Hill v Holeszko[2017] QDC 35

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 15 March 2016 the appellant pleaded guilty in the Bundaberg Magistrates Court to two offences of contravening s 578(1) of the Sustainable Planning Act 2009 (“SPA”). 

2. [2]
   He was sentenced as follows:^[1]

1. (a)
   Charge 1 (relating to the South Bingera property):

1. (i)
   Fine of $7,500;

2. (ii)
   Costs of court $86.40.

2. (b)
   Charge 2 (relating to the Bucca property):

1. (i)
   Fine of $16,500;

2. (ii)
   Costs of court $86.40;

3. (iii)
   Professional costs of $3,703.75.

Facts

3. [3]
   The facts surrounding the offences were agreed as follows:

1. (a)
   The unlawful clearing of an area of approximately 4.1 hectares of native remnant vegetation took place on various dates between 2 November 2012 and 11 July 2014 on a block of land located at lot 5 on Registered Plan 210603, at South Bingera, south west of Bundaberg (“the South Bingera property”). 

2. (b)
   The vegetation that was cleared on the South Bingera property consisted entirely “of least concern regional ecosystem” as defined by the Vegetation Management Act 1999 (“VMA”).

3. (c)
   The unlawful clearing of an area of approximately 14.8 hectares of native remnant vegetation also took place on various dates between 20 December 2012 and 18 August 2014 on a block of land located at lot 3 on Registered Plan 894752, at Bucca, west of Bundaberg (“the Bucca property”). 

4. (d)
   The vegetation that was cleared on the Bucca property consisted predominantly (approximately 10.8 hectares) “of concern regional ecosystem” as defined by the VMA and another portion (approximately 4 hectares) of “endangered regional ecosystem” as defined by the VMA. 

5. (e)
   The South Bingera property and the Bucca property are estates in fee simple and are both owned by the appellant. 

6. (f)
   This matter came to the attention of Department of Natural Resources and Mines (“DNRM”) investigators as a result of complaints received in relation to vegetation clearing occurring on those properties in February 2013 and November 2013 respectively.

7. (g)
   Initial desktop analysis of satellite images of the properties was undertaken which confirmed a change in vegetation cover.  It was identified that there were no development approvals to clear vegetation for either the South Bingera or Bucca properties.

8. (h)
   A “Notice of a Forest Practice” dated 23 August 2012 and signed by John Maindonald for the South Bingera property was received by the DNRM on 31 August 2012.  A similar notice dated 21 December 2012 and signed by John Hill for the Bucca property was received on that date.  Both notices were lodged by the appellant. 

1. (i)
   Those notices allowed the appellant to clear vegetation on the properties under the Self-Assessable Vegetation Clearing Code (“SAVCC”) for conducting a native forest practice.  The clearing of vegetation under the SAVCC for conducting a native forest practice was self-assessable development and did not require a development permit under the SPA but only if it was carried out in compliance with the SAVCC. 

10. (j)
    On 22 August 2014, DNRM officers attended both properties in order to conduct an inspection of the clearing which had occurred.  The appellant was present and consented to the inspections. 

11. (k)
    During the inspections, the appellant made a number of admissions, namely:

• He was told he could clear up to 5 hectares for a residence but he did not have building approval for a residence;
• He had contracted a local sawmilling company to harvest timber on both of the properties;
• He then organised a bulldozer operator to “clean up” the debris that had been left following the harvesting operations so it could be burnt; and
• That some of the clearing activities were for weed control.

12. (l)
    The appellant did not personally conduct any of the clearing activities on either of the properties.

13. (m)
    The DNRM officers inspected the properties and assessed the observed clearings as against the SAVCC for conducting a native forest practice. These observations were that significant areas on both properties had been cleared. Further, the vegetation had been pushed together and burnt. The clearings conducted on both of the properties were not consistent with and did not comply with the requirements of the SAVCC for conducting a native forest practice.

14. (n)
    During the inspection, the DNRM officers also assessed the clearings against the other SAVCCs under the VMA, and in particular the SAVCC for non-native plants or declared pests (weed management). The clearings on both properties were not consistent and did not comply with any of the SAVCCs that would have been available to the defendant had an appropriate notice been lodged with the DNRM.

15. (o)
    The DNRM officers visited four separate locations on each property to confirm what was observed on satellite images. At the conclusion of the inspections of the properties, Senior Natural Resource Management Officer Collins produced a Field Inspection Report containing his observations and a number of photographs which depict what the officers saw. That report was placed before the court below as evidence.

