Smith v Visser [2001] TASSC 40

Nitschke v Halliday (1982) 30 SASR 119; R v McInerney (1986) 42 SASR 111, distinguished.

Judgment ID Number: [2001] TASSC 40

1 The applicant seeks to review a fine of $7,000 imposed against him in a court of petty sessions at Launceston on 27 October 2000. Counts 5 and 6 in a complaint had been found proved, following a defended hearing. Count 5 alleged that between 3 and 12 March 1998, he occupied land in a State forest without lawful authority, contrary to the Forestry Act 1920, s46(1)(a). Count 6 alleged that between the same dates he unlawfully interfered with the operation of vehicles and equipment in an area of State forest in which forest operations were being carried out, contrary to the Act, s46(1A).

2 The nature of both his occupation and interference was to occupy a tree-house in a tall tree which forestry workers proposed to fall for the purpose of constructing a road leading to a coupe in which logging operations were to be carried out. By so occupying the tree, in the circumstances established by the evidence, he was guilty of count 5. Because he was occupying the tree, construction vehicles and equipment could not attend to the construction of the proposed road at that point, and his conduct amounted to interference with the operation of the vehicles and equipment in the circumstances of the case, thereby making him guilty of count 6. However, the learned magistrate accepted the submission of the applicant's counsel that it was inappropriate to penalise the applicant with respect to both offences, because his conduct amounted to one transaction. His Worship determined to sentence only on count 6 and to dismiss count 5. See Connolly v Meagher [1906] St R Qd 125 at 131, R v Gordon ex parte Attorney-General [1975] Qd R 301 at 323 and R v Darlow unreported 42/1992 at 4.

3 The grounds of the motion, which were argued, were:

"2 That the fine imposed is manifestly excessive in all the circumstances.

3 That the learned Magistrate erred in that he failed to take into account as a matter relevant to the determination of the appropriate sentence the fact that between the commission of the offence and the imposition of the sentence, the legislation which created the offence in respect of which sentence was being imposed, and prescribed the relevant penalty, was repealed.

4 That the learned Magistrate erred by finding that the actions of the appellant had held up forestry work for about one week at a critical stage of the development, and imposed sentence on that basis, when that fact was not open on the evidence adduced on the trial."

4 The applicant occupied the tree-house on or very close to the proposed road being constructed over a length of 1,300 metres. The road construction operation commenced on 3 March 1998 and he was already up the tree on that day. The initial process involved marking the road-line, falling trees along it and then bringing in an excavator to clear the fallen timber away before the road construction actually commenced. The timber felling commenced on 3 March. Because of the applicant's occupation of it, his tree could not be fallen, nor other trees around to a radius of about 70 metres. However, trees further away were fallen. On 10 March an excavator came on site and on 11 March it commenced to work. On that day it carried out work elsewhere. On 12 March it moved up to the tree occupied by the applicant, and because of his occupation, moved around the tree. That process took about an hour and the excavator then worked on clearing the balance of the road. The applicant was removed from the tree later on 12 March. The tree was fallen on the morning of 13 March.

5 When giving reasons for his decision that the charges had been proved, on 4 September 1998, the learned magistrate found that the tree would have been felled on 3 March if it had not been for the applicant's unlawful occupation of the tree, but other work was available to be done. His Worship said that the operations took seven days instead of the originally expected three days. There was in fact evidence that the operations were delayed in that regard, but not only because of the applicant's occupation of the tree. It was also caused by the protest activities of others.

6 In mitigation, counsel for the applicant, explained to the learned magistrate that the applicant was aged 54 years and had two children. He had no prior convictions. He had a doctorate in electrical engineering and for many years worked for the Commonwealth in a research capacity. At the time of the hearing he was the operator of a small electrical engineering business. His occupation of the tall tree could be better understood having regard to his long-standing interest and aptitude in climbing activities. He had trained climbers over many years.

