robin v Police and McCarron v Akpata dictate that result. It would be necessary to consider the extent of the miscarriage of justice (if any) which the erroneous ruling produced, including its effect (if any) on the outcome of the trial.
I note that in the present case the appellants did not assert that their conduct of the trial, in particular, the decision to adduce evidence from the second defendant and Mr Schutz, would have been different had the Magistrate made a different ruling. Even if the prosecution did have the onus, the defendants may still have gone into evidence. It may be, for example, that the defendants could not have sought to invoke the defence contained in s 40 of the NVA (as they did) without having adduced evidence from the second defendant.
However, in the light of my conclusion that the Magistrate’s decision concerning the onus of proof was correct, it is not necessary to determine finally this contention.
Were the Fences in Areas One and Two “Existing Fences”?
As seen earlier, reg 5(1)(s) permits native vegetation to be cleared so as to provide access for the purpose of maintaining “an existing fence”.
Despite his reservations about the second defendant’s credibility, the Magistrate did not reject altogether his evidence, and the evidence of Mr Schutz, that some kind of existing fence was located in each of Areas One and Two. He found, however, that any pre-existing fences in those two areas “were in such a state of disrepair that they could not be described as existing fences”. This led the Magistrate to conclude that the clearances of native vegetation could not have been for the purpose of providing strips of cleared land to provide access in connection with the maintenance of existing fences, so as to bring the clearances within reg 5(1)(s).
It is understandable that the Magistrate had reservations about the evidence concerning the existence of pre-existing fences. None of the prosecution witnesses had seen such pre-existing fences, or evidence of them, at the site inspection on 2 April 2007. However, if such fences did exist, the evidence called by the defendants themselves provided an ample justification for the Magistrate’s conclusion about their state of disrepair.
The second defendant said that at the time of the first defendant’s purchase of Overland Corner Station in 1999, he had noticed that the fence in Area One was “very dilapidated and sort of almost in disrepair”. He said that most of the fence in that Area was down on the ground, having been knocked over naturally or as a result of trees falling upon it. He also said that the fence did not present any impediment to the movement of stock.
The second defendant did not describe the condition of the fence at the time that the clearance occurred, some eight years later. He did not suggest, however, that any improvement work had been carried out on the fence since the first defendant’s purchase of the property and it is reasonable to suppose that in the intervening eight years the condition of the pre-existing fence had deteriorated still further.
The second defendant said that the condition of the fence in Area Two in 1999 was very similar to the condition of the fence in Area One, being “very dilapidated, predominantly all on the ground and only a few strainer posts still standing”. Again, it is reasonable to suppose that its condition had deteriorated still further in the eight years since the purchase of Overland Corner Station.
The evidence of Mr Schutz was to similar effect. He described the fences in each of Area One and Area Two as being in such a state of disrepair as to be “not repairable”.
In the light of this evidence (which put the position at its best for the defendants), it could not be said that there was a fence in the sense of an enclosure or barrier in Areas One and Two, nor could it be said that there was a fence as defined for the purposes of the Regulations.[17]
[17] In reg 3, the word “fence” is defined to mean “a fence consisting of posts and wire fixed permanently to land and designed for the purpose of controlling access by people or the movement of animals”.
Faced with this difficulty, the defendants submitted that the maintenance of an existing fence within the meaning of reg 5(1)(s) should be understood as including “maintenance by replacement”. I do not accept that submission. It is not appropriate, in my opinion, to regard the construction of a new fence in a place where a previous fence once stood as equivalent to the maintenance of an existing fence. In context, the word “maintaining” in reg 5(1)(s) is used in the sense of keeping an existing fence in good order and condition so that it may continue to perform its function as a fence. That could not occur in the present case as both fences were, as Mr Schutz said, “unrepairable”.
Accordingly, the Magistrate was correct to hold that none of the clearances were for the purpose of providing a strip of cleared land so as to provide access for the purposes of maintaining an existing fence.
A Fence “In the Course of Construction”?
