Whisson v Mead - [2006] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WHISSON v MEAD
[2006] SASC 195
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Vanstone)
3 July 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Application for leave to appeal to Full Court against decision of single Judge - merits of appeal also heard and determined - respondent convicted in Magistrates Court of clearing illegally, native vegetation - single Judge allowed appeal against sentence imposed by Magistrate - whether single Judge erred in taking into account monies expended in paying others to commit the offences - consideration of sections 10(1)(e) and 10(1)(ka) of the Criminal Law (Sentencing) Act (SA) - appeal allowed.
Native Vegetation Act 1991 (SA) s 26; National Parks and Wildlife Act 1972 (SA) s 47(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(e), s 10(1)(ka), referred to.
Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 ; R v Adami (1989) 51 SASR 229; R v Gee (1988) 148 LSJS 286; R v Carpentieri (2001) 81 SASR 164; R v Kalache (2000) 111 A Crim R 152; NSW Crime Commission v Farah (2003) 142 A Crim R 108 ; R v Allen (1989) 41 A Crim R 51 ; R v Brough [1995] 1 NZLR 419 ; R v Errigo (2005) 92 SASR 562, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Forfeiture"

WHISSON v MEAD
[2006] SASC 195
Full Court: Bleby, Gray and Vanstone JJ
BLEBY J: I agree with the orders proposed by Gray J and with his reasons.
GRAY J:
Application for Leave to appeal

This is an application for leave to appeal to the Full Court against a decision of a Judge of this Court allowing, in part, an appeal against a sentence imposed by a magistrate. The application was referred into open Court and the parties were requested to present full argument. The respondent chose not to be represented on the hearing of the application before the Full Court.
The question raised by this proposed appeal is whether monies expended in paying others to perform an unlawful act may be taken into account in determining the amount of a fine to be imposed for an offence arising out of that unlawful act.
Background
The respondent, Ian William Mead, was convicted, following a trial in the Magistrates Court, of two offences: the first pursuant to section 26 of the Native Vegetation Act 1991 (SA), which prohibits the clearing of native vegetation, the maximum penalty for which is a fine of $100,000; the second pursuant to section 47(1)(a) of the National Parks and Wildlife Act 1972 (SA), which prohibits the taking of a native plant from a reserve, the maximum penalty for which is a fine of $2,500.
The magistrate found that the respondent had paid two brush cutters $6,800 to harvest unlawfully some 2000 bundles of native vegetation on his behalf. At…

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 Whisson v Mead

Details

AGLC: Whisson v Mead [2006] SASC 195
Case: [2006] SASC 195
Decision Date: 3 July 2006

CaseChat Overview and Summary

The case of Whisson v Mead involves an appeal against a decision of a single Judge, who had allowed an appeal by the respondent, Ian William Mead, against the sentence imposed by the magistrate. The respondent had been convicted of two offences under the Native Vegetation Act 1991 (SA) and the National Parks and Wildlife Act 1972 (SA), and fined $30,000 by the magistrate. The single Judge reduced the fine to $23,000, taking into account that the respondent had paid $6,800 to two brush cutters to perform the unlawful act. The applicant sought leave to appeal to the Full Court against the single Judge's decision.

The central legal issue was whether the single Judge erred in taking into account the monies expended by the respondent in paying others to commit the offences when determining the amount of the fine. The applicant argued that the single Judge should not have considered the loss suffered by the respondent in paying the brush cutters, as it was a factor that should not be taken into account when imposing a fine. The respondent, on the other hand, argued that the single Judge was correct in taking into account the loss suffered by the respondent, as it was a relevant factor in determining the appropriate penalty.

The Full Court allowed the appeal and set aside the fine of $23,000 imposed by the single Judge. The Court held that the single Judge erred in taking into account the loss suffered by the respondent in paying the brush cutters, as it was not a relevant factor in determining the appropriate penalty. The Court held that the loss suffered by the respondent in paying the brush cutters was a consequence of the respondent's decision to commit the offence, and should not be taken into account when imposing a fine. The Court held that the appropriate penalty should be determined by reference to the seriousness of the offence and the need to deter and punish the respondent, and not by reference to the respondent's financial circumstances.

The Full Court set aside the fine of $23,000 imposed by the single Judge and ordered that the fine of $30,000 imposed by the magistrate be restored. The Court also ordered that the respondent pay the costs of the appeal to the single Judge and the applicant's costs of the application for leave and of the appeal (excluding the attendance on the hearing before the Court) to be taxed.

