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  •   Notable Unreported Decision

McDonald v Holeszko

 

[2019] QCA 285

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

McDonald v Holeszko [2019] QCA 285

PARTIES:

McDONALD, Daniel James
(applicant)
v
CHRISTOPHER JOHN HOLESZKO
(respondent)

FILE NO/S:

CA No 4 of 2019

DC No 1 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2018] QDC 204 (Dearden DCJ)

DELIVERED ON:

6 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2019

JUDGES:

Sofronoff P and Philippides JA and Flanagan J

ORDERS:

  1. Grant the application for leave to appeal against sentence only.
  2. Allow the appeal against sentence.
  3. In lieu of the orders made by the learned magistrate in respect of the fine and costs:
    1. The applicant is fined a global sum of $5,000.
    2. Pursuant to s 68C of the Vegetation Management Act 1999 (Qld), the applicant pay investigation costs and outlays fixed at $5,000.
    3. In respect of the proceedings in the Magistrates Court, the District Court and this Court, there be no order as to costs.
    4. The fine of $5,000 and investigation costs and outlays of $5,000 are referred to the State Penalties Enforcement Registry.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the applicant seeks leave to appeal against his conviction after trial of six counts of carrying out assessable development without an effective development permit – where the applicant is one of the registered proprietors of a freehold interest in rural property – where the applicant cleared vegetation for the purposes of his livestock business – where it is asserted that the applicant held an honest albeit mistaken belief that he was entitled to clear vegetation – whether the applicant’s clearing of vegetation was an exercise of an honest claim of right

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and his wife were charged with six counts of carrying out assessable development without an effective development permit – where the applicant was found guilty but his wife was acquitted – where the magistrate imposed a fine of $40,000 and ordered the applicant to pay the prosecution’s investigation and legal costs – where the applicant’s livestock business has been struggling due to the effects of drought – where the applicant asserted that the fine and the prosecution’s costs imposed a crushing burden on him and his family – whether the magistrate took into account the applicant’s financial circumstances – where the applicant appealed to the District Court with the appeal being dismissed – whether the costs ordered at first instance were appropriately apportioned to the applicant – whether the fine and costs imposed were manifestly excessive

Justices Act 1886 (Qld), s 157

Penalties and Sentences Act 1992 (Qld), s 48

Sustainable Planning Act 2009 (Qld), s 578, s 682

Vegetation Management Act 1999 (Qld), s 68C

Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, cited

Burns v State of Queensland & Croton [2006] QCA 235, cited

Burns v State of Queensland & Croton [2007] QCA 240, cited

Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 1) [2017] QMC, unreported, Magistrates Court at Charleville, Magistrate Hasted, 16 March 2017, related

Director-General Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31; [2009] NSWLEC 137, cited

Manning v Queensland Police Service [2017] QCA 151, cited

Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30, cited

R v Cunliffe [2004] QCA 293, cited

Scriven v Sargent (No 2) [2016] QDC 16, distinguished

Scriven v Sargent (No 2) [2018] 1 Qd R 282; [2017] QCA 95, applied

Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited

COUNSEL:

The applicant appeared on his own behalf

B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Department of Natural Resources, Mines and Energy - Legal for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Flanagan J.
  2. [2]
    PHILIPPIDES JA:  I agree with the reasons of Flanagan J and the orders proposed by his Honour.
  1. [3]
    FLANAGAN J:  On 10 August 2017, after a six day trial in the Charleville Magistrates Court, the applicant, Daniel James McDonald, was found guilty of six offences of carrying out assessable development without an effective development permit contrary to s 578(1) of the Sustainable Planning Act 2009 (Qld) (SPA).[1]  He was convicted of these offences but no convictions were recorded.  The magistrate imposed a global fine of $40,000 and ordered the applicant to pay $86.40 costs of court, professional costs of $6,275, investigation costs of $46,397.70 and outlays of $19,709.72.  The fine and costs totalled $112,468.82.  An order was made referring the amount of the fine and costs to the State Penalties Enforcement Registry (SPER).  The applicant’s wife, Katrina Ann McDonald, who was charged jointly with the applicant, was acquitted of the same six charges.
  2. [4]
    The applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) against both conviction and sentence.  The primary judge dismissed the appeal.[2]
  3. [5]
    The applicant seeks leave to appeal against the decision of the primary judge pursuant to s 118 of the District Court of Queensland Act 1967 (Qld).
  4. [6]
    Leave to appeal will usually be granted where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[3]
  5. [7]
    For the reasons which follow I would refuse the application for leave to appeal against conviction but grant leave to appeal against sentence and allow the appeal.

Background

  1. [8]
    Mr and Mrs McDonald are the registered owners as joint tenants of a property known as “Wyrapa”.  The property is located 120 kilometres north-west of Charleville in Western Queensland.  It consists of two adjacent freehold parcels of land.  In total the property is approximately 13,727 hectares in size.[4]  They conduct a livestock grazing and breeding business on the property.[5]  The six charges concern allegations that Mr and Mrs McDonald unlawfully cleared native remnant vegetation, mostly mulga and Poplar Box, between April 2013 and April 2015.  The total area of land cleared was alleged to be approximately 1,838.3 hectares.[6]  The clearing was for the purpose of feeding livestock in the following circumstances identified by the magistrate:

“For at least the last five years, Mr McDonald says that he and his family have been battling the effects of drought.  He says the effects of drought have had a devastating effect on the family business.  It has left his family physically and emotionally exhausted.”[7]

