Harris v Harrison

The issues on the application 8Initially, the prosecutor had sought to argue that the Court had no jurisdiction and no power to grant a stay. At the commencement of the hearing of the application, the Court was advised that the prosecutor accepted that the Court has an implied jurisdiction, being that which is incidental to its statutory powers, including the power to grant a stay. 9The prosecutor submitted, however, that the publication order was not amenable to an appeal under the statutory regime for the bringing of appeals from a conviction under the Water Management Act. If the publication order was not amenable to an appeal, there would be no basis for the implication of a power to stay that order. It followed, on this argument, that the Court had no jurisdiction to grant a stay of the publication order. 10During the course of the argument, it became apparent that there was a difficulty with this aspect of the prosecutor's argument as, if pressed, it would involve the Court making a determination on that question. The prosecutor did not wish to have that matter determined in a way that might give rise to an issue estoppel or otherwise preclude that question being agitated on the appeal. The question whether an issue estoppel would arise on the hearing of an application such as this was not expanded upon in argument by either party. However, the prosecutor's position was that he did not want to be subject to that risk and accordingly did not seek to have the Court determine its contention that the publication order was not amenable to appeal. The prosecutor recognised that if the publication order was not amenable to appeal, Mr Harris could seek relief by way of judicial review. 11The prosecutor had also taken the stance, as I have already indicated, that a stay should not be granted in this case in circumstances where Mr Harris had agreed to the publication order or, at least, as to its terms. However, during the course of argument on the application, Senior Counsel for the prosecutor accepted that there had been no such agreement. Rather, after the sentencing judge had indicated that a publication order was to be made, there had been some negotiation as to the terms of the publication. In my opinion, this did not amount to a concession by Mr Harris that a publication order was appropriate. Senior Counsel for the prosecution accepted this. 12The question, therefore, which was finally in issue on the application for a stay was whether this was an appropriate case for a stay to be granted pending the appeal. This raised the following matters for determination: (1) What was the appropriate test for the grant of a stay; and (2) Whether, in the circumstances, a stay should be granted. 13Although the issue as to whether the publication order is amenable to an appeal was not contested on the application, it nonetheless remained in the background as an issue. Clearly, if the Court had no jurisdiction to entertain an appeal from the publication order, there would be no jurisdiction to order a stay of that order, unless there was some other basis for doing so. Thus, even though the jurisdictional question was not the subject of full argument, there was discussion as to whether, even if the publication order was not amenable to an appeal, a stay ought to be granted as necessary to support the integrity of the appeal. 14For myself, I am not satisfied that the prosecutor's contention is inarguably correct. An examination of the legislation, which is set out below, reveals that the definition of "Sentence" means, inter alia, any order made by the court of trial on convicting a person of an offence. Thus, the only power in the court to make the publication order was upon and as a consequence of conviction. The mere fact that in the explanatory memorandum to the Water Management Act the power to make a publication order is referred to as an "additional order", would not be sufficient to deprive the order of the character of a sentence, or part thereof.

(a) The Water Management Act 2000 15Part 3A of the Act prescribes the orders that may be made in connection with offences where there has been a conviction for an offence under the Act. Section 353A provides that orders may be made under Pt 3A in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. Those orders include, relevantly for present purposes, the making of a publication order pursuant to s 353G. Section 353G(4) provides that the prosecutor or a person authorised by the prosecutor may publish the words ordered by the sentencing judge if a defendant fails to comply with that order.

(b) The Land and Environment Court Act 1979 16Section 56(b) of the Act provides: "56 Nature of decision of the Court Except as provided: ... (b) by the Criminal Appeal Act 1912, in relation to proceedings in Class 5, 6 or 7 of the Court's jurisdiction, a decision of the Court shall be final and conclusive. 17The proceedings brought against Mr Harris were brought in class 5 of the Court's jurisdiction.

