DISTRICT COURT OF QUEENSLAND
CITATION:
Harris v Lagerroth; Harris Operations Pty Ltd v Lagerroth [2020] QDC 285
PARTIES:
SCOTT ALEXANDER HARRIS
(appellant)v
STEPHEN BRIAN LAGERROTH
(respondent)FILE NO:
67 of 19
PARTIES:
HARRIS OPERATIONS PTY LTD
(appellant)
v
STEPHEN BRIAN LAGERROTH
(respondent)FILE NO:
68 of 19
DIVISION:
Crime
PROCEEDING:
s 222 Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
13 November 2020
DELIVERED AT:
Brisbane
HEARING DATE:
30 July 2020
JUDGE:
Porter QC DCJ
ORDERS:
In appeal 67/19:
1. The appeal against sentence be allowed in part;
2. The fine imposed in respect of counts 2 to 6 on the complaint be set aside;
3. The appellant be fined the amount of $30,000 in respect of counts 2 to 6 on the complaint and the proper officer give, under the SPE Act, section 34, particulars of the fine to SPER for registration under that section;
4. The orders that convictions be recorded for all counts on the complaint be set aside;
5. The Court orders that no convictions be recorded;
6. Subject to orders 4 and 5 above, order 3 made by Magistrate Comans on 28 March 2019 is otherwise affirmed.
In appeal 68/19:
1. The appeal be allowed;
2. The fine imposed by the trial Judge be set aside;
3. The appellant be fined the amount of $120,000 and the proper officer give, under the SPE Act, section 34, particulars of the fine to SPER for registration under that section;
4. The order that convictions be recorded for counts 2 to 6 on the complaint be set aside
5. The Court orders that no convictions be recorded.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where appeal is brought under s. 222 Justices Act 1886 (Qld).
CRIMINAL LAW – APPEAL – SENTENCE – where development permits were granted to the appellant authorising clearing of native vegetation on a large leasehold property – where areas were cleared outside the permitted area – where the appellant was convicted of directing clearing of native vegetation without a development permit – where the appellant had convictions recorded and fines of $250,000 and $50,000 imposed – where the appellant’s conviction appeal was dismissed – where the appellant appeals against sentence – whether the learned magistrate’s sentence is excessive – whether the learned magistrate erred having regard to a number of factors, including the appellant’s plea of guilty, co-operation with investigation and antecedents – whether the appellant acted on a mistake of law – whether the mistake of law (if established) was adequately considered by the learned magistrate – whether the magistrate erred by failing to give proper weight to the evidence that no financial gain followed from the unlawful assessable development – whether the magistrate erred in recording convictions
LEGISLATION
Justices Act 1886 (Qld) ss. 222(2)(c); 223; 223(1); 223(2)
Sustainable Planning Act 2009 (Qld) ss. 578(1)
Penalties and Sentences Act 1992 (Qld) s. 49
CASES
Baker v Smith (No 1)[2019] QDC 76
Baker v Smith (No 2)[2019] QDC 242
Campbell v Turner [2001] TASSC 91
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219
Elias v The Queen (2013) 248 CLR 483
Harris v Laggeroth; Laggeroth v Harris Operations Pty Ltd [2020] QDC 111
Hindman v Sargent, unreported, Andrews SC DCJ, BD No 6 of 2011, 5 May 2014
House v The King (1936) 55 CLR 499
Kumar v Garvey [2010] QDC 249
R v LAL [2019] 2 Qd R 115
R v Briese; ex parte Attorney-General [1998] 1 Qd R 487
Ross v Commissioner of Police [2018] QDC 99
Scriven v Sargent (Unreported, District Court, McGill SC DCJ, 21 April 2016)
SECONDARY SOURCES
Miko Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Lawbook Co., 7th ed, 2019)
COUNSEL:
J R Hunter QC and J R Jones (appellants)
B J Power and G M Elmore (respondents)
SOLICITORS:
Preston Law (appellants)
Department of Natural Resources, Mining and Energy (respondents)
Table of Contents
Introduction
Sentences imposed at trial
The sentence appeals
Further evidence
Nature of the appeals
Circumstances of the offending
The appellants
The approvals to clear native vegetation
The clearing works
The investigation prior to the show cause notice
The show cause notice and the appellants’ response
Conduct of the proceedings
Nature and extent of the clearing: plea offences
Nature and extent of the clearing: contested offences
Characterisation of the appellants’ attitude to the law
The plea offences
The contested offences
Analysis
Conclusion
Extent of co-operation and plea of guilty
Appellants’ contentions
Respondent’s contentions
Analysis
Antecedents
Environmental impact
Extent of the clearing
Commercial gain
Other considerations
Comments on general deterrence
Capacity to pay a fine
Maximum penalties and the relationship between the appellants
Cases
Baker v Smith (No. 2) [2019] QDC 242
Hindman v Sargent
Scriven v Sargent
Smith v Saunders
Coome v Parker & Holeseko v McDonald
Comments on the cases relied upon
Fine on plea offences
Fine on contested offences
Recording of convictions
The nature of the offence
Offender’s character and age
Impact on economic well being
Other considerations
Conclusion
Introduction
On 29 March 2016, Mr Lagerroth (who was an investigator for the department) swore two complaints. One complaint charged the appellant in Appeal 67/19 (Mr Harris) with 16 offences in contravention of the Sustainable Planning Act 2009 (Qld) (SPA). Of those 16 charges, 14 were brought under s. 578(1) of the SPA, and two were brought under s. 611 SPA (these two charges are irrelevant to these appeals and can be ignored). The other complaint charged the appellant in Appeal 68/19 (Harris Operations) with 14 contraventions of s. 578(1) SPA in materially the same terms as the 14 charges under that provision against Mr Harris.
Mr Harris pleaded guilty to counts 2 to 6 of the complaint (the plea offences) and not guilty to the balance. The plea offences related generally to clearing for purposes other than for cropping use. Harris Operations also pleaded guilty to the plea offences.
Mr Harris and Harris Operations each contested the balance of the charges, being Counts 1, 7 to 10 and 12 to 14[1] (the contested offences). Mr Harris was convicted and Harris Operations was acquitted. Appeals by Mr Harris of his conviction, and Mr Lagerroth of Harris Operations’ acquittal, were each dismissed by me.[2]
[1] Count 11 was ultimately merged, for want of a better word, into count 10 in both complaints.
[2] Harris v Lagerroth; Lagerroth v Harris Operations Pty Ltd [2020] QDC 111
Mr Harris and Harris Operations also each appealed the sentences imposed by the learned Magistrate. Given the outcome of the conviction appeals, the two sentence appeals fall to be considered on the same basis as at trial.
Sentences imposed at trial
His Honour’s reasons for judgment are not long and relevantly provided (with challenged factual findings on appeal underlined):
BACKGROUND
Mr Harris is the sole lessee of Strathmore Station and the sole director and shareholder Operations Pty Ltd which carries on business on Strathmore Station, however the exact way that was carried out was never revealed to the Court.
Mr. Harris obtained two permits to clear land for sorghum production after extensive negotiations by him with the DNRME The clearing which occurred from August 2014 to June 2015 was not a piecemeal operation but in effect a continuous operation evidenced by the proximity of the illegally cleared land to the legally cleared land and the significant extent of the clearing – the two permits were for about 51,000ha and the illegal clearing was about 2,800 ha.
The illegal clearing comprised clearing of areas of land exempt from within the permit, e.g. around water courses and then significant areas outside the boundaries of the permits but in close proximity to legally cleared land,
The reason for the illegal clearing for the charges to which both defendants have pleaded guilty was for establishing infrastructure such as fire breaks, hard stands for machinery and an airstrip.
The rest of the clearing relating to the charges to which Mr Harris has been found guilty were committed because it was land identified by Mr Harris as higher value agricultural land than some of the land permitted to be cleared.
Mr. Harris was motivated by commercial gain.
Evidence was led at the sentence hearing to assess the impact to the environment by the illegal clearing.
