Ford v Hawkesbury City Council

DEFENCE OF HONEST AND REASONABLE MISTAKE OF FACT

1. The only ground of appeal against conviction pressed is that the appellant has a defence of honest and reasonable mistake of fact that the learned magistrate should have accepted.
2. In Jimenez v The Queen (1992) 173 CLR 572 at 582 the majority of the High Court held: If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be on the appellant. The burden is evidentiary only and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the appellant did not honestly believe on reasonable grounds in the existence of facts, which in the circumstances, would take this act outside the operation of the statute.
3. In The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd & Kinnarney [2012] NSWLEC 45 at [179]-[182] I considered the legal principles relating to the defence of honest and reasonable mistake of fact: 179 Thus, a belief in the legality of one's act is a belief about a matter of law and, as such, cannot exculpate: Ostrowski at [55] citing Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580; and at [57] citing Cambridgeshire & Isle of Ely County Council v Rust [1972] 2 QB 426 at 434 per Lord Widgery CJ, as illustrating the set of cases "where the defence of mistake of fact failed even though the appellant believed that he or she had been given lawful authority to act as charged". Where one's act is unlawful, a belief that the act was lawful is a claim to a defence of ignorance of the law, a defence long held to be impermissible. 180 Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (referred to above) is an instructive decision. The appellant was charged with polluting waters under the POEO Act. The appellant had held an environment protection licence under the POEO Act which did not authorise the pollution it caused. The trial judge (Talbot J) had found the appellant held mistaken beliefs as to two matters. First, a mistaken belief as to how the environment protection licence operated - a misunderstanding of particular environment protection licence conditions. Secondly, a mistaken belief that pollution by stormwater discharge from the site was conditionally authorised. Applying Ostrowski v Palmer, the Court of Criminal Appeal at [65] held that such beliefs were mistakes of law. 181 A mistaken belief, without more, that an activity is authorised will be a mistaken belief as to a matter of law rather than to a matter of fact: Ostrowski at [59]. A mistaken belief expressed as a belief that there was some document which authorised an activity may involve a more detailed analysis. 182 A clear distinction needs to be made between the construction (operation) of a statute or document, for example a development consent, on the one hand and the fact of its existence on the other: Ostrowski at 524 citing (inter alia) Iannella at 96-97. The former is a question of law, the latter is a question of fact. In the present case, it may be possible to characterise the mistake on which the appellants rely as being a single mistake of mixed fact and law constituted by: (a) a mistaken belief as to the existence of a development consent which applied to the Land (a mistake as to a fact); and (b) a mistaken belief that this supposed development consent (which in fact did not exist) as a matter of construction permitted the depositing of the waste on the Land (a mistake of law). Mistakes on mixed questions of fact and law will not ordinarily constitute mistakes of fact: Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751 per Gleeson CJ (Clarke JA and Lee A-J concurring). Such mistakes will be treated as mistakes of law "if one of the components vital to the total belief is a belief on a question of law": Power v Huffa (above) at 345 per Bray CJ (Jacobs J concurring at 357). Strathfield was cited in Ostrowski at [13] fn [51] per Gleeson CJ and Kirby J and at [35] fn [63] per McHugh J. Dixon J in a bigamy case, Thomas v The King [1937] HCA 83, 59 CLR 279 at 306, in which the majority of the High Court did not join, said obiter that "a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law". Dixon J immediately illustrated what he meant by reference to a situation discussed in an English bigamy cases, which is irrelevant for present purposes. Thomas was distinguished by Jacobs J in Power v Huffa at 356. The decision in Strathfield is binding on this Court.
4. On 10 May 2012 a development consent had been issued by Council to the owner, Mr Portelli, for "clearing of native vegetation, the construction of a dam and the use of a site as a market garden (intensive agriculture)". The consent was subject to a long list of conditions. Conditions 20 and 45 are relevant: 20. The development shall take place in accordance with the stamped plans (Plan No 11103-4 prepared by CJ Hore Pty Limited and dated 27 April 2012, Plan No's S01 and S02 prepared by Circle Z Design dated 20 October 2011), specifications and accompanying documentation (Farm Management Plan prepared by Mr M Portelli and Vegetation Management Plan prepared by Anderson Environmental Consultants Pty Ltd and dated August 2011) submitted with the application except as modified by these further conditions. 45 The revegetation works, vegetation removal and management activities shall be completed in accordance with the Vegetation Management Plan prepared by Anderson Environmental Consultants Pty Ltd and dated August 2011 and Plan No 11103-4 prepared by DJ Hore Pty Limited and dated 27 April 2012. Vegetation removal and planting as well the dam construction works in close proximity to the vegetation to be retained, shall be supervised by a suitably qualified person to ensure works are undertaken in accordance with the approved Vegetation Management Plan and Plan No 11103-4. Native vegetation endemic to the area shall be planted along the vegetation buffer zones. This planting shall consist of a mixture of trees, shrubs and groundcovers chosen from the list of endemic species contained within Appendix 1 of the "Flora and Fauna Assessment and seven Parts Tests of Significance" report prepared by Anderson Environmental Consultants Pty Ltd and dated May 2011. These species are to be of local provenance.
5. The approved plan dated 27 April 2012 referred to in those conditions shows a large "conservation area" enclosed by green lines that the legend states is "not to be developed". The appellant cleared trees in a substantial part of this conservation area. The area cleared is indicated by red hatched markings on another plan in evidence.
6. On 6 September 2012 Council officers attended the land in relation to an unrelated matter concerning the dam works.