(c) The Criminal Appeal Act 1912 18Section 5AB of the Act provides: "5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction Section 5AA applies to and in respect of a person: (a) convicted of an offence, or (b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or (c) in whose favour an order for costs is made, by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court." 19Section 5AA provides, relevantly: "5AA Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction (1) A person: (a) convicted of an offence ... ... by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. ... (4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal. ..." (emphasis added) 20"Sentence" is defined, relevantly, in s 2 as follows: "(a) any order made by the court of trial on convicting a person of an offence, including: (i) any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order or home detention order and any sentence of imprisonment whose execution is suspended), and (ii) any community service order, and (iii) any good behaviour bond, and (iv) any fine, imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999 ..." 21"Sentence" is defined in the Crimes (Sentencing Procedure) Act, s 3 to mean, relevantly, the penalty imposed for an offence.

(d) The Interpretation Act 1987 22Section 21 of the Act provides that "penalty" includes forfeiture and punishment.

Principles governing the grant of a stay 23Mr Harris submitted that the principles applicable to the grant of a stay in a criminal appeal before a court exercising summary jurisdiction are generally those that apply in non-criminal matters: Porteous & Others v Inspector McMartin [2005] NSWIRComm 122 at [13]. 24In accordance with those principles, the onus of persuading the court to grant a stay is on the party seeking the stay: Waller v Todorovic (Court of Appeal, 21 December 1979, unreported); Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694. An applicant for a stay of execution of the orders of a trial court, pending an appeal to an intermediate appellate court, is required to establish a proper basis for a stay that will be fair to all parties: Trlin v Marac Finance Australia Ltd (Court of Appeal, 4 March 1985, unreported); Alexander v Cambridge Credit Corp at 694. It is not necessary to establish "special" or "exceptional" circumstances: Alexander v Cambridge Credit Corp at 693-694. 25A discretionary consideration that would tend to the grant of a stay is where there is a risk that an appeal will prove abortive if a party succeeds on the appeal if the stay is not granted: Alexander v Cambridge Credit at 695. Likewise, if there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted, which cannot be addressed by a successful appeal, a stay may be warranted: O'Brien v Australian Securities and Investments Commission [2009] NSWCA 312; 74 ACSR 324 at [25]. 26The Court, in determining whether to grant a stay, will make a preliminary assessment as to whether the applicant has an arguable case on appeal: Alexander v Cambridge Credit at 695. 27The prosecutor submitted that the appropriate test to be applied was by analogy with the Bail Act in respect of which, at common law, special or exceptional circumstances must be demonstrated before bail will be granted. In advancing this submission, the prosecutor recognised that the analogy was not perfect. 28I am not persuaded that the Bail Act provides an appropriate analogy. Had Mr Harris been ordered to serve a sentence of imprisonment, he would have been subject to the provisions of the Bail Act in force at the time of his application. The question presently in issue raises very different considerations from those that fall to be determined when the court is granting bail. 29The prosecutor also relied upon the decision of Owen J in Stampalia v The Stewards of The Western Australian Trotting and Association & Anor [1999] WASC 7, where his Honour was concerned with an application for a stay of a penalty pending resolution of an application for a prerogative writ. His Honour had not been able to find any authority as to the principles to be applied and thus turned to the principles that applied in bail cases and in respect of applications for stay pending the determination of a special leave application to the High Court. His Honour adopted the principles emerging from those cases. Whilst not endorsing a requirement of "exceptional circumstances", his Honour, at [11], considered that the appropriate test was whether there were: "... special circumstances sufficient to satisfy the court that it is just and reasonable to order a stay so as to preserve the subject-matter and integrity of the litigation?" 30I have already explained why I do not consider that the appropriate analogy is with the principles that apply to the grant of bail. I am also not satisfied that the appropriate principles are those that apply to stays sought pending the grant of special leave to the High Court. The jurisdiction of the High Court in granting special leave requires the Court to be satisfied, inter alia, that where a question of law is involved, there is a question of public importance. In other cases, the court is required to consider whether the administration of justice requires the High Court's consideration of the judgment sought to be appealed from: see the Judiciary Act 1903 (Cth), s 35A. 31The prosecutor said, alternatively, that the applicable principles were those determined by the sentencing judge on the hearing of a stay application before her: Harrison v Harris (No 3). Her Honour, after rejecting that the principles applicable to the grant of bail or for a stay pending the determination of application for special leave were appropriate, considered, at [23], that the applicable principles were those stated in Alexander v Cambridge Credit and summarised them at [24]. 32For the reasons I have given, I consider that the appropriate test is not one that has any analogy to the principles applicable to bail applications at common law, or to stays pending the determination of an application for special leave to appeal. The present case engaged the exercise of the Land and Environment Court's summary criminal jurisdiction. The Court's powers on sentence include the serious punishment of imprisonment. If a person was sentenced to imprisonment, a bail application could be made pending an appeal. There are also other orders that may be made, including fines and publication orders, as was made in this case. A person may wish to have such orders stayed pending an appeal. 33The principles in Alexander v Cambridge Credit have the attraction of stating a principle in flexible terms that can be applied having regard to the circumstances of the particular case. Pursuant to those principles, an applicant for a stay is required to demonstrate that there is a proper basis for a stay that is fair to all parties. I consider that is the appropriate test to apply in determining whether to stay orders (other than a sentence of imprisonment) made by the Land and Environment Court in its criminal jurisdiction.