16. (p)
    On 21 October 2014, the DNRM issued the appellant with Restoration Notices and Property Maps of Assessable Vegetation (“PMAV”) over both properties. At that time, both properties had recently been listed for sale and this measure ensured the Restoration Notices and PMAVs were disclosed on the current title search.

17. (q)
    On 20 April 2015, three Penalty Infringement Notices (“PINs”) were issued to the appellant.

18. (r)
    On 26 May 2015, the appellant returned the PINs, electing to have the matter heard in court. On that day, a DNRM officer withdrew the PINs on the basis that the appellant had elected to contest them.

Grounds of appeal

4. [4]
   The defendant’s ground of appeal, as I understand it, is that the penalties imposed were excessive, and that the basis for that submission is the following:

1. (a)
   The prosecutor told the appellant that if he pleaded guilty, the fine would only be $1000 for each of the three offences;

2. (b)
   There was a Forest Practice Permit in place;

3. (c)
   The local council had given him notices requiring him to clean up his properties due to fire danger and issues with pests and noxious weeds;

4. (d)
   The company that actually conducted the clearing had professional duties yet were never charged;

5. (e)
   The penalty did not recognise that some of the clearing was legally carried out as the subject of a Forest Practice Permit, or for boundary firebreaks;

6. (f)
   The appellant did not receive any direct financial benefit from the clearing; and

7. (g)
   The penalty was based on precedents for large-scale clearing.

The law

5. [5]
   Section 222(1) of the Justices Act 1886 (“JA”) provides the defendant’s right of appeal to the District Court.  Section 223 JA provides that such an appeal is by way of re-hearing either on the original evidence on the record or, if leave is sought to adduce new evidence and granted, on the original and new evidence. 

6. [6]
   Section 225 JA empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just.

7. [7]
   The nature of a re-hearing has been said to involve:

1. (a)
   A judge making his/her “own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view;”^[2]

2. (b)
   A “real review” of the trial and the original reasons for decision, including the appeal court weighing any conflicting evidence and drawing its own inferences and conclusions: for the first task giving due allowance to the fact it has neither seen nor heard the witnesses, and for the second, recognising it is in as good a position as the trial judge in drawing inferences or conclusions on undisputed evidence or on the findings of the trial judge.^[3]

8. [8]
   Given that this is an appeal against the exercise of the magistrate’s discretion, it is necessary to demonstrate “some legal, factual or discretionary error.”^[4]  The approach to be taken was that which was outlined by the High Court in House v The King:^[5]

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

Summary of submissions

9. [9]
   In his Outline of Argument, the appellant identified “four concerns”:

1. “At the start of the original trial the prosecutor acting for the Department of Natural Resources and Mines (Nick Lichti) contacted me on many occasions advising me that the fines for such a small civil offence were approximately $1000 for each charge with a total of $3000 for the three charges.  He also informed me that these charges were for a domestic property and not a commercial going concern where large acreage was cleared.  After these conversations with him I changed my plea to guilty.

2. That the tree harvesters, Dale and Myers and Associates were the people that benefited financially and that I never received any monies from the trees that were harvested through the Forest Practice Permit that was issued for the work.  They also have never been charged for tree clearing, yet they conduct their duties as forest harvesters and do that type of work professionally on a daily basis. 

3. In the amounts of the remnant hectares that were cleared, there was no credit for the trees that were cleared legally through the Forest Practice Permit.  And also the firebreaks on boundaries.

4. The Bundaberg City Council have sent me notices to clean up my blocks as they both were of a fire danger, pest nuisance and noxious weed presence to the adjoining neighbours.”

10. [10]
    The respondent has submitted that the matters raised by the appellant in his Outline of Argument (excluding the alleged advice from the prosecutor as to penalty) were generally raised in submissions by counsel on behalf of the appellant in the court below and that the learned magistrate has not been demonstrated to have made any error in his consideration of them when determining penalty. Matters specifically and properly identified by the magistrate as being in mitigation included the timely pleas of guilty, cooperation and admissions, and personal circumstances including (to an extent) difficulties the appellant had made for himself in the sale of his properties.

11. [11]
    The respondent has further submitted that the fines imposed were based, to a considerable extent, upon the principle that there should be a commercial disincentive for this type of offending as a general deterrent, and that the method by which the magistrate determined the commercial value of the offending, whilst not directly reflecting the benefit obtained by the appellant was the most practical means of doing so. It is submitted that as the “total value of the royalty and extraction” of the cleared timber was $22,298.45, a penalty which “reflects” that amount is “demanded”.^[6] 

12. [12]
    Finally, the respondent has submitted that comparable decisions support the penalties imposed.

