CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION -v- SZULC [No 2] [2011] WASC 315 (17 November 2011)

Supreme Court of WA|2011-11-17|Before: Martin CJ

(This judgment was delivered extemporaneously on 11 November 2011 and has been edited from the transcript.)

1 The Chief Executive Officer of the Department of Environment and Conservation (the CEO) has brought two motions alleging contempt of court by Mr Maxwell Jan Szulc who is the defendant in these proceedings.

2 The first motion, described by counsel for the CEO as the second application (because it is the second occasion upon which the CEO has brought contempt proceedings against Mr Szulc) dated 17 January 2011, seeks an order that Mr Szulc be committed for contempt of court for failing to comply with an interim clearing injunction granted pursuant to s 51S of the Environmental Protection Act 1984 (WA) on 8 October 2009, and amended on 2 November 2009, in respect of the land at lot 997 on plan 21197, being the whole of the land contained in certificate title vol 199 folio 30A (which I will describe as 'the farming property').

3 It is alleged that Mr Szulc has failed to comply with the clearing injunction by causing or allowing native vegetation on the farming property to be killed or destroyed and, in particular, that on a date unknown between 24 October 2010 and 30 November 2010, areas that had been cleared on the property prior to the granting of the clearing injunction were again ploughed.

4 I will deal with this application before turning to what counsel for the CEO describes as the third application, which is an application dated 27 May 2011.

5 Prior to these proceedings being commenced, notices relating to the maintenance of vegetation on the farming property had been served on Mr Szulc. A soil conservation notice was served upon Mr Szulc in 1994 and at or about the same time as these proceedings were commenced on 23 September 2009, a vegetation conservation notice was served upon Mr Szulc.

6 In these proceedings, on 8 October 2009, I made an order that until the trial of the action or further order, Mr Szulc be restrained, and a clearing injunction be granted restraining Mr Szulc, from causing or allowing the killing or destruction of, the removal of, the severing or ringbarking of trunks or stems of, or the doing of any other substantial damage to native vegetation on the farming property, including by ploughing, raking, or burning areas cleared in 2009, except in accordance with a clearing permit and soil conservation notice F728801, which is the conservation notice to which I have referred and which was annexed to the order.

7 On 2 November 2009, that injunction was slightly varied by me to authorise the clearing of a sixmetre wide firebreak on the external boundaries of the property. Proceedings for breach of that order were brought by the CEO, and that is what counsel for the CEO has described as the first application. Those proceedings were determined by me on 26 July 2010 (Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195). In the reasons which I gave on that occasion, I have set out the principles which I take to govern proceedings of this kind. I adopt by reference those principles without necessarily restating them.

8 Relevant to these proceedings, and what I must remind myself, is that the allegation brought by the CEO is to the effect that Mr Szulc has committed a deliberate breach of an order of the Court. 'Deliberate' in this context means wilful in the sense of actions which were not casual, accidental or unintentional.

9 The proceedings, although perhaps technically characterised as civil proceedings, are criminal in nature, with the result that all of the principles of the criminal law apply to the resolution of these proceedings. Those principles include the principle that the CEO must prove the allegation of contempt beyond a reasonable doubt and that the CEO at all times carries the burden of proof, and that the standard of proof is the highest known to the law. The general principles of the criminal law relating to proof of knowledge require the CEO to prove that Mr Szulc had knowledge of the facts which render his actions a breach of the order and, of course, requires the CEO to prove beyond reasonable doubt that the actions that the CEO asserts were a breach of the order were taken by Mr Szulc, or that he caused them to occur, and that they were not casual, accidental, or unintentional.

10 The CEO relies upon the following evidence to discharge that burden of proof. I first refer to the earlier affidavit evidence of Mr Craig Stephen Jaques, who is an officer of the Department of Environment and Conservation which provided the basis for the finding of contempt which I made on 26 July 2010.

11 In very general summary of that evidence, it established to my satisfaction and to the requisite standard that, notwithstanding the injunction which I had ordered in October and the variation which I had ordered in November of the previous year, of which Mr Szulc was aware, Mr Szulc had undertaken the clearing of 42 ha of native vegetation on the farming property and some additional areas had also been burnt and cleared. I sentenced Mr Szulc to 3 months imprisonment with the result that he would have been released in or about late October 2010.

