Harris v Lagerroth[2020] QDC 285

DISTRICT COURT OF QUEENSLAND

Table of Contents

Introduction

1. [1]
   On 29 March 2016, Mr Lagerroth (who was an investigator for the department) swore two complaints.  One complaint charged the appellant in Appeal 67/19 (Mr Harris) with 16 offences in contravention of the Sustainable Planning Act 2009 (Qld) (SPA). Of those 16 charges, 14 were brought under s. 578(1) of the SPA, and two were brought under s. 611 SPA (these two charges are irrelevant to these appeals and can be ignored).  The other complaint charged the appellant in Appeal 68/19 (Harris Operations) with 14 contraventions of s. 578(1) SPA in materially the same terms as the 14 charges under that provision against Mr Harris. 
2. [2]
   Mr Harris pleaded guilty to counts 2 to 6 of the complaint (the plea offences) and not guilty to the balance.  The plea offences related generally to clearing for purposes other than for cropping use.  Harris Operations also pleaded guilty to the plea offences.    
3. [3]
   Mr Harris and Harris Operations each contested the balance of the charges, being Counts 1, 7 to 10 and 12 to 14^[1] (the contested offences).   Mr Harris was convicted and Harris Operations was acquitted.  Appeals by Mr Harris of his conviction, and Mr Lagerroth of Harris Operations’ acquittal, were each dismissed by me.^[2] 
4. [4]
   Mr Harris and Harris Operations also each appealed the sentences imposed by the learned Magistrate.  Given the outcome of the conviction appeals, the two sentence appeals fall to be considered on the same basis as at trial. 

Sentences imposed at trial

5. [5]
   His Honour’s reasons for judgment are not long and relevantly provided (with challenged factual findings on appeal underlined):

BACKGROUND

Mr Harris is the sole lessee of Strathmore Station and the sole director and shareholder Operations Pty Ltd which carries on business on Strathmore Station, however the exact way that was carried out was never revealed to the Court.

Mr. Harris obtained two permits to clear land for sorghum production after extensive negotiations by him with the DNRME The clearing which occurred from August 2014 to June 2015 was not a piecemeal operation but in effect a continuous operation evidenced by the proximity of the illegally cleared land to the legally cleared land and the significant extent of the clearing – the two permits were for about 51,000ha and the illegal clearing was about 2,800 ha.

The illegal clearing comprised clearing of areas of land exempt from within the permit, e.g. around water courses and then significant areas outside the boundaries of the permits but in close proximity to legally cleared land,

The reason for the illegal clearing for the charges to which both defendants have pleaded guilty was for establishing infrastructure such as fire breaks, hard stands for machinery and an airstrip.

The rest of the clearing relating to the charges to which Mr Harris has been found guilty were committed because it was land identified by Mr Harris as higher value agricultural land than some of the land permitted to be cleared.

Mr. Harris was motivated by commercial gain.

Evidence was led at the sentence hearing to assess the impact to the environment by the illegal clearing.

The court heard from Mr. Dillewaard for the prosecution and Mr Stanton and Mr Sanders for the defendants.

The upshot of all that evidence and the evidence at the hearing is that there was of course adverse impact on the environment by all the clearing, legal and illegal.

In this sentencing phase of the proceedings, the exact degree of that impact is not the major consideration- the major consideration is the blatant disregard of the terms of the permits and the law for commercial gain.

I accept that Mr. Dillewaard's report is probably a reasonable scientific opinion about this illegal clearing on the environment.

However, his report does not purport to declare the impact in absolute terms but uses such things as modelling and his experience in this geographical area to gauge likely impact.

The exercise in calling experts with contrary views, simply reinforces, in my view, what the focus of the sentence should be.

That is the main focus for this Court is that the community through the legislature has decided that clearing such as this must be managed to achieve ecological sustainability (See S 3 of the Act- Purpose of the Act)

S.4 of the Act requires the act to be administered in a way that achieves the purpose of the Act.

S.5 sets out how that is achieved.

I refer to those provisions to demonstrate that Mr Harris' behaviour and that of Harris Operations Pty Ltd has defeated the purpose of the Act to a high degree.

Mr. Harris has denied the relevant authority the opportunity to take into account all those factors in S.5 to decide whether the clearing should be approved or not.

The community has been denied the opportunity to consider the impact of the clearing before it occurred, rather than after the fact.

That is a situation that cannot be tolerated by the community and the sentence calls primarily for personal and general deterrence.

The Court was referred to comparable cases, but none have exactly the same set of circumstances present.

The case of Smith v Baker (Magistrate Hall Magistrates Court Brisbane 2017) was a case where the offender knew the limits of clearing but wilfully exceeded them.

Mr. Harris and Harris Operations Pty Ltd also knew the limits imposed by the law and also wilfully exceeded them.

Sentencing in cases calling for general and personal deterrence is basically a blunt instrument efficient pain must be inflicted on the offender to deter reoffending by the offender and similar offending by others.

That is economic pain in the form of fines and in some cases the recording of convictions.

The level of fine must be set taking into account S 48 Penalties and Sentences Act 1992 - i.e. the ill be Gal circumstances of the offender and that nature and burden that payment of the tine will on the offender.

Mr Harris is an individual with substantial interests in property.

The financial position of Harris Operations Pty Ltd is not revealed.

In fixing the amount of the fine the Court may have regard to (relevantly) the value of the benefit derived from the offending.

In respect to the value of the benefit gained by Mr Harris from the offending, I am not persuaded that the prosecution have proved on balance of probabilities how much Mr Harris has profited or will profit by this illegal clearing, with any precision.

However, I say that by reference to Exhibits 36 and 37, Mr Harris' intention was to clear high value agricultural land for use in his farming operation.

I take judicial notice that farming is a long term pursuit where farmers generally have a vision of what can be achieved from their land in the coming years, informed by their knowledge and experience of farming techniques and the weather.

Mr Harris will be sentenced on the charges to which he was found guilty on the basis that he intended to make commercially viable profit in the long run from that illegal clearing, along with the legal clearing.

The sentencing of both defendants on charges 2 to 6 will be on the basis the clearing as for the establishment of infrastructure and it was simply convenient for the defendants to do that when the machinery was present but that the clearing was a much smaller area than the clearing in the balance of the charges.

The clearing in charges 2 to 6 was also for commercial gain, being a benefit to the farming and grazing business on Strathmore Station.

SENTENCES OF MR HARRIS AND HARRIS OPERATIONS PTY LTD FOR CHARGES 2 TO 6

Both Defendants have been convicted of offences founded on the same or similar facts and the Court may impose one fine on each defendant under S 49 Penalties and Sentences Act 1992.

The maximum available penalty for Mr Harris is $915,750 (5 x $183,150) and for Harris Operations Pty Ltd it is $4,578,750 (5 x $915,750).

The pleas of guilty must be taken into account and may be taken as a sign of remorse and any savings of court and prosecution resources should be given favourable consideration.

In this case the pleas of guilty were on the first day of the hearing and in my view now, had little impact on the course of the hearing.

The pleas of guilty are also the sole expression of remorse from Mr Harris either personally or on behalf of Harris Operations Pty Ltd.

Personal and general deterrence are the major considerations in this sentence.

One fine is imposed on each defendant as follows:

Mr Harris is convicted and fined fifth thousand dollars ($50,000.00) to be referred to SPER for collection.

Harris Operation Pty Ltd is convicted and fined one hundred and fifty thousand dollars ($150,000.00) to be referred to SPER for collection.

SENENCE OF MR HARRIS FOR CHARGES 1, 7 TO 10 AND 12 TO 14

There has been no expression of remorse from Mr Harris in relation to these charges and no co-operation with the administration of justice.

Personal and general deterrence is the major consideration in this sentence.

One fine imposed and Mr Harris is convicted and fined two hundred and fifty thousand dollars ($250,000.00)

RECORDING OF CONVICTIONS

This is a matter for the Court’s discretion taking into account those matters set out in S 12(3) Penalties and Sentences Act 1992.

In relation to both defendants, these were serious examples of this type of offending.

The defendants knew their lawful limits of clearing imposed upon them by the permits and exceeded those limits wilfully for commercial gain without regard for the objects of the Act.

Mr Harris has been involved in primary production since the age of fourteen and has built up an extensive farming and grazing operation and is well regarded by his referee.

If convictions were recorded, there is nothing to suggest that Mr Harris or Harris Operations Pty Ltd would not be able to remain carrying on their business of farming and grazing nor that Mr Harris’ social wellbeing would be effected in a way that was disproportionate to the seriousness of the offences.

The convictions are recorded against both defendants.

6. [6]
   His Honour made the following orders, relevantly:

ORDERS

1. SCOTT ALEXANDER HARRIS IS CONVICTED AND FINED FIFTY THOUSAND DOLLARS ($50,000.00) IN RESPECT TO CHARGES 2 TO 6 WITH THE CONVICTIONS RECORDED AND THAT THE PROPER OFFICER GIVE, UNDER THE SPE ACT, SECTION 34, PARTICULARS OF THE FINE TO SPER FOR REGISTRATION UNDER THAT SECTION.

2. HARRIS OPERATIONS PTY LTD IS CONVICTED AND FINED ONE HUNDRED AND FIFTY THOUSAND DOLLARD ($150,000.00) IN RESPECT TO CHARGES 2 TO 6 WITH THE CONVICTIONS RECORDED AND THAT THE PROPER OFFICER GIVE, UNDER THE SPE ACT, SECTION 34, PARTICULARS OF THE FINE TO SPER FOR REGISTRATION UNDER THAT SECTION.

3. SCOTT ALEXANDER HARRIS IS CONVICTED AND FINED TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00) IN RESPECT OF CHARGES 1, 7, 8, 9, 10, 12, 13 AND 14 WITH THE CONVICTIONS RECORDED AND THAT THE PROPER OFFICER GIVE, UNDER THE SPE ACT, SECTION 34, PARTICULARS OF THE FINE TO SPER FOR REGISTRATION UNDER THAT SECTION

The sentence appeals

7. [7]
   Mr Harris’ Notice of Appeal articulates the following errors by his Honour:

1. The magistrate erred in fining the appellant $50,000 and recording convictions in respect of charges 2, 3, 4, 5 and 6, which is excessive having regard to:
   1. the appellant’s plea of guilty;
   2. the appellant’s co-operation with the investigation and prosecution;
   3. the number of hectares the subject of the charges;
   4. the appellant’s antecedents;
   5. the appellant’s mistake of law;
   6. the extent to which environmental harm was actually caused; and
   7. previously decided cases.

2. The magistrate erred in fining the appellant $250,000 and recording convictions in respect of charged 1, 7, 8, 9, 10, 12, 13 and 14, which is excessive having regard to:
   1. the appellant’s co-operation with the investigation and in the conduct of the trial;
   2. the number of hectares the subject of the charges;
   3. the appellant’s antecedents;
   4. the extent to which environmental harm was actually caused; and
   5. previously decided cases.
3. The magistrate erred by concluding that the clearing was done wilfully and for commercial gain.
4. The magistrate erred by failing to give proper weight to the evidence that no financial gain followed from the unlawful assessable development.
5. The magistrate erred by taking judicial notice that farming is a long-term pursuit where farmers generally have a vision of what can be achieved from their land in coming years, informed by their knowledge and experience of farming techniques and the weather.
6. The magistrate erred by failing to give proper weight to the evidence that minimal, if any, environmental harm followed from the unlawful assessable development.
7. The magistrate erred by concluding the unlawful assessable development comprising in charges 1, 7, 8, 9, 10, 12, 13 and 14 was undertaken because the land was identified by [the appellant] as higher value agricultural land than some of the land permitted to be cleared.
8. The magistrate erred by failing to give adequate reasons for:
   1. the factual basis upon which sentence was imposed;
   2. quantum of the penalty imposed; and
   3. the recording of convictions.
9. The magistrate erred by failing to give proper weight to the evidence as to the effect of convictions being recorded.
10. The magistrate erred by concluding there had been a blatant disregard of the terms of the permit and the law for commercial gain by the appellant.
11. The magistrate erred by finding the appellant’s behaviour defeated the purpose of the [Sustainable Planning Act 2009] to a high degree.
12. The magistrate erred by finding that the appellant knew the limits imposed by the law and also wilfully exceeded them.
13. The magistrate erred by finding [t]he pleas of guilty [were]… the sole expressions of [the appellant’s] remorse.

8. [8]
   Although written submissions were addressed to each ground, some of those grounds coalesce around the same underlying consideration. 
9. [9]
   Harris Operations’ Notice of Appeal articulates the following similar grounds.  It can be seen that only grounds 2, 4 and 7 in Mr Harris’ are not repeated:

1. The magistrate erred in fining the appellant $150,000 and recording convictions in respect of charges 2, 3, 4, 5 and 6, which is excessive having regard to:
   1. the appellant’s plea of guilty;
   2. the appellant’s co-operation with the investigation and prosecution;
   3. the number of hectares the subject of the charges;
   4. the appellant’s antecedents;
   5. the appellant’s mistake of law;
   6. the extent to which environmental harm was actually caused; and
   7. previously decided cases.

[Mr Harris’ ground 2]

2. The magistrate erred by concluding that the clearing was done wilfully and for commercial gain. [Mr Harris’ ground 3]
3. The magistrate erred by concluding there had been a blatant disregard of the terms of the permit and the law for commercial gain by the appellant. [Mr Harris’ ground 10]
4. The magistrate erred by finding the appellant’s behaviour defeated the purpose of the [Sustainable Planning Act 2009] to a high degree. [Mr Harris’ ground 11]
5. The magistrate erred by finding that the appellant knew the limits imposed by the law and also wilfully exceeded them. [Mr Harris’ ground 12]
6. The magistrate erred by finding [t]he pleas of guilty [were]… the sole expressions of [the appellant’s] remorse. [Mr Harris’ ground 13]
7. The magistrate erred by failing to give proper weight to the evidence that no financial gain followed from the unlawful assessable development. [Mr Harris’ ground 9]
8. The magistrate erred by taking judicial notice that farming is a long-term pursuit where farmers generally have a vision of what can be achieved from their land in coming years, informed by their knowledge and experience of farming techniques and the weather.[Mr Harris’ ground 5]
9. The magistrate erred by failing to give proper weight to the evidence that minimal, if any, environmental harm followed from the unlawful assessable development. [Mr Harris’ ground 6]
10. The magistrate erred by failing to give adequate reasons for:
    1. the factual basis upon which sentence was imposed;
    2. quantum of the penalty imposed; and
    3. the recording of convictions.

