Baker v Smith (No 2) [2019] QDC 242

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Smith (No 2) [2019] QDC 242 PARTIES: MICHAEL VINCENT BAKER (appellant) v BRIAN ARTHUR CONWAY SMITH (respondent) FILE NO: 4984 of 2016 DIVISION: Crime PROCEEDING: s 222 Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 4 December 2019 DELIVERED AT: Brisbane HEARING DATE: 21, 26 June 2019 JUDGE: Porter QC DCJ ORDER: Amended Notice of Appeal filed 5 September 2018 1. The conviction of the appellant on Charge 1 and Charge 2 of the Complaint sworn on 17 August 2013 be set aside; 2. Charge 1 and Charge 2 of the Complaint sworn 17 August 2013 be dismissed. Amended Notice of Appeal filed 30 May 2019 3. The order made on 20 March 2017 that the appellant pay a fine of $276,000 to the complainant within 3 months of the date of that order and in default to the State Penalties Enforcement Registry be set aside; 4. The appellant is fined $250,000 to be paid within 3 months of the date of this order; 5. The order made on 20 March 2017 that the appellant pay $17,471.01 by way of loss and damage pursuant to s. 88 Forestry Act 1959 (Qld) within 3 months of the date of that order be varied such that the amount be reduced to $4,704.05 (including GST) and the date for payment be varied to 3 months from the date of this order; -- 1 of 115 -- 2 6. The order made on 20 March 2017 that the defendant pay $541,309.15 costs to the complainant pursuant to s. 157 Justices Act within 3 months of the date of that order be set aside; 7. The appellant pay the respondent’s costs of the trial in the amount of $495,892.86 within 3 months of the date of this order; 8. Order 2 of the orders made on 28 February 2017 be set aside; 9. The appellant pay the respondent’s costs of the conviction appeal in the amount of $224,859.15 within 6 months of the date of this order; 10. The Amended Notice of Appeal filed 5 September 2018 and the Amended Notice of Appeal filed 30 May 2019 are otherwise dismissed; 11. I will hear the parties as to costs of the Second Notice of Appeal. 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 AND NEW TRIAL – COSTS – where the learned Magistrate found the defendant guilty on all charges on 18 November 2016 – where the learned Magistrate awarded costs against the defendant on 20 March 2017 – where the defendant was not present in Court on 18 November 2016 – whether the finding on 18 November 2016 constituted a “conviction” for the purposes of s. 157 Justices Act – whether the “conviction” contemplated by s. 157 Justices Act is a formal conviction – whether the “conviction” contemplated by s. 157 Justices Act requires both the finding of guilt and imposition of penalty – whether the defendant could be convicted in absentia. CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the learned Magistrate concluded that for the purposes of s. 158B Justices Act the trial was one of special difficulty, complexity or importance – where the trial involved proving various forms of land clearing arising from disparate areas over a number of years – whether the learned Magistrate erred in concluding that the trial was one of special difficulty, complexity of importance. CRIMINAL LAW – SENTENCE – where the learned Magistrate imposed a fine of $276,000 – where the appellant succeeded on two grounds of appeal against conviction – where the sentencing discretion was to be exercised afresh – where the appellant was convicted of unlawfully clearing 346.6 hectares of land – where the unlawful clearing took place -- 2 of 115 -- 3 over approximately three years – where departmental officials explained the unlawfulness of the clearing throughout the period in which the clearing took place – where certain land clearing activities were performed to improve the performance of grazing activities – where the appellant demonstrated no remorse, either at trial or on appeal – where an expert report was tendered concerning the environmental harm consequent upon the land clearing – where general and personal deterrence are of significant importance – whether the expert report was admissible – whether the expert report ought be given any weight – whether and in what amount to order a fine – whether a conviction should be recorded. CRIMINAL LAW – PROCEDURE – JURISDICTION – where the learned Magistrate gave orders pursuant to s. 599 Sustainable Planning Act 2009 (Qld) prohibiting the appellant from clearing native vegetation and requiring the appellant to allow departmental officials access to his property to inspect compliance – where the appellant submits that the learned Magistrate did not have jurisdiction to make these orders – whether s. 599 Sustainable Planning Act confers power to make such orders – whether orders in the same terms as the learned Magistrate’s should be made on appeal. CRIMINAL LAW – PROCEDURE – COSTS – where s. 232A Justices Act provides that costs of a conviction appeal may be awarded where it is just to do so having regard to the special difficulty, complexity or importance of the appeal – where the appeal took seven days to hear – where the appellant challenged expert evidence on appeal – where the appeal raised issues which were not considered by the learned Magistrate – where the respondent retained senior and junior counsel – whether the appeal was of special difficulty, complexity or importance – whether s. 232A Justices Act conferred a power to make a costs order in respect of counsel’s fees – whether and in what quantum an order to pay the respondent’s legal costs and disbursements should be made against the appellant. Legislation Australian Consumer Law (Cth), s. 243 Bail Act 1980 (Qld), s 14A Criminal Code Act 1899 (Qld), s 617 Criminal Practice Rules 1999 (Qld), r 59, r 62 Fair Work Act 2009 (Cth), s 545 Forestry Act 1959 (Qld), s 39, s 54, s 88 -- 3 of 115 -- 4 Justices Act 1886 (Qld), s 88, s 142, s 142A, s 144, s 145, s 146, s 146A, s 147, s 147A, s 149, s 150, s 151, s 152, s 153, s 157, s 158, s 158B, s 159, s 160, s 222, s 223, s 232, s 232A Justices Regulation 2004 (Qld), sch 2 Penalties and Sentences Act 1992 (Qld), s 15, s 49 Sustainable Planning Act 2009 (Qld), s 599 Vegetation Management Act 1999 (Qld), s 20AK, s 20AO, s 20B, s 30, s 31, s 32, s 33, s 36, s 54A, s 54B, s 54C, s 55A, s 68C, s 70B Uniform Civil Procedure Rules 1999 (Qld), r. 367 Cases Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157 Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128 Bell v Carter [1992] QCA 245 BRB Modular Pty Ltd v AWX Constructions Pty Ltd [2015] QSC 222 Chief Executive, Office of Environment and Heritage v Reitano (No 2) [2019] NSWLEC 39 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Police Service v Spencer [2014] 2 Qd R 23 Coombe v Ashlin and Blinco, unreported, Magistrates Court of Queensland, Magistrate Ryan, 2 September 2015 Cullinan v McCahon [2014] QDC 120 Dever v Creevey; ex parte Creevey [1993] 1 Qd R 232 Director-General, Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31 Fitzgerald v Newing; ex parte Newing [1965] QWN 14 Gibson v Canniffe [2008] QDC 319 George v Rockett (1990) 170 CLR 104 Hickey v Crime and Misconduct Commission [2008] QDC 340 Hili v The Queen (2010) 242 CLR 520 Hill v Holeszko [2017] QDC 35 Hindman v Sargent, unreported, District Court of Queensland, Andrews DCJ, 5 May 2014 Kimlin v Wilson; ex parte Kimlin [1966] Qd R 237 -- 4 of 115 -- 5 Kimmorley v Atherton; ex parte Atherton [1971] Qd R 117 Kuru v State of NSW (2008) 236 CLR 1 Lasker v Holeszko [2019] QCA 163 Lawrence v The King [1933] AC 699 Lucev v Queensland Police Service [2013] 1 Qd R 518 Lucy v OCC Holdings Pty Ltd (No. 2) [2008] QDC 169 Mareangareu v R [2019] VSCA 101 Maxwell v R (1996) 184 CLR 501 Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 Morley v Senewiratne & Anor [2008] QDC 296 Morley v Senewiratne & Anor [2008] QDC 325 R v Billington [1980] VR 625 R v Cross (Patrick) [1973] 1 QC 937 R v Jones (1998) 72 SASR 281 R v Lapa (No.2) (1995) 80 A Crim R 398 R v Milos [2014] QCA 314 R v Rasmussen [2002] 1 Qd R 299 R (Commonwealth) v Elomar (2010) 264 ALR 759; [2010] NSWSC 10 Schloss v Bell [2016] ICQ 17 Scriven v Sargent (No. 2) [2016] QDC 16 Scriven v Sargent (No. 2), unreported, District Court of Queensland, McGill SC DCJ, 21 April 2016 Shield v Topliner Pty Ltd [2004] QCA 476 Stanley v Phillips (1966) 115 CLR 470 Thompson Residential Pty Ltd v Tran [2014] QDC 156 Other Kennedy Allen, “The Justices Acts (Queensland)” (The Law Book Co, 3rd ed, 1956) Pearce and Geddes, “Statutory Interpretation in Australia” (LexisNexis, 8th ed, 2014) COUNSEL: G Allan and S Trewavas for the appellant G Dann for the respondent -- 5 of 115 -- 6 SOLICITORS: Marland Law for the appellant Department of Natural Resources and Mines for the respondent -- 6 of 115 -- 7 Contents SUMMARY ............................................................................................................................ 9 HER HONOUR’S REASONS AND ORDERS ................................................................. 10 The 18 November 2016 hearing ...................................................................................... 10 The 24 November 2016 hearing ...................................................................................... 14 The 24 November 2016 reasons ...................................................................................... 15 Written submissions at trial on penalty, costs and s. 599 SPA .................................... 15 Penalty ........................................................................................................................... 15 Section 599 SPA ............................................................................................................ 18 Costs of the trial ............................................................................................................ 19 The 27-28 February 2017 hearing .................................................................................. 20 Her Honour’s judgment on 28 February 2017 .............................................................. 22 Her Honour’s judgment on 20 March 2017 .................................................................. 23 THE COSTS APPEAL ........................................................................................................ 26 Did her Honour have power to award costs? ................................................................ 26 Her Honour’s reasoning............................................................................................... 26 The appellant’s submissions ......................................................................................... 27 The respondent’s submissions ...................................................................................... 30 Analysis.......................................................................................................................... 33 Conclusion of first ground of appeal ........................................................................... 54 Special difficulty, complexity or importance ................................................................. 54 Her Honour’s reasoning............................................................................................... 54 The appellant’s submissions ......................................................................................... 54 The respondent’s submissions ...................................................................................... 56 Analysis.......................................................................................................................... 57 Adjustment of trial costs consequent on the May reasons ........................................... 58 INVESTIGATION COSTS APPEAL ................................................................................ 59 THE SENTENCE APPEAL ............................................................................................... 60 Maximum penalties for each offence.............................................................................. 60 Value of a penalty unit .................................................................................................. 60 Maximum penalty: Forestry Act offences .................................................................... 60 Maximum penalty: SPA offences ................................................................................. 61 Total maximum penalty ................................................................................................ 61 Circumstances of the offending ...................................................................................... 61 The characteristics of the clearing ............................................................................... 61 Course of the offending and Mr Baker’s dealings with departmental officials ......... 63 Observations on the character of the offending ............................................................ 74 Mr Dillewaard’s report on environmental harm .......................................................... 75 Summary of Mr Dillewaard’s evidence ........................................................................ 75 The position of the parties ............................................................................................ 77 Analysis.......................................................................................................................... 78 General deterrence........................................................................................................... 79 Personal deterrence ......................................................................................................... 80 Approach to calculation of penalty ................................................................................ 81 -- 7 of 115 -- 8 The approach below ...................................................................................................... 81 The approach on this appeal ........................................................................................ 82 The authorities on penalty............................................................................................... 82 Manner in which offences were charged ....................................................................... 87 Conclusion on penalty...................................................................................................... 87 Recording of a conviction ................................................................................................ 88 THE S. 599 SPA APPEAL .................................................................................................. 89 The s. 599 orders .............................................................................................................. 89 The appeal ground ........................................................................................................... 89 Context in which the s. 599 appeal arises ...................................................................... 90 The events relating to the Restoration Notices ............................................................ 90 The nature of the appeal ............................................................................................... 91 Statutory scheme .............................................................................................................. 92 Appellant’s submissions .................................................................................................. 96 Respondent’s submissions ............................................................................................... 97 Analysis ............................................................................................................................. 98 Section 599(1) is not confined to orders under s. 599(3) ............................................. 98 Order 1 is within power................................................................................................. 99 Order 2 is not within power ........................................................................................ 101 Discretion ........................................................................................................................ 102 FORESTRY ACT COMPENSATION ORDER ............................................................. 103 COSTS OF THE CONVICTION APPEAL .................................................................... 104 The appeal was of special difficulty and complexity and importance....................... 104 Power exists to award counsel’s fees as such under s. 232A(2) ................................. 107 Quantum of costs of the conviction appeal .................................................................. 109 Evidence of costs and disbursements on the appeal .................................................. 111 Determination of costs and disbursements to be paid ............................................... 112 FORMAL ORDERS ON THE CONVICTION APPEAL ............................................. 113 ORDERS ON THE SECOND NOTICE OF APPEAL .................................................. 114 -- 8 of 115 -- 9 SUMMARY [1] On 17 May 2019, I delivered judgment in Mr Baker’s appeal to this Court filed 19 December 2016 (the conviction appeal) from his conviction in the Magistrates Court of 46 offences arising out of the clearing of native vegetation on a rural property called Chess Park, near Eidsvold in the North Burnett region (the May reasons).1 These reasons are intended to be read together with the May reasons. Defined terms in those reasons are used in these reasons. [2] The offences the subject of the conviction appeal fell into two categories: offences against the Forestry Act relating to clearing on areas of land regulated by that Act and offences against the SPA relating to clearing on leasehold and later freehold land. The appeal was upheld in respect of Charges 1 and 2 of Complaint 1, which related to Forestry Act offences. The appeal was otherwise dismissed. [3] By Amended Notice of Appeal filed 30 May 20192 (the Second Notice of Appeal) Mr Baker also appealed against sentence and the recording of a conviction (the sentence appeal), the order for costs of the trial (the costs appeal), against two orders under s. 599 SPA consequent on conviction (the s. 599 appeal), an order for payment of investigation costs under s. 68C VMA (the investigation costs appeal). [4] I adjourned the hearing of the Second Notice of Appeal until after determination of the conviction appeal.3 These reasons deal with the Second Notice of Appeal. [5] As to the sentence appeal, at first instance her Honour imposed a single fine for all the offences in the amount of $270,000 and recorded a conviction. The sentence appeal was conducted by both parties on the basis that the consequence of upholding the appeal on two of the convictions was that I must exercise the sentencing discretion afresh. The same must be true of the recording of a conviction. For the reasons given below, I impose a fine in the amount of $250,000 and record a conviction. [6] Her Honour ordered Mr Baker to pay costs of the trial in the amount of $541,309.15. By the costs appeal, that order was challenged on two grounds: (a) First, s. 157 Justices Act, relevantly, authorises a justice to order “by the conviction” that the defendant pay the costs of the trial of a complainant. Mr Baker submitted that by her Honour’s ex tempore reasons on 18 November 2016, the conviction of Mr Baker on each charge occurred without the order for costs being included in the conviction, with the consequence that the power to award trial costs was not exercisable when her Honour purported to award such costs on 20 March 2017; and (b) Second, even if her Honour had power to award costs, her Honour erred in concluding that she had discretion to award costs beyond scale costs under s. 158B(2) Justices Act because the case was not one of special difficulty, complexity or importance. 1 Baker v Smith [2019] QDC 76. 2 Filed in reliance on leave given on 7 March 2018. 3 I did not advert to the s. 599 Appeal at the time but neither party suggested that should not be treated as having been adjourned along with the other matters raised in the Second Notice of Appeal. -- 9 of 115 -- 10 [7] I am unpersuaded by both grounds of appeal. Her Honour still had power to award costs on 20 March 2017 and was correct in her conclusion that s. 158B(2) was engaged. I have adjusted the costs awarded to take account of the appellant’s successes on the conviction appeal. [8] The appellant challenged two orders made under s. 559 SPA: (a) An order which prohibited any further clearing of native vegetation in the charge areas; and (b) An order which compelled Mr Baker to grant access to departmental officers to Chess Park on notice to check on compliance with the first order. [9] The appellant submitted both orders were beyond the scope of the power conferred by s. 599 SPA. I have rejected that proposition in respect of the first order, but accept it in respect of the second order. [10] As to the investigation costs appeal, I was not persuaded her Honour erred in making the order for investigation costs. [11] Two matters remain to be resolved in respect of the conviction appeal. I need to make orders consistent with the May reasons and I need to deal with costs of the appeal. As to those: (a) The formal orders upholding the appeal on two charges are made below; and (b) I order the appellant to pay the respondent’s costs of the appeal in the amount of $224,859.15. [12] I have also reduced the compensation orders made under the Forestry Act by her Honour for the loss and damage from clearing in the Forestry Act areas to take account of the success on the conviction appeal. [13] Unlike the position on the conviction appeal, an appeal book was prepared for the Second Notice of Appeal (the Appeal Book). I have also had regard on occasion to material in respect of the conviction appeal. The Appeal Book did not include the material on the conviction appeal. HER HONOUR’S REASONS AND ORDERS [14] Her Honour’s dealings with the complaints after trial began with the hearing on 18 November 2016. Those events were summarised in the May reasons.4 It is necessary for the purposes of these reasons to set out those events in greater detail, with the grounds of appeal in mind. The 18 November 2016 hearing [15] This was the first hearing post-trial. Mr Hunter QC attended for the respondent and a Mr T. Allen attended for the appellant. 4 May reasons [130] to [133]. -- 10 of 115 -- 11 [16] The proper characterisation of her Honour’s decision communicated on that day is disputed. The discussion which preceded it can be relevant to construing the legal character of her statements. The following relevantly transpired:5 BENCH: What happened, if I can explain, is that a fortnight ago I understood parties were advised that the decision would be given today. I found out very close, I think Thursday or Wednesday, that parties hadn’t been advised. And then there’s been a flurry of miscommunication since then. Now, I would like to give the decision today, and mention the matter, then, if necessary on Wednesday. MR HUNTER: [indistinct] yes, your Honour. BENCH: Now, are you – both parties content with that: if I give the outline of my decision today, so you know what it is? MR HUNTER: Yes, your Honour. BENCH: Mr Hunter? MR ALLEN: Mr Allen, your Honour. I don’t have instructions for that. I’m just appearing on behalf of my principal, who is out west today. And - - - BENCH: Who is your – but you – I thought you – I thought it was well understood that you knew – I’ve got an email saying can you appear by telephone because of the late notice. I understood that the problem was there was late notice for you, which I accepted because you’re in Bundaberg - - - MR ALLEN: [indistinct] BENCH: - - - and your counsel’s in Victoria, and you asked to appear by telephone. MR ALLEN: As I understood, your Honour – I’m Thomas Allen, a law graduate. As I understood, I was appearing for a mention on behalf of Marland Law, and you were handing down the decision next Wednesday. BENCH: Well, I want to hand down the decision today. MR ALLEN: Okay. Yes, your Honour. BENCH: I don’t want to delay it. I think that you can – you’ve wanted to appear; I think you can accept the decision, can you? And if any further submissions are to be made, they can be made on Wednesday. MR ALLEN: Yes, your Honour. I’ll make a note of that. BENCH: Do you have any views, Mr Hunter? MR HUNTER: Well, in my submission, there should be no impediment to your Honour handing down a decision today. The result of it can be communicated to parties or to Mr Baker and his qualified legal representatives, and we can sort out any matters that need to be sorted out next week. BENCH: I don’t want to delay - - - MR HUNTER: No. I understand. BENCH: - - - with communicating the decision. MR HUNTER: Yes, your Honour. BENCH: That’s the only thing. MR HUNTER: Yes. 5 18 November 2016, TS 1-2.25 to 3.39. Exhibit DTM-1 of affidavit of Marland filed 1 February 2017 in the Magistrates Court proceedings, added to the Appeal Book material by leave (Marland Affidavit). -- 11 of 115 -- 12 [17] Her Honour was concerned to give her “decision” or an “outline of her decision” and to “communicate the decision” that day and contemplated that any matters that needed to be sorted out could be sorted out on the next hearing intended for the following Wednesday. [18] Her Honour then gave reasons. The reasons cover less than three pages of transcript. [19] Her Honour began as follows:6 BENCH: This is the decision in the matter of Smith and Baker most of which I’ve left upstairs. In this matter there are four complaints before the Court alleging that the defendant, Mr Michael Vincent Baker, engaged in unlawful clearing of property at Chess Park in contravention of the Forestry Act, the Sustainable Planning Act and the Vegetation Management Act, but essentially, the complaints 2 and 4 relate to breaches of the Sustainable Planning Act over a period of time from May 2011 until April 2014. The only rational inference to be drawn on all the evidence which was extensive is that it was Mr Baker, the defendant, who carried out the clearing or it was someone at his direction who did so between the dates alleged on the complaints 1, 2, 3 and 4 and at the places alleged. [20] Her Honour then briefly rejected a submission as to the conduct of the prosecution and turned to the limitation submissions. Her Honour dealt with the limitations points over the following six paragraphs which occupied most of the reasons. Having concluded that the complaints were filed in each relevant case in time, the balance of her Honour’s reasons were as follows:7 So the questions, then, are the – relate to whether the prosecution have proved beyond reasonable doubt the charges and have excluded beyond reasonable doubt any defences that are available. In relation to complaint 1, the – just excuse me one moment. The exemptions under the SPA were not – under the Sustainable Planning Regulations were not available to the complaints 1 or 3. Mr Baker clearly carried out the clearing. The allowance that might be available under sections 63 and 65 of the Forestry Act are not available. In clearing the FEA 34, the road reserve and the Dyngie State Forest the defendant interfered with forest products and did so unlawfully. There are on defences available to him. The forest products are the property of the Crown and he is found guilty as he has no defence to – in relation to all of the charges on complaint 1 and 3. In relation to counts 2 and 4, I accept the evidence and in relation to all the complaints I accept the evidence of the Crown witnesses without reservation. In relation to complaints 2 and 4, I accept the evidence of the expert, Mr Dillewaard, the botanist from Queensland Herbarium and the evidence from Mr Tran. His evidence was given in terms of his vast experience and was a scientific basis. I do not accept any criticism of his evidence led to any change in his opinion which I accept. The prosecution have excluded any exemptions that are available to the clearing alleged in complaints 2 and 4. There were particularly – in particular, relying on the evidence of Mr Dillewaard, there was no forest practice. Imminent means has its usual meaning and it means about to happen in terms of essential management. Routine management has – was – routine management has been excluded. Therefore, the prosecution, on evidence as I’ve found have excluded the possibility that any of the clearing – and of the clearing conducted by Mr Smith on Chess Park in its freehold capacity or in the leasehold was not exempt under the provisions of the regulations to the Sustainable Planning Act in schedule 24 and he is found guilty in relation to complaints 2 and 4. That is the decision. [Underlining added] 6 18 November 2016, decision TS 2.1 to .12. These reasons were not included in the Appeal Book but were referred to in submissions and were provided to the Court during the hearing of the conviction appeal. 