The court heard from Mr. Dillewaard for the prosecution and Mr Stanton and Mr Sanders for the defendants.
The upshot of all that evidence and the evidence at the hearing is that there was of course adverse impact on the environment by all the clearing, legal and illegal.
In this sentencing phase of the proceedings, the exact degree of that impact is not the major consideration- the major consideration is the blatant disregard of the terms of the permits and the law for commercial gain.
I accept that Mr. Dillewaard's report is probably a reasonable scientific opinion about this illegal clearing on the environment.
However, his report does not purport to declare the impact in absolute terms but uses such things as modelling and his experience in this geographical area to gauge likely impact.
The exercise in calling experts with contrary views, simply reinforces, in my view, what the focus of the sentence should be.
That is the main focus for this Court is that the community through the legislature has decided that clearing such as this must be managed to achieve ecological sustainability (See S 3 of the Act- Purpose of the Act)
S.4 of the Act requires the act to be administered in a way that achieves the purpose of the Act.
S.5 sets out how that is achieved.
I refer to those provisions to demonstrate that Mr Harris' behaviour and that of Harris Operations Pty Ltd has defeated the purpose of the Act to a high degree.
Mr. Harris has denied the relevant authority the opportunity to take into account all those factors in S.5 to decide whether the clearing should be approved or not.
The community has been denied the opportunity to consider the impact of the clearing before it occurred, rather than after the fact.
That is a situation that cannot be tolerated by the community and the sentence calls primarily for personal and general deterrence.
The Court was referred to comparable cases, but none have exactly the same set of circumstances present.
The case of Smith v Baker (Magistrate Hall Magistrates Court Brisbane 2017) was a case where the offender knew the limits of clearing but wilfully exceeded them.
Mr. Harris and Harris Operations Pty Ltd also knew the limits imposed by the law and also wilfully exceeded them.
Sentencing in cases calling for general and personal deterrence is basically a blunt instrument efficient pain must be inflicted on the offender to deter reoffending by the offender and similar offending by others.
That is economic pain in the form of fines and in some cases the recording of convictions.
The level of fine must be set taking into account S 48 Penalties and Sentences Act 1992 - i.e. the ill be Gal circumstances of the offender and that nature and burden that payment of the tine will on the offender.
Mr Harris is an individual with substantial interests in property.
The financial position of Harris Operations Pty Ltd is not revealed.
In fixing the amount of the fine the Court may have regard to (relevantly) the value of the benefit derived from the offending.
In respect to the value of the benefit gained by Mr Harris from the offending, I am not persuaded that the prosecution have proved on balance of probabilities how much Mr Harris has profited or will profit by this illegal clearing, with any precision.
However, I say that by reference to Exhibits 36 and 37, Mr Harris' intention was to clear high value agricultural land for use in his farming operation.
I take judicial notice that farming is a long term pursuit where farmers generally have a vision of what can be achieved from their land in the coming years, informed by their knowledge and experience of farming techniques and the weather.
Mr Harris will be sentenced on the charges to which he was found guilty on the basis that he intended to make commercially viable profit in the long run from that illegal clearing, along with the legal clearing.
The sentencing of both defendants on charges 2 to 6 will be on the basis the clearing as for the establishment of infrastructure and it was simply convenient for the defendants to do that when the machinery was present but that the clearing was a much smaller area than the clearing in the balance of the charges.
The clearing in charges 2 to 6 was also for commercial gain, being a benefit to the farming and grazing business on Strathmore Station.
SENTENCES OF MR HARRIS AND HARRIS OPERATIONS PTY LTD FOR CHARGES 2 TO 6
Both Defendants have been convicted of offences founded on the same or similar facts and the Court may impose one fine on each defendant under S 49 Penalties and Sentences Act 1992.
The maximum available penalty for Mr Harris is $915,750 (5 x $183,150) and for Harris Operations Pty Ltd it is $4,578,750 (5 x $915,750).
The pleas of guilty must be taken into account and may be taken as a sign of remorse and any savings of court and prosecution resources should be given favourable consideration.
In this case the pleas of guilty were on the first day of the hearing and in my view now, had little impact on the course of the hearing.
The pleas of guilty are also the sole expression of remorse from Mr Harris either personally or on behalf of Harris Operations Pty Ltd.
Personal and general deterrence are the major considerations in this sentence.
One fine is imposed on each defendant as follows:
Mr Harris is convicted and fined fifth thousand dollars ($50,000.00) to be referred to SPER for collection.
Harris Operation Pty Ltd is convicted and fined one hundred and fifty thousand dollars ($150,000.00) to be referred to SPER for collection.
SENENCE OF MR HARRIS FOR CHARGES 1, 7 TO 10 AND 12 TO 14
There has been no expression of remorse from Mr Harris in relation to these charges and no co-operation with the administration of justice.
Personal and general deterrence is the major consideration in this sentence.
One fine imposed and Mr Harris is convicted and fined two hundred and fifty thousand dollars ($250,000.00)
RECORDING OF CONVICTIONS
This is a matter for the Court’s discretion taking into account those matters set out in S 12(3) Penalties and Sentences Act 1992.
In relation to both defendants, these were serious examples of this type of offending.
The defendants knew their lawful limits of clearing imposed upon them by the permits and exceeded those limits wilfully for commercial gain without regard for the objects of the Act.
Mr Harris has been involved in primary production since the age of fourteen and has built up an extensive farming and grazing operation and is well regarded by his referee.
If convictions were recorded, there is nothing to suggest that Mr Harris or Harris Operations Pty Ltd would not be able to remain carrying on their business of farming and grazing nor that Mr Harris’ social wellbeing would be effected in a way that was disproportionate to the seriousness of the offences.
The convictions are recorded against both defendants.
His Honour made the following orders, relevantly:
ORDERS
1.SCOTT ALEXANDER HARRIS IS CONVICTED AND FINED FIFTY THOUSAND DOLLARS ($50,000.00) IN RESPECT TO CHARGES 2 TO 6 WITH THE CONVICTIONS RECORDED AND THAT THE PROPER OFFICER GIVE, UNDER THE SPE ACT, SECTION 34, PARTICULARS OF THE FINE TO SPER FOR REGISTRATION UNDER THAT SECTION.
2.HARRIS OPERATIONS PTY LTD IS CONVICTED AND FINED ONE HUNDRED AND FIFTY THOUSAND DOLLARD ($150,000.00) IN RESPECT TO CHARGES 2 TO 6 WITH THE CONVICTIONS RECORDED AND THAT THE PROPER OFFICER GIVE, UNDER THE SPE ACT, SECTION 34, PARTICULARS OF THE FINE TO SPER FOR REGISTRATION UNDER THAT SECTION.
3.SCOTT ALEXANDER HARRIS IS CONVICTED AND FINED TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00) IN RESPECT OF CHARGES 1, 7, 8, 9, 10, 12, 13 AND 14 WITH THE CONVICTIONS RECORDED AND THAT THE PROPER OFFICER GIVE, UNDER THE SPE ACT, SECTION 34, PARTICULARS OF THE FINE TO SPER FOR REGISTRATION UNDER THAT SECTION
The sentence appeals
Mr Harris’ Notice of Appeal articulates the following errors by his Honour:
1. The magistrate erred in fining the appellant $50,000 and recording convictions in respect of charges 2, 3, 4, 5 and 6, which is excessive having regard to:
a.the appellant’s plea of guilty;
b.the appellant’s co-operation with the investigation and prosecution;
c.the number of hectares the subject of the charges;
d.the appellant’s antecedents;
e.the appellant’s mistake of law;
f.the extent to which environmental harm was actually caused; and
g.previously decided cases.
2. The magistrate erred in fining the appellant $250,000 and recording convictions in respect of charged 1, 7, 8, 9, 10, 12, 13 and 14, which is excessive having regard to:
a.the appellant’s co-operation with the investigation and in the conduct of the trial;
b.the number of hectares the subject of the charges;
c.the appellant’s antecedents;
d.the extent to which environmental harm was actually caused; and
e.previously decided cases.
