Scriven v Sargent

Vegetation Management Act 1999 s 60B.

Dore v State of Queensland [2004] QDC 364 - considered.

Hili v R [2010] HCA 45; (2010) 242 CLR 520 - cited.

Hishmeh v Western Australia [2012] WASCA 183 - applied.

House v The King (1936) 55 CLR 499 - applied.

Kirkpatrick v Bartlett [1936] SAStRp 2; [1936] SASR 10 - cited.

Lynch v Attwood [1983] 3 NSWLR 1 - cited.

Macarone v Mckone ex parte Macarone [1986] 1 Qd R 284 - cited.

Mbuzi v Torcetti [2005] QCA 231 - cited.

Olsen v Grain Sorghum Marketing Board, ex parte Olsen [1962] Qd R 580 - cited.

Ostrowski v Palmer [2004] HCA 30; (2005) 218 CLR 493 - considered.

R v Dale [2012] QCA 303 - considered.

R v Edwards [1975] QB 27 - cited.

R v Jones, ex parte McClintock [1996] 1 Qd R 424 - cited.

R v Macri (1979) 1 A Crim R 299 - applied.

R v Mill [2007] QCA 150 - considered.

R v Pollard [1962] QWN 13 - considered.

R v Twose (1879) 14 Cox C C 327 - considered.

R v Waine [2005] QCA 312; [2006] 1 Qd R 458 - considered.

R v Wallace and Short (1978) 67 Cr App R 291 - applied.

R v Whye [1997] QCA 320 - applied.

Rowe v Kemper [2008] QCA 175 - cited.

Scriven v Sargent [2015] 2 Qd R 140 - cited.

Siganto v R [1998] HCA 74; (1998) 194 CLR 656 - cited.

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 - applied.

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 - applied.

Wong v The Queen [2001] HCA 64; (2002) 207 CLR 584 - applied.

R P. Devlin QC and G Del Villar for the respondent.

[1] On 9 September 2011 the appellant was convicted after a trial in the Magistrates Court at Roma of an offence under the Integrated Planning Act 1997 ("the Act") s 4.3.1, of carrying out assessable development without an effective permit. It was alleged by the prosecutor and found that the appellant had cleared[1] native vegetation, in the form of mallee and poplar box, on some 1,819 hectares of freehold land owned by him. On 6 October 2011 no conviction was recorded, but he was fined $118,000 and ordered to pay the costs of the investigation and legal costs, an amount totalling $23,823.59.

[2] On 20 September 2011 he filed a Notice of Appeal to this Court against his conviction under the Justices Act 1886 s 222. On 1 February 2012 he filed an application seeking to amend the grounds of appeal in the Notice of Appeal. On 28 February 2012 another Judge allowed an amendment to include a ground that the penalty imposed by the magistrate was manifestly excessive, but otherwise adjourned the application to amend to a date to be fixed. It came on again before another Judge on 20 May 2013, when the application to add to the grounds of appeal a ground that the relevant legislation was invalid, as being contrary to the Australian Constitution, was refused on the ground that it would be futile to allow the amendment: [2013] QDC 216. The appellant applied for leave to appeal to the Court of Appeal from this decision, which leave was refused: Scriven v Sargent [2015] 2 Qd R 140. The Court held that the decision to refuse leave to add this ground had been correct. An application for special leave to appeal to the High Court was dismissed on 15 May 2015.

[3] The appeal came on for hearing before me on 22 January 2016. The appeal against conviction was brought on two bases: first, that the prosecution had not proved beyond reasonable doubt that the appellant did not have a permit or permits to clear the land, and second, that the magistrate erred in failing to find that the appellant was not criminally responsible for the offence because the clearing was done by him in the exercise of an honest claim of right without intention to defraud, or at least the prosecution had not proved to the contrary, relying on the Criminal Code s 22(2). In addition, the ground that the penalty imposed was manifestly excessive was argued.

[4] As to the first of these, it may be that the absence of a permit was not something the prosecution had to prove at the trial, but rather the defendant had the onus of proving (on the balance of probabilities) that he had a permit in order to resist the prosecution for the offence.[2] Assuming, however, that the onus was on the prosecutor to prove the absence of a permit beyond reasonable doubt, the prosecution case at trial was that the scheme of the legislation provided that, when and if a permit was issued, it was to be noted on the Certificate of Title of the relevant land.[3] This did not mean that the permit system partook of the nature of title to the land, as a scheme of title by registration rather than registration of title[4], but it did put in place a mechanism under which the existence of a permit could readily be ascertained by anyone. The relevant Certificate of Title was put in evidence, and contained no annotation of the existence of such a permit.

[5] There was also evidence as to the operation of the scheme by which permits were granted in relation to clearing land, which touched on this question. The effect of that evidence was that, although permits could well have been granted for some clearing of land containing mallee trees in the circumstances of the appellant's land, permits would not have been granted for clearing in the way the land had been cleared in this case.[5] That evidence supported the proposition that the appellant had not obtained permits for clearing all the land the subject of the charge.