7 18 November 2016, decision, TS 3.38 to 4.25. -- 12 of 115 -- 13 [21] Her Honour then immediately stated:8 BENCH: That is the decision. … BENCH: I simply wanted to convey that I have found Mr Baker guilty. In the rush of changing courts, in not knowing that you were not going to – I did not bring all my notes. So - - - … BENCH: - - - it’s to an extent ex tempore, but not – it doesn’t change my decision. MR HUNTER: No. Well [indistinct] will your Honour formally pronounce the orders on Wednesday? Is that your Honour’s intention? BENCH: That was my intention. I was hoping that I could have an appearance on Wednesday. [Underlining added] [22] Mr Hunter then further discussed with her Honour what she intended to be resolved at the hearing proposed for the next Wednesday. Her Honour makes plain that her intention was to try to deal with costs, sentence and reparation. Mr Hunter told her Honour that the complainant would not be ready to deal with those matters for some time because of the need to obtain evidence and so on. Her Honour then agreed to hear from Mr Hunter on when those matters could be dealt with at a hearing the next week.9 There was then some discussion of the day upon which the matter would be further mentioned for that purpose. There was then this exchange about the issue of costs specifically: BENCH: The idea was – my idea was to give you the decision today, and then perhaps there might be some conversations about costs. MR HUNTER: Yes. BENCH: Yes. MR HUNTER: Well, just so as I – just to be absolutely certain that I’m preserving my position: to the extent that your Honour’s given orders today, the prosecution formally apply for costs. And the question should in our submission be [indistinct] BENCH: You’re – yes. You have to apply once I’ve convicted. Yes. MR HUNTER: Well, I’m not sure that the prosecution do. But certainly the [indistinct] principle applies to the defence, and the - - - BENCH: That’s true. MR HUNTER: I’m just concerned that it might apply to the prosecution. So I - - - BENCH: If it applies to the prosecution, you’re applying today. Yes. MR HUNTER: I’m formally applying for costs. BENCH: All right. And we’ll adjourn - - - MR HUNTER: I just ask that the question be adjourned to get - - - BENCH: I’ll adjourn that question of costs. [Underlining added] [23] The matter was left on the basis that on the next occasion Mr Hunter would report on when his client would be able to address costs, sentence and reparation. Save for this: when the matter of Mr Baker’s attendance at the next hearing come up, her Honour indicated that Mr Baker could appear by legal representatives but added 8 18 November 2016, TS 1-4.18 to .39. 9 18 November 2016, TS 1-6.9 to 7.34. -- 13 of 115 -- 14 “[a]nd Mr Baker, convicted, is at large”.10 This shorthand expression was presumably meant to communicate that Mr Baker was permitted to be at large without bail pending the further hearing of the complaints contemplated by her Honour under either or both of s. 14A(1)(b) Bail Act 1980 (Qld) or s. 88 Justices Act. Interestingly, both provisions apply where the Magistrates Court adjourns the hearing of a charge. In each case it seems improbable that the sections would be construed so as to exclude the sentencing of a defendant from the scope of the hearing of a charge, particularly as there does not seem to be any other express power in either statute permitting a defendant to be at large pending sentence after being found guilty. The 24 November 2016 hearing [24] On 24 November 2016, Mr Hunter and Mr Sheridan appeared. Her Honour stated her intention to publish written reasons for her decision stated on 18 November. Her Honour put it like this: “On [18 November] the decision was given to find Mr Michael Vincent Baker guilty of all the charges on complaints 1, 2, 3 and 4 that were before the court”.11 Her Honour and the representatives of both parties then agreed that the the purpose of the mention was to arrange time for the provision of submissions on costs, penalty and reparation.12 [25] Mr Hunter then consciously sought to clarify the position on the costs issue as follows:13 MR HUNTER: And, your Honour, from this end of the bar table, the prosecution asks that your Honour refrain from formally pronouncing orders in relation to the matter until such time as your Honour imposes sentence and makes other orders in relation to costs. BENCH: Yes. MR HUNTER: We’re just anxious to preserve our position in respect of costs and - - - BENCH: Yes. MR HUNTER: - - - avoid a situation where - - - … MR HUNTER: - - - your Honour’s functus officio - - - BENCH: I have made no orders - - - MR HUNTER: Thank you. BENCH: - - - about that - - - MR HUNTER: All right. BENCH: - - - and any questions around costs are adjourned. [26] Of course, whether her Honour had made orders is not strictly the question. The question is whether her Honour’s statements on 18 November comprised “the conviction” of Mr Baker of the charges in the complaints, although the context in which her Honour gave the decision (including statements made by her Honour contemporeanous with it) might inform the answer to that question. 10 18 November 2016, TS 1-11.24. 11 24 November 2016, TS 2.29 to .31. 12 24 November 2016, TS 2.38 to .45. 13 24 November 2016, decision TS 3.1 to .27 at Exhibit DTM-2 to the Marland Affidavit. -- 14 of 115 -- 15 [27] The parties then agreed directions for the filing of material on costs, sentence and reparation and her Honour listed the matter for hearing on these issues on 27 and 28 February 2017. Her Honour told the parties she would provide her written reasons (the Reasons) by email later that day, which she did. The 24 November 2016 reasons [28] The Reasons were the subject of extensive citation and analysis in my May reasons.14 As explained there, her Honour dealt with various general matters before turning to individual consideration of each of the charges. After reviewing the specific submissions on each charge, her Honour stated that Mr Baker “is found guilty” of the particular charge. On some charges she overlooked making that statement, and she added the omitted findings in her Revised Reasons delivered on 20 March 2017.15 Written submissions at trial on penalty, costs and s. 599 SPA Penalty Complainant’s penalty submissions [29] Although it is common ground that I must re-exercise the sentencing discretion, it facilitates that task to set out the main arguments on penalty at trial, particularly as they are relied upon to a substantial degree on appeal. [30] The main issues raised by the complainant were as follows.16 [31] The complainant started by identifying the circumstances of the trial and the seriousness of the offences reflected in the maximum penalties ($100,000 or $110,000 for the Forestry Act offences and $166,500 or $183,150 for the SPA offences depending on when they were committed.17) [32] The complainant emphasised the role of general and, particularly, personal deterrence in this case. It highlighted, in the latter respect, Mr Baker’s dismissive attitude to his legal obligations. He also submitted that her Honour ought to conclude that the clearing was undertaken to obtain some level of commercial benefit.18 [33] The complainant submitted that the Court ought to characterise the offending as comprising four distinct courses of conduct related to four distinct temporal phases of clearing. Each phase, it was argued, involved more serious offending because Mr Baker had been told from time to time about the lawfulness of the clearing in increasing detail. The four phases were: (a) Clearing prior to the visit by the departmental officers on 16 November 2011 (by which time, it was said, relevant prohibitions in the legislative schemes had been brought to Mr Baker’s attention); (b) Clearing after that visit and before 24 February 2012,19 when Mr Baker was informed that an endorsed fire management plan did not amount to approval of a vegetation clearing application; 14 The May reasons at [137] to [172]. 15 See the May reasons at [132]. 16 Complainant’s submissions on penalty at trial appear at Appeal Book, Vol 1, pp 35-65. 17 Complainant’s submissions on penalty at trial, paragraphs 22-32 at Appeal Book, Vol 1, pp 39-42. 18 Complainant’s submissions on penalty at trial, paragraphs 13-21 at Appeal Book, Vol 1, pp 36-39. 19 As explained below, this letter was dated 24 April 2012. -- 15 of 115 -- 16 (c) After 24 February 2012 and before 14 December 2012, when Mr Baker was informed in writing of the investigation into unlawful land clearing; and (d) After December 2012, when it was said Mr Baker was fully appraised of the unlawfulness of his conduct.20 [34] The complainant then cited s. 49 Penalties and Sentences Act 1992 (Qld) (which permits a single fine to be imposed for offences of a similar kind) and invited her Honour to impose a single fine, calculated by reference to each phase of offending. [35] The complainant relied on the following aggravating features. (a) The area cleared.21 (b) The adverse environmental impact of the clearing. On this point the complainant relied on Mr Dillewaard’s report dated 8 December 2016 dealing with environmental impact of the clearing.22 (c) Mr Baker’s deliberate and persistent disregard of the law, said to be demonstrated by his conduct despite being warned of the potential unlawfulness of continuing to clear, along with his statements in correspondence dismissive of legal obligations.23 (d) There was no evidence of any remorse or contrition, even at the time of sentence.24 [36] The complainant then sought orders for loss and damage under the Forestry Act in the amount of $17,471.01 in respect of the charges in Complaints 1 and 3. That was based on evidence from departmental officer, Mr Reinke as to the commercial value of cleared timber.25 [37] The complainant contended that there were not cases sufficiently analogous to this one which assisted in setting the fine. For the Forestry Act offences, the complainant relied on two Magistrates Court decisions both said to be much less serious than Mr Baker’s offending. For the SPA and VMA offending, only three cases were relied upon, each of which was said to be less serious than this offending.26 [38] The complainant’s ultimate submission was for a penalty calculated by reference to the four phases of offending in the amount of 20 per cent, 30 per cent, 40 per cent and 70 per cent of the maximum penalty for the charges included in that phase, being $33,300, $49,950, $83,250 and $110,000 respectively, a total of $276,500. The complainant sought the recording of a conviction. Defendant’s penalty submissions [39] The defendant began with a detailed analysis of two District Court decisions in which first instance fines were reduced on appeal: Scriven v Sargent (No. 2) [2016] QDC 16 and Hindman v Sargent (unreported, District Court of Queensland, Andrews DCJ, 5 May 2014).27 In those cases, fines of $40,000 and $15,000 were imposed for larger 20 Complainant’s submissions on penalty at trial, paragraphs 41-54 at Appeal Book, Vol 1, pp 43-46. 21 Complainant’s submissions on penalty at trial, paragraph 57 at Appeal Book, Vol 1, p 46. 22 Complainant’s submissions on penalty at trial, paragraphs 59-65 at Appeal Book, Vol 1, pp 47-52. 23 Complainant’s submissions on penalty at trial, paragraph 66 at Appeal Book, Vol 1, pp 52-53. 24 Complainant’s submissions on penalty at trial, paragraph 67 at Appeal Book, Vol 1, p 53. 25 Complainant’s submissions on penalty at trial, paragraphs 69-72 at Appeal Book, Vol 1, pp 53-54. 26 Complainant’s submissions on penalty at trial, paragraphs 98-108 at Appeal Book, Vol 1, pp 58-62. 27 Defendant’s submissions on penalty at trial, paragraphs 5-23 at Appeal Book, Vol 1, pp 113-117. -- 16 of 115 -- 17 areas of clearing (1,800 hectares and 1,300 hectares respectively). The defendant also emphasised that there was no evidence of commercial gain from the clearing. The defendant also relied on an extensive table of previous decisions in the Magistrates Court relating to land clearing offences. [40] The defendant then addressed the circumstances of the offending, emphasising:28 (a) Mr Baker’s emotive correspondence was understandable given that the property was affected by fires in September 2011; (b) Following those fires Mr Baker made clear he thought a 10 metre fire break was inadequate; (c) Although the departmental officers had reason to believe unlawful clearing was occuring from August 2012, they did not issue any notice preventing further clearing until December 2013. Nor did the department take up his invitation to seek an injunction. If they had, the clearing would not have occurred; (d) Mr Baker permitted inspection of Chess Park without a warrant; and (e) Mr Baker was within his rights to require strict proof at trial, and it was the prosecution’s fault that the trial was complex given the approach taken to strict proof (while at the same time submitting that clearing offences are well known as being difficult to prove). [41] The defendant then addressed deterrence.29 The defendant characterised the dealings with the departmental officers quite differently. He submitted that the circumstances showed: (a) Differing views about complex legislation by departmental officers and the defendant; (b) Mr Baker, as a new landholder, making every attempt to inform the departmental officers of his intentions and reasons for his actions; (c) The ignorance of the departmental officers of the difficulties arising from fires on rural properties; and (d) The defendant submitted that the clearing showed a systematic attempt to create fire breaks and that excluded an intention to create more pasture. [42] As to mitigation, the defendant submitted, inter alia:30 (a) His request for fire mitigation assistance from his purchase in April 2011 were ignored with the September 2011 event then occuring; (b) Mr Baker is of retirement age, with little experience of a large rural property and little local fire support; and (c) Little of the clearing was clear felling. [43] As to environmental effects, the defendant submitted that Mr Dillewaard’s evidence was so flawed and inconsistent as to be of no weight in assessing environmental impact.31 As to the loss and damage claim under the Forestry Act, the defendant 28 Defendant’s submissions on penalty at trial, paragraphs 24-36 at Appeal Book, Vol 1, pp 117-119. 29 Defendant’s submissions on penalty at trial, paragraphs 37-47 at Appeal Book, Vol 1, pp 120-122. 30 Defendant’s submissions on penalty at trial, paragraphs 48-49 at Appeal Book, Vol 1, pp 122-123. 31 Defendant’s submissions on penalty at trial, paragraphs 52-62 at Appeal Book, Vol 1, pp 124-126. -- 17 of 115 -- 18 submitted Mr Reinke’s evidence failed to provide a reliable basis to assess the value of the timber cleared in those areas.32 [44] No submission was made as to what penalty should be imposed. Complainant’s reply [45] The complainant replied in detail to the defendant’s submissions, caviling with most matters raised. It is sufficient to note the following specific matters. [46] The complainant emphasised that Scriven and Hindman were not relevantly comparable and challenged the relevance of the defendant’s table of cases given changes in the sentencing regime. The complainant also met in detail the attacks on the opinions of Mr Dillewaard and Mr Reinke. [47] The complainant also disputed most of the factual submissions made by the defendant. He submitted that: (a) There was evidence that some of the clearing had been for the commercial purposes of increasing pasture or assisting in the operation of the property as a cattle property; (b) Mr Baker was given advice on bush fire management early on and he chose to ignore it; (c) Mr Baker was not consistent in setting out his intentions in correspondence; (d) Mr Baker did not cooperate with the administration of justice in any material way, and in particular, only the first visit by Mr Smith was without a warrant; and (e) Mr Baker was repeatedly told of his legal obligations. It could not be inferred that if he was restrained by some injunctive type order that he would have ceased his conduct. Section 599 SPA [48] The submissions on s. 599 SPA were brief. The complainant noted the intention of the chief executive to make a PMAV including the cleared areas and to require restoration under a restoration notice under s. 54B VMA. In support of that process, the complainant sought orders under s. 599 which in general terms: (a) Prohibited the defendant from clearing any native vegetation in the areas of clearing subject to SPA; (b) Required the defendant to allow departmental officers access to Chess Park to set up photographic monitoring points; (c) Caused monitoring photographs to be taken at certain intervals; and (d) To permit access to departmental officers to check compliance with the orders. [49] (As is explained in paragraph [66] below, the second and third of the orders above were not pressed at the hearing.) [50] The defendant’s response was to the effect that the physical elements of the proposed orders were oppressive, dangerous and uncertain. Those matters were not pressed 32 Defendant’s submissions on penalty at trial, paragraphs 63-70 at Appeal Book, Vol 1, pp 126-127. -- 18 of 115 -- 19 on this appeal and related primarily to obligations in the proposed order not pressed at the hearing.33 Costs of the trial Key statutory provisions [51] It assists understanding of the matters relevant to the costs appeal to set out the key statutory provisions. The relevant provisions are ss. 157, 158B, 159 and 160 Justices Act, which provide: 157 Costs on conviction or order In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable. 158B Costs for division (1) In deciding the costs that are just and reasonable for this division, the justices may award costs only— (a) for an item allowed for this division under a scale of costs prescribed under a regulation; and (b) up to the amount allowed for the item under the scale. (2) However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case. 159 The sum allowed for costs to be specified in the conviction or order The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction. 160 Costs how recoverable The sum allowed for costs in a conviction or order by which a penalty or sum of money is adjudged to be paid shall be recoverable in the same manner and under the same warrants as the penalty or sum of money adjudged to be paid by the conviction or order is recoverable. Complainant’s cost submissions [52] The complainant contended that an uplift for costs above scale under s. 158B(2) Justices Act was justified on the basis of special difficulty, complexity or importance. The complainant contended that the complexity of the case, arising from the number of separate areas, the different forms of clearing, the multiple complex statutory schemes and the character of the defence (being focused on fire management in each case) demonstrated special difficulty. It was also submitted that the fire management defence made the matter of some importance. The complainant also relied on the complexities of proof given the timing, location and disparate character of the clearing, the extent of the correspondence between the appellant and the respondent and the complexity arising from the limitations arguments.34 [53] The complainant recognised that in assessing the costs which were just and reasonable under s. 158B(2) regard was to be had to the scale of costs in the Justices Act, and contended for scale costs for professional fees at $20,750. Adopting an approach based on Morley v Senewiratne & Anor [2008] QDC 296, the complainant 33 Defendant’s submissions on penalty at trial, paragraphs 71-73 at Appeal Book, Vol 1, pp 127-128. 34 Complainant’s submissions on costs at trial, paragraphs 1-10 at Appeal Book, Vol 2, pp 688-693. -- 19 of 115 -- 20 contended for this to be multiplied by four to allow for the four complaints and then multiplied by three to allow for the complexity of the case, giving a total of $249,000. [54] Disbursements primarily comprising transcript fees and witness expenses for Mr Tran were claimed at $114,851.04.35 The complainant contended hearing fees of counsel could be added as a disbursement and that senior and junior counsel were justified. Evidence showed counsel’s fees amounted to $155,250.36 [55] The complainant separately sought investigation costs under s. 68C(1) VMA of $165,369.55.37 Defendant’s costs submissions [56] The defendant submitted that her Honour did not have power to order costs after 18 November 2016, because “the conviction” of Mr Baker on all charges occurred on that date with the consequence that the time for ordering costs under s. 157 Justices Act had passed. The defendant’s submissions developed that point in detail.38 Those submissions are repeated in this appeal and dealt with below. [57] The defendant also submitted that the jurisdiction to award costs above scale costs was not enlivened because although the case was of some difficulty and was subjectively important, it was not of special difficulty, complexity or importance under s. 158B(2). [58] The defendant finally submitted that the amounts sought by the complainant were not just and reasonable. [59] The first two issues arise on this appeal and the arguments before her Honour were put again in this appeal. They are considered below. No more need be said about those points at this stage. [60] The last issue was not pursued on this appeal. The 27-28 February 2017 hearing [61] The hearing before her Honour over 27 and 28 February 2017 dealt with penalty, costs and the s. 599 SPA application. It is necessary for the purposes of the appeal to highlight certain matters which occurred during the hearing (despite the extensive written submissions). [62] Mr Hunter raised the fact that her Honour had omitted to state that Mr Baker had been found guilty of eight offences in the Reasons despite accepting the prosecution submissions on those matters (which led to the Revised Reasons: see the May reasons at [132]).39 [63] Mr Marland for the defendant, stated that a Restoration Notice pursuant to s. 54B VMA had been served just prior to the hearing. He sought a stay of that notice pending the sentence and s. 599 SPA decision.40 Mr Hunter pointed out that the 35 Complainant’s submissions on costs at trial, paragraph 23 at Appeal Book, Vol 2, p 699. 36 Complainant’s submissions on costs at trial, updated scale costs, paragraph 10 at Appeal Book, Vol 2, p 712. 37 Complainant’s submissions on costs at trial, paragraphs 28-32 at Appeal Book, Vol 2, pp 702-703. 38 Defendant’s submissions on costs at trial, paragraphs 3-86 at Appeal Book, Vol 2, pp 619-633. 39 27 February 2017, TS 1-5.8 to .12 at Appeal Book, Vol 2, pp 456. 40 27 February 2017, TS 1-12.3 to 16.2 at Appeal Book, Vol 2, pp 463-467. -- 20 of 115 -- 21 Magistrates Court had no jurisdiction to stay that notice and the matter proceeded on the basis that the notice was valid.41 [64] Mr Dillewaard gave evidence. His report was tendered.42 He gave evidence in chief, was cross examined and briefly re-examined.43 Aspects of his evidence are relevant on sentence and will be considered further below. Mr Reinke also gave evidence on the loss and damage issue in the Forestry Act areas. [65] The parties then made oral submissions.44 [66] Mr Hunter made brief oral submissions on penalty consistent with the complainant’s written submissions, noting in addition that there was no evidence about the defendant’s capacity to pay a fine other than that Chess Park was unencumbered. [67] He then turned to the draft order under s. 599 SPA. As he had foreshadowed, it differed from that proposed in the written submissions to take account of the Restoration Notice which had been issued. It omitted the provisions for photographic processes for recording compliance but was otherwise similar to the order proposed in written submissions. It prohibited clearing of native vegetation in areas identified in the Restoration Notice (which coincided with the charge polygons). [68] Mr Hunter addressed the costs issue. He emphasised the impracticality of the construction of s. 157 contended for by the defendant if merely saying the words “found guilty” excluded the power to order costs. [69] Mr Hunter added an additional submission as to why the discretion under s. 157 remained on foot: i.e. because Mr Baker could not be convicted as a matter of law unless he was personally present and he had not been present on 18 November. Mr Hunter submitted that the only circumstance provided for in the Justices Act for conviction in the absence of the defendant was under s. 146A. [70] Mr Marland emphasised, as to costs, that Mr Baker told the departmental officers what he was intending to do and asked them to seek an injunction. He submitted that the bringing of the expensive prosecution was in effect the Department’s choice. [71] On penalty he submitted that while Mr Dillewaard was a highly regarded expert, the majority of the environmental impacts were potential and difficult to quantify. On the proposed order under s. 599 SPA, Mr Marland submitted that it was in conflict with the Restoration Notice (though it was unclear in what way). That Notice was not tendered before her Honour but was tendered on this appeal.45 [72] Mr Hunter responded on the point in paragraph [70] in this way:46 MR HUNTER: Just briefly, your Honour, the submission you’ve just heard is that Mr Baker should have been prevented from his course of repeatedly offending by the actions of the department and the submission is that that could have happened as early as 2011. And the problem with that submission is that no one from the – a government agency observed the clearing until August of 2012 and Mr Smith didn’t see it until January of 2013, by which time a large amount of it had occurred. Now, it’s true that a stop work notice could have been 41 27 February 2017, TS 1-16.8 to .27 at Appeal Book, Vol 2, p 467. 42 See Appeal Book, Vol 1, pp 159-303. 