3. The magistrate erred by concluding that the clearing was done wilfully and for commercial gain.
4. The magistrate erred by failing to give proper weight to the evidence that no financial gain followed from the unlawful assessable development.
5. The magistrate erred by taking judicial notice that farming is a long-term pursuit where farmers generally have a vision of what can be achieved from their land in coming years, informed by their knowledge and experience of farming techniques and the weather.
6. The magistrate erred by failing to give proper weight to the evidence that minimal, if any, environmental harm followed from the unlawful assessable development.
7. The magistrate erred by concluding the unlawful assessable development comprising in charges 1, 7, 8, 9, 10, 12, 13 and 14 was undertaken because the land was identified by [the appellant] as higher value agricultural land than some of the land permitted to be cleared.
8. The magistrate erred by failing to give adequate reasons for:
a.the factual basis upon which sentence was imposed;
b.quantum of the penalty imposed; and
c.the recording of convictions.
9. The magistrate erred by failing to give proper weight to the evidence as to the effect of convictions being recorded.
10. The magistrate erred by concluding there had been a blatant disregard of the terms of the permit and the law for commercial gain by the appellant.
11. The magistrate erred by finding the appellant’s behaviour defeated the purpose of the [Sustainable Planning Act 2009] to a high degree.
12. The magistrate erred by finding that the appellant knew the limits imposed by the law and also wilfully exceeded them.
13. The magistrate erred by finding [t]he pleas of guilty [were]… the sole expressions of [the appellant’s] remorse.
Although written submissions were addressed to each ground, some of those grounds coalesce around the same underlying consideration.
Harris Operations’ Notice of Appeal articulates the following similar grounds. It can be seen that only grounds 2, 4 and 7 in Mr Harris’ are not repeated:
1. The magistrate erred in fining the appellant $150,000 and recording convictions in respect of charges 2, 3, 4, 5 and 6, which is excessive having regard to:
a.the appellant’s plea of guilty;
b.the appellant’s co-operation with the investigation and prosecution;
c.the number of hectares the subject of the charges;
d.the appellant’s antecedents;
e.the appellant’s mistake of law;
f.the extent to which environmental harm was actually caused; and
g.previously decided cases.
[Mr Harris’ ground 2]
2. The magistrate erred by concluding that the clearing was done wilfully and for commercial gain. [Mr Harris’ ground 3]
3. The magistrate erred by concluding there had been a blatant disregard of the terms of the permit and the law for commercial gain by the appellant. [Mr Harris’ ground 10]
4. The magistrate erred by finding the appellant’s behaviour defeated the purpose of the [Sustainable Planning Act 2009] to a high degree. [Mr Harris’ ground 11]
5. The magistrate erred by finding that the appellant knew the limits imposed by the law and also wilfully exceeded them. [Mr Harris’ ground 12]
6. The magistrate erred by finding [t]he pleas of guilty [were]… the sole expressions of [the appellant’s] remorse. [Mr Harris’ ground 13]
7. The magistrate erred by failing to give proper weight to the evidence that no financial gain followed from the unlawful assessable development. [Mr Harris’ ground 9]
8. The magistrate erred by taking judicial notice that farming is a long-term pursuit where farmers generally have a vision of what can be achieved from their land in coming years, informed by their knowledge and experience of farming techniques and the weather.[Mr Harris’ ground 5]
9. The magistrate erred by failing to give proper weight to the evidence that minimal, if any, environmental harm followed from the unlawful assessable development. [Mr Harris’ ground 6]
10. The magistrate erred by failing to give adequate reasons for:
a.the factual basis upon which sentence was imposed;
b.quantum of the penalty imposed; and
c.the recording of convictions.
[Mr Harris’ ground 8]
11. The magistrate erred by failing to give proper weight to the evidence as to the effect of convictions being recorded. [Mr Harris’ ground 9]
Further evidence
The appeal is by way of rehearing on the original record[3] subject to the admission of fresh evidence.[4]
[3] Section 223(1) Justices Act
[4] Section 223(2) Justices Act
The appellants applied for leave to adduce further evidence on their appeals in relation to the plea offences. The further evidence comprised an order of Judge Fantin made in the Planning and Environment Court on 28 July 2020, along with an extensive annexure incorporated into her Honour’s order. The effect of that order was, in broad terms, to make lawful the unlawful clearing comprised in those counts on various conditions.
Ultimately, the respondent did not oppose leave being granted, though he maintained his submission that the fresh evidence did not materially assist the appellants in establishing that different sentences should be imposed.[5]
[5] TS1-16 The respondent also made clear that it did not seek to rely on the evidence as aggravating the offending.
Nature of the appeals
Notwithstanding that the appeal is by way of rehearing, s. 222(2) Justices Act 1886 contains some specific constraints on particular categories of appeals. Relevantly to these appeals, s. 222(2)(c) directs that if a defendant pleads guilty, then the defendant may appeal on the “sole ground” that the fine, penalty or punishment was excessive.
Surprisingly, given the frequency with which the provision falls to be applied, there is some ambiguity as to how this provision is to be construed. Is it sufficient to demonstrate error in the exercise of the discretion, or is it necessary to demonstrate that, on the application of correct principles, the sentence is excessive?[6] In the latter case, identification of error will not put the discretion at large. Instead, it is relevant to supporting an argument that the sentence was excessive. At the risk of overly simplifying the debate, it seems to me that the latter approach must be correct based on the words used in the statute.
[6] See the discussion in Ross v Commissioner of Police [2018] QDC 99
Another issue which arises is whether, on the admission of fresh evidence, the sentencing discretion is at large or whether the appeal remains one which is constrained, by the terms of s. 222(2)(c) but must be decided on the revised evidential record. Section 223(3) provides that where fresh evidence is admitted, the appeal is by way of rehearing on both the original and the fresh evidence. That text, and the language of s. 223 as a whole, contains nothing which in my mind suggests that the admission of fresh evidence excludes or alters the application of the limitation in s. 222(2)(c) where the appeal falls within the scope of that provision.
In argument, I suggested that the admission of the fresh evidence set the sentencing discretion at large and Mr Power for the respondent appeared to accept that proposition. On reflection, I do not consider that proposition to be correct. Mr Hunter for the appellants, on the other hand, did not appear to accept that proposition and undertook the overarching obligation to prove that the sentences (at least in respect of the plea offences) were excessive and, to the extent necessary, to demonstrate error leading to that conclusion based on the grounds raised in the Notices of Appeal.[7]
[7] TS1-18.35 to 20.13
In respect of the plea offences, I consider Mr Hunter’s approach to be the correct one. I do not think that approaching the matter on that basis causes any disadvantage to the respondent, even if Mr Power considered that the discretion was at large. The substance of the argument did not really differ between resentencing afresh and having to establish excessiveness of the current sentence and of course the written submissions were the basis of proving excessiveness. And I am conscious that Mr Hunter was appearing for the appellants.
A further statutory detail for Mr Harris’ sentence appeal is that for the plea offences, s. 222(2)(c) applies, but for the contested offences it does not. Section 222(2)(c) only confines the permissible grounds of appeal to appeals where the defendant pleads guilty. Mr Harris did not plead guilty to the plea offences.
His Honour wisely imposed separate sentences for the plea offences and the contested offences. Accordingly, at least as a matter of strict principle, the appeals in relation to the plea offences must demonstrate that the sentences imposed were excessive. The appeal in relation to the contested offences, on the other hand, must be determined on ordinary House v R principles. If an error is demonstrated, the sentencing discretion will be at large.
A difficulty arises in applying the distinction between the two approaches to Mr Harris’ sentence appeal because of the single decision of the learned Magistrate to record convictions on all counts. In my view, the recording of a conviction is part of the sentence imposed on Mr Harris.[8] The appeal in respect of the recording of the conviction therefore must be considered, on one view of the matter, by reference to different principles for the plea offences on the one hand and the contested offences on the other. This creates some difficulties in relation to Mr Harris. It is, I suppose, possible that I might consider that his Honour has erred on some point of principle in recording a conviction on all counts, but that doing so was not in any event excessive. Those difficulties are probably more theoretical than real. I will consider this further when considering the appeal on that point.