[6] None of this evidence was subjected to cross-examination with a view to showing that there was any particular permit or permits issued to the appellant, nor was there cross-examination with a view to suggesting that, notwithstanding this evidence, permits might have been issued. For example, it was not suggested in cross-examination that, although the legislation contemplated that the granting of a permit would be noted on the Certificate of Title, that did not always in practice occur, nor was it suggested that, although ordinarily permits to clear for the purpose of harvesting fodder would be granted only over a much smaller area, it was possible that, in a severe drought, and with a sufficiently large number of cattle to be fed, a much larger area could be covered by permits. The period during which the clearing occurred occupied some years, and there would presumably have been time for a series of separate permits to have been issued; there was no examination of what area of land might have been covered by such a series of separate permits.

[7] In these circumstances the evidence was all one way, and the magistrate was, in my opinion, entitled to be satisfied beyond reasonable doubt by this evidence that the appellant in fact had no permit for clearing all this land. On appeal by way of rehearing, the same evidence satisfies me beyond reasonable doubt that the appellant had no permit or permits.[6] It is true that this matter is proved by way of circumstantial rather than by direct evidence, but matters can be proved in that way beyond reasonable doubt. The question is whether there is a reasonable hypothesis consistent with innocence not excluded by the evidence.[7] The relevant hypothesis must be that the appellant had had a permit or permits issued to him, sufficient to justify the clearing of this land, without their having been noted on the title deed as required by the Act, and notwithstanding that the policy for the implementation of the permits system was that the area allowed to be cleared would be smaller than the area in fact cleared in this case. In my judgment, in the light of the evidence at the trial, such a hypothesis is not reasonable, and accordingly I am satisfied of the absence of a permit beyond reasonable doubt.

Appeal against conviction: honest claim of right

[8] Section 22 of the Criminal Code provides so far as is relevant:

"(1) Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.

(2) But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud."

[9] The respondent did not dispute that the evidence at the trial raised a possible defence under s 22(2) for consideration if it were open, but submitted that the defence was not open because the honest claim of right contended for on behalf of the appellant would not constitute an answer to the charge.

[10] The respondent relied on the decision of the High Court in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561. In that matter the appellant was found in possession of a dead plain turkey and a live plain turkey chick. He was charged with and convicted of an offence of keeping fauna without being the holder of any authority to do so under the Fauna Conservation Act 1974. An appeal to the Full Court was rejected,[8] and a further appeal to the High Court was also rejected, by a majority of three to two, on the existence of a defence under s 22(2), though the Court upheld the appeal by ordering that the appellant be discharged absolutely under s 657A of the Criminal Code. Within the majority, however, there was some disagreement as to the basis upon which s 22 was excluded.

[11] Brennan J held that on the facts the appellant had kept the birds in the exercise of an honest claim of right to do so but the question was whether s 22 applied to the relevant offence created by the provision of that Act, a question of law: p 569. His Honour was not prepared to accept the proposition that s 22(2) was applicable to any act or omission affecting property, and held that it only applied to offences in which the causing of another to part with property, or the infringing of another's rights over or in respect of property, is an element: pp 574-5. Read in this way, it did not apply to the offence created by the relevant section of the Act.

[12] Deane J considered that the defence under s 22 did apply to this particular offence (p 580), but held that what the appellant did by way of keeping the two animals was not something done in the exercise of an honest claim of right for the purposes of s 22. His Honour went on to say at pp 580-1:

"The fact that a person can honestly say that he thought he was entitled to do the relevant act because he was unaware that it was proscribed by the criminal law does not suffice to provide him with a defence of honest claim of right under s 22. Nor does an honest belief of some special entitlement to do the particular act with respect to property necessarily constitute such a defence. An honest belief of a special entitlement to do the act with respect of the property, such as belief of ownership, will only constitute a defence under s 22 of the Code if that entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know... In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged. Thus, e.g., it would be irrelevant to a charge of driving a motor vehicle on a public road without a driver's licence to assert a genuine belief of entitlement to do what was done in that the authority of the owner of the motor vehicle was believed to have been obtained. In such a case, even if the authority of the owner were established, it would not constitute a defence to the charge of negligent driving[9]... In such cases, the absence of knowledge of criminality flows, upon analysis, merely from ignorance of the applicable provisions of the criminal law and the honest belief that what was done with respect to property was done with the authority of the owner or, for that matter, in the exercise of actual rights of ownership is simply irrelevant to the alleged offence which can be committed by owner and stranger alike."

[13] His Honour went on to develop this analysis further, and then at the foot of p 581 said that the point could be illustrated by reference to possible offences involving the taking of property from its natural environment. On the following page he gave as an example an offence to take minerals from a natural forest, which would be committed by a person who had an honest belief in his ownership of or some more limited claim to the minerals, because that belief would not constitute a defence under s 22 since, if it had existed, the right believed to exist would not afford a defence. Ignorance of criminality flows, not from an honest belief of ownership or of some more limited entitlement, but from ignorance of the relevant criminal law.

[14] His Honour was drawing a distinction between a situation where the offence would not have been committed if a particular right existed and one had a belief in such a right, and the situation where a person simply had a belief that he was entitled to do what he was doing, which was contrary to the law. If a person honestly believes that he is allowed by the owner of a motor vehicle to drive the motor vehicle that will be a defence to a charge of unlawful use of a motor vehicle[10], but it will not be a defence to a charge of unlicensed driving if the defendant does not possess a license to drive the vehicle.