(a) arguable case on the appeal 34Mr Harris' notice of appeal contained 16 grounds, raising, in summary, the following issues: the construction of relevant provisions of the Act and the proper application of those provisions to the facts; challenges to her Honour's sentencing methodology; challenges to her Honour's fact finding, including that there was actual environmental harm caused by the commission of the offence; and a contention that her Honour failed to sentence in accordance with the charge in that her Honour wrongly treated the offence as one of taking water rather than the offence of tampering with a water meter. There is then a catchall ground of appeal that the fine, the publication order and the costs order, taken together, were manifestly excessive having regard to the proper assessment of the objective seriousness of the offence and the matters raised in mitigation. 35I do not propose to deal with all the grounds of appeal. Rather, it is sufficient to focus on the questions of statutory construction raised in the first ground of appeal and with the issue raised in grounds 2 and 3, and ground 12. 36In ground 1 of his notice of appeal, Mr Harris challenged the sentencing judge's construction, at [97], of the Water Management Act, s 52. He contended that this error of construction had implications for her Honour's finding as to the objective severity of the offence and to the manner in which her Honour dealt with his case in mitigation. He submitted that if he was successful on this ground of appeal, he has a strong ground for contending that the sentencing discretion miscarried. 37Section 52 of the Water Management Act provides, relevantly: "52 Domestic and stock rights (1) ... an owner or occupier of a landholding is entitled, without the need for an access licence, water supply work approval or water use approval: (a) to take water from any river, estuary or lake to which the land has frontage ... and (b) to construct and use a water supply work for that purpose, and (c) to use the water so taken for domestic consumption and stock watering, but not for any other purpose. ... (3) In this section: domestic consumption, in relation to land, means consumption for normal household purposes in domestic premises situated on the land. stock watering, in relation to land, means the watering of stock animals being raised on the land, but does not include the use of water in connection with the raising of stock animals on an intensive commercial basis that are housed or kept in feedlots or buildings for all (or a substantial part) of the period during which the stock animals are being raised." 38The sentencing judge, at [97], stated: "... in my opinion, acting lawfully pursuant to an exercise of rights under s 52 could only authorise the extraction of sufficient water to fill the House Dam. Otherwise the provision would give those water users with a domestic dam some distance from the water source a considerable advantage over those whose dams were closer in proximity to the extraction source. I do not believe that this was the objective intention of the legislature in enacting s 52 of the [Water Management Act]." 39Mr Harris submitted that the trial judge's error was in rejecting his contention that his rights under s 52 included the placement of water in an irrigation channel for the purposes of conveying the water to the point where it could be used, when express words of the section included that right. It would seem that this submission was based upon the terms of s 52(1)(b) and the definition of "water supply work" in the Dictionary of the Act. 40The prosecutor submitted that this ground raised a mixed question of fact and law. He contended that in order for this aspect of Mr Harris' case on mitigation to succeed it was necessary for him to prove, on the balance of probabilities, that he had used the water taken for domestic consumption but not for any other purpose. On the prosecutor's argument, there was a difficulty with this aspect of Mr Harris' case as he had made admissions both in a record of interview and under cross-examination that part of the un-metered water that he had taken was to be used for the purpose of irrigation. In other words, it had not been taken for domestic consumption. 41Mr Harris denied he made admissions as the prosecutor contended. 42In my opinion, it is likely that this issue does raise a mixed question of fact and law. In the absence of having been taken to the evidence, it is not possible for the Court to make any assessment of the strength of Mr Harris' argument. The most that can be said is that it has been advanced by Senior Counsel for Mr Harris, and in accordance with his obligations to the Court, can only have been advanced responsibly and on the basis that it is arguable. On the other hand, it has been refuted by equally responsible Senior Counsel for the prosecutor, although the refutation is an argument that the ground will not succeed. It was not expressly put that the ground was not arguable. That is relevant, but, having regard to my conclusion in respect of grounds 2, 3 and 12, I do not need to finally decide whether it would be sufficient to satisfy the first limb of the test stated in Alexander v Cambridge Credit. 43Grounds 2 and 3 were directed to the relevance, as a mitigating factor, of the absence of any regulatory requirement for a meter on the part of the water source from which the water was taken. Mr Harris submitted that this had been conceded by the prosecutor. Mr Harris' complaint was that the sentencing judge failed to decide this matter and consequently had failed to take it into account at all. He contended that it was a significant omission. 44In response, the prosecutor submitted that this submission failed to fully draw to the Court's attention what was otherwise in the amended statement of agreed facts and in other parts of the prosecutor's submissions. The prosecutor pointed out that this was an example of why Mr Harris' application for a stay was misconceived, as the Court is not expected to hear a rehearsal of the appeal. 45In my opinion, the respective arguments of the parties on these grounds of appeal also make it apparent that there are issues raised on the appeal, which on their face, are arguable. The prosecutor's response that an application for a stay is not a rehearsal for the appeal is correct. I would only comment that a blocking response of that nature does not assist the Court in determining whether there is an arguable case. Something more would need to be demonstrated in opposition to an otherwise apparently arguable case if the Court was to be persuaded to come to a different conclusion. 46In ground 12, Mr Harris contended that her Honour erred in finding that damage to the regulatory system was actual environmental harm. This ground challenges her Honour's interpretation of the Water Management Act, s 364A(1)(c). Section 364A requires the Court to take certain matters into account when imposing a sentence for an offence under the Act. Those factors include subs (1)(c), which provides: "(c) the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence." 47The amount of unmetered water, between 30-40 ML was, having regard to the water resource, miniscule. Mr Harris argued, therefore, that the effect on the river and the catchment and, therefore, on the environment, was all but negligible. Her Honour stated, at [108], that this argument was superficially compelling, accepting, as I understand her reasons, that there was a "barely registrable amount of water" extracted during the approximate 17 hours over which the offending conduct occurred. However, her Honour applied the approach taken in Harrison v Baring (No 2) [2012] NSWLEC 145, where Pain J stated, at [44]: "The systems of ordering water and measuring water taken are important as they allow the New South Wales Office of Water to monitor and control the taking of water, manage the flow of the river, lesson negative impacts on the environment, and ensure the lawful and equitable sharing of water." 48I have set out the terms of s 364(1)(c) at [46]. In my opinion, Mr Harris' contention that a finding of damage to the regulatory system was actual environmental harm within the meaning of that provision is clearly arguable. In coming to that conclusion, I have not overlooked the fact that the Court may take into consideration other matters that it considers relevant: s 364(2). However, that is not the approach her Honour took to the section. Whether, on appeal, if this ground is made out, it will make any difference to the sentence imposed, is not something that was argued and it would be inappropriate for me to make any comment. 49Although I have not considered whether there is an arguable case in respect of each ground of appeal, I am satisfied that the appeal itself is arguable such as to satisfy this aspect of the principles governing the grant of a stay.