12 A further affidavit of Mr Jaques of 21 December 2010 is relied upon in relation to what we are calling the second application. Mr Jaques deposes and I accept, there being no evidence to the contrary, that on 30 November 2010 he attended the farming property owned by Mr Szulc and registered in the name of Mr Szulc and his former wife in the company of other officers of the department, being Mr Wright, Mr Rayner and Ms Waters.

13 Mr Jaques arrived at the property at approximately 10.15 am and observed Mr Szulc working on a vehicle at the front of his house. Mr Jaques walked over to Mr Szulc and had a brief conversation with him in which he explained to Mr Szulc that he intended to conduct an inspection of the vegetation at the property.

14 Mr Jaques explained to Mr Szulc that the inspection had been discussed in court earlier that year. I take that to be a reference to the discussion in court in the course of these proceedings to the effect that the CEO proposed to undertake inspections to ascertain the extent to which native vegetation had been permanently damaged as a result of the clearing work undertaken by Mr Szulc, and in particular the extent to which regrowth of native vegetation would occur despite the land having been cleared.

15 After that conversation, Mr Szulc asked Mr Jaques for a copy of the court transcript but Mr Jaques replied that he did not have it with him. Mr Szulc then requested that Mr Jaques and the others who were with him leave the property and indicated that he would call the police.

16 Mr Jaques and the other officers then left the property and returned at approximately 1.30 pm that day in the company of police officers Spicer and Harrison from the Ravensthorpe police station. There were some conversations between those police officers and Mr Szulc after which the police left the property.

17 Mr Jaques then travelled to the western boundary of the property to an area that he had observed on 23 December 2009 and 10 May 2010 as being one of the areas that had been cleared in 2009. Within that area, Mr Jaques observed a mixture of regrowth, cropped areas and recently ploughed ground. He could tell that the ground had been recently ploughed because the ground contained plough and tyre marks and cleared vegetation lying on the surface was still green in colour. After a number of weeks, cleared vegetation changes colour to brown as it dries out, as Mr Jaques observes. Rainfall also would compact the soil surface and wash away tyre and plough marks. That is the basis for Mr Jaques' conclusion that the ground had been recently ploughed. Mr Jaques observed that the areas that had been recently ploughed had resulted in the additional removal and clearing of native vegetation which had been regrowing within the area cleared in 2009.

18 The majority of the vegetation which had been removed as a result of the activity which Mr Jaques concluded had been undertaken was a small purple flowering native plant. Mr Jaques observes that the plant is a fire ephemeral, meaning it is a shortlived native plant that germinates after fire or physical soil disturbance from seed contained within the soil. Mr Jaques took photographs of the area which he observed and which are in evidence and which confirm to me the observations which he has described in his affidavit. As Mr Jaques states in his affidavit, those photographs show regrowing native vegetation next to recently ploughed ground. Mr Jaques estimates that several hectares of ground in the area in which he made these observations had been ploughed which had resulted in the clearing of native vegetation regrowth.

19 Mr Jaques then travelled to other areas of the property where he helped Ms Waters establish quadrats for the purpose of measuring and recording vegetation species composition within the area of those quadrats.

20 After doing that Mr Jaques travelled to the eastern boundary of the property, then south along the fence line and then to the centre of the property where he had observed that clearing had been undertaken when he visited the property on 23 September 2009. Within that area Mr Jaques observed a recently ploughed area which he estimates was approximately 20 ha in area. Mr Jaques observed that the soil within that area had been turned over with a plough and numerous small native plants including native eucalyptus regrowth had been removed from the ground and were left lying on the surface. Most of the plants that had been removed from the ground were still green in colour, which indicated to Mr Jaques that the clearing of those native plants had occurred within the last week or two.

21 Later Mr Jaques used a global positional system, or GPS, to record the location of the photographs that he took during the course of his visit. Using GPS coordinates he produced a map, which is in evidence, showing the approximate locations where native vegetation had been cleared by ploughing the ground. Based on his observations, and using the GPS coordinates he had plotted, he again estimated that at least 20 ha of native vegetation regrowth had recently been cleared by ploughing. The map which Mr Jaques has prepared is in evidence. Overlayed onto that map are the previously cleared or ploughed areas identified during his previous inspections.

