Exit Distraction Free Reading Mode
- Unreported Judgment
Watts v Driver QDC 110
DISTRICT COURT OF QUEENSLAND
Watts v Driver  QDC 110
DRIVER, Paul Richard
DC 3750 of 2018
Appeal against sentence
Magistrates Court at Cleveland
28 June 2019
17 May 2019
Loury QC DCJ
The appeal is dismissed.
The appellant is ordered to pay the respondent’s costs of the appeal.
CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – whether the appeal is incompetent – where the respondent pleaded guilty to pruning a marine plant and removing a marine plant – the respondent was fined $700 and ordered to pay $92 for the cost of the complaint and summons with no convictions being recorded – where the respondent was 74 years of age with no criminal history – whether the prosecution was denied procedural fairness by the learned Magistrate not adjourning the matter – whether the learned Magistrate took into account the factual circumstances alleged
Acts Interpretation Act 1954 (Qld), s 38
Evidence Act 1977 (Qld), s 132C
Fisheries Act 1994 (Qld), s 3(1), s 3A(1)
Justices Act 1886 (Qld), s 222, s 228
House v The King (1936) 55 CLR 499, cited
G M Elmore, Counsel for the Appellant
P T Coves, Solicitor for the Respondent
Department of Fisheries and Agriculture for the Appellant
Coves & Co for the Respondent
- On 7 August 2018, the respondent pleaded guilty to two offences under section 123 of the Fisheries Act 1994 (Qld) of pruning a marine plant and removing a marine plant. On 18 September 2018, he was sentenced in relation to those two offences. He was fined $700 and ordered to pay $92 for the cost of the complaint and summons. Convictions were not recorded. The maximum penalty for each offence was a fine of $365,700.
Circumstances of the offences
- A statement of facts prepared by the prosecuting agency was tendered. It stated that the respondent lived on Lamb Island on a property that adjoined a tidal flat, which was vegetated by mangrove trees. On 14 April 2017, the respondent cut several branches off a number of established mangrove trees using a chainsaw. He then cut the branches into pieces using the chainsaw.
- On 7 May 2017, the respondent towed the branches using his tender, into waters approximately 100 metres away where he left them.
- On 9 May 2017, Queensland Boating and Fisheries Patrol officers noticed a four to five metre gap in the otherwise dense marine vegetation. The mangrove trees either side of the gap exhibited signs of pruning. There were remnants of the branches cut from the mangrove trees present on the tidal flats. Present also was a larger mangrove tree branch with a diameter of approximately 15 centimetres.
- The respondent was interviewed by Queensland Boating and Fisheries Patrol officers on 16 June 2017. The respondent admitted to having cut a mangrove tree saying that he did so because the tree was falling into the water. He further admitted to towing the branches out of the way. On 18 June 2017, the respondent sent a letter to Queensland Boating and Fisheries Patrol in which he said that a large mangrove tree had fallen across his handcrafted rowing dory pinning it underwater at high tide and preventing him from moving it. The statement of facts asserted that this was inconsistent with the physical evidence seen by the officers.
The respondent’s antecedents
- The respondent was 74 years of age with no prior convictions at the time of the sentence.
The proceedings before the Magistrate
- At the commencement of the proceedings, the respondent indicated that he wanted to contest the factual basis contained in the statement of facts. He contended that he had only cut one branch from a single mangrove tree and that he had cut that one branch into multiple pieces. He also indicated that the tree from which he cut the branch had already fallen down. The prosecutor indicated that she had a DVD recording, which showed the respondent removing multiple mangrove branches. She submitted that the matter ought to be adjourned for a contested hearing to allow for a marine expert to provide an opinion as to the number of mangrove branches pruned. The respondent did not want the matter adjourned. He indicated that living with the matter hanging over his head was too much for him to bear. He asked for an indication as to the level of fine that he would receive and indicated that it might be better to get the matter over and done with. The prosecutor relied upon a number of comparable decisions said to support a fine of between $7000 and $9000. The learned Magistrate indicated that she considered those matters to involve more serious offending than the respondent’s conduct.