43 Examination in chief at 27 February 2019, TS 1-21 to 32 at Appeal Book, Vol 2, pp 472-483; cross- examination at TS 1-32 to 40 at Appeal Book, Vol 2, pp 483-531; re-examination at TS 1-41 to 42 at Appeal Book, Vol 2, pp 532-533. 44 28 February 2017, TS 2-47 to 65 at Appeal Book, Vol 2, pp 581-599. 45 Sentence and Costs Appeal, Exhibit 4. 46 28 February 2017, TS 2-64.15 to .35 at Appeal Book, Vol 2, pp 598. -- 21 of 115 -- 22 issued at that stage but, of course, the matter continued to be under investigation. And Mr Baker can hardly claim, by way of mitigation, that his further deliberate offending could have been stopped by the department telling him not to do it. And that’s in circumstances where he had been told that. Now, as to the necessity for an order pursuant to section five-hundred and nine - - - BENCH: Excuse me, but a stop work notice did issue - - - MR HUNTER: It did, but not until the end of 2013. BENCH: But there was some clearing after that?47 MR HUNTER: Yes … Her Honour’s judgment on 28 February 2017 [73] Immediately following submissions on 28 February, her Honour gave ex tempore reasons dealing with two matters: the s. 599 SPA orders and the question of power to make an order for costs. [74] As to the former, her Honour dealt with the matter in the following terms:48 BENCH: …I will deal with the application for the order under 599(3)(c) of the Sustainable Planning Act… In my view, then, given his demonstrated reluctance to comply with instructions from the departmental officers, he should be ordered not to clear any native vegetation until such time, for five years, subject to – until such time as the order, the – over which I have no jurisdiction, and that is the restoration notice, has been appealed and dealt with. If that happens, if it is struck out or not made, then this order will be of no effect, but until that time, I make that order in terms of the draft order. [75] Her Honour made orders in terms of the prosecution draft which are set out below at [374]. [76] Her Honour also decided to determine the threshold question of her power to award costs under s. 157 Justices Act. Although not expressly stated, it is plain her Honour wanted to put the parties in the position of knowing whether submissions on costs would be futile or not. Her Honour determined that she did have power to award costs. Her reasons were as follows:49 In relation to costs, I am of a firm view that I have jurisdiction. It is argued for the defence that this court does not have jurisdiction to make any order as to costs. I have been the magistrate throughout the hearing of this matter. It was my intention, however inelegantly done, to advise parties as soon as possible that I was persuaded of the Crown case to the extent that Mr Baker was found guilty. I knew that there would be, or I assumed, seeing the conduct of the Crown case and the witnesses called and the detail of the evidence, that there may well be an application for costs, and submissions about that from both prosecution and defence, and given the nature of the complaints, that there would be submissions on penalty and – from both prosecution and defence, that I would have to decide about. Mr Baker was not present. He was not convicted. My decision was an indication of the fact that the prosecution case had been proved to the appropriate standard, beyond a reasonable doubt. I had no intention, at that stage, to finish or perfect any order. It was my clear – maybe perhaps not clear, but it was my intention that the – once that indication had been given to the parties, that the matter would be adjourned to enable the parties to prepare to make, if they wish to, an application for cost, and if they wish to, to prepare to make submissions to oppose 47 As explained at paragraph [294] below, although I consider it was open to make that submission on the evidence, I am not satisfied that in fact Mr Baker was necessarily continuing to clear after the stop work notice on 4 December 2013. 48 28 February 2017, decision TS 1-2.1 to .17. 49 28 February 2017, decision TS 1-2.20 to 3.5. -- 22 of 115 -- 23 that application. The order was not finished or perfected, and in any event, Mr Baker was not present. As Mr Hunter has said, it would be really impractical if counsel had to come to court prepared, once the decision about guilty or not guilty was given, to be required immediately, both prosecution and defence, to make application for cost in a complicated matter, which had proceeded – I think it commenced on February 4, had proceeded over the entire year on part heard days, in which a great deal of evidence was given. So it was clear, I would have thought, to all concerned that an application would be made, and in any event the parties should have been given an opportunity to make submissions either way. I will give a – that is my decision in the matter, that I have jurisdiction. This court has jurisdiction to hear the application for costs. Now, as for the penalty and costs, I have to adjourn that decision. I should also say, on the – just the jurisdictional point, I was anxious to give a decision sooner rather than later. If I had delayed the decision, it would have been delaying the matter for months.… [Underlining added] [77] I analyse her Honour’s reasoning further below. Her Honour otherwise adjourned the question of costs and penalty. Her Honour’s judgment on 20 March 2017 [78] On 20 March 2017, her Honour gave an ex tempore judgment on the remaining issues of costs, investigation expenses and penalty. [79] Her Honour began, however, by addressing the oversight in her 24 November 2016 reasons identified by Mr Hunter on 27 February 2017 and orally stating Mr Baker was found guilty in respect of the eight charges where that had previously been omitted. I query whether that was strictly necessary given that her Honour found Mr Baker guilty of all charges on 18 November in any event. Nothing turns on this in this appeal. [80] Her Honour then asked Mr Baker, who appeared as directed on that occasion to come to the bar table. (Mr Baker had previously failed to appear without excuse on 27 February 2017 and her Honour had issued a warrant. Mr Baker then arrived during the hearing on 28 February and sought leave to be immediately excused. Her Honour refused that application.) [81] Her Honour’s reasons dealt first with sentence. Her reasons were generally in accordance with the prosecution’s submissions.50 [82] Aspects of her Honour’s reasons are potentially relevant to the question of power under s. 157. In particular: (a) Her Honour started her sentencing remarks with the following: “Michael Vincent Baker, you have been found guilty of seven charges of breach of the Forestry Act 1959 and 39 charges of breaches of the” SPA (the appellant emphasises the use of past tense);51 (b) Then, after her sentencing remarks, her Honour stated: “You are therefore convicted and fined a total amount of $276,000 in respect of the 46 offences for which you have been found guilty”.52 [83] Her Honour then dealt with the loss and damage issue under the Forestry Act and awarded the sum claimed by the prosecution. The basis upon which her Honour 50 20 March 2017 Decision, TS 3.12 to 11.38 at Appeal Book, Vol 1, pp 9-17. 51 26 June 2019, TS 2-105.43 to 106.6. 52 26 June 2019, TS 2-106.8 to .15. -- 23 of 115 -- 24 made the order, however, was the defendant’s conviction on all of the Forestry Act charges. The appeal against the convictions on Charges 1 and 2 on Complaint 1 has succeeded. Accordingly, the loss and damage calculation should be revisited. The parties are in agreement as to how this should occur. I deal with this further in paragraph [245] below. [84] Her Honour then turned to the question of costs. Notwithstanding that her Honour had determined the challenge to her power to award costs on 28 February 2017, her Honour gave further reasons on the matter: (a) Her Honour began as follows:53 Your solicitor has made a submission that this Court, having found you guilty in November 2016, is functus officio. That is, that it has exhausted its legislative powers to make further orders, and that it is beyond the power of this Court to make a cost order, because you were found guilty in your absence in November 2016. I do not accept that submission. In November 2016, it was my intention to advise the Prosecution and your counsel that I had found the Prosecution case was proved beyond reasonable doubt, and that, therefore, you were found guilty of the offences. That was not the final order of the Court. It was necessary then to adjourn the matter to enable counsel to prepare for submissions on penalty and to prepare for the making of any other submissions, including submissions on costs. [Underlining added] (b) It is fair to assume her Honour was referring to her findings on 18 November 2016. After observing that she expected complex submissions on costs and penalty in the circumstances such that no party would have been ready on that day to deal with those matters, her Honour continued:54 As you were not present in Court, you were not convicted on the day by order of the Court. I adjourned for the purpose of submissions on penalty, submissions on costs, and your appearance, and an order of your conviction. After a hearing of 23 days, most of them full days, and the evidence from three expert witnesses, I anticipated that a costs application would be made, and that costs may be well ordered. The Justices Act provides such orders to be made. [Underlining added] (c) After discussing the course of events after 18 November 2016 (largely as set out above) her Honour concluded as follows:55 The authorities are clear that this Court is able to adjourn a matter to impose penalty and to make costs order and an order for conviction, that is, to adjourn the matter before a final order is made. There is authority for the proposition that as the Court had not completed its legislative function to proceed to a conviction after the finding of guilty, it may adjourn the matter for that purpose, to hear submissions on the making of costs order and submissions, the making of other orders, and then to proceed to making that order of conviction, and to make orders on that day or even another day. In the matter of Bell v Carter, the [1992] QCA 25 at 1991, it was held: If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the Court is in a position to make its final determination on the question of costs. This is what happened in this matter. The formal conviction was deferred until this Court was in a position to make its final determination on the question of costs. The statement made in Bell v Carter was approved by his Honour, Judge Robin QC, in 53 20 March 2017 Decision, TS 11.8 to .18 at Appeal Book, Vol 1, p 17. 54 20 March 2017 Decision, TS 12.1 to .6 at Appeal Book, Vol 1, p 18. 55 20 March 2017 Decision, TS 12.18 to .39 at Appeal Book, Vol 1, p 18. -- 24 of 115 -- 25 the District Court in the matter Morley v Senewiratne on [2008] QDC 296. In this case, the formal conviction was deferred until the Court was in a position to make its final determination on the question of costs. [Underlining added] [85] Her Honour then turned to consider the question of whether an award of costs was just and reasonable under s. 157 Justices Act and concluded that it was. That conclusion is not disputed on this appeal.56 [86] Her Honour then also considered whether the discretion under s. 158B(2) was enlivened. Her Honour concluded the matter was both one of special difficulty and complexity and one of special importance. Her Honour’s reasons can be summarised as follows.57 (a) First, the length of the trial and its complexity was entirely outside the normal run of criminal trials in the Magistrates Court which in her Honour’s (considerable58) experience usually ran for at most three days. (b) Second, the scope and number of the charges added both difficulty and complexity, involving native vegetation under different statutory schemes and different tenures at different times over four years. (c) Third, the statutory scheme to be applied for the SPA offences was difficult and complex, particularly the interrelationship between the SPA and the VMA and given the changes in the scheme over the extended period in which the offending occurred. (d) Fourth, the difficulty and complexity arising from the SPA/VMA scheme arose in particular from the need for the prosecution to exclude numerous exemptions and exclusions arising under that scheme and the fact that a number of the exemptions were specifically relied upon by the defence. (e) Fifth, the case was of special importance because it engaged questions of the extent to which fire management could be relied upon by landholders, particularly where the legislative scheme for restraining clearing of native vegetation was controversial in some areas of the State. (f) Sixth, the evidence of Mr Tran was in the public interest, extensive and required by the fire management issues raised by the defendant. (g) Seventh, presenting the evidence of the clearing was a herculean task but necessary properly to present the case in an intelligible way. (h) Eighth, it was plainly necessary for senior and junior counsel to be briefed to deal with the enormity of the task of presenting the evidence. [87] Her Honour then turned to assessing the costs to be awarded in exercising the discretion under s. 158B(2). That assessment is not challenged on this appeal. [88] The ground of appeal in respect of investigation costs is that there was no evidence that the costs claimed were reasonable as to amount or reasonably incurred. Relevant to that, her Honour identified in her reasons the extent and utility in the trial of the evidence of the departmental witnesses, particularly Mr Goulevitch, Mr Smith, 56 See paragraphs [221] and [234] below. 57 20 March 2017 Decision, TS 12.41 to 15.16 at Appeal Book, Vol 1, pp 18-21. 58 Her Honour was appointed a Magistrate in 1993. -- 25 of 115 -- 26 Mr Reinke and Mr Dillewaard.59 Her Honour did not expressly consider the amounts claimed for their work, perhaps because the hourly rates identified in Ms Sylvester’s affidavit were, on any view, modest. 60 Her Honour awarded investigation costs of $165,000. [89] Finally, her Honour recorded a conviction. The whole of that matter was dealt with as follows:61 MR MARLAND: We make the application that a conviction is not recorded. Our client’s 71 years of age. It is his first offence. And given your Honour’s decision in relation to the costs and sentencing in – that we have been provided today with, that is already a significant penalty for Mr Baker to have incurred. And there is no benefit of the Court or a further deterrence as a result of recording that conviction. So that is our submissions in that regard. BENCH: Thank you. Ms Dann, you rely on your submissions? MS DANN: Yes, your Honour, we do. Thank you. BENCH: Yes. In this matter, in my view, I accept that Mr Baker is 71 years of age. He is clearly a person of great energy and industry in undertaking this clearing and a person who is determined and – to proceed in terms of his beliefs and convictions. He has, however, been found guilty in circumstances that I have stated at length. This matter is an important matter, as I have found. It is – has been especially complex and difficult. It – there – in the sentence, I have emphasised that this is a matter of special and general deterrence, and in relation to Mr Baker himself, he must be further deterred from undertaking any further clearing or behaving unlawfully. Despite Mr Baker’s age, in my view it’s appropriate to record a conviction because of the serious nature of the offence. The conviction is recorded. Thank you. THE COSTS APPEAL [90] The costs appeal raises two issues: (a) Whether her Honour still had power under s. 157 Justices Act to award costs on 20 March 2017 having found made the statements she did on 18 November 2016; and (b) Whether her Honour was correct to conclude that the case was of special difficulty, complexity or importance. Did her Honour have power to award costs? Her Honour’s reasoning [91] Her Honour dealt with this issue twice, on 28 February 2017 and again on 20 March 2017 (see paragraphs [75] and [84]). As I read those passages, her Honour’s reasoning can be stated as follows. [92] Her Honour recognised that she had stated that Mr Baker was found guilty of all charges on 18 November 2016. However, that statement did not and could not comprise “the conviction” under s. 157 Justices Act. It could not comprise “the conviction” because: 59 20 March 2017 Decision, TS 17.5 to 18.10 at Appeal Book, Vol 1, pp 23-24. 60 Affidavit of Silvester filed 23 December 2016 at Appeal book, Vol 1, pp 320-325. 61 20 March 2017 Decision, TS 19.1 to .21 at Appeal Book, Vol 1, p 25. -- 26 of 115 -- 27 (a) Mr Baker was not present in Court on 18 November 2016 and he could not be convicted as a matter of law in his absence; and (b) Her Honour did not intend, by stating Mr Baker was guilty, to make any order. Rather her Honour intended only to communicate that Mr Baker was found guilty so that the parties could prepare costs and penalty submissions which her Honour expected would take some time. Her Honour emphasised the impracticality of any other approach where anything other than the simplest orders on costs might be required. The appellant’s submissions [93] The appellant expressly relied on its submissions below as well as making further written submissions on the appeal identifying specific errors in her Honour’s reasons.62 Mr Allan (for the appellant) also addressed on this issue. [94] As to error in her Honour’s reasons, the appellant specifically raised two matters. [95] The first was that Mr Baker did not have to be personally present to be convicted.63 The appellant submitted that no authority was cited for that proposition and that reading the Justices Act as a whole, the proposition was incorrect. The appellant relied on a number of provisions,64 in particular on s. 144 Justices Act, which provides: If both parties appear either personally or by their lawyers, then the justices may proceed to hear and determine the complaint. [96] In oral submissions, Mr Allan also relied on s. 150(3) Justices Act.65 That subsection speaks of the clerk of the Court giving notice of a conviction if the person or his lawyer or agent is absent when conviction is pronounced. He contended (as I understood it) this necessarily implied a power to convict in absentia. He also submitted that the power to convict a person in their absence was supportable as part of the implied powers necessary to permit the Court to act effectively to hear and determine complaints. [97] The second matter raised was that her Honour’s intention when finding Mr Baker guilty of all the charges was irrelevant because, on the proper construction of the words “the conviction” in s. 157, by finding Mr Baker guilty in open court, her Honour had exercised her judicial power to convict and nothing further remained to be done. That is, her Honour’s conduct admitted of no legal conclusion except that she had convicted Mr Baker. There was no distinction recognised by the relevant provisions between stating a person was found guilty and making an order of conviction. [98] This second proposition reflects the gravamen of the submissions to her Honour at trial. The trial submissions (relied upon also on this appeal) expanded on the considerations said to support that construction as follows. [99] First, the appellant pointed to authority to support the proposition that “convict” or “conviction” at common law encompasses a finding of guilt rather than a judgment 62 Appellant’s submissions on costs on appeal at Appeal Book, Vol 2, pp 610-633; defendant’s submissions on costs at trial in reply at Appeal Book, Vol 2, pp 647-651. 63 Appellant’s submissions on costs on appeal, paragraph 8 at Appeal Book, Vol 2, p 613. 64 Justices Act ss. 19, 21, 142(1)(a) and (4), 142A, 144, 146(1)(a), 147, 157 and 159. 65 26 June 2019, TS 2-57.20 to 65.21. -- 27 of 115 -- 28 or order based on that finding. The appellant relied on Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 273 and Toohey J in Maxwell v R (1996) 184 CLR 501 at 519-520. [100] Second, while the appellant recognised that those cases emphasised that the meaning of “convict” or “conviction” in a statute depends on the terms of the statute, he submitted that on the proper construction of the word where it appeared in ss. 157 and 159 Justices Act, there was nothing to indicate that the common law meaning was displaced, rather the contrary. [101] This was sought to be made good as a proposition of construction66 by reference to: (a) Section 146, which confers the power on a plea of not guilty for the court to convict the defendant or dismiss the complaint; and (b) Sections 149 to 153, which provide for the Court to make an order of dismissal or a minute of conviction in language which, the appellant contends, draws a distinction between the act of convicting or dismissing and the subsequent administrative act of recording conviction or dismissal. [102] That construction was also said to be supported by the line of authority in Queensland establishing a Magistrate is functus officio once he or she has found a defendant guilty or not guilty in open court: Fitzgerald v Newing; ex parte Newing67; Kimlin v Wilson; ex parte Kimlin68; Kimmorley v Atherton; ex parte Atherton69; Shield v Topliner Pty Ltd70. [103] Third, the appellant’s construction was said to be supported by the decision of the Court of Appeal in Bell v Carter [1992] QCA 245. As that case requires careful consideration, it is convenient to consider it at this point. [104] That case concerned whether a Magistrate had power to award costs in respect of the dismissal of a summary charge. In that case, the Magistrate on 1 July 1991 dismissed both charges brought by the appellant/complainant against the respondent/defendant. The dismissal of the charges followed the execution of a deed by the parties on the previous day by which the appellant agreed to consent to dismissal of the charges and Mr Carter (the respondent/defendant) released all claims for costs he might have in relation to the complaint. The Court found that the deed plainly precluded the respondent from seeking costs upon the dismissal of the charges. [105] Strangely, the police prosecutor knew of the deed but did not raise it as a basis for refusal of costs on dismissal. The Magistrate endorsed the bench charge sheet as having dismissed the complaint with costs to be paid by the appellant and adjourned the matter of quantum to another day. The transcript suggested the Magistrate dismissed the charges and adjourned the question of costs to another day. [106] The Court of Appeal held as follows:71 Each of these orders is contrary to s. 159 of the Justices Act of 1886 which provides: 66 Defendant’s submissions on costs at trial, paragraphs 62-67 at Appeal Book, Vol 2, p 630. 67 [1965] QWN 14. 68 [1966] Qd R 237 at 242. 69 [1971] Qd R 117 at 125. 70 [2004] QCA 476 at [15]. 71 [1992] QCA 245 at 4-5. -- 28 of 115 -- 29 “The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of prosecution.” There can be no doubt that on 1 July 1991 the magistrate dismissed the charges. The only question in doubt is whether he made an order for costs leaving quantum to be assessed at a later date, or made no order for costs at all on the date notwithstanding an intimation of his intention to do so. It is not necessary to decide which of these courses he took. Both were beyond power. If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination of the question of costs. [107] One might think that the reference to formal dismissal is problematic for the appellant’s construction argument. The appellant deals with that in this manner. The appellant submits that the Court of Appeal must be taken to have used “formal” merely to mean stating in open court that the complaint is dismissed. Anything else: (a) Would be inconsistent with the proper construction of the relevant provisions of the Act set out in paragraph [100]; and (b) Would be inconsistent with the principle at common law that an acquittal pronounced in open court is final. [108] Thus it is submitted that Bell v Carter “can only be read, for the purposes of section 158 and section 159 as the formal pronouncement in open court dismissing the complaint”.72 I note however that neither of the points raised by the appellant are mentioned in the case (much less argued) and the dismissal there had in fact been endorsed on the bench charge sheet. It is also hard to think of what could comprise an informal dismissal if stating in open Court that a complaint is dismissed is the formal dismissal. [109] Fourth, the construction contended for by the appellant is said to be consistent with the construction of the section stated in Kennedy Allen, where at p 401 the learned authors write: It is now settled law that subject perhaps to the cases mentioned in the next paragraph infra, a Magistrate is functus officio the moment has had pronounced a conviction by word of mouth. Lutwyche J. so decided nearly a century ago [now 154 years ago]. See Walsh v Kent (1862) 1 S.C.R.Q. 44 at p. 45 per… Where however justices sitting in petty sessions [a Magistrate] have been surprised into making an order or have done so improvidently, they may, it seems, quia improvide emanavit, alter their judgment during the continuance of the session (that is, on the same day), so as best to answer the purposes of justice… [authorities omitted]… But they have no power to make such an alteration as amounts to a fresh substantive adjudication. If the alteration goes no further than mere correction of an omission or mistake, that part of the conviction or order may be quashed... [110] In my view, this passage is not as clear as it might be as to what has to be pronounced to comprise a conviction. The example which follows is one in which the Court had pronounced conviction and sentence and then sought afterwards to vary the sentence in a manner which the appellate Court considered went beyond a mere correction. The appellant also relied specifically on Green v Sergeant [1951] VLR 500 as supporting its contention that the conviction is complete on a finding of guilt. That case does not support that contention. [111] Fifth, in oral submissions, the appellant relied on the proposition that a conviction is distinct from sentence under the Justices Act because a distinction is drawn between appeals of conviction and appeals of sentence under s. 222 Justices Act. This was 72 Defendant’s submissions on costs at trial, paragraph 76 at Appeal Book, Vol 2, p 632. -- 29 of 115 -- 30 said to support the conclusion that conviction in the Justices Act does not mean finding of guilt and sentence. Reliance was placed on R v Rasmussen [2002] 1 Qd R 299 at [37]. That case, and the more recent decision of Lasker v Holeszko [2019] QCA 163, are further considered below. [112] Sixth, in response to the respondent’s contention in reliance on Bell v Carter, that what is required is a formal conviction (in the sense of a conviction recorded in writing), the appellant emphasised that there is no warrant for reading “formal” into ss. 157 and 159. [113] Seventh, the appellant addressed the impracticality argument advanced by Mr Hunter at trial and referred to by her Honour by submitting that all the Court has to do to avoid the inconvenience of s. 157 being conditional on mere pronouncement of guilt is inform the parties that the Court is going to find