22 Mr Jaques also deposes, and I accept, that he undertook a search of all records maintained by the Department of Environment and Conservation with respect to applications for and the grant of clearing permits. Having undertaken a search of those records, he states that he was unable to identify any entry recording either any application for a clearing permit having been made or granted to Mr Szulc or any application being made or granted in respect of the farming property.

23 The CEO also relies upon the affidavit of Mr Adam Brett Rayner who, as I have mentioned, was one of the officers who accompanied Mr Jaques on the visit to the property which occurred on 30 November 2010. In the course of his visit to the property, Mr Rayner travelled in company with Mr Jaques to a location further south of the area which they went to initially, being the area in the centre of the property described by Mr Jaques. There Mr Rayner observed a freshlyploughed area where there was a distinct line between the soil which had previously been ploughed and the newly ploughed soil. Mr Rayner states that within the area he observed the soil was dry and friable, there was no evidence of rain having fallen on it and small native plants including eucalyptus regrowth were lying on the ground, most of those plants still being green in colour.

24 The CEO also relies upon the affidavit of Ms Julie Louise Waters who was, as I have mentioned, one of the group that visited the property on 30 November 2010.

25 The primary purpose of Ms Waters' visit was to establish the quadrats and undertake the survey of the regrowth to which I have already referred. Ms Waters' affidavit contains a report which she prepared following her undertaking of that work and the survey of regrowth which establishes that in the areas that are not the subject of these proceedings, that is, the areas that had not been recently disturbed, there was significant native vegetation regrowth.

26 Ms Waters states that from her observations of vegetation at the property she identified native vegetation returning to many of the areas that had been cleared in 2009 and 2010. She observed that regeneration of native vegetation was greatest within the least disturbed area, that is, areas that have not been seeded to crop or recently ploughed. The regrowth of native vegetation within the areas that had been ploughed and cropped demonstrated to her that a viable seed bank remained within the soil. She concluded that if further cropping and ploughing was not conducted within the previously cleared area native vegetation would return, albeit with some loss of species' diversity.

27 The CEO also relies on an affidavit of Mr Malcolm Robert Wright who, as I have mentioned, was amongst the group that visited the property on 30 November 2010. Mr Wright states that he first travelled to an area near to the western boundary of the property where he observed some regrowth amongst the cropped areas. At that location he assisted Ms Waters to establish quadrats and to count the plant species therein. He then travelled to a location towards the centre of the property where he observed that regrowth appeared to be recovering well. He again assisted Ms Waters to establish quadrats and count plant species. He then travelled to a southern location on the property where he observed a freshly ploughed area within which the soil was loose and friable and small plants, still green in colour, were lying on the ground. Due to the ploughing, no quadrat was established in that area. Finally, he states that he travelled to the southeastern corner of the property where he observed regrowth to be recovering well and assisted in the establishment of another quadrat.

28 That completes the evidence relied upon by the CEO in relation to the second application.

29 I will now set out the evidence and the findings that I make in relation to what we are calling the third application. That is an application brought by the CEO and dated 27 May 2011. In that application the CEO seeks an order that the defendant be committed for contempt of court for failing to comply with the interim clearing injunction to which I have earlier referred. It is alleged that Mr Szulc has failed to comply with the clearing injunction by causing or allowing native vegetation on the property to be killed or destroyed, and in particular, on a date unknown between 30 November 2010 and 18 May 2011 it is alleged that an area containing native vegetation and comprising approximately 40.4 ha was either burnt, ploughed or burnt and ploughed, this area having previously been cleared between 9 October 2009 and 10 May 2010.

30 The affidavits relied upon in support of the third application include another affidavit of Mr Jaques. Mr Jaques deposes in that affidavit that upon 4 February he obtained a report from the Firewatch Project that a fire had been detected at the property the subject of these proceedings within the last 12 hours. He then obtained Landsat images, one dated 13 January 2011 and another dated 22 February 2011. As a result of comparing those images he observed significant changes in vegetation cover in the south-western part of the farming property. Attached to Mr Jaques' affidavit is a copy of the landsat images to which I have referred which confirm that observation.