  1. [9]
    The clearing was identified by investigators from an examination and analysis of historical and current satellite imagery and aircraft photography of the cleared areas on the property.[8]  Mr McDonald was contacted by the complainant, Mr Holeszko, on 4 March 2014.  The purpose of the phone call was to discuss satellite-detected changes that had been identified on the property.[9] 
  2. [10]
    Mr Holeszko explained to Mr McDonald that he had been unable to identify any permits or authorities that could explain the changes seen in the satellite imagery.[10]  Mr McDonald indicated that he had done fodder harvesting.[11]  New amendments to the Vegetation Management Act 1999 (VMA) and the Fodder Harvesting Self Assessable Code, which were applicable to the property, were discussed.[12]  The Fodder Harvesting Self Assessable Code in effect permitted Mr McDonald to clear 50 per cent of the property every 20 years.[13]
  3. [11]
    A senior natural resource management officer with the Department of Natural Resources and Mines (DNRM), Seamus Batstone, attended the property on 14 November 2014.  This was for the purpose of conducting a roadside inspection to identify areas that had been cleared.[14]
  4. [12]
    On 29 April 2015 Mr Holeszko, with other officers, attended the property with a warrant under the VMA to conduct a field inspection.  Mr McDonald explained to the officers why clearing was taking place on the property:[15]

“It’s still taking place cause we’re still in drought.  We are still feeding now OK.”

  1. [13]
    On completion of the inspection Mr Holeszko issued a stop work notice under the VMAMr McDonald has complied with this notice.
  2. [14]
    On 9 October 2015 Mr and Mrs McDonald attended the Charleville Police Station to speak to investigators.  In a recorded exchange, Mr McDonald, when asked who was responsible for making decisions in relation to clearing of vegetation on the property, responded, “We as owners of the property.  …  So, as far as who is responsible we are all responsible.  We all own the property.  We all undertake works on the property.  It’s our home.”[16]
  3. [15]
    On 19 January 2016 Mr and Mrs McDonald were jointly charged with six offences of contravening s 578(1) of the SPA.[17]  Both entered pleas of not guilty on 19 April 2016 and a summary trial of the charges commenced on 18 August 2016 and continued for six sitting days until 27 April 2017.  At the summary trial Mr and Mrs McDonald were self-represented.  Mr McDonald continued to be self-represented on his appeal to the District Court and before this Court.
  4. [16]
    The prosecution called five witnesses.  After the close of the prosecution case on 9 February 2017 Mr and Mrs McDonald each made a no-case submission.
  5. [17]
    On 16 March 2017 the magistrate determined that both Mr and Mrs McDonald had a case to answer in respect of the six charges.[18]  They elected not to give or call evidence.
  6. [18]
    Mrs McDonald was sought to be made criminally liable pursuant to s 7 of the Criminal Code.  While the magistrate determined that there was sufficient evidence to overcome Mrs McDonald’s no-case submission, he ultimately found Mrs McDonald not guilty of the six offences.  The prosecution not only relied on the statements made by Mr McDonald on 9 October 2015 concerning who was responsible for the clearing, but also sought to establish Mrs McDonald’s liability as a co-owner of the property in circumstances where the clearing could not have occurred unless Mrs McDonald at least counselled or aided another to do the clearing.[19]  It was therefore incumbent on the prosecution to prove each of the elements of the same six offences in respect of Mrs McDonald for which Mr McDonald had been charged.  In acquitting Mrs McDonald the magistrate was not satisfied that the evidence adduced against her rose to the level of involvement contemplated by the authorities to attract criminal responsibility in respect of either s 7(1)(c) or s 7(1)(d) of the Criminal Code.[20]

Leave to appeal against conviction

  1. [19]
    In seeking leave to appeal against conviction Mr McDonald primarily relied on the same arguments rejected by the magistrate and the primary judge.
  2. [20]
    Mr McDonald submits that as one of the registered owners of the property he has a statutory right to the effective use and economic benefits of all vegetation upon, and forming part of, the property.[21]  He asserts that the clearing of vegetation on his property for the purposes of feeding livestock in a period of prolonged severe drought was in the exercise of an honest claim of right in accordance with s 22(2) of the Queensland Criminal Code.  This Court has, however, previously decided that a defence under s 22 is not available as a defence to the deliberate clearing of vegetation contrary to statute even if it were assumed that there was sufficient evidence to show that Mr McDonald honestly believed the state of the law permitted him to clear vegetation in the way that he did.[22]
  3. [21]
    In Scriven v Sargent (No 2) Boddice J, with whom Morrison JA and Dalton J agreed, stated:[23]

“The belief claimed by the applicant amounted to no more than an assertion that he honestly believed he had an entitlement to act in relation to the native vegetation.  That assertion amounts to no more than an allegation he was unaware of the effects of the relevant legislation.  Such a claim, even if held honestly, is not protected by s 22 as it merely amounts to ignorance of the law.”

Mr McDonald has not demonstrated that this Court’s decision in Scriven v Sargent (No 2) is plainly wrong.  To the contrary there is no reason to doubt the correctness of the decision.

  1. [22]
    Mr McDonald further submits that in relation to charges 4, 5 and 6 he should have been charged under s 574 of the SPA rather than s 578 of that Act.[24]  The fact that it may have been open to charge Mr McDonald with an offence under s 574 rather than s 578 is irrelevant to the validity of his convictions.  There is no suggestion by Mr McDonald that the magistrate failed to identify the necessary elements of the offence created by s 578, nor is there any challenge to the magistrate’s findings of fact.
  2. [23]
    Mr McDonald also submits that both the magistrate and the primary judge failed to give proper consideration to the application of s 682 of the SPA.[25]  Section 682, however, does not apply to the present matter.[26]  Mr McDonald further submits that the offence provision under s 578 is incompatible with the rights of the owner of freehold property under the Land Act 1994 (Qld), the Property Law Act 1974 (Qld) and the Land Title Act 1994 (Qld).  Such a proposition is contrary to authority.[27]
  3. [24]
    The applicant further submits that as neither the VMA or the SPA is registered on the freehold land register, he “has been led into error and incrimination for the act of exercising his ‘right of use’ of his vegetation”.[28]  The provisions of Chapter 5 of the Criminal Code do not, however, provide for any defence of officially induced error of law.[29]
  4. [25]
    None of the matters raised by Mr McDonald reveal a reasonable argument that there is an error to be corrected.  I would therefore refuse leave to appeal against conviction.