The Magistrate found that, with the exception of Area 2A, there was no evidence of any fence “in the course of construction” in any of the areas in which the clearance had taken place.
The defendants criticised that finding, submitting that it overlooked the evidence of the second defendant, and, to the extent that the finding depended upon the evidence of Messrs Storry, Colquhoun and Connor, that it was unsafe because of the limited investigation which they had made concerning the presence of fencing in Areas One and Two.
The second defendant did give some evidence-in-chief about the construction of fencing in Areas 1B, 1C, 2B and 2C as at 2 April 2007 but it was of a general kind:
Q.At that point in time can you say from your own knowledge whether Areas 1B and 1C and 2C and 2B had or had not had vegetation cleared?
A.What I can remember I think that they were – they – the fence was continued through most of that area, like, the construction of the fence through that 2C and 2B and 1B and 1C.
Q.Can you say whether any work had been performed in repairing the fences in those areas as at early April 2007?
A.Yes, they were – they were still going.
Q.Sorry, they –
A.Were still constructing the fence.
It can be seen that this evidence was in very general terms only. The second defendant did not provide any detail of the activities encompassed by his statements that “the fence was continued through most of that area” and “they were still constructing the fence”.
It is true that the Magistrate did not refer to this evidence. However, it is to be borne in mind that the Magistrate did not regard the evidence of the second defendant as reliable.
On my review of the evidence, there are a number of features which make the suggestion that any construction of fencing had commenced in the Areas 1B, 1C and 2B and 2C implausible. First, none of the prosecution witnesses observed any signs of fencing construction in those areas at the time of their inspection on 2 April 2007. It is true, as the defendants submitted, that none of those witnesses traversed in a significant way Areas 1B, 1C, 2B and 2C but it is remarkable that if fence construction had in fact commenced, it was not observed by any one of the three departmental employees. This is especially so as they were alert to the possible significance of fencing and took photographs of the of fencing construction work which they did observe in Area 2A.
Secondly, none of the photographs taken by the departmental employees of Areas 1B, 1C, 2B and 2C which were tendered at trial indicate fence construction in those areas.
Thirdly, substantial further clearance was carried out in Areas One and Two after 2 April 2007 and before 23 April 2007. In particular, strips in the middle of Areas 1B and 1C and running their full length were cleared after 2 April and before 23 April 2007. It was said that this had been done so as to permit the reconstruction of a race (an area about 10 metres wide bounded by two parallel fences through which stock could move) in those Areas. Given the machinery which seems to have been involved in the clearance, it is improbable that any fence construction work in those areas had been carried out before that clearance.
In all these circumstances, I consider that it was appropriate for the Magistrate to reject the second defendant’s evidence and, in that circumstance, to conclude that there was no evidence of any fence “in the course of construction” in any of the areas in which the clearances had taken place (with the exception of Area 2A).
The defendants submitted that even if the Magistrate’s finding about the absence of fencing construction work stood, he had nevertheless erred in his construction of the phrase “in the course of construction”. This submission was directed particularly to the Magistrate’s conclusion about Area 2A, but it is capable of being directed to all of the cleared areas. The Magistrate held, in relation to Area 2A, that it was improbable that the fence in that area was “in the course of construction” at the time that the native vegetation had been cleared. That was so because the clearance of the vegetation in Area 2A had occurred before 3 October 2006 and, on the second defendant’s evidence, the construction of the fence had not commenced until early 2007.
It is clear enough, in my opinion, that reg 5(1)(s) does not require the construction of a new fence to have commenced before any clearance is carried out. That is apparent when the opening words to the regulation are read as a whole. Clearance may take place to provide a strip of cleared land in a defined area in order to provide access for the purpose of “establishing” the fence. As a matter of practicality, the work of establishing the fence may not be able to commence until the workers have access to the defined area. Regulation 5(1)(s) should be construed with that practical operation in mind. Accordingly, reg 5(1)(s) is not to be read literally, ie, as requiring that the construction of the fence to have commenced before any clearance at all is carried out.