[15] On his Honour's analysis, it would not be an answer to a charge of knocking down trees without a permit honestly to believe that one had a right to do so; that was simply a mistake as to the legal position. It would only be a relevant mistake if it involved an honest belief of an entitlement which if well founded would preclude what was done from constituting a breach of the relevant provision. So if a person honestly but mistakenly believed that he had an effective permit under the Act in accordance with which he was entitled to do what he did, the relevant mistake being one of law[11], he would not be committing an offence.[12]

[16] The third member of the majority, Dawson J, expressed his analysis more succinctly, but in substance in my opinion approached the matter in the same way as Deane J. He said at p 593-4:

"Put in another way, the second limb of s 22 is inapplicable simply because s 54(1)(a) imposes a prohibition against the keeping of fauna which is of general application irrespective of any proprietary or lesser right in the fauna and so affords no scope for the exercise of any claim of right. That is merely a question of construction of the section. There can be no mistaken belief in any legal entitlement going to intent. Ignorance of the prohibition itself is mere ignorance of the law and affords no excuse."

[17] In Ostrowski v Palmer [2004] HCA 30; (2005) 218 CLR 493 the High Court had the opportunity to speak again about the operation of s 22, but in fact said little about it.[13] In that case the respondent, a commercial fishermen, held a licence authorising him to fish, including for rock lobster, in a designated zone. He had previously conducted other fishing activities, but began to fish for rock lobster within the zone, including within a particular area where fishing for rock lobster was prohibited. He was convicted by a Magistrate but that conviction was set aside on appeal on the basis that s 24 of the Criminal Code applied. On a further appeal the High Court reinstated the conviction, holding that the relevant mistake was one of law rather than one of fact, and the relevant provision was s 22 of the Criminal Code.

[18] Once that point was reached, it was regarded as obvious that s 22 gave no defence. Gleeson CJ and Kirby J, in a joint judgment, said merely at [13]:

"Here the mistake that was made, however it is characterised, was not relevant to any element of the offence charged. Rather, it was a mistake that resulted in ignorance of the existence of the prohibition contained in regulation 34, that is to say, ignorance of the law."

So far as it goes, their Honours' approach is consistent with the approach of Deane J in Walden. McHugh J at [48], [49] said:

"Mr Palmer believed that he was legally entitled to fish for rock lobster in the area where he was fishing. He was operating under this mistaken belief when he committed the offence. His belief was clearly connected to one of the elements constituting the offence, namely, that '[a] person who is the holder of a commercial fishing licence must not fish for rock lobsters at any time in the area described in the table to this regulation.' Mr Palmer's mistake however, was one of law, not fact. ...Mr Palmer made no mistake as to any of the factual elements of the charge. His mistake was he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area. His mistaken belief was not a mistake as to a fact or state of things, but a mistake as to the operation of the law. His case fell within s 22, not s 24, of the Criminal Code. It was ignorance of law that caused him to make the mistake that he did."

This does not involve endorsement of any particular approach to s 22, but it was inconsistent with the notion that Mr Palmer might have had a defence under s 22 because he honestly believed he had a right to take rock lobsters when he was fishing for those lobsters there. There was no analysis of the operation of s 22 in any of the remaining judgments.

[19] Section 22 was considered by the Court of Appeal in R v Waine [2005] QCA 312; [2006] 1 Qd R 458, a case involving allegations of wilful damage where it was held that there should be a new trial on the basis that the jury should have been given the opportunity to consider whether the Crown had excluded a defence of honest belief, on the part of the defendant, that a co-offender had a right to damage the property concerned and had authorised her to participate in that damage. In the Court of Appeal it was submitted that the appellant could not maintain a defence under s 22(2) unless she claimed some right personal to her in the property subject to the charge: [21].

"An erroneous belief that what one is doing is lawful is a mere mistake of law and no defence. What is required to raise the possibility of a defence under s 22(2) of the Criminal Code is an honest claim by the accused to an entitlement in, or with respect to, property. It may be, although it is not entirely clear, that this claim must be one which is peculiar to the person asserting it. It is clear, however, that it is not necessary that the right claimed be one known to the law. It is also clear that the defence afforded by s 22(2) is not limited to offences by which the offender obtains possession of property. The defence is available when the offence relates to the damage or destroying of property. It has been said that the clearest example of the operation of s 22(2) of the Criminal Code is the case where a person does an act with respect to property in the honest but mistaken belief that he or she is the owner of the property. But it is also clearly established on the authorities that an honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property. What is important is the honest belief that one is legally entitled to do to the property that which one is doing. That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one's own title."

[21] In these circumstances his Honour concluded that one who damaged property in the mistaken belief that she was authorised to do so by the owner may honesty claim to be entitled to do what was done to the property in that way, so as to have a defence under s 22. He considered that the case fell within the dictum of Gibbs J in R v Pollard:[14]

"An accused person acts in the exercise for an honest claim of right (in respect to the property the subject of the charge) if he honestly believes himself to be entitled to do what he is doing (in relation to that property)."