7. On 12 September 2012 the appellant was seen by a Council officer, Ms George, operating a bulldozer on the land to remove trees in the conservation area. Admissions were made by him on site and later in a record of interview concerning the removal of the trees in that area. It appears that this clearing occurred between 6 and 12 September 2012. Before the appellant commenced work as the owner's contractor, the owner told the appellant that he had a development consent, and that in addition to carrying out work for a dam on the land the appellant was to clear the trees in a large area to the west of overhead wires that run in a general north-south direction from Spinks Road and east of the proposed dam. Much of this area included the "conservation area" marked on the approved plan under the development consent.
8. The owner gave the appellant a different plan, which states that it was prepared by Circle Z Design Structural Engineering, showing structural engineering details for the dam. It also shows a smallish site plan of the whole site inset in the top right hand corner. It is not the Council approved plan referred to in conditions 20 and 45 of the development consent. The Council approved plan was not provided to the appellant and he did not see it or the development consent. As the learned magistrate found, the plan given to the appellant does not depict the conservation area. It only depicts the dam apart from the inset picture, and had no real relevance to the clearing of trees.
9. In the Local Court there was evidence from the appellant and his brother, which should be accepted, that the owner and the owner's brother were on the site several times per day whilst the works were being carried out.
10. There was a conflict in the evidence as to whether Ms George, the Council officer, stopped on Spinks Road and observed the property on all or a number of days between 6 and 12 September. It is necessary to address this issue because it is one of the factors that the appellant relies on in aid of the defence of honest and reasonable mistake of fact. The appellant gave evidence that he saw her in Spinks Road nearly every day in that period. He did not say she stopped in Spinks Road on these occasions. The appellant's brother went somewhat further in saying that they had noticed Council officers before 12 September pulling up and looking in there quite a bit, up to about half a dozen times.
11. At the hearing in the Local Court, Ms George was cross-examined on this point. She denied that she went to the property between 6 and 12 September. She did say that she could have been driving past to do another job between those dates but the first day she noticed trees were being removed in the wrong place was on 12 September. She was pressed in cross-examination as to whether she observed the property from the road on each of 8, 9 10 and 11 September and she said that she did not believe so. She said that she would have taken photographs if she had conducted an inspection. She did say that if one were in Spinks Road and looking up towards the house, one would have a good view of the property.
12. The learned magistrate noted that the appellant said that he saw a Council officer attending on a number of occasions between 6 and 12 September. As far as I can see, that may have put it too highly: before me the parties have not pointed to any evidence that went quite that far. The learned magistrate said that the fact that there may have been Council officers driving past in his view took the matter no further.
13. The appellant submits that the defence of honest and reasonable mistake of fact should be accepted because of the following factors considered cumulatively: 1. There was a development consent. 2. The owner directed the appellant to remove trees both within and without the permitted area under the development consent. 3. The owner told the appellant that there was a development consent. 4. The owner and his brother were present on the site several times a day whilst works were being carried out. 5. The owner gave the appellant the structural engineering plan to which I have referred. 6. A Council officer, it is said, stopped and looked at the property whilst clearing was being carried out between 6 and 12 September and this would have reinforced the appellant's belief that what he was doing had Council's approval.
14. These propositions of fact, except for the last, are uncontroversial. As for the last, I think that the state of the evidence was such that it was open to the learned magistrate to find, as I would find, that a Council officer at least passed the property in her vehicle on several days between 6 and 12 September and that the appellant noticed her doing so.
15. I accept, as the learned magistrate did, that the appellant honestly held a belief that he was not doing anything unlawful. However, as he conceded in cross-examination, he had been doing this kind of work for 30 years; he knew with 30 years' experience that these kinds of jobs required development consent; and he just did what the owner told him to do. In my opinion, when those circumstances are taken into account, it was not reasonable for him to have concluded from what he was told by the owner or from the structural engineering plan the owner gave him or from the other circumstances including those put on his behalf, that there was development consent to clear the land in the area the subject of the charge. I say this even if it were to be accepted that a Council officer actually stopped and looked at the property in the period between 6 and 12 September. The learned magistrate indicated that it was not out of the realms of reasonableness to expect that someone with the appellant's experience would at least make cursory enquiries of the Council at least to the extent of enquiring as to whether the plan he was given was a Council approved plan and whether there were any other plans from which he could work to ensure that he was not a party to any impropriety. I agree.
16. There is one final consideration. It was submitted on behalf of the appellant that if he had made an enquiry at the Council as to the approved plan, he either would or might have been shown a poor quality reduced photocopy such as that in the Court Book in evidence, which may does not very clearly denote by colouring the conservation area that was required not to be developed. I do not accept the submission. The actual approved plan is also in evidence in its full size and is perfectly clear as to what the requirement was. I have no doubt that that is what someone enquiring at the Council would have seen. In any event, even the reduced copy plan in the Court Book produced for the purposes of this case indicates with sufficient although less clarity that this was a conservation area and was not to be developed.
17. For these reasons I consider that the defence of honest and reasonable mistake of fact has not been made out and that the prosecutor has discharged its onus of proof. Accordingly, I propose to dismiss the appeal against conviction.