a person guilty at some future time, and invite submissions to be prepared on that basis. [114] The appellant also responded to the respondent’s submissions to her Honour that: (a) It could rely on the alternative of an order (as in the reference to “conviction or order”) to sustain making the costs order even if there had been a conviction; and (b) If her Honour had convicted, she could vary the orders on the basis that the comprised an accidental slip. The respondent’s submissions [115] The respondent maintained its contention that Mr Baker could not be convicted (regardless of how the word “conviction” is construed in ss. 157 and 159) on 18 November 2016 because he was not present in Court on that day. Further, the only occasion when her Honour could have convicted him when he was in Court was on 20 March 2017 when her Honour did so. [116] The respondent contended that the inference that Mr Baker had to be personally present in Court arose from the fact that the Justices Act makes express provision for when the Court may deal with the complaint in the defendant’s absence. The respondent relied primarily on three sections which show that the Justices Act contemplates hearing and determination of complaints in the absence of the defendant:73 (a) Section 142A, which authorises the Court “to deal with and determine the matter of the complaint” in the absence of the defendant where the complaint is made by a public officer or police officer. That section applies where the defendant fails to appear at the hearing; (b) Section 146A, which permits the Court to proceed to hear and determine a complaint in the absence of a defendant who communicates a wish to plead of guilty without appearance; and (c) Section 147 which permits the Court to proceed to hear the complaint in the absence of both parties if one or both do not appear on the adjourned hearing date of a complaint. [117] While the respondent recognised there is no provision requiring the defendant to be personally present to be convicted, he contended that the above provisions dictate 73 Respondent’s submissions on costs on appeal, paragraphs 25-29 at Appeal Book, Vol 2, pp 671-672. -- 30 of 115 -- 31 that to be the position by necessary implication because this case falls outside each of the scenarios specifically provided for in those sections where conviction may occur in the person’s absence. [118] The respondent next submitted that her Honour’s finding of guilt of all charges on 18 November 2016 did not have the effect of precluding the making of the costs order on 20 March 2017. The respondent’s argument on this central question had a number of distinct limbs. [119] The first limb involved the submission that what had occurred on 18 November did not give rise to “the conviction” of Mr Baker on the charges for the purposes of s. 157 and 159 Justices Act. The following points were advanced.74 [120] First, the terms of s. 146(1) did not advance the appellant’s point at all. Section 146(1) is a procedural provision dealing with how a complaint proceeds after a plea of not guilty and the meaning of “convict” in that section is not inconsistent with the meaning contended for by the respondent. [121] Second, Bell v Carter deliberately referred to the requirement for a formal dismissal and that this required something more than merely pronouncing dismissal in Court. In the context of conviction, this required the finding of guilt and sentence. In support of that interpretation, the respondent emphasised the variable meaning of “conviction” and “convict” depending on statutory context recognised in Cobiac v Liddy and Maxwell v R. He emphasised that conviction can mean the finding of guilt by the tribunal of fact or can mean the completion of the process of finding of guilt and sentence. It was submitted that the latter meaning was consistent with authority as well as the statutory context. [122] As to authority, in addition to Bell v Carter, the respondent also relied on Morley v Senewiratne. Morley v Senewiratne, involved a trial of four complaints against two defendants (as joint tenants). In that case, the Magistrate on 8 August 2007 read into the reasons for decision that all the elements of all the charges had been established for, amongst other things, interfering with protected vegetation under the Natural Assets Local Law 2003 (Qld) and then adjourned for submissions on sentence and costs on 20 September 2007. On 20 September 2007, after defence Counsel raised concerns with the impact of the finding of guilt from 8 August 2007 on the commencement of the limitation period for the purposes of a s. 222 appeal, the Magistrate relied on his inherent jurisdiction to set aside his previous order in accordance with either s. 147A of the Justices Act or s. 188 of the Penalties and Sentences Act. The Magistrate then: (a) Restated his finding that the elements had been satisfied for each charge against each defendant before proceeding to find them guilty of each offence and state that this was the order as of that day for the purpose of the conviction; (b) Heard submissions and pronounced reasons on penalty and then proceeded to hear an application and submissions on costs as had been foreshadowed earlier by him; (c) When the prosecutor made an application for an uplift of costs and there was an objection made, adjourned for a decision on costs. Before this occurred, the unsuccessful party wrote to the Court and advised that the 74 Respondent’s submissions on costs on appeal, paragraphs 31-61 at Appeal Book, Vol 2, pp 672-682. -- 31 of 115 -- 32 orders the Magistrate had made disabled him from proceeding to make any cost order and cited Bell v Carter; and (d) Following that letter, the Magistrates accepted that he had made an error and was functus officio, without jurisdiction to make an award about costs. [123] It can be seen therefore that in Morley, the Magistrate had made a finding of guilt and imposed sentence without having determined costs of the trial. The complainant appealed. Robin DCJ initially observed at [2]: The main issue in this appeal brought by the complainant under s222 of the Justices Act 1886 arises from the failure of another Magistrate and some (if not all) counsel to have in mind Bell v Carter at the vital moment in the Magistrates Court at Holland Park on 20 September 2007, notwithstanding that they were aware of the case from previous experience. The Magistrate here, when counsel for the parties who were going to have to pay costs took the point, accepted that he had made an error and that he was functus officio, without any jurisdiction to make an order about costs. No submission was made to the contrary. His Honour stated that the matter would have to be rectified on appeal. [124] After setting out the course of events summarised above, his Honour observed (at [9] to [10]): … There is no reason why such costs ought not to have been awarded or, indeed, the scale costs under the Justices Regulation, which Mr Allen appeared to acknowledge as appropriate by propounding his schedule. As things stand, because Bell v Carter was overlooked, and because his Honour took the view on 27 September 2007 that there was nothing to be done by way of repetition of the setting aside in reliance on s 147A or s 188 the week before, no costs whatever were awarded. I think it is clear that before the orders were made imposing sentences, the Magistrate had developed an intention to award costs, and probably in a higher amount than the scale. The orders the Magistrate made disabled him from proceeding to make the appropriate or any costs order. The appellant/complainant is thus “aggrieved” by the orders made and entitled to appeal them under s 222(1) of the Justices Act 1886. That an appeal may be brought in relation to costs only is indicated by s 222(2)(b). [125] His Honour then proceeded to consider the appellant’s argument that the fines imposed were manifestly inadequate. After dealing with a jurisdictional point on the form of the Notices of Appeal, his Honour turned to assessing the adequacy of the sentences. In the course of concluding they were not inadequate, his Honour referred to the Magistrate’s obvious intention to award costs. His Honour said (at [28]): Another aspect which I consider significant is the Magistrate’s sentencing on the assumption that there would be a substantial financial detriment to the respondents by way of costs to be paid to the complainant (of course, there was the further burden of having to bear their own costs). The rationale for ordering costs, generally a possibility only in summary prosecutions, is to limit the extent to which a complainant who establishes a case for conviction is out of pocket – rather than punishment of the offender. The costs order, if made, is not really part of the sentence. It cannot have default imprisonment attached. It is established that when the appropriateness of a fine amount is in question, regard may be had to the impacts of an associated costs order. [126] His Honour relied on Dever v Creevey [1993] 1 Qd R 232 as authority for that proposition. He then continued (at [30] to [32]): To the extent that the fines under appeal may appear lenient, I would think this is the explanation. The “comparable sentences” made available show a pattern of the costs exceeding the fine in matters like the present. In Bone v Mothershaw [2003] 2 Qd R 600; SLR B29/2002 however, the fine was $20,000, the costs $6,513. There was going to be a substantial costs order (one in excess of $9,750 in my opinion) at first instance, but for his Honour’s confessed error (I do not accept Mr Allen’s submission -- 32 of 115 -- 33 that the error was solely the appellant’s, in failing to prevent the Magistrate from pronouncing the sentences as he did, without having first identified an amount of costs to award, to satisfy s 159, citing University of Woollongong v Metwally (1984) 158 CLR 447, 483, as quoted in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645. It was said the appellant was bound by the way her case was conducted before the Magistrate. Perusal of the transcript indicates to me that this was nothing like a case of counsel deliberately sitting back while his Honour was obviously running foul of Bell v Carter. It would have required very quick thinking to intervene at that point. I think it is a travesty to present the appellant as now trying to present a different case. Although the appellant does not satisfy the court that the fines imposed below were inadequate and so ought to be set aside, it does persuade the court that the relevant orders were made in error by being made when they were with the consequence of preventing his Honour’s implementing his intentions to make an order for costs in favour of the appellant; on this basis, those orders should be set aside. [127] His Honour then proceeded to re-exercise the discretion to award costs under s. 157. The case supports the respondent because his Honour proceeded on the express basis that if the sentence was set aside, the power to award costs arose, even if the finding of guilt remained unchallenged. [128] The respondent also relied on Schloss v Bell [2016] ICQ 17 and Gibson v Canniffe [2008] QDC 319, considered further below. The former case adopted the expedient initially used by the Magistrate in Morley to vacate orders he had made dismissing a complaint. In the latter, Devereaux SC DCJ distinguished Bell on the basis that the acts done by the Magistrate in that case did not amount to the formal dismissal called for in Bell, despite the fact that a certificate of dismissal had been issued. [129] The second limb of the respondent’s argument relies on the reference in s. 157 to ordering costs “by the conviction or order”. The respondent submits that an order for costs of the trial is an order within the meaning of the section, and thus it was open to the Magistrate to order costs even if “conviction” has the narrower construction contended for by the appellant. This aspect of s. 157 differs from s. 158, which was the section specifically considered in Bell. [130] The third limb of the respondent’ argument relies on the slip rule approach initially adopted in Morley. The respondent submits:75 However, if any concerns in this respect remain, it is well established at common law that a Court only loses power to vary an order once it has been perfected and passes into the record.76 As stated previously, there had been no formal conviction or order. There is no equivalent slip provision to s329(e) of the Industrial Relations Act 199977which applies to these types of proceedings in the Magistrates Court. However, the courts have relied on an inherent jurisdiction to correct an error arising from an accidental slip or omission78. [Footnotes in original] Analysis [131] The following issues arise: 75 Respondent’s submissions on costs on appeal, paragraphs 57-58 at Appeal Book, Vol 2, p 681. 76 See R v Cross (Patrick) [1973] 1 QC 937 per Lord Widgery CJ at 940 – 941 which was cited with approval in R v Billington [1980] VR 625 at 639-631 and R v Lapa (No.2) (1995) 80 A Crim R 398 per Clark JA at 402 and 403. 77 This section was relied on as the slip rule by O’Connor DP in Schloss. 78 See Commissioner of Police Service v Spencer [2014] 2 Qd R 23 at [63]-[65], [67]-[68]. -- 33 of 115 -- 34 (a) Did Mr Baker have to be personally present on 18 November 2016 for there to be convicted? (b) If not, did her Honour’s acts on 18 November 2016 give rise to the conviction of Mr Baker on the charges within the meaning of ss. 157 and 159 Justices Act? (c) If so, was it still open to her Honour to order costs under s. 157 Justices Act on the basis that her Honour retained power to make an “order” for costs under that section? (d) If not, by this appeal can her Honour’s conviction of Mr Baker on 18 November be set aside on the basis of s. 147A or the slip rule so as to enliven the jurisdiction to award costs? Further provisions of the Justices Act [132] In addition to the sections of the Justices Act set out above at [51] the following provisions are relevant and/or relied upon by the parties. [133] Part 6 regulates proceedings for simple offences and breaches of duty. Division 2 of that part is headed “Default by complainant or defendant” and relevantly provides: (a) By s. 141, that if the complainant does not appear personally or by a lawyer at the date specified in the summons and the defendant is present, the Magistrate (in effect) may dismiss the complaint or adjourn it; (b) By s. 142, relevantly: 142 Proceedings in absence of defendant (1) If at the time and place so appointed the defendant does not appear when called and the justices are satisfied, on oath or by deposition as provided in section 56, that the summons was properly served on the defendant a reasonable time before the time appointed for the defendant’s appearance, the justices may— (a) proceed ex parte to hear and determine the case as fully and effectually to all intents and purposes as if the defendant had personally appeared before them in obedience to the said summons; or (b) if satisfied, from information given on oath, that the matter of the complaint is substantiated, issue their warrant to apprehend the defendant and to bring the defendant before justices to answer the complaint and to be further dealt with according to law; or (c) upon the written plea of guilty of the defendant and upon being satisfied that the requirements of section 146A have been complied with in all respects, proceed as prescribed by that section; or (d) because of the absence of any witness or any other reasonable cause, adjourn the hearing to a time and place to be then stated or to be determined as hereinbefore in this Act provided before a court constituted in accordance with this Act by such justices as may then be present. Note— See section 150A for when the justices may, instead of dealing with the complaint under this division, make an order ending the complaint. (2) When the justices proceed as prescribed by subsection (1)(a) or (c) they shall not— -- 34 of 115 -- 35 (a) order that the defendant be disqualified either absolutely or for any period from holding or obtaining any licence, registration, certificate, permit or other authority under any Act or order that any licence, registration, certificate, permit or other authority held by the defendant under any Act be cancelled or suspended; or (b) order that the defendant be imprisoned (not being imprisonment in default of payment of any penalty, compensation, sum of money or costs adjudged to be paid by the decision of the justices); unless the justices have first adjourned or further adjourned the hearing of the complaint to a time and place appointed by the justices to enable the defendant to appear for the purpose of making submissions on the question of such disqualification, cancellation or suspension or penalty, as the case may be. (c) By s. 142A(1), (2) and (4) [there is no (3)]: 142A Permissible procedure in absence of defendant in certain cases (1) Notwithstanding the provisions of this Act or any other Act it shall be lawful to adopt in respect of a complaint of a simple offence or breach of duty made by a public officer or a police officer the procedure prescribed by this section. (2) Every step or proceeding to be taken in carrying out such procedure and the making of any order in the course thereof shall be subject to the provisions of this Act (other than of this section) other than so far as this section is inconsistent with the other provisions of this Act. (4) Where— (a) a complaint of a simple offence or breach of duty is made by a public officer or a police officer; and (b) the defendant is required to appear at a time and place fixed for the hearing of the complaint— (i) by a summons issued on the complaint and served at least 14 days before the date on which the defendant is required by the summons to appear; or (ii) under a condition of the defendant’s bail or by a notice given to the defendant under the Bail Act 1980; or (iii) by a notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint; and (c) the defendant does not appear at the time and place fixed for the hearing of the complaint; the court before which the complaint comes for hearing, whether on the return date or an adjourned date, may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant according to law constitute such a simple offence or breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint. [134] Division 3 of Part 6 is headed “Hearing” and relevantly provides: -- 35 of 115 -- 36 (a) By s. 144 that if “both parties appear either personally or by their lawyers, then the justices may proceed to hear and determine the complaint”. (b) By s. 145: 145 Defendant to be asked to plead (1) When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads. (2) If the defendant is legally represented and there is more than 1 complaint before the Magistrates Court, a plea to any number of the complaints may, with the consent of the defendant, be taken at the same time on the basis that the plea to 1 complaint will be treated as a plea to any number of the complaints if the court is satisfied— (a) the defendant has obtained legal advice in relation to each of the complaints; and (b) the defendant is aware of the substance of each of the complaints. (3) If the Magistrates Court takes a plea under subsection (2), the court is not required to state the substance of any complaint before the court to the defendant. (4) If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law. (c) By s. 146, relevantly: 146 Where defendant pleads not guilty (1) If the defendant pleads not guilty then the court may— (a) proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or (b) upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing. (2) A hearing may be adjourned pursuant to subsection (1) from time to time provided no evidence has been adduced before any court in respect of the complaint. (3) When a hearing is adjourned pursuant to subsection (1) the provisions of section 88 shall, with all necessary adaptations, apply thereto. (d) By s. 146A, relevantly: 146A Proceeding at the hearing on defendant’s confession in absentia (1) This section applies if a defendant, under a summons or a condition of the defendant’s bail or by a notice given to the defendant under the Bail Act 1980, is required to appear before a Magistrates Court or justices to answer a complaint, other than a complaint of— (a) an indictable offence; or (c) an offence prescribed by regulation for the purposes of this paragraph; or -- 36 of 115 -- 37 (d) an offence in relation to which another Act requires the court or justices to proceed in a way different from that provided by this section. (2) Where the clerk of the court receives a notification (a defendant’s plea notification) in writing purporting to be given by the defendant or by a lawyer acting on the defendant’s behalf that the defendant wishes to plead guilty without appearing before the court and the defendant does not appear at the time and place appointed for the hearing or adjourned hearing of the complaint, then— (a) the justices may proceed to hear and determine the case in the absence of— (i) the defendant in the same way as if the defendant had appeared and pleaded guilty; and (ii) if the complainant consents to the justices hearing and determining the matter in the complainant’s absence— the complainant; or (b) if the justices decide not to proceed as aforesaid, they shall adjourn or further adjourn the hearing for the purpose of dealing with the complaint as if the defendant’s plea notification had not been given. (e) By s. 147: 147 Justices may proceed to hearing in absence of both or either of the parties If at the time or place to which a hearing or further hearing is adjourned, either or both of the parties does not or do not appear personally or by a lawyer, the justices then present may proceed to such hearing or further hearing as if such party or parties were present, or if the complainant does not appear the justices may dismiss the complaint with or without costs. (f) By s. 147A: 147A Power of justices to reopen proceedings and rectify orders (1) This section does not apply to an error in a sentence, or to an error consisting of a failure to impose a sentence, for which a court may reopen a proceeding under the Penalties and Sentences Act 1992, section 188. (2) Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties an opportunity of being heard, set aside the conviction or vacate or vary the order in either case to conform with the facts. Example— An order may be varied to correct the defendant’s name. (3) The powers conferred by subsection (2) include power to set aside a conviction or vacate or vary an order where the justices are satisfied that— (a) the conviction or order has been recorded or made against the wrong person; or (b) the summons issued upon the complaint originating the proceedings that resulted in the conviction or order did not come to the knowledge of the defendant; or -- 37 of 115 -- 38 (c) the defendant in the proceedings that resulted in the conviction or order has been previously convicted of the offence the subject of the complaint originating those proceedings; or (d) the conviction or order recorded or made against the person was incorrectly ordered or made because of someone’s deceit. (4) The justices may, upon the hearing of an application pursuant to this section, take evidence orally or by affidavit. (5) An application pursuant to subsection (2) shall be made within 28 days after the date of the conviction or order or such further time as the justices allow upon application made at any time in that behalf. [135] By Division 4 of Part 6, headed “Dismissal”: (a) By s. 149: 149 Dismissal of complaint If the justices dismiss a complaint, they may, if required so to do, and if they think fit, make an order of dismissal, and give the defendant a certificate thereof, which certificate shall upon production and without further proof be a bar to any subsequent complaint for the same matter against the same person (b) By s. 150 (which is not concerned only with dismissal): 150 Minute of decision to be made and advice sent by post (1) This section applies if justices convict or make an order against a person. (2) The justices must make a minute or memorandum of the conviction or order and sign it. (3) If neither the person nor the person’s lawyer or agent is present when the conviction is pronounced or the order is made, the clerk of the court must give written notice of the conviction or order by post to the person at the person’s last address known to the clerk. (4) A minute or memorandum made under this section does not form part of the warrant of commitment or execution. (5) If subsection (3) applies, a warrant of commitment or execution must not issue for at least 2 months from the day of the conviction or order, unless the adjudicating justices otherwise direct. [136] By Division 5 of Part 6, headed “Convictions and orders”: 151 Formal convictions and orders (1) The conviction or order must afterwards, if required under section 152, be drawn up in proper form by the justices or the clerk of the court. (2) The formal conviction or order must be filed with or by the clerk of the court. (3) Whether or not a requirement is made under section 152, the clerk of the court must make a record of the conviction or order and any other matter (a verdict and judgment record) as required under the Criminal Practice Rules 1999. Editor’s note— See the Criminal Practice Rules 1999, rule 62. (4) A verdict and judgment record relating to a conviction or order is a sufficiently proper form of the conviction or order for subsection (1). 152 Formal record of conviction not necessary, except for special purposes -- 38 of 115 -- 39 Subject to the Criminal Practice Rules 1999, it is unnecessary for justices or a clerk of the court formally to draw up a conviction or order or any other record of a decision, unless the same is demanded by a party to the proceedings for the purpose of an appeal against the decision, or is required for the purpose of a return to a writ of habeas corpus or other writ from the Supreme Court. 