[Mr Harris’ ground 8]

11. The magistrate erred by failing to give proper weight to the evidence as to the effect of convictions being recorded. [Mr Harris’ ground 9]

Further evidence

10. [10]
    The appeal is by way of rehearing on the original record^[3] subject to the admission of fresh evidence.^[4]
11. [11]
    The appellants applied for leave to adduce further evidence on their appeals in relation to the plea offences.  The further evidence comprised an order of Judge Fantin made in the Planning and Environment Court on 28 July 2020, along with an extensive annexure incorporated into her Honour’s order.  The effect of that order was, in broad terms, to make lawful the unlawful clearing comprised in those counts on various conditions.
12. [12]
    Ultimately, the respondent did not oppose leave being granted, though he maintained his submission that the fresh evidence did not materially assist the appellants in establishing that different sentences should be imposed.^[5]

Nature of the appeals

13. [13]
    Notwithstanding that the appeal is by way of rehearing, s. 222(2) Justices Act 1886 contains some specific constraints on particular categories of appeals.  Relevantly to these appeals, s. 222(2)(c) directs that if a defendant pleads guilty, then the defendant may appeal on the “sole ground” that the fine, penalty or punishment was excessive.
14. [14]
    Surprisingly, given the frequency with which the provision falls to be applied, there is some ambiguity as to how this provision is to be construed.  Is it sufficient to demonstrate error in the exercise of the discretion, or is it necessary to demonstrate that, on the application of correct principles, the sentence is excessive?^[6]  In the latter case, identification of error will not put the discretion at large. Instead, it is relevant to supporting an argument that the sentence was excessive. At the risk of overly simplifying the debate, it seems to me that the latter approach must be correct based on the words used in the statute.
15. [15]
    Another issue which arises is whether, on the admission of fresh evidence, the sentencing discretion is at large or whether the appeal remains one which is constrained, by the terms of s. 222(2)(c) but must be decided on the revised evidential record.  Section 223(3) provides that where fresh evidence is admitted, the appeal is by way of rehearing on both the original and the fresh evidence.  That text, and the language of s. 223 as a whole, contains nothing which in my mind suggests that the admission of fresh evidence excludes or alters the application of the limitation in s. 222(2)(c) where the appeal falls within the scope of that provision. 
16. [16]
    In argument, I suggested that the admission of the fresh evidence set the sentencing discretion at large and Mr Power for the respondent appeared to accept that proposition.  On reflection, I do not consider that proposition to be correct.  Mr Hunter for the appellants, on the other hand, did not appear to accept that proposition and undertook the overarching obligation to prove that the sentences (at least in respect of the plea offences) were excessive and, to the extent necessary, to demonstrate error leading to that conclusion based on the grounds raised in the Notices of Appeal.^[7]  
17. [17]
    In respect of the plea offences, I consider Mr Hunter’s approach to be the correct one.  I do not think that approaching the matter on that basis causes any disadvantage to the respondent, even if Mr Power considered that the discretion was at large.  The substance of the argument did not really differ between resentencing afresh and having to establish excessiveness of the current sentence and of course the written submissions were the basis of proving excessiveness.  And I am conscious that Mr Hunter was appearing for the appellants.
18. [18]
    A further statutory detail for Mr Harris’ sentence appeal is that for the plea offences, s. 222(2)(c) applies, but for the contested offences it does not.  Section 222(2)(c) only confines the permissible grounds of appeal to appeals where the defendant pleads guilty.  Mr Harris did not plead guilty to the plea offences.
19. [19]
    His Honour wisely imposed separate sentences for the plea offences and the contested offences.  Accordingly, at least as a matter of strict principle, the appeals in relation to the plea offences must demonstrate that the sentences imposed were excessive.  The appeal in relation to the contested offences, on the other hand, must be determined on ordinary House v R principles.  If an error is demonstrated, the sentencing discretion will be at large.
20. [20]
    A difficulty arises in applying the distinction between the two approaches to Mr Harris’ sentence appeal because of the single decision of the learned Magistrate to record convictions on all counts.  In my view, the recording of a conviction is part of the sentence imposed on Mr Harris.^[8]  The appeal in respect of the recording of the conviction therefore must be considered, on one view of the matter, by reference to different principles for the plea offences on the one hand and the contested offences on the other.  This creates some difficulties in relation to Mr Harris.  It is, I suppose, possible that I might consider that his Honour has erred on some point of principle in recording a conviction on all counts, but that doing so was not in any event excessive.  Those difficulties are probably more theoretical than real.  I will consider this further when considering the appeal on that point.

Circumstances of the offending

21. [21]
    His Honour made very limited findings of fact in his sentencing remarks.  They also tended to include factual conclusions unaccompanied by much by way of explanation.  Properly to assess the appeals of his Honour’s sentences, it is necessary to set out a more detailed articulation of the facts which provide the context for the specific arguments on the appeals.  I will endeavour to limit myself in this area to uncontroversial facts, and deal with controversial facts and conclusions when considering the parties arguments.

The appellants

22. [22]
    Mr Scott Harris is the owner of a large leasehold property called Strathmore Station in the Gulf country.  He is the sole director and shareholder of Harris Operations, which is a service company which runs aspects of the business carried on at Strathmore.   Strathmore is a huge property, the largest leasehold in Queensland I am told.  It is some 200 kilometres long and between 50 and 100 kilometres wide at places, oriented generally north to south.   It is some 900,000 ha.

The approvals to clear native vegetation

23. [23]
    The unlawful clearing was carried out in the location of, and in the course of, broader clearing which was authorised.  The circumstances in this respect are sufficiently stated in my previous reasons (footnotes omitted):

[3] …The vegetation on Strathmore includes many areas of native vegetation regulated by the Sustainable Planning Act 2009 (Qld) (SPA) and the Vegetation Management Act 1999 (Qld).  Relevantly to this case, that native vegetation is protected from clearing by s. 578(1) SPA which, in deceptively simple terms, provides that a person “must not carry out assessable development unless there is an effective development permit for the development”... 

[4] Mr Harris decided, in about 2013, to seek permission to clear native vegetation in a very large area to grow crops, largely for cattle feed, as I understand it.  He was assisted in that process by, amongst others, Mr Spies, a consultant who provided land and agricultural advice, and a Mr Peter Anderson… 

[5] There was an application process for a permit to clear native vegetation in that area (the application), which occurred most actively from September to November 2013.  There were a number of meetings in which the proposal was discussed with departmental officers, including Mr Kev Allan, who gave evidence.  The gravamen of his evidence and the documents he exhibited was to show that Mr Harris was directly involved in an active way in the application process as well as being, as a matter of formality, the applicant, as the leaseholder.  

[6] Mr Spies was accepted by the department as a person who had the expertise to provide a detailed report on the proposal.  His work produced a series of maps and reports, which were provided, together with the formal application, to the department by Mr Peter Anderson on 6 November 2013.  It is not open to dispute that this application was provided on behalf of Mr Harris as the applicant.   Although the signed application form is undated, I assume it was also lodged around the 6th of November. 

[7] The following is relevant about the application and the maps in exhibit 41. 

[8] First, they identify areas of high-value agricultural land, which were in the vicinity of watercourses working their way through an area some 60 kilometres long and about five kilometres wide in the southern section of the property in a north-west to south-east orientation.  They also identified areas of high-value agricultural land in an area some 20 kilometres long and six kilometres wide, proceeding east-west perpendicular to the longer, more north-south area. 

[9] The general orientation and the area is shown, inter alia, in map 1 in exhibit 35.  It included some, but not all, of the identified high-value agricultural land in the applied for area, along with some class B cropland.  It omitted some other areas of high-value land and class B land, as shown on the maps. 

[10] Second, mapped areas were, given the size of the areas, very specific.  The application areas were divided in the application maps into blocks 1 to 3, from the south to the north for the north-south area, and block 4, being the east-west area.  The maps included very detailed exclusions, such as the battle-axe-shaped area in block 1, which was to be a water reserve.  It left quite distinctly shaped exclusions to the west of block 2.  The same can be said of the maps for block 3 and block 4. 

[11] Third, the blocks identified in the application maps lodged with the application correlate, in broad terms, with the five areas identified by name in Mr Harris’ response to the show cause notice provided in June 2015 which is discussed from paragraphs [29] and [30] below. Block 1 is largely the areas designated as “the top paddock.  Block 2 largely covers the “Tucker’s paddock” and “Gilbert Crossing” areas.  Block 3 largely correlates with “Bobby Towns paddock”, and the east-west block 4 is called, somewhat ominously, “Dismal Creek”. 

[14] Fourth, the application maps were prepared with considerable attention to principles articulated by the department as to areas which would be excluded or included, consistent with their policies and so on.  Perhaps as a consequence, they have very distinctive inclusion and exclusion areas.  Further, as I said, bearing in mind their scale, they are reasonably detailed as to what is included and excluded. 

[15] Fifth, the maps involved application to clear native vegetation on a very large scale:  some 28,000 hectares, roughly, for the first application and 21,000 for the second.  A massive area, on any view, except when compared to the massive size of the station itself.  Nonetheless, a very large area of clearing. 

[16] The application was granted.  The approval was in the form of two development plans which authorised clearing in accordance with those plans.  Most of the clearing and all of the contentious clearing relates to areas in DPP1, which totals some 28,000 hectares of approved clearing.  DPP2 involved an area of 21,000 hectares, but the clearing under that permit is not contentious in this appeal.  

[17] DPP1 was granted on the 6th of January 2014.  It largely granted permission to do the clearing sought in the application, which I think reflected the care and detail of the application itself.  It reduced some of the areas sought, in minor respects, to make them more consistent, in the view of the department, with the policies and principles that guided their decision-making in respect of native vegetation clearing.  The permit was granted to Mr Harris, not surprisingly, because he was the applicant and it related to land of which he was leaseholder. 

The clearing works

24. [24]
    The clearing work commenced sometime in early to mid-2014 and continued until at least mid-2015.  In May 2015, the department gave Mr Harris a show cause notice as to why it should not take enforcement action against him for unlawful clearing.   The response to the show cause notice (Exhibit 35) was central in Mr Harris’ conviction appeal.  It also has some relevance to the sentence appeal.  Before dealing with that document, however, I need to set out some aspects of the investigation process, given the competing contentions on co-operation.

The investigation prior to the show cause notice

25. [25]
    The facts relating to the investigation and the co-operation of both appellants are not in dispute, at least in any material way.  What is disputed is the manner in which that co-operation should be characterised.
26. [26]
    Prior to the issue of the show cause notice, in June 2014, Mr Harris permitted a site visit by Departmental officers, allowed them unobstructed access to Strathmore and drove them around without requiring a warrant.  It does not seem, however, that the prospect of a dispute with the Department was in the offing at that time.
27. [27]
    More relevantly, in December 2014, Mr Harris hosted two Departmental officers again.  On this occasion he flew the officers around Strathmore and showed them all the clearing which had been undertaken, including areas later identified as unlawful clearing and areas which they were not previously aware of, including the airstrip clearing (seemingly Charge 5).  Given the scale of the property and of the clearing, I am willing to accept that the advantage to the officers of seeing the cleared areas from the air was very substantial.^[9]  It is also relevant that this occurred in the context where the Departmental officer had flagged that there was a concern about unlawful clearing, to which Mr Harris conceded that that might be the case.^[10]

The show cause notice and the appellants’ response

28. [28]
    Following those events, the Department gave the appellants a show cause notice.  It was not tendered at trial nor before me, however, its key provisions appear in the appellants’ response quoted in exhibit 35 below.  Mr Harris responded by his letter with attachments dated 19 June 2015 (Exhibit 35).^[11]  
29. [29]
    The covering letter relevantly provided:

Dear Sir

RE Scott Harris Strathmore Station

Decision Notice for development approval SDA-1213-006588

Show Cause Notice pursuant to s 588 Sustainable Planning Act 2009 dated 15 ^th May 2015.

I refer to your letter of 15^th May 2015 when you requested me to show cause as to why an enforcement notice should not be given in relation to continuing to clear native vegetation on Strathmore Station.

I enclose my response to the “show cause notice” dated the 15^th May 2015. The annexures contained in the table are numerous and contain mapsets, photos and reports. I am arranging hard and electronic copies to be delivered top you separate from this email.

I am hopeful that upon considering this response and the comprehensive compliance action outlined no enforcement notice will be necessary.

It is alleged

“A site visit conducted by DNRM officers on the 18 and 19 December 2014 confirmed mechanical clearing of vegetation had occurred:

1. in areas within the development permit footprint boundaries that are specifically excluded, such as within buffers around mapped watercourses, wetlands and road tenures; and
2. in areas outside the existing development permit footprint area, including unexplained clearing near the homestead, unexplained clearing for irrigation dam and fire management line clearing which appears to be beyond the allowable clearing width.

I wish to advise that I embarked upon the process of clearing vegetation in accordance with the Development approval in good faith and ultimately employed an independent expert and utilized the best technology to assist with ongoing compliance.

I am confident that when adjustments are made for areas that were included and excluded depending upon high value land suitability and areas are properly defined and mapped no more area of vegetation was cleared in respect of the development application than the area permitted.

I am ready to remedy any areas that remain unaccounted for in this process at my cost.

In the event the Department decides to issue an enforcement notice or take other action contrary to the compliance process set out in this document the I (sic) seek, prior to the issue of such notice, and at my cost if need be:

• a formal meeting with the Acting Regional Manager and the relevant decision maker, and
• a formal inspection of the relevant permit area by the Acting Regional Manager and the relevant decision maker

I enclose an authority for you to seek and provide information to my manager Peter Anderson in the event I am uncontactable as we are about to commence mustering.