Matters relied on by the appellant

Alleged conversations with prosecutor

13. [13]
    The first “concern” raised by the appellant is his allegation that prior to entering his pleas of guilty, the prosecutor had advised him on numerous occasions that the “fines will total approximately $3000 for the three charges,”^[7] and that he decided to plead guilty after those conversations.

14. [14]
    During oral submissions before me, the defendant, when directly questioned, stated that he did not wish to make an application to have his pleas of guilty set aside because of inducement. It would seem that the point he wished to raise in relation to this issue, is that given that the fines imposed totalled well in excess of $3000 that, in itself, is support for his argument that the sentences imposed were excessive.

15. [15]
    It should be noted that the respondent disputed that the prosecutor in the court below gave such advice to the appellant.

16. [16]
    Resolution of this dispute is unnecessary however, as the alleged conversations, even if they did occur, are not a relevant consideration on the issue of the appropriateness of the sentences imposed.

17. [17]
    To be fair to the appellant, once the irrelevancy of those alleged conversations was pointed out to him, he did not persist with this argument.

18. [18]
    As is obvious, this is an argument which is doomed to fail.

Whether the appellant should have received “credit” for legal clearing

19. [19]
    The next “concern” raised by the appellant was that he should have received “credit” for trees cleared legally.

20. [20]
    As I have already noted, the Schedule of Facts acknowledged that the appellant had first taken the steps of lodging notices with the DNRM which allowed him to clear vegetation in accordance with the SAVCC. The learned magistrate noted this in the course of his sentencing remarks.

21. [21]
    In fact, counsel for the appellant in the court below submitted that a relevant factor was “permissible clearing that he could have taken under the self-assessment,”^[8] which was a reference to the SPA allowing self-assessable clearing of five hectares of vegetation for the purpose of the construction of a residence.^[9]  It was submitted that the appellant intended to build on the (South) Bingera property,^[10] but it was accepted that he did not have the relevant building permit that would have legalised such clearing.^[11]

22. [22]
    Nevertheless, counsel for the appellant submitted in the court below, that his building plans and his understanding (even if incorrect) of what associated clearing could be done went to mitigation. I note that learned magistrate accepted that proposition.^[12]

23. [23]
    It follows that there has been no error on the part of the learned magistrate in relation to this issue and this argument is without merit.

The relevance of fire, pest and weed management

24. [24]
    The appellant has submitted that “credit” should have been given for boundary firebreaks.^[13]

25. [25]
    Whilst his counsel submitted in the court below that the appellant had held concerns about the fire danger his properties presented,^[14] no submission was made in relation to “firebreaks”; nor did the appellant raise such issue in his admissions to investigators.  Moreover, no evidence of firebreaks was presented to the court and the photographs of the cleared areas reveal that the clearings were not on the boundaries of the properties.  The respondent has submitted that for these reasons, little if any weight should be placed on this issue in mitigation. 

26. [26]
    The respondent further submits that any fire danger could have been alleviated legally by conducting clearing in accordance with the SAVCC, or in response to any requisitions under the Fire and Emergency Services Act 1990.^[15] 

27. [27]
    Given the location on the subject properties of the cleared areas, little weight, if any, should be placed on this issue. No error on the part of the learned magistrate has been demonstrated in this regard.

28. [28]
    In his Outline of Argument, the appellant infers that the Bundaberg City Council had sent him notices requiring actions of him with respect to fire danger, pest and noxious weed risks. The weed and pest notices were raised in submissions by his counsel as the origin of the appellant’s desire to conduct clearing,^[16] although it was also submitted that the appellant had wanted to enter into more intensive agriculture and build.^[17]  A further potential commercial purpose may also be inferred from the appellant having listed both properties for sale in the year following the offences,^[18] although, the learned magistrate took into account the fact that the appellant had made any sale more difficult to achieve as a result of the legal consequences of the clearing.^[19]

29. [29]
    I also note that Officer Collins’ report indicates that the appellant’s clearing was also assessed against the Self-Assessable Code for Weed Management and was found to be non-compliant for both properties.

30. [30]
    In these circumstances, it was reasonably open to the learned magistrate to infer that the appellant’s motivation for clearing the properties, was at least in part, commercial and I can discern no error on his part in that regard.