153 No certiorari order No conviction shall be quashed for want of form or be removed by certiorari order (within the meaning of the Judicial Review Act 1991) or otherwise into the Supreme Court, and no warrant of commitment on a conviction shall be held void by reason of any formal defect therein, provided it is therein alleged that the party has been duly convicted and there is a good and valid conviction to sustain it. [137] The relevant section of the Criminal Practice Rules 1999 (Qld) is r. 62 which is expressly applied to Magistrates Courts.79 It provides: 62 Verdict and judgment record (1) The proper officer of the court must make a record containing the names of the persons tried, sentenced or otherwise dealt with by the court. (2) The record must contain the following details about each person mentioned in subrule (1)— (a) the charge; (b) the legislative provision under which the person is charged; (c) the name of the judge, magistrate or justice; (d) the plea; (e) the verdict; (f) the sentence; (g) the judgment; (h) any other order. (3) A copy of the record must be given to the chief executive (corrective services) if— (a) an Act provides for it to be given; or (b) the person is being committed into, or remanded in, custody; or (c) the record is otherwise relevant to the functions and powers of the chief executive (corrective services). (4) The record is a sufficient warrant for executing the judgments noted on it. (5) The proper officer may amend the record if it is inaccurate in any respect and, if a copy of an inaccurate record has been given to the chief executive (corrective services), the proper officer must replace the copy with a copy of the record as amended. Mr Baker did not have to be present to be convicted [138] I assume for the purposes of this analysis, that her Honour’s conduct on 18 November 2016 in finding Mr Baker guilty of all charges could have comprised “the conviction” of Mr Baker on all charges in the sense contemplated by s. 157. The question raised by this first issue is whether there was no such conviction because Mr Baker was not personally present in Court on that day. 79 See r. 59(3). -- 39 of 115 -- 40 [139] In my view, Mr Baker did not have to be personally present for there to be a conviction on 18 November 2016. There are three preliminary points to note. [140] First, there is no statutory provision which comprehensively deals with the necessity for Mr Baker’s personal presence at the hearing of a complaint (including conviction and sentence). This is in contrast to the position for trials on indictment, which are dealt with by s. 617 Criminal Code. That provision requires an accused person to be present for the trial, subject to the specific exceptions identified: (a) Where the accused person behaves in a manner which makes their presence impractical; (b) Where there are more than one person charged on indictment and one of the parties is ill; and (c) Where a person is charged with a misdemeanor the Court may permit the person to be absent on such conditions as the Court thinks fit. [141] The last exception is of particular note because it involves a recognition even in the context of trials on indictment, that it is not essential that a person be present for the whole of the trial where the offence is a less serious one. [142] Second, the issue is whether Mr Baker was required to be personally present for conviction in the context of the facts as they existed on 18 November 2016. To recap, those facts are, relevantly, that: (a) Mr Baker had previously appeared on the hearing of the trial by his lawyers and had been excused from personally attending at the trial on a number of occasions; and (b) Mr Baker appeared on 18 November 2016 by his lawyer and there is no suggestion his personal attendance had been required by the Court on that date. [143] Third, the respondent submits that it starts with an advantage when it comes to construing the provisions of the Justices Act as to the requirement for the defendant to be present for conviction. The respondent submits that there is a common law principle that criminal proceedings must be conducted in the presence of the defendant. Accordingly, it seems, the respondent submits I should approach the construction of the provisions relating to conviction in a person’s absence on the basis that a clear indication of the intent of Parliament to abrogate or curtail the right to be present on conviction is required.80 [144] No authority in support of the common law principle was cited. The starting point for the modern common law on the subject seems to be Lawrence v The King [1933] AC 699 at 708 where the Privy Council observed: It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable, unless possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid. 80 Pearce and Geddes, “Statutory Interpretation in Australia” (LexisNexis, 8th ed, 2014) at 5.3. -- 40 of 115 -- 41 [145] The judgment distinguished between a felony and a misdemeanor and confined the right to be present to the former. [146] However, that case does not fully state the principle, at least as it has been developed in Australia in non-Code states. It has since been recognised that if an accused absents himself during a trial so as to be taken to have waived his right to be present, then the Court may proceed in the accused’s absence, though the discretion ought to be exercised with care. It has also been recognised that the distinction between misdemeanours and felonies should not be maintained, except that the exercise of the discretion if a defendant absents himself or herself from the trial might be informed by the seriousness of the offence charged.81 [147] It can be seen that the common law principle has not been stated as applying to simple offences tried by a Magistrate or Justice. I found no specific authority for the proposition that the common law principle applied to summary trials before a Magistrate and none was cited. I do not accept there is any such principle. Bearing those matters in mind, it seems to me that, read as a whole, the relevant provisions of the Justices Act support the inference that there was no requirement for Mr Baker to be personally present to be convicted, particularly as he appeared by his lawyer. [148] That is supported by the following matters. [149] First, s. 142(1)(a) expressly provides that if the defendant does not appear at all pursuant to the summons, one option for the Court is to hear and determine the case as if the defendant was present. That subsection clearly contemplates proceeding to conviction and sentence (subject to the limits on sentences which may be imposed) without the defendant if he or she does not appear. It is hard to see how one could infer that there is no power to convict in the defendant’s absence when he did appear at some stage in the proceedings, given that express provision where the defendant fails entirely to appear, especially given the terms of s. 147. [150] Second, s. 142A (which is expressly relied upon by the respondent) does not lead to any other conclusion. That section operates to assist proof at the trial in the absence of a defendant where the complainant is a public officer or police officer. It is otherwise consistent with the position communicated by s. 142(1)(a), that if the defendant does not appear the Court may hear and determine the matter including conviction and sentence (again subject to the limits on sentence in the section). [151] Third, s. 147 also supports the conclusion that the Court may proceed in the defendant’s absence. It provides for the situation where, relevantly, the defendant has appeared on the summons initially (i.e. s. 142 would not be strictly applicable) but does not appear either in person or by a lawyer on the adjourned date. Again in that case the Court may proceed with the hearing of the complaint as if the defendant was present. [152] Each of these sections contemplate the Court proceeding in the absence of the defendant or his or her lawyer. The prospect of a conviction occurring in the absence of the defendant in one or more of those situations is also expressly contemplated by s. 150(3). Thus the Act clearly contemplates in a number of provisions the power of the Court to proceed to conviction absent the defendant or his lawyer, either on the date of the summons or on any adjourned date. 81 R v Jones (1998) 72 SASR 281 at 292-294; the statement in Lawrence v the King was also recently approved by the Court in Mareangareu v R [2019] VSCA 101 at [59]. -- 41 of 115 -- 42 [153] A fortiori, one would think, if the defendant was in fact present by his lawyer even though not personally present, as was the case on 18 November 2016. That inference is put beyond doubt in my view by s. 144 which expressly permits the Court to proceed to hear and determine the complaint if, relevantly, the defendant appears by his or her lawyer. [154] Accordingly, I conclude that Mr Baker did not have to be present in Court on 18 November 2016 for her Honour to convict him of the offences in the four Complaints. Her Honour’s finding of guilt was not the “conviction” under s. 157 [155] The appellant’s case was put on the basis that her Honour’s two statements on 18 November 2016 underlined in paragraph [20] comprised the conviction of Mr Baker on all charges in the four Complaints for the purposes of s. 157. I disagree. The malleable meaning of “conviction” [156] The starting point is to recognise the malleable nature of the words “convict” and “conviction” when used in a statute. [157] Cobiac v Liddy (1969) 119 CLR 257 is a convenient starting point. The facts of that case are instructive in the analysis of s. 157. It involved an appeal from the decision of a special magistrate hearing a summary trial for offences against the Road Traffic Act 1967 (SA) arising out of a car accident caused by the defendant while intoxicated following which he left the scene. Three charges were brought for: driving while intoxicated, leaving the scene and failing to drive with due care and attention. The magistrate convicted Mr Liddy and imposed various penalties for the second and third charges comprising a fine, costs and a lengthy disqualification from driving. [158] A particular issue arose, however, on the first charge. Mr Liddy had previously been convicted of driving while intoxicated. The effect of s. 47 Road Traffic Act was that for a second offence, the provisions under the heading “Penalty” provided (inter alia) a sentence of imprisonment of a minimum of one month was to be imposed. Section 47(4) sought to ensure the minimum sentence was not undermined by other enactments. It provided, relevantly, that notwithstanding any other Act, the minimum period of imprisonment in s. 47(1) was not to be reduced in any way. [159] However, s. 4(1) of the Offenders Probation Act 1963 (SA) relevantly provided that where a person was charged with a summary offence, and the Court “thinks that the charge is proved, but is of the opinion that, having regard to [various factors] it is expedient… the court may… I. without convicting the person charged dismiss the information or complaint”. Item II provided a discretion to convict, but discharge without penalty. [160] The Magistrate found the offence of driving while intoxicated proved. Specifically, he found Mr Liddy “guilty as charged”82 and/or he announced that he found that the prosecution had proved beyond reasonable doubt that the defendant was guilty. However following that announcement, counsel submitted the Magistrate should exercise his discretion under s. 4(1) I. of the Offenders Probation Act to dismiss the complaint. His Honour did so. 82 Per Windeyer J at 267. -- 42 of 115 -- 43 [161] The points taken to the High Court were whether s. 4(1) could ever apply to avoid the minimum penalties under s. 47 Road Traffic Act and, if it could, whether his Honour properly exercised the discretion under I. to dismiss it. [162] The High Court held in three separate judgments that, given that s. 47 imposed a penalty, and under s. 30 of the relevant interpretation statute a penalty only applied on conviction, it was open to his Honour to dismiss a charge under s. 47 Road Traffic Act prior to conviction despite the express provision protecting the minimum penalties provided. (They also held that his Honour properly exercised his discretion to do so.) [163] It is interesting that the question of whether the Magistrate had convicted Mr Liddy merely by pronouncing guilt in open court was not an issue in proceedings, even though it appears from the report that that was what had occurred. The majority judgment simply acted on the basis that what had occurred was not a conviction for the purposes of s. 4(1).83 It is to be noted that none of the three learned judges were troubled by that question on the facts in that case. [164] The character of the Magistrate’s acts were specifically considered by McTiernan and Windeyer JJ in separate judgments. McTiernan J observed (at 267): I take the view that the word “conviction” in s. 30 of that Act should receive an ample meaning. Without attempting an exhaustive interpretation, the word “conviction” may mean a mere determination of guilty or a finding of guilt plus a judgment on the finding. [165] Windeyer J considered the matter in more detail. After setting out the statutory provisions, his Honour observed (at 270-271): The two phrases which are critical are “without convicting” and “dismiss the information or complaint”. These each employ words which have been part of the vocabulary of English law for centuries. But their meanings and effects in the Act must depend on the context in which they there appear, and on the policy and purpose of the Act as made manifest by its language. I say this because it seems to me to be of little moment to say that Parliament has misused words, has called things what they are not. If it has, this may be regrettable to purists in the use of traditional legal terms. But Parliaments can make the words they use bear whatever meaning they wish. Context and the policy of an enactment may point the meaning to be given to words and phrases in it, as surely as express statutory definitions would do. And, despite the criticisms of its language voiced in England fifty years ago, the Act has maintained its place in the statute law of South Australia; and it has been regularly applied there in the administration of the penal laws, as has a similar provision in New South Wales. For this reason I was inclined to by-pass in this judgment all that, in the course of argument, was said to us as to the abstract, general, and historic meanings for lawyers of the word "convict" as a verb, and of the noun “conviction”. Nevertheless, as the parties attached some importance to these things, and as perhaps they do throw some indirect light on the questions in the case, I shall deal briefly with these matters of legal linguistics. [166] His Honour then reviewed the competing meanings for conviction which had been advanced at common law, finishing with this summary (at 272-273): The distinction, at common law, between conviction and judgment appears in R. v. Vipont84, which was followed in R. v. Harris85. These cases can perhaps be regarded as illustrations of the statement - derived from Coke and originally having a particular application to offences against religion, but given in Jacobs' Law Dictionary (sub. tit. "convict") as of general application – that "judgment amounts to conviction; though it doth not follow that everyone who is convicted is adjudged". This means that everyone who is found guilty is not necessarily sentenced. He is convicted it is true; but unless he be sentenced, and the sentence 83 Barwick CJ, Kitto and Owen JJ at 264-265. 84 (1761) 2 Burr. 1163 [97 E.R. 767]. 85 (1797) 7 T.R. 238 [101 E.R. 952]. -- 43 of 115 -- 44 and conviction stand on an appeal, he is not to be called a convict. In more recent times it has been said that "the word, ‘conviction’ is sometimes used as meaning the finding guilty; at other times it means that finding together with the judgment ... of the Court" : per Darling J. in Harris v. Cooke86. This, it seems to me, is especially so when the question arises in relation to proceedings in a court of summary jurisdiction. In a trial on indictment the jury's return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a court of petty sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he announces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence: R. v. Sheridan87; Reg. v. Campbell; Ex parte Hoy.88 [Footnotes in original] [167] The final two sentences might be thought to give some comfort to the appellant except for his Honour’s next comment: “Leaving now old learning about the common law meaning of the words ‘convict’ and ‘conviction’, I turn back to the words of the” Act relevant in that case. [168] Later his Honour commented (at 274): A condition precedent of an order under s. 4(1) of the Act is that the court of summary jurisdiction thought the charge was proved. It seems to me therefore that if an offender who had had the benefit of the dismissal of a complaint pursuant to the subsection came again before a court, charged with having again committed the same offence, it would be properly called his second offence of the same kind, notwithstanding that formerly he had been formally not convicted. [169] This echoes the notion in Bell v Carter of there being a difference between being convicted in the sense of found guilty on the one hand and being formally convicted on the other. [170] Finally, it is to be noted that, despite his careful analysis of history, his Honour was also not troubled by whether there had been a conviction by pronouncement of guilt in open court such that the power to dismiss did not arise. [171] Both parties relied on Cobiac v Liddy. In my view, it stands for the proposition that the meaning of “convict” and “conviction” falls to be considered with care in the statutory context in which it appears. That was expressly stated by Windeyer and McTiernan JJ and is implicit in the decision of the majority. However, some concepts of assistance in this case can also be discerned: the fact that summary trials do not have the same formal distinctions between verdict and judgment as those on indictment and that, at least in Cobiac, the mere finding of guilt by a Magistrate was not sufficient to amount to a conviction for the purposes of the statutes under consideration there. [172] The next case to consider is Maxwell v R (1996) 184 CLR 501. That case dealt with the question of when a conviction occurs on a plea of guilty for the purposes of applying double jeopardy principles. That case establishes that, in that context, a conviction does not arise on a plea of guilty but from some act on the part of the Court. The question of whether a plea gives rise to a conviction arose. [173] On that point, Dawson and McHugh JJ observed (at 507-508)89: 86 (1918) 88 L.J.K.B. 253 at 255. 87 [1937] 1 K.B. 223. 88 [1953] 1 Q.B. 585. 89 Toohey J made similar observations at 519-520. -- 44 of 115 -- 45 The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked.90 On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur:91 "The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court." (Emphasis added.) The context in which the question arises for present purposes is that of autrefois convict and in that context it would seem clear that a verdict or plea of guilty is insufficient of itself to constitute a conviction. That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter.92 The older authorities have been collected in a number of cases and no point is to be served by rehearsing them here.93 In R v Tonks the Victorian Full Court said:94 "The review of the authorities which we have made satisfies us that a plea of guilty does not of its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a 'conviction', for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment;95 but there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt. And if there can be no conviction till then, neither can there be a successful plea of autrefois convict." That passage was regarded as correctly stating the law by Gibbs J in the Supreme Court of Queensland in R v Jerome and McMahon96 where he said: "In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons." [Footnotes in original] [174] Again that decision highlights the importance of context in determining whether and when a conviction has occurred. 90 See Cobiac v Liddy (1969) 119 CLR 257 at 271. 91 (1844) 7 Man & G 481 at 504 [135 ER 193 at 202]. 92 See Wemyss v Hopkins (1875) LR 10 QB 378 at 381. 93 See R v Tonks [1963] VR 121; Cobiac v Liddy (1969) 119 CLR 257 at 271-273; Griffiths v The Queen (1977) 137 CLR 293; Richards v The Queen [1993] AC 217. 94 R v Tonks [1963] VR 121 at 127-128. 95 See Burgess v Boetefeur (1844) 7 Man & G 481 [135 ER 193] and Hale's Pleas of the Crown. vol I, p 686. 96 [1964] Qd R 595 at 604. -- 45 of 115 -- 46 Authorities relevant to the meaning of conviction in ss. 157 and 159 [175] Construing the precise meaning of “the conviction” in ss. 157 and 159 is a difficult task. It is convenient then to first consider whether there is authority on that specific question which either binds this Court or is strongly persuasive as to the approach it should adopt. [176] There are three cases which must be considered: Bell v Carter, Morley v Senewiratne and Lasker v Holeszko [2019] QCA 163. [177] Bell v Carter is dealt with in paragraphs [102] to [108] above. The question to be resolved is what the case stands for. It will be recalled that the competing positions turn on the meaning to be attributed to the word “formal” when used by the Court of Appeal in the passage in paragraph [106] above, applied in the context of a conviction: (a) The appellant contends it means (or includes) a finding of guilt or dismissal given orally in open court. Thus “formal” is taken by the appellant to mean an unequivocal pronouncement in Court, which the appellant submits is the correct characterisation of what occurred on 18 November 2016; (b) The respondent contends it means that there must be a finding of guilt and some further formal step, such as the imposition of penalty. [178] In my view, the Court of Appeal intended the word “formal” to modify the word “dismissal” by drawing a distinction between pronouncing the dismissal in Court and recording the dismissal by some formal act. There are four reasons for that. [179] First, the facts disclosed a formal act which had occurred (the recording of the dismissal on the bench charge sheet) and this fact was identified immediately prior to the key passage.97 [180] Second, that approach seems consistent with a practical application of ss. 158 and 159.98 It is trite that statutory provisions ought to be construed so as to give effect to the purpose evident in the provision and to avoid its impractical operation (subject of course to the plain words of the section).99 In my view, the obvious purpose of ss. 157 to 159 is to confer on the Court the power to award costs. Where there is ambiguity, the provisions ought to be interpreted in a manner which provides a reasonable opportunity for that power to be exercised. To construe ss. 157 and 158 as applying such that a pronouncement of “guilty” or “not guilty” excludes the power is apt to result in impractical constraints on the power of both complainant and defendant to seek the exercise of the power because (as Robin DCJ observed in Morley) the oral pronouncement can occur without warning and be complete before even the most astute advocate can intervene. [181] I do not think that the appellant’s submission that the Magistrate could give notice of an intention to convict or dismiss is a practical one. Further, such an approach could lead to obscure debates about whether, on the proper construction of the words 97 I do not think the reference by the Court to the difference between the oral order on costs and the order recorded on the bench charge sheet suggests any other conclusion. The decision seemed to me to be that because a formal dismissal had occurred, it did not matter what had been said or done about costs. 98 The judgment refers to s. 159 but relevantly identical words appear in s. 158 (i.e the “order of dismissal”). 99 Pearce and Geddes at 2.12 and 2.39. -- 46 of 115 -- 47 used, the Magistrate in fact found guilt or dismissed, no matter how careful they might have been. [182] Third, the principle that some concrete step beyond the mere verdict is necessary for a conviction or dismissal to take effect as such is recognised in the criminal law. Although on a summary trial the same person gives the verdict and the judgment, there is nothing heretical about the idea that, having stated a verdict, the Magistrate presiding in a summary trial must make some formal form of order to give effect to the verdict. [183] Fourth, I note that, unlike a conviction, there is no mandatory obligation in the Justices Act on a Magistrate in all cases to record a dismissal. Thus, s. 150(2) compels the making of a minute or memorandum of a conviction, while s. 149 contemplates an “order of dismissal” if the Magistrate is required to do so. The latter provision is plainly intended to provide the basis for a plea of autrefois acquit should it be necessary to make one. I accept, however, that it cannot be said on my interpretation of Bell v Carter that the requirement for a “formal dismissal” can be linked to a mandatory statutory obligation to record the dismissal in some specific manner. However, the Court was not concerned with those questions. Rather, it reached the conclusion that some step beyond mere oral dismissal was required to give rise to an “order of dismissal”. [184] Be that as it may, it is much easier to identify formal steps which can accompany or follow a verdict of guilty. They include: (a) The express provision for mandatory minuting of a conviction in s. 150(2); (b) The (effectively) mandatory provision for preparation of a verdict and judgment record under s. 151 when read with r. 62 Criminal Practice Rules; and (c) The requirement for sentence to be imposed on a finding of guilty. [185] Strictly speaking, the ratio of Bell is confined to the meaning of “order of dismissal” in ss. 158 and 159. However, I should and would follow the approach of the Court unless there was some compelling reason not to do so. No such reason has been identified. Accordingly, I consider that on the authority of Bell v Carter, her Honour did not convict for the purposes of s. 157 and 159 Justices Act by orally stating that she found Mr Baker guilty on all charges on 18 November 2016. [186] That conclusion is reinforced, in my opinion, by the recent decision of Lasker v Holeszko which concerned a situation factually similar to that which arises in this case. (I am grateful to Mr Trewavas for bringing the case to my attention). There a Magistrate heard a summary trial of offences under the SPA over six days. Some time later, on 16 August 2018, the learned Magistrate listed the complaint and published his written reasons and decision. In his reasons, the Magistrate found that the prosecution had established each charge beyond reasonable doubt. In the reasons under the heading “Court Orders”, his Honour ordered that Mr Lasker be found guilty of each charge and ordered that the Court would hear further on the questions of costs and penalty. His Honour then adjourned the matter to consider those issues. A document signed by the Magistrate was sealed by the Court containing those orders. [187] On 14 September 2018, Mr Lasker filed a notice of appeal under s. 222 Justices Act. The complainant/respondent to the appeal filed an application to strike out the Notice of Appeal. It contended that the appeal was invalid because the complaint had not -- 47 of 115 -- 48 been disposed of by final orders. That application was heard by Judge Richards and her Honour struck out the appeal. Her Honour’s judgment was upheld by the Court of Appeal. Bradley J (with whom Gotterson and Philippides JJA agreed) gave the substantive judgment. [188] After noting the passage in Maxwell v R above at [173], his Honour analysed the character of the order from which appeal lies under s. 222. His Honour held: [25] In any case, the right of appeal in s 222 is not based upon a “conviction”, but on a person feeling aggrieved by “an order made by justices or a justice in a summary way on a complaint”. The meaning of this expression was considered by the Full Court in Schneider v Curtis.100 There, Gibbs J analysed s 222 in this way: “The section does not give a right of appeal from any order made in proceedings commenced by a complaint but only from ‘an order made upon a complaint’. These words … in my opinion refer to an order disposing of the complaint itself and do not include an order upon an application made during the course of the proceedings instituted by the complaint. There was a sound reason for the legislature to allow a right of appeal under s 222 only from orders disposing of the complaint itself. On the hearing of an order to review the court has a discretion to refuse relief… However there is no similar discretion to refuse to allow an appeal under s 222 if it is established that the order appealed from was erroneous. Serious inconvenience could result if litigants could appeal from any decision on any interlocutory application made during the course of a case, including an application for a ruling on an incidental question that arose during the trial, and the court had no discretion to refuse to entertain such appeals.”101 Returning to the point, his Honour continued: “Such an appeal in my opinion only lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty.”102 [26] In Schneider, the Full Court was considering an appeal from a magistrate’s ruling that there was a case for the defendant to answer. Applying this analysis, Gibbs J found there was no right to appeal under s 222 in respect of the decision on a “no case” submission. Wanstall and Douglas JJ agreed. [Footnotes in original] [189] Next his Honour applied those principles to the sealed order finding the applicant guilty. His Honour noted the argument put by the applicant’s counsel (who was junior counsel for the appellant in this appeal). The argument is familiar: [37] Where both parties appear before the court on a complaint and summons alleging a simple offence, the magistrate may hear and determine the complaint.103 The defendant must be asked how he or she pleads.104 [38] Where, as here, the defendant pleads not guilty, s 146(1)(a) authorises the court to: “proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon 100 [1967] Qd R 300. 