In my opinion, reg 5(1)(s) uses the expression “a fence in the course of construction” in the sense of “a fence being constructed”. The defined area of permitted clearance (not more than 5 metres in width on either side or both sides) is then to be ascertained by reference to the fence being constructed, even if that construction has not actually commenced at the time of the clearance.
The expression “in the course of” commonly connotes a temporal relationship between two matters. In context, the use of the phrase in reg 5(1)(s) also has a temporal connotation, ie, by requiring that there be a temporal proximity between the clearance, on the one hand, and the fence construction on the other. In other words, reg 5(1)(s) does not authorise the clearance of the defined area of land with a view to the possible construction of a fence at some indefinite time in the future. The clearance must be temporally linked to the actual construction of a fence.
It is this aspect of reg 5(1)(s) which the Magistrate appears to have emphasised. That is evidenced by the significance which the Magistrate attached to the first defendant’s use of Area 2A for centre point pivot irrigation. As noted earlier, the Magistrate concluded, appropriately in my opinion, that there was compelling circumstantial evidence indicating that Area 2A had been cleared to facilitate centre point pivot irrigation. That being so, even if the first defendant had a long-term intention of constructing a fence in Area 2A, the clearance was not for the purpose of providing a strip of cleared land for a fence “in the course of construction” (or, as I would put it, a fence being constructed) so as to provide access for the purpose of establishing the fence.
Accordingly, I reject this challenge to the Magistrate’s reasons.
The Remaining Conditions in reg 5(1)(s)
If the Magistrate had found that the clearances had been carried out so as to provide access for the purposes of maintaining existing fences or establishing new fences, that finding would not have been sufficient, by itself, to bring the first defendant within reg 5(1)(s). The first defendant would still have had to establish three further matters, namely:
(i)the fences were reasonably required to control access by people or the movement of animals; and
(ii)the clearances were required to give reasonable access to the fences and were limited to the extent reasonably required to achieve that access; and
(iii)that there were no other practical alternatives (including, in the case of a new fence, to the position of the fence) which would have involved no clearance or the clearance of less vegetation or the clearance of less significant vegetation.
The Magistrate did not make any findings about these remaining matters. Both parties submitted that this Court should make the requisite findings, should it become necessary to do so.
Strictly speaking, my conclusions regarding the defendants’ submissions concerning the maintenance of “existing fences” and a “fence in the course of construction” makes it unnecessary to consider these three matters. However, in case this matter goes further, I will express my conclusions.
As to the first matter, the only evidence that fences were required for the restraint of stock came from the second defendant. Given the Magistrate’s adverse finding as to the reliability of his evidence, there is some doubt about whether that evidence should be acted upon. However, the Magistrate did say that he could not rule out the reasonable possibility that stock was to be re-introduced onto Overland Corner Station with a consequential need to repair or replace fencing. In addition, the evidence of the prosecution witnesses indicated that a fence was being constructed in Area 2A. This was a fence constructed of posts, iron droppers and cyclone mesh. The only evident purpose for such a fence is the restraint of stock. Such a fence would have been ineffective unless it was extended into Areas 2B and 2C. In relation to Area Two therefore, I am prepared to proceed on the basis that a fence running the length of the full strip was reasonably required to control the movement of stock.
I do not consider that the same conclusion can be reached in relation to Area One. The suggestion put forward by the defendants was that two parallel fences forming a race along the length of the strip along which stock could pass was intended. However, there was no evidence at all that a race comprising two parallel post and wire fences approximately 10 metres apart was reasonably required to control the movement of stock in or about Area One. Accordingly I do not regard the first condition as having been satisfied in relation to Area One.
The second condition is that the clearances were required to give reasonable access to the fences and were limited to the extent reasonably required to achieve that access. That condition cannot possibly be satisfied in relation to Areas 1A and 2A. In relation to Area 1A, it cannot reasonably be contended that the complete removal of an area of vegetation which was some 550 metres long and 50 metres wide was necessary in order to give reasonable access to a fence. In relation to Area 2A, it cannot reasonably be contended that the complete removal of an area of vegetation which was some 570 metres long and 25 metres wide was required to give reasonable access to a fence. The extensive removal of vegetation in those areas is explicable by reference to the first defendant’s wish to remove impediments to the full use of centre point pivot irrigation in those Areas.