Clearing was not conducted by the appellant

31. [31]
    In his Outline of Argument, the appellant suggests that it was professionals who conducted the clearing for him and notes that they were never charged. Of course, it was the appellant however who owned the properties in question and he caused the clearing to occur by contracting with a milling company and (separately) a bulldozer operator, and he has pleaded guilty.

32. [32]
    In his early dealings with DNRM, the appellant was provided with documentation and was aware of his rights to self-assess “as long as he ticked the right boxes.”^[20]  It was submitted on his behalf in the court below that he relied on the representation of that company that they would undertake the clearing in accordance with “the forest practice” and that he had advised them that he did not want the whole canopy removed.  The appellant has repeated those submissions before me.  Nevertheless, he observed the clearing from time to time as it progressed and in fact asserted that he checked with the contractors as to whether they were following the correct procedures.^[21]

33. [33]
    The respondent concedes that the appellant may not have “cynically” directed clear-felling or broad scale clearing, and to an extent may have relied upon the contractors. In fact this issue was acknowledged by the prosecutor in the court below.^[22] Against that however, the appellant was aware of (or had identified to him) his responsibilities under the Self-Assessment Regime,^[23] where he had researched and then notified DNRM to trigger those rights, and he took no effective steps to ensure that his agents followed the SAVCC despite being aware over the course of his visits of the manner of the clearing.

34. [34]
    Whilst the learned magistrate did not make mention of these matters in the course of his remarks, little turns upon it. By entering his pleas of guilty, the appellant acknowledged his involvement in the commission of these offences as the landowner and accepted responsibility for their commission. The fact that the milling company was not charged is of no relevance to the appellant’s responsibility. It is unsurprising that the magistrate made no mention of the fact given that the prosecution case was presented on the basis that the defendant engaged contractors to carry out the clearing work. It was on that factual basis that the appellant was sentenced.

35. [35]
    This argument, for these reasons, is therefore without merit.

Commercial benefit

36. [36]
    It was accepted in the court below that the appellant received no money as the result of the harvesting of the trees, although it was not disputed that the cost of the clearing work was “offset by the value of the timber taken.”^[24]

37. [37]
    Nevertheless, the respondent has submitted that the appellant did “stand to receive a significant potential benefit to his assets in terms of the clearing itself”. That potential benefit has not been quantified.

38. [38]
    Whether the clearing did result in such a potential commercial benefit however is, on a full review of all the evidence, of little relevance.

39. [39]
    I have no hesitation in concluding that the best method available to the learned magistrate in approximating a commercial value to the offending conduct is that which was adopted by him: i.e. to use the value of the extracted timber. It is reasonable to infer that the cost of the clearing was approximately the value of the timber obtained (hence the agreement between the appellant and the contractors to offset one against the other) and to use that amount as the basis for determining appropriate sentences.

40. [40]
    Once again, I can discern no error on the part of the learned magistrate on this issue.

Maximum penalty

41. [41]
    The maximum penalty for each offence is 1,665 penalty units which equates to $183,050. Preston CJ in Director-General of the Department of Environment and Climate Change v Rae stated:^[25]

“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…”

Comparable sentences

42. [42]
    The appellant presented a schedule of single judge or magistrate decisions to this court, which he submits demonstrate that the penalties imposed in this matter were excessive. Unfortunately for the appellant, all of those matters involved penalties which were imposed under the statutory regime that required reference to a penalty guide pursuant to s 60B of the Vegetation Management Act 1999.  That section has since been repealed.  As Andrews SC DCJ said in Hindman v Sargent:^[26]

“A consequence is that the repeal has meant there is little benefit to be gained from a review of the cases in which penalties have been imposed in reliance upon s 60B.”

43. [43]
    I agree with His Honour’s sentiment. I note also that counsel for the defendant in the court below placed no such authorities before the learned magistrate.

44. [44]
    Of those matters that have been decided since the repeal of s 60B, the following are of most relevance:

1. In the aforementioned matter of Hindman v Sargent, the appellant appealed a $110,000 fine on the basis of it being excessive.  In imposing the original sentence, the magistrate applied the s 60B Penalty Guide as it was then still in force.  It was repealed however before the appeal was heard, hence his Honour Judge Andrews SC remarks, and of course his Honour did not take it into account. In that matter the defendant, who pleaded guilty to two charges, carried out assessable development over a period of three months by the clearing of native vegetation covering 676 hectares without an effective development permit.  In relation to the second charge, he cleared an area of 638 hectares of native vegetation.  The second offence was committed approximately two years after the first.  All the vegetation was classified as “not of concern” vegetation.