(b) discretionary considerations 50Mr Harris' principal submission was that the errors made by the sentencing judge were such that the penalty was manifestly excessive. If any of his arguments succeeded, the Court may impose a different penalty and make different orders, including that there be no publication order, or that the terms of any publication be different from those ordered by the sentencing judge. 51If some different order is made, the appeal will have been rendered nugatory if the notice has already been published in accordance with the publication order. 52Mr Harris also submitted that if some other order is made on the appeal, his reputation will already have been irreversibly damaged by the publication of the notice in its present terms. In response to the prosecutor's argument, which is set out below, at [56], that the terms of the court order are already in the public domain, Mr Harris argued that a publication pursuant to a court order carries with it a particular weight that would not necessarily be accorded to a report in the newspaper. Accordingly, the fact that there was already some information in the public domain was not an answer to his concern. 53The prosecutor contended that the terms of the publication ordered were such that they would publicise the offence "in the most objectively neutral terms". The prosecutor also contended that the publication order made in this case was consistent with the approach taken by the Land and Environment Court in applying such powers in other Acts, noting that the publication order was ordered as an additional option to the imposition of a penalty. In this regard, the prosecutor emphasised that a publication order served the purpose of general deterrence and was not in itself part of a sentence or the imposition of punishment, even if punishment was a secondary purpose. In support of this argument, the prosecutor relied upon the Explanatory Notes, which noted that s 353G was "a provision that enables a court to make certain additional orders against the offender" (emphasis added). 54The prosecutor also refuted Mr Harris' contention that the publication order would have an adverse effect on his reputation. He submitted that Mr Harris' submission ignored the fact that he had pleaded guilty to the offence, so that regardless of the outcome of the sentencing appeal, the criminal conviction would remain, with any consequent damage to reputation that that might involve. In any event, the published reasons of the trial judge and media reports of the judgment, were already in the public domain. 55The prosecutor also informed the Court that the media reports, which had been based upon a media release issued by the New South Wales Department of Primary Industries, were inaccurate, in that they asserted that the offence was committed at a time of severe water shortage and, at least, imputed that Mr Harris had tampered with the meter for the purpose of stealing water. Both these matters were wrong. The gravamen of this submission was that even though the media reporting had been inaccurate, Mr Harris' reputation had already suffered damage so that the "neutrally objective" publication ordered by the Court would not cause further damage. On this approach, it could not be said, therefore, that the publication of the notice ordered by the Court would render nugatory the subject matter of the appeal. 56The prosecutor relied upon the observations of the Court of Appeal in O'Brien v Australian Securities and Investments Commission as to the utility of a stay when damage to the appellant's reputation had already been caused by the publication of the primary judgment. In that case, the Court noted that if the appellant's reputation was to be reinstated, it would only be by being successful on the appeal. That case, however, involved an appeal against liability as well as against sentence. In this case, as already indicated, the prosecutor relied upon the fact that Mr Harris had pleaded guilty and there was no conviction appeal. 57The prosecutor also submitted that the words Mr Harris had sought to be added to the publication order would not have reflected the sentencing judge's findings. The prosecutor submitted that her Honour's rejection of Mr Harris' attempt to have these words included was appropriate, having regard to her findings.