In Areas 1B and 1C an internal strip some 15 metres wide had been cleared over the full length of those strips (800 metres and 300 metres respectively). It cannot reasonably be contended that a clearance of that width was necessary for the purpose of establishing a single fence. Nor was there any evidence indicating that a clearance of that width was necessary for the purpose of establishing two parallel fences to form a race along which stock may move.
On my understanding of the evidence, it did not disclose the dimensions of the clearances in Areas 2B and 2C. Mr Storry calculated the total area to be cleared as being approximately two hectares, but it was unclear how exactly that area was made up. That being so, the defendants did not establish that the clearances carried out in those areas were required for the purpose of providing reasonable access to a fence, and limited to the extent reasonably required for that purpose.
The third requirement that there be no other practical alternative causes particular difficulties for the defendants. An obvious alternative to erecting a fence down the middle of the two strips forming Areas One and Two would have been to erect a fence (including a race if that was required) on either side of Areas One and Two. No attempt was made in the evidence-in-chief of either the second defendant or Mr Schutz to establish that fences alongside Areas One and Two were impractical. In his cross-examination, Mr Schutz agreed that it would have been “very possible” to have erected new fences running alongside the stands of vegetation. In re-examination Mr Schutz suggested that it was easier to erect a new fence on an old fence line saying:
It is basically in regards to the one that’s in the laneway, it is basically there, you can use it again and it gives you access from one area to another.
I regard that answer as unconvincing. It is difficult to understand how it can be said to be easier to erect a new fence on an old fence line when to do so requires a substantial removal of vegetation, a task which would not have been required had the fence been erected alongside the vegetation. Furthermore, there was no evidence that a race (if a race was required) had to be in the position cleared in Areas 1B and 1C. There was, for example, no evidence that a race had to be in that position in order to join other races or to lead to gates in other fences on the property.
Accordingly, I conclude that the defendants had not, in any event, established each of the three other conditions necessary for the exemption in reg 5(1)(s) to apply.
I make one final observation concerning the extent of the clearances carried out by the first defendant. Regulation 5(1)(s) contemplates a clearance of a strip of not more than five metres in width on either side or both sides of an existing fence or a fence being constructed. It does not authorise a clearance of five metres in all cases. If a clearance of less than five metres on one side of a fence is sufficient to give reasonable access to the fence, then the entitlement in reg 5(1)(s) is limited to that lesser clearance.
Sufficiency of Reasons and Credibility Findings
The defendants’ submission, as I understood it, was that while the Magistrate said that his confidence in the credibility of the second defendant was seriously undermined, he did not explain how, if at all, he used that finding in his assessment of the purpose of the clearances in Areas 1A, 1B, 1C, 2B and 2C. It was said that in this respect the Magistrate had failed to give sufficient reasons.
I did not understand the defendants to submit that this contention, if upheld, should lead to any particular order being made on the appeal. That is, it was not suggested that the reasons were so seriously deficient that the trial had miscarried.
In any event, the Magistrate found that the first defendant did not bring itself within reg 5(1)(s) because it was not engaged in the maintenance of “existing fences” and because it had not been shown that the clearance of Area 2A had been carried out to provide access for the establishment of a new fence. The first conclusion (as to maintenance) did not rest on the Magistrate’s assessment of the second defendant’s credibility. The Magistrate found, accepting his evidence at face value, that it did not demonstrate that there was “an existing fence” within the meaning of reg 5(1)(s).