7 The prosecutor put to the learned magistrate that:

"One should also bear in mind that he was probably one of the principal players involved because whilst he may have had a fairly lonely spot sitting on top of the tree, the fact is that he had access to the outside world, I'm not sure whether he had his computer, I believe he had, but he certainly had a mobile phone and he was actively speaking to the outside world to try and publicise as much as he could the activities of the forestry actions that had been taking place. He was the one that most things were centred around in the sense that he was the central picture. He was in fact called Hector the Tree Protector, or words to that effect. ... It was a well organised protest which had been obviously organised well in advance and that submission was put to you by the prosecution on all the other matters where this had been well and truly a pre-planned exercise because you will recall Mr Cadman in fact and others of the forestry protesting group had gone through the forestry weeks before in an endeavour for forestry to appease the opposition to the forestry. ... Therefore they knew exactly where the road was going to be, they new exactly the process that forestry was going to take place. ... It is quite clear that it was well-planned and it cost the State and the private forestry firms hundreds of thousands of dollars in lost revenue and expenses and put the police to excessive manpower being put towards this protest. It was quite an expense to the police department as well. So it was a well organised protest which cost the community quite an extensive amount of money and inconvenience. And as I say he was one of the principal persons involved. He was the one that stayed there throughout the whole period because he's been charged over the whole period."

8 There were references in that submission to other persons who had also offended in the same forest, in association with the applicant's offending. However, while his offence extended over a period of 10 days, their offences did not involve such a long period of time.

9 When the offence in count 6 was committed by the applicant, the penalty prescribed by s46(1A), was a fine not exceeding $20,000 or imprisonment for a term not exceeding 12 months. The Act created a considerable number of offences which were mainly designed to counter the activities of protesting greens and other so-called environmentalists, whose object was to prevent forestry operations. The meaning of some of the provisions containing the various offences had been found difficult to interpret in some cases and it might be thought that the legislation was unduly intricate and complicated.

10 Between the date of the applicant's offence in March 1998 and the date upon which he was sentenced on 27 October 2000, substantial amendments were made to the Act. All of its relevant offences were repealed and replaced by much simpler provisions. The Forestry Amendment (Miscellaneous) Act 1999 came into force on 1 January 2000. It repealed several parts of the principal Act, including Part VI, which had created a considerable number of offences, including the offence charged in count 6. It inserted into the Act a new Part IV, which contained a new s25. Under it the Forestry corporation was authorised to erect signs on or in respect of forest roads, forest reserves and other land in State forest, and by subs(2) it was made an offence for a person, without lawful excuse, to undertake an activity or engage in conduct in such places contrary to the directions of the corporation expressed on a sign authorised by it, or contrary to the directions of a police officer. The prescribed penalty was a fine not exceeding $2,000. By subs(4) a police officer, who reasonably considered that a person was offending under subs(2), was authorised to direct that person to leave such place, and by subs(5) a person who failed to comply with such a direction by a police officer committed an offence, the penalty for which was also a fine not exceeding $2,000. By a new s26, the closure of forest roads in certain circumstances was authorised and by subs(5) it was made an offence for a person to drive or use a vehicle on a forest road, or a section of it, that had been closed in accordance with the section. The prescribed penalty was a fine not exceeding $500. No other offences, which may have been directed to suppress the activities of forest protesters, were created by the amending Act.

11 Having regard to the provisions of the Acts Interpretation Act 1931, s16(1), the applicant was liable to the penalty prescribed by the legislation which was in force at the time of his offence. It can be seen that if the new legislation had been in place at the time he sat in the tree, the maximum penalty to which he could have become liable for an offence under it would have been a fine not exceeding $2,000. The fine imposed by the learned magistrate, $7,000 was substantially greater than that.

12 It was submitted to the learned magistrate by the applicant's counsel, that account should have been taken of the change in the legislature's attitude to forest protest offences and reference was made to some South Australian authorities to which I will refer shortly. His Worship quipped that a case to do with anything can be found in the South Australian State Reports. Certainly they are the source of much authority for cases which come before justices. Purporting to rely on authorities from that State's Supreme Court, counsel for the applicant submitted to the learned magistrate that the repeal of the offence of which the applicant had been found guilty, removed the need for a sentence of general deterrence to be considered as a factor when exercising the sentencing discretion. Counsel pointed out that what the applicant had done was no longer an offence, a matter which counsel submitted was "significant".

