HRNG ADELAIDE, 21 September 1992 #DATE 1:10:1992 Counsel for appellant: Mr W. De Garis Solicitors for appellant: Wallace De Garis and Co. Counsel for respondent: Mrs R. Cant Solicitors for respondent: Crown Solicitor's Office

JUDGE1 DUGGAN J. The appellant appealed against penalties imposed in the Mount Gambier Magistrates' Court for two breaches of the Native Vegetation Management Act, 1985. He was charged on two complaints alleging that he had cleared native vegetation contrary to s.19 of the Act. It was argued on appeal that the monetary penalties imposed were manifestly excessive and that, particularly in the case of the first offence, the magistrate should have discharged the appellant without recording a conviction and without imposing a penalty pursuant to s.39 of the Criminal Law (Sentencing) Act, 1988. Alternatively, it was said that s.16 of that Act should have been invoked and, whatever the penalty, a conviction should not have been recorded. 2. The appellant and his family are the owners of large areas of land in the South-East of the State. 4,290 ha. of the total holding are subject to heritage agreements under the Act and there is no doubt that the appellant has been a significant contributor to the conservation of the environment in the area covered by the holdings, particularly in the upper South-East. He has spent large sums of money on conservation and was entered as a nominee for the Commonwealth Development Bank Ibis Awards for encouraging the conservation of flora and fauna in 1989. 3. The appellant pleaded guilty to the two offences before the magistrate. The first offence took place on an area of land known as "Rosemary Downs" between June and December, 1988 when the appellant cleared 189 ha. of native vegetation contrary to the Act. The penalty imposed in respect of this offence was $28,350. The second offence took place on a block called "Glen Para" in June 1990: 21 ha. were cleared in contravention of the Act and the penalty imposed for this offence was $12,670. 4. The Native Vegetation Management Act prohibits the clearing of native vegetation carried out other than in accordance with the Act. Subject to certain qualifications the Act requires landowners to obtain the consent of the prescribed authority before undertaking such clearing (s.20). Section 19 provides as follows: "19.(1) A person shall not clear native vegetation contrary to this Part. Penalty: $10 000 or the prescribed sum, whichever is greater. (2) A person shall not contravene or fail to comply with a

condition attached to consent granted under this Act. Penalty: $10 000 or the prescribed sum, whichever is

greater. (3) In this section - "the prescribed sum" means a sum calculated at the rate of $1 000 for each hectare (or part of a hectare) of land in relation to which the offence was committed." 5. The learned magistrate was told that the Rosemary Downs block was cleared in 1974 at a time when no statutory restrictions were in force. The clearance in 1988 which breached the Act was part of a pasturing programme. The clearance was limited to ploughing and re-sowing. The vegetation which had regrown since the first clearing was low-lying. Large trees were left as they were. The respondent alleged that approximately 67 different species of native vegetation indigenous to the State were involved. 6. Although the area cleared on the Glen Para block was not as large, there were some aggravating features in the commission of this offence. The area was virgin scrub which had not been cleared before and a bulldozer was employed for the task. 7. I deal first with the argument that the learned magistrate should have invoked the provisions of either s.16 or s.39 of the Criminal Law (Sentencing) Act, 1988. The sections provide as follows: "16. Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion- (a) that the defendant is unlikely to commit such an offence again; and (b) that, having regard to- (i) the character, antecedents, age or physical or mental condition of the defendant; (ii) the fact that the offence was trifling; or (iii) any other extenuating circumstances, good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction." "39.(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond- (a) to be of good behaviour and to comply with the other conditions (if any) of the bond; and (b) to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond. (2) Where a defendant is discharged under this section- (a) no fresh prosecution may be commenced in respect of the offence; and (b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond." 8. After discussing a number of authorities including Hemming v Neave and Neave [1989] SASC 1660; 51 SASR 427 (a prosecution under the Fisheries Act) the learned magistrate stated their effect in language which suggests that in his view ss. 16 and 39 could have no application to offences under the Native Vegetation Management Act. He said: "In my view, notwithstanding that a consideration of section 66 of the Fisheries Act is not involved here, the principles emerging from HEMMING V NEAVE and NEAVE apply. The terms of section 39 of the Criminal Law (Sentencing) Act do not apply. Regulatory legislation is involved and the terms of the decision in GLOVER V ROMANOWYCZ apply in this instance. For the reasons emerging in HEMMING V NEAVE and NEAVE, the necessary changes being made, the terms of section 16 of the Sentencing Act do not apply to authorise this Court to refrain from entering a conviction where (as here) this Court proposes to impose a fine but no other penalty. In the case of breaches of regulatory legislation (such as the Native Vegetation Management Act) general deterrence as well as specific deterrence is paramount." 9. If this passage is to be read as meaning that ss. 16 and 39 could never apply to breaches of s.19 of the Native Vegetation Management Act then it is clearly wrong. The language of these sections is wide enough to include such cases and there is nothing in the Act creating the offences which would prevent the application of these sentencing options. 10. However the cases referred to by the learned magistrate, along with other authorities, make it clear that such sentencing options can have only limited application to regulatory offences. In Liddy v Cobiac (1969) SASR 6 Bray C.J. said (p 10): "Section 4 of the Offenders Probation Act is a merciful provision which, in my view, has prominently in view among its objects, though not of course exclusively, the reformation of the offender. Its application, it seems to me, generally speaking, should be less ready when the charge relates to a breach of social legislation, where the preventive and deterrent aspects of punishment assume greater prominence, though I am far from denying that there are cases of this kind to which the section can properly be applied." 11. Hemming v Neave and Neave [1989] SASC 1660; 51 SASR 427 was a prosecution under the Fisheries Act, 1982. Bollen J. stated (p 428): "Put very broadly the purpose of the relevant legislation is to protect the fishing industry. It is regulatory legislation. Paradoxical though it may be I think that breaches of regulatory legislation do not readily lend themselves to suspension of sentence. The penalties by way of fine which can be imposed for these offences may seem very substantial. In Walker v Eves (1976) 13 SASR 249 at 250 speaking of 'birds illegally taken' Bray C.J. said: 'The total fine appears enormous, but it is the result of a