Orders

Orders of the court

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Background

Background to the litigation

The question raised by this proposed appeal is whether monies expended in paying others to perform an unlawful act may be taken into account in determining the amount of a fine to be imposed for an offence arising out of that unlawful act. Background The respondent, Ian William Mead, was convicted, following a trial in the Magistrates Court, of two offences: the first pursuant to section 26 of the Native Vegetation Act 1991 (SA), which prohibits the clearing of native vegetation, the maximum penalty for which is a fine of $100,000; the second pursuant to section 47(1)(a) of the National Parks and Wildlife Act 1972 (SA), which prohibits the taking of a native plant from a reserve, the maximum penalty for which is a fine of $2,500. The magistrate found that the respondent had paid two brush cutters $6,800 to harvest unlawfully some 2000 bundles of native vegetation on his behalf. At trial, the respondent contended that the brush had been harvested on his and his neighbours’ properties. However, the magistrate accepted the scientific evidence that at most 140 bundles could have come from that area and that the balance must have been cut in the Billiat Conservation Park, a large conservation park in the Mallee area of South Australia adjoining the respondent’s property. The native vegetation involved was Melaleuca unincata, commonly known as broom brush, used in the fencing industry. The approximate value of the brush cleared by the respondent was $17,000 wholesale. Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the magistrate imposed the one penalty in respect of both offences and fined the appellant $30,000. In addition, the magistrate ordered the forfeiture of two tractors and a trailer, found to have been involved in the respondent’s taking of the brush, as well as the bundles of brush. The respondent appealed to this Court against both convictions and sentence. A single Judge dismissed the appeal against the convictions. He allowed the appeal against sentence, ordered that the fine of $30,000 imposed by the magistrate be set aside and imposed a fine of $23,000 in lieu thereof. The Judge’s reasoning for so doing was set out in the following terms:[1]Were it not for one particular matter, I do not think that the penalty imposed by the magistrate could be regarded as so high as to be excessive. That matter is that the appellant had paid away $6,800 to the two men for the cutting of the Brush. If the monetary penalty of $30,000 stands, the appellant will, in effect, suffer a loss of $36,800 in addition to the forfeiture of his equipment.Looked at in that light, the financial penalty imposed by the magistrate is, in my opinion excessive. It does seem to me that the magistrate failed to take appropriate account of the loss suffered by the appellant by his paying away of the $6,800 for the Brush which is now to be forfeited.For this reason, I would allow the appeal against sentence. Instead of a monetary penalty of $30,000, I would impose a monetary penalty of $23,000. It is against this part of the decision that the applicant seeks to appeal.[1] Mead v Whisson [2006] SASC 69 at [71]-[73].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The approach of the magistrate and of the single Judge on appeal in relation to the forfeiture of the equipment was consistent with that approach, and there has been no appeal from the decision of the Judge to confirm that forfeiture order of the magistrate. Such considerations can have no application to the payment of money to another for no other purpose than the purpose of committing the offence.Conclusion I would grant leave to appeal. I would allow the appeal. The orders setting aside the fine imposed by the magistrate and imposing a fine of $23,000 in lieu thereof ought to be set aside. The order of the single Judge as to the costs of the appeal should be set aside. The respondent should be ordered to pay the cost of the appeal to the single Judge fixed at $150.00. The respondent should also be ordered to pay the appellant’s cost of the application for leave and of this appeal (excluding the attendance on the hearing before this Court) to be taxed. VANSTONE J: The respondent was charged on complaint with having cleared, between June and August 2003, native vegetation (Broom Bush) contrary to s 26 Native Vegetation Act 1991 and taking a native plant from a reserve contrary to s 47(1)(a) National Parks and Wildlife Act 1972. After a trial before a magistrate he was convicted. Utilising s 18A Criminal Law (Sentencing) Act 1988, the magistrate imposed a fine of $30,000. He further ordered forfeiture of two tractors used to harvest the Broom Bush, as well as the harvest itself. The respondent appealed against his conviction and penalty. A judge of this Court dismissed the appeal against conviction, but allowed the appeal against sentence. He did so on the basis that in fixing the monetary penalty the magistrate had not taken into account that the amount of $6,800 paid by the respondent to two persons to unlawfully harvest the vegetation had been lost to him. The judge proceeded to deduct that amount from the monetary penalty. The application is said to raise a question of general principle, being whether monies expended in paying others to perform an unlawful act can or should be taken into account when determining the quantum of a fine to be imposed for that act. The applicant contends that no account of the appellant’s loss should have been taken. He seeks a recognition of the relevant principle and restoration of the monetary penalty fixed by the magistrate. As the forfeitures were ordered pursuant to the Native Vegetation Act 1991, the Criminal Assets Confiscation Act 1996 (now replaced by the Criminal Assets Confiscation Act 2005) has no application. The Native Vegetation Act does not stipulate how the fact of forfeiture should be weighed in fixing penalty. However, under s 10(1)(ka) Criminal Law (Sentencing) Act 1988 the court was obliged to have regard to the nature and extent of the forfeiture to be imposed, except where it merely neutralised a benefit obtained through the commission of the offence. It seems clear in this case that the Broom Bush was such a benefit and the loss to the appellant was to be disregarded. However the forfeiture of the tractors was to be taken into account in determining sentence.

Ratio Decidendi

Legal Principle Established

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