[8] R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 at 489 – 490. Recently applied in R v LAL [2019] 2 Qd R 115, at [37].
Circumstances of the offending
His Honour made very limited findings of fact in his sentencing remarks. They also tended to include factual conclusions unaccompanied by much by way of explanation. Properly to assess the appeals of his Honour’s sentences, it is necessary to set out a more detailed articulation of the facts which provide the context for the specific arguments on the appeals. I will endeavour to limit myself in this area to uncontroversial facts, and deal with controversial facts and conclusions when considering the parties arguments.
The appellants
Mr Scott Harris is the owner of a large leasehold property called Strathmore Station in the Gulf country. He is the sole director and shareholder of Harris Operations, which is a service company which runs aspects of the business carried on at Strathmore. Strathmore is a huge property, the largest leasehold in Queensland I am told. It is some 200 kilometres long and between 50 and 100 kilometres wide at places, oriented generally north to south. It is some 900,000 ha.
The approvals to clear native vegetation
The unlawful clearing was carried out in the location of, and in the course of, broader clearing which was authorised. The circumstances in this respect are sufficiently stated in my previous reasons (footnotes omitted):
[3]…The vegetation on Strathmore includes many areas of native vegetation regulated by the Sustainable Planning Act 2009 (Qld) (SPA) and the Vegetation Management Act 1999 (Qld). Relevantly to this case, that native vegetation is protected from clearing by s. 578(1) SPA which, in deceptively simple terms, provides that a person “must not carry out assessable development unless there is an effective development permit for the development”...
[4]Mr Harris decided, in about 2013, to seek permission to clear native vegetation in a very large area to grow crops, largely for cattle feed, as I understand it. He was assisted in that process by, amongst others, Mr Spies, a consultant who provided land and agricultural advice, and a Mr Peter Anderson…
[5]There was an application process for a permit to clear native vegetation in that area (the application), which occurred most actively from September to November 2013. There were a number of meetings in which the proposal was discussed with departmental officers, including Mr Kev Allan, who gave evidence. The gravamen of his evidence and the documents he exhibited was to show that Mr Harris was directly involved in an active way in the application process as well as being, as a matter of formality, the applicant, as the leaseholder.
[6]Mr Spies was accepted by the department as a person who had the expertise to provide a detailed report on the proposal. His work produced a series of maps and reports, which were provided, together with the formal application, to the department by Mr Peter Anderson on 6 November 2013. It is not open to dispute that this application was provided on behalf of Mr Harris as the applicant. Although the signed application form is undated, I assume it was also lodged around the 6th of November.
[7]The following is relevant about the application and the maps in exhibit 41.
[8] First, they identify areas of high-value agricultural land, which were in the vicinity of watercourses working their way through an area some 60 kilometres long and about five kilometres wide in the southern section of the property in a north-west to south-east orientation. They also identified areas of high-value agricultural land in an area some 20 kilometres long and six kilometres wide, proceeding east-west perpendicular to the longer, more north-south area.
[9]The general orientation and the area is shown, inter alia, in map 1 in exhibit 35. It included some, but not all, of the identified high-value agricultural land in the applied for area, along with some class B cropland. It omitted some other areas of high-value land and class B land, as shown on the maps.
[10] Second, mapped areas were, given the size of the areas, very specific. The application areas were divided in the application maps into blocks 1 to 3, from the south to the north for the north-south area, and block 4, being the east-west area. The maps included very detailed exclusions, such as the battle-axe-shaped area in block 1, which was to be a water reserve. It left quite distinctly shaped exclusions to the west of block 2. The same can be said of the maps for block 3 and block 4.
[11] Third, the blocks identified in the application maps lodged with the application correlate, in broad terms, with the five areas identified by name in Mr Harris’ response to the show cause notice provided in June 2015 which is discussed from paragraphs [29] and [30] below. Block 1 is largely the areas designated as “the top paddock. Block 2 largely covers the “Tucker’s paddock” and “Gilbert Crossing” areas. Block 3 largely correlates with “Bobby Towns paddock”, and the east-west block 4 is called, somewhat ominously, “Dismal Creek”.
[14] Fourth, the application maps were prepared with considerable attention to principles articulated by the department as to areas which would be excluded or included, consistent with their policies and so on. Perhaps as a consequence, they have very distinctive inclusion and exclusion areas. Further, as I said, bearing in mind their scale, they are reasonably detailed as to what is included and excluded.
[15] Fifth, the maps involved application to clear native vegetation on a very large scale: some 28,000 hectares, roughly, for the first application and 21,000 for the second. A massive area, on any view, except when compared to the massive size of the station itself. Nonetheless, a very large area of clearing.
[16]The application was granted. The approval was in the form of two development plans which authorised clearing in accordance with those plans. Most of the clearing and all of the contentious clearing relates to areas in DPP1, which totals some 28,000 hectares of approved clearing. DPP2 involved an area of 21,000 hectares, but the clearing under that permit is not contentious in this appeal.
[17]DPP1 was granted on the 6th of January 2014. It largely granted permission to do the clearing sought in the application, which I think reflected the care and detail of the application itself. It reduced some of the areas sought, in minor respects, to make them more consistent, in the view of the department, with the policies and principles that guided their decision-making in respect of native vegetation clearing. The permit was granted to Mr Harris, not surprisingly, because he was the applicant and it related to land of which he was leaseholder.
The clearing works
The clearing work commenced sometime in early to mid-2014 and continued until at least mid-2015. In May 2015, the department gave Mr Harris a show cause notice as to why it should not take enforcement action against him for unlawful clearing. The response to the show cause notice (Exhibit 35) was central in Mr Harris’ conviction appeal. It also has some relevance to the sentence appeal. Before dealing with that document, however, I need to set out some aspects of the investigation process, given the competing contentions on co-operation.
The investigation prior to the show cause notice
The facts relating to the investigation and the co-operation of both appellants are not in dispute, at least in any material way. What is disputed is the manner in which that co-operation should be characterised.
Prior to the issue of the show cause notice, in June 2014, Mr Harris permitted a site visit by Departmental officers, allowed them unobstructed access to Strathmore and drove them around without requiring a warrant. It does not seem, however, that the prospect of a dispute with the Department was in the offing at that time.
More relevantly, in December 2014, Mr Harris hosted two Departmental officers again. On this occasion he flew the officers around Strathmore and showed them all the clearing which had been undertaken, including areas later identified as unlawful clearing and areas which they were not previously aware of, including the airstrip clearing (seemingly Charge 5). Given the scale of the property and of the clearing, I am willing to accept that the advantage to the officers of seeing the cleared areas from the air was very substantial.[9] It is also relevant that this occurred in the context where the Departmental officer had flagged that there was a concern about unlawful clearing, to which Mr Harris conceded that that might be the case.[10]
[9] See references in 32 33 HO sentence subs
[10] TS 13 at 10.2
The show cause notice and the appellants’ response
Following those events, the Department gave the appellants a show cause notice. It was not tendered at trial nor before me, however, its key provisions appear in the appellants’ response quoted in exhibit 35 below. Mr Harris responded by his letter with attachments dated 19 June 2015 (Exhibit 35).[11]
[11] Exhibit 35
The covering letter relevantly provided:
Dear Sir
RE Scott Harris Strathmore Station
Decision Notice for development approval SDA-1213-006588
Show Cause Notice pursuant to s588 Sustainable Planning Act 2009 dated 15th May 2015.I refer to your letter of 15th May 2015 when you requested me to show cause as to why an enforcement notice should not be given in relation to continuing to clear native vegetation on Strathmore Station.
I enclose my response to the “show cause notice” dated the 15th May 2015. The annexures contained in the table are numerous and contain mapsets, photos and reports. I am arranging hard and electronic copies to be delivered top you separate from this email.