I thank you for your assistance

Yours sincerely

[Handwritten signature] 

Scott Harris

Owner, Strathmore Station

30. [30]
    The detailed attachment included written submissions, a number of maps and a report from Mr Spies, an agricultural scientist.  The submissions relevantly stated:

…

Approach to Show Cause Notice

1. Engage I.L.A. Consulting, an independent expert, to assess and map all vegetation cleared in and around Permit area 1. (see Maps 1-8)
2. Engage Pinnacle Pocket Consulting to undertake a preliminary high value agriculture land suitability assessment in respect of all substantial areas cleared in and around Permit area 1. (with the exception of roads watercourses and wetlands) (see Table A)
3. Provide the Department with a map of all areas in respect of, and contiguous with, Permit area 1 in respect of which clearing has been completed including:

• permitted areas cleared
• permitted areas not cleared
• Unauthorized areas cleared

4. Show cause in respect of all unauthorized clearing in respect of, and contiguous with, Permit area 1.
5. Provide to the Department with preliminary submissions prepared by Pinnacle Pocket Consulting in relation to the PMAV issued on the 13^th May 2015 (under cover separate letter)
6. Seek an extension of time until the 31^st July 2015 to finalize PMAV submission pending soil tests and further site inspections and perusal of historical satellite and vegetation data.
7. Provide information in respect of all clearing including firebreak, dam site hardstand and other areas not included in 3 above.
8. Prepare a compliance program in respect of Permit area 1 (see Table B) including:

• Identify and map actual watercourses and wetlands whether cleared or not
• Identify and map roads and stock routes on proper alignment
• Identify and map areas cleared outside permit area of high value agriculture
• Identify and map authorized areas not cleared
• Identify and map unauthorized areas not suitable for high value agriculture

9. Submit watercourse and wetland map to Department for approval.
10. Implement vegetation regeneration program to buffers for water courses and wetlands as necessary in respect of approved map. (9 above)
11. Submit roads and stock routes map to Department for approval.
12. Seek approval from State or other relevant instrumentalities (depending upon ownership of roads and stock routes) to clear vegetation on roads or stock route.
13. Prepare and submit an application to amend development approval SDA-1213-006588 to give effect to compliance plan and obtain development approval for any unauthorized clearing of high value agricultural land.
14. Prepare and lodge applications for Development approval in respect of dam site, fire break and hard stand area.
15. Regenerate as necessary all vegetation in residual area (ie not dealt with in 12, 13, 14 above)
16. Prepare a compliance program to be supervised by an independent expert in respect of SDA-0714-012975 Permit area 2 to minimize risk of unauthorized clearing and to ensure legislative compliance and to validate data and protect watercourses and wetlands (see Table C)
17. Meet with Department representatives seek advice and information and on site as necessary to implement compliance plans.

General Considerations

Watercourses

• The VMA defines as watercourse as:

…

• The application mapped suitable agricultural land lands and did not distinguish all watercourses and wetlands due to inaccuracy of base data and lack of ground truthing.
• The mapping attached to the development approval attempted to define watercourses and wetlands.

…

• The mapping attached to the application did not include watercourses or wetlands. This was partly due to the inadequacy of the base data available, the scale of the project and the features of water movement in the catchment ie overland flow and drainage features that are not watercourses as defined by the VMA or the WA.
• The Development approval included watercourses and wetlands based on interpretation of spatial data which was not ground truthed.
• This became problematic for the applicant from the outset as watercourses that were marked on the approval map were only drainage features and hollows at best in many cases.
• There were water courses on the ground with banks and beds that were not marked on the approval map.
• Of the 329 ha of watercourse identified 64 ha are not within the alleged area of breach indicating further inaccuracy of the mapping.
• It was considered that when the application was made that the applicant and operators would visually distinguish watercourses and wetlands during the clearing process and apply the relevant buffers.
• This posed an immediate issue for the applicant as the only method of locating a watercourse with any certainty was by a visual approach.
• Features that might be more accurately described as drainage feature or follows were not evidence on the ground which added to the confusion (see photos 41,46,51,55 in attachments)
• The maps were guides only and shifted the onus on the applicant to determine where the buffers applied around a watercourse or wetland adding to the complexity.
• The applicant is now aware that even though watercourses may not have been properly aligned or described in strict terms the Development approval did not permit clearing in those areas.

Data and mapping

• The co-ordinate data provided with the Development approval by the Department was not decipherable, referable to landmarks or able to be utilized by standard GPS equipment.
• There were some 32,000 points contained in sheets 8 to 23 of the Development approval of indecipherable data.
• An example can be seen with the stock route and water reserve in Top Paddock:

Harris was advised by the Departmental staff in May 2014 to take care when clearing adjacent to the stock route and water reserve in the top paddock area as this tenure did not form any part of Strathmore tenure.

Harris explained to the officers the co-ordinates accompanying the Development application were indecipherable and not able to be used in a standard GPS process.

Harris requested and was given additional data from the Department in Cairns.

Harris marked out the area of the stock route and the water reserve on the ground based on the data provided however was concerned it did not accord with the description on the map accompanying the Development approval.

Harris went back to the Department and was given further data in a different format.

Harris checked this information with his GPS and again was concerned that it contained the same errors as the original data.

Harris was given 3 types of data

• Digital data
• Degrees and decimal minutes which were not able to be fed into GPS
• Degrees minutes and seconds

Harris was given further co-ordinates in the form of degrees, minutes and seconds which could be sued by a standard GPS and again depicted the incorrect area.

Harris engaged and (sic) independent expert ILA Consulting to identify map and provide data to ensure the stock route and water reserve were on the proper alignment as described in the map accompanying the Development application.

The data provided by ILA Consulting depicted the proper alignment to be at considerable variance from the data provided by the Department and assisted Harris to clear the stock route and water reserve area in the top paddock on the proper alignment.

Harris ceased clearing works in the area for 6 weeks whilst attempting to resolve this issue.

• The maps provided with the Development approval were not of a scale easily decipherable and contain the caveat:

“Derived Reference Points are provided to assist in the location of permitted clearing boundaries. Responsibility for locating these boundaries lies solely with the landholder and delegated contractors”

• Harris and his manager spent many hours flying around the areas to be cleared trying to reconcile the data provided with the physical features vegetation types and landforms on the ground.
• It was evident that there were areas of high agriculture that were contiguous with areas permitted to be cleared and areas that were included that were clearly unsuitable. This also led to confusion due to the scale of the area to be reconciled to maps and being unable to decipher the data and coordinates provided.

…

Show cause schedule and proposed remedy.

Permit Area 1

Note 1

Watercourses:

Due to the scale of the project and the nature of the data provided the applicant was continually attempting to reconcile the data based approval with the natural features on the ground

This was very much the case with water courses and wetlands.

For example in the top paddock area between the Gilbert River and the stock route there were several watercourses marked on the approval map.

In reality when the applicant was clearing those areas there was no discernible natural feature that would indicate the existence of a watercourse. The attached photographs depict the hollows and drainage features which are not watercourses.

In other cases the applicant often confronted an obvious water course with banks and bed which were not depicted on the approval map.

This became a constant issue throughout the clearing of Permit area 1.

Often the watercourses were choked with Chinee apple and rubber vine which restricted visual reconciliation with the map and physical features.

The owner and manager flew many hours in an effort to clearly define and control clearing around water courses.

See remedial action proposed.

Note 2

In attempting to reconcile the boundary of the approval area and the map description the applicant relied upon the watercourse as the defining feature.

The watercourse as depicted did not exist as the actual watercourse wound around the area that was ultimately cleared and there was no discernible change in the land form or vegetation type to assist the applicant to identify the boundary other than a “watercourse” marked on the map.

Pinnacle Pocket Consulting has determined from site inspection that area if of high value agriculture suitability see report. Soil test have been undertaken and sent for analysis final report will determine suitability.

See remedial action proposed.

Note 3

In attempting to reconcile the boundary of the approval area and the map description the applicant relied upon the watercourse as the defining feature.

See remedial action proposed.

Note 3a

The applicant cleared a further area whilst the machinery was in the vicinity on an ironstone ridge as a future hardstand for truck turnaround large machinery workshop, grain silos and bunkers, silage, transport and stock loading facility and heavy machinery park area due to the stability of the ridge and proximity to the road.

See remedial action proposed.

Note 4

In the absence of any other feature such as a watercourse or fence line the applicant cleared to the most obvious boundary based upon landform and vegetation type. This is the area described a “G” in the attached map.

The applicant relied upon the watercourse depicted in the area described as ‘H’ in the attached map and the landform and vegetation type as a guide to clearing the balance of the area. The applicant did not clear a substantial area which was permitted by the Development approval as it was obviously unsuitable and was a completely different vegetation type and land form to the surrounding area.

See remedial action proposed.

Note 5

The applicant attempted to apply common sense and consistency in clearing this area and followed vegetation types and land form features within the boundaries depicted in the Development approval map. There was a degree of give and take and the applicant is confident he cleared less area than was permitted within this area.

See remedial action proposed.

Note 6

Subject to further assessment the area shaded green on the map is either grassland or cat x or historic clearing.

The applicant will provide further advice/action when this is determined by PMAV process.

Note 7

Roads. The roads and stock routes were not made or on the proper alignment which made it difficult to determine their proper location.

See remedial action proposed.

Note 8

Fire break. The fire break is approximately 16 km by 80 m comprising 96ha and protects approximately 3,500 ha of farming country. There is no rural fire brigade within 2 hours of Strathmore and Strathmore only has capacity to fight spot fires.

The fires come predominately from the east and south east most seasons from Kutchera, Abington Downs and to a lesser extend from Chadshunt.

The applicant cleared the area whilst the machinery was in the location.

The firebreak also included a fence line.

The total value of the cropping asset to be protected is $1,750,000

The total investment to be protected is    $2,550,000

See remedial action proposed

Note 9

Dam site: This area relates to the granting of an allocation of 6000ML of water and will be the area from which gravel and earth will be extracted for the construction of the dam wall and will ultimately form part of the dam water storage area and will be inundated. The clearing was done whilst the machinery was in location. A crop was planted to stabilize the soil pending forma approval to commence works.

See remedial action proposed.

31. [31]
    Exhibit 35 also had a series of attached maps, numbered 1 to 18, which were to be read together with the show cause schedule and could readily be reconciled with that schedule.  Those maps largely identified the areas of clearing which were ultimately the subject of the prosecutions which led to these appeals.  Exhibit 35 also attached a sophisticated expert report, apparently prepared by Mr Spies, directed at sustaining the proposition that the large-scale areas cleared outside the approved areas under DPP1 were high-value agricultural land. 
32. [32]
    The show cause notice was provided in mid-May, and Exhibit 35 was received a month later.  At the time Exhibit 35 was provided, work under DPP 2 was not completed.  It was completed soon afterwards.  Mr Harris provided a further letter when that work was done, dated 9 July 2015.^[12]  It provided:

Dear Sir

RE Scott Harris Strathmore Station

Decision Notice for Development Approval SDA-1213-006588

Application to amend Development Approval

I refer to my letter of the 19^th June 2015 and confirm that I intend to apply to the Department of Planning and State Development to amend SDA-1213-006588 in respect of those areas of vegetation clearing that were not included in the development approval including:

1. Excluded water courses and wetlands within the development approval area which are not in fact water courses or wetlands.
2. Permitted areas within the development approval area described as high value agriculture which are not in fact high value agriculture areas which for practical, logistical, environmental and financial reasons have not been cleared.
3. Unauthorized cleared areas of high value agriculture contiguous with or adjacent to the development approval area which ought to have been included in the development approval and for practical, logistical, environmental and financial reasons and have been cleared. These include historical clearing omitted from the original application.
4. Excluded roads and stock routes within the development approval area that are not aligned with the formed or made road or stock route in respect of which clearing has occurred. An application will be made for temporary closure of these roads and stock routes contemporaneously with the application to amend the development approval.

I provided you with details of these areas in my response of the 19^th June 2015.

The purpose of this letter is to provide you with an opportunity to advise whether or not you will object to the proposed change to the Development Approval.

I await your response.

Yours sincerely

[Handwritten signature]

Scott Harris

Owner, Strathmore Station

[Underlining and italics added]

33. [33]
    That letter refers to the application for variation to the DPPs to regularise the clearing done outside the area of the DPPs sought in exhibit 35.  It was never suggested by Mr Harris from the start of the show cause process that the areas he identified as cleared outside the DPP were other than clearing outside its scope.   
34. [34]
    The Department was not persuaded to regularise the areas prima facie unlawfully cleared.   Rather, on 29 March 2016, the complainant, Mr Lagerroth (who was an investigator for the department) commenced these proceedings.    

Conduct of the proceedings

35. [35]
    Mr Power for the respondent submitted that the conduct of the proceedings, including the timing of the pleas from the appellants to Charges 2 to 6, is relevant to these appeals.  It is certainly correct that the proceedings were hotly contested, at least initially.  The appellants brought a stay application first on the grounds of some form of estoppel and then on the basis that the proceedings were out of time.  It was only after those steps had not proved efficacious that the plea of guilty was entered to the plea offences.  It was a late plea on any view.
36. [36]
    The appellants also started the trial with the requirement that all matters be proved strictly, though as the trial progressed, it seems, that insistence was not maintained.  Ultimately, admissions were made towards the end of the trial.

Nature and extent of the clearing: plea offences

37. [37]
    There was seemingly no challenge to his Honour’s finding that the reason for the clearing related to Charges 2 to 6 was for establishing infrastructure such as fire breaks, a hard stand for machinery and an airstrip.  I was unable to locate any more specific submissions by the prosecution or the defence in the sentence submissions as to the facts upon which the Court should act when imposing sentence for the plea offences.  Submissions related to the plea offences were rolled up in submissions on sentence on all offences. Nor were these offences considered in much detail in the trial submissions, given they were the subject of guilty pleas.
38. [38]
    However, some attention needs to be given to the nature and extent of the clearing for these offences because:

    1. (a)
       Harris Operations falls to be sentenced only for these offences;
    2. (b)
       Harris Operations and Mr Harris must demonstrate that the penalty imposed for these charges is excessive; and
    3. (c)
       These offences fall into a different category to the other offences because they were said to be based on a mistake of law as to an entitlement to clear regardless of, and without relation to, the DPPs.
39. [39]
    The prosecution trial submissions set out a convenient extract from the ArcReader database showing the shape of the charge areas.  It is there submitted that^[13]:

    1. (a)
       Charges 2, 3 and 6 are explained by Exhibit 35 as firebreaks;
    2. (b)
       Charge 4 is described as a hardstand area by Exhibit 35; and
    3. (c)
       Charge 5 is described as a dam site by Exhibit 35. 
40. [40]
    The firebreak areas are in the shape one would expect (though they are much too wide, something which could have been determined without too much difficulty).  No reason to dispute the purpose of the clearing for Charges 4 or 5 was advanced so far as I could determine, with one proviso. It is said in the appellants’ submissions that Charge 5 was cleared for a landing strip.  No citation is given for that factual assertion,^[14] though his Honour made the same comment.  Maybe it was both a dam and landing strip.
41. [41]
    The areas cleared in each case as disclosed by the complaints were:

    1. (a)
       Charge 2: 132 ha;
    2. (b)
       Charge 3: 28 ha;
    3. (c)
       Charge 4: 262 ha;
    4. (d)
       Charge 5: 72 ha;
    5. (e)
       Charge 6: 72.4 ha.
42. [42]
    The total cleared area was therefore 566.4 ha. The trial submissions also submitted that the clearing in these areas occurred as part of the overall clearing of the other unlawfully cleared areas and the DPP areas.   This appears consistent with the timing alleged in the complaints and the statements in Exhibit 35 that the work was done while the machinery was in the location.  The correlation between the notes and maps in Exhibit 35 and the charge areas is not exact.  To the extent it was not, so far as I could detect, examined at the trial nor in sentencing submissions.     