31 Mr Jaques states in his affidavit, which I accept, there being no evidence to the contrary, that on 18 May 2011 he attended the property with officers of the Department of the Environment and Conservation, being Ms O'Brien and Mr Rayner, and with officers of WA Police.

32 He arrived at the property at about 10.15 am and went to the house on the property and knocked on the door, but there was no answer. He then travelled to the western boundary of the property and then south to a partlycleared area that he had observed on his earlier visits. About that time WA Police officers left the property.

33 Mr Jaques states that during his previous inspection on 30 November 2010 he had observed dense native vegetation covering the ground in that area, but the taller trees had been pushed over. On 18 May 2011 he observed that all of the native vegetation had been burnt and that some of the areas had also been ploughed. He observed that most of the area now contained bare soil scattered with burnt stumps and small native bushes.

34 Mr Jaques has attached to his affidavit a true copy of 14 photographs which depict the area that had been burned. They confirm Mr Jaques' assertion that there was blackened soil together with blackened stumps and bushes as a result of the fire. Mr Jaques estimated that an area of approximately 26.7 ha had been burnt, resulting in the further removal and destruction of native vegetation. Mr Jaques has also attached to his affidavit copies of six photographs which depict the burnt and ploughed areas. Like the other photographs they show blackened stumps, ploughed ground and small plants regrowing.

35 Mr Jaques estimated that another area of approximately 13.7 ha of native vegetation had been burnt and ploughed which resulted in further removal and destruction of native vegetation. Those observations were made on the western boundary but then south to a partlycleared area.

36 Mr Jaques travelled then to the eastern boundary of the property and south along the fence line to the southeastern corner of the property where he had seen clearing during his visit in September 2009. Within that area of the property he observed native vegetation regrowing within the area that had been previously cleared. That vegetation was up to one metre in height, consisting mostly of regrowing eucalypts. No further clearing work was apparent in that area since his previous site inspection on 30 November 2010. That evidence is relevant to confirm the evidence of Ms Waters to the effect that, if the previously cleared portion of the farming property had been left undisturbed, regrowth of native plants would have occurred.

37 Mr Jaques deposes that he had completed his inspection by about 12.45 pm. As he was leaving the property he met Mr Szulc at the property. He had a brief conversation with Mr Szulc regarding the entry provisions under the Environmental Protection Act. He told Mr Szulc that he had observed a further area of clearing in the south-west of the property. Mr Szulc replied by asking him if he had permission to be on the property. Mr Jaques replied to the effect that there were entry provisions in the Environmental Protection Act and offered to explain those provisions to Mr Szulc. Mr Szulc said to Mr Jaques that he had read the Act and he did not think that Mr Jaques had any right to be on his property. He asserted that Mr Jaques would end up with a criminal record for trespass. Mr Jaques said that in his view he was authorised by the Act to inspect the property. Mr Szulc then asked the officers to leave, which they did.

38 Mr Jaques again used the GPS system to record the location of each photograph he had taken and then used GPS coordinates to produce a map showing the approximate locations where native vegetation had been cleared by ploughing the ground. Based on those observations, and using the coordinates, Mr Jaques confirms the estimate he made at the time of his visit to the effect that at least 40 ha of native vegetation had been cleared by burning and ploughing during 2011, and a map depicting the approximate location of the burnt and ploughed areas has been provided to the court by Mr Jaques.

39 Mr Jaques again undertook a search of all the records maintained by the Department of the Environment and Conservation in respect of clearing permits. Having searched those records, he states that he did not find any entry relating to any application for a clearing permit being made or granted to Mr Szulc or any application for a clearing permit having been made or granted in respect of the property by any other person. I do not think it is necessary to refer to any of the other evidence relied upon by the CEO in relation to the third application.

40 I turn now to set out the conclusions which I draw from this evidence, and from the findings of fact which I have set out as a result of that evidence. It is clear beyond reasonable doubt from the findings of fact that I have set out that in each of the instances covered by the applications, land on the farming property has been cleared contrary to the orders which I made in 2009. The consequence of the earlier clearing had been of course to destroy native vegetation in the area that had been cleared. However, as Mr Jaques observed and as Ms Waters confirmed, and as the photographs themselves make clear, but for further clearing work, native vegetation would have regrown in the areas that had been previously cleared.