[22] His Honour went on to note that the insertions in brackets were in response to the observations of Mansfield CJ in Olsen v Grain Sorghum Marketing Board, ex parte Olsen [1962] Qd R 580 at 585. There is a good deal of language in Waine which, if read literally, would mean that the appellant had a defence under s 22(2). In my opinion however what was said has to be interpreted in the context in which his Honour was speaking, that is, about the applicability of the defence to a charge of wilful damage. One of the elements of that charge is that the damage occurred unlawfully, and ordinarily a belief that the damage has been authorised by the owner of the property would be a belief that the damage was not unlawful. Those statements cannot in my opinion be applied literally in the context of this case, where the issue was not one as to any mistaken belief as to the authority of the owner, but rather a mistaken belief as to what an owner could lawfully do with his property. The analysis in Walden (supra) indicates that such a mistake is simply ignorance of the law which affords no defence, and does not amount to a mistake of law within sub-section (2), even if it could be characterised as a mistake as to the extent of the rights of ownership in property, in terms of the rights afforded by ownership to act in respect of property.

[23] I was also referred to the statements of Gibbs J in R v Pollard (supra), discussed by Keane JA. The same comment can be made about those statements. Pollard was charged with unlawful use of a motor vehicle, and gave evidence that he had not obtained the consent of the owner before using it, but that the owner was his friend and he believed that the owner would not have any objection to his using it, and would have given his consent if asked. It was in this context that Gibbs J said at p 29;

"An accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing. A belief that he may require a right in the future is not in itself enough. If, when he took the vehicle, the accused did not believe that he was then entitled to take it, he did not act in the exercise of a claim of right, and it does not matter for the purposes of s 22 what other beliefs he may have held. On the other hand, if he honestly believed that he was entitled to take the vehicle without obtaining the owner's consent, either because he thought the owner would not object, or because he thought the owner would have given his consent if he had been asked for it, or for any other reason, the taking would have been in the exercise of an honest claim of right."

[24] In analysing what was said in this case it is important to bear in mind the particular basis of the entitlement that the defendant put forward. He asserted a belief in a right to use this vehicle based specifically on his friendship with the owner, that is, a right personal to him. He did not assert a belief in a right to use the vehicle arising, for example, from a belief that anyone had a right to use any vehicle that was not otherwise being used. That would have been simply an example of ignorance of the law. I would not read his Honour's remarks as indicating that a belief in a right to use a vehicle on that basis would be covered by the expression "or for any other reason".[15]

[25] There was some consideration of a defence under s 22 in R v Mill [2007] QCA 150. The appellant was charged with fraud, in that he had applied to his own use money belonging to a company or to an individual. The appellant was at the relevant time the accountant for the company and the individual, and indeed for part of that time the sole director of the company. The Court of Appeal held that the conviction had to be set aside because the jury had not been instructed that the appellant should be acquitted unless they were satisfied that the appellant did not honestly believe he was entitled to apply the money in question by way of payment of fees due to him, or by way of reimbursement of expenses incurred by him, for the company. In that case there was no dispute that the relevant right raised at the trial was a right which, if it had existed, would have been a defence to the charge. The Court however ordered a new trial, on the basis that there was evidence in the Crown case from which the jury were entitled to infer that the appellant had acted dishonestly in relation to the money.

[26] The Court of Appeal subsequently, in R v Dale [2012] QCA 303, held that where a defendant was charged with fraud it was not necessary to leave a defence under s 22 of the Code, since the defendant would not have been convicted unless the jury was satisfied in relation to each count that he was acting dishonestly. Gotterson JA with whom the other members of the Court agreed, said at [37]:

"The Crown case required it to prove beyond reasonable doubt that the appellant was dishonest. If that was proved, then there was no scope for the operation of s 22(2). The jury could not have found that the appellant acted dishonestly yet exercised an honest claim of right in respect of any of the counts. On the other hand, if dishonesty was not proved, the jury would have no need to consider whether an honest claim of right was exercised. Given those circumstances, a direction concerning honest claim of right was unnecessary."

[27] It may be noted that in Dale the defence was conducted on the basis that there was no dishonesty, and it was said that in that context there was no material difference between proof beyond reasonable doubt that the appellant was dishonest and disproof to that standard that he was exercising an honest claim of right without intention to defraud. Accordingly a direction under s 22(2) was not required. In neither of these decisions was there any consideration of the issue raised by the appellant's submission in the present case. I am not aware of a more recent decision of the Court of Appeal considering the operation of s 22(2).

[28] I was also referred to the decision of R v Twose (1879) 14 Cox C C 327. That was a case where the defendant was charged with having set fire to some furze growing on a common. The report does not indicate the source of the offence charged, but it was almost certainly the Malicious Injuries to Property Act 1861 (24 and 25 Vic Ch 97) s 16, which made it an offence unlawfully and maliciously to set fire to various things including furze. In these circumstances it is unsurprising that the jury was directed by his lordship that they had to consider two questions: did the defendant set fire to the furze and if so, did she do it unlawfully and maliciously. His Lordship's comment, that if she set fire to the furze thinking she had a right to do so, that would not be a criminal offence, may be a reflection of the common law principle that was incorporated in s 22(2) by Sir Samuel Griffith, or it may simply reflect the fact that, if she thought she had a right to set fire to the furze, she was not acting maliciously. The case may perhaps throw some light on the operation of s 463 of the Criminal Code, which essential reproduces s 16 of the English Act of 1861,[16] but I do not think that the case throws any light on the application of s 22(2), and the question of whether it is applicable in the present case, particularly in circumstances where its applicability really depends on the application of the decision in the High Court of Walden.

