WEIR v POLICE

[2005] SASC 331

Supreme Court of South Australia

(Miscellaneous Appeal: Application)

WEIR v POLICE

Reasons for Ruling of The Honourable Justice Debelle (ex tempore)

19 August 2005

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

Application for extension of time to institute appeal - appeal by leave only - appeal 7 days out of time - merits of leave to appeal argued - no error of law or fact demonstrated by applicant - application for leave to appeal dismissed.

Criminal Law (Sentencing) Act 1988 ss 16, 17; Country Fires Act 1989 s 36; Supreme Court Rules 1987 rr 3.04, 94, referred to.

WEIR v POLICE
[2005] SASC 331

1. DEBELLE J (ex tempore).            This is an application for leave to appeal and for an extension of time within which to appeal.  It is convenient to deal first with the application for leave to appeal.

2. On 20 April 2005 the applicant pleaded guilty in the Mount Barker Magistrates Court to lighting or maintaining a fire in the open air during a fire danger season contrary to s 36(1) of the Country Fires Act1989.  He was convicted and fined $1000.

3. The circumstances of the offending were that the appellant had lit a fire for the purpose of burning a pile of blackberry bushes.  Late on the following day, strong gully winds in the area reignited the fire and caused it to spread out of control.  It was necessary to call nine country fire appliances but the fire could not be fully extinguished.  Two fire appliances remained at the scene overnight.  The fire burned through several properties and the appellant was sentenced on the basis that the fire had covered an area of 10 hectares.

4. The appellant appealed against the sentence and contended that in the circumstances the magistrate should not have recorded a conviction.  The appeal was dismissed by Duggan J on 22 July 2005.  The applicant now applies for leave to appeal to the Full Court.

5. Rule 94 of the Supreme Court Rules requires the application for leave to appeal to be made to the judge whose decision is complained of or to the Full Court. Pursuant to Rule 3.04 I dispense with the need to comply with that rule. I do so because Duggan J is on leave and it is not appropriate to burden the Full Court with this application.

6. Leave to appeal will only be granted where there are questions of general principle or importance to the parties or if the decision is attended with sufficient doubt and substantial injustice would occur if the decision should stand.

7. The main ground of this intended appeal is that Duggan J did not consider the failure of the magistrate appealed from to consider ss.16 and 17 of the Criminal Law (Sentencing) Act 1988.  An examination of the reasons of Duggan J clearly indicates that His Honour had regard to both of those provisions but believed that the circumstances of the offending were such that neither could be applied to the benefit of the applicant. Duggan J concluded that it was in all the circumstances appropriate that a conviction should be recorded and that the fine of $1000 should stand.  It is to be noted that the fine of $1000 is the minimum penalty.

8. It is clear that the Country Fires Act imposes substantial penalties because of the high risk of fire during the summer season and, in particular, the high risk of bushfire following the lighting of a fire at a time when a person neither has a permit or there is a ban upon lighting fires.  It is clear that the Act has a policy of imposing high penalties as a general deterrent to the community to prevent this kind of offending which has the capacity to cause real and substantial damage and loss.

9. The intended appeal does not raise any principles of general importance. The orders made by the magistrate were well within the sentencing discretion for the reasons noted by Duggan J in paras.14, 15 and 16 of his reasons.

10. In my view, there are no realistic prospects of success of this appeal.  The application for leave must therefore be dismissed.  I can appreciate the concern of the applicant that he must disclose that he has a criminal offence.  But as I pointed out to him in the course of argument, the nature of this offending is certainly not as serious as other offences committed by other members of the community. The order must therefore be application dismissed.

11. The orders will therefore be:

    1.       Application dismissed.

    2.       No order as to costs.