Leave to appeal against sentence

  1. [26]
    It is first necessary to outline the course of proceedings both before the magistrate and the primary judge.  On 10 August 2017 the magistrate published written reasons.[30]  Mr McDonald was found guilty of each of the six offences and Mrs McDonald was acquitted and discharged.  The prosecution was not in a position to proceed to sentencing submissions on that day.  Mr Power, counsel for the complainant, foreshadowed that the sentencing hearing would be relatively complex because the question of fines and restoration orders were generally the subject of evidence after conviction.[31]  Mr Power foreshadowed that the prosecution would be seeking orders with regard to restoration notices and would be putting on evidence as to the environmental impact of the clearing.[32]
  2. [27]
    Mr McDonald enquired of the magistrate whether in making submissions on sentence he was required to do so from the witness box or in written form.  The magistrate informed Mr McDonald that he was not required to give evidence but could make submissions from the bar table and hand up any material upon which he sought to rely.[33]
  3. [28]
    The sentencing proceedings resumed on 13 October 2017.  The prosecution tendered a number of reports including a report by Dr Don Butler entitled “Assessment of impacts on biodiversity from clearing of remnant vegetation on Lot 4 L073 and Lot 7 L070”.[34]  For the purpose of compiling his report Dr Butler had not inspected the property.  By reference to the nature of the vegetation cleared and the extent of clearing Dr Butler sought to identify both the direct and indirect impacts.  As to direct impacts, from a search of standard data sources Dr Butler identified “[20] possible threatened species that may occur in the vicinity of the [cleared] areas… and may therefore have been affected by the clearing”.[35]
  4. [29]
    Dr Butler acknowledged in his report that in reality most of these threatened species were unlikely to have been within the cleared areas at the time of clearing.[36]  He gave oral evidence.  In cross-examination by Mr McDonald Dr Butler accepted that he had not inspected the property and did not have any direct evidence of any death of animals resulting from the clearing.[37]  In his sentencing remarks the magistrate discounted Dr Butler’s report, noting that there had been “substantial reliance by [him] on secondary sources and models and assumptions, which appear[ed] to have been of general application” not specific to the property.[38]  The magistrate further noted that Dr Butler resiled under cross-examination from a number of the conclusions stated in his report.[39]
  5. [30]
    The prosecution also tendered two reports by Seamus Batstone.  The first is a two page report dated 8 September 2017 entitled “Soil Erosion”.[40]  The second is a three page report entitled “Financial Benefit” dated the same date.[41]  Mr Batstone gave evidence and was cross-examined by Mr McDonald.  The magistrate also discounted the opinions expressed by Mr Batstone because his general conclusions were not specific to the property.  Further, the magistrate observed that Mr Batstone also resiled under crossexamination from some of his opinions.[42]
  6. [31]
    The prosecution tendered an affidavit of Karen Mant.[43]  Ms Mant is a lawyer employed by the DNRM.  The affidavit was in support of the Department’s application for costs in the total sum of $72,468.82.  The claim included legal costs pursuant to ss 1 and 2, Part 2, Sch 2 of the Justices Regulation 2014, investigation costs pursuant to s 68C of the VMA and disbursements for travel and accommodation of counsel and the Department’s instructing solicitor.  A claim was also made for the cost of trial transcripts from Auscript in the amount of $7,893.20.
  7. [32]
    The prosecution tendered an indicative market valuation document dated 10 October 2017 from the State Valuation Services.[44]  The indicative market valuation was $685,000.  The property was not inspected for the purposes of this valuation. Mr Power relied on this valuation to submit that as Lot 4 was purchased for $154,000 in 2003 and Lot 7 for $190,000 in 2006, Mr and Mrs McDonald had enjoyed a capital gain of approximately $345,000.[45]
  8. [33]
    The prosecution also tendered an advertisement entitled “McDonald Plant Hire Pty Ltd” advertising for hire polypipe/cable laying equipment.[46]  This advertisement was tendered by the prosecution to support a submission that Mr McDonald had a secondary source of income other than the property.[47]  Mr McDonald explained that this advertisement was from 2013 and constituted a failed attempt to earn income from hiring out a tractor.[48]
  9. [34]
    Mr McDonald tendered a folder of documents, which included a letter dated 15 September 2017, together with attachments from Angie Bowden, a rural financial counsellor.[49]  The attachments included a summary of the financial counselling and support that Mr and Mrs McDonald had received from the Rural Counselling Service, together with a business performance analysis.  Mr McDonald explained why he had included this letter and attachments:[50]

“I just put it in to my material, clearly to demonstrate the fact that I have been the recipient of the Farm Household Allowance and that it has now finished and it also seems to give a – an overview of the performance of the farm business throughout that period.  As a part of the reviews for receiving Farm Household Allowance, financial statements have to be regularly updated to Centrelink.  The Rural Financial Counselling Service have access to that and if it’s in any way demonstrated that the client is able to support themselves, well, Farm Household Allowance ceases.”

  1. [35]
    Mr McDonald further explained to the magistrate:[51]

“The Farm Household Allowance is not available to anybody on a farm unless they are in a position where they cannot sustain themselves.”

  1. [36]
    Relevantly the attachments contained the following information:[52]

“Producers generally employ drought management strategies of supplementing feeding and conservative stocking in order to maintain livestock numbers.  This commenced in early 2013 at Wyrapa.  It is evident that numbers were lightened off and a sale of 100 head more than usual given normal conditions in 2012 occurred.  All progeny were sold in 2013 to preserve the cow condition.  Older Cows were also culled from the herd and sold. 

It is evident from the financial information provided that the business has endured impacts of prolonged drought all of which are reflected in your trading results including;

 Lower calving percentages resulting in reduced numbers of sale stock.