13 It may be observed that if the applicant had performed his tree-sitting activities when the new statutory provisions were in place, it is nevertheless likely that he would have been doing so contrary to the Forestry corporation's directions on signs and contrary to the directions of police officers and that his activities would nevertheless have amounted to an offence. Quite possibly more than one would have been charged. Of course, the penalty for each could only have been a fine not exceeding $2,000.

14 I turn to the South Australian cases. Nitschke v Halliday (1982) 30 SASR 119 was a case of the severity of the penalties prescribed for a particular offence being legislatively lessened between the commission of the offence and the imposition of the sentence. King CJ at 123 - 124 said:

"It seems to me that the situation in relation to the exercise of the discretion has been altered by the amending Act. At the time at which this case came before the learned Special Magistrate, Parliament had abandoned the viewpoint that the safety of the public required that imprisonment be imposed for a second or subsequent offence and had substituted a new viewpoint to the effect that not only was it unnecessary but that indeed imprisonment was not an appropriate punishment for this type of offence, even for a second or subsequent offence of this kind. In those circumstances it seems to me that it was wrong to treat the attitude of the legislature as having the same force in opposition to the mitigating factors pointing in the direction of the merciful exercise of the discretion as it had possessed prior to the amending legislation. A new legislative viewpoint and policy were in existence when the Magistrate had to consider whether he should exercise his discretion to refrain from convicting, and to treat as a factor contrary to the exercise of the discretion a Parliamentary policy and viewpoint which had by then been abandoned, seems to me to be wrong.

I think, therefore, that the learned Special Magistrate took too rigid a view of the factors which he could take into account in exercising his discretion. He took the view that he must approach the matter as if the amending Act had not come into existence. I think that he was wrong to do that - indeed, I think that, on the contrary, he was required to consider in exercising his discretion that the legislative policy in favour of imprisonment for a second or subsequent offence of this kind had been abandoned and that therefore that reason for not exercising the discretion had now gone. In my view it would still be wrong to use the powers under s4 deliberately to circumvent the provision for mandatory imprisonment which existed in the Act at the relevant date, but that is not to say that where there are proper factors leading to the conclusion that the discretion should be exercised in favour of refraining from convicting, those factors should not be given effect to by reason of a legislative policy which at the relevant time of the hearing before the magistrate had ceased to exist.

In my view, therefore, the Magistrate failed to take into account a factor, which he was required to take into account in deciding how to exercise his discretion. I think, therefore, that his exercise of discretion has miscarried and the case should go back to the Magistrate for him to consider the matter further and exercise his discretion according to the law."

15 In R v McInerney (1986) 42 SASR 111, which was also a case of the severity of the penalty for an offence being lessened, the court confirmed what was said in Nitschke's case. Cox J, at 125, held that the sentencing judge, from whose sentence the appeal had been brought, had erred by not taking into account the change in legislative policy.

16 The learned magistrate dealt with the submissions concerning the change in the legislation in his comments on passing sentence, which were:

"The law as it was when you offended, provided for a maximum penalty of a prison term of 12 months, or a fine of $20,000. Your counsel has made further submissions in relation to that given that the penalty, well the law itself has changed and the penalty provisions have been measurably lowered. And those submissions have to do with the invitation to now have regard to the existing penalty provisions rather than the penalty provisions that were in existence at the time you committed the offences. I reject that submission. I reject it principally for the reason that many other offenders were dealt with under the former legislation and those offenders were dealt with variously by receiving quite heavy penalties by way of fine. Some of the fines amounted to some thousands of dollars. For this Court then to treat with you differently would be unjust. Therefore, I deal with you on the basis that the penalties provided for, namely the $20,000 fine or 12 months' imprisonment, are the appropriate maximum penalties to have regard to, which I do.