- The respondent confirmed that he was 74 years of age. He said that he didn’t cut the branches to enhance his view of Moreton Bay. He agreed that his motivation for cutting the branches was to gain access to his boat. He said that the proceedings, having gone on for 15 months, was upsetting to him. He said that he did not know that he was not allowed to cut the mangroves and that he loved Lamb Island where he sometimes lived.
- The learned Magistrate then moved to sentence the respondent.
The sentencing remarks
- The learned Magistrate referred to the respondent having accepted that he used a chainsaw to cut a tree, if not some trees in the area. His motivation was to move his boat. He had no criminal history having attained the age of 74 years. She indicated that she disagreed with the submission made by the prosecutor as to the appropriate penalty. She went through the comparative matters and distinguished them from the respondent’s offending. She referred to the principle that the protection of marine plants must be taken seriously. She said that those who cleared land (sic) for the construction of units or jetties or who cleared vast areas should expect to receive the higher penalties. She said that the protection of marine plants was important because they provide shelter, nursery and feeding areas for marine animals, which in turn ensured the survival of recreational and commercially important fish species. The learned Magistrate said that even minor disturbances can disrupt the entire food chain and cause a decline in fish production.
- The learned Magistrate took into account the maximum and minimum penalties and the infringement penalty that had been imposed. She said that she considered a fine of $700 was appropriate to deter the respondent and others and reflect the community’s outrage in people clearing land and trees.
- The learned Magistrate confirmed at the conclusion of her remarks that she had sentenced the respondent on the basis of the prosecution’s statement of facts placed before the court.
- On 18 October 2018, the appellant filed a Notice of Appeal to a District Court Judge. The notice contains two errors. It suggests that the respondent was convicted on 18 September 2018, which is incorrect. He was convicted on 7 August 2018. It also suggests that the sentence imposed involved a 28 day period in default of payment of the fine. No such default period was imposed.
- The grounds of appeal are:
- The prosecution was denied procedural fairness by the learned Magistrate not agreeing to an adjournment for an expert analysis to occur of the images of marine plant damage.
- That denial of procedural fairness meant that the learned Magistrate could not have been satisfied on the balance of probabilities pursuant to section 132C of the Evidence Act 1977 (Qld) of the factual matters contended by the defendant.
- The appellant filed an outline of argument on 15 November 2018. That outline addresses what is said to have been the procedural unfairness. It does not address the nature of the penalty imposed nor argue that the penalty imposed was inadequate.
- The respondent filed an outline of argument on 20 December 2018. He contends that the appeal has been commenced out of time and that it is incompetent because it is precluded by section 222(2)(c) of the Justices Act 1886 (Qld).
- A signed certificate of readiness was filed on behalf of the appellant on 10 January 2019.
- On 16 April 2019, the appellant then filed a supplementary outline of argument addressing the issues as to whether the appeal was filed in the time allowed and whether the appeal was incompetent. The appellant seeks leave to amend the grounds of appeal to include a ground that the sentence was manifestly inadequate. No argument was made as to the inadequacy of the penalty imposed in the supplementary outline.
The law governing the appeal
- Section 222(1) of the Justices Act 1886 (Qld) provides that a person aggrieved by an order made summarily on a complaint for an offence or a breach of duty can appeal to the District Court within one month after the date of the order.
- Section 222(2)(c) provides an exception to that general right of appeal if the defendant has pleaded guilty. When a defendant enters an unequivocal plea of guilty there is no general right of appeal for any person. A person may only appeal on the sole ground that a fine, penalty, forfeiture or punishment is excessive or inadequate.
- Section 228 states that no appeal shall be defeated merely by reason of any defect whether of substance or of form in any Notice of Appeal or in the statement of the grounds of appeal.
Time within which to appeal
- The respondent contends that the time within which the appellant was required to file the Notice of Appeal expired on 17 October 2018 in accordance with section 38 of the Acts Interpretation Act 1954 (Qld). He contends the notice was filed one day out of time.
- The appellant contends that the time expired on 18 October 2018, the day on which the Notice to Appeal was filed.