 Increase in direct sales of production e.g. fodder

 Increased Overhead expenditure on drought related items such as fuel

 A reduction in stock numbers by 50% over the last 5 years of drought”

  1. [37]
    The attachments also detailed the trading results for the years 2012 to 2016, which showed losses being incurred in 2013, 2014 and 2015.  Mr McDonald’s material also included photographs for the purposes of showing the regrowth potential of vegetation and that regrowth was part of the management of the property.[53]
  2. [38]
    Mr McDonald further explained his financial means to the magistrate in the following terms:[54]

“My available cash asset is currently $231.81.  For a breakdown of my overall asset value I have estimated a property value of $408,000 of which I would like to hope I have a half share which would be [$]204,000.  I hope to have a half share in a 17 year old motor car parked out on the street at the moment.  I believe that car is worth $8,000 of which I hope to have a share of [$]4,000.  Our farm business has a truck 22 years old I believe is worth $8,000.  I hope my share is [$]4,000.

We have one tractor which is valued at $12,000 of which I hope to have a half share of $6,000.  And we have another tractor that is the tractor that is mentioned in this advertisement and I believe has a value of $4,000 of which I hope to have a value of $2,000.  That is $220,000.  I have valued the stock on our property at approximately $250,000.  However, the value of those stock is immediately offset by the fact that I do have a debt to the Suncorp Bank, a stock mortgage showing an outstanding balance of $254,000.”

  1. [39]
    Mr McDonald also identified that his half share of miscellaneous assets and personal effects would be approximately $15,000 but this was in circumstances where he and his wife had an unsecured debt, primarily credit card debt, of $30,000.  This credit card debt had been accumulating over the drought period, particularly in order to sustain essential living.[55]
  2. [40]
    In his written submissions to the magistrate Mr McDonald referred to the fact that he was the father of three dependent children and was the sole provider for his family.  He is a volunteer rural fire brigade member in the Western Langlo Brigade.  In this role he also volunteers the use of his equipment, machinery and fuel in order to fight fires.[56]
  3. [41]
    Mr McDonald submitted to the magistrate that the costs sought by the prosecution were unjustifiably excessive.  He referred to the fact that the prosecution had caused his wife to answer the same charges with which he had been charged in circumstances where the prosecution, in addressing Mrs McDonald’s no case submission, had accepted that it had a much weaker case against her.[57]
  4. [42]
    Mr McDonald highlighted to the magistrate that his family had already suffered a substantial financial and emotional burden as a result of the prosecution.[58]
  5. [43]
    Having outlined his financial situation, Mr McDonald’s primary submission to the magistrate was that, “to apply any burden of penalty and costs upon me the defendant in this case would be to make a mockery of justice.  It is therefore my submission that an order pursuant to the Penalties and Sentences Act 1992, s 19(1)(a) is both sufficient and appropriate.”[59]
  6. [44]
    In spite of Mr Power foreshadowing that the prosecution would be seeking restoration orders, no such orders were sought.  However, on 26 October 2017, which was only 13 days after Mr McDonald had been sentenced, DNRM issued a Restoration Notice pursuant to s 54B of the VMA.[60]  The notice requires Mr McDonald to rectify “the restoration area”, which equates with the areas of clearing the subject of the six charges.  The notice identifies as the “required outcome” that the restoration area must be allowed to regrow to reach remnant vegetation status.  The notice remains in force until DNRM are satisfied that native vegetation in the restoration area has restored back to remnant vegetation status:

"(i) [c]overing more than 50 per cent of the undisturbed predominant canopy; and

  1. (ii)
    [a]veraging more than 70 per cent of the vegetation’s undisturbed height; and
  1. (iii)
    [c]omposed of species characteristic of the vegetation’s undisturbed predominant canopy;

[o]r, for 20 years whichever is less.”

  1. [45]
    The Restoration Notice is registered on title .[61]  As the Restoration Notice was not issued until after Mr McDonald was sentenced, the magistrate was unable to take into consideration the effects of the Restoration Notice.  Mr McDonald applied to tender the Restoration Notice together with other material as fresh evidence in the District Court.  This application was refused by the primary judge.[62]  In this Court Mr McDonald again applied to tender the Restoration Notice and other material as fresh evidence.  The respondent did not object to the tender and the evidence was received by the Court.[63]  The result is that this Court, in exercising the sentencing discretion afresh, does so by reference to material that was not considered by either the magistrate or the primary judge.

The Magistrate’s sentencing remarks

  1. [46]
    The magistrate noted that the maximum penalty for each offence was 1,665 penalty units.  The value of a penalty unit was $100, therefore the maximum fine was $166,500.[64]
  2. [47]
    He identified that the maximum penalty was intended to act as a deterrent to the illegal clearing of native vegetation.  The magistrate therefore considered that the principle which carried the most weight was the need for general and personal deterrence.[65]
  3. [48]
    He referred to the area of land cleared being 1,838 hectares and the clearing occurring over approximately two years.  He took into account that the vegetation cleared was from a least-concern regional eco-system.[66]
  4. [49]
    The magistrate noted that the applicant had no previous convictions and had made significant contributions to the community.[67]  He took into account that the clearing had occurred in the context of a prolonged drought that had been ongoing for years.[68]
  5. [50]
    He considered that there was not a significant level of cooperation by the applicant with investigators.[69]
  6. [51]
    The magistrate referred to s 48 of the Penalties and Sentences Act, which provides:

Exercise of power to fine

  1. (1)
    If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account—
  1. (a)
    the financial circumstances of the offender; and
  1. (b)
    the nature of the burden that payment of the fine will be on the offender.”
  1. [52]
    The magistrate noted that a significant amount of the sentencing submissions had been taken up by the financial circumstances of the applicant.  The magistrate thereafter observed:[70]

“I will, as we are now back in open Court, I will not go into those specific details as indicated to the defendant, but simply the Court will say that the Court has noted the detail into which the parties have gone concerning Mr McDonald’s personal financial circumstances.”

  1. [53]
    This appears to be a reference to discussions not held in open court.  As I have outlined above, however, Mr McDonald made detailed submissions in open court as to his financial circumstances.