Your activity of tree-sitting, if it may be described as such, held up forestry work for about a week, or something slightly over that, during what I am informed was a critical phase of the project. The tree in which you occupied was in direct line to a roadway which was proposed to be made into the forest. You knew of that before occupying that tree. You had no compunction whatever about preventing others from going about their lawful work and earning their livelihood. This was an activity outside the bounds of legitimate protest and amounted to an arrogant asserting by you of your view over the rights of others to pursue their lawful and gainful employment. Your activity is deserving of condemnation and it was an activity which showed a blatant defiance of and contempt for the law.

You are convicted upon the remaining charge and you are fined $7,000. You will pay the costs of $114.44."

17 It can be seen that the learned magistrate purported to reject the submission that he should have regard to the new penalty provisions rather than the previous ones "principally for the reason that many other offenders were dealt with under the former legislation" and that it would therefore be unjust to treat the applicant upon the basis that the maximum penalty was $2,000 and not $20,000 or 12 months' imprisonment. His Worship had heard a number of cases in which persons were charged with unlawfully interfering with the operations of vehicles contrary to s46(1A), being the offence for which the applicant was fined $7,000. Before me counsel provided information concerning some of those cases and the penalties which were imposed. On 5 March 1998 one Franks was found having locked his arms into a metal pipe which was concreted into the road. He refused to move when directed to do so. However, at about 3pm that same day he removed his arm and ceased to be an obstruction. He had no prior convictions. He pleaded guilty to obstructing police and to the unlawfully interfere charge for which the applicant was fined $7,000. On the first charge he was fined $750 and on the second charge he was fined $2,000. He was ordered to pay $580 damages. Franks had been positioned at the right rear of a Datsun sedan which was blocking the road and restricting vehicle access to a logging area. In the vehicle was one Fairlie, who was lying on his stomach on the floor, the seats having been removed. A hole had been cut in the floor and he had placed his right arm through the hole and into a steel pipe, which had been embedded in concrete in the road. He had been in that position the previous day, but vehicles had been able to get round him. Over night protesters had cut away the unblocked section of the road, making what he was doing a more effective obstruction. It was necessary to use earthmoving machinery, a jack-hammer and cutting equipment to remove him, which was achieved by 2.30pm. He pleaded guilty to the same offence committed by the applicant and was fined $2,000 and ordered to pay damages of $370. For obstructing the police he was fined $750 and ordered to pay damages totalling $975. There is no indication that he had prior convictions.

18 On 16 March 1998 one Weate committed the same offence and also obstructed police. He was subsequently fined $2,000 and $750 respectively. On 8 April 1998 one Weldrick committed the same offence and also the offences of obstructing police and preventing free passage of a vehicle on a public street. He was fined $2,000 for the same offence as was committed by the applicant and $750 and $250 respectively for the other offences. On 6 April 1998 one Jack ran underneath a log truck, placed a metal pipe around the rear axle and inserted her arms in the ends of the pipe. She refused to move. Police managed to remove her arms from the pipe. It does not appear that she obstructed operations for very long. For the same offence as that committed by the applicant and also for obstructing police she was fined a total of $750 upon her pleas of guilty.

19 It can therefore be seen that the learned magistrate imposed a far more severe fine in the case of the applicant, compared to the fines imposed against other persons who committed the same offence in the same area of forest within the space of a month or so in 1998. Most of the others were fined $2,000 for that offence and none of them were fined more than that, although some were also fined a further amount for an additional offence or offences and some were ordered to pay damages. In the applicant's case, those who may have suffered damage by his actions chose not to make a claim against him.

20 The South Australian cases can be distinguished from this one. They concerned a legislative lessening of the severity of prescribed penalties for a particular offence. That is not what occurred here. The offence of which the applicant was convicted was repealed, along with its prescribed penalty. In that circumstance, the Acts Interpretation Act 1931, s16(1), maintained the liability of the applicant to be convicted of the offence and to suffer a penalty up to the limit of the previously prescribed maximum.