the appeal against sentencE

1. After delivering the above reasons for judgment I heard the parties on whether the sentence of a fine of $8,000 imposed by the learned magistrate is too severe. This is the only ground of appeal against sentence that the appellant presses.
2. The appellant submits that no fine should be imposed in all the circumstances to which I have earlier referred plus the further circumstance that the appellant is now not working in the industry so there is no chance of repetition. As to the last point I accept the logical consequence that there is no need for the penalty to serve the purpose of specific deterrence.
3. I find, as the prosecutor submits, the following facts on sentencing: 1. The appellant was employed by the owner to carry out work on the land which included the removal of trees. 2. The appellant operated a bulldozer whereby he removed trees in the conservation area indicated on the plan approved under the development consent. 3. The conservation area was part of the Cumberland Plain Woodlands, a critically endangered community. 4. The area where the trees were removed formed part of a significant link to remnant vegetation in the area. 5. Approximately 12 trees were removed. 6. The appellant was an experienced contractor undertaking this kind of work over approximately a 30 year period. 7. The appellant, by virtue of his experience, was aware of planning controls that would apply to this kind of development work; and 8. The appellant made no enquiries to establish whether or not the work he was employed to do was lawful.
4. The purposes for which a court may impose a sentence on an offender are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
5. Factors to consider when sentencing for an offence such as this were considered in Pittwater Council v Scahill [2009] NSWLEC 12, (2009) 165 LGERA 289 at [44]-[47] per Preston CJ of LEC. There is a need for sentencing to operate as a general deterrence and to uphold the integrity of the planning system. The sentence must be proportionate to both the objective circumstances of the offence and the subjective circumstances of the appellant. The maximum statutory penalty is relevant. In this case it is $1.1 million, but the jurisdictional limit of the Local Court is $110,000. In determining the objective seriousness of the offence, relevant circumstances include the state of mind of the appellant (he honestly but unreasonably believed the owner had development consent to clear trees in this area), his reasons for committing the offence (that honest but unreasonable belief), the risk of harm was foreseeable, he could have taken practical measures to avoid the offence, and he had control over the causes. The subjective circumstances to be taken into account include the appellant's lack of prior criminality, his prior good character and the prosecutor's costs he was ordered to pay.
6. The prosecutor submits that the Court should regard this offence as at the upper end of the range of objective seriousness given the number of trees involved, their ecological value, the harm resulting from the loss of the vegetation, and at best the negligence and at worst the recklessness of the appellant in removing the trees in the circumstances as an experienced contractor. I do not accept the submission. The learned magistrate found that the appellant's conduct was negligent and that the offence was at the lower end of objective seriousness. I am not satisfied that I should depart from those findings.
7. On the issue of parity, I was referred by the prosecutor to several cases of unlawful clearing. In Willoughby Council v Blahos [2013] NSWLEC 71 the appellant arranged for, and supervised removal of, a large casuarina tree growing in the rear yard of a suburban property. He had obtained a development consent but a condition of the consent required that the tree be protected during the construction work and retained. He was a person of good character and unlike the present case had the benefit of a discount for an early guilty plea. He was convicted and fined $12,500. In Warringah Council v Bonanno [2012] NSWLEC 265 the appellant was fined $37,500 for clearing an intact ecological community with high conservation values. In Scahill, a contractor was fined $11,000 for removing, without development consent, two trees in an endangered ecological community.
8. Synthesising all the factors, in my opinion it has not been established that the sentence imposed was too severe. I propose to dismiss the appeal against sentence.

ORDER

1. The appeal against conviction and sentence is dismissed. The exhibit may be returned.

Amendments 20 February 2015 - Deleted duplicate appeal details from coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2015