The Primary Judge’s Reasons

  1. [54]
    As I have already observed, the primary judge refused Mr McDonald’s application to adduce fresh evidence.  That fresh evidence not only included the Restoration Notice under the VMA, but also Mr McDonald’s notices of tax assessment for the financial years 2011 to 2017.  Relevantly these notices revealed that the taxable income from primary production for Mr McDonald for the years 2011 and 2013 to 2017 was $0.00.
  2. [55]
    It is unnecessary to consider the correctness of his Honour’s decision to refuse Mr McDonald’s application to adduce fresh evidence because the evidence has been tendered in this Court without objection.
  3. [56]
    His Honour considered that the magistrate had not erred in sentencing Mr McDonald.  He noted that the magistrate had taken into account that Mr McDonald “had no previous convictions, had made significant contributions to the community, and had cleared vegetation which was from ‘a least-concern regional ecosystem, and not a more endangered ecosystem’”.[71]  The magistrate had also observed that Mr McDonald had undertaken the clearing in the context of a prolonged drought.  His Honour, however, noted that the magistrate had identified the following aggravating factors:[72]

“… the magnitude of the unlawful assessable development, and the period of time over which it was conducted.  The defendant engaged in clearing remnant vegetation having cleared some 1,800 hectares of least-concern regional eco-system for a period of about two years.  By registering for the self-assessable codes with the department, the defendant had some understanding and knowledge of the legislative framework under which vegetation clearing could lawfully take place.  Notwithstanding that knowledge, the defendant engaged in persistent and wilful disregard of the law over an extended period of time [during] which the vegetation clearing occurred.”

  1. [57]
    His Honour considered that the magistrate was correct in using as a comparative the decision in Scriven v Sargent (No 2).[73]  That case concerned clearing of 1,819 hectares of freehold land by Mr Scriven over a period of three years, as opposed to a period of two years by Mr McDonald.  The initial fine of $118,000 imposed at first instance was reduced on appeal to a fine of $40,000.
  2. [58]
    The primary judge ordered that Mr McDonald pay the respondent’s costs of the s 222 appeal fixed in the sum of $4,046.84.

The applicant’s submissions

  1. [59]
    Mr McDonald submits that the magistrate failed to consider and reason the impact that the penalty would have on him and particularly his dependants.[74]  According to Mr McDonald, the imposition of the fine and costs constitutes a “crushing burden” not only upon himself, but also upon his dependants.  Further, he submits that the imposition of a Restoration Notice is an alternative and sufficient mode of applying a penalty.[75]  In relation to the costs, including investigation costs, Mr McDonald emphasised in oral submissions that identical charges were investigated and prosecuted against two separate defendants, namely him and his wife.  He contended that it is appropriate to consider that those investigation and prosecution costs “were every bit attributable to the defendant found not guilty as they were to the defendant found guilty”.[76]  He therefore submits that it was at least appropriate to apportion half of those costs to each defendant.

Respondent’s submissions

  1. [60]
    The respondent submits that there is no reason to doubt that all matters, including the personal financial circumstances of Mr McDonald, were taken into account by the magistrate.[77]
  2. [61]
    The respondent also submits that the magistrate was correct to rely on Scriven v Sargent (No 2) as a relevant comparative.  The imposition of a $40,000 fine “clearly took into account all matters in mitigation that had been put before the learned sentencing magistrate”.[78]
  3. [62]
    The respondent further submits that the evidence at the sentencing hearing showed that Mr McDonald had the ability to pay the fine and costs orders, particularly as they were referred to SPER.[79]

Consideration

  1. [63]
    The respondent’s submission that the evidence showed that the applicant had the ability to pay the fine and costs and that his capacity to do so was taken into account by the magistrate must be rejected.
  2. [64]
    Although the magistrate referred to s 48 of the Penalties and Sentences Act, the sentencing remarks neither reveal any actual consideration of the financial circumstances of the applicant nor the nature of the burden that a payment of a fine of $40,000 (together with costs) would have on Mr McDonald and his family.  Any such analysis of Mr McDonald’s financial circumstances, as outlined in [34] to [40] above, would have demonstrated that the applicant’s capacity to pay the fine and costs in the amount of $112,468.82 was extremely limited.
  3. [65]
    A consideration of those circumstances leads to the conclusion that the imposition of a penalty in excess of $112,000 constitutes a crushing burden on Mr McDonald and his family.  This Court has the benefit not only of the personal financial information that was before the magistrate, but also Mr McDonald’s notices of tax assessment.  These reveal that he has not generated any taxable income from primary production for the years 2011 and 2013 to 2017.[80]
  4. [66]
    As to costs, including investigation costs, sought by the prosecution, the magistrate observed:[81]

“The Prosecution are also asking for investigation costs of $46,397.70.  The investigation costs are assessable under section 68C of the Vegetation Management Act.  Again, I have considered these costs, and they appear to be necessary, and I allow the amount of $46,397.70, having regard to the way these proceedings were undertaken.  I also have regard to the submission or claims for outlays.  And once again, having regard to the way these proceedings were undertaken, I am satisfied that the outlays that have been claimed appear to be reasonable, and I allow the amount of $19,709.72.”

  1. [67]
    The magistrate’s remarks demonstrate that he made the order because the costs “appear[ed] to be necessary” and because the outlays “appear[ed] to be reasonable”.  He did not consider whether the discretion should be exercised.  There was, therefore, an error of law because, in making the order, the magistrate failed to consider the exercise of discretion as the VMA required him to do.
  2. [68]
    It is not readily apparent from the sentencing remarks what is meant by the magistrate’s reference to “the way these proceedings were undertaken”.  It was the DNRM that brought the prosecution.  Mr and Mrs McDonald were self-represented.  They were entitled to defend the proceedings.  Mrs McDonald was successful in doing so.  Although Mr McDonald had raised Mrs McDonald’s acquittal as a relevant consideration in respect of costs, the sentencing remarks do not reveal that this consideration was taken into account by the magistrate in the exercise of his discretion under either s 157 of the Justices Act 1886 or s 68C of the VMA.  Both sections give the Court a discretion to order a defendant to pay such costs.  Section 157 of the Justices Act provides:

Costs on conviction or order

In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.”