21 It is possible that if the applicant's activities had been committed under the present legislative scheme, he may only have been charged with one count of an offence for which the prescribed penalty is a fine not exceeding $2,000. But it is equally possible that he may have been charged with and convicted of a number of charges, which might have resulted in him being fined a total of substantially more than $2,000. His activities occupied a period of about nine or 10 days, as I understand the position. Having regard to the present legislation, it is likely that such activities would have been performed by him contrary to the directions of the corporation expressed on a sign authorised by it. It is also likely that he would have been the subject of directions on more than one occasion from more than one police officer, and if he had remained in the tree contrary to those directions then on each occasion he would have been committing another offence. For repeatedly offending over a period of nine or 10 days it would have been a weak argument that he should only have been the subject of a penalty not exceeding $2,000 on one count only.

22 Counsel for the respondent conceded that the learned magistrate erred when he determined to reject the submission made on the applicant's behalf concerning the change in legislative policy. I am not convinced that in the circumstances of this case, his Worship was wrong to reject it. He was not holding that there was no merit in the submission and that it could have no weight in any case whatever. His rejection of it was expressed only upon one basis, that being that it would be unjust that the applicant should be treated more leniently, in comparison with a number of other people who had already been dealt with by the magistrate, because of the legislative change. I think he was right. Without that consideration, his Worship may well have been persuaded to accept the submission.

23 I turn to ground 4. In the course of his comments on passing sentence, the learned magistrate said to the applicant:

"Your activity of tree-sitting, if it may be described as such, held up forestry work for about a week, or something slightly over that, during what I am informed was a critical phase of the project. ... You had no compunction whatsoever about preventing others from going about their lawful work and earning their livelihood. This was an activity outside the bounds of legitimate protest and amounted to an arrogant asserting by you of your view over the rights of others to pursue their lawful and gainful employment."

24 The learned magistrate erred when he said that the applicant's activity had held up forestry work for about a week, or something slightly over that. Both counsel agreed that although what the applicant did amounted to an obstruction for the period of time referred to by his Worship, the forestry operations, and particularly the work of the excavator, were in fact only held up for an hour or so by what he did. However, he and other offenders brought about the need for a considerable number of law enforcement officers to be present at the scene over a period of many days. As mentioned earlier in these reasons, the learned magistrate said, on 4 September 1998, when giving reasons for finding that the charges against the applicant had been proved, that the operations took seven days instead of the originally expected three days. The extra time was certainly not due only to the activities of the applicant. The collective activities of a number of offenders caused the totality of it.

25 Ground 4 has therefore been made out. Counsel agreed that for that reason alone the motion to review the sentence should be allowed, the fine imposed by the learned magistrate should be set aside and I should reimpose sentence. In the circumstances, it is unnecessary to consider ground 2, which raises the question of manifest excessiveness.

26 The fine of $7,000 will be set aside. I turn to consider what penalty should replace it. I have regard to the legislative changes which have occurred since the offence was committed, and in particular to the fact that no offence under the Act now attracts a penalty exceeding $2,000. I also have regard to the penalties which were imposed on other offenders. When comparing this case with their cases, I take into account that his conduct should be viewed more seriously. His offence was committed over a period exceeding a week. It was plainly more difficult for the police to remove him than it was for them to remove the other offenders. So far as I am aware, the other offenders, about whose cases I have been told, pleaded guilty and they were entitled to a reduction in penalty as a result. The applicant was entitled to no such reduction having regard to his pleas of not guilty. Regard is also had to the fact that some of the other offenders were fined for more than one offence and were ordered to pay damages, which might account for a lower level of fine being imposed for the same offence as the one committed by him. I agree with what was said by the learned magistrate that the applicant "had no compunction whatever about preventing others from going about their lawful work and earning their livelihood", that his activity was "outside the bounds of legitimate protest and amounted to an arrogant asserting by (him) of (his) view over the rights of others to pursue their lawful and gainful employment". I also agree that his activity was "deserving of condemnation and it was an activity which showed a blatant defiance of and contempt for the law". Regard is also had to the fact that he had no prior convictions and appears to have been a responsible citizen until he committed the offences of which he was found guilty. It is my determination that he should be required to pay a fine of $5,000.

27 Accordingly, there will be an order that the fine of $7,000 imposed against the applicant in a court of petty sessions at Launceston on 27 October 2000 is quashed and that in its place he is fined $5,000.