Nature and extent of the clearing: contested offences

43. [43]
    There appeared to be no challenge to his Honour’s findings on sentence on these charges so far as they went.  His Honour found, as noted above, that the illegal clearing comprised clearing of areas identified by Mr Harris as higher value agricultural land than some of the land permitted to be cleared which fell into two categories:

    1. (a)
       Clearing of areas of exempt land from within the permit boundaries, e.g. around water courses; and
    2. (b)
       Clearing of significant areas outside the boundaries of the permits but in close proximity to legally cleared land.
44. [44]
    There was no detailed finding by his Honour about which of the contested offences of involved areas around water courses and which were the larger consolidated areas of clearing outside the boundaries, even though there appears to have been some attempt by Mr Harris to draw a distinction between the circumstances of those two categories in Exhibit 35.  The Map Book for the complaints suggests that charges 1, 8, 9 and 10 are the broad clearing areas and 12, 13 and 14 relating to clearing around watercourses. Charge area 7 might be a bit of both: 151.2 ha.
45. [45]
    It can be seen from the maps that charge areas 12, 13 and 14 involve a large number of relatively small discrete areas of clearing in areas within the general boundaries of DPP1.  It is not hard to accept that this clearing is around watercourses (the watercourse clearing). I say relatively small, because the total area cleared in those charge areas was not small: 584, 76.2 and 334.2 ha respectively (totalling 994.4 ha).^[15]  The balance of the clearing for the contested offences was 278.2, 48.6, 398.9 and 445.7 ha^[16] for charges 1, 8, 9 and 10 respectively totalling 1171.4 ha (the broad acre clearing). Charge area 7 involved a further 151.2 ha.
46. [46]
    In total therefore the contested offences involved clearing of 2,316.8 ha.  With the plea offences, that gives on my calculations a total area cleared of 2,883.2.  Mr Harris’s submissions on sentence conceded the total area of 2,874.9.   The difference is irrelevant at the scale of clearing in this case. 

Characterisation of the appellants’ attitude to the law

47. [47]
    Both before his Honour and on appeal, the characterisation of the appellants’ conduct was disputed.  This dispute informs a number of the grounds of appeal.^[17]  It is convenient to deal with it as a single issue.
48. [48]
    The gravamen of the appellants’ arguments are that his Honour wrongly concluded that the appellants knowingly and wilfully exceeded the law in clearing beyond the limits of the DPP.
49. [49]
    The argument is put at its highest by the appellants as follows:

62. This attempt to regularise the clearing is inconsistent with the finding of the sentencing magistrate that Harris Operations knew the limits imposed by the law and also wilfully exceeded them and that the areas were cleared because it was simply convenient for the defendants to do that when the machinery was present.
63. The wrong findings presumably come from an inference drawn from exhibit 35. The exhibit, however, does not support such a finding. There is a refence [sic] in exhibit 35 from the trial to areas being cleared while the machinery was in the relevant location, but that is a statement of fact, not an admission that the clearing was done because it was simply convenient (see Grounds 3 and 5 below).
64. This was a substantial factual dispute. As such, the sentencing magistrate was obliged to make findings about the dispute (see above principles under the subheading Contested sentence). If a finding was to be made adverse to Harris Operations, the sentencing magistrate ought to have indicated is provisional view to counsel (see above principles under subheading Procedural fairness). Here, the finding was adverse to Harris Operations and the sentencing magistrate did not indicate his provisional view to counsel, nor did he give adequate reasons for his findings (see above principles under the subheading Adequate reasons for sentence). Further, the findings are inconsistent with the evidence and information at sentence.
65. Absent special circumstances, where no attempt has been made to resolve a dispute by evidence, a sentencing magistrate ought to take the view of the facts most favourable to Harris Operations (see above principles under the subheading Contested sentence).
66. Here, the prosecution bore the burden of proving the alleged aggravating circumstance. They did not discharge that burden. As such, the sentencing magistrate was required to find in favour of Harris Operations. A finding of mistake of law ought to have been made as it was the most favourable circumstance to Harris Operations and the evidence support [sic] such a conclusion. Such a finding would have reduced moral culpability and therefore a penalty.
67. The failure to give adequate reasons has frustrated the analysis of the sentencing magistrate’s sentence and the rationale for the sentence.
68. These errors have contributed to wrong findings and therefore to the excessive penalty imposed.

50. [50]
    On the basis of that argument, it is submitted, in effect, that:

    1. (a)
       His Honour imposed an excessive sentence because he wrongly assumed a matter of aggravation which was not established on the evidence;
    2. (b)
       His Honour erred in making the findings that Mr. Harris and Harris Operations knew the limits imposed by the law and also wilfully exceeded them and that there had been blatant disregard of the terms of the permit and the law for commercial gain.
51. [51]
    The arguments in response of the complaint is best approached by first setting out the contention before his Honour.  The respondent’s sentencing submissions relevantly submitted:

50. [33]The prosecution submits that a finding should be made on sentence under s. 132C of the Evidence Act 1977 that Mr Harris made a deliberate decision to clear native vegetation beyond the bounds of the permit areas from a very early stage of the clearing operation.
51. [34]Further, the prosecution submits that a finding should be made that Mr Harris continued to clear native vegetation in breach of the permits, even after he was aware the Department was investigating him. Mr Harris was present on the property on 18 December 2014 when Departmental officers visited. He was provided with mapping that identified areas that had been cleared outside the permit area and admitted that he had cleared outside the approved area due to errors in interpreting the development mapping.
52. [35]Both the deliberateness of the offending and its continuation after he was aware that his offending had been detected show a brazenness of Mr Harris’s offending which is particular [sic] aggravating.
53. [36]The following table shows the attending of Mr Harris at meetings and when clearing in the charge areas occurred as against the time line of those meetings:

52. [52]
    There followed a table in which met the description in paragraph [36].
53. [53]
    Given the submissions just cited, the issue was clearly raised.  Further, to my mind it is plain that his Honour accepted the prosecution submission by the specific findings challenged. 
54. [54]
    In my view, the gravamen of his Honour’s conclusion was correct on the facts.  I think it correct that Mr Harris, both for himself and for Harris Operations, knew that the unlawful clearing was not authorised by the permits nor otherwise lawful.  However the basis for that finding and Mr Harris’ state of mind requires some explanation and one that differs a little for the different offences.
55. [55]
    The starting point is Exhibit 35.  It provides evidence of the explanations given by the appellants for each of the three categories of unlawful clearing (i.e. watercourse, broad acre and infrastructure clearing) prior to commencement of proceedings.
56. [56]
    I find that Exhibit 35 communicates the following matters:

    1. (a)
       First, that the plea offences were not cleared for the underlying purpose of the DPPs i.e. to clear high value agricultural land for cropping.  Rather, as that document reveals, those charge areas were cleared for other purposes related to the operation of the grazing undertaking^[18];
    2. (b)
       Second, the watercourse clearing was undertaken in the areas around watercourses in the DPP 1 area, but was the result of a mistake as to the areas which were excluded to protect watercourses;
    3. (c)
       Third, the broad acre clearing was carried out outside the DPP1 boundaries and was high value agricultural land, but was also the result of a mistake of fact.
57. [57]
    I make the following findings about these matters.

The plea offences

58. [58]
    The proposition advanced by the appellants is that the clearing in these areas was the result of a mistake of law.  That matter was repeated in submissions on the appeal.  It was expressly submitted that although the clearing was deliberate, Mr Harris believed that the area could be lawfully cleared for infrastructure or management.  
59. [59]
    The prosecution response to this was as follows:

58. 12.The first ground of appeal appears to be founded upon a contention that the appellant cleared the areas based on a “mistake of law”.^[19] There is no evidence to support that claim. Assertions in outlines of argument do not constitute evidence. It was made clear at sentence that if some state of mind of the human defendant Mr Harris was said to be relevant, then evidence of that had to be given. To the extent that his allegation about the state of mind of the appellant was relevant, it would be a matter in mitigation and had to be proved by the appellant.^[20]

60. [60]
    So far as I can find in the trial record, that submission is correct.  Certainly, Exhibit 35 does not state that those areas were cleared under a mistake of law.  Further, I see no good reason to infer that occurred.  Mr Harris was not naïve in the ways of the land clearing statutory regime, as is shown by his key role in the development of the very sophisticated application for clearing which resulted in DPP1 and DPP2.   I am not saying that he necessarily knew with precision the precise limits of the statutory exclusions, but he must have had some familiarity with them to direct the clearing in those areas at all and to rely on the exemptions in Exhibit 35.  Further he had the resources to obtain such advice as he might need to clear consistently with those exemptions.  If he was unclear as to their precise limits (which is different from acting under a positive mistake of law), he did not avail himself of advice to clear up any uncertainty.  I reject the contention that the plea charges were the result of a mistake of law.

The contested offences

61. [61]
    The thrust of the statements in Exhibit 35 is that the clearing in the contested charge areas were the result of a mistake of fact.  Again, although the correlation with the specific charge areas is not precise, it is clear enough that that is the basis asserted for clearing in those areas covered by those charges.
62. [62]
    The proposition is more fully developed in Exhibit 35 for the watercourse clearing.  There is a detailed explanation as to how the mistakes are said to have arisen.^[21]  It explains the difficulties in identifying the boundaries of seasonal watercourses from the data provided by the Department.  For the broad acre clearing, the mistake of fact is asserted, but frankly much less persuasively.^[22]  For example, charge areas 9 and 10, totalling some 850 ha, are explained as being cleared by mistake because “in the absence of any other feature such as a watercourse or fence line the applicant cleared to the most obvious boundary based upon landform and vegetation type”.  Given the scale of those areas of clearing (even allowing for the scale of DPP1), I do not accept that these areas were cleared in error.
63. [63]
    On the sentence hearing below, Mr Harris contended with vigour that the clearing was the result of mistakes of fact.^[23]  The prosecution disputed that proposition by reference to the evidence at trial.^[24]  On the appeal, Mr Harris has not advanced the mistake of fact contention.   Rather, as explained above, the argument takes issue with the narrower point that it was not open to his Honour to find that the unlawful clearing was carried out because it was simply convenient to do so when the machinery was located there.

Analysis

64. [64]
    For the reasons given in paragraph [60], I do not accept that the plea offences areas were cleared as a result of a mistake of law.  The best that could be inferred for Mr Harris was that he assumed that that clearing would be lawful under the exemptions without inquiring too much into the matter, despite having the resources and experience to do so.
65. [65]
    As to the contested offences, having considered the matters raised by the prosecution before his Honour, it seems to me that there was merit in the prosecution argument that mistake of fact was not a factor in the clearing.  There also is another matter which tends to support that conclusion: the appellants were able to prepare the detailed identification of unlawful clearing in Exhibit 35 within a relatively short time frame in response to the Show Cause Notice.  The speed and precision with which that document was produced is inconsistent with the submission that it was not reasonably possible to work out the location of lawful clearing for DPP1.  Accordingly, I do not accept that the unlawful clearing in the contested charge areas was the result of mistakes of fact.   While I am willing to accept that in some areas around watercourses within DPP1 there might have been ambiguity, I reject the suggestion that it is a material explanation for what occurred.
66. [66]
    There is another implication of rejection of the mistake of fact proposition.  It is that Exhibit 35, while being frank about the unlawful clearing which occurred, sought misleadingly to minimise the deliberateness with which it occurred.
67. [67]
    I also reject the argument that it was not open to his Honour to conclude that the unlawful clearing was done at the time it was done because the machinery was in the location at the time.  So much is admitted expressly in Exhibit 35. 
68. [68]
    In all those circumstances, it was not much of a step for his Honour to then conclude that the unlawful clearing was done when it was convenient for the appellants.
69. [69]
    Despite those matters, however, it might be that I take a different view from his Honour as to how one properly characterises the appellants’ conduct.  Words like blatantly and wilfully carry overtones of defiance of the law which particularly engage the principles of personal and general deterrence.
70. [70]
    In my view, the appellants’ conduct requires a more subtle characterisation.  It seems to me that the correct analysis of Mr Harris’ conduct was that he deliberately directed the unlawful clearing but did so believing that any unlawful clearing would be able to be relatively easily authorised afterwards.
71. [71]
    The inference emerges strongly from Exhibit 35: the entire tenor of which was fully to identify the unlawful clearing but to attempt to persuade the Department to approve it afterwards.  The conduct could perhaps be best characterised as deciding that it was better to seek forgiveness than permission.
72. [72]
    That characterisation is consistent also with the approach to the authorisation application for the plea offences areas which is relied upon by the appellants.  It reflects, I consider, a belief in Mr Harris that those areas would be able to be authorised afterwards. 
73. [73]
    Importantly, it is consistent with one of the central arguments in Exhibit 35 as to why the unlawful clearing should be approved: that is that it involved clearing land which was within the spirit of the approval in DPP1: high value agricultural land.  In my respectful view, what occurred for the contested charge areas was that Mr Harris formed a judgment as the work progressed as to what was truly high value land and undertook a notional adjustment of the boundaries.  This is consistent with (and explains) the fact emphasised in the appellants’ submissions that he left uncleared equivalent areas to those which were unlawfully cleared.
74. [74]
    Further, it is consistent with the reality that the unlawful clearing was undertaken in the context where the appellants had engaged in a complex, sophisticated and detailed process leading to the DPPs issued by the Department.  That is not the conduct of a person with no regard for the statutory scheme or the purposes of the Act. 
75. [75]
    Finally, it is also consistent with the other evidence relied upon by the respondents in this regard: that the appellants continuing to clear after the investigation began.  The factual contentions by the respondent on this issue appear at [see paragraph 68 of the extract at paragraph [49] above].  It makes sense that Mr Harris would continue clearing areas which he thought would be able to be regularised afterwards.  
76. [76]
    I consider Mr Harris’ judgment was that the unlawful clearing was generally consistent with the statutory scheme and would therefore likely be approved.
77. [77]
    This characterisation of Mr Harris’ state of mind in relation to the offending is both helpful and unhelpful to the appellants.  It is unhelpful because it leads to the conclusion that Mr Harris deliberately cleared unlawfully.  On the other hand, it is helpful to the appellants because it demonstrates that this was not wanton destruction, nor irrational and pig-headed disregard of the statutory scheme.  Rather, it shows a mistaken and wrong belief that the clearing undertaken was generally consistent with the purpose of the DPPs and the Act and that when and if it was challenged the clearing would be retrospectively approved.

Conclusion

78. [78]
    The consequences of my analysis of the manner in which the clearing was carried out are as follows.