  1. [69]
    Section 68C of the VMA provides:

Recovery of costs of investigation

  1. (1)
    If a court convicts a person of an offence against this Act or a vegetation clearing offence, the court may order the person to pay the department’s reasonable costs of investigating the offence, including reasonable costs of preparing for the prosecution of the offence.”
  1. [70]
    In imposing the fine and costs the magistrate was required to have regard to Mr McDonald’s capacity to pay a total penalty in excess of $112,000 and the nature of the burden such a penalty would impose on him.
  2. [71]
    An analysis of the magistrate’s sentencing remarks reveals, in my view, three appellable errors.  First, although reference was made to s 48 of the Penalties and Sentences Act, the imposition of a penalty of $112,468.82 shows that no actual consideration of Mr McDonald’s financial circumstances was undertaken by the magistrate.  Secondly, the magistrate, in awarding the whole of the legal and investigation costs claimed by the respondent, failed to have regard to the fact that Mrs McDonald was acquitted of all charges.  Thirdly, as I have said, he failed to exercise a discretion at all in relation to the costs and outlays questions.  The same errors arise from a consideration of the primary judge’s reasons.
  3. [72]
    The primary judge considered that Scriven v Sargent (No 2)[82] constituted “clear, appropriate and comparable authority as to the quantum of the fine to be imposed”.
  4. [73]
    The difficulty with this comparison, however, is that the exercise of discretion to impose a fine and other costs requires the personal financial circumstances of a defendant to be considered.  It is only by a consideration of those personal financial circumstances that a court is able to take into account both the burden that would be imposed on the defendant and his or her capacity to meet that burden.  In this respect Scriven v Sargent (No 2) is readily distinguishable from the present case.  As noted by Judge McGill SC in that case, Mr Scriven, despite an invitation to do so, did not put any material before the Court in relation to his financial circumstances.[83]  The only matter placed before the Court by Mr Scriven was the fact that he was being pressed by his bank under a mortgage.  In any case, a previous sentencing decision is not an authority per se; it merely shows what was ordered in that case.
  5. [74]
    Scriven may be further distinguished from the present case.  First, the period of clearing was three years, not two years.  Secondly, Scriven had not cooperated with authorities at all,[84] whereas Mr McDonald, while his cooperation was limited, did make significant admissions.  Some of those admissions constituted the foundation for the prosecution’s case against Mrs McDonald.  Thirdly, in Scriven there was evidence that the clearing had caused some environmental damage to the property and the value of the property had been increased by approximately $30,000 as a result of the clearing.[85]  This is to be contrasted with the present case where the magistrate placed little weight on the evidence of Dr Butler and Mr Batstone.  Fourthly, unlike Scriven, Mr McDonald is now subject to a Restoration Notice, registered on the land title.  Before the primary judge, Mr McDonald referred to the Restoration Notice being issued after he had been sentenced by the magistrate and the continuing effect of the Restoration Notice in the following terms:[86]

“Several weeks after the magistrate delivered his decision to penalty and costs, those opposite actively took steps to apply and register a restoration notice … upon the title to my vegetation, an action that has purported to negate – that is purported to negate any benefit of unlawful clearing.

Obviously, had this been raised by those opposite during the penalty hearing, the magistrate would have to have considered it in deciding penalty, particularly in view of the fact that in relation to the cases of Scriven and Heinmann, the department has not applied restoration notices … .

Your Honour, imposing a penalty of the magnitude ordered by the Primary Court in this matter upon a person that does not have the capacity to pay the penalty is not only a crushing imposition upon myself; it is also placing a crushing burden upon my wife and children, a burden that would be sustained for many many years, a burden that will have detrimental effects, particularly upon my wife and children, for the rest of their lives given their age and stage of life, whereby they should be entitled to receive appropriate care, education and opportunity.”

  1. [75]
    As to the issue of costs, including investigation costs, the primary judge noted:[87]

“The appellant chose to run the trial, put the prosecution to proof on every aspect of the trial, made no admissions and require full evidence from all witnesses.  Accordingly, there was no alternative for the prosecution other than to conduct the trial with full, comprehensive and undoubtedly costly preparation.

Given the appellant’s conduct of the trial before the learned magistrate, and the appeal before me, it was open to the appellant to have litigated the charges on the basis of an agreed set of facts, with submissions on the applicable law.  Such an approach would have substantially reduced the preparation costs, and the proceedings might well have been completed in one or two court hearing days.  However, that was not how the matter was litigated by the appellant, and consequently the costs incurred were inevitable and attributable to the appellant.”

  1. [76]
    These observations by the primary judge do not mention the fact that Mrs McDonald was acquitted of all six charges.  Nor do they make any mention of the fact that Mr McDonald was self-represented and defending a prosecution brought by DNRM.
  2. [77]
    Both the magistrate and primary judge were correct, however, to identify that the unlawful clearing of vegetation ordinarily calls for both general and personal deterrence.  Nothing in these Reasons should be construed as detracting from this principle.
  3. [78]
    The magistrate correctly referred to the decision of Preston CJ in Director-General Department of Environment and Climate Change v Rae where it was observed:[88]

“The very high maximum penalties fixed by parliaments for offences of clearing native vegetation contrary to law are, to a significant extent, intended to act as a deterrent, a countervailing disincentive to the economic incentives to clear native vegetation illegally.  The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending.”