[29] In my opinion the decision in Walden does govern this case, and the effect of the interpretation placed on s 22 by Deane and Dawson JJ is that the right which a person must honestly believe to exist must be a right which if it did exist would be a defence to the charge, without the law being different from what it is. If the right believed to exist is simply a right to do something with respect to property which the person does not possess because the law is different from what it is believed to be, that is not a defence but simply ignorance of the law; it falls within s 22(1). This is not a case where the appellant honestly but mistakenly believed he was the owner of the land, and did the act which would not have been an offence if he was. There was no mistake that he was the owner of the land, but his having that right did not mean that he did not commit the offence. It was an offence of general application irrespective of any proprietary or lesser right in the land, and so afforded no scope for the exercise of any claim of right, except in respect of the existence of an effective permit, an issue not raised by the evidence in this case. That is shown clearly by the comments of Deane J when discussing charges of driving a motor vehicle without a licence, or taking minerals from a natural forrest. The latter affords a close analogy to the present case in my view, and means that there was no need to consider a possible defence under s 22(2) of the Code. Accordingly, the Magistrate did not err in failing to do so. This ground of appeal also fails, and the appeal against conviction is dismissed.

[30] The only ground relied on in this part of the appeal was that the sentence imposed was manifestly excessive. For the purposes of an appeal under s 222 against sentence, the principles laid down in House v The King (1936) 55 CLR 499 at 505 apply. In this respect the exercise of discretion by the Magistrate will stand unless the appellant can show one of the errors identified in that case. That the sentence was manifestly excessive is one of those matters. It arises when the appellate Court is satisfied that the sentence imposed was out of the range of sentences that could have been properly imposed so that there must have been some error in the sentencing process even if that error cannot be identified.[17] It is a conclusion that does not admit of lengthy exposition, but it is relevant to consider the circumstance of the offending and the personal circumstances of the offender.[18] In that case the question was whether the sentenced imposed was manifestly inadequate, and the High Court held that a conclusion by the Court of Criminal Appeal, that the original sentence was justified in the light of comparable cases, in particular two which were said to be closely comparable, was correct.

[31] In the present case I was told that there have been no decisions of the Court of Appeal dealing with sentences for offences under this section in relation to land clearing. I was provided, as was the Magistrate, with a schedule of sentences which were imposed in other cases by Magistrates, and some information about the relevant circumstances in each case, though not very much. As to the significance of other sentencing decisions, the High Court in Wong v The Queen [2001] HCA 64; (2002) 207 CLR 584 said at [59]:

"Recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

[32] In Hili v The Queen (supra) at [54] the Court approved a statement by Simpson J[19] that:

"A history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. ... Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. But the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence. Past sentences are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. When considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned."

[33] In the present case there was a good deal of information as to the circumstances of the offending available to the Magistrate, and recorded in his reasons for sentence; there was much less information as to the personal circumstances of the appellant.

[34] Apart from these factors, it has also been said that, to determine that a sentence is manifestly obsessive, it is necessary to view it in the light of the maximum penalty prescribed for the offence.[20] The maximum penalty for the offence was 1665 penalty units. The respondent said and it was not disputed that at the relevant time for this offence each penalty unit was $75.00, so the maximum fine that could be imposed was $124,875.00. It can be seen therefore that the penalty imposed, though not the maximum, was quite close to it.[21] The Magistrate took into account when imposing penalty the terms of the Vegetation Management Act 1999 s 60B, a section headed "guide for deciding penalty for vegetation clearing offence" in the following terms:

"(1) The purpose of this section is to provide a guide for a court in deciding the penalty to impose on a person for a vegetation clearing offence.

(2) Without affecting the maximum penalty the court may impose under the Planning Act for the offence, the court may take the following levels of penalty to be appropriate in the absence of circumstances of mitigation -

(a) for each hectare of vegetation cleared unlawfully in a remnant endangered regional ecosystem or declared area - 30 penalty units;

(b) for each hectare of vegetation cleared unlawfully in a remnant of concern regional ecosystem - 24 penalty units;

(c) for each hectare of vegetation cleared unlawfully in a remnant not of concern regional ecosystem - 18 penalty units.

(3) This section does not limit the matters to which the court may have regard in deciding the penalty.

declared area means an area of high nature conservation value or an area vulnerable to land degradation. "

[35] There are several things which emerge from this provision. The first is that, as made clear by the introductory words of sub-section (2), the section does not affect the maximum penalty. The second is that the section draws a distinction, for penalty purposes, between whether vegetation cleared unlawfully was in a remnant endangered regional ecosystem or declared area, in a remnant of concern regional ecosystem, or in a remnant not of concern regional ecosystem.[22] This can I think be taken as an indication that the legislature viewed some types of clearing as more serious than others, even though the same maximum penalty was imposed for the offence overall. In the present case, it was alleged by the respondent, and accepted, that the relevant vegetation cleared was that in sub-section (2)(c).