    1. (a)
       First, there must be a sentence which punishes for the deliberate breach of the law.
    2. (b)
       Second, there must be a sentence which provides general deterrence to others who might be tempted to make their own judgments as to what can be cleared, on the assumption that their judgment will later be vindicated; and
    3. (c)
       Third, it suggests that personal deterrence is not a significant factor.  Mr Harris is clearly an intelligent man. I doubt he will make again the assumptions which he made in this case, given the clear misjudgement he has made. 
79. [79]
    It is possible that my characterisation can be read consistently with his Honour’s findings under challenge in this regard.  However, in approaching the question of whether the sentences on Charges 2 to 6 are excessive, and in approaching the review of the discretion exercised for the contested offences, I will apply my characterisation of Mr Harris’ conduct as explained above.
80. [80]
    I should add that the above analysis sits comfortably with a central element of his Honour’s reasoning: that being that the consequence of Mr Harris’s action was to deny the community the opportunity to consider the impact of the unlawful clearing before it occurred rather than afterwards.

Extent of co-operation and plea of guilty

81. [81]
    The facts on this issue were not in dispute.  Rather their characterisation were contested.
82. [82]
    There were two aspects to this issue: what weight to be given to the pleas of guilty on the plea offences and how to characterise the acts relied upon as co-operation in respect of both categories of offences.
83. [83]
    His Honour reached the following conclusions on those points:

    1. (a)
       As to the former, he observed that the pleas of guilty had little impact on the course of the hearing coming on day one, and that they are the sole expression of remorse from Mr Harris either personally or on behalf of Harris Operations.
    2. (b)
       As to the latter, he observed that there had been no expression of remorse from Mr Harris in relation to these charges and no co-operation with the administration of justice 
84. [84]
    The appellants disputed both findings.

Appellants’ contentions

85. [85]
    The appellants’ contentions in this regard can be summarised as follows:

    1. (a)
       On the pleas of guilty, the appellants contend that his Honour erred in his characterisation of the benefit of the plea.  Harris Operations points out that given its acquittal at trial (confirmed on appeal), the plea obviated the need for any trial of the charges against it and should have been taken into account in that way.  For Mr Harris, it obviated the need for a trial on those charges;
    2. (b)
       As to co-operation by both appellants, the appellants contend that his Honour wrongly disregarded the co-operation comprised in permitting the Departmental Officers to inspect, without warrant and with assistance of the appellants, all areas of clearing (including by air), and in providing Exhibit 35 which explained the areas of unlawful clearing.
    3. (c)
       As to the finding that the plea was the sole evidence of remorse, the appellants relied on the co-operation including the offers to address unlawful clearing and pursuit of the authorisation (ultimately successfully) of the areas cleared for infrastructure purposes.

Respondent’s contentions

86. [86]
    As to co-operation, the respondent contended that while there was some co-operation, it was self-interested and not related to a conscious wish to make good wrong doing. Specifically:

    1. (a)
       The assistance given to Departmental Officers took place in the context of continuing unlawful clearing;
    2. (b)
       The pre-trial approach of the appellants was to take points designed at defeating the prosecution in advance;
    3. (c)
       Exhibit 35 did amount to co-operation but that its value as such should be discounted by the attempt at trial to prevent the admission of the document into evidence against Mr Harris; and
    4. (d)
       The trial was conducted in a strict manner, at least up until the latter parts of the trial when some admissions were made.
87. [87]
    As to the pleas, the respondent did not seem to try maintain his Honour’s finding that the pleas of guilt had little impact on course of the trial.  Rather, the respondent contended that the value of the pleas as facilitating the administration of justice was reduced by the timing of the pleas and the fact that they followed only after unsuccessful applications to stay the prosecutions.

Analysis

88. [88]
    It is convenient first to consider co-operation.  To my mind, there is little doubt that the conduct of the appellants very significantly facilitated the administration of justice in this prosecution.  Taking the investigators on a guided helicopter inspection of the areas of clearing went well beyond any obligation that Mr Harris had to assist.  There is no suggestion made that in this flight he attempted to conceal areas of unlawful clearing.  Given the scale of the station and of the lawful clearing, it would have (or would be expected to have) greatly assisted the Departmental Officers.
89. [89]
    However, that assistance is modest compared the assistance to the prosecution comprised in Exhibit 35.  I have already had cause to remark on how closely that document is linked to the ultimate formulation of the charge areas.  Further, there has been no suggestion either on the conviction appeal or on this appeal, that Exhibit 35 was anything but frank and comprehensive as to unlawful clearing.
90. [90]
    As I commented to Mr Power (and I think he agreed), once Exhibit 35 was delivered, the appellants were facing a difficult time in resisting any subsequent prosecution.   
91. [91]
    The respondent submitted that the benefit on sentence of those acts of co-operation should be reduced because they were driven by a desire to have the Department approve the unlawful clearing ex post facto and because when that did not work, the appellant’s resisted the tender of Exhibit 35 at trial.  
92. [92]
    In my view, the correct understanding of the acts of co-operation can be seen by putting them in the context of my finding as to the state of mind of Mr Harris while the unlawful clearing was carried out.
93. [93]
    As I have found, Mr Harris expected that the unlawful clearing would be able to be regularised after the event.  His co-operation was, in my view, directed at achieving that outcome.  When it emerged that that was not going to happen, the appellants sought to resist the prosecution.  That does not mean that Exhibit 35 did not objectively assist in the prosecution.  It did.
94. [94]
    The same analysis applies to the pleas of guilty.  There is no doubt that, contrary to his Honour’s finding, they did have an impact on the conduct of the trial.  Indeed as I have noted, the ultimate outcome of the trial meant that Harris Operations’ plea met the whole of its criminal liability.  The plea was a late plea, however, and it followed attempts to defeat the whole of the prosecution.  This leavens the assistance in the administration of justice it represented, but did not exclude it. 
95. [95]
    The ultimate consequence of these considerations are this:

    1. (a)
       Each of the appellants co-operated in a manner which had the objective consequence of very significantly assisting in the prosecution;
    2. (b)
       Each of the appellants did so with the subjective intention of persuading the Department to approve the unlawful clearing ex post facto, consistent with the (wrong) belief held by Mr Harris that that was a likely outcome; and
    3. (c)
       Once a prosecution was clearly to be pursued, the appellants fought the prosecution vigorously, and pleaded guilty only when that seemed necessary after failure of the attempts to defeat the prosecution on a summary basis.
96. [96]
    The result is that his Honour erred in finding that there was no co-operation by Mr Harris in relation to the contested offences.   This is sufficient to demonstrate error in his sentencing of Mr Harris in respect of the contested offences.
97. [97]
    I also find that his Honour did not take into account the co-operation of Mr Harris and by him, Harris Operations, in sentencing in relation to the plea offences.  Of course, it remains to demonstrate that the sentence imposed on those charges was in any event excessive.
98. [98]
    Where does that leave the question of remorse though?  Before addressing that question, it is convenient to recall some basic propositions^[25]:

Remorse

[500.9500] Rationale for discount

Remorse is the feeling of regret or sorrow for what one has done.  In all Australian jurisdictions, it is an important sentencing consideration.^[26]  In Fusimalohi v The Queen [2012] ACTCA 49, Refshauge J made the following observations, at [31], regarding the meaning of remorse:

99. [31]R Edney and M Bagaric, in Australian Sentencing: Principles and Practice (Cambridge University Press, 2007) at 175, describe remorse as “the feeling of regret or sorrow for what one has done”.  See also Alvares v The Queen (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [45], and at [38] where Buddin J noted that there is a relevant distinction between “contrition” and “remorse”.  It is, as Winneke P noted in R v Whyte (2004) 7 VR 397; [2004] VSCA 5 at [21] “not to be confused with such emotions as self pity”.  Nor, as Asche CJ noted in R v Jabaltjari (1989) 64 NTR 1; [1989] NTSC 38, at [10], should it be confused with a different emotion of “being… sorry for being caught”.  As Winneke P said, “it is an elusive concept”. 

The main rationale for ascribing weight to remorse in the sentencing calculus is because of the assumption that repentant offenders accept that their behaviour was wrong and are presumably less likely to reoffend.  Accordingly, there is a reduced need for specific deterrence and rehabilitation and the absence of these on the punishment side of the scales necessarily leads to a reduced penalty.

99. [99]
    Bearing in mind those principles, I consider his Honour was correct to conclude there is no evidence of remorse.  So much is reflected in the manner in which the trial was fought (despite the concessions in Exhibit 35), and in the lack of any statement from Mr Harris or Harris Operations to that effect during the sentencing process including this appeal.  It is also consistent with the disingenuous explanations offered in Exhibit 35 that the unlawful clearing was the result of mistakes of fact and law.  I think it likely that Mr Harris considered, and still considers, that the unlawful clearing should have been approved as generally consistent with the statute in the first place.
100. [100]
     But what does that mean for sentencing in this particular case?  Ultimately, as the learned authors opine, remorse is primarily a matter which is relevant to the risk of re-offending.  Here, as I have found, I consider Mr Harris made an assumption about the likely result if he cleared unlawfully: i.e. that it would be approved later and without criminal proceedings.  Events have proved that assumption wrong, at very considerable cost.  As I have said, he is not a stupid man.  I think it very unlikely he will make the same assumption again. 
101. [101]
     Thus, I do not consider in the context of this particular case, that the lack of demonstrated remorse makes a great deal of difference to sentencing for these offences.   

Antecedents

102. [102]
     There was evidence before his Honour of the good character and contribution of Mr Harris personally and through Harris Operations.  The evidence was not disputed by the respondent on this appeal.  As to Harris Operations^[27]:

102. 25Harris Operations was registered on 15 June 2012. The company has a good corporate history without any previous convictions. The company employs between 50 and 110 people at any one time on Strathmore Station. Strathmore Station has been made available for scientific research and as a place of refuge for disadvantaged youths. The youths have been provided with counselling and opportunities to improve their lives.
103. 26 These contributions represent a valuable and well-intentioned contribution to society. It was appropriate, at a time when society, in the form of the prosecution, was seeking to exact a penalty from Harris Operations that these contributions to society be weighed in the balance. They were given no weight, or alternatively, because of the inadequate reasons given, it is not possible to discern what weight, if any, they were given (see above principles under the subheading Adequate reasons for sentence).

103. [103]
     As to Mr Harris personally^[28]:

102. 12.Mr Harris is 49 years old, born on 9 December 1969. Virtually his entire life has been dedicated to the farming business founded by his father.
103. 13.He was educated to year nine and left school, at age 14, to work full time in that family business.
104. 14.In the early 90s, Mr Harris was managing and operating several properties in New South Wales and Queensland.
105. 15.In 2004, Mr Harris and his father purchased Strathmore Station. Since then, Mr Harris has spent his time between Strathmore Station and three other properties. In that time, he has not had a holiday, save for a short period at another of his properties at the time when he married his current wife with whom he has two children.
106. 16. As time passed, Mr Harris gradually worked more independently of his father, but they remained very close. In 2015, Mr Harris Snr passed away. Mr Harris is not from a background in which it is thought allowable to lament about personal circumstances, but it would be difficult to underestimate the effect of his father’s passing, after such total involvement in each other’s lives.
107. 17.Mr Harris has a proven history of successful farming and business. He continues to employ between 50 and 110 people and to contribute to his local community.
108. 18. For example, from 2012 and continuing to the present day, Mr Harris has made, and still makes, his property available to the Commonwealth Scientific and Industrial Research Organisation (CSIRO) for scientific study. From 2012 until 2017, the Department of Agricultural and Forestry undertook cropping trials on the property.
109. 19.In recent times, the Department of Agriculture and Fisheries have brought representatives from Brazil to Strathmore Station. Mr Harris has hosted them as part of a partnership to provide insight into how crop and cattle businesses work in Australia.
110. 20.Mr Harris prides himself on the support he provides to his employees and their families. This includes financial support, education, training and employment opportunities. He has taken in many disadvantaged youths at Strathmore Station and provided them with counselling and opportunities to improve their lives. As noted above, Strathmore Station has between 50 and 110 employees at any one time. The Station operates like a small community.

104. [104]
     Similar propositions were put at trial.^[29]  They were not disputed by the respondent on either appeal.  So far as I could determine, the respondents’ submissions in writing merely asserted that evidence showed that Mr Harris inherited great wealth.  That is not really a fair characterisation of the evidence.
105. [105]
     His Honour did not refer to the evidence.  Although it is not appropriate to assume in every case that a matter not referred to was not considered^[30], that principle is more readily applied where sentencing reasons are given ex tempore following immediately on oral submissions, or at least where judgment is given without delay.  In my view, the assumption that antecedents were considered despite the lack of reference is less compelling where detailed written submissions are provided and reasons are reserved.   The respondent submits that there was no basis to conclude that his Honour did not take these matters into account.  I am not persuaded that is so.  But in any event, the tenor of his Honour’s sentencing remarks was rather negative in tone and if he considered the character evidence, I think it likely he put no weight on it.
106. [106]
     What to make of these considerations however?  The respondent submitted orally that these are the kinds of offences where good character is less relevant because they are the kind of offences which are frequently committed by persons of otherwise good character.^[31]  At this scale of clearing, there is merit in that proposition.  However, it can only be taken so far.  As I pointed out in argument, Harris Operations has been conducting a large scale operation for many years, as has Mr Harris.  The fact that they have done so without any previous conviction for non-compliance with the numerous statutory obligations attending large scale commercial enterprises should in my view be given some weight on sentencing.
107. [107]
     Similarly, the contributions of the appellants through Strathmore to the community go beyond simply demonstrating that Mr Harris had “inherited great wealth” as the prosecution suggested.     
108. [108]
     While the character evidence would not be decisive in sentencing, it should have been considered and given some weight.  I am not satisfied that his Honour did so. 
109. [109]
     In respect of the plea offences, this is a further consideration which might lead to the conclusion that the sentences imposed were excessive.  For the contested offences, I consider that his Honour’s discretion miscarried by not considering or perhaps putting no weight on these matters.