In relation to the second aspect, it was the absence of contemporaneity between the construction of a new fence and the clearance of the vegetation in Area 2A, together with the compelling circumstantial evidence that Area 2A had been cleared to facilitate centre point pivot irrigation which led the Magistrate to conclude that the first defendant did not bring itself within reg 5(1)(s). It is true that the second defendant denied in his evidence that the clearance of Area 2A had been for the purpose of facilitating centre point pivot irrigation and it is implicit in the Magistrate’s findings that he rejected that evidence. To that extent, the Magistrate’s conclusion about the second defendant’s reliability may have been engaged. However, it was not necessary for the Magistrate to repeat that it was his assessment of the second defendant’s evidence as unreliable which enabled him to reject that piece of evidence and to rely instead upon the compelling circumstantial evidence.
This ground of appeal fails.
This means that the defendants have not made out any of the grounds of their appeals against the convictions, and those appeals must fail.
The Appeal Against Sentence
The Magistrate heard detailed sentencing submissions from the parties on 25 and 26 November 2009. He sentenced both defendants immediately after the conclusion of the sentencing submissions on 26 November 2009. As noted earlier, the Magistrate imposed fines of $60,000 and $20,0000 respectively, and rejected a submission made on behalf of the second defendant that he should refrain from recording convictions.
The Magistrate sentenced the defendants on the basis that the clearance of Areas 1A and 2A was for the purposes of facilitating centre point pivot irrigation. He repeated, however, that he could not exclude the reasonable possibility that the clearance in Areas 1B, 1C, 2B and 2C may have been associated with the intended construction of replacement fencing. The Magistrate considered all the clearances to have been deliberate and did not consider that there were any significant positive efforts on the part of either defendant to prevent or avoid the commission of the offences. In particular, he was not satisfied that either defendant took reasonable care to avoid the commission of the offences.
The NVA gives expression to the community’s desire that native vegetation should be preserved. That desire is reflected in the steadily increasing penalties prescribed for the unlawful clearance of native vegetation.[18] Section 6 of the NVA states as one of the principle objects of the Act the conservation, protection and enhancement of native vegetation in order to prevent further reduction of biological diversity and degradation of the land and its soil, loss of quantity and quality of native vegetation, and loss of critical habitat.
[18] Between 1985 and 1991, the maximum penalty was a fine of $10,000 or a prescribed sum calculated at the rate of $1,000 per hectare of the land involved: Native Vegetation Management Act 1985, s 19. Between 1991 and 19 December 2002, the maximum fixed penalty was $40,000 and from 1991 until 25 August 2003, the prescribed sum was calculated at a rate of $2,000 per hectare. By the Native Vegation (Miscellaneous) Amendment Act 2002, s 20, the maximum fixed penalty and the prescribed rate per hectare were increased to $1,000 and $2,500 respectively.
The principles related to sentencing for offences of the present kind are well settled. Clearance of native vegetation is a serious offence. In ascertaining the relative seriousness of a particular offence, the amount of vegetation cleared, the effects on the environment caused by the clearance, and the length of time over which the clearance occurred are important factors.[19] Bearing in mind the regulatory nature of s 26(1) offences, general deterrence is particularly important in sentencing.[20] In addition, contraventions of s 26(1) are often difficult to detect. That also indicates the importance of general deterrence in sentencing for offences of the present kind.
[19] Dal Piva v Maynard [2000] SASC 349 at [39]; (2000) LGERA 165 at 171.
[20] Piva v Brinkworth (1992) 59 SASR 92 at 96; Hemming v Neave (1989) 51 SASR 427 at 428.
Contraventions of s 26(1) are aggravated when the environment is exploited for a commercial purpose, such as in this case for centre point pivot irrigation.[21] Any mitigating factors are, of course, also pertinent. Satisfaction that an offender took real and reasonable steps to comply with the NVA is usually regarded as mitigatory.[22] Evidence of a defendant’s good character will also be mitigatory.
[21] Lamattina v Gould [2009] SASC 130 at [43]; (2009) 103 SASR 587 at 596.
[22] Hemming v Lukin (1996) 67 SASR 248 at 251; Hemming v Mundy [2001] SASC 105 at [38]; (2001) 122 A Crim R 329 at 327; Lamattina v Gould [2009] SASC 130 at [34]; (2009) 103 SASR 587 at 595.