[36] The third point is that the legislature appears in formulating this section to have assumed that the area cleared unlawfully, to be the subject of a penalty in accordance with this guide, would be relatively small. In the case of remnant endangered regional ecosystem, with the guide figure of 30 penalty units per hectare in sub-section (2)(a) the maximum penalty would be reached by the clearing of 55.5 hectares, while the maximum penalty would be reached by the clearing of 92.5 hectares of remnant not of concerned regional ecosystem. Unfortunately, the legislature has not provided any guidance as to the interrelationship between this guide and the maximum penalty in circumstances where the area cleared was such that the application of the guide in a mathematical way would produce a penalty in excess of, or even just approaching, the maximum penalty.

[37] There are different ways of course in which a statutory maximum can be imposed; one way is simply to treat it as a barrier, so that the process of assessment will proceed initially without regard to it, and then it is simply applied as a cut-off point. This was the approached adopted at one time in the application of the maximum payment for compensation payable under the Criminal Code chapter 65A.[23] If that were the correct interpretation of s 60B, it means that the magistrate ought in this case to have imposed the maximum penalty, and indeed that one would fairly rapidly run into the maximum penalty whenever there was a clearing of any significant area of vegetation.

[38] That would involve a significant departure from the ordinary approach to sentencing, in particular in relation to the limitation on the circumstances in which a maximum penalty is imposed. It is well recognised that a maximum penalty prescribes what the penalty should be in the worst type of case, though not necessarily the worst imaginable, bearing in mind both the nature of the crime and the circumstances of the criminal.[24] The application of this principle applies also in the case of penalties near the maximum penalty.[25] In my opinion if this well established sentencing principle is to be overturned, it requires a more clear expression of the legislative intent than that contained in s 60B.

[39] The magistrate in passing sentence referred to various matters, as being relevant features of the offending, and as being aggravating or mitigating circumstances. There was no particular challenge to, or criticism of, any of the findings made by the magistrate in relation to sentence, so generally speaking I can proceed on the basis of the facts found by the magistrate for the purpose of sentence. The area in question was found to be 1,819 hectares, and it was accepted that it was in the least serious category of vegetation in s 60B of the Act, but that did not mean that clearing such vegetation was of no consequence. The magistrate found that the function of the legislation was to preserve the native environment for future generations, and to prevent the loss of natural trees as a greenhouse gas processing mechanism. The magistrate said that he took into account s 9 of the Penalties and Sentences Act, noting that one relevant factor was deterrence. The magistrate did not indicate whether he was speaking of general or personal deterrence, but in circumstances where the magistrate found that the appellant had shown no remorse, and had displayed a reckless and wilful disregard of the law, when he must have known that restrictions on clearing land without a permit existed (p 6), some element of personal deterrence was relevant, as well as an element of general deterrence.

[40] The magistrate said that there was expert evidence that there had been some impact upon the fauna, flora, biodiversity and greenhouse gas emissions in the area cleared but the precise impact of some of those matters was difficult to gauge. For example, there was some argument about whether there was a particular species of wallaby near the area concerned, a proposition disputed by the appellant, and the magistrate appears to have proceeded on the basis that, although there might be no particular animals of that species within the area actually cleared, they might have been affected indirectly by what had happened, because of an overall contraction in habitat. The magistrate took into account the guide in s 60B, as indicating that he had to take this case very seriously when it came to penalty, although he was conscious of the fact that, if applied mathematically, the guide indicated a penalty of about $2.5 million, which was far in excess of the maximum penalty, which he could not exceed.

[41] The magistrate regarded it as a mitigating factor that the clearing occurred in a drought and that the trees were cleared to feed cattle rather than for the purpose of using the land in some other way, and there was said to be no commercial intent; I assume that this was a reference to his not clearing the land in order to use it for some other commercial purpose, or to sell it for profit. It was noted that regrowth had occurred, and that the appellant had no previous convictions. The area cleared was said to be very large indeed, which was regarded as an aggravating factor, as was what was said to be a reckless or wilful disregard of the law. The magistrate said he took into account, but did not place much emphasis on, evidence suggesting that the value of the property had been increased by $30,000 as a result of this clearing, which he regarded as not a significant amount.[26]

[42] The magistrate said that the land had now been classified as non-remnant which meant that it cannot be regenerated again, but noted that substantial regeneration would occur if regrowth was allowed: pp 6, 7. That suggested the magistrate did not regard the formal reclassification of the land as a matter of significance. He noted that there had been no cooperation with the authorities. He referred to comparable cases, decisions of other magistrates which suggested that the penalties for this sort of offence were (as he put it) very high indeed, though he recognised that each case was different: p 5. He also took into account that most of those cases involved people who had pleaded guilty and cooperated with the authorities, which did not apply in this case: p 7. He was also referred to one District Court decision on appeal, though only for the purpose of showing that s 60B was a relevant factor to take into account.