Environmental impact

110. [110]
     His Honour found that the expert environmental evidence showed that there was adverse impact on the environment by all the clearing, legal and illegal, but that the evidence did not demonstrate any particular impact.   As I understood the position in oral argument, the appellants did ultimately not challenge this finding nor, ultimately did the respondent. 
111. [111]
     In Harris Operations’ outline, however, it is submitted that his Honour erred by failing to make a finding on the degree of environmental impact and that his Honour should have found that there was minimal impact.  To the extent these points are maintained, I reject them both.  As to the former, his Honour found that there would have been some impact but it was impossible to say how much.  I think that is a correct finding on the evidence before him.  Further, I reject the submission that on the evidence the appellants were entitled to a finding that there was minimal impact just because a specific impact was not established.
112. [112]
     In my view, the evidence here had a similar character to that led in Baker v Smith (No 2) where I observed in this respect:

110. [324]In my view, having read the whole report on the environmental harm topic, it can be characterised as demonstrating that the clearing which occurred in this case would have contributed in some way to environmental harm of the kinds identified in the report.  However, it is not possible to identify the extent of that impact in any particular respect.  Further, the report identifies no acute or direct environmental impact from any specific clearing.
111. [325]It seems to me that the harm demonstrated by the report is the kind of harm likely to attend on any clearing of native vegetation of a least concern regional ecosystem, the prevention of which is the purpose of the restrictions on clearing imposed by Parliament.  It is therefore neither a harmless instance of clearing (which might be thought to be a mitigating factor), nor one which involved a specific and significant environmental impact which would aggravate the offending. 

General deterrence

110. [326]To my mind, Mr Dillewaard’s evidence highlights the mischief to which the statutory prohibitions are directed: that is, the clearing piece by piece of the remaining native vegetation in the State and the cumulative consequences of this for the regional ecosystems of the State.  While any individual area of clearing might not have direct environmental consequences (though in some cases of course it might), the cumulative effect of unlawful clearing will be significant harm to the environment.  General deterrence is therefore important to the maintenance of the scheme of protection contained in the statute. 

113. [113]
     My analysis of the environmental evidence there applies equally, in my view, to this case.  It points to the importance of general deterrence.
114. [114]
     In my respectful view, a similar perspective can be seen in his Honour’s reasons.  Although he articulated his conclusion by reference to the importance of the approval process to maintaining the objects of the Act, that view is in substance the flip side of the general deterrence point I made in Baker (No 2).   That is, the overall object of the Act requires compliance with the statutory approval process and persons must be deterred from undermining that approval process. 
115. [115]
     I have one residual concern on this issue.  The respondent contended in writing that in some areas cleared in the vicinity of watercourses (particularly charge areas 12 to 14), I should find that Mr Harris caused clearing of buffering areas around the watercourses which should not have been cleared and which he knew should not have been cleared.  If established, that represents an aggravating feature of the clearing because it involves Mr Harris choosing to clear areas which he must have known would not be retrospectively approved (given his sophisticated understanding of the approval process demonstrated by his direct involvement in it).  However, I was not satisfied that I could determine that fact against Mr Harris in respect of any particular area. 

Extent of the clearing

116. [116]
     His Honour found that the conduct of the appellants defeated the purpose of the legislation to a high degree.  This finding was contested.  It focusses attention on the issue of the extent of the clearing.
117. [117]
     The areas cleared are not in dispute and have been set out in paragraphs [37] to [46] above.  The debate is in relation to how to characterise the significance of the area cleared.
118. [118]
     The appellants are keen to focus attention on the proportion that the cleared areas represent of various much larger areas said to be relevant comparators.  In particular, the area the subject of the pleas of guilty (567 ha) represents:

     1. (a)
        2.008% of the DPP1 area of 28,232.10 ha;
     2. (b)
        0.923% of the total DPP area of 61,447.80 ha;
     3. (c)
        0.063% of the total area of Strathmore which is 900,000 ha; and
     4. (d)
        0.005% of the Gulf Plains bioregion which is 12,110,000 ha.
119. [119]
     The area the subject of the contested offences (2,316.80 ha) represents a further

     1. (a)
        8.21% of the DPP1 area of 28,232.10 ha;
     2. (b)
        3.77% of the total DPP area of 61,447.80 ha;
     3. (c)
        0.257% of the total area of Strathmore which is 900,000 ha; and
     4. (d)
        0.019% of the Gulf Plains bioregion which is 12,110,000 ha.
120. [120]
     The appellants argument is that neither area of clearing is large compared to the areas identified and therefore that his Honour erred in concluding that the failure to obtain approval for the unlawful clearing defeated the purpose of the legislation to a high degree.  
121. [121]
     I found this approach to the issue not particularly helpful in considering the appeal.  The area cleared can always be made to appear of ever decreasing magnitude when looked at in comparison to ever bigger areas of comparison.   Further, it is difficult to see the relevance of some of the comparisons.  For example, what difference does it make that the areas cleared are a small portion of Strathmore: the boundaries of that lease are arbitrary.  Would it make it worse, for example, if Strathmore was half as large?
122. [122]
     Similarly, it appeared to be uncontentious that the unlawful clearing was carried out over the same period as the DPP1 area clearing and in the same general locations.  What is the relevance of comparing the area of clearing then to the total approved area?
123. [123]
     Except where the clearing has some kind of direct environmental impact on a particular ecosystem, flora or fauna species (which will usually tend to aggravate the effect of unlawful clearing in any event in its own right), it will always be possible to make these kinds of comparisons.  Ultimately, the relevant matter is the area cleared and, to the extent it is relevant, how that compares to the area cleared in other cases.

Commercial gain

124. [124]
     His Honour made findings that Mr Harris was motivated by commercial gain and that Mr Harris intended to make a commercially viable profit from the unlawful clearing (along with the lawful clearing).
125. [125]
     These factual findings were challenged in the appellants’ appeal submissions, though  in oral argument the following exchange occurred^[32]:

His Honour: Can I assume that you don’t cavil with the proposition that, although it’s not able to identify by a monetary sum the amount of commercial benefit on a net present value [basis]… for the future these cleared areas will be available for commercial exploitation, [and] I should at least assume that the purpose of clearing it was to secure a commercial benefit and there’s no particular reason to think that at some [point] or other it won’t deliver.

MR HUNTER: I don’t think I can cavil with that.

126. [126]
     In my view, that concession was correctly made.^[33]  I did not consider the contrary proposition arguable on the evidence.  It is sufficient to note that the lawful clearing was for commercial cropping, the contested charge areas were considered by Mr Harris better areas for giving effect to that purpose, the plea charge areas were cleared for purposes which would plainly benefit the commercial exploitation of the property and, of course, the evidence before me is that Mr Harris is a skilful, experienced and astute property manager. No error is demonstrated in his Honour’s approach to this issue.
127. [127]
     It might be that the appellants maintained a different position in relation to the plea offence areas.  It might be unfair to treat Mr Hunter’s concession as relating to these areas given the terms of the question which I put to him implicitly referred to the areas cleared for cropping.
128. [128]
     Harris Operations’ appeal submissions contend that his Honour erred in not expressly recognising that no financial gain followed from the clearing for Charges 2 to 6 because they were not cleared for cropping but for essential infrastructure and safety.
129. [129]
     One might treat with some cynicism the proposition that the area cleared in Charge area 4 was for a hard stand.  The area cleared is 262 ha.  It is over 2km long and 1 km wide. The appeal submissions allege that the hardstand was for storage of grain and machinery.^[34] It is difficult to accept that even an undertaking as large as Strathmore would require a hardstand of 262 ha for those purposes.  I suspect the whole story about this area of clearing has not been told.
130. [130]
     The difficulty however is that, as I said, there was no agreed facts for sentencing for charges 2 to 6, little by way of evidence on those areas, and nor did his Honour make any findings on the nature and purpose of the clearing for those charges beyond his observations at the start of his reasons.
131. [131]
     Ultimately, despite my concerns about Charge 4 at least, I do not have a sufficient basis to infer that clearing for the plea offences was for cropping or for some other revenue generating purpose  
132. [132]
     What was undoubtedly the case, however, was that the purposes given by the appellants for the clearing was for the benefit of the commercial operations of Strathmore.  That is particularly so of the hardstand, the dam and the air strip clearing (though I was never clear which part of the clearing was for that purpose).  I consider the plea offence areas were also cleared, albeit indirectly, for commercial gain.  For completeness, I briefly refer to his Honour’s finding based on taking judicial notice.  It seems to me it was open to his Honour to make that finding but in any event, the point did not seem to be seriously disputed on the appeal.  I think that finding has no relevance to the resolution of these appeals.

Other considerations

133. [133]
     So far I have been dealing with matters arising from the issues raised in the Notices of Appeal and written submissions.  Before turning to the cases relied upon by the parties, however, there are a number of further matters with which I need to deal. 

Comments on general deterrence

134. [134]
     In Baker v Smith (No. 2) I observed as follows:

134. [326]To my mind, Mr Dillewaard’s evidence highlights the mischief to which the statutory prohibitions are directed: that is, the clearing piece by piece of the remaining native vegetation in the State and the cumulative consequences of this for the regional ecosystems of the State.  While any individual area of clearing might not have direct environmental consequences (though in some cases of course it might), the cumulative effect of unlawful clearing will be significant harm to the environment.  General deterrence is therefore important to the maintenance of the scheme of protection contained in the statute. 
135. [327]The importance of general deterrence has been consistently recognised in land clearing and other environmental cases.  The respondent referred to Director-General, Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31.  In that case, Preston CJ of the New South Wales Land and Environment Court observed at [9] that the purpose of general deterrence was “particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law”.  His Honour also referred to Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 at [47] where Mansfield J observed:

It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation.  The amount of a pecuniary penalty needs to demonstrate that such a conduct will not be tolerated by the court. 

134. [328]More recently in Chief Executive, Office of Environment and Heritage v Reitano (No 2) [2019] NSWLEC 39, Robson J said:

134. [94]The purpose of general deterrence in the context of environmental offences is well-known and was concisely stated by Preston J in Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 as follows, at [65]–[68]:

The sentence of the Court is an important denunciation of the conduct of the defendant.

The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597–598.

This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93].

The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court’s sentence, the offender is given his just desserts.

134. [95]I find that there is a need for general deterrence so that there will be a real disincentive for others to engage in conduct similar to that of Mr Reitano. I accept the prosecutor’s submission that the fact that the offences took place in an isolated and unpopulated location makes such conduct difficult to detect and prevent: R v Peel [1971] 1 NSWLR 247 at 262. These circumstances in particular call for general deterrence when such offences are detected. 

134. [329]Bearing those observations in mind, in determining the appropriate penalty to meet the requirements of general deterrence it is necessary to consider the class of persons to which Mr Baker belongs.  This class is persons who control large areas of relatively remote native vegetation in properties used for commercial grazing purposes.  That class of person frequently has the resources and equipment to clear relatively large areas and to do so in areas where the unlawful clearing is hard to detect.  General deterrence carries particular weight in those circumstances.

135. [135]
     I adhere to my adoption of the approach to general deterrence articulated in the cases to which I refer.  I also make the following additional observations.
136. [136]
     First, the class of persons identified in the Baker case is one which also includes the appellants.  Indeed, the magnitude of the financial and operational capacity of the appellants exceeds that of Mr Baker.   I maintain my view that it is general deterrence to that class of persons which is properly to be considered here.  
137. [137]
     Second, I do not think it reduces the need for general deterrence that the clearing in this case occurred as part of, and in a sense incidentally to, clearing which had been approved.  Clearing of the very large areas of native vegetation were indeed approved in DPP1.  However, that approval was negotiated through the statutory scheme, presumably involving the balancing of different considerations.  It is important where such approvals are granted that they are adhered to.  Otherwise the efficacy of approval process is reduced and public confidence in it is eroded.

Capacity to pay a fine 

138. [138]
     Neither party cavilled with his Honour’s reliance on s. 49 Penalties and Sentences Act 1992 (Qld) (the PSA) to impose a single fine on each appellant for the plea offences and a single fine on Mr Harris for the contested offences.  I agree with his Honour that the section applies, and that the pre-conditions in s. 49(1)(a) and (b) are both met for each group of offences.
139. [139]
     So far as I could discern, there was no submission on appeal to the effect that the fines imposed could not be sustained because of the incapacity of either appellant to pay them.
140. [140]
     However the point arose in oral argument.   I suggested to Mr Hunter that there was no question that Harris Operations had capacity to pay the fine imposed by his Honour ($150,000).  In response, Mr Hunter referred to some evidence that Harris Operations suffered a loss (the precise basis was unclear) of some $60m in the relevant period.  I am not certain he intended to press the proposition that Harris Operations did not have the capacity to meet the fine.  I was unpersuaded of that in any event.  As explained in the conviction appeal at paragraph [74], Harris Operations has very substantial sums passing through its accounts, so much so that $400,000 was not a remarkable amount for a single day’s transactions.  Whatever might be the character of the loss booked in the period referred to by Mr Hunter, I am not persuaded that the company lacks capacity to meet the amount of the fine imposed.  No submission was made that the fine imposed on Mr Harris were beyond his capacity to meet, nor could it credibly be advanced given that (as Mr Hunter later persuaded me), Mr Harris’ financial position is reflected (as least in part) in the financial position of Harris Operations.^[35]
141. [141]
     In the course of argument, the question arose as to whether the wealth of the appellants and their capacity to meet a fine was a factor which may put upward pressure on the fine imposed for certain conduct in the same way that lack of capacity to meet a fine may put downward pressure on the fine imposed for the same conduct.
142. [142]
     In Sentencing in Australia (7^th Edn) at [750-100], the learned authors observe (footnotes omitted):

However, a problem with fines stems from the large wealth disparities in Australia. Depending on the particular circumstances of the offender, a fine may be too easily paid or not at all. Even where a poor offender can afford to pay the fine, an equity issue often occurs: a fine which devastates a poor person may have no impact on a rich person. This problem has been addressed in some European countries by the concept of unit fines, whereby the amount of the fine is determined by reference to the offender’s daily income. Theoretically, this is a sensible idea but it has proven to be practically unworkable in some jurisdictions due to the difficulty and time spent in actually determining an offender’s income. Such practical problems ultimately led to the unit fine scheme being rejected in France and England.

To some extent, the rationale underpinning the notion of unit fines is already adopted in Australia, given that sentences in setting the amount of a fine normally consider the means of the offender and thereby calibrate the amount of the fine with the offender’s capacity to pay.

In DPP (Vic) v Fucile [2013] VSCA 312 the court stated:

143. [108]In the case of a fine, the court must, in determining the amount and method of payment, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.

A further problem with fines is that sometimes they are seen as potentially too burdensome, especially for offenders from socially deprived backgrounds and where the offence is minor or trivial. Thus, there are a range of sanctions that are less punitive than fines, which we will discuss shortly.

143. [143]
     This passage does not in terms limit the consideration of capacity to pay as a factor informing the appropriate sentence to limited capacity to pay, though as Mr Hunter submitted (and confirmed in later submissions invited by the Court^[36]), the authorities are concerned with indigence not wealth.^[37]
144. [144]
     The position must also be informed by the terms of the statute.  Section 48(1) PSA provides:

3. (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

2. (b)
   the nature of the burden that payment of the fine will be on the offender.