- Section 38 of the Acts Interpretation Act 1954 (Qld) provides rules for determining the time period referred to in section 222(1) of the Justices Act 1886 (Qld). The appeal period according to this provision started on the 19 September 2018, the day after the sentence was imposed.
- The definition of ‘month’ in the Acts Interpretation Act 1954 (Qld) means a calendar month, which in turn means the period starting at the beginning of any day of the month and ending immediately before the beginning of the corresponding day of the next named month.
- That means the final day for filing the Notice of Appeal was 18 October 2018. The Notice of Appeal was served within time.
Incompetence of appeal
- Section 222 of the Justices Act 1886 (Qld) gives the appellant the right to appeal. In bringing such an appeal the appellant, as a prosecuting agency is expected to exercise that right responsibly as a model litigant. The appellant regularly filed a Notice of Appeal within time. That notice indicated that the appellant was desirous of appealing to the District Court judge the order made at Cleveland Magistrates Court on 18 September 2018. Whilst the notice indicated that the 18 September 2018 was the date of sentence, it incorrectly indicated that 18 September 2018 was the date of conviction. The date of conviction was 7 August 2018. The respondent was unrepresented at his sentence. The Notice of Appeal served on him did not make clear that the appellant was appealing against the inadequacy of the sentence imposed.
- In the appellant’s supplementary outline of argument in which leave to amend the grounds of appeal is sought, the appellant has argued that the defect in the notice is one of form not of substance. I disagree as to this designation. The defect in the Notice of Appeal means that the sole ground upon which the appellant is able to appeal has not been stated at all. Given the way in which the notice is drafted it cannot be said that there is any indication on the face of it, that the appeal was against the inadequacy of the sentence. The grounds fail to invoke the jurisdiction of this court pursuant to section 222. It is a defect of substance.
- Further, in the outline of argument filed by the appellant, it is not contended that the sentence imposed was inadequate. The outline argues only that the refusal of an adjournment to allow the appellant to call expert evidence resulted in practical unfairness to the appellant and a sentence, which proceeded upon facts not established by the evidence. It is contended that the learned Magistrate sentenced the respondent on the basis that he cut only one branch from one tree, which was falling down.
- In the appellant’s supplementary outline of argument, he argues that leave should be given to amend the Notice of Appeal because no prejudice arises to the respondent as the arguments to be made on the substantive issue are not altered.
- That necessitates a consideration of that argument, that the appellant was denied procedural fairness and that the sentence proceeded upon a basis not properly established.
- Whilst there were early indications that the matter would be contested, ultimately the learned Magistrate specifically stated that she sentenced the respondent upon the basis set out in the appellant’s statement of facts. She did not, as contended, sentence the respondent on the basis of his account of having only cut one branch from one tree, which had fallen over.
- There is no merit to the complaint that the appellant has made. The respondent was quite clearly sentenced on the basis of the facts put forth by the appellant.
- The appellant also relies upon section 228 of the Justices Act 1886 (Qld) that no appeal shall be defeated merely by reason of any defect whether of substance or of form in any Notice of Appeal or in the statement of the grounds of appeal. That provision does not assist the appellant given there is no merit in his substantive argument.
- At the hearing of this matter the appellant argued for the first time, that the sentence was manifestly inadequate and that the appropriate penalty that ought to have been imposed was a fine of between $2000 and $3000. When challenged that no such argument had been made in the written submissions, counsel for the appellant said that the reason for that was because the position of the appellant remained that the matter should be remitted to the Magistrates court for a further hearing where evidence could be called to establish the matters in dispute. Only once the factual matters were resolved it was said, could the appellant argue that the sentence was inadequate. The appellant maintained that the factual matters in dispute were not resolved. As stated above, it is patently clear on the face of the sentencing remarks that the respondent was sentenced in accordance with the appellant’s statement of facts. Any dispute, if ultimately there even was one, was determined by the learned Magistrate in favour of the appellant. No procedural unfairness arose.