[43] That was Dore v State of Queensland [2004] QDC 364, where three appellants, brothers who were joint owners of certain land, had pleaded guilty to two charges, one of the offence under the Integrated Planning Act, and one of a Land Act offence in relation to a gazetted but unused road which crossed part of the area cleared. The clearing occurred over a much smaller area than in the present case: 27 hectares of s 60B(2)(a) land and three hectares of s 60B(2)(b) land in respect of the Integrated Planning Act offence, and about 0.7 of a hectare of the former land in relation to the Land Act offence. Each was fined $15,000 for the former offence and $3,000 for the latter. They had pleaded guilty before the Magistrates Court, where they were legally represented, but were self-represented on appeal against conviction and against sentence, both dismissed.

[44] There was in that case expert evidence before the magistrate that the clearing would have an adverse impact on flora and fauna, including rare and threatened species, though her Honour noted that the appellants had suffered severe economic consequences as a result of their actions, including the cost of restoring the land and an inability to use it for farming purposes: [33]. The fines were somewhat lower than that derived by the application of the formula in s 60B. There was no discussion by her Honour as to how that section should apply, and the fines imposed in that matter were obviously very much less than the maximum, so the issue arising in the present case did not arise. Apart from confirming that s 60B is a relevant factor for sentencing, the circumstances are really so different that the decision is of little relevance in the present case.

[45] It was not argued that there was any specific error of law on the part of the magistrate exposed in the sentencing remarks, although my reading of them raises two issues. At p 7 the magistrate, after noting an absence of remorse, properly characterised as an absence of a mitigating factor, said "you have pleaded not guilty and run a trial and that is a factor which I do take into consideration as being an aggravating factor". That was clearly wrong. The Penalties and Sentences Act 1992 provides in s 13 that a court must take a guilty plea into account in imposing a sentence and may reduce the sentence that would have been imposed had the offender pleaded not guilty. It is, however, well-established that, although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial.[27]

[46] The magistrate at p 2 mentioned s 48 of the Penalties and Sentences Act, which in subsection (1) provides that, if a court decides to fine an offender, in determining the amount of the fine and the way in which it is to be paid the court must, as far as is practicable, take into account the financial circumstances of the offender and the nature of the burden that payment of the fine will be to the offender. The magistrate merely said that nothing had been placed before him to indicate that the appellant did not have an ability to pay a fine, but at the sentencing hearing the defendant was not legally represented, and it appears from the transcript that the issues covered by s 48 were not raised by the magistrate with the appellant during the hearing. Section 48(2) permits the court to fine an offender "even though it has been unable to find out about the matters mentioned in subsection (1)(a) and (b)", which suggests that what the legislature requires of a court deciding to fine an offender by s 48 is not merely to take into account information about the matters referred to in subsection (1) which happens to be placed before the court, but actively to seek that information. That would apply particularly in a case where a defendant was not legally represented. I have previously held that a failure to comply with s 48(1) amounts to an error of law, but there was no ground advanced in the present case seeking to rely on this error, or indeed the other error, in the appeal against sentence.

[47] On the hearing of the appeal I was provided with a table of comparative cases which was said to be the same as that provided to the magistrate. It refers to the decisions in Dore and six other cases, and identifies the area cleared, the category of vegetation concerned, any valuation increase, the extent of cooperation, any mitigating factors, the notional penalty under s 60B, the penalty imposed, and a small number of other factors. The areas cleared were all significantly smaller than the area cleared in the present case, though some involved significant areas of paragraph (a) or paragraph (b) vegetation. The defendants were generally of otherwise good character with no prior convictions. The notional penalty under s 60B was generally far in excess of the maximum penalty under the Integrated Planning Act. The fines imposed, apart from in Dore, ranged from $50,000 to $112,000, but four of the penalties were $90,000 or more. There was, of course, no information provided as to how the various magistrates applied s 60B in arriving at these figures.

[48] I was also told of another appeal to the District Court, where the penalty imposed was reduced. A fine of $30,000 was imposed on appeal after accepting additional expert evidence that the clearing did not have an adverse environmental effect, and where the appellant had pleaded guilty, had cooperated with the investigation, and did not deliberately disregard the law. I was not provided with a transcript of his Honour's judgment, and have not been able to obtain a copy from his Honour.[28] In those circumstances the decision is necessarily of little assistance to me.

[49] Overall, it seems to me that the comparable decisions available to me are of little assistance, because they do not contain the sort of detail which the High Court in Wong and Hili (supra) indicated was what mattered. It also concerns me that the sentences imposed in those matters may have failed to take into account the consideration that, when applied to a relatively large area of cleared land, a mechanical application of s 60B will rapidly produce a sentence which is inappropriately close to the maximum penalty provided for the offence. I consider that in the present case the magistrate erred in failing to have sufficient regard to the maximum penalty provided for the offence, and placed too much reliance on the guide in s 60B, in circumstances where a mechanical application of that guide produces a result which is utterly inconsistent with the maximum penalty provided.