145. [145]
     The express words of this provision do not limit the task of the Court to considering the weak financial circumstances of the offender nor does it limit the Court to taking into account the large burden that payment of the fine contemplated will be on the offender.  The words of the statute are consistent with permitting the Court to consider the strength as well as the weakness of the offender’s financial circumstances and whether the fine will be a negligible burden as well as whether it will be a heavy burden.
146. [146]
     Mr Hunter and Mr Jones were unable to find any authority on s. 48 PSA addressing this aspect of the section.  Ultimately, they submitted, in relation to Harris Operations, that the fine to be imposed should reflect the seriousness of the offending and be of a sufficient sum to amount to a meaningful penalty, but it should not be inflated beyond what is necessary to achieve the purposes for which it is imposed.  I intend to approach the matter in that manner.  It is consistent with the terms of the statute.
147. [147]
     The submission raises in my mind the need to keep firmly in mind the specific relevance of capacity to pay for the particular sentence.  Where personal deterrence is a significant factor, the need to ensure that the fine is large enough to have a deterrent effect for the particular offender would be more important.  Where general deterrence is the key consideration, attention might be more correctly focussed on the class of offenders seeking to be deterred.
148. [148]
     Ultimately, given my conclusion on the lesser need for personal deterrence on the facts of this case, the significant capacity of Harris Operations (and indeed Mr Harris^[38]) to meet a fine is of less significance than it might be in other cases.  These principles are, however, also relevant in assessing the comparability of cases imposing fines on offenders with less capacity to pay than the appellants in this case.

Maximum penalties and the relationship between the appellants

149. [149]
     The maximum penalty for each offence committed by Mr Harris is $183,150.00.  There is a different and much higher maximum penalty for Harris Operations imposed because that appellant is a corporation: $915,750.  These maximum penalties are expressly to be taken into account in sentencing in Queensland: see s. 9(2)(b) PSA.  But how should they be taken into account?  In Elias v The Queen (2013) 248 CLR 483 at [27], the High Court gave this answer:

The suggestion that the court's sentencing discretion is subject to constraint requires examination. Plainly enough, the "constraint" on the court's discretion that is said to arise from the exercise of the prosecutorial discretion is the maximum penalty for the offence charged. The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the "worst case". As explained in Markarian v The Queen, for these reasons careful attention is almost always required to the maximum penalty. However, this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination. As also explained in Markarian, in some instances – as where the maximum sentence was fixed at a very high level in the 19th century – reference to it may be of little relevance. As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted.

[Footnotes omitted] 

150. [150]
     It is plain from the difference in the maximum penalties that, other things being equal, the Parliament considers offending by a corporation to be considerably more serious than offending by a natural person.  The respondent submitted, correctly in my view, that this would not mean that, other things being equal, a corporation should necessarily be given a penalty which is a multiple of five more severe than a sentence imposed on a natural person.   Nonetheless, a factor in sentencing must be the greater seriousness of offending by a corporation revealed by the different maximum penalty.
151. [151]
     No extrinsic material was put before me to explain why the maximum penalty is so much higher for a corporation. Further, it would be a mistake to seek to understand Parliament’s intention by reference just to land clearing cases.  As I have explained before, s. 578(1) covers a vast range of potential offences.^[39]
152. [152]
     One could reasonably infer, however, that the greater maximum penalty reflects some or all of the following considerations:

     1. (a)
        Use of a corporate entity may shield or obscure individuals from criminal liability for offending and might make it more difficult to establish liability of natural persons;
     2. (b)
        Corporate entities are more likely to be used where the offences occur in the context of a motive to profit and/or in a commercial context; and
     3. (c)
        Corporate entities are more likely to have the resources to engage in large scale breaches of the law.
153. [153]
     Other reasons could be imagined.
154. [154]
     Some difficulties arise in applying the difference in maximum penalty in this case.  On the facts of this case, Mr Harris was at all times the guiding mind and will of Harris Operations.  I do not understand that to have been contested in respect of Charges 2 to 6 (or at all).  It was certainly not in dispute on this appeal.  Further, Mr Harris is the sole director and shareholder of Harris Operations, it is in effect his alter ego.  
155. [155]
     Mr Hunter took these considerations further.  He submitted that in those circumstances, issues of double punishment arose.  It is convenient to set out the argument as advanced in writing^[40]:

156. 2. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2), Finkelstein J said:

156. [45]The relationship between Mr Wilson and his company is a matter that must be taken into account when assessing his penalty. I have already made clear the view that I hold of executives who make a deliberate decision to breach antitrust legislation. The position is worse when the executive is the managing director and chairman. Senior managers are often encouraged to become involved in antitrust violations in the belief that their conduct will not be frowned upon by the board. After all, it is the corporation that stands to benefit from the conduct. But when it is a board member, or worse still the managing director, who is responsible for the violation there is no incentive on other executives to abide by the law. It will only be with the imposition of very high penalties that this conduct will be stamped out. That said, I will not ignore the fact that Mr Wilson is the principal shareholder in WTC, and the diminution of its assets that will result from the imposition of a pecuniary penalty is a loss that will ultimately be borne by Mr Wilson. If I do not make allowance for this when assessing Mr Wilson’s penalty he will, in effect, be punished twice over.

156. 3.ABB Transmission was cited with approval in Australian Securities and Investments Commission v Adler.
157. 4.In Minister for the Environment & Heritage v Greentree (No 3),3 Sackville J said:

156. [77]Seventhly, it is appropriate to take into account both the fact that Auen is, in effect, a ‘one-man’ company and the relationship between Auen and Mr Greentree. The evidence indicates that Mr Greentree is the sole director and, in effect, the sole shareholder of Auen. (Prime Grain Pty Ltd is a shareholder of Auen, but Mr Greentree holds all shares in Prime Grain Pty Ltd) While Auen has the capacity to pay a substantial penalty, its position is not the same as, for example, a very large publicly listed corporation to which a pecuniary penalty of some hundreds of thousands of dollars might be of relatively small financial moment.
157. [78]I infer that Mr Greentree will bear the burden of any diminution of Auen’s assets that will result from the imposition of a pecuniary penalty on the company. It is appropriate to take that fact into account in order to prevent Mr Greentree being punished, in effect, twice over: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2); Australian Securities and Investments Commission v Adler. On the other hand, Auen has been involved in a deliberate contravention of s 16(1) of the EPBC Act. The contravening conduct was undertaken in Auen’s commercial interests. It is also necessary to bear in mind that the maximum penalties that can be imposed on a corporation are ten times larger than the penalties that can be imposed on individuals who contravene the EPBC Act. The overall pecuniary penalty should obviously be no less than if Auen, a corporation, had been the sole contravenor. On the contrary, the overall penalty should reflect the fact that Mr Greentree, as well as Auen, has contravened s 16(1) of the EPBC Act. (citations omitted)

156. 5.Greentree was referred to with approval, along with some earlier cases in which the same or similar sentiment had been expressed, in Gordon Plath of Dept of Environment and Climate Change v Fish; Gordon Plath v Orogen Pty Ltd, where Pain J said, under the heading “Avoiding double punishment:

156. [127]The Defendants’ counsel submitted that because Mr Fish is a 16 per cent shareholder of Orogen,the sentences to be imposed should be reviewed and adjusted to avoid double punishment: see Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 ; (2004) 136 LGERA 89 as held by Sackville J at [77]–[78].
157. [128]I have applied such an observation before in Hawkesbury City Council v Johnson ; Hawkesbury City Council v Johnson Property Group Pty Ltd (No 2) [2009] NSWLEC 6 at [123], and agree there is authority to support the Defendants’ submission: Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 per Gleeson CJ at 722 (Campbell J and Mahoney JA agreeing); Director-General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 held by Lloyd J at [79].

156. 6.No Queensland decision applying this principle has been identified, however there is nothing about the penalty regime in NSW that confines its application to that State, and the reasoning underpinning it is rational.
157. 7.The evidence establishes that Mr Harris is the sole shareholder and guiding mind of Harris Operations. Any penalty imposed on the company will be borne substantially by him. This is a matter that ought to be reflected in the quantum of any fines imposed.

[underlining added]

156. [156]
     I make the following observations:

     1. (a)
        It is to be noted that Sackville J considered that even where double punishment is an issue, the penalty should be no less than if the company had been sole contravener: here that requires attention to be given to the much higher maximum penalty;
     2. (b)
        Even where double punishment arises, the sentence must reflect that both the natural person and the company have committed the offence; and
     3. (c)
        In my view, there should be no automatic assumption that even where a company is the alter ego of its sole shareholder, double punishment automatically becomes a consideration.  It will depend on how the natural person conducted themselves and how they caused the company to behave, both in respect of the offending and the detection and prosecution phase.  Other considerations might also intervene, such as insolvency.
157. [157]
     However, in this case, it seems to me that the principles articulated by the cases cited by Mr Hunter comprise a factor to be taken into account in imposing a fine for the plea offences.  It needs to be kept firmly in mind, however, as Mr Power submitted and the authorities recognise, that the effect of the plea is that both the company and Mr Harris have separate and distinct criminal liability as parties to the offences arising from the plea offences. 

Cases

158. [158]
     It remains to review the cases relied upon by both parties.  

Baker v Smith (No. 2) [2019] QDC 242

159. [159]
     In this case, I imposed a single fine of $250,000 in respect of conviction after trial of 39 offences of unlawful clearing in breach of s. 578(1) SPA and 4 counts of interfering with forest products in breach of s. 39  Forestry Act and two counts of breaching s. 54   Forestry Act 1959 (Qld).  The Forestry Act offences related to a total of some 13.8 ha and the SPA offences related to a total area of 332.8 ha.
160. [160]
     The clearing took place of a period of about 2½ years, involving protracted clearing in numerous discrete areas.  The clearing was largely native vegetation of a least concern regional ecosystem.  Some of the clearing was effectively clear felling.  Other examples were lesser forms of clearing.  It was a feature of this case that Mr Baker continued his clearing despite engagement with Departmental Officers and increasingly clear statements that his clearing was unlawful in the view of the department.  The explanation for the clearing given by Mr Baker was fire management, but his conduct showed a disdain and disregard for the limits for such clearing about which he was informed and a determination not to take proper advice on the issue.  I also found that in some cases, the reason given was not the true reason for the clearing.  I concluded that Mr Baker had no regret for his unlawful conduct.  It is to be noted that he at no stage sought to regularise his unlawful clearing.  In all the circumstances, personal deterrence was a very significant factor.  Also important was general deterrence in support of maintenance of the statutory scheme.
161. [161]
     Like this case, the evidence demonstrated that clearing native vegetation can have a number of negative environmental impacts but that no specific direct impact could be shown to have flowed.
162. [162]
     The appellants correctly distinguished the conduct of Mr Baker from the conduct of the appellants.  For the plea offences, the appellants’ conduct was similar to Mr Baker’s in that they cleared areas relying on various statutory exceptions where those exceptions did not apply.  It might also be fairly suggested that the appellants had the resources to take advice on those exemptions and did not do so. 
163. [163]
     However, I have already found that the appellants’ conduct involved full disclosure of the clearing and was premised on the wrongful view that it could be regularised later.  As I have said, while that is wrong and such an attitude must be deterred, I do not think it is analogous at all with Mr Baker’s attitude.  Further, the appellants pursued the regularisation of the clearing in the plea charge areas ultimately to a conclusion with Judge Fantin’s order (the subject of the fresh evidence admitted on the application).   However, on the plea offences, it should be noted that no corporate entity was involved as an offender and there was a larger area cleared in this case, some 130 ha extra.
164. [164]
     As to the contested offences, the difference again lies in the attitude of Mr Harris compared to Mr Baker and Mr Harris’s conduct in relation to disclosure of the clearing and an expectation that the unlawful clearing would be regularised.  There is the additional factor that Mr Harris left uncleared areas which were able lawfully to be cleared under DPP1 in a rough, self-imposed, give and take process.  Again while that is itself a wrongful approach, it is different in character to Mr Baker’s behaviour.  On the other hand, the area cleared is some eight times larger.   

Hindman v Sargent^[41]

165. [165]
     This decision can be summarised as follows^[42]:

…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.

166. [166]
     The circumstances of this case are quite different from those applying to either the plea offences or the contested offences.  In respect of the plea offences, it can be accepted that the area cleared was about the same in respect of each charge to which his Honour imposed a sentence of $15,000.  But the analogy ends there.  The differences are numerous.  To name a few, the plea offences involve a corporation and a sophisticated one at that, the appellants knew that the clearing was unlawful or at least did not trouble to take advice on the matter and there was total clearing for the areas involved.   A fortiori for the contested offences, where there is the additional considerations that the case was not a plea of guilty and the area cleared was much larger.   I do not think this case is relevant to assessing the fines properly to impose in this case.

Scriven v Sargent ^[43]

167. [167]
     I summarised the key features of this case in Baker v Smith No. 2 as follows:

167. [350]The last case to consider is Scriven.  McGill DCJ referred to the following considerations: the appellant cleared 1,819 hectares of least concern vegetation on freehold owned by him.  The maximum penalty for this offence was $124,825 (valuing a penalty unit at $75).  His Honour referred to the Magistrate’s finding that the clearing occurred in drought to obtain feed for cattle, which his Honour treated as a mitigating factor.  His Honour noted that it was unclear if a permit would have been given to clear for that purpose and that the area cleared was rather large.  He referred to the cases set out above and others emphasising the need for general deterrence, and that the vegetation was least concern.
168. [351]In relation to personal deterrence, his Honour observed that the appellant had shown no remorse, had not cooperated with authorities and maintained a defiant attitude to the statutory scheme.  He found that there was no evidence of enduring ecological effects.  His Honour’s observations in that regard echoed those in paragraph [325] above, though he accepted that the evidence of there being some significant adverse impact was uncontradicted.  There was little direct evidence of the appellant’s financial position, though his Honour found that any fine is likely to be a considerable burden to him, particularly a large fine.  Nevertheless, personal deterrence suggested a large fine was justified.
169. [352]His Honour considered Hindman and concluded that the matter before him was more serious, particularly given the finding that Mr Hindman was trying to restore the land, albeit unlawfully.
170. [353]His Honour noted that the Magistrate’s decision imposed a fine of $110,000, close to the maximum penalty.  He concluded:

There were a number of features of this particular clearing which showed that it was not in the worst category of cases.  Despite the mitigating feature that this was done to provide food for cattle during drought and despite the, I suspect, fairly limited financial position of the appellant, his defiant attitude towards the legislation means that a fairly substantial fine needs to be imposed…

167. [354]His Honour imposed a fine of $40,000.  Mr Scriven also had to pay trial and investigation costs of $23,823.59.