101 At 304-305. 102 At 306. 103 Justices Act, s 144. 104 S. 145(1). If the defendant pleads guilty, the court convicts the defendant or makes an order against the defendant or deals with the defendant in a manner authorised by law: s 145(4). -- 48 of 115 -- 49 consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require”. [39] According to the applicant, from the moment of a conviction, in the language of s 146(1)(a), the court has determined the matter. He says the relevant operation of the Justices Act then ceases, and any further step must be taken under the Penalties and Sentences Act 1992.105 [190] His Honour held that that argument was wrong. His reasoning is important to this appeal. He held: [40] This argument must be rejected. The applicant’s contentions are contrary to the analysis applied in Schneider, Paulger and Mathews. The right of appeal arises from s 222 of the Justices Act, not from s 146(1)(a). The existence of that right is not determined by whether a defendant has been convicted. It depends on whether the order the subject of the appeal is one that “disposes of the complaint”. The collection of sentencing powers and principles into the Penalties and Sentences Act did not alter the operation of s 222 of the Justices Act so as to give a party a right to appeal that did not previously exist. [41] It is clear from the “Orders” and directions recorded on 16 August 2018 that the magistrates court was to “hear further” from the parties before exercising the discretion as to costs of the proceeding and before imposing a sentence on the applicant in respect of the four offences. Both those matters arise on the complaint. The magistrates court will not have disposed of the complaint until it has dealt with them. [42] It follows that the learned primary judge did not err in striking out the applicant’s s 222 appeal. [43] If the application to appeal is dismissed, the summary processes on the complaint can be completed, including any conviction in accordance with s 151 of the Justices Act, any costs order in accordance with ss 157, 158B and 159 of that Act and any penalty in accordance with the Sustainable Planning Act and the Penalties and Sentences Act. Any appeal may then lie under s 222 of the Justices Act from the final disposition of the complaint by the magistrates court. [Footnotes in original] [191] Also important is his Honour’s analysis of the finding of guilt. He held: [44] At the hearing of the application, particular attention was directed to the second “Order”, that the applicant “be found “GUILTY” of each of the four offences”. It is unusual in its expression. It does not conform to the requirements of s 151(3) of the Justices Act or rule 62 of the Criminal Practice Rules 1999. The departure from the statutory norm appears to have generated confusion as to whether the applicant had been convicted of the four offences charged in the complaint. The language in the third “Order” added to this confusion. [45] It is unfortunate that the parties, who were on notice by the draft of the magistrate’s reasons, did not seek to clarify this at the hearing on 16 August 2018. [46] The published reasons expressly record each of his Honour’s findings of fact. Those findings were, in his Honour’s opinion, sufficient to lead to the conclusion that the applicant should be found guilty of the offences alleged in the complaint. The second “Order” was plainly a means of recording the magistrate’s satisfaction that guilt has been proven and that, subject to considering submissions and evidence, his Honour would be prepared to convict the applicant and sentence him accordingly. The process was described in Paley on Summary Convictions: 105 This was said to follow from the first of the ten express purposes in s 3(a) of the Penalties and Sentences Act, namely “collecting into a single Act general powers of courts to sentence offenders”. -- 49 of 115 -- 50 “Before a conviction can properly be pronounced, further considerations, however, arise dependent upon the age of the accused, his character, antecedents, health or mental condition, his means so far as known to the court in cases where a fine is proposed, the extenuating circumstances attendant upon the commission of the offence, or its trivial nature … In certain cases, courts of summary jurisdiction may be justified in considering the consequential effects of a conviction in deciding upon the form of punishment to be imposed … It may therefore become necessary, instead of giving an immediate and final judgment, to indicate that the case against the defendant is found proved, but that it will be adjourned to enable the justices to consider how and to what extent the court is able to exercise such discretion as the law allows.”106 [47] This is distinct from the more usual process where: “After a decision to convict has been arrived at, evidence may be received of the result of enquiries as to the character and antecedents of the defendant.”107 [48] With respect, it was unnecessary to record the findings in an “Order”. Doing so had no effect on the rights of the parties beyond the findings in the published reasons. Any formal record of conviction and sentence is yet to be made. For the purposes of this application, the second “Order” might be regarded as a nullity. [49] If by the second “Order” the applicant had been convicted of the offences, then the other directions recorded in the same document may not have been able to operate in the way, on their face, they were intended. This is because ss 157 and 159 of the Justices Act have been understood to require the magistrates court to order the payment by a defendant of any sum for costs “by the conviction or order” and not by any later order.108 In the context of the surrounding “Orders” and directions recorded for 16 August 2018, plainly that was not to be the effect of the second “Order”. [Footnotes in original] [192] I draw the following propositions from this decision: (a) A finding of guilt and a conviction are conceptually distinct steps in the determination of a complaint; (b) A Magistrate may find a person guilty of a charge in open court, without disabling him or herself from proceeding to deal with costs under s. 157, all the more so where the finding of guilty is objectively identified as being made while reserving that question; (c) A Magistrate has not completed the hearing and determination of a complaint until he or she has passed sentence; and (d) The above approach is consistent with Bell v Carter. [193] In my view, both Bell v Carter and Lasker v Holeszko are inconsistent with the appellant’s argument on the construction of “conviction” in ss. 157 and 159 and consistent with the approach of the respondent. The appellant’s argument on construction therefore must fail. [194] It remains to analyse Morley v Senewiratne. When properly analysed, it also supports the respondent’s position. Morley is discussed at paragraphs [122] to [127]. I refer to paragraph [127] above. As concluded there, Robin DCJ’s decision is consistent with the construction of “conviction” advanced by the respondent: that is 106 9th ed, 1926, pp 387-388. 107 Ibid, p 389. 108 Bell v Carter [1992] QCA 245 at 4-5. -- 50 of 115 -- 51 that “conviction” in ss. 157 and 159 means the verdict of guilt and sentence. However, while his Honour proceeded on the basis that it was open to him to award costs on the setting aside of the sentence, his Honour did not specifically analyse how this approach was supported by Bell v Carter, or how it arises from the language of the sections. That makes the decision somewhat less persuasive then it otherwise would be. [195] Nonetheless, it does support the position adopted by the respondent as to the construction of “conviction”. [196] I did not think either of the other cases relied upon by the respondent is of assistance. Schloss v Bell turned on use of the slip rule, a device which I do not think is legally effective under the Justices Act. As to Gibson v Canniffe, with respect to Devereaux SC DCJ, I cannot see how the circumstances of the Magistrate’s actions consequent on the decision to dismiss take the case outside Bell v Carter. The case is in any event concerned with dismissal not conviction. The proper construction of sections 157 and 159 [197] If I am wrong to apply Bell and Lasker to resolve this point in favour of the respondent, I should consider how I would construe the sections if free from those authorities. [198] The starting point is, as always, the recognition in the authorities of the malleable character of the meaning of “convict” and “conviction”. In my view, those authorities justify approaching the construction of the sections without any presumption that the words should be given the narrow meaning contended for by the appellant. [199] It is next important to recognise the appellant’s point at [102] above that there is authority in Queensland for the proposition that once a Magistrate has convicted a person or dismissed a charge in open court, the Magistrate is functus officio. Mr Allan pressed these cases with vigour as providing a complete answer to the respondent’s case. In my view, they do not. [200] Those cases establish that if a Magistrate has convicted or dismissed a charge in open court, the Magistrate cannot vacate the conviction or dismissal. That is the sense in which functus officio is used in those cases. However, those cases are not concerned with the particular issue which arises in ss. 157, 158 or 159. Nor do they preclude a construction of those sections which contemplates conviction or dismissal requiring more than the mere pronouncement of a verdict. Such a construction does not seek to vacate the verdict. [201] Further, in the context of convictions at least, being functus officio in the manner contemplated in those cases does not make the Court functus officio in respect of the complaint. There is no suggestion that the Magistrate is not free to adjourn proceedings pending sentence and the determination of the complaint in that sense is incomplete until sentence is passed (as was clearly confirmed in Lasker). In that circumstance, it does not seem to do any harm to the integrity of the authorities referred to by the appellant to construe ss. 157 and 159 in a way that preserves the power to award costs despite the giving of a verdict of guilt in court. [202] For the same reason, I cannot see why “conviction” must be used in the same way everywhere in the Justices Act. The language of the Act relevant to this matter is far from consistent: -- 51 of 115 -- 52 (a) Section 147A introduces the expression “record a conviction”, then speaks of setting aside or vacating the conviction, as if the conviction comprises the recording of the conviction. It provides no clear statement of when a conviction is recorded. In its ordinary meaning, “recorded” means making some record and is inapt to refer to an oral finding of guilt; (b) Section 150(3) imposes an obligation on the clerk of the Court to give written notice to a person not present when the conviction is “pronounced”. The appellant relied on this as supporting the oral finding of guilt argument. However, if conviction in this part of the Act meant an oral finding of guilt, why is the word “pronounced” included? The purpose for its inclusion is ambiguous at best; and (c) Section 151 introduces the expression “formal conviction”, being a conviction which is drawn up in proper form. In effect, this is the verdict and judgment record required under r. 62 Criminal Practice Rules. Thus the Act contemplates a formal conviction as opposed presumably to an informal conviction. [203] Mr Allan submitted that conviction (in the sense of a verdict of guilt) has always been recognised as giving rise to a right of appeal under that section separately from orders imposing a penalty. Thus he said, the Act in that section recognises conviction as being a distinct order from sentence. Even if so, this would be only of limited relevance to the question of construction in this appeal. Lasker v Holeszko has held to the contrary. [204] In my view, the considerations which most tellingly inform the construction of the word “conviction” are these. [205] First and foremost is the matter outlined in paragraph [180] above. Reading “the conviction” as referring to the completion of the determination of the complaint by final orders, including in particular sentencing, promotes the obvious purpose of s. 157 specifically and the Divison generally to give parties a reasonable opportunity to seek costs. [206] Second, it seems orthodox to focus on the final determination of the whole complaint up to the completion of the sentencing process when looking at a costs provision which is concerned, like sentencing, with a consequence of a finding of guilt. [207] Third, such a construction does no violence to established authority and is of course consistent with Lasker and (as I read it) Bell. [208] Finally, the construction which includes sentence permits costs of sentence to be included in the costs of the trial. As the sentencing process is part of the determination of the complaint, I can see no good reason to construe the section in a manner which would exclude those costs from the scope of the power conferred by s. 157. Conclusion [209] The appellant’s contention that “conviction” in s. 157 refers to the pronouncement of guilt in open court fails. I should add that my reasoning also excludes the conclusion that her Honour’s published reasons comprised the conviction on the charges. Her Honour’s written reasons contained only findings of guilt of the kind made in Lasker, and no orders were recorded. -- 52 of 115 -- 53 [210] There is one point to add. At trial, the appellant submitted that for the prosecutor to maintain that her Honour had jurisdiction to award costs after reading the appellant’s trial submissions would amount to an abuse of process by the prosecutor.109 This contention was advanced before me by reason of the adoption of those submissions on this appeal. I refer to paragraph [1153] of my May reasons. Despite that warning, the submission was not withdrawn. I am willing to assume that was an oversight. However, the submission is not, and was never, justified. Indeed there was some irony in the making of the submission as part of a written argument from the appellant on the point covering 86 paragraphs. I repeat my comment in the May reasons that care must be taken in making such allegations. Unjustifiable allegations of abuse of process might in some circumstances be properly characterised as unprofessional conduct. No separate power to make an “order” on a complaint [211] This point raised by the respondent can be shortly dealt with. Section 157 applies to “all cases of summary convictions and orders”, then permits the Court to order “by the conviction or order”. A complaint under the Justices Act may deal with a simple offence or a breach of duty. A summary conviction is defined in s. 4 as a conviction for a simple offence. A breach of duty is defined, relevantly, as any act or omission (not being simple offence) on complaint of which a Magistrate may make an order. Bearing those matters in mind, when the section speaks of “the conviction or order” it is referring back to the introductory words of the section. Thus it should be read as meaning the summary conviction of a simple offence or an order made determining a complaint of breach of duty. There is no basis to construe the section as contemplating an order for costs on conviction of a simple offence. The reference to order is to an order on a complaint of a breach of duty. The slip rule issue [212] The respondent additionally contended that even if there was a conviction on 18 November, it was open to her Honour to set aside the conviction under the slip rule. It seems to me that this is an unlikely proposition. The authorities referred to in paragraph [102] are to the contrary and in my view nothing in Bell v Carter or Lasker v Holeszko overrules the principle in those cases. Section 147A was introduced after all the cases apart from Topliner were decided. However, the terms of that section are not apt to apply to the circumstance where the Magistrate intended to find a defendant guilty but was mistaken as to the consequences in law of that act. However, given the conclusion reached on the meaning of conviction, it is unnecessary to express a final view on this issue, particularly as it was not fully argued and is a matter upon which full argument might cast a different light. Intention to convict? [213] In the course of argument, I raised with the parties whether, taking into account the context of her Honour’s apparent findings of guilt, her Honour had in fact exercised her judicial power to reach a verdict on the charges at all. It seems to me that whether her Honour had done so depends not just on the use of the specific words, but also the context in which they were used. That context seems to be properly informed at least by the statements by her Honour before she gave her 18 November reasons (see paragraph [17]) and also in my view by other matters stated by her Honour in the course of that hearing immediately after her 18 November reasons (see paragraphs 109 Defendant’s submissions on costs at trial, paragraph 34 at Appeal Book, Vol 2, p 625. -- 53 of 115 -- 54 [21] to [23]). It is unnecessary to decide that question, given my conclusion on the proper construction of the section. Reasonable minds could differ but it seems to me that notwithstanding the conditional character of her Honour’s comments surrounding her reasons on 18 November, they cannot be fairly characterised as amounting to a notification of an intention to find Mr Baker guilty rather than a finding of guilt. That tends to be confirmed by the language used in the Reasons and the Revised Reasons. [214] Rather, it seems to me that what her Honour sought to communicate from time to time was her intention not to finally determine the complaints by communicating her decision on guilt. That matter fell to be resolved by reference to the construction arguments. Characterised in that way, her Honour did not err in concluding she had power to award costs on 20 March 2017. Conclusion of first ground of appeal [215] I agree with the appellant’s submission that her Honour erred in concluding that she did not convict Mr Baker on 18 November 2016 because Mr Baker was not personally present. However, I find that her Honour was correct to conclude that her finding of guilt on all charges on 18 November 2016 did not comprise “the conviction” of those summary offences under ss. 157 and 159. I therefore dismiss this ground of appeal. Special difficulty, complexity or importance Her Honour’s reasoning [216] Her Honour’s reasoning in concluding for the purposes of s. 158B(2) Justices Act that the case was one of special difficulty, complexity or importance is set out at paragraph [86] above. The appellant’s submissions [217] The appellant relied on his written submissions below on the appeal. They comprised the following points. [218] The appellant submitted to her Honour that the jurisdiction to award costs above scale costs was not enlivened because although the case was of some difficulty and was subjectively important, it was not of special difficulty, complexity or importance under s. 158B(2). He submitted that as a matter of law:110 (a) It is not of itself sufficient that a statutory scheme is complex, that the volume of work required was large, nor that senior counsel was retained; and (b) A matter is only of special importance if that is objectively demonstrable, not just because the parties consider it so. [219] He next submitted that no discretion arose on the facts because:111 110 Defendant’s submissions on costs at trial, paragraphs 97-106 at Appeal Book, Vol 2, pp 634-635. 111 Defendant’s submissions on costs at trial, paragraphs 124-147 at Appeal Book, Vol 2, pp 637-640. -- 54 of 115 -- 55 (a) The matter was not of special importance because it was just another unlawful tree clearing case and if it was found to be of special difficulty and complexity, then every such case would fall into that category; (b) The fact that there was 46 charges is irrelevant of itself to difficulty and complexity because that was an unnecessary approach elected by the prosecution to articulate the offences; (c) The complexity of proof was the result of the decision to prove the case by remote imaging rather than by using a cadastral survey and botanical evidence for each area; and (d) It was irrelevant that the defendant insisted on strict proof of all charges. Any defendant is entitled to do as much. [220] On this appeal, the appellant also took issue with some specific matters raised by her Honour. It is convenient to set out those arguments:112 When the Magistrate found the matter was one of special difficulty, complexity or importance that warranted her awarding costs she made [a] series of legal errors:- (a) she erred by taking into account as a relevant matter the fact that the defendant had put the prosecution to proof on each and every elements [aspect] of the offences charged; (b) she erred by taking into account as a relevant matter, that the prosecution was required to exclude beyond reasonable doubt all of the many exemptions which existed under the relevant legislation; (c) she erred by disregarding the applicable law that she was referred to by the defendant in his written outline of submissions (i) Palmgrove Holdings Pty Ltd v Subshine Coast Regional Council [2014] QDC 77 at [82] and [92]. (ii) Whitby v Stockair [2015] QDC 79 at [33]-[38]. (iii) Cullinan v McCahon [2014] QDC 120 at [26]-[29]; (d) she erred by failing to use the statutory scale as a starting point for the amount of costs to be awarded: Durrant v Gardiner [2000] QDC 198; (e) She erred by accepting as a relevant matter, that the lengthy duration of the case justified the costs being awarded on a higher scale in circumstances where the duration of the case was materially contributed to by the election of the prosecutor to charge the 46 offences in the manner he did and to seek to prove the charges in the manner he did (see the defendant’s submission in the DCS at [137]-[144] which are repeated and relied on). [221] Counsel did not expand on the written submissions in oral argument. However what was made clear orally was that the appeal went to whether the discretion to award costs other than scale costs arose.113 This is consistent with the Second Notice of Appeal.114 The Second Notice of Appeal does not advance any grounds of appeal challenging the manner of the exercise of the discretion by her Honour in calculating the amount of costs awarded. [222] That is subject to one matter. After I handed down my May reasons, I gave leave for short further submissions to take account of my decision to uphold the appeal on Charges 1 and 2 of Complaint 1. On that point, the appellant submitted that the 112 Appellant’s submissions on costs on appeal, paragraph 31 at Appeal Book, Vol 2, p 618. 113 26 June 2019, TS 2-88.5 to .30. 114 Second Notice of Appeal, paragraph 4. -- 55 of 115 -- 56 assessment of costs by her Honour should be reviewed from the perspective of Complaint 1. The appellant submits that adopting a broad brush approach to determining costs of that complaint, the matter should be considered by reference to the areas cleared. Charges 1 and 2 represent 66 per cent of the total area cleared in Complaint 1. An appropriate order is that each party bears its own costs of Complaint 1. Alternatively, the appellant submitted that the remaining three Forestry Act charges in Complaint 1 were not of special difficulty, complexity or importance and so scale costs should be awarded. The respondent’s submissions 223. The respondent also relied on its written submissions below where he submitted that s. 158B(2) was attracted because of the complexity of the case arising from the number of separate areas, the different forms of clearing, the multiple complex statutory schemes and the character of the defence (being focused on fire management in each case). It was also submitted that the fire management defence made the matter of special importance. The complainant also relied on the complexities of proof given the timing, location and disparate character of the clearing, the extent of the correspondence between the appellant and the respondent and the complexity arising from the limitations arguments.115 [224] The respondent also answered the appellant’s written submissions as to errors alleged in her Honour’s conclusion as to the threshold test under s. 158B(2) as follows:116 (a) It was relevant for her Honour to take into account that the prosecution was put to proof on all matter including exclusion of the exemptions and exclusions, as the complexity and difficulty of proof of those matters was greater than ordinarily encountered in trials of summary offences; (b) Her Honour did use the statutory scale as a starting point for awarding costs; and (c) There is no basis in the evidence to justify the conclusion that the case could have been run differently and if so, that it would have been more efficient. [225] After the handing down of the May reasons, the respondent also provided short supplementary submissions on the implications of success on the two Complaint 1 charges. The gravamen of those submissions was that failure on Charges 1 and 2 made no substantial difference to the overall difficulty and costs of proving the remaining five Forestry Act charges, which involved different tenures, distinct areas and different periods, and the exclusion of various statutory exemptions. The consequence is that at most a small amelioration in the total costs awarded by the Magistrate is all that is appropriate. [226] In oral argument, Ms Dann made submissions directed at demonstrating the extremely modest place of the proof of Charges 1 and 2 of Complaint 1 in the scheme of the prosecution case as a whole, particularly in respect of the evidence of Mr Goulevitch, Mr Dillewaard and Mr Tran. That analysis does support the conclusion that as a whole, Charges 1 and 2 were a somewhat less than a proportionate part of 115 Complainant’s submissions on costs at trial, paragraphs 1-10 at Appeal Book, Vol 2, pp 688-693. 