Resolution 58In my opinion, Mr Harris has made out a case for a stay. I consider he has demonstrated that he has an arguable case on the appeal. If he is successful, it is possible that the publication order would not be made, or its content may be different, so that unless a stay is ordered, a significant aspect of the appeal, which challenges the making of the publication order, will have no substantive impact if the publication has already occurred. 59This last observation presumes that the publication order is amenable to an appeal. As I have indicated, the prosecutor proposes to put that matter in issue at a jurisdictional level on the hearing of the appeal. However, for the reasons I have expressed above, it is arguable that the publication order forms part of the sentence imposed. The fact that the matter is likely to be in issue on the appeal is not sufficient to deprive this Court of jurisdiction to grant a stay in those circumstances. 60The prosecutor submitted that as an alternative to a stay, the Court could order that the publication be made, but be subject to a rider that the matter was under appeal. I am not satisfied that this is an answer to the application. The status of any such publication is itself debatable. Would it constitute compliance with the sentencing judge's order? If not, would Mr Harris be faced with the necessity to comply with the order, effectively for a second time, if he is not successful in having some different order made on the appeal? But in any event, I do not consider this is an appropriate response to the application. First, if publication with the rider added was compliant with the sentencing judge's order, there would be little purpose in seeking a different order on the appeal. More importantly, however, I consider that Mr Harris has made out a case for a stay and there is no reason why any lesser or qualified order should be made. 61Mr Harris seeks costs. As he has been successful on his application, there is no reason why a costs order ought not be made in his favour. Accordingly, I propose the following orders: (1) Order 6 made by Pepper J on 17 July 2013 be stayed pending the determination of the appeal; (2) Order the respondent to pay the applicant's costs of the application. 62McCALLUM J: I agree with Beazley P. 63SCHMIDT J: I agree with Beazley P.

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: 13 December 2013