168. [168]
     There are obvious distinguishing features between that case and the two sets of offences to be considered here, most of which suggest that that case is of little relevance to this.  While the conduct in relation to the offending was more defiant in Scriven and the area was larger compared to the plea offences and of the same order as the total area in the contested offences, the character of the defendants was entirely different in both cases.  The defendant in Scriven was driven to feed cattle and faced a burden in paying a fine.   The position of the appellants could scare be more different. And of course, Scriven did not involve a corporation.

Smith v Saunders

169. [169]
     This was a decision of a Magistrate made when the penalty guide under the VMA applied.  Cases decided under that regime are of little assistance.^[44] 

Coome v Parker & Holeseko v McDonald

170. [170]
     These two cases are very briefly described in the Harris Operations outline.  They each involved large areas. 

     1. (a)
        McDonald involves 1838 ha. cleared over 2 years.  Mr McDonald was unco-operative and unremorseful.  He was fined $40,000 with no conviction recorded.  The case was in any event overturned on appeal largely because of Mr McDonald’s weak financial position which was not taken into account;
     2. (b)
        Mr Parker pleaded guilty to clearing 2089 ha over about 2 years.  He was fined $30,000 and no conviction was recorded. There was no reference in the submissions to his personal circumstances nor the circumstances of the offending.
171. [171]
     The appellants contend that these cases in particular sustain the conclusion that the fine imposed on Harris Operations is excessive.  That submission is hard to sustain on the brief particulars given of those two cases.  In any event, those cases did not relate to a corporate defendant where the maximum penalty is much higher. 

Comments on the cases relied upon

172. [172]
     For the reasons given in each case, I do not think any of the cases cited to me are of particular assistance in resolving the issues on these appeals.  

Fine on plea offences

173. [173]
     His Honour imposed a fine of $150,000 on Harris Operations and $50,000 on Mr Harris.  The appellants contend that those fines are each excessive and that the correct fine would be $20,000 to $30,000 for Harris Operations and some part of a total fine of $50,000 to $60,000 for Mr Harris.  No specific submission is made by Mr Harris in respect of the plea offences.  I infer, however, that such a submission assumes a relatively small fine in relation to the plea offences, given that the contested offences involved no plea of guilty and a much larger area.
174. [174]
     Like his Honour, I do not consider that I should impose a single fine for all the offences by Mr Harris, the plea offences giving rise to specific considerations.
175. [175]
     Given the approach adopted by the appellants on the appeal, I intend to assess this matter from the perspective of whether his Honour’s fines were excessive, taking into account all the matters I have identified above.
176. [176]
     In my view, his Honour’s fines were excessive.   There are two primary reasons for that conclusion:

     1. (a)
        First, I consider his Honour’s fines do not properly account for objective assistance to the prosecution from the co-operation by the appellants and the plea;
     2. (b)
        Second, I accept the submission by Mr Hunter that in this particular case, the fine imposed on Mr Harris and on Harris Operations punished Mr Harris twice.   That is so in this case, given that Mr Harris was both sole director and sole shareholder.  The company was the corporate extension of Mr Harris’ personal affairs. 
177. [177]
     However, I do not consider his Honour’s fines were greatly in excess of proper fines for the offending.  The fines imposed have to give sufficient weight to all the factors I have reviewed including in particular, the following matters.  
178. [178]
     First the necessity for general deterrence.  I refer in that regard to the matters articulated in paragraphs [134] to [137] above.   A fine must be imposed which deters a party from adopting the approach adopted here, of clearing first and seeking permission afterwards.  As his Honour observed, that approach undermines the statutory scheme which calls for scrutiny of clearing before it occurs, rather than a fait accompli being presented.  It is important that the fine is large enough to provide general deterrence to offenders with the substantial financial and operational capacity of the appellants in this case. 
179. [179]
     Second, the significant financial capacity of the appellants.  That is a distinct consideration, at least in theory, from general deterrence for defendants with considerable resources, but the two propositions elide.  
180. [180]
     The above two considerations distinguish this case from those where much more modest fines were imposed by this Court. 
181. [181]
     Third, on any objective view, the amount of clearing is significant.
182. [182]
     I have considered these and all the other circumstances relevant to the plea offences set out above (including, to be clear, the issue of antecedents).  Having done so, I set aside his Honour’s fines and impose a fine on Harris Operations of $120,000 and on Mr Harris of $30,000, giving a total fine of $150,000 in respect of the plea offences.

Fine on contested offences

183. [183]
     His Honour imposed a fine of $250,000 in respect of the contested offences.  I have found that his Honour’s sentencing discretion miscarried by failing to consider Mr Harris’ antecedents and by giving little if any weight to the co-operation by Mr Harris with the objective benefit to the administration of justice it provided, albeit the co-operation was reduced in value somewhat by the later approach to the conduct of the trial.   Where, as here, s. 223(2)(c) Justices Act does not apply, it falls to this Court to re-exercise the sentencing discretion.
184. [184]
     Bearing in mind all the matters relevant to the contested offences, however, I nonetheless consider that the fine of $250,000 on Mr Harris in respect of those offences is the correct penalty.  I make the following specific comments.
185. [185]
     First, my comments about imposing a fine which is effective to provide general deterrence to persons in Mr Harris’ financial position apply equally to the contested offences, as do my observations about the relevance of his financial capacity.  Again this significantly distinguishes this case from the other cases put before me (apart from Baker).
186. [186]
     Second, the area of clearing is objectively very large.  This is important to the assessment of the relevance of Baker v Smith (No. 2) to this case, where the area cleared was 1/8^th of the area cleared in this case.
187. [187]
     Third, although I recognise the co-operation by Mr Harris and consider weight must be given to the objective assistance which Exhibit 35 provided to the prosecution, that assistance was lessened somewhat give the approach at trial.  Further, as I have said, it reflected an approach which avoided the statutory scheme which calls for clearing to be assessed before it is undertaken, not afterwards. 
188. [188]
     Fourth, while it is not strictly speaking a case where totality is attracted as a consideration on the sentences for Harris Operations and Mr Harris personally, I consider it is nonetheless appropriate to consider the whole of the sentences imposed for the whole of the offending, particularly given the close association between Mr Harris and Harris Operations.  A total penalty of $400,000 for the whole of this clearing is substantial and I think fully reflects the overall seriousness of the overall offending on the one side and the other factors set out in these reasons on the other.
189. [189]
     Despite these matters, I would have been inclined to reduce the sentence somewhat except for this: considerable benefit flows to Mr Harris from my decision explained below not to record a conviction.  Given that significant reduction in the sentence imposed by his Honour, and given the importance of maintaining the effect of the sentence to provide general deterrence, I have concluded that the sentence of $250,000 remains the correct penalty.

Recording of convictions

190. [190]
     The appellants submit that the recording of convictions was erroneous in each case because:

     1. (a)
        Of each of the matters relied upon to demonstrate that the fines in each case were excessive;
     2. (b)
        His Honour failed to give adequate reasons for doing so;
     3. (c)
        His Honour erred in his finding of wilful breach of the statute;
     4. (d)
        His Honour erred by failing to give proper weight to the evidence as to the effect of convictions being recorded.  
191. [191]
     His Honour’s reasons specifically related to the recording of a conviction are brief:

This is a matter for the Court’s discretion taking into account those matters set out in S 12(3) Penalties and Sentences Act 1992.

In relation to both defendants, these were serious examples of this type of offending.

The defendants knew their lawful limits of clearing imposed upon them by the permits and exceeded those limits wilfully for commercial gain without regard for the objects of the Act.

Mr Harris has been involved in primary production since the age of fourteen and has built up an extensive farming and grazing operation and is well regarded by his referee.

If convictions were recorded, there is nothing to suggest that Mr Harris or Harris Operations Pty Ltd would not be able to remain carrying on their business of farming and grazing nor that Mr Harris’ social wellbeing would be effected in a way that was disproportionate to the seriousness of the offences.

192. [192]
     Section 12 PSA relevantly provides:

12 Court to consider whether or not to record conviction

1. A court may exercise a discretion to record or not record a conviction as provided by this Act.
2. In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

1. the nature of the offence; and
2. the offender’s character and age; and
3. the impact that recording a conviction will have on the offender’s—

1. economic or social wellbeing; or
2. chances of finding employment.

193. [193]
     The section confers a broad discretion and the factors identified are not, and do not purport to be, an exhaustive list of considerations.  Having said that the discretion must be exercised judicially and, relevantly to this case, must be taken into account as a part of the sentence imposed.  Notwithstanding the structure of these reasons, I have kept that latter consideration in mind.

The nature of the offence

194. [194]
     The identification of the nature of the offence is apt to draw the Court’s attention to the seriousness of the example of the offence in the particular case.
195. [195]
     For the reasons I have given, I agree with his Honour that these are serious examples of this type of offending.  To be clear, I reach that view primarily for these reasons:

     1. (a)
        The area cleared was substantial for the plea offences.  While there are always difficulties with scale in land clearing cases, one could not say that 567 ha is a minor or trivial area, notwithstanding that other cases involve larger areas;
     2. (b)
        Given that conclusion, it follows that the contested offences area was much more substantial;
     3. (c)
        In both cases, the clearing was undertaken for commercial purposes by very sophisticated entities with considerable financial and operation capacity knowing the clearing to be, or to be likely to be, unlawful.
196. [196]
     There are other matters to take into account however.
197. [197]
     One might think that a tendency can be discerned from the cases to treat even moderately serious examples of unlawful clearing as being of a nature which does not ordinarily lead to recording of a conviction.
198. [198]
     In oral argument, Mr Hunter drew attention to the fact that in only one of the cases put before me was a conviction recorded and that case was Baker v Smith (No 2) which involved a confluence of factors which justified recording of a conviction in that particular case.^[45]  The most serious was Mr Baker’s dismissive attitude to the statutory scheme.  Mr Hunter rightly submitted that the conduct of the appellants in this case was not of the same character, a submission which in broad terms I have accepted.
199. [199]
     It is submitted to me that in none of the other cases was a conviction recorded.  Let that be assumed to be correct (in some cases, the issue is not mentioned in the appeal to this Court).  Neither party directed me to any part of any of those cases (or any case) which set out the reasoning by which the conclusion was reached that no conviction should be recorded.  McDonald v Holeszko [2019] QCA 285 was considered in the Court of Appeal but the recording of convictions was not raised in that appeal. 
200. [200]
     One might think an unstated tendency not to record convictions arises from the fact that most offenders are otherwise persons of good character (as is clearly the case here), but that is not a factor which of itself justifies not recording a conviction in other categories of case.  This cannot be pressed too far however.  It is relevant that Parliament has identified a fine rather than a sentence of imprisonment as the penalty for this offence.  In those circumstances, one might think that good character, including a lack of previous convictions for like offences, should carry some weight in the exercise of the discretion not to record a conviction.

Offender’s character and age

201. [201]
     Mr Harris is a mature man of good character.  Harris Operations has operated for an extended period without other offending.  This carries particular weight where Mr Harris and Harris Operations have operated large scale commercial grazing businesses without any apparent regulatory infraction before.  For the reasons given in the previous paragraph, I consider this to be of some significance in the discretion.  It does not appear his Honour gave it any weight.

Impact on economic well being

202. [202]
     This was emphasised by both appellants in their written submissions on the appeal.^[46]  It submitted that the Court should consider:

     1. (a)
        The reputational damage to Harris Operations;
     2. (b)
        The effect of recording convictions will have on future dealings with government agencies (nationally and internationally); and
     3. (c)
        The current dealings with the Commonwealth Government and the relevant considerations under s. 136 Environment Protection and Biodiversity Conservation Act 1999.
203. [203]
     Harris Operations submitted that these considerations were inconsistent with and were overlooked by his Honour in finding that there is nothing to suggest that Mr Harris or Harris Operations Pty Ltd would not be able to remain carrying on their business of farming and grazing. 
204. [204]
     I do not accept that reputational damage is of itself a factor telling against recording a conviction.  It is the consequence of every offence that it has the potential to affect the offender’s reputation.   However, it is a factor which I think carries some relevance, particularly as I have observed, there is no previous offending.
205. [205]
     As to the other two matters, there was no evidence before his Honour of anything specific, the points were merely asserted without any detail.
206. [206]
     Another factor raised in the sentence submissions on trial was the possibility of the effect of the conviction on Mr Harris’s freedom to travel and deal with Australian and overseas governments if cattle export was pursued by Harris Operations (though it sold its cattle within Australia at the time).  Again, nothing specific was identified.
207. [207]
     The authorities recognise that there does not have to be specific evidence of economic or social impact of a conviction for a Court to conclude such might arise. ^[47]  However, the cases identified in the Harris Operations outline concern very young offenders.  Also it must be kept in mind that if there is evidence of specific impacts, it should be put before the Court.^[48]   This applies with particular force where the defendant is well resourced.
208. [208]
     While I recognise the possibility of impacts from the recording of this conviction on Harris Operations for the reasons articulated, in the absence of some specific details I do not find the possibility particularly persuasive as to why a conviction should not be recorded.  The evidence here is for the most part speculative suggestions about events which might happen.  The exception is the general reference to the unspecific “current dealings” with the Commonwealth.  However, there is no evidence that the mere fact a conviction is not recorded will make a material difference in those dealings.   It is not immediately obvious that the Commonwealth officers would be unaware of these proceedings, nor is it obvious that any application or formal documentation would not require the offences to be disclosed.
209. [209]
     The same analysis applies to Mr Harris’ position.  

Other considerations

210. [210]
     The appellants also emphasise the pleas of guilty and the co-operation of the appellants as justifying not recording convictions.  
211. [211]
     In my view, the latter is a very significant factor in the exercise of this discretion.  I have already fully analysed the appellants’ co-operation and what it means for sentencing in this appeal (see paragraphs [81] to [101] above).   As I have found, the co-operation was objectively important to the success of the prosecution, and Exhibit 35 reflects Mr Harris’ state of mind as being that the unlawful clearing was in fact generally consistent with the statutory scheme and (for the contested offences), the spirit of the approvals.  
212. [212]
     It was not a case, like Baker, where there was a defiant disregard of the statutory scheme.

Conclusion

213. [213]
     I do not consider that, if his Honour had properly considered all the relevant factors, he could have reached the conclusion that the convictions should be recorded.  To do so was excessive in relation to the plea offences and in manifestly excessive in relation to the contested offences.  A fortiori when one takes into account the substantial fines imposed.  I therefore set aside his Honour’s orders recording convictions and in their place, order that no convictions be recorded in respect of any of the offences.