deliberate policy of Parliament in s 74. It makes the penalty proportionate to the number of individual animals involved. No doubt Parliament thought that the trade was a lucrative one and one hard to detect and that it should be made unprofitable to those minded to engage in it by a penalty proportionate to the magnitude of the enterprise. In cases like this I think that the deterrent aspect of punishment is paramount.'" 12. Of course there will be cases where the circumstances will invite the application of the power to proceed without conviction or to refrain from imposing a penalty in dealing with regulatory or social legislation. In Walden v Hensler [1987] HCA 54; 163 CLR 561 the High Court made an order for unconditional discharge on an appeal against penalty in a prosecution under the Fauna Conservation Act, 1974 (Queensland). The appellant in that case was an aborigine who killed a protected turkey whilst under the belief that, in accordance with aboriginal custom, he was entitled to do so. (see also Ly v Glover 150 LSJS 449, a Fisheries Act prosecution in which there were special circumstances of mitigation.) 13. In my view, however, the present case did not call for the exercise of leniency of the type under discussion. While it is true to say that the case possessed features such as the good character of the appellant which, in the case of certain offences, might lead to the application of s.16 or s.39, nevertheless it must be remembered that these matters are no more than conditions precedent to the exercise of the discretion given under the sections. They do not give an offender a right to such leniency (Cobiac v Liddy [1969] HCA 26; 119 CLR 257 at 276) and in considering the exercise of the discretion the court should have regard to the restricted application which they have in cases of regulatory and social legislation. 14. In the present case the court was entitled to give weight to the appellant's good character and his otherwise excellent attitude towards conservation of the environment. Such matters were relevant to the amount of any fine which the court might impose. But it was not in dispute that the two breaches were deliberate actions undertaken by the appellant in the knowledge that his conduct contravened the Act. When this aspect is considered along with the importance of general and individual deterrence in enforcing the relevant provisions, the use of the powers provided for in ss.16 and 39 of the Criminal Law (Sentencing) Act, 1988 must be regarded as inappropriate in this case. 15. The same considerations are relevant to the level of the pecuniary penalties. In order for legislation such as that under discussion to succeed, there must be effective means of enforcement. The harshness of the statutory penalties must be viewed in this light. Often the clearing of land in circumstances such as this will result in a lasting commercial gain to the landholder. Mitigating factors can be allowed for, but the emphasis on general and individual deterrence remains a vital consideration. 16. The penalty in respect of the Rosemary Downs block was approximately 15 percent of the available maximum penalty. In my view ample allowance was made for those considerations favourable to the appellant including his good character, his contribution to conservation, his plea of guilty and the state of the vegetation on the block. The penalty for the unauthorised clearing of the Glen Para block was over half the maximum penalty, but counsel for the appellant conceded that the nature of the vegetation cleared, including the fact that it was virgin scrub, made this a serious contravention of the Act. Counsel for the appellant also submitted that the learned magistrate imposed a mathematical formula in calculating the penalties and that it was inappropriate to refer, as the learned magistrate did, to a fine at the rate of $600.00 per hectare in the case of the Glen Para block and $150.00 per hectare in the case of the Rosemary Downs block. Section 19 refers to the maximum penalty being $10,000 or "a sum calculated at the rate of $1,000 for each hectare (or part of a hectare) of land in relation to which the offence was committed" whichever is greater. I can see nothing wrong with the court explaining the calculation of penalty by reference to the units used in the section itself, as long as the overall penalty is appropriate to the offence charged. 17. In my view the penalty in respect of each offence was appropriate and the appeal will be dismissed.