Carter v Wall

SOLICITORS Pickering Priestley

JUDGMENT: IN THE LAND AND MATTER No. 50135/01 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 22/08/02

Peter Carter Prosecutor v Verna Wall Defendant JUDGMENT

1. By summons dated 4 December 2001 Peter Carter as delegate of New South Wales Fisheries ("the prosecutor") charges the defendant with an offence under s 205(2) of the Fisheries Management Act 1994. The charge alleges that the defendant harmed marine vegetation in a protected area (as defined in s 204(2) of the Fisheries Management Act) without the authority of a permit validly issued by the Minister for Fisheries ("the offence"). The parties accept that Peter Carter is the appropriate prosecutor of this offence and the Court is also satisfied of this fact. This is the first prosecution to be bought before the Court under the auspice of the Fisheries Management Act.
2. A plea of guilty has been entered to the charge and the defendant does not oppose an order for costs being made against her. Accordingly the Court is only required to determine the issue of penalty in these proceedings. An agreed statement of facts has been filed and is supplemented by several affidavits. As detailed hereunder, there is no agreement between the parties concerning the degree of the defendant's culpability. The offence
3. The offence occurred on land situated in the Parish of Pimlico in northern New South Wales ("the site"). The site is on Crown land being public water land (as defined in s 4 of the Fisheries Management Act) adjacent to a tidal channel of the Richmond River ("the channel"). The offence took place between about 5 December 1999 and 1 March 2000 when the defendant removed approximately 3,000 mangrove trees. Two species of mangrove were removed, namely, River Mangroves (Aegiceras corniculatum) and Grey Mangroves (Avicennia marina) ("the mangroves"). These species are the most common varieties of mangrove in New South Wales. Prosecutor's Evidence
4. The Prosecutor has adduced evidence that the defendant's conduct was deliberate and that a wilful attempt was made by the defendant to conceal her illegal acts.
5. Mr Dallas Conroy testified that he observed the defendant cutting down the mangroves with a chain saw. He testified that the defendant engaged him to drive a tractor which was used to haul the mangroves from the site and that he was instructed to drag the cut mangrove branches to a place beneath a tree canopy to ensure that they would be hidden from aerial surveillance. Mr Conroy also testified that he observed the defendant placing mud on the stumps of the destroyed mangroves and that she informed him she was covering the stumps so that they would not be seen from the air. Defendant's Evidence
6. The defendant does not dispute that she was responsible for the cutting down of the mangroves. However, she refuted the testimony of Mr Conroy. She said that he never drove the tractor nor was he requested to do so. The defendant testified that no conversations had occurred as alleged by Mr Conroy concerning concealment of the branches and of the mangrove stumps. The defendant said that she saw Mr Conroy's infant daughter playing amongst the mangrove stumps and placing mud on them.
7. According to the defendant's evidence Mr Conroy was an itinerant who had sought shelter in a house on land occupied by the defendant. The defendant claimed the testimony of Mr Conroy was fabricated as the result of malice toward her because she had requested Mr Conroy and his daughter to vacate the premises. Mr Conroy allegedly made a remark to the effect that he would have revenge upon her. Such allegations were put to Mr Conroy and categorically denied.
8. The defendant testified that she cut the mangroves as a result of a request by an employee of Richmond River County Council ("the council"). She deposed to a conversation with Mr Stanley Gollan, the council's Works Foreman, in which the defendant alleges Mr Gollan suggested that she clear dead trees and vines from the channel to assist drainage from the site. The defendant claims that she cut the mangroves following such conversation and that she drove the tractor. She claims the work involved mostly the clearing of dead trees and bushes, although she admits some live trees were also cut down. According to the defendant she did not know the clearing work was illegal or unauthorised.
9. The defendant also claims that as at the time of the offence she was not aware of the precise extent of the boundaries of her property. She says that she would not have cleared any mangroves without permission if she knew they were on Crown land. Findings as to Credit
10. In determining penalty, matters which are adverse to the interests of the accused must be established beyond a reasonable doubt by the prosecution: see The Queen v Olbrich (1999) 199 CLR 270 at 281. The Court is unable to resolve the conflicting evidence of Mr Conroy and of the defendant concerning the destruction of the mangroves and her alleged attempt to conceal her acts. Accordingly applying the relevant test the Court cannot be satisfied of those matters which are the subject of evidence given by Mr Conroy. However, this finding does not lead to the conclusion that the defendant's actions were merely an innocent mistake. Findings as to the offence
11. Although the defendant understood that council would be clearing out the channel, no consent was ever granted to her permitting the destruction of the mangroves. The Court rejects the submission that the defendant was entitled to assume that consent was not required for removal of the mangroves. Accordingly the Court determines that the removal of such vegetation without approval was not accidental or unintentional, but was deliberate. In view of the agreed fact that an estimated 3,000 trees were destroyed, the clearing carried out by the defendant was extensive. The Court does not accept the defendant's evidence that the clearing involved a few live trees. Mitigation
12. The defendant pleaded guilty at an early stage and has accordingly avoided the significant cost of a contested hearing. The utilitarian value of a timely plea of guilty generally entitles a defendant to a discount in penalty: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Cameron v R [2002] HCA 6; (2002) 187 ALR 65; see also discussion of the High Court of Australia in Mustafa v The Queen P33/2001 (31 May 2002).
13. The defendant has no convictions for any environmental offences. In Veen v The Queen (1987-1988) 164 CLR 465 the High Court of Australia in its majority judgement said at 477:- The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.