There were some aggravating features of the first defendant’s conduct in the present case. It had previously (on 15 November 1999) made an application to the Native Vegetation Council for permission to clear native vegetation. Consent (subject to certain conditions) was granted to the first defendant on 12 February 2001 to clear an area of approximately 2 hectares, but consent was refused in respect of an area approximately 33 hectares, within which the area referred to in these proceedings as Area 2A was located. This meant that the clearance of Area 2A (involving approximately 0.9 of a hectare) occurred in an area in respect of which permission for clearance had been specifically refused.
The reasons for the refusal of the application (which were communicated at the time to the first defendant) included the high degree of species’ diversity in the area. In addition, the Council considered that the first defendant’s proposed clearance could have implications for the habitats and migratory corridors for several bird species of conservation significance, including the Regent Parrot which is considered to be a vulnerable species. The Council was also concerned that the proposed clearance would contribute to the fragmentation of native vegetation and increase soil erosion generally in the area.
A second application for clearance approval was made by the first defendant on 19 November 2001 (and amended in January 2002) in respect of Areas One and Two. This application was never determined by the Native Vegetation Council.
The first defendant went ahead with the clearance of Areas 1A and 2A regardless, for the purpose of facilitating its centre point pivot irrigation activities.
The fact that the first defendant had been convicted on 2 April 2003 for a previous contravention of s 26(1) militated against any lenience being extended to it. On 9 November 1999 the first defendant had caused a 20 metre wide line of that native vegetation to be cleared so as to facilitate the laying of a pipeline to one of its centre point pivot irrigators. The cleared vegetation was buried in a pit. The first defendant was sentenced in 2003 on the basis that its contravention was deliberate and was for a commercial purpose. It was then fined $18,000.
The Magistrate regarded the clearance of Area 2A as the most serious of the offences followed by the clearance of Area 1A (which involved some 2.7 hectares). He regarded the clearances of Areas 1B, 1C, 2B and 2C as being less serious.
The Magistrate accepted, in the second defendant’s favour, that he had not been a director of the first defendant when it made the applications for consent to clearance of native vegetation in 1999 and 2001 and that he had not been a director of the first defendant when its previous conviction was recorded. However, the second defendant was aware of the previous clearance applications and, as a member of the Mitolo family, it is likely that he was aware of the conviction recorded against the first defendant’s previous director, Bruno Mitolo.
In relation to the sentence of the first defendant, the Magistrate said:
In the circumstances, I think it is appropriate to impose one penalty for all of those offences pursuant to s 18A of the Criminal Law (Sentencing) Act. As part of the process of assessing that penalty, I have considered appropriate nominal penalties for each of those offences, having regard to their relative seriousness. The offence charged in Count 5 [relating to Area 2A] attracted the highest nominal penalty, followed by the offence charged in Count 3 [relating to Area 1A]. The offences charged in Counts 4 and 6 attracted lesser penalties. In aggregating those notional penalties, I have also taken into account the totality principle and made adjustments.
The Magistrate then went on to impose a fine of $60,000.
The principal focus of the Magistrate’s sentencing remarks concerning the second defendant was an explanation of his rejection of the submission that he should not record convictions. In relation to the fine the Magistrate said simply “I impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act. I impose a fine of $20,000”.
On behalf of the first defendant it was submitted that the Magistrate had not given sufficient reasons, in particular, by not nominating the notional sentences for each offence in the way which the authorities suggest is appropriate,[23] and by not disclosing what adjustment had been made for the totality principle.
[23] R v Major (1998) 70 SASR 488 at 490; R v Waugh (2005) 93 SASR 274 at 284 [42]-[43].
It is true that the Magistrate did not nominate the individual notional sentences which he had aggregated. However, as the authorities, including R v Waugh[24] and R v Symonds,[25] make it clear, it is not always necessary to do so. It is also true that the Magistrate did not indicate what “adjustments” he made for the totality principle. In context, however, it can only have been an adjustment in the first defendant’s favour. Further, it is well settled that the totality principle has little application when a sentencing Judge or Magistrate fixes a single sentence under s 18A of the CLSA without first identifying notional individual sentences for each offence for which the offender is to be sentenced.[26] Accordingly, I do not accept that the failure to nominate the extent of any reduction on account of the totality principle was a sentencing error.