116 Respondent’s submission on costs, paragraphs 71-73 at Appeal Book, Vol 2, p 685. -- 56 of 115 -- 57 the evidence using area cleared as the comparator, though by how much in the context of the overall evidentiary task is difficult accurately to assess.117 Analysis Special complexity, difficulty or importance [227] There are three points which need first to be articulated: (a) First, the statute’s requirement that the case be of special difficulty, complexity or importance begs the question: In comparison to what? In my view, the comparison must be to the difficulty, complexity or importance of the ordinary run of cases heard and determined under the Justices Act on complaint; (b) Second, the appellant in written submissions emphatically emphasised the case must be of special118 difficulty etc. I agree that the question is not whether the case is difficult, complex or important compared to the ordinary case, but whether it is especially so; and (c) Third, whether a case has that character involves an assessment of all the relevant circumstances. There is no rule that all cases of a particular kind are, or are not, of this character. It is a judgment to be made on a case by case basis. [228] Judge Farr’s decision in Cullinan v McCahon [2014] QDC 120 is consistent with these propositions.119 His Honour was dealing there with an application for costs in a matter where the case involved a single charge of wrongly granting a building approval by a private certifier. It was put to his Honour that special complexity or difficulty arose because the charge involved statutory complexity, took considerable work and effort to meet and was brought wrongly in some technical respects and without sufficient particulars. Nothing was put before his Honour as to the practical consequences of the complexity of the statutory scheme nor of the extent of the work and effort alleged. Given there was one charge and the application lasted only a few hours, it is not surprising that his Honour refused to impose costs greater than scale costs. [229] His Honour observed: [20] Unfortunately for the appellant, I do not agree that the case was one which involved special difficulty, complexity or importance. [21] There is no doubt that it was a matter that had a degree of difficulty and/or complexity attached to it. The question however is whether it amounted to special difficulty or complexity. [22] “Special” is relevantly defined in The Macquarie Dictionary as “extraordinary; exceptional; exceptional in amount or degree.” [23] The Macquarie Dictionary Online defines it as “distinguished or different from what is ordinary or usual”. [24] Examples of cases where special difficulty or complexity was found to exist are Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169 (‘Lucy No 2”) in reference to Lucy v OCC Holdings Pty Ltd [2008] QDC 004 and Morley v Senewiratne & Anor [2008] QDC 296. These cases involved detailed legal argument by Senior Counsel in 117 26 June 2019, TS 2-102. 118 Defendant’s submissions on costs at trial, paragraph 95 and 98 at Appeal Book, Vol 2, p 634. 119 As to the first two matters see also Schloss v Bell [2016] ICQ 17 at [41]. -- 57 of 115 -- 58 hearings that lasted for days. Whilst the length of the hearing and the fact that Senior Counsel was briefed is not determinative of a finding that a matter involves special difficulty, complexity or importance, it can nevertheless be a relevant consideration in the determination of such an issue. In this matter, the application before the Magistrate only lasted for a few hours and did not involve any issues that were out of the ordinary. [25] For instance, it can hardly be said that a matter involves special difficulty or complexity simply because the relevant legislation is complex. If that was the criteria for assessing the issue, then the absurd consequence would be that all matters that come before the court under that legislation would fall into the category of having special difficulty or complexity. Whilst the relevant legislation in this matter might have some complexity to it, in my view the charge was quite straightforward in nature and its particulars were brief and neither suggested an especially difficult or complex case. [26] It may well have been the case that it was a charge that required considerable work and effort to meet, but, once again that does not suggest any special quality. All charges require work and effort on the part of a defendant and his/her legal representatives. The degree will of course vary from case to case. I am not persuaded that the degree required in this matter was specially onerous, difficult or complex. Whilst I appreciate that the appellant’s legal representative submitted to the contrary, it appeared to me that he had an unfortunate tendency to overly complicate relatively simple concepts. [230] Bearing those considerations in mind, this case involved special difficulty and complexity for the reasons articulated by her Honour and by the respondent in his submissions both at trial and on appeal.120 That conclusion is so compelling, it is unnecessary to add to this lengthy judgment by specifically addressing the points raised by the appellant. Suffice it to say, I have considered those points and none persuade me to the contrary conclusion. [231] It is unnecessary also to conclude that the case involved special importance. However, it seemed to me that it did (quite apart from the appellant’s rhetorical assertion to that effect at the start of the trial121). The appellant made plain that the justification for his conduct lay in the necessity for fire management. The place of fire management in the VMA and Forestry Act schemes is contentious and significant to the broader community. The prosecution went to considerable lengths to advance the case that the steps taken by Mr Baker were outside the scope permitted by law. Mr Tran’s evidence absorbed a substantial part of the trial and was the only expert evidence truly challenged at trial. Further, this case was a good vehicle for the detailed examination and determination of those issues, given that at least some of the clearing appeared referable to fire management. [232] Her Honour correctly concluded that the case was of special difficulty, complexity and importance. This ground of appeal fails. Adjustment of trial costs consequent on the May reasons [233] It is convenient here to address the adjustment of the costs awarded by her Honour to account for the appellant’s success on Charges 1 and 2 of Complaint 1. [234] No submission was made to me in writing or orally that the upholding of the appeal on Charges 1 and 2 meant that I should determine again the calculation of costs 120 My summaries do not do justice to how compelling the considerations are in favour of her Honour’s conclusion as set out in full in the written submissions of the respondent’s counsel. 121 Complainant’s submission on costs at trial, paragraph 10(vi) at Appeal Book, Vol 2, pp 691-692. -- 58 of 115 -- 59 generally. The submission made was as to the specific consequence of success on Charges 1 and 2 as set out in paragraph [222] above. In any event, having read the submissions on the calculation of costs and disbursements and her Honour’s reasons, the approach of her Honour was in my own view just and reasonable in the circumstances. [235] Her Honour’s award comprised legal professional costs and disbursements. The legal professional costs were calculated by reference to the scale costs for each complaint. The amount awarded in respect of Complaint 1 was $67,500 (scale costs for the trial of that complaint multiplied by three). Given the prosecution failed on two of the five charges, it seems just and reasonable to reduce the amount payable on that Complaint by 50 per cent. This seems a reasonable approach bearing in mind that, while Charges 1 and 2 involved more than half the cleared area of Complaint 1, they also involved clearing of large areas on the fenceline which, based on my knowledge of the way the trial was conducted, would very likely have been easier to identify and prove than smaller areas involving narrower areas of clearing. Thus the award of professional fees is reduced by $33,750. [236] The disbursements are harder to separate out. The fair and reasonable course to take in that case is to reduce the amounts awarded proportionately by reference to the relative success by the appellant. I intend to identify relative success by reference to the number of charges on which the appellant succeeded as against those on which it failed on appeal: i.e. two out of 46. While simplistic, I cannot see a better basis for determining relative success. [237] On that basis, Mr Baker had success on appeal of 4.3 per cent. That results in a reduction of the amount awarded for disbursements (excluding the investigation costs which are dealt with next) of $271,309.15 x .043 = $11,666.29. [238] Thus, I set aside her Honour’s order in respect of the trial and instead order the appellant to pay costs of ($541,309.15 - $33,750 - $11,666.29 =) $495,892.86. INVESTIGATION COSTS APPEAL [239] The appellant appealed her Honour’s award of $165,000 as investigation costs under s. 68C VMA. That section provides: (1) If a court convicts a person of an offence against this Act or a vegetation clearing offence, the court may order the person to pay the department’s reasonable costs of investigating the offence, including reasonable costs of preparing for the prosecution of the offence. Examples of reasonable costs— 1 obtaining and analysing remotely sensed images 2 costs of travelling for departmental officers and experts (2) Subsection (1) does not limit the orders for costs the court may make. [240] The ground of appeal is as follows:122 The learned Magistrate erred in the exercise of her discretion in awarding $165,000 for the investigation costs to the complainant pursuant to s 68C(1) of the Vegetation Management Act 1999 where there was no evidence that the costs and expenditure were reasonable in 122 Amended Notice of Appeal, paragraph 3. -- 59 of 115 -- 60 terms of quantum or it was reasonable to incur the costs having regard to the extent of the work undertaken and the time taken to do the work. [241] So far as I can see, no submissions were made either orally or in writing in support of this ground of appeal. [242] In any event, I disagree. Ms Silvester’s affidavit identifies who did what work, when, for how long and at what rate.123 On any view the rates are very modest. The work rationally relates to the evidence given, including the evidence as to the investigation phase which was dealt with at trial. I refer to and adopt her Honour’s reasons on this issue which support that conclusion, which are summarised at paragraph [88] above. The time spent seems generally proportionate to work which would have been necessary to investigate the events and prepare for the trial which occurred. Given the evidence in Ms Silvester’s affidavit and the evidence of the character and extent of work done to investigate and prepare the prosecution as disclosed at the trial, there was evidence upon which her Honour properly could conclude that the amount claimed was within the scope of the power to award costs under s. 68C VMA. Those matters might have been challenged, but they were not. No contrary evidence was led at trial and no cross examination occurred, despite the time allowed for preparation of submissions and material on costs issues arising from the trial. There was no other challenge to her Honour’s award of this sum on appeal. This ground of appeal fails. THE SENTENCE APPEAL [243] Both parties agreed that the consequence of success on the conviction appeal on the two Forestry Act charges was that it was necessary for me to exercise the sentencing discretion afresh. Maximum penalties for each offence Value of a penalty unit [244] The penalties imposed under the various offence provisions are articulated by reference to penalty units. The respondent submitted that the value of a penalty unit increased over the period of offending, beginning at $100 and increasing to $110 for offences occurring after 20 August 2012. I did not understand that to be in dispute. Where relevant, if the time span for an offence spans the date of the penalty unit increase, the lower amount is adopted to calculate the maximum penalty for that offence, consistent with the approach by the prosecution. Maximum penalty: Forestry Act offences [245] I adopt the prosecution’s written submissions on appeal in this regard, adjusted for Mr Baker’s success on Charges 1 and 2 on Complaint 1.124 I did not understand those submissions to be in dispute. The position articulated by the prosecution is as follows. 123 Affidavit of Silvester filed 23 December 2016 at Appeal Book, Vol 1, pp 320-325. 124 Complainant’s submissions on penalty at trial, paragraphs 25-29 at Appeal Book, Vol 1, p 40. -- 60 of 115 -- 61 [246] Charges 3 and 4 on Complaint 1 and Charge 32 on Complaint 3 were for a breach of s. 39 of the Forestry Act. Charge 5 on Complaint 1 and Charge 33 on Complaint 3 were for a breach of s. 54 of the Forestry Act. [247] The maximum penalty for a first offence against s. 39 and s. 54 is 1,000 penalty units. Whilst the maximum penalty for a subsequent offence under each provision is 3,000 penalty units, the prosecution accepts that as Mr Baker has not been convicted of an offence under the Forestry Act at the date those offences were committed, the relevant maximum for each of the Forestry Act offences under consideration here is 1,000 penalty units. [248] The value of a penalty unit for Charges 3, 4 and 5 on Complaint 1 and Charges 32 and 33 on Complaint 3 is $110. Thus the maximum penalty in respect of each of Charges 3, 4 and 5 on Complaint 1 and Charges 32 and 33 on Complaint 3 is $110,000. Maximum penalty: SPA offences [249] All of the SPA offences were breaches of s. 578 SPA. The maximum penalty for an offence against that provision was at all times 1,665 penalty units. Based on the approach identified in paragraph [244] above, the maximum penalty for each of the SPA offences will therefore be $166,500 for offending commencing before 20 August 2012 or $183,150 for offending commencing after that date. Total maximum penalty [250] Although of limited usefulness, it can be observed that the cumulative maximum penalty for the offences under the Forestry Act is $550,000 and under SPA is $6,709,950.125 Circumstances of the offending The characteristics of the clearing [251] The total area unlawfully cleared was 346.6 hectares. That comprised: (a) 9.4 hectares cleared in the DSF and FEA 34126 and 4.4 hectares cleared in the road reserve; and (b) 332.8 hectares cleared in Chess Park proper. [252] That is not a large area compared to the areas cleared in some of the other decisions in this Court to which I have been referred. However, I reject the appellant’s submission that it should be characterised as relatively minor because it represents a relatively small percentage of the total area of the relevant regional ecosystems in the brigalow bioregion. While that comparator is not irrelevant, and I keep it in mind, to my mind a more useful comparator to give scale to the extent of the clearing for the purpose of assessing the seriousness of the offending is by reference to the amount of native vegetation on Chess Park of which Mr Baker is custodian. The parties informed the Court by email that the total area of native vegetation on Chess Park, excluding FEA 34 and the DSF (but including the road reserve) is 3,562 125 Complainant’s submissions on penalty at trial, paragraphs 31-32 at Appeal Book, Vol 1, pp 41-42. 126 Mr Baker’s success on the conviction appeal significantly reduced the area of clearing for the Forestry Act offences from some 30.9 hectares to 10.0 hectares. The areas the subject of Charges 1 and 2 on Complaint 1 were together some 20.9 hectares. -- 61 of 115 -- 62 hectares. The appellant therefore unlawfully cleared approximately 9.3 per cent of the total area covered by native vegetation on Chess Park (not all of this involved clearing of all vegetation).127 [253] The clearing took place over an extended period, being May 2011 to December 2013: (a) Mr Baker acquired Chess Park on 17 March 2011. (b) Unlawful clearing started in May 2011, when Mr Baker cleared 3.0 hectares in the style of open woody clearing substantially to expand some existing narrow cleared areas (that is, some scattered trees have been retained) in the vicinity of some cattle yards but greatly in excess of what was reasonable or lawful.128 (c) Also during May 2011 he cleared most of a total of 5.3 hectares in the style of open woody clearing in a number of smaller parcels generally on the edges of remnant vegetation areas.129 The purpose cannot be objectively discerned. It is certainly hard to see how the purpose was fire management. (d) During June 2011, he also cleared some 0.8 hectares in the style of thick woody clearing (clear felling) on the Western boundary of Chess Park.130 The purpose cannot be objectively discerned. Again it is hard to see how the clearing was for fire management. (e) Clearing then began in a more substantial way from mid-August and particularly from September 2011, around the time of the first fire on Chess Park.131 It occurred on a more or less continual basis until about December 2013.132 [254] It can be seen that Mr Baker’s offending was protracted and involved numerous and continuous decisions to clear individual areas. [255] The clearing was almost entirely native vegetation of a least concern regional ecosystem. I recognise that this is the least serious of the categories of regional ecosystem, the others being ‘of concern’ and ‘endangered’. [256] The clearing did not always involve clearing all the vegetation. Trial Exhibits 19 to 22 identify the form of clearing for each offence. It can be seen that much of the clearing was thick woody clearing and open woody clearing, which resulted in removal of most, if not all, of the native vegetation. However, most of the larger areas cleared to the west of the DSF (seen most easily on Map A2133) was light or heavy parkland clearing. It will be recalled that light parkland clearing involved “partial felling of woody vegetation in an area of any density, predominantly clearing the majority of the understorey shrub layer, but not clearing any of the overstorey tree layer”.134 Heavy parkland clearing involved the same definition 127 I have made the email exchange an exhibit in the appeal as Exhibit 5. 128 The evidence is summarised in the Prosecution’s Complaint 4 closing submissions at pp 80-85. 129 Prosecution’s Complaint 4 closing submissions at pp 5-7. 130 Prosecution’s Complaint 2 closing submissions at pp 5-6. 131 See table prepared on 25 June 2019 showing dates of clearing for charges referenced against courses of conduct 1-4 (Sentence and Costs Appeal, Exhibit 2). 132 See the discussion of the timing of the end of the clearing in paragraph [295] below. 133 Trial Exhibit 17. 134 Trial Exhibit 32, lines 853-855. -- 62 of 115 -- 63 except that it also included “the clearing of some but not all, of the overstorey layer”.135 [257] These areas were cleared from about mid-2012 and involved clearing of some 96.6 hectares, over a quarter of the total clearing for SPA offences. They comprise the charged areas for Complaint 4, Charges 3, 20, 21, 23, 24, 30 and 31. For ease of reference I will refer to this as the 2012/13 clearing, though there was other areas cleared in that period. Course of the offending and Mr Baker’s dealings with departmental officials [258] This is not a case where there was a single act of clearing over a relatively short period which was later detected by departmental officials. Rather, over the approximately three years during which clearing occurred, Mr Baker was involved in correspondence and dealings with departmental officials about clearing. [259] The respondent relies on those dealings as demonstrating that Mr Baker acted in increasing disregard of the statutory framework which regulated Chess Park. The proposition is conveniently articulated in the trial submissions by the prosecution on sentence as follows:136 16. Specific deterrence is very important in this case. The evidence accepted at trial was that Mr Baker acted with complete disregard for the statutory framework which regulated the various different tenures on or in ‘Chess Park’ throughout the entire period of the offending, despite being aware of that framework and having significant communications with various public servants who explained his rights and obligations to him. In that regard, some examples of that conduct include that Mr Baker: a. Made a statutory declaration prior to acquiring ‘Chess Park’ that he knew about current property management plans affecting the leases (which included the PMAV specifically for ‘Chess Park’)137. The PMAV identifies the different categories of vegetation under the SPA on ‘Chess Park’. b. Was repeatedly advised by letters through 2011 about the regulatory framework applicable to ‘Chess Park’138 and also had a meeting with departmental officers at ‘Chess Park’ on 16 November 2011139; c. Wrote to the Department on 25 September 2011140 in terms that included the following: “I am going to build fire breaks as big as I think the circumstance warrant. You can shove you 10 metre rule and take me to court as I definitely will not under any circumstances comply with it – not now, not ever. They will be 100 metres”’; d. Wrote to the Department on 18 July 2012141 in terms that included the following: “At this juncture I am not inclined to lodge a vegetation clearing application for the reasons as stated: this is my land. I own the fee simple…”; e. Wrote to the Department on 8 August 2012142 in terms that included to following: “… I am fast approaching [the FEA over Lot 5 WK207] which a 135 Trial Exhibit 32, lines 849-852. 136 Appeal Book, Vol 1, pp 37-38. 137 Trial Exhibit 14.3. 138 See the chronology forming part of Annexure A and the total correspondence contained in Trial Exhibit 40. 139 Evidence of Messrs Stumer and Aslin. 140 Contained within Trial Exhibit 40. 141 Contained within Trial Exhibit 40. 142 Contained within Trial Exhibit 40. -- 63 of 115 -- 64 neighbour thinks is the FEA. In you continued “do nothing policy” I will address this area as I see fit in order to make it productive in terms of a working cattle property … We are only a matter of weeks off clearing up this mess”; f. Continued to unlawfully clear areas of land in accordance with the statements made in this and other correspondence143; g. Continued commencing new areas of clearing both in the FEA and on ‘Chess Park’ itself after being advised in writing by Mr Smith by a letter dated 14 December 2012144 that he was conducting an investigation into allegations of interfering with forest products on FEA34 and the Dyngie State Forest and into a vegetation clearing offence on ‘Chess Park’. [260] Each of the matters in the subparagraphs above are made out by the footnoted references. [261] The course of the clearing and Mr Baker’s contemporaneous dealings with the departmental officials are more fully explained in the prosecution’s trial submissions on sentence at paragraphs 40 to 53.145 There the prosecution identifies the course of clearing by reference to the extent to which Mr Baker was informed of the unlawfulness of his conduct and by reference to Mr Baker’s conduct in response (which comprised continuing to clear). Nothing in that summary was challenged as factually inaccurate by the appellant. However, given the place of that chronology in my decision, it is necessary to summarise it in this judgment and to some extent expand upon it by reference to my own analysis of the evidence. The period to the 16 November 2011 visit [262] The first course of conduct identified by the prosecution was the period up to the visit by Mr Stumer and Mr Aslin on 16 November 2011. It will be recalled that Mr Baker purchased Chess Park in mid-March 2011. About this period, the prosecution submitted:146 41. The first course of conduct is that in respect of offences where the clearing commenced prior to the visit by Mr Stumer and Mr Aslin to ‘Chess Park’ on 16 November 2011. To this point, Mr Baker was threatening to perform clearing and he had been advised in writing and over the telephone by Mr Aslin about aspects of the legislative scheme. He was, however, a relatively new owner of ‘Chess Park’ and the property had experienced fires on it, particularly in September 2011. By 16 November 2011, based on the evidence accepted at trial, Mr Baker had commenced clearing in respect of the following 9 offences: a. Complaint 2: Charges 4 and 5; and b. Complaint 4: Charges 1, 2, 5, 11, 13, 15, and 25. [263] It is to be noted that the clearing during this period is all SPA clearing, not clearing in the Forestry Act areas. [264] Some more needs to be said about Mr Baker’s dealings with the departmental officials in this period. [265] On 18 April 2011, Mr Baker wrote to Mr Williamson of DERM relevantly as follows:147 143 All correspondence was placed before the Court in Trial Exhibit 40. 144 Contained within Trial Exhibit 40. 145 Complainant’s submissions on penalty at trial at Appeal Book, Vol 1, pp 43-46. 146 Complainant’s submissions on penalty at trial at Appeal Book, Vol 1, p 43. 147 Trial Exhibit 40.5. -- 64 of 115 -- 65 As advised I acquired this property on 15/3/11 It is very obvious that in the last 20 plus years very little maintenance has been done and more so in the last few years when the last 2 on farm older family members have passed away. I have a major problem with most boundaries but more so the western end of the property which adjoins “Rocky Bar” Peter Williams” and Lone Pine occupied by the Croner family. My neighbours have complained as to the lack of maintenance from my side and as to fallen timber across the fence which clearly has come from my side. The trees are box-silver leaf & narrow leaf iron bark and they are big old and in many instance broken topped trees. The lower trees are wattle-sheoaks and wilga scrub. … What we need to do is to clear a decent perimeter aroud our boundary fence – 60 metres. A. To access and maintain the fence line. B. To give us a decent fire break between us and our neighbours. C. We also need a decent cleared area between the fence and tree line so that we can force out the cattle onto the cleared fence line in order to muster these areas both now and in the future. … David can you please call me on receipt of this application[n]. [266] The next facsimile from Mr Baker confirms a telephone call occurred as requested. On 19 April 2011, this facsimile was sent in the following terms, relevantly:148 David Dept Environmental Resources … Thank you for your time as spent on the phone 19/4/11 I am somewhat wiser. I still maintain that a 10 meter fenceline clearance which is also a firebreak is is [sic] grossly inadequate – so inadequate as to be legislatively incompetent and grossly negligent. … A 10 meter fence line acess [sic] and fire break makes no sense when you consider that: … A vehicle can easily loose it paint [sic] and rear contents ignite from the super heated air at 30 to 50 meters and you expect men to risk theirlives on a 10 metre strip in from of a towering inferno. … I will follow your directive and do the 10 meter fire beaks [sic] but DERM will wear the consequence of any loss. … Please reconsider my earlier request to make a decent 60m fire break around the boundary. [267] The David there referred to is Mr David Aslin who gave evidence at trial. He gave evidence about the content of that telephone call. The whole of his evidence is relevant149 but it is particularly to be noted that: 148 Trial Exhibit 40.6. 