Morris v Department of Environment and Climate Change

EXTEMPORE JUDGMENT Introduction 1 His Honour : Mr Morris has appealed against the severity of fines imposed upon him by the Local Court Magistrate at Lightning Ridge on 12 December 2007 on two charges associated with his work as a licensed kangaroo shooter/trapper on the property "Wynbar" near Goodooga - one of killing protected fauna (National Parks & Wildlife Act 1974 s.98(2)(a)), and one of contravening the conditions/restrictions of his licence (s.133(4)). 2 He was charged over the killing of 128 eastern grey kangaroos. He held tags only for red kangaroos, and he was not licensed to shoot grey kangaroos in the zone in which he was operating. When confronted in August 2007, he made a series of admissions as to the elements of the offences charged and said: "Yeah, I was just cheating. I … took a chance and got busted". 3 The maximum penalty on the shooting offence is $11,000 plus $1,100 per kangaroo, a total of $151,800, and/or up to six months imprisonment, and the maximum on the breach of licence offence is $11,000. As the charges were heard in the Local Court the maximum fine which could be imposed is $22,000. R v Doan (2000) 50 NSWLR 115 makes clear that the Magistrate must set the fine having regard to the maximum fine in the legislation, not the jurisdictional maximum. 4 Mr Morris pleaded guilty before the Magistrate and, contrary to some comments in an affidavit, he appears from the transcript to have been well represented by his solicitor, who sought a s.10 order. Her Honour fined him $8,000 plus $70 court costs plus $500 professional costs on the protected fauna charge, and $2,000 plus $70 court costs on the licence charge. 5 I note that the Prosecutor's costs up until the conclusion of the Local Court hearing were $3,000, as distinct from the $500 ordered. Before me the Prosecutor has refrained from seeking any increase in the penalties and orders below, and has not sought an order for costs of the appeal in the event that I dismiss it. The Evidence 6 The Court on this appeal has before it three affidavits from the Appellant and three affidavits filed by the Prosecutor. There is an agreed bundle of documents concerning the local court hearing, and both counsel have made fulsome written and oral submissions. 7 Mr Morris is a hard working "jack of all trades", now in his 50's, with limited literacy skills. He has been on a disability support pension since 2004 and has many major health issues, such as chronic back pain, osteoarthritis, diabetes, depression, arthritis, kidney and knee problems, and many others detailed in his affidavit. In par 34 of his affidavit of 8 September he says he is "a bad mess health-wise … most of the damage to my body is permanent", and his GP provided a comprehensive certificate, which was before the Magistrate and is in evidence before me. 8 These health problems restrict his work and earning capacity. He has been a professional kangaroo shooter for 18 years. He shoots under a partnership arrangement with his wife and son and keeps his taxable nett income within the limit imposed by Centrelink so as not to affect his pension. Mrs Morris appeared in Court with him today. She assists in the shooting operation and is a recipient of a carer benefit. They are committed parents to their four children. They do not have savings or many assets, and they live in private rental housing. Clearly this family is of modest means. I accept the financial evidence in his affidavits, and his assertion that he is honest in his tax returns. The Prosecutor's evidence of his income is the gross payments for the shooting, out of which expenses and the wife's and son's shares have to be paid. The expenses are set out in some detail in Mr Morris's affidavit of 27 October 2008. Mr and Mrs Morris, and not their son, made all payments on the truck used for the kangaroo shooting, and it was apparently paid off recently. 9 Mr Morris has held a trapper's licence since 1995, but feels pressured to comply with the stipulations of the farmers or "cockies" who retain him, as to how he should cull the kangaroo population. Clearly those demands frequently conflict with the conditions of his licence, with licences being specific to various species and to zones. He was shooting on this occasion in zone 7 while he had grey kangaroo tags for zone 8. 10 On the day the offence was detected he claimed 296 kangaroos out of 600 in the relevant chiller, including the 128 "illegals". He says that there were few red kangaroos on the property, but lots of greys eating the wheat crop. 11 Those 296 represent a couple of weeks of shooting by Mr Morris. The 128 resulted in a gross payment of $2,500 approximately by the chiller operator. When they were confiscated by NPWS, Mr Morris refunded the $2,500.