I am hopeful that upon considering this response and the comprehensive compliance action outlined no enforcement notice will be necessary.
It is alleged
“A site visit conducted by DNRM officers on the 18 and 19 December 2014 confirmed mechanical clearing of vegetation had occurred:
1. in areas within the development permit footprint boundaries that are specifically excluded, such as within buffers around mapped watercourses, wetlands and road tenures; and
2. in areas outside the existing development permit footprint area, including unexplained clearing near the homestead, unexplained clearing for irrigation dam and fire management line clearing which appears to be beyond the allowable clearing width.
I wish to advise that I embarked upon the process of clearing vegetation in accordance with the Development approval in good faith and ultimately employed an independent expert and utilized the best technology to assist with ongoing compliance.
I am confident that when adjustments are made for areas that were included and excluded depending upon high value land suitability and areas are properly defined and mapped no more area of vegetation was cleared in respect of the development application than the area permitted.
I am ready to remedy any areas that remain unaccounted for in this process at my cost.
In the event the Department decides to issue an enforcement notice or take other action contrary to the compliance process set out in this document the I (sic) seek, prior to the issue of such notice, and at my cost if need be:
·a formal meeting with the Acting Regional Manager and the relevant decision maker, and
·a formal inspection of the relevant permit area by the Acting Regional Manager and the relevant decision maker
I enclose an authority for you to seek and provide information to my manager Peter Anderson in the event I am uncontactable as we are about to commence mustering.
I thank you for your assistance
Yours sincerely
[Handwritten signature]
Scott Harris
Owner, Strathmore Station
The detailed attachment included written submissions, a number of maps and a report from Mr Spies, an agricultural scientist. The submissions relevantly stated:
…
Approach to Show Cause Notice
1) Engage I.L.A. Consulting, an independent expert, to assess and map all vegetation cleared in and around Permit area 1. (see Maps 1-8)
2) Engage Pinnacle Pocket Consulting to undertake a preliminary high value agriculture land suitability assessment in respect of all substantial areas cleared in and around Permit area 1. (with the exception of roads watercourses and wetlands) (see Table A)
3) Provide the Department with a map of all areas in respect of, and contiguous with, Permit area 1 in respect of which clearing has been completed including:
· permitted areas cleared
· permitted areas not cleared
· Unauthorized areas cleared
4) Show cause in respect of all unauthorized clearing in respect of, and contiguous with, Permit area 1.
5) Provide to the Department with preliminary submissions prepared by Pinnacle Pocket Consulting in relation to the PMAV issued on the 13th May 2015 (under cover separate letter)
6) Seek an extension of time until the 31st July 2015 to finalize PMAV submission pending soil tests and further site inspections and perusal of historical satellite and vegetation data.
7) Provide information in respect of all clearing including firebreak, dam site hardstand and other areas not included in 3 above.
8) Prepare a compliance program in respect of Permit area 1 (see Table B) including:
· Identify and map actual watercourses and wetlands whether cleared or not
· Identify and map roads and stock routes on proper alignment
· Identify and map areas cleared outside permit area of high value agriculture
· Identify and map authorized areas not cleared
· Identify and map unauthorized areas not suitable for high value agriculture
9) Submit watercourse and wetland map to Department for approval.
10) Implement vegetation regeneration program to buffers for water courses and wetlands as necessary in respect of approved map. (9 above)
11) Submit roads and stock routes map to Department for approval.
12) Seek approval from State or other relevant instrumentalities (depending upon ownership of roads and stock routes) to clear vegetation on roads or stock route.
13) Prepare and submit an application to amend development approval SDA-1213-006588 to give effect to compliance plan and obtain development approval for any unauthorized clearing of high value agricultural land.
14) Prepare and lodge applications for Development approval in respect of dam site, fire break and hard stand area.
15) Regenerate as necessary all vegetation in residual area (ie not dealt with in 12, 13, 14 above)
16) Prepare a compliance program to be supervised by an independent expert in respect of SDA-0714-012975 Permit area 2 to minimize risk of unauthorized clearing and to ensure legislative compliance and to validate data and protect watercourses and wetlands (see Table C)
17) Meet with Department representatives seek advice and information and on site as necessary to implement compliance plans.
General Considerations
…
Watercourses
·The VMA defines as watercourse as:
…
·The application mapped suitable agricultural land lands and did not distinguish all watercourses and wetlands due to inaccuracy of base data and lack of ground truthing.
·The mapping attached to the development approval attempted to define watercourses and wetlands.
…
·The mapping attached to the application did not include watercourses or wetlands. This was partly due to the inadequacy of the base data available, the scale of the project and the features of water movement in the catchment ie overland flow and drainage features that are not watercourses as defined by the VMA or the WA.
·The Development approval included watercourses and wetlands based on interpretation of spatial data which was not ground truthed.
·This became problematic for the applicant from the outset as watercourses that were marked on the approval map were only drainage features and hollows at best in many cases.
·There were water courses on the ground with banks and beds that were not marked on the approval map.
·Of the 329 ha of watercourse identified 64 ha are not within the alleged area of breach indicating further inaccuracy of the mapping.
·It was considered that when the application was made that the applicant and operators would visually distinguish watercourses and wetlands during the clearing process and apply the relevant buffers.
·This posed an immediate issue for the applicant as the only method of locating a watercourse with any certainty was by a visual approach.
·Features that might be more accurately described as drainage feature or follows were not evidence on the ground which added to the confusion (see photos 41,46,51,55 in attachments)
·The maps were guides only and shifted the onus on the applicant to determine where the buffers applied around a watercourse or wetland adding to the complexity.
·The applicant is now aware that even though watercourses may not have been properly aligned or described in strict terms the Development approval did not permit clearing in those areas.
Data and mapping
·The co-ordinate data provided with the Development approval by the Department was not decipherable, referable to landmarks or able to be utilized by standard GPS equipment.
·There were some 32,000 points contained in sheets 8 to 23 of the Development approval of indecipherable data.
·An example can be seen with the stock route and water reserve in Top Paddock:
Harris was advised by the Departmental staff in May 2014 to take care when clearing adjacent to the stock route and water reserve in the top paddock area as this tenure did not form any part of Strathmore tenure.
Harris explained to the officers the co-ordinates accompanying the Development application were indecipherable and not able to be used in a standard GPS process.
Harris requested and was given additional data from the Department in Cairns.
Harris marked out the area of the stock route and the water reserve on the ground based on the data provided however was concerned it did not accord with the description on the map accompanying the Development approval.
Harris went back to the Department and was given further data in a different format.
Harris checked this information with his GPS and again was concerned that it contained the same errors as the original data.
Harris was given 3 types of data
·Digital data
·Degrees and decimal minutes which were not able to be fed into GPS
·Degrees minutes and seconds
Harris was given further co-ordinates in the form of degrees, minutes and seconds which could be sued by a standard GPS and again depicted the incorrect area.
Harris engaged and (sic) independent expert ILA Consulting to identify map and provide data to ensure the stock route and water reserve were on the proper alignment as described in the map accompanying the Development application.
The data provided by ILA Consulting depicted the proper alignment to be at considerable variance from the data provided by the Department and assisted Harris to clear the stock route and water reserve area in the top paddock on the proper alignment.
Harris ceased clearing works in the area for 6 weeks whilst attempting to resolve this issue.
·The maps provided with the Development approval were not of a scale easily decipherable and contain the caveat:
“Derived Reference Points are provided to assist in the location of permitted clearing boundaries. Responsibility for locating these boundaries lies solely with the landholder and delegated contractors”
·Harris and his manager spent many hours flying around the areas to be cleared trying to reconcile the data provided with the physical features vegetation types and landforms on the ground.
·It was evident that there were areas of high agriculture that were contiguous with areas permitted to be cleared and areas that were included that were clearly unsuitable. This also led to confusion due to the scale of the area to be reconciled to maps and being unable to decipher the data and coordinates provided.
…
Show cause schedule and proposed remedy.