- At the hearing of this matter the respondent was represented. No material, including the transcript of the proceedings had been filed by the appellant, despite indicating in the outline of argument that reliance would be placed on the transcript of the proceedings on 7 August 2018 and 18 September 2018. In accordance with practice direction 5 of 2017 of this Court, the onus on obtaining a copy of the transcript and other documents from which the appeal is brought lies upon the parties. The material relied upon by the appellant, in particular, the transcript of the proceedings and the sentencing remarks were not provided to the respondent seemingly because there was some concern on the appellant’s part that copies could not be provided due to copyright vesting in the State of Queensland. As the transcript reveals on the face of it, copies can be provided with the written authority of the Executive Manager, Support Services, Queensland Courts. It was not until the hearing of this matter that the respondent was provided with a copy of the transcript of the proceedings. Accordingly, the respondent’s solicitor was not in a position to respond to the appellant’s new argument that the sentence imposed was manifestly inadequate and that a fine of $2000 - $3000 ought to have been imposed.
- The appellant relied upon a schedule of single Magistrate decisions, which were provided to the learned Magistrate, although not tendered. That schedule was not filed in this court or listed in the material upon which the appellant indicated that he intended to rely. The submission made, came as a surprise to the appellant’s solicitor, who was not in possession of any comparative decisions (although conceded that he had seen the schedule) so was unable to meaningfully respond to the submission.
- This appeal, being an appeal by way of rehearing, requires demonstration of some error on the part of the learned Magistrate before the powers of this court to set aside her decision are enlivened. The appellant’s argument as to the learned Magistrate’s approach to fact-finding on the sentence is without merit for the reasons stated above.
- Had the appellant identified an error and addressed his argument to the significance of that error to the inadequacy of the sentence imposed I may well have reached the conclusion that the sentence was manifestly inadequate. The penalty imposed by the learned Magistrate is significantly less than the penalty imposed by the infringement notice given to the respondent by Queensland Boating and Fisheries Patrol officers. The infringement notice imposed a fine of $1219. The fine imposed on the respondent by the learned Magistrate ($700) is not likely to deter others from cutting marine plants as the fine is significantly less than that imposed by the infringement notice. The fine imposed here tends to give other like-minded individuals the financial incentive to contest such infringement notices when the purpose in issuing infringement notices is to avoid the expense involved in matters being brought before the courts and the expense involved to government agencies in investigating and prosecuting matters through the courts.
- The main purpose of the Fisheries Act 1994 (Qld) is to provide for the use, conservation and enhancement of the community’s fisheries resources and fish habitats in a way that seeks to apply and balance the principles of ecologically sustainable development and promote ecologically sustainable development. That purpose is to be achieved by providing for the management and protection of fish habitats and the management of commercial, charter, recreational and indigenous fishing and the management of acquaculture.
- One of the reasons for the introduction of the Fisheries Act 1994 (Qld) was because the pressures on fish stocks due to commercial fishers and increasing numbers of recreational fishers meant that there was pressure on the habitat and environment that supported the fish stock. The protection of marine plants is important to ensuring sustainable fish habitats and stock. These habitats are vital natural resources that assist in sustaining fish stocks for commercial and recreational fishers. Lamb Island is in the southern part of Moreton Bay, a popular recreational fishing area for residents and visitors to Brisbane and the greater Moreton Bay area. Ensuring the sustainment of fishing habitats and stock in Moreton Bay is vital. Appropriately deterrent penalties ought to be imposed to protect both the fish stock and the fish habitats.
- An appeal against the inadequacy of a sentence is an appeal against the exercise of the sentencing discretion and must be determined in accordance with the principles in House v The King. The appellant has failed to identify or argue any error in the exercise of the sentencing discretion. In light of: (1) the model litigant principles, which require a State agency to adhere to principles of fairness; (2) the absence of any argument directed to the inadequacy of the sentence until the oral hearing of the matter; (3) the failure to provide the material upon which the appellant relied until the morning of the hearing; and (4) that this appeal places the respondent in jeopardy of being sentenced for a second time, I refuse the application for leave to amend the grounds of appeal.
- The Notice of Appeal therefore does not engage the jurisdiction of this court. The appeal is dismissed.
- I order the appellant pay the respondent’s costs of the appeal.
- Published Case Name:
Watts v Driver
- Shortened Case Name:
Watts v Driver
 QDC 110
28 Jun 2019