41 That regrowth has been prevented by the clearing work described in the affidavits of Mr Jaques and the other witnesses to whom I have referred. In relation to the second application, it is clear that some time prior to 30 November 2010 the area identified by Mr Jaques had been cleared. The question then is whether there is evidence from which I should conclude beyond reasonable doubt that the clearing was undertaken by Mr Szulc.

42 It is clear from the observations of Mr Jaques made on that occasion that the clearing had been recently undertaken. The vegetation which he observed was still green and of course that reinforces his observation that the clearing work had only been recently undertaken. As I have noted, Mr Szulc was in custody until late October 2010, but was then released and he was present at the property at the time Mr Jaques inspected on 30 November 2010. Indeed, he demanded that Mr Jaques leave the property when Mr Jaques first attended and before Mr Jaques returned in the company of police.

43 As I have observed, the property is owned by Mr Szulc and in previous proceedings in this court, including in particular at the hearing on 26 July 2010, Mr Szulc gave evidence to the effect that he is the only person who lives at the property. On that occasion Mr Szulc admitted that he had been responsible for the clearing work that had been previously undertaken on the property and, as I have observed, he was present at the property when the inspection on 30 November 2010 occurred.

44 That material is, I think, sufficient for me to conclude beyond reasonable doubt that it was Mr Szulc who either undertook the clearing work or caused it to be undertaken. I also conclude that the alleged breach of the orders was wilful in the sense that I have described and could not be described as casual, accidental or unintentional. The terms of the orders were clear and had been made well known to Mr Szulc - he had already been imprisoned for breach of those orders. There is no doubt that he was aware of them. He was also no doubt aware of the likely consequences of breaching the orders, given the previous proceedings which had taken place.

45 The act of clearing already ploughed land, and in particular having regard to the areas involved, can only be consistent with deliberate intentional physical activity undertaken quite purposefully and wilfully by Mr Szulc or at his direction, I conclude that the second application is made out and I find Mr Szulc guilty of contempt as alleged in that application.

46 Turning then to the third application, it is also clear from the evidence that I have received that there was a substantial area of approximately 40 ha on the farming property that had been either burnt or ploughed or both some time between the inspection on 30 November and the subsequent inspection on 18 May 2011.

47 As with the second application it is clear that, but for the work that had been undertaken by ploughing and burning, native vegetation regrowth would have occurred in the areas that had been previously cleared and the consequence of the ploughing and burning was to destroy such regrowth as had already taken place and which is evident in the photographs and which was evident to Mr Jaques upon his inspection. I conclude and find that clearing work in contravention of the injunction was taken out by somebody.

48 Again I have to ask myself whether the evidence satisfies me beyond reasonable doubt that this work was undertaken or caused to be undertaken by Mr Szulc. Many of the same considerations as applied to the second application on this topic apply to the third application. Mr Szulc is the owner of the property, although his exwife's name is also on the title. He previously observed in evidence that he is the only occupant of the property. He has previously given evidence to the effect that he caused the previous clearing work to be undertaken, and although not present, or not at least evidently present at the time the officers arrived at the property on 18 May 2011, he was present on the property when the officers left the property on 18 May 2011 and had a conversation with those officers about their right to be there, in terms which made it clear that he was asserting exclusive possession and occupancy of the property.

49 All of those facts appear to me to be quite sufficient to establish beyond reasonable doubt that it was Mr Szulc who either ploughed and burnt the land or caused the land to be ploughed and burnt. For the same reasons as I gave in relation to the second application it is, I think, clear beyond doubt that the clearing work was undertaken wilfully and could not be characterised as casual, accidental or unintentional.

50 The orders were plainly known to Mr Szulc. As a result of the previous proceedings in this case he was aware of them. He had previously been punished for breaching them. The actions involved ploughing and burning, and the ploughing was certainly deliberate. Because only part of the land was burnt it seems likely that that was also a deliberate act, and the areas involved are substantial; a little over 40 ha made up of two separate areas. It seems highly unlikely that any of those things could have happened either accidentally or unintentionally.