Permit Area 1
Area Activity Show cause Notes Code HVA site Remedial Action 1 Top Paddock Mapped Inside permit area
Water courses and wetlands UnauthorizedMistake of fact 1
Photos
44,46,
51,55Prepare watercourse plan submit to Department Regenerate to buffers as necessary
Amend development approval2 Top Paddock mapped Outside permit area
UnauthorizedMistake of fact 2
BlueA B Preliminary Assessment
HVA-suitable
Amended development approval
Regenerate vegetation as necessary3 Top Paddock Mapped Outside permit area
Mistake of fact 3
BlueC D Preliminary Assessment
HVA-suitable
Amend development approval
Regenerate vegetation as necessary3a Top Paddock Mapped Outside permit area Essential Infrastructure Machinery there 3a
PinkC D Preliminary Assessment
HVA-unsuitable
Essential infrastructure
Make development application4 Tuckers Paddock Mapped Outside permit area
UnauthorizedInside permitted Area not cleared
Mistake of fact 4
BlueG H Preliminary Assessment
HVA-suitable
Give and take area based on suitability
Amend Development Application
Regenerate vegetation as necessary5 Gilbert Crossing Paddock Mapped Inside permit area
Water courses and wetlands
UnauthorizedMistake of fact 1 Prepare watercourse plan submit to Department
Regenerate vegetation to buffers as necessary
Amend development approval6 Bobby Towns Paddock Mapped Inside permit area
Water courses and wetlands
Unauthorized Inside
Permitted area not clearedMistake of fact 1 Prepare watercourse plan submit to Department
Revegetate vegetation to buffers
Amend development approval
Give and take area based on suitability7 Dismal Creek Area Mapped Inside permit area
Water courses and wetlands
UnauthorizedMistake of fact 1 Prepare watercourse plan
Amend development approval
Revegetate vegetation to buffers8 Dismal Creek Area Mapped Outside permit area
Unauthorized
Inside permit area
Not clearedMistake of fact 5
BlueGive and take area based on suitability
Amend Development approval
Regenerate vegetation as necessary9 Homestead Paddock Mapped Outside permit area
UnauthorizedMistake of fact 4
BlueF Preliminary Assessment
HVA-suitable
Amend development approval
Regenerate vegetation as necessary9a Homestead Paddock Mapped Outside permit area
Historic, Cat X, exempt
ClearingAs of right 6
GreenE Submission re PMAV
Amend PMAV
Amend Development application and regenerate vegetation if necessary10 Roads and stock routes Mapped
Inside permit area Unauthorized
Mistake of fact
7
Map and identify road and stock route alignment
Submit plan to State
Amend development approval
Apply to State for permits
Regenerate vegetation as necessary11 Firebreak Not mapped
Outside permit area
UnauthorizedNo permit
8
Assess and map
Make development application
Seek exemption for infrastructure protection
Regenerate vegetation as necessary12 Dam Site adjacent homestead Not mapped
Outside permit area
Unauthorized
Mistake of fact
9
Map and identify area
Make development application
Regenerate vegetation as necessaryNote 1
Watercourses:
Due to the scale of the project and the nature of the data provided the applicant was continually attempting to reconcile the data based approval with the natural features on the ground
This was very much the case with water courses and wetlands.
For example in the top paddock area between the Gilbert River and the stock route there were several watercourses marked on the approval map.
In reality when the applicant was clearing those areas there was no discernible natural feature that would indicate the existence of a watercourse. The attached photographs depict the hollows and drainage features which are not watercourses.
In other cases the applicant often confronted an obvious water course with banks and bed which were not depicted on the approval map.
This became a constant issue throughout the clearing of Permit area 1.
Often the watercourses were choked with Chinee apple and rubber vine which restricted visual reconciliation with the map and physical features.
The owner and manager flew many hours in an effort to clearly define and control clearing around water courses.
See remedial action proposed.
Note 2
In attempting to reconcile the boundary of the approval area and the map description the applicant relied upon the watercourse as the defining feature.
The watercourse as depicted did not exist as the actual watercourse wound around the area that was ultimately cleared and there was no discernible change in the land form or vegetation type to assist the applicant to identify the boundary other than a “watercourse” marked on the map.
Pinnacle Pocket Consulting has determined from site inspection that area if of high value agriculture suitability see report. Soil test have been undertaken and sent for analysis final report will determine suitability.
See remedial action proposed.
Note 3
In attempting to reconcile the boundary of the approval area and the map description the applicant relied upon the watercourse as the defining feature.
See remedial action proposed.
Note 3a
The applicant cleared a further area whilst the machinery was in the vicinity on an ironstone ridge as a future hardstand for truck turnaround large machinery workshop, grain silos and bunkers, silage, transport and stock loading facility and heavy machinery park area due to the stability of the ridge and proximity to the road.
See remedial action proposed.
Note 4
In the absence of any other feature such as a watercourse or fence line the applicant cleared to the most obvious boundary based upon landform and vegetation type. This is the area described a “G” in the attached map.
The applicant relied upon the watercourse depicted in the area described as ‘H’ in the attached map and the landform and vegetation type as a guide to clearing the balance of the area. The applicant did not clear a substantial area which was permitted by the Development approval as it was obviously unsuitable and was a completely different vegetation type and land form to the surrounding area.
See remedial action proposed.
Note 5
The applicant attempted to apply common sense and consistency in clearing this area and followed vegetation types and land form features within the boundaries depicted in the Development approval map. There was a degree of give and take and the applicant is confident he cleared less area than was permitted within this area.
See remedial action proposed.
Note 6
Subject to further assessment the area shaded green on the map is either grassland or cat x or historic clearing.
The applicant will provide further advice/action when this is determined by PMAV process.
Note 7
Roads. The roads and stock routes were not made or on the proper alignment which made it difficult to determine their proper location.
See remedial action proposed.
Note 8
Fire break. The fire break is approximately 16 km by 80 m comprising 96ha and protects approximately 3,500 ha of farming country. There is no rural fire brigade within 2 hours of Strathmore and Strathmore only has capacity to fight spot fires.
The fires come predominately from the east and south east most seasons from Kutchera, Abington Downs and to a lesser extend from Chadshunt.
The applicant cleared the area whilst the machinery was in the location.
The firebreak also included a fence line.
The total value of the cropping asset to be protected is $1,750,000
The total investment to be protected is $2,550,000
See remedial action proposed
Note 9
Dam site: This area relates to the granting of an allocation of 6000ML of water and will be the area from which gravel and earth will be extracted for the construction of the dam wall and will ultimately form part of the dam water storage area and will be inundated. The clearing was done whilst the machinery was in location. A crop was planted to stabilize the soil pending forma approval to commence works.
See remedial action proposed.
Exhibit 35 also had a series of attached maps, numbered 1 to 18, which were to be read together with the show cause schedule and could readily be reconciled with that schedule. Those maps largely identified the areas of clearing which were ultimately the subject of the prosecutions which led to these appeals. Exhibit 35 also attached a sophisticated expert report, apparently prepared by Mr Spies, directed at sustaining the proposition that the large-scale areas cleared outside the approved areas under DPP1 were high-value agricultural land.
The show cause notice was provided in mid-May, and Exhibit 35 was received a month later. At the time Exhibit 35 was provided, work under DPP 2 was not completed. It was completed soon afterwards. Mr Harris provided a further letter when that work was done, dated 9 July 2015.[12] It provided:
[12] Exhibit 36
Dear Sir
RE Scott Harris Strathmore Station
Decision Notice for Development Approval SDA-1213-006588
Application to amend Development ApprovalI refer to my letter of the 19th June 2015 and confirm that I intend to apply to the Department of Planning and State Development to amend SDA-1213-006588 in respect of those areas of vegetation clearing that were not included in the development approval including:
1) Excluded water courses and wetlands within the development approval area which are not in fact water courses or wetlands.
2) Permitted areas within the development approval area described as high value agriculture which are not in fact high value agriculture areas which for practical, logistical, environmental and financial reasons have not been cleared.