  1. [79]
    There are, however, a number of reasons why considerations of personal and general deterrence do not loom large in the present case.  The actions of Mr McDonald must be viewed in the context of Mr McDonald conducting his cattle business in the course of a prolonged and severe drought.  This context was best expressed by Mr McDonald to the primary judge in the following terms:[89]

“Your Honour, given the widespread devastating impacts of prolonged severe drought, myself and my family, along with the vast majority of other farming families in this area, have reached such a debilitated financial position that we are struggling to survive on the generosity of donated food, food vouchers, donated clothing and fuel vouchers, [etc].  For the last five years, we have been supported by groups such as Apex, Lions Club, Rotary, church groups, the CWA, and various other community support groups.  As a provider for my family, my financial position throughout this drought has had no capacity for any form of discretionary spending such as family holidays or any other recreation activities.  We have no health insurance, no vehicle insurance other than third party, and no income insurance – only house insurance as required by mortgage.  Essentially, we have no ability to afford insurance.”

  1. [80]
    The illegal clearing was of vegetation from a least-concern regional eco-system and not a more endangered eco-system.  There is no cogent evidence that the property increased in value because of the clearing or that the clearing caused any lasting environmental harm.
  2. [81]
    As to personal deterrence, Mr McDonald ceased clearing once he was issued with a stop work notice under the VMA on 29 April 2015.  Subsequent to being sentenced by the magistrate, Mr McDonald is now subject, perhaps for the next 20 years, to the restrictions in clearing on his property arising from the Restoration Notice issued on 26 October 2017 pursuant to s 54B of the VMA.  The Restoration Notice is registered on the title and will restrict Mr McDonald’s use of the property into the future.  The effect of the Restoration Notice is relevant to the issue of both personal and general deterrence.  It was not a consideration that the magistrate was able to take into account as the Restoration Notice was issued after Mr McDonald was sentenced.  It is, however, a matter that should be taken into account by this Court in exercising the sentencing discretion afresh.
  3. [82]
    Having regard to the personal financial circumstances of Mr McDonald and the context in which the offending occurred, I would set aside the fine of $40,000 and, in lieu thereof, impose a global fine of $5,000.
  4. [83]
    As to the issue of investigation costs ordered pursuant to s 68C of the VMA and legal costs ordered pursuant to s 157 of the Justices Act, no regard was given in the exercise of these discretions to the fact that Mrs McDonald had been acquitted.  Although Mrs McDonald as a self-represented person could not seek legal costs against the prosecution, it would have been open to the magistrate to make no order as to costs.  In relation to the investigation costs, these should have been discounted by at least 50 per cent.
  5. [84]
    The investigation costs should thereafter have been further discounted having regard to the personal financial circumstances of Mr McDonald.
  6. [85]
    Having regard to these factors, I would fix the sum for investigation costs and outlays at $5,000.
  7. [86]
    In relation to the legal costs ordered by the primary judge, while Mr McDonald was unsuccessful on his appeal against conviction, he has been successful in respect of his appeal against sentence.  In those circumstances, I would set aside the order made by the primary judge as to costs and substitute an order that there be no order as to costs.  A similar order should be made in respect of the present application.

Disposition

  1. [87]
    I would make the following orders:
  1. Grant the application for leave to appeal against sentence only.
  1. Allow the appeal against sentence.
  1. [88]
    In lieu of the orders made by the learned magistrate in respect of the fine and costs the following orders should be made:
  1. The applicant is fined a global sum of $5,000.
  1. Pursuant to s 68C of the VMA, the applicant pay investigation costs and outlays fixed at $5,000.
  1. In respect of the proceedings in the Magistrates Court, the District Court and this Court, there be no order as to costs.
  1. The fine of $5,000 and investigation costs and outlays of $5,000 are referred to SPER.

Footnotes

[1] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23.

[2] McDonald v Holeszko [2018] QDC 204.

[3] Smith v Ash [2011] 2 Qd R 175 at [50].

[4] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [1].

[5] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [2].

[6] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [5].

[7] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [2].

[8] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [3].

[9] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [15].

[10] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [16].

[11] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [17].

[12]  [2017] QMC 23, [18].

[13]  Transcript of Proceedings, 27 August 2019, 1-37, ll 13-15: the code is found at RB, Vol 2, p 936.

[14] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [70].

[15] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [21].

[16] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [22].

[17] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [4].

[18] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 1) [2017] QMC.

[19] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [27]-[28].

[20] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23, [37].

[21]  Appellant’s Outline of Argument filed 25 July 2019, paragraph 3(e).

[22]  Submissions on behalf of the respondent, paragraph 5(i).

[23]  [2017] QCA 95; [2018] 1 Qd R 282 at 286-7 [26]. See also R v Cunliffe [2004] QCA 293.

[24]  Appellant’s Outline of Argument filed 25 July 2019, paragraph 22.

[25]  Appellant’s Outline of Argument filed 25 July 2019, paragraph 20.

[26]  Submissions on behalf of the Respondent filed 13 August 2019, paragraph 22.

[27]  Submissions on behalf of the Respondent filed 13 August 2019, paragraph 27 citing Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600, 609-10 [17]-[20] (McPherson JA, Williams JA and Byrne J agreeing); Burns v State of Queensland & Croton [2006] QCA 235, [12]-[20] (Jerrard JA, Cullinane and Jones JJ agreeing); Burns v State of Queensland & Croton [2007] QCA 240, [4]‑[12] (Jerrard JA, Cullinane and Jones JJ agreeing).

[28]  Appellant’s Outline of Argument filed 25 July 2019, paragraph 8(g).

[29]  Submissions on behalf of the Respondent filed 13 August 2019, paragraphs 29 to 31 citing Ostrowski v Palmer (2004) 218 CLR 493 and Manning v Queensland Police Service [2017] QCA 151.

[30] Christopher Holeszko v Daniel McDonald and Katrina McDonald (No 2) [2017] QMC 23.

[31]  RB, Vol 2, p 661: Transcript of Proceedings, 10 August 2017 1-3 ll 30-43.

[32]  RB, Vol 2, p 662: Transcript of Proceedings, 10 August 2017, 1-4, ll 2-7.