51 For these reasons, I am satisfied beyond reasonable doubt that the work was undertaken by Mr Szulc wilfully or that he wilfully caused it to be undertaken. I find the third application proven and I find Mr Szulc guilty of contempt as alleged.

52 I turn now to deal with the penalties that should be imposed upon Mr Szulc for the two contempts of court which I have found to be established. I note first that I have previously sentenced Mr Szulc to a term of 3 months imprisonment as a result of the contempt which I found he had committed on what we have been calling the first application in the course of these proceedings.

53 In my reasons on that occasion, I set out the principles which I took to apply to govern the imposition of penalties for contempt of court. Since that decision, I have had occasion to address those principles in another case that I have decided, being Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26l; (2011) 205 A Crim R 386.

54 That decision was made in a very different context to the present case because it concerned a number of individuals who had refused to provide evidence to the Corruption and Crime Commission in the course of an investigation of organised crime. As will be apparent from the reasons which I gave, that context seemed to me to be particularly significant to the sentences which I was imposing in that case.

55 Nevertheless, some of the principles which I there enunciated are of more general application, including in particular the identification of the principles normally taken into account by a court when considering the punishment appropriately imposed for contempt of court and which are helpfully set out in the decision of Dunford J in Wood v Staunton [No 5] (1996) 86 A Crim R 183.

56 The general principles to be applied, in very short summary, are that contempt of court is the only remaining nonstatutory offence under the law of Western Australia and as a consequence, the punishment to be applied is purely a matter within the discretion of the court. The powers conferred upon that court are wide and flexible. The provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act 2003 (WA) do not apply to contempt, with the consequence that no question of parole or eligibility for parole arises, although the principles set out in s 6 of the Sentencing Act are nevertheless relevant.

57 Turning then to such of the factors that are identified by Dunford J in Wood v Staunton and which are relevant to this case, I deal firstly with the seriousness of the contempt proved. It is I think clear in these cases that the contempts that have been committed by Mr Szulc are very serious.

58 Amongst the reasons why they must be categorised as serious is the fact that they constitute two separate and distinct further breaches of the orders that I have made at times at which Mr Szulc was well aware of the consequences of breach as a consequence of his earlier conviction and incarceration.

59 Mr Szulc has placed himself in the position of a person who is flagrantly denying the administration of justice and the authority of the law. It follows that his conduct in flagrantly denying the authority of the law and the authority of this court must be denounced in an appropriately emphatic way.

60 Adding to the seriousness of the contempts that have been established are the fact that a conservation notice had been served upon Mr Szulc, a vegetation conservation notice had been served upon Mr Szulc and breach of those notices carry consequences in their own right.

61 The context in which these contempts were committed is also a factor which magnifies the seriousness of the contempts that have been proven. The Environmental Protection Act serves an important public purpose, a purpose which the community respects and expects the court, I am sure, to enforce by strong action.

62 The provisions of the Environmental Protection Act which were invoked by the CEO in this case and which gave rise to the clearing injunction are important provisions which protect native vegetation and in particular, vegetation that might protect and contain rare flora, or provide a habitat for rare fauna, or protect water courses, or prevent soil erosion. Even though the areas cleared by Mr Szulc in breach of the injunction had previously been cleared unlawfully, the evidence establishes that if clearing work ceases, there is a good prospect of substantial native vegetation regrowth. The actions of Mr Szulc have delayed that regrowth.

63 All of these things are important public interest considerations. The reasons for the contempts committed are not known but it is clear, as I have already observed, that they were deliberate and intentional contempts. One of the important sentencing considerations that is to be taken into account when breaches of legislation for the protection of the environment are concerned is that it is very likely in such cases that the breaches will have been wilful, deliberate, premeditated and undertaken for commercial advantage.

64 In many other areas of the law courts constantly see offenders who have breached the law by actions that are spontaneous, ill considered, not premeditated, or which were occasioned by intoxication or stupefaction or some other transient weakness of personality. Breaches of the environmental law are commonly not of that kind, and certainly the breaches which have been committed by Mr Szulc on this occasion are not of that kind.

