R v Dempsey - [2002] QCA 45

[2002] QCA 45

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 358 of 2001

THE QUEEN

BRETT DEAN DEMPSEY (Applicant)

BRISBANE

..DATE 22/02/2002

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court on 10 December 2001 to two offences committed some time between 20 December 2000 and 2 January 2001. They were destroying forest products contrary to section 56(1) of the Wet Tropics World Heritage Protection and Management Act 1993, and stealing with a circumstance of aggravation. On the same day he was sentenced to 12 months imprisonment. He seeks leave to appeal against that sentence.

During the period I have just mentioned the applicant cut down and removed 25 trees in an area of approximately one hectare of wet tropics world heritage-listed rainforest in the region of the Upper Barron River between Herberton and Malanda. The species of trees were Queensland Maple, Maple Silk Wood, Northern Silky Oak and Black Walnut. Most of the trees removed were over a hundred years old, the oldest of them being 300 years old. They were all very large trees. In fact it appears that they were selected because of their size. A public auction of the logs so yielded resulted in their sale at $45,000. However the learned sentencing judge accepted that had the applicant sold them he would have obtained substantially less than this.

Although the applicant eventually pleaded guilty he initially denied any involvement in the commission of these offences, told false stories and went to substantial lengths to avoid detection. The result was a lengthy and expensive investigation which ended only when the applicant pleaded guilty at the committal hearing.

The removal of so many large trees was a major task involving a number of items of heavy equipment. The applicant is a self-employed timber cutter. Moreover it is plain that the applicant embarked on this work for the purpose of commercial profit. It was premeditated, performed systematically and efficiently and elaborate efforts were made to avoid detection.

In addition the environmental harm done by the removal of so many old and mature trees was very serious. It may take in excess of a hundred years to repair and will be costly to do so. Significant other damage was caused to the area by the use of heavy machinery causing soil disturbance, compaction, and damage to immature plant species. The rainforest in this area is, it need hardly be said, of national and international significance and quite rare.

The applicant is 31 years of age whose only prior convictions are for assault occasioning bodily harm in 1994, and for carrying, in a public place, a weapon capable of being discharged in 1996.

The only mitigating factor in this case is the applicant's plea of guilty. No doubt that saved some time and expenditure of resources but it was, as I have said, one which occurred only at committal after the expenditure as I have also mentioned of considerable money and time by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dempsey

Details

AGLC: R v Dempsey [2002] QCA 45
Case: [2002] QCA 45
Decision Date: 22/02/2002

CaseChat Overview and Summary

In the Court of Appeal in Brisbane, the applicant, Brett Dean Dempsey, sought leave to appeal against his sentence of 12 months imprisonment for two offences. The offences were committed between 20 December 2000 and 2 January 2001, involving the destruction of forest products in contravention of the Wet Tropics World Heritage Protection and Management Act 1993, and stealing with a circumstance of aggravation. Dempsey had cut down and removed 25 trees from a wet tropics world heritage-listed rainforest, causing significant environmental harm. The court had to determine whether the sentence imposed was manifestly excessive.

The legal issue before the court was whether the sentence of 12 months imprisonment was manifestly excessive, considering the nature and severity of the offence. The court was required to consider the seriousness of the environmental damage, the premeditated and systematic nature of the offence, and the deterrent effect of a custodial sentence. The applicant argued that the sentence did not sufficiently consider his plea of guilty, despite the lengthy and expensive investigation that preceded it. The court compared the case with other similar cases, noting the unique aspects of this case, such as the deliberate environmental damage for commercial gain and the one-time nature of the act.

The court found that while the sentence was not outside the appropriate range, the plea of guilty did not warrant a reduction in the sentence. The court emphasised the importance of a custodial sentence in deterring future offenders, given the serious, blatant, and cynical nature of the offence. The court concluded that the sentence imposed was not manifestly excessive, and therefore dismissed the application for leave to appeal. The Court of Appeal upheld the original sentence, reflecting the gravity of the environmental damage and the need for effective deterrence in cases of this kind.

Orders