[33]  RB, Vol 2, p 663-4: Transcript of Proceedings, 10 August 2017, 1-5 l 34 to 1-6 l 9.

[34]  RB, Vol 2, pp 728: Transcript of Proceedings, 13 October 2017, 9-15 l 5.

[35]  RB, Vol 2, p 1075: Assessment of impacts of biodiversity from clearing of remnant vegetation on lot 4 LO73 and lot 7 LO70, paragraph 16.

[36]  RB, Vol 2, p 1075: Assessment of impacts of biodiversity from clearing of remnant vegetation on lot 4 LO73 and lot 7 LO70, paragraph 16.

[37]  RB, Vol 2, pp 733: Transcript of Proceedings, 13 October 2017, 9-20 ll 42-43 and 9-21 ll 4-18.

[38]  RB, Vol 2, p 822: Transcript of Proceedings, 13 October 2017, p 7 ll 15-18.

[39]  RB, Vol 2, p 822: Transcript of Proceedings, 13 October 2017, p 7 ll 18-9.

[40]  RB, Vol 2, p 1109-10.

[41]  RB, Vol 2, pp 1111-3.

[42]  RB, Vol 2, p 822: Transcript of Proceedings, 13 October 2017, p 7 ll 30-40.

[43]  RB, Vol 2, p 1114.

[44]  RB Vol 2, p 1239.

[45]  RB, Vol 2, p 791: Transcript of Proceedings, 13 October 2017, 9-78 ll 30-5.

[46]  RB, Vol 2, p 1256.

[47]  RB, Vol 2, pp 783-4: Transcript of Proceedings, 13 October 2017, 9-70 l 45 to 9-71 l 3.

[48]  RB, Vol 2, pp 800-1: Transcript of Proceedings, 13 October 2017, 9-87 l 37 to 9-88 l 6.

[49]  SRB, p 13.

[50]  RB, Vol 2, p 802: Transcript of Proceedings, 13 October 2017, 9-89 ll 16-24.

[51]  RB, Vol 2, p 803: Transcript of Proceedings, 13 October 2017, 9-90 ll 29-30.

[52]  SRB, p 17.

[53]  RB, Vol 2, p 804: Transcript of Proceedings, 13 October 2017, 9-91 ll 15-20.

[54]  RB, Vol 2, p 809: Transcript of Proceedings, 13 October 2017, 9-96 ll 5-18.

[55]  RB, Vol 2, p 809: Transcript of Proceedings, 13 October 2017, 9-96 ll 35-40.

[56]  SRB, p 11: Sentencing Submissions on behalf of the Defendant, paragraphs 68-70.

[57]  RB, Vol 2, p 811: Transcript of Proceedings, 13 October 2017, 9-98 ll 13-29.

[58]  RB, Vol 2, p 811: Transcript of Proceedings, 13 October 2017, 9-98 ll 29-35.

[59]  SRB, p 12: Sentencing submission on behalf of the Defendant, paragraph 81.

[60]  Exhibit DM-004a to the affidavit of Daniel James McDonald filed 16 April 2019.

[61]  Exhibit DM-006a to the affidavit of Daniel James McDonald filed 16 April 2019.

[62] McDonald v Holeszko [2018] QDC 204, [22].

[63]  Transcript of Proceedings on 27 August 2019, 1-26 ll 29-32.

[64]  RB, Vol 2, p 817: Transcript of Proceedings, 13 October 2017, p 2 ll 45-47.

[65]  RB, Vol 2, p 819: Transcript of Proceedings, 13 October 2017, p 4 ll 25-27.

[66]  RB, Vol 2, p 820: Transcript of Proceedings, 13 October 2017, p 5 ll 27-29.

[67]  RB, Vol 2, p 820: Transcript of Proceedings, 13 October 2017, p 5 ll 10-12.

[68]  RB, Vol 2, p 820: Transcript of Proceedings, 13 October 2017, p 5 ll 18-19.

[69]  RB, Vol 2, p 820: Transcript of Proceedings, 13 October 2017, p 5 ll 36-41.

[70]  RB, Vol 2, p 822: Transcript of Proceedings, 13 October 2017, p 7 ll 2-6.

[71] McDonald v Holeszko [2018] QDC 204, [62].

[72] McDonald v Holeszko [2018] QDC 204, [63].

[73]  [2016] QDC 16.

[74]  Appellant’s Outline of Argument filed 25 July 2019, paragraph 29.

[75]  Appellant’s Outline of Argument filed 25 July 2019, paragraph 31.

[76]  Transcript of Proceedings, 27 August 2019 1-18, ll 8-9.

[77]  Submissions on behalf of the Respondent filed 13 August 2019, paragraph 33.

[78]  Submissions on behalf of the Respondent filed 13 August 2019, paragraph 37.

[79]  Submissions on behalf of the Respondent filed 13 August 2019, paragraph 47.

[80]  Exhibit DM-005 to the affidavit of Daniel James McDonald filed 16 April 2019.

[81]  RB, Vol 2, pp 825-6: Transcript of Proceedings, 13 October 2017, pp 10 l 46 to 11 l 6.

[82]  [2016] QDC 16.

[83]  Transcript of Proceedings, 21 April 2016, p 3 ll 35-7.

[84]  [2016] QDC 16, [42].

[85]  [2016] QDC 16, [40]-[41].

[86]  RB, Vol 3, pp 1560-1: Transcript of Proceedings, 16 April 2018, 1-27 l 29 to 1-28 l 3.

[87] McDonald v Holeszko [2018] QDC 204, [67]-[68].

[88]  [2009] NSWLEC 137, [13].

[89]  RB, Vol 3, p 1560: Transcript of Proceedings, 16 April 2018, 1-27 ll 8-19.

Close

Editorial Notes

  • Published Case Name:

    McDonald v Holeszko

  • Shortened Case Name:

    McDonald v Holeszko

  • MNC:

    [2019] QCA 285

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Philippides JA, Flanagan J

  • Date:

    06 Dec 2019

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status