[24] Ibid.
[25] [1999] SASC 217 at [22].
[26] R v B, RWK [2005] SASC 84 at [24]; (2005) 91 SASR 200 at 205; R v M, REM [2008] SASC 348 at [32]; R v Tran [2009] SASC 341 at [43]; R v Cramp [2010] SASC 51 at [56].
The Magistrate was sentencing the first defendant for four offences, each of which carried a maximum penalty of $100,000. As already pointed out, there were aggravating features in the first defendant’s offending: the clearances were deliberate; they were for a commercial purpose; and they were carried out after applications for clearance consent had been refused. As the Magistrate noted, it seems that the first defendant determined to proceed regardless of the known prohibition on the clearance of native vegetation.
In my opinion, the fine of $60,000 imposed by the Magistrate was, in the circumstances of this case, modest. A fine of a greater amount would not have been unreasonable. In that context the submissions made on behalf of the first defendant suggesting that there was an inadequacy in the Magistrate’s reasons because he had not disclosed the notional sentences for each offence, or of the adjustment for the totality principle appear to be of a technical nature only and without regard to the substance of the matter.
I reject the appeal against sentence by the first defendant.
In relation to the fine of $20,000 imposed on the second defendant, it is true that the Magistrate did not explain expressly the way in which the fine of $20,000 was reached. However, it is reasonable to suppose that the Magistrate adopted the same process of accumulating notional individual penalties for each offence, and then checking for totality, as he did in the case of the first defendant.
Many of the features of the first defendant’s offending were also applicable to the second defendant. He, of course, did not have a prior conviction and so could be extended more lenience than could the first defendant. However, the aggravating features that the clearances were carried out deliberately and, in the case of Areas 1A and 2A, for a commercial purpose, also applied in the case of the second defendant. Further, as the Magistrate noted, there was no evidence of any remorse or contrition by the second defendant.
As I will indicate shortly, the second defendant, who had management responsibilities for Overland Corner Station, had made no plausible attempt to ensure that the first defendant did comply with the NVA. He left it to a farmhand to make his own enquiries and his own decisions about the approvals which were necessary and the clearances which were authorised.
The Recording of Convictions Against the Second Defendant
In my opinion, in the circumstances of the second defendant’s offending, a fine of $20,000 was modest. It too could easily have been more.
Accordingly, I dismiss the appeal against the fine imposed on the second defendant.
It was submitted, on behalf of the second defendant, that the Magistrate should have found good reason under s 16 of the CLSA not to record convictions against him in respect of the clearance of Areas 1B, 1C, 2B and 2C. Section 16 of the CLSA provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.
Although the offences created by ss 26(1) and 39 of the NVA are regulatory offences, s 16 of the CLSA can be invoked in the sentencing for those offences.[27] However, as was pointed out by Doyle CJ in Hemming v Lukin,[28] in the application of s 16 to regulatory offences, it is appropriate to consider whether there is evidence of positive efforts by the defendant directed to preventing or avoiding the commission of the offence in question.
[27] El Sayed v Commissioner for Consumer Affairs [2002] SASC 416, (2002) 224 LSJS 107; Weir v Police [2005] SASC 276 at [9].
[28] (1996) 67 SASR 248 at 251.
In the present case, the Magistrate concluded that there were no extenuating circumstances justifying an application of s 16. He noted that the clearances in Areas 1B, 1C, 2B and 2C took place after 2 April 2007, ie, after the second defendant became aware of the site inspection by the departmental employees on 2 April 2007. The Magistrate considered that the very fact of that inspection should have alerted the second defendant to possible problems with the clearances that were taking place. Despite that, he had not contacted the Department of Water, Land and Biodiversity Conservation, nor had he made any enquiries of the Department with respect to those clearances, nor had he done anything to prevent further clearances.