[50] In my opinion the present offence, notwithstanding that it did involve clearing a very large area of land, a larger area than in other cases, was not an example of the worst type of offending under this section of the Integrated Planning Act. The factors mentioned by the magistrate, that this land was in the least serious of the three categories of s 60B(2), that the offence was committed for the purpose of providing fodder for cattle during a drought, a factor which would probably have resulted in some permits being issued anyway for some of the clearing had the permits been properly applied for, that the appellant was allowing the land to regenerate naturally, and that he had no previous convictions for this, or indeed any, offence, all serve to take this offence well outside the worst type of case. In those circumstances, to impose a fine which was 94.5% of the maximum fine was, in my opinion, to impose a fine which was manifestly excessive. In my opinion, the magistrate erred in attributing too much significance to a mechanical application of s 60B, and insufficient significance to the maximum fine permitted by the legislation, and the sentencing principle that the maximum penalty, or penalties close to the maximum, should be reserved for the worst type of cases.

[51] Because this issue arises in the context of an offence under the Integrated Planning Act to which s 60B of the Vegetation Management Act 1999 applied, I have considered the question of the significance of the maximum penalty, and the proposition that that penalty should be reserved for the worst type of case, only in the context of offences which are vegetation clearing offences. That is to say, I am considering the question not in terms of what would be the worst type of any sort of case which could fall within s 4.3.1 of the Integrated Planning Act, but only in terms of the worst type of vegetation clearing case. That seems correct in principle because the issue is as to the effect of s 60B, and was assumed in the way the appeal was argued.

[52] Accordingly, the sentence imposed by the magistrate must be set aside, and I will resentence the appellant. That raises two issues. The first is that I consider that the appellant should be given the opportunity to put material before the court in relation to the matters referred to in s 48(1) of the Penalties and Sentences Act, something which has not yet occurred. On resentencing, I must take that material into account unless I am unable to obtain it. There is also the consideration that s 60B was repealed in 2013. It appears to follow from the respondent's submissions that, if the appellant is to be resentenced, I do not now take s 60B into account, since he is to be resentenced on the basis of the law as it now stands, but I will seek confirmation of that.

[53] There is one further matter. On the hearing of the appeal, an attempt was made to refer me to photographs taken recently with a view to showing that significant regrowth has occurred on the cleared land since the offence was committed. I refused to accept that evidence as fresh evidence for the purposes of the appeal, in circumstances where there was no proper material before me proving up the photographs, where the proposal to lead fresh evidence on the appeal had not been foreshadowed, and where the additional material had only been provided just before the hearing so that there was no opportunity for the respondent to respond to this material in any meaningful way. It may be however that that material can be properly put before me on resentencing. Accordingly, when I publish these reasons I will arrange a further hearing to enable submissions on resentence to be made before me. I will also invite submissions on the question of the costs of the appeal.

[1] Strictly speaking, was criminally responsible for the clearing, a matter dealt with by the magistrate, reasons p 15, and not raised on the appeal.

[2] See Justices Act 1886 s 76; Kirkpatrick v Bartlett [1936] SAStRp 2; [1936] SASR 10; R v Edwards [1975] QB 27; Lynch v Attwood [1983] 3 NSWLR 1; but see Macarone v Mckone ex parte Macarone [1986] 1 Qd R 284.

[3] Vegetation Management Act 1999 s 70B.

[4] MacDonald et al, Real Property Law in Queensland (3rd Ed 2010) p 270.

[5] McCartie p 2 - 49-51; accepted by the magistrate, reasons p 14.

[6] Applying Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2005] QCA 231 at [23].

[7] Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 at [16].

[8] Walden v Hensler, ex part Walden [1986] 2 Qd R 490.

[10] R v Pollard [1961] QWN 13.

[11] If the mistake was one of fact, it would be necessary for him to come within s 24 of the Criminal Code.

[12] One example would be if the relevant authority had purported to issue a permit authorising the relevant clearing, but the permit was, unknown to the land owner, invalid because of some error of law in the process by which it was issued.

[13] The case actually concerned s 22 of the Western Australian Criminal Code, which is effectively identical to the Queensland section.

[14] [1962] QWN 13 at 29.

[15] Alternatively, if his Honour did have a wider view of the operation the section, it cannot stand in the face of the majority view in Walden.

[16] By way of the Injuries to Property Act 1865 s 17.

[17] Hili v R [2010] HCA 45; (2010) 242 CLR 520 at [60].

[19] In Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 at [303]. Emphasis added by High Court.

[20] Hishmeh v Western Australia [2012] WASCA 183 at [46].

[21] Approximately 94.5% of the maximum.

[22] A case of not being able to see the forest for the jargon.

[23] R v Jones, ex parte McClintock [1996] 1 Qd R 424.

[24] Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478_; R v Whye_ [1997] QCA 320;

[25] R v Wallace and Short (1978) 67 Cr App R 291 at 299; R v Macri (1979) 1 A Crim R 299, at 304,5.

[26] It occurs to me that if regrowth was allowed to occur, this would be a transient, probable hypothetical, benefit.

[27] Siganto v R [1998] HCA 74; (1998) 194 CLR 656 at 663; Cameron v R (2002) 209 CLR 339 at [12].

[28] He did not have a copy; regrettably, transcripts of ex tempore decisions are not now routinely made available to judges.