Kangaroo Culling 12 Mr Morris is very critical of the way NPWS supervise the contract culling of the kangaroo population and do not supervise the farmers shooting kangaroos under an occupier's licence. It was a random audit/inspection by NPWS officers which uncovered these offences, which are universally regarded as almost impossible to detect. 13 As counsel for the Department, Mr Hand, said before the Magistrate, and before me today, the entire system of regulation depends upon compliance with the licensing regime. Sustainability of the species is a key objective of public policy and depends on kills occurring within the framework of commercial harvesting. Parliament has spoken in strong terms concerning penalties to be imposed, and the Courts must have regard to that - Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. 14 Mr Morris's solicitor before the Magistrate, Ms Rastovic, and his counsel before me today, Mr Angelov, observed how many eastern grey kangaroos there are in the State (almost three million in 2007) and how many in the kill quota (440,438 in 2007), inviting both Courts to note how relatively small Mr Morris's illegal kill was. 15 However, there are many chillers around, being supplied by occupiers and trappers, and much care is taken in setting annual quotas and the like. The evidence shows that Mr Morris killed about 1700-2000 kangaroos a year in 2006-2007 and I note that these are the figures for two full calendar years since his major health problems in 2004. Accordingly, I conclude that these are far from trivial offences and should attract appropriate penalties, notwithstanding the evidence that more token punishment has been administered in some other cases. The number in the illegal kill is substantial, and so the environmental harm is considerable. The sentence reviewed 16 I accept that Mr Morris has learned his lesson. While many of his expressions of remorse and contrition post-date the sentencing in the local court, he co-operated with the authorities, pleaded guilty early, and had his solicitor express his regret to the Magistrate before sentence (T4, L6-15). 17 The Magistrate's remarks on sentence (T5, L11-T6, L13) show a complete grasp of the facts of the case and of the various sentencing considerations, objective and subjective, aggravating and mitigating, all of which were put again to this Court today. 18 The references before both Courts portray Mr Morris to be "reliable, competent, and trustworthy", and "a caring, honest, helpful person in every way". They acknowledge how hard it is for professional shooters anyway, but especially in hard economic times. He has no known record, and certainly a clean record in environmental matters. 19 The appropriate process to follow in sentencing an offender of low financial means is set out by the Court of Criminal Appeal in the case of Aref Rahme (1989) 43 A Crim R 81, and that process was followed by the Magistrate in this case. 20 Her Honour found that Mr Morris had shown "a fairly blatant disregard for the conditions of [his] licence" and arrived at a fine of about three times the potential financial gain from the shooting offence, but only 5% of the maximum fine, and a fine approximately 20% of the maximum for the licence offence. In this Court's view these are very lenient penalties indeed when viewed in their totality. 21 Clearly, cooperation, remorse, and the guilty plea figured largely in the Magistrate's thinking. Equally clearly the Magistrate was aware of the financial burden the fines and costs orders represented. She accepted the Defence's submissions about Mr Morris's means, without requiring proof (see T4, L43). 22 Mr Angelov submitted (par 18) that "any fines Mr Morris has to pay will obvious[ly] (sic) have a significant impact on the family budget", but the payment of fines cannot be viewed as an optional domestic expense, nor as a normal cost of running a business, however modest. The need for time to pay can be accommodated by pursuing the processes of the Fines Act 1996. 23 So far as consistency in sentencing is concerned - and on this point I was referred by Mr Angelov to the Chief Judge's decision in Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 - I have had regard to Pain J's reasons and fine in Garrett on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492. 24 Mr Angelov further submits that general deterrence is not relevant to his matter, but I cannot accept that submission, and need look no further than the reasoning of the Court of Criminal Appeal in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, and the many cases in this Court which have followed it. 25 Mr Angelov acknowledges that a conviction is appropriate, and seeks a s.10A order or a token fine of $500 on each charge. Conclusion 26 Such an outcome is manifestly inadequate on all the facts of this case. 27 While the Court is conscious of the financial hardship involved for this man and his family, his appeal must be dismissed. 28 The Exhibits should remain in this Court's file. 29 As requested, there will be no order as to the Prosecutor's costs on the appeal, but the orders of the Magistrate will stand. 30 I will today publish these reasons.

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