The actual work of clearance in each of Areas One and Two was carried out by a Mr Gebert, an employee of a company associated with the first defendant. The second defendant described Mr Gebert as a farmhand with responsibilities for the care of stock and for the maintenance and construction of fencing on Overland Corner Station. The second defendant, on the other hand, was the person with management responsibilities. Mr Gebert died in January 2009 and so no evidence could be led from him at the trial.
A review of the evidence indicates that instead of the second defendant making positive efforts to avoid a contravention of s 26(1), he effectively abrogated his responsibilities by leaving decisions concerning the clearance of the vegetation to Mr Gebert. The following passage from his evidence-in-chief is revealing:
Q.Did you turn your mind to whether, in the course of repairing the fences, any clearance of vegetation would occur or be required?
A.I didn’t take it into consideration at the time.
Q.Is there any reason for that?
A.Probably didn’t think of it at the time, just thought of the fact we just needed to get the stock into there and let’s fix the fences.
Q.Did you know precisely what would be involved in fixing or replacing the fences?
A.I presumed it would need a lot of new fencing materials.
Q.Other than that, did you turn your mind to whether it would be necessary to remove or clear any vegetation in order to replace the fences?
A.I presumed there would have been some trees there that would have been either overgrown on to the fence or into the fence, but of no great concern that I thought of at the time.
That passage of evidence revealed a lack of consideration by the second defendant for the first defendant’s responsibilities under the NVA. That lack of concern is puzzling bearing in mind the previous conviction of the first defendant, and the previous applications made by the first defendant to the Native Vegetation Council for consent to the clearance of vegetation (of which the second defendant was aware).
The absence of positive efforts by the second defendant to prevent an offence is also revealed by his later evidence-in-chief. He said that on one occasion when he noticed the extent of Mr Gebert’s clearance of vegetation in Area 1A he asked him “Is this all correct?”. The second defendant said that Mr Gebert responded by saying that he had investigated the matter by ringing the appropriate department and getting an understanding that what he was doing was correct.
To my mind, this evidence also reveals an abrogation of responsibility by the second defendant, a manager, to the farmhand Mr Gebert. There was no evidence that prior to that incident he had given any instructions at all to Mr Gebert as to what had to be done in order to comply with the NVA or, alternatively, that he believed such instruction to be unnecessary because Mr Gebert was conversant with the prohibitions in the NVA. In those circumstances, asking, after the event, a general question as to whether “this” was all correct can hardly be characterised as the taking of positive efforts to prevent or avoid a contravention of the NVA.
Further, as the Magistrate noted, even after the site inspection by the Departmental employees on 2 April 2007, the second defendant took no steps to investigate the situation, and took no steps to prevent the continued clearance of substantial of native vegetation.
The second defendant also referred to action which Messrs Schutz and Gebert took in 2001 and in 2005 in measuring certain areas on Overland Corner Station. As I understand it, these measurements were carried out with a view to determining where centre point pivot irrigation could be installed. In my opinion, the taking of those steps by Messrs Gebert and Schutz does not assist the second defendant in relation to the application of s 16 of the CLSA. He did not give any evidence to the effect that he was aware of the steps taken by Mr Gebert or Mr Schutz or that he had relied upon those steps in some way.
In addition, it is relevant that the clearances of Areas 1B, 1C, 2B and 2C occurred after the contraventions of s 26(1) resulting from the clearances of Areas 1A and 2A. Those clearances were made for the purposes of facilitating centre point pivot irrigation and were particularly serious. The absence of realistic steps by the second defendant to prevent further contraventions after the clearance of Areas 1A and 2A also counts against a conclusion that extenuating circumstances existed.
Having regard to these matters, I consider that the Magistrate was correct to conclude that there was no good reason, within the meaning of s 16 of the CLSA, not to record convictions against the second defendant.
Conclusion
For the reasons given above, I dismiss each of the appeals against the convictions and the appeals against sentence.
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