3) Unauthorized cleared areas of high value agriculture contiguous with or adjacent to the development approval area which ought to have been included in the development approval and for practical, logistical, environmental and financial reasons and have been cleared. These include historical clearing omitted from the original application.
4) Excluded roads and stock routes within the development approval area that are not aligned with the formed or made road or stock route in respect of which clearing has occurred. An application will be made for temporary closure of these roads and stock routes contemporaneously with the application to amend the development approval.
I provided you with details of these areas in my response of the 19th June 2015.
The purpose of this letter is to provide you with an opportunity to advise whether or not you will object to the proposed change to the Development Approval.
I await your response.
Yours sincerely
[Handwritten signature]
Scott Harris
Owner, Strathmore Station[Underlining and italics added]
That letter refers to the application for variation to the DPPs to regularise the clearing done outside the area of the DPPs sought in exhibit 35. It was never suggested by Mr Harris from the start of the show cause process that the areas he identified as cleared outside the DPP were other than clearing outside its scope.
The Department was not persuaded to regularise the areas prima facie unlawfully cleared. Rather, on 29 March 2016, the complainant, Mr Lagerroth (who was an investigator for the department) commenced these proceedings.
Conduct of the proceedings
Mr Power for the respondent submitted that the conduct of the proceedings, including the timing of the pleas from the appellants to Charges 2 to 6, is relevant to these appeals. It is certainly correct that the proceedings were hotly contested, at least initially. The appellants brought a stay application first on the grounds of some form of estoppel and then on the basis that the proceedings were out of time. It was only after those steps had not proved efficacious that the plea of guilty was entered to the plea offences. It was a late plea on any view.
The appellants also started the trial with the requirement that all matters be proved strictly, though as the trial progressed, it seems, that insistence was not maintained. Ultimately, admissions were made towards the end of the trial.
Nature and extent of the clearing: plea offences
There was seemingly no challenge to his Honour’s finding that the reason for the clearing related to Charges 2 to 6 was for establishing infrastructure such as fire breaks, a hard stand for machinery and an airstrip. I was unable to locate any more specific submissions by the prosecution or the defence in the sentence submissions as to the facts upon which the Court should act when imposing sentence for the plea offences. Submissions related to the plea offences were rolled up in submissions on sentence on all offences. Nor were these offences considered in much detail in the trial submissions, given they were the subject of guilty pleas.
However, some attention needs to be given to the nature and extent of the clearing for these offences because:
(a)Harris Operations falls to be sentenced only for these offences;
(b)Harris Operations and Mr Harris must demonstrate that the penalty imposed for these charges is excessive; and
(c)These offences fall into a different category to the other offences because they were said to be based on a mistake of law as to an entitlement to clear regardless of, and without relation to, the DPPs.
The prosecution trial submissions set out a convenient extract from the ArcReader database showing the shape of the charge areas. It is there submitted that[13]:
(a)Charges 2, 3 and 6 are explained by Exhibit 35 as firebreaks;
(b)Charge 4 is described as a hardstand area by Exhibit 35; and
(c)Charge 5 is described as a dam site by Exhibit 35.
[13] Closing address of the prosecution p. 30
The firebreak areas are in the shape one would expect (though they are much too wide, something which could have been determined without too much difficulty). No reason to dispute the purpose of the clearing for Charges 4 or 5 was advanced so far as I could determine, with one proviso. It is said in the appellants’ submissions that Charge 5 was cleared for a landing strip. No citation is given for that factual assertion,[14] though his Honour made the same comment. Maybe it was both a dam and landing strip.
[14] See paragraph 49 Harris Operations appeal submissions
The areas cleared in each case as disclosed by the complaints were:
(a)Charge 2: 132 ha;
(b)Charge 3: 28 ha;
(c)Charge 4: 262 ha;
(d)Charge 5: 72 ha;
(e)Charge 6: 72.4 ha.
The total cleared area was therefore 566.4 ha. The trial submissions also submitted that the clearing in these areas occurred as part of the overall clearing of the other unlawfully cleared areas and the DPP areas. This appears consistent with the timing alleged in the complaints and the statements in Exhibit 35 that the work was done while the machinery was in the location. The correlation between the notes and maps in Exhibit 35 and the charge areas is not exact. To the extent it was not, so far as I could detect, examined at the trial nor in sentencing submissions.
Like his Honour, I do not consider that I should impose a single fine for all the offences by Mr Harris, the plea offences giving rise to specific considerations.
Given the approach adopted by the appellants on the appeal, I intend to assess this matter from the perspective of whether his Honour’s fines were excessive, taking into account all the matters I have identified above.
In my view, his Honour’s fines were excessive. There are two primary reasons for that conclusion:
(a)First, I consider his Honour’s fines do not properly account for objective assistance to the prosecution from the co-operation by the appellants and the plea;
(b)Second, I accept the submission by Mr Hunter that in this particular case, the fine imposed on Mr Harris and on Harris Operations punished Mr Harris twice. That is so in this case, given that Mr Harris was both sole director and sole shareholder. The company was the corporate extension of Mr Harris’ personal affairs.
However, I do not consider his Honour’s fines were greatly in excess of proper fines for the offending. The fines imposed have to give sufficient weight to all the factors I have reviewed including in particular, the following matters.
First the necessity for general deterrence. I refer in that regard to the matters articulated in paragraphs [134] to [137] above. A fine must be imposed which deters a party from adopting the approach adopted here, of clearing first and seeking permission afterwards. As his Honour observed, that approach undermines the statutory scheme which calls for scrutiny of clearing before it occurs, rather than a fait accompli being presented. It is important that the fine is large enough to provide general deterrence to offenders with the substantial financial and operational capacity of the appellants in this case.
Second, the significant financial capacity of the appellants. That is a distinct consideration, at least in theory, from general deterrence for defendants with considerable resources, but the two propositions elide.
The above two considerations distinguish this case from those where much more modest fines were imposed by this Court.
Third, on any objective view, the amount of clearing is significant.
I have considered these and all the other circumstances relevant to the plea offences set out above (including, to be clear, the issue of antecedents). Having done so, I set aside his Honour’s fines and impose a fine on Harris Operations of $120,000 and on Mr Harris of $30,000, giving a total fine of $150,000 in respect of the plea offences.
Fine on contested offences
His Honour imposed a fine of $250,000 in respect of the contested offences. I have found that his Honour’s sentencing discretion miscarried by failing to consider Mr Harris’ antecedents and by giving little if any weight to the co-operation by Mr Harris with the objective benefit to the administration of justice it provided, albeit the co-operation was reduced in value somewhat by the later approach to the conduct of the trial. Where, as here, s. 223(2)(c) Justices Act does not apply, it falls to this Court to re-exercise the sentencing discretion.
Bearing in mind all the matters relevant to the contested offences, however, I nonetheless consider that the fine of $250,000 on Mr Harris in respect of those offences is the correct penalty. I make the following specific comments.
First, my comments about imposing a fine which is effective to provide general deterrence to persons in Mr Harris’ financial position apply equally to the contested offences, as do my observations about the relevance of his financial capacity. Again this significantly distinguishes this case from the other cases put before me (apart from Baker).
Second, the area of clearing is objectively very large. This is important to the assessment of the relevance of Baker v Smith (No. 2) to this case, where the area cleared was 1/8th of the area cleared in this case.
Third, although I recognise the co-operation by Mr Harris and consider weight must be given to the objective assistance which Exhibit 35 provided to the prosecution, that assistance was lessened somewhat give the approach at trial. Further, as I have said, it reflected an approach which avoided the statutory scheme which calls for clearing to be assessed before it is undertaken, not afterwards.
Fourth, while it is not strictly speaking a case where totality is attracted as a consideration on the sentences for Harris Operations and Mr Harris personally, I consider it is nonetheless appropriate to consider the whole of the sentences imposed for the whole of the offending, particularly given the close association between Mr Harris and Harris Operations. A total penalty of $400,000 for the whole of this clearing is substantial and I think fully reflects the overall seriousness of the overall offending on the one side and the other factors set out in these reasons on the other.