65 As I have said, I have no evidence as to precisely why Mr Szulc did what he did on these occasions, but I think it is possible to draw inferences, at least for the purpose of sentence, from the fact that Mr Szulc is a farmer and the property is a farming property. Obviously Mr Szulc saw advantage to be gained from the clearing of that property, presumably in order that he could use it for farming purposes. Therefore I conclude that Mr Szulc has undertaken a deliberate and calculated breach of the law, and committed a contempt of the court in order to obtain commercial gain or benefit. That magnifies the seriousness of the contempts which have been established against him.

66 The second factor identified in Wood v Staunton that is relevant to this case is whether the contemnor was aware of the consequences to himself of what he did. There can be no doubt in this case that Mr Szulc would have been only too well aware of the likely consequence of his contravention, he having been only recently released from prison at the time of the contravention the subject of the second application.

67 The next factor is the actual consequences of the contempt. The consequences of the two contempts in this case have been that areas totalling a little over 60 ha of land that had already been cleared, and in respect of which regrowth would have occurred, have now again been desecrated, thus deferring the regrowth on that land. Another factor relevant to this case is the reason for the contempt, and I have already set out my findings on that subject.

68 Relevant also are questions of whether there has been any apology or public expression of contrition. There is no evidence in this case nor any suggestion of any apology or public expression of contrition. On the contrary, Mr Szulc by his conduct has displayed contempt (in the broad sense of that term) for the authority of the court and the authority of the law.

69 Character and antecedents of the contemnor are relevant. I have no evidence on that subject or submissions, so I proceed on the assumption that, aside from his previous conviction for contempt, Mr Szulc is a person of otherwise good character.

70 General and personal deterrence are I think particularly significant factors in this case. General deterrence is significant, as I observed on the last occasion, because it has to be made clear to people in Mr Szulc's position that orders made by this court for the protection of the environment are orders which must be obeyed, that the court will not countenance breaches of this kind, and will punish breaches of the orders of the court that are made for the purpose of the protection of the environment severely. General deterrence is of particular significance in cases like these in which unlawful conduct having an adverse effect upon the environment has been undertaken deliberately, with knowledge of its illegality, for the purpose of commercial gain or benefit. In cases like this, the punishment imposed must be such as to discourage others from taking the risk that their unlawful conduct will not be detected.

71 Personal deterrence has become a very significant factor in this case. There are now three separate occasions upon which Mr Szulc has been convicted of contempt by breaching the orders that I made and of which he was aware. It must be made clear to Mr Szulc that he must obey the law and must obey the authority of the court. Previous attempts to make Mr Szulc aware of that have failed and it follows that further attempts must be made by the imposition of greater terms of punishment.

72 Finally, the case of Wood v Staunton recognises the importance of denouncing the contempt that has been committed. I have already made reference to that factor. Because these are the second and third contempts committed by Mr Szulc it is I think entirely appropriate that the court denounce emphatically the conduct which he has committed and show the court's disapproval of that conduct by the sentences to be imposed.

73 Although not strictly required to do so by the Sentencing Act, I have of course given consideration to the question of whether any sentence other than an immediate term of imprisonment would be appropriate. I have no hesitation in concluding that such a sentence would not be appropriate. Mr Szulc has previously been sentenced to imprisonment for the first contempt of which he was convicted and it is clear for all the reasons I have indicated that greater terms of imprisonment must be imposed upon Mr Szulc in order to reinforce to him his obligation to comply with the law.

74 I will now pass sentence. Mr Szulc, would you stand up please. Mr Szulc, for the offence of contempt of court the subject of the second application, that is for the offence committed some time between late October and late November 2011, I sentence you to 9 months imprisonment. For the offence of which I found you guilty the subject of the third application, that is the contempt committed between 30 November and 18 May 2011, I sentence you to 15 months imprisonment. Because of the totality principle I will order that those sentences be served concurrently, so the net effect is that you will be sentenced to 15 months imprisonment.

75 I take into account the fact that because the Sentencing Act and Sentencing Administration Act do not apply, there is no prospect of parole for those offences, so you will be sentenced to 15 months imprisonment.

Environmental Protection Act 1984(WA)

Administration Act 2003

At a glance

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Judgment (76 paragraphs)

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