In that matter, his Honour also received additional expert evidence which resulted in a conclusion that the clearings did not have adverse environmental impacts.  In fact, it was accepted that by retaining the canopy, the clearings assisted conservation.

His Honour found that the offending was at the low end of the range of clearing offences (save for the fact that large areas were cleared) and made significant findings in favour of the appellant in mitigation including:

• that the appellant thought that a permit would only be necessary for broad scale clearing, and not for the clearing he did;
• the appellant was not careless of reckless as to whether or not he created an adverse environmental impact – and that his ambition was to restore the land;
• the appellant was at worst reckless in failing to apply for a permit;
• that since the offences the appellant had applied for thinning permits; and
• that there was a marginal benefit to him in carrying out the clearing when compared to the substantial costs incurred.

The maximum penalty was $124,875 for Charge 1 and $166,500 for Charge 2. The court upheld the appeal and substituted a fine of $15,000 for each offence.

2. In Coombe v Ashlin and Blinco^[27] the defendants each pleaded guilty to 6 charges, alleging that they had cleared native remnant vegetation over a period of two years between January 2010 and March 2012.  The property upon which the clearing occurred was 522.5 hectares and the cleared areas totalled 93.5 hectares.  No permits or authorisations for the clearings had been granted and there was no certified Property Map of Assessable Vegetation agreement in place.

Of the 93.5 hectares, 90.6 hectares were categorised as being of “least concern regional ecosystem” and 2.9 hectares were “of concern regional ecosystem.”

The defendants were business partners and owned the property. Both made admissions and stated that the clearing had been conducted for the purpose of either growing pasture or cultivating crops, including wheat and oats, and to feed cattle that were kept on the property. Those efforts had been largely unsuccessful however.

The learned magistrate took into account the defendant’s early pleas of guilty, their cooperation with the administration of justice and the fact that they had incurred expense during the clearing and were under financial pressure due to damage to the property that had resulted from flooding in the years since the property was cleared.  She also accepted that the clearing had caused environmental harm, particularly by causing a loss of connectivity for native fauna.  She also had regard for the fact that both defendants had worked in the industry for many years and would have been well-aware of the permit system.

The defendants were sentenced on the basis that the clearing the subject of each charge was essentially one course of conduct and fines totalling $15,000 for each defendant were imposed.

45. [45]
    Whilst these matters involved significantly larger areas of cleared land than the areas of cleared land in this matter, they also either wholly or substantially involved land categorised as “of least concern”. That is a significant distinguishing feature when compared to this matter which involves 10.8 hectares which were categorised as “of concern regional ecosystem” and approximately 4 hectares of “endangered regional ecosystem” – both on the Bucca property. That feature counterbalances the fact that the total cleared area of that property was substantially smaller than in the comparable cases. Furthermore, important mitigating circumstances that were present in Hindman v Sargent are absent here.  Taking those matters into account, together with all other relevant considerations, I am not persuaded that the fine of $16,500 for the charge that relates to the Bucca property was excessive. 

46. [46]
    Those same considerations however lead me to a different conclusion in relation to the charge concerning the South Bingera property. It involved only 4.1 hectares of clearing which consisted entirely “of least concern regional ecosystem.” Given that circumstance, a fine of $7,500 is excessive, notwithstanding the increased maximum fine that is now available. In my view, a fine of $4,500 would adequately reflect the seriousness of the offending conduct whilst properly recognising the appellant’s lack of prior convictions, his timely plea of guilty, and his cooperation with the administration of justice as well as giving due and proper regard to principles of personal and general deterrence.

47. [47]
    Moreover, a total of $21,000 in fines for the two offences roughly equates to the value of the timber that was cleared and gives due recognition and effect to the words of Preston CJ in Director-General of the Department of Environment and Climate Change v Rae (as previously mentioned in paragraph 41 above).

48. [48]
    Finally, whilst the appellant has appealed the whole order made by the magistrate, no argument was presented to this court to the effect that the order for costs was excessive. That is perfectly understandable as the orders for costs were reasonable.

Orders

49. [49]
    It is ordered that:

1. The appeal is upheld regarding the fine of $7,500 only.

2. The fine of $7,500 ordered by the Magistrates Court at Bundaberg on 15 March 2016 is set aside and substituted with a fine of $4,500.

3. The appeal in respect of all other orders is dismissed.

50. [50]
    I will hear the parties as to costs.