Despite these matters, I would have been inclined to reduce the sentence somewhat except for this: considerable benefit flows to Mr Harris from my decision explained below not to record a conviction. Given that significant reduction in the sentence imposed by his Honour, and given the importance of maintaining the effect of the sentence to provide general deterrence, I have concluded that the sentence of $250,000 remains the correct penalty.
Recording of convictions
The appellants submit that the recording of convictions was erroneous in each case because:
(a)Of each of the matters relied upon to demonstrate that the fines in each case were excessive;
(b)His Honour failed to give adequate reasons for doing so;
(c)His Honour erred in his finding of wilful breach of the statute;
(d)His Honour erred by failing to give proper weight to the evidence as to the effect of convictions being recorded.
His Honour’s reasons specifically related to the recording of a conviction are brief:
This is a matter for the Court’s discretion taking into account those matters set out in S 12(3) Penalties and Sentences Act 1992.
In relation to both defendants, these were serious examples of this type of offending.
The defendants knew their lawful limits of clearing imposed upon them by the permits and exceeded those limits wilfully for commercial gain without regard for the objects of the Act.
Mr Harris has been involved in primary production since the age of fourteen and has built up an extensive farming and grazing operation and is well regarded by his referee.
If convictions were recorded, there is nothing to suggest that Mr Harris or Harris Operations Pty Ltd would not be able to remain carrying on their business of farming and grazing nor that Mr Harris’ social wellbeing would be effected in a way that was disproportionate to the seriousness of the offences.
Section 12 PSA relevantly provides:
12 Court to consider whether or not to record conviction
(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.
(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
(a) the nature of the offence; and
(b) the offender’s character and age; and
(c) the impact that recording a conviction will have on the offender’s—
(i) economic or social wellbeing; or
(ii) chances of finding employment.
The section confers a broad discretion and the factors identified are not, and do not purport to be, an exhaustive list of considerations. Having said that the discretion must be exercised judicially and, relevantly to this case, must be taken into account as a part of the sentence imposed. Notwithstanding the structure of these reasons, I have kept that latter consideration in mind.
The nature of the offence
The identification of the nature of the offence is apt to draw the Court’s attention to the seriousness of the example of the offence in the particular case.
For the reasons I have given, I agree with his Honour that these are serious examples of this type of offending. To be clear, I reach that view primarily for these reasons:
(a)The area cleared was substantial for the plea offences. While there are always difficulties with scale in land clearing cases, one could not say that 567 ha is a minor or trivial area, notwithstanding that other cases involve larger areas;
(b)Given that conclusion, it follows that the contested offences area was much more substantial;
(c)In both cases, the clearing was undertaken for commercial purposes by very sophisticated entities with considerable financial and operation capacity knowing the clearing to be, or to be likely to be, unlawful.
There are other matters to take into account however.
One might think that a tendency can be discerned from the cases to treat even moderately serious examples of unlawful clearing as being of a nature which does not ordinarily lead to recording of a conviction.
In oral argument, Mr Hunter drew attention to the fact that in only one of the cases put before me was a conviction recorded and that case was Baker v Smith (No 2) which involved a confluence of factors which justified recording of a conviction in that particular case.[45] The most serious was Mr Baker’s dismissive attitude to the statutory scheme. Mr Hunter rightly submitted that the conduct of the appellants in this case was not of the same character, a submission which in broad terms I have accepted.
[45] See [371] to [373]
It is submitted to me that in none of the other cases was a conviction recorded. Let that be assumed to be correct (in some cases, the issue is not mentioned in the appeal to this Court). Neither party directed me to any part of any of those cases (or any case) which set out the reasoning by which the conclusion was reached that no conviction should be recorded. McDonald v Holeszko [2019] QCA 285 was considered in the Court of Appeal but the recording of convictions was not raised in that appeal.
One might think an unstated tendency not to record convictions arises from the fact that most offenders are otherwise persons of good character (as is clearly the case here), but that is not a factor which of itself justifies not recording a conviction in other categories of case. This cannot be pressed too far however. It is relevant that Parliament has identified a fine rather than a sentence of imprisonment as the penalty for this offence. In those circumstances, one might think that good character, including a lack of previous convictions for like offences, should carry some weight in the exercise of the discretion not to record a conviction.
Offender’s character and age
Mr Harris is a mature man of good character. Harris Operations has operated for an extended period without other offending. This carries particular weight where Mr Harris and Harris Operations have operated large scale commercial grazing businesses without any apparent regulatory infraction before. For the reasons given in the previous paragraph, I consider this to be of some significance in the discretion. It does not appear his Honour gave it any weight.
Impact on economic well being
This was emphasised by both appellants in their written submissions on the appeal.[46] It submitted that the Court should consider:
(a)The reputational damage to Harris Operations;
(b)The effect of recording convictions will have on future dealings with government agencies (nationally and internationally); and
(c)The current dealings with the Commonwealth Government and the relevant considerations under s. 136 Environment Protection and Biodiversity Conservation Act 1999.
[46] At paragraphs 139(a) to (c) of the Harris Operations appeal submissions and see paragraph 36 of Mr Harris’ appeal submissions.
Harris Operations submitted that these considerations were inconsistent with and were overlooked by his Honour in finding that there is nothing to suggest that Mr Harris or Harris Operations Pty Ltd would not be able to remain carrying on their business of farming and grazing.
I do not accept that reputational damage is of itself a factor telling against recording a conviction. It is the consequence of every offence that it has the potential to affect the offender’s reputation. However, it is a factor which I think carries some relevance, particularly as I have observed, there is no previous offending.
As to the other two matters, there was no evidence before his Honour of anything specific, the points were merely asserted without any detail.
Another factor raised in the sentence submissions on trial was the possibility of the effect of the conviction on Mr Harris’s freedom to travel and deal with Australian and overseas governments if cattle export was pursued by Harris Operations (though it sold its cattle within Australia at the time). Again, nothing specific was identified.
The authorities recognise that there does not have to be specific evidence of economic or social impact of a conviction for a Court to conclude such might arise. [47] However, the cases identified in the Harris Operations outline concern very young offenders. Also it must be kept in mind that if there is evidence of specific impacts, it should be put before the Court.[48] This applies with particular force where the defendant is well resourced.
[47] R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; R v Seiler [2003] QCA 217
[48] R v Cay at [43].
While I recognise the possibility of impacts from the recording of this conviction on Harris Operations for the reasons articulated, in the absence of some specific details I do not find the possibility particularly persuasive as to why a conviction should not be recorded. The evidence here is for the most part speculative suggestions about events which might happen. The exception is the general reference to the unspecific “current dealings” with the Commonwealth. However, there is no evidence that the mere fact a conviction is not recorded will make a material difference in those dealings. It is not immediately obvious that the Commonwealth officers would be unaware of these proceedings, nor is it obvious that any application or formal documentation would not require the offences to be disclosed.
The same analysis applies to Mr Harris’ position.
Other considerations
The appellants also emphasise the pleas of guilty and the co-operation of the appellants as justifying not recording convictions.
In my view, the latter is a very significant factor in the exercise of this discretion. I have already fully analysed the appellants’ co-operation and what it means for sentencing in this appeal (see paragraphs [81] to [101] above). As I have found, the co-operation was objectively important to the success of the prosecution, and Exhibit 35 reflects Mr Harris’ state of mind as being that the unlawful clearing was in fact generally consistent with the statutory scheme and (for the contested offences), the spirit of the approvals.
It was not a case, like Baker, where there was a defiant disregard of the statutory scheme.
Conclusion
I do not consider that, if his Honour had properly considered all the relevant factors, he could have reached the conclusion that the convictions should be recorded. To do so was excessive in relation to the plea offences and in manifestly excessive in relation to the contested offences. A fortiori when one takes into account the substantial fines imposed. I therefore set aside his Honour’s orders recording convictions and in their place, order that no convictions be recorded in respect of any of the offences.