In this case the defendant's conduct was an isolated offence and will be considered in the assessment of penalty. 14. It is agreed that after a period of regeneration the site will be remediated. The defendant does not oppose an order being made requiring her to provide a fence which will prevent cattle from hampering the regeneration of the site provided the Court has the power to make such an order. 15. Counsel for the defendant also urged the Court to consider that a defence of honest and reasonable mistake could have been made regarding the defendant's alleged lack of knowledge of the boundaries of her property. The defendant's counsel has referred to the decision of Brennan J (as he then was) in Walden v Hensler (1987) 163 CLR 561 at 569 wherein His Honour referred to the aspect of general deterrence in respect to those cases in which a defence of honest and reasonable mistake is raised. In such instances His Honour warned that the Court should take care not to impose a penalty which places an unfair burden of community education on a defendant who has unwittingly transgressed the law. 16. The Court is not satisfied that the defendant's conduct was the result of an honest and reasonable belief that she was entitled to destroy the mangroves and such defence has not been raised. Accordingly the penalty imposed will reflect an element of general deterrence. 17. The defendant submits that she is of limited means and that she is the recipient of a widow's pension. However, the defendant is the sole beneficiary of the estate of the late Mr Clarence Leeson. One of the assets of such estate comprises a farm located adjacent to the site. Several claims have been made against the estate and the defendant is currently disputing them. No valuation of the land has been submitted to the Court nor has there been any details provided concerning the nature and extent of claims made against the estate. In these circumstances the Court cannot draw the inference that the defendant is necessarily impecunious. Power of the Court to make order for provision of fence 18. Section 203(1) of the Fisheries Management Act empowers the Minister to make such order as he believes necessary to rectify damage caused by dredging or reclamation work where that work is carried out in breach of s 200 or s 201 of that Act. Pursuant to s 203(2) if a person is convicted of an offence against s 200 (unauthorised dredging or reclamation work) or s 201 (carrying out dredging or reclamation work without a permit) the Court may also make an order "of the kind referred to in subsection (1)". 19. By virtue of s 203(5) the power to make an order under s 203(2) is extended to a contravention of Division 4 or 5 of the Fisheries Management Act. Since the defendant has committed an offence contained within Division 4 of the Act the Court is empowered to make an order which it considers necessary to rectify damage caused as a result of the offence. 20. A fence which excludes cattle from intruding upon the gradual regeneration of the mangroves would assist in their remediation. The Court accordingly has power to make such order and the defendant will be ordered to provide the necessary fence to specifications agreed to between the prosecutor and defendant. Penalty 21. The maximum penalty for the subject offence is $22,000. In Veen at 478 the majority judgment of the High Court of Australia made the observation that the maximum penalty prescribed for an offence is intended only for cases falling within the worst category of cases. The Court does not consider that this offence could be so categorised. 22. The Court takes into consideration that the damage caused to the site will diminish with the process of regeneration which will be assisted by the provision of an appropriate fence. 23. The offence is not one which warrants the application of s 10 of the Crimes (Sentencing Procedure) Act. Although there is no evidence of permanent damage to the environment, the destruction of such a large number of mangrove trees constitutes a significant offence meriting a penalty of $15,000. Such penalty will be reduced in recognition of the plea of guilty and in recognition that an order will be made requiring the defendant to fence the site at her cost. The defendant will be ordered to pay the costs of the proceedings. In this respect it is to be noted that even if impecuniosity had been established, such circumstance should not deter the Court from making an appropriate order: see Tzavellas v Canterbury City Council and Anor (1999) 105 LGERA 262. Orders 24. The Court makes the following orders:-

1. The defendant is convicted of the offence as charged.
2. The defendant is fined the sum of $10,000.
3. The defendant is ordered to fence the land in accordance with the agreed specifications set out in Schedule "A" hereto and the fence is to be maintained for a period of five years.
4. The defendant pay the prosecutor's costs of these proceedings as agreed or taxed.
5. Exhibits be returned
6. Liberty to apply granted in respect of any issue as to costs.

1. The fence will be of four strands of plain wire and electrified at all times and shall be erected in such place as nominated by the prosecutor.

2. The fence will be constructed within 90 days of these orders being made.

3. The defendant shall maintain the fence in stock-proof condition.

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