149 Trial Day 13, 4 March 2016, TS 12-15. -- 65 of 115 -- 66 (a) He told Mr Baker about the exemptions in the SPA which permitted up to a 10 metre fire management line (which Mr Baker said was not very helpful); (b) He advised Mr Baker could apply to clear a 60 metre boundary fire break but also advised of the improbability of succeeding on such an application;150 and (c) He advised clearing two 10 metre fire trails about 200 metres apart and doing a cool burn between them. [268] Mr Baker considered that his comment at the end of his 19 April email comprised an application for a development permit to clear a 60 metre break around his western boundary. One might think that any person with any experience of regulatory schemes would have known that a fuller and more formal application was required. However, DERM initially appeared willing to treat it as an application. [269] By 27 June 2011, Mr Baker was expressing some frustration at the lack of response from DERM to his informal request for permission to clear a 60 metre boundary fire break.151 Mr Baker asked for advice on who he could retain to give him site advice on how to deal with the “green” and “white” areas. This is presumably a reference to vegetation mapping provided by Mr Aslin152 which shows, in general, native vegetation as green and areas where no restraint on clearing applies as white.153 [270] In September 2011, Chess Park first experienced fires. Mr Baker wrote another facsimile where he reiterated his view that 30 to 50 metre firebreaks were required.154 On 16 September 2011, DERM responded to his request for larger fire breaks informing Mr Baker relevantly:155 I refer to your latest facsimile dated 14 September 2011 in relation to the issue of establishing firebreaks on your property larger than the exempt width of 10 metres. The advice received at this office is as follows: To establish firebreaks larger than the exempt width of 10 metres will require the submission and approval of a Vegetation Clearing Application (VCA). The VCA submission will include the following items and reports:  IDAS Forms 1 and 11 must be completed and returned to this office.  A report addressing Part P of the Regional Vegetation Management Code for the South East Bioregion – version 2 dated 6 November 2009 (the Code), must accompany the completed IDAS forms.  A scaled Plan of the property showing the location and width of the proposed firebreaks.  A cheque made out to DERM for the application fee of $353.30. The VCA must be accompanied by written documentation from the Rural Fire Brigade, stating the reason or reasons why a firebreak of greater than 10 metres is required on your property. This information from a recognized authority on bushfires will assist us with our assessment. We suggest that a qualified consultant assists you with compiling this report. If the report contains insufficient information or does not address the Code, it will be returned to you for further information or the application may be refused. 150 Trial Day 13, 4 March 2016, TS 13.32 to .37. 151 Trial Exhibit 40.14. 152 Trial Day 13, 4 March 2016, TS 14-15; see Trial Exhibit 35. 153 Trial Exhibit 42.6. 154 Trial Exhibit 40.31. 155 Trial Exhibit 40.32. -- 66 of 115 -- 67 [271] It would probably have been better if DERM had told Mr Baker of the requirements for a VCA in the first place, rather than suggesting the informal request might be considered. However, be that as it may, from that point if not before, Mr Baker was aware of what was required to clear larger fire breaks than specified in the 10 metre exemptions. Mr Baker never obtained approval thereafter, despite clearing on a continuous basis for over two years. Further, there is no evidence that Mr Baker ever identified any error in the department’s advice or sought his own advice about it. In my view, his conduct from at least that point onward showed a disregard for the law. [272] At about that time, Mr Baker wrote passionately to DERM about his intentions to put in fire breaks as he saw fit. On 20 September 2011, he wrote as follows:156 As advised to you last week, there were two separate fires entering the property one from the north and one from the west. The northern fire took out one of our reserve feed paddocks on the northern side of the Dyngie State Forest. The one from the west was burning through unraked and in part uncleared country to the west and was for the most part unaccessable. So as to preserve one of our remaining reserve paddocks “The Quarry Paddock” at the southern end of the Dyngie State Forest Forest – we had a hire dozer & contractor put in a 30 meter fire break. With the strong westerly winds it has crossed the break and has taken out our 2nd reserve feed paddock. I am told (I am at Esk as I write this) that it has then gone into your “Dyngie Forrest” which I understand is still burning. Before departing the property I did direct my contractor to isolate your forest from my side of the fence and to increase all fire breaks on my place to 50 meters plus. I will look to these on my return as I will push the breaks out to 100m as I cannot afford a repeat of this. I will also be putting in fire breaks through “your green areas” on my land as I cannot and will not have my people in an enclosed wind tunnel during a bush fire. They are not paid / or qualified to take these risks and I cannot afford to be burnt out like this again. As to your “State Forrest Dyngie” what are you proposing to do about securing and making it safe and clean it up. A. In terms of fire breaks around the boundaries and throughout it. B. As to removing trees from on and in proximity to the boundary fences – where they exist this is an immediate problem. C. Tree from your forest regularly fall across the fence and many on your side grow up through the strands [?] of bark or on it. These are your created problems and as the owner it is your responsibility to fix your problems. [Underlining in original] [273] The tone became increasingly excited as the effects of the September fire were observed by Mr Baker, ending up with this assertion:157 Re fire breaks I have spent a fortune in time, labour & machinery to preserve what remaining stock feed I have and I today loose [sic] that. Well, where there is a negative their [sic] is a positive and it is true in this case. The positive is that I am going to build firebreaks as big as I think the circumstances warrant. 156 Trial Exhibit 40.33. 157 Trial Exhibit 40.35. -- 67 of 115 -- 68 You can shove your 10 meter rule and take me to court as I definately [sic] will not under any circumstances comply with it – not now not ever. They will be 100 meters. [274] That threat was repeated on 27 October 2011: “I will be building my firebreaks”.158 Mr Baker carried out that threat, clearing the area of Complaint 2 Charge 1B totalling some 60 hectares from March 2012 to September 2012. He did so despite having an opportunity to recover from the shock of the fires and to receive further advice from DERM. [275] There was then the visit by Mr Stumer and Mr Aslin on 16 November 2011. On that visit, Mr Aslin took all the paperwork he could locate relevant to Chess Park. He and Mr Stumer were there for about four hours. Amongst other things Mr Aslin said this:159 We started off with exemptions because that’s considered a reasonable place to start and that’s where we actually started our first conversations with him in the early days as well. What did you tell him about exemptions?---So I went through and showed him the exemptions where it talks about the 10 metre fire management line. We talked about the maintenance exemption which talks about maintaining existing fence lines, where it just talks about being able to maintain them and maintaining usually means just being able to get in and replace fence wires or posts or whatever. Talked about putting in internal fire management lines. Again, we went back to that same thing where I was talking before where we talked about the 10 metre fire management line, leaving a couple of hundred metres, putting in another 10 metre fire management line and then doing a cool burn through the cooler months of the year before the fire started to create a larger area that would be – inhibit fires going into his property. We talked about internal tracks and the fact that he could put them into the green areas. So the lease [sic least] concern areas…. In terms of the boundary fence lines, did Mr Baker say anything to you about what he would like to do?---He indicated he’d still like to have a larger management area. And what did you tell him?---I said our hands were tied by the legislation. We could only advise him what the legislation actually said. Well - - -?---So that’s the exemptions. … Well, how receptive was he, and did he appear to be, to the information that you were giving him?---He appeared to be listening. We allowed him time for questions as we were going through as well. So he got a chance to throw all the questions he wanted to throw at us as well so we could at least discuss those and seemed to be – as I said, he seemed to be taking it all in … The period to Mr Stumer’s 24 April 2012 letter [276] As to this period, the prosecution summarised the facts as follows:160 43. The second course of conduct is that in respect of offences undertaken after Mr Stumer and Mr Aslin’s visit in November 2011 but before Mr Stumer’s advice in a letter dated 24 February 2012 [sic 24 April 2012] that an endorsed fire management plan did not grant approval of a vegetation clearing application. That is because: a. During the meeting with Mr Baker at ‘Chess Park’, Mr Stumer and Mr Aslin explained to Mr Baker the relevant statutory frameworks for the SPA and how ‘Chess Park’ could be managed in line with statutory requirements. 158 Trial Exhibit 40.38. 159 Trial Day 13, 4 March 2016, TS 21-22. 160 Complainant’s submissions on penalty at trial at Appeal Book, Vol 1, pp 43-44. -- 68 of 115 -- 69 They also conducted a site inspection of the property discussing with Mr Baker how the legislative scheme could be applied on the ground161; b. Shortly thereafter, Mr Stumer contacted Mr Baker by telephone and advised him of requirements for undertaking work on tenures other than freehold and to contact DERM forest products in relation to commercial timber162; c. Mr Stumer confirmed the contents of the site visit and contact persons for Mr Baker in respect of his various concerns in a letter dated 15 December 2011 to Mr Baker. As a part of that letter, Mr Stumer recommended Mr Baker develop a fire management plan163; d. Despite receiving correspondence from the Queensland Fire and Rescue Service that stated in part: “… we are unable to endorse or approve property fire management plans … any consultation for clearing or removal of vegetation for constructing a fire break is not handled by our department, this needs to be done through the Department of Environmental and Resource Management (DERM)…”164 e. Notwithstanding this letter, Mr Baker then advised Mr Stumer in a letter dated 16 April 2012 that he had a fire management plan accepted in its entirety by Rural Fire at Bundaberg and “… I am progressing in accordance with the fire management [programme]…”165. 44. It is during this time that the first offence under the Forestry Act occurs. 45. This is submitted to be a separate, and more serious course of conduct, because by this time Mr Baker is: a. fully appraised of the statutory framework under the SPA, including from the site visit aspects of how it may apply at ‘Chess Park’; and b. appraised of the necessary contact to assist him to determine how he can lawfully manage forest products under the Forestry Act. 46. In between these points in time, Mr Baker had commenced clearing in respect of the following 12 offences: a. Complaint 1: Charges 1, 4 and 5 b. Complaint 2: Charges 2, 3, 7, 8, 9, 10, 12 c. Complaint 4: Charges 10, 12, 22 [Footnotes in original] [277] The submissions of the prosecution below were seemingly mistaken as to the month of the letter from Mr Stumer, but that error has little impact on the integrity of the analysis. [278] Mr Stumer’s 24 April 2012 letter relevantly provided:166 Dear Mr Baker Thank you for your letter dated 16/04/2012 regarding the development and implementation of a Fire Management Plan for “Chess Park”. I was unsure when interpreting your letter as to what you were proposing to do on your property and wish to confirm the advice provided in the departments correspondence to you (letter dated 15 December 2012). 161 Evidence of Mr Stumer, Trial Day 14, 4 July 2016, TS 89.20 to .25; 96.1 to .16. 162 Evidence of Mr Stumer, Trial Day 14, 4 July 2016, TS 98.28 to .40. 163 Trial Exhibit 40.41. 164 Trial Exhibit 40.49. 165 Trial Exhibit 40.51. 166 Trial Exhibit 40.52. -- 69 of 115 -- 70 “For areas where the exemptions do not meet your clearing requirements within lots 5 WK207 and 21 WK88, you will need to make a Vegetation Clearing Application (VCA) to the Department under the VMA. A VCA can only be made for purposes identified in section 22A of the VMA which are further outlined in the attached vegetation clearing application guide. It is recommended that you develop a fire management plan to assist you in managing future fire events that may pose a threat to your property while supporting your proposed clearing to manage fire. This should be developed with advice from your local fire warden on where to place fire management lines in conjunction with cleared areas for fence lines and vehicular tracks etc. to provide appropriate areas to back burn and subsequently create an appropriate fire break.” Lawful clearing of remnant vegetation under the VMA that does not fall within the prescribed exemptions, requires assessment by the department generally through a VCA. The endorsed Fire Management Plan would support your VCA application to the department for clearing of remnant vegetation that does not fall within the prescribed exemptions, not grant you an approval because of the Fire Management Plan development. It would also be considered lawful clearing of remnant vegetation on freehold land if your Endorsed Fire Management Plan identified clearing you completed/plan to complete under prescribed exemptions to manage the risk of fire on your property. It has been brought to my attention through a review of your file that you applied for a PMAV with it being receipted by the department on 30/06/2011 ($341.10). This PMAV was not processed as no formal application was received by the department. We received confirmation of your acceptance of this advice by fax date 18/07/2011. Your advice suggested the department should keep this in credit as you will use it in the future, this is not something we would generally do and as such I intend to refund your application fee. I will forward the cheque with a covering letter in the coming weeks for the above mentioned amount once it has been generated and forwarded to my office. Should you have any further enquiries, please do not hesitate to contact Mr Paul Stumer, Senior Natural Resource Management Officer of the department on telephone… [279] The prosecution draws a distinction between clearing undertaken before and after this letter. There is no doubt that the letter clearly states that a fire management plan does not authorise clearing of native vegetation, characterising Mr Baker’s conduct in continuing to clear for fire breaks after this letter (see the next period identified below) as showing more serious disregard for his obligations than before it. [280] However, that is not a distinction I think relevant. In my view, it is highly improbable that Mr Baker ever thought that his dealings with the Queensland Fire and Rescue Service (QFRS) meant that the limits on clearing without a permit which had been articulated to him up to then did not apply. No such suggestion was ever made by Mr Aslin and the letter from the QFRS on 26 March 2012 also makes that clear. I find that Mr Baker did not believe that the fire management plan authorised the kind of clearing he was undertaking for fire breaks both before and after the 26 March 2012 letter. The implication to the contrary in Mr Baker’s 16 April 2012 facsimile was at best mischievous, if not disingenuous. [281] Mr Baker referred to the QFRS’ letter again in his response167 to Mr Smith’s invitation to explain the areas of potentially unlawful clearing identified in Mr Smith’s 18 February 2013 letter.168 He appeared to maintain that it justified the clearing he had carried out.169 A man of his experience and background170 could not 167 Trial Exhibit 40.103 at pages 4-5. 168 Trial Exhibit 40.100. 169 Trial Exhibit 40.105. 170 It was not in dispute that Mr Baker was a solicitor of long standing and by his own account had been in business for 40 years: see Trial Exhibit 40.110 at page 5 of 6. -- 70 of 115 -- 71 seriously have held the view that it did. Nothing of the like was submitted at the trial or on appeal. I find the point was raised by Mr Baker to obfuscate matters. The period to Mr Smith’s 14 December 2012 letter [282] As to this period, the prosecution summarised the facts as follows:171 48. The prosecution submits that the third course of conduct is that which occurs after 24 February 2012, [sic 24 April 2012] when Mr Stumer advises Mr Baker in writing that an endorsed fire management plan does not grant approval of a vegetation clearing application and prior to Mr Smith advising him by letter dated 14 December 2012 of the conduct of an investigation into alleged unlawful land clearing. Whilst Mr Baker should not have been under any doubt, from the terms of the QFRS correspondence, that he still needed to have an approved vegetation clearing application, after this letter from Mr Stumer, the position is pellucidly clear. 49. This is submitted to be a further and even more serious course of conduct, than the two earlier courses of conduct. This is because by this time Mr Baker is flagrantly ignoring advice from the Department: indeed the terms of his correspondence to the Department about what the QFRS told him is, it is submitted, disingenuous. 50. In this time frame Mr Baker had commenced clearing in respect of the following 14 offences: a. Complaint 1: Charge 2 and 3; b. Complaint 2: Charge 6, 11 and 13; and c. Complaint 4 Charges 3, 4, 8, 9, 14, 17, 19, 24 and 29. [283] In my view, I do not think Mr Stumer’s 24 April 2012 letter made a material difference in Mr Baker’s understanding that the clearing he was undertaking was considered by DERM to be unlawful by reference to the statutory requirements they had drawn to his attention in respect of the freehold areas of Chess Park. Rather, on the evidence I have dealt with above, I consider his behaviour showed equal knowing disregard of his legal obligations both before and after that letter. [284] Before leaving this period, it is worth noting the exchanges between Mr Baker and DERM in relation to his application for a development permit to clear native vegetation by thinning, seemingly to improve access to the native vegetation areas. Mr Baker lodged an application for a development permit for that purpose on 19 October 2012.172 It was subject to a requisition which required a specific statutory criterion to be addressed.173 Mr Baker found compliance with that requirement to be onerous and complained about it.174 Whether that was a reasonable position to adopt or not is irrelevant. What is relevant is that these exchanges show: (a) Mr Baker’s clear understanding that non-compliance with the statutory regime by which a development permit is required to clear native vegetation could lead to prosecution;175 and (b) Over the period of that correspondence Mr Baker had carried out significant clearing of native vegetation as already identified and had clearing underway. There is no evidence that this clearing was being disclosed to DERM. 171 Complainant’s submissions on penalty at trial at Appeal Book, Vol 1, p 45. 172 Trial Exhibits 40.73; 40.76; 40.85B. 173 Trial Exhibit 40.86A. 174 Trial Exhibit 40.92 and 40.93. 175 Trial Exhibit 40.92, first page. -- 71 of 115 -- 72 The period after Mr Smith’s 14 December 2012 letter [285] The final period identified by the prosecution in the course of Mr Baker’s clearing is that which occurred after Mr Smith’s letter of 14 December 2012. As to this, the prosecution submitted:176 52. The prosecution submits that the fourth and final course of conduct is that which occurs after 14 December 2012 when Mr Baker is apprised of the conduct of the investigation. By this time, not only is Mr Baker in no doubt as to his legal obligations: he also knows that his previous actions are the subject of an active investigation into whether he has acted unlawfully. Undeterred, he continues to commence new areas of clearing. It is after this time that Mr Baker commenced the clearing for the following 7 offences: a. Complaint 3: Charges 32 and 33; and b. Complaint 4: Charges 20, 21, 23, 30 and 31. [286] Those conclusions are sustained by the facts as I have found them. [287] Mr Smith’s letter is in the following terms, relevantly:177 Re: Alleged interfering with forest product on Forest Entitlement Area (FEA 34), Dyngie State Forest (Lot 49FTY1194) and Vegetation Clearing Offence on Lot 5WK207. Dear Mr. Baker, The Department of Natural Resources and Mines (the department) has commenced an investigation into allegations of interfering with forest products on Forest Entitlement Area (FEA 34), Dyngie State Forest (Lot 49FTY1194) and a Vegetation Clearing Offence on Lot 5WK207 (the subject property). I wish to advise you that I have been allocated this matter and wish to conduct an on-site field inspection of that Forest Entitlement Area (FEA34), Dyngie State Forest (Lot 49FTY1194) and your Freehold property (Lot 5WK207) known as ‘Chess Park’ at a time and date that is suitable to both parties. The purpose of this letter is [to] see whether you will provide consent for departmental officers to enter your Freehold property (Lot 5WK207) under the provisions of the Vegetation Management Act 1999 for the purpose of a site inspection. It would also give you the opportunity to speak to the departmental officers in relation to any clearing which has occurred on the subject property as well as in the Forest Entitlement Area, Dyngie State Forest and provide any information you may wish to supply in relation to these matters. I look forward to a response from you as to whether you will provide consent to the departmental officers to conduct a field inspection at a time and date which is suitable to both parties. You are not required to provide consent to enter the property, or to accompany these officers if you choose not to. A response from you within seven (7) days of the receipt of this letter would be appreciated. If you choose not to provide consent the department will consider its options to enter the property lawfully for the purpose of a site inspection. It is proposed that any field inspection would be conducted during the week commencing on Monday 14th January 2013. … [Footnotes omitted] [288] Mr Baker gave Mr Smith permission to come on site as requested, which occurred in January 2013. Mr Smith returned on two other occasions, in November 2013 and April 2014. In the latter two cases, he attended under a warrant. It is not suggested, 176 Complainant’s submissions on penalty at trial at Appeal Book, Vol 1, p 46. 177 Trial Exhibit 40.93A. -- 72 of 115 -- 73 however, that Mr Baker actually refused permission to come on site on those occasions. The 2012/2013 clearing (west of the DSF) [289] I refer to paragraph [256] above. The clearing identified there involved the thinning and clearing of undergrowth in relatively large areas of native vegetation surrounded by cleared (non-native vegetation) areas which, from the imagery, appear to be pasture. Annexure A to this judgment identifies in detail when the clearing in those charge areas occurred, the area cleared and the nature of the clearing according to Mr Goulevitch’s categorisation. I cannot see any rational basis upon which these areas could be said to have been cleared for the purpose of fire mitigation, given the location and nature of the clearing. [290] This clearing is of particular relevance to the nature of the offending in this case. [291] First, it appears to have involved some version of the thinning for which Mr Baker sought a development permit. Mr Baker carried out that clearing despite the fact that an application for such a permit had been made but the permit had not been granted. [292] Second, the only excuse or explanation for the clearing by Mr Baker suggested at trial 178 relevant to the areas regulated by the SPA was fire management. However, this was not specifically suggested to Mr Tran for these areas in cross examination (a review of the trial transcript did not locate any such suggestions for these areas in the cross examination of Mr Tran). Further, there was no credible basis for inferring that was the purpose given the nature of the clearing and the location. I find this clearing was carried out to improve the performance of Mr Baker’s grazing activities, consistent with his own description in his development permit application.179 [293] Third, this clearing was carried on during the investigation by Mr Smith and right up until Mr Baker confirmed receipt of a stop work notice on 4 December 2013.180 I could locate no evidence showing that this on-going clearing was ever disclosed to Mr Smith. Clearing after stop work notice? [294] Although Mr Baker undertook to comply with the stop work notice on 4 December 2013, it is submitted by the prosecution that he continued clearing in charge areas for Complaint 4 Charges 23, 30 and 31 until 22 December 2013, and for Charge 29 until 12 March 2014. It is true that the periods of clearing pleaded at trial for those charges have the finish dates of 22 December 2013 (as summarised in Annexure A) and 12 March 2014. [295] However, when regard is had to the primary evidence which identifies the end date of clearing in those areas, it appears that that date is the date of the Landsat image identified as the post-clearing image.181 For Charge 23, Mr Goulevitch’s evidence was that the clearing started sometime after 25 September 2013 and finished sometime before 22 December 2013. The same appears to be true for the other offences.182 On that evidence, while it is possible Mr Baker continued clearing after 178 See the purportedly exculpatory statements at Trial Exhibit 40.157E. 179 Trial Exhibit 40.85B page 10 of 11. 180 Trial Exhibit 40.157A. 181 See for example Trial Exhibit 27, Complaint 4, slide 166 of 228 (in relation to Charge 23). 182 Trial Exhibit 27, Complaint 4, slides 206-207 of 228 (in relation to Charge 29); Trial Day 7, 25 February 2016, TS 11.15 to .45. -- 73 of 115 -- 74 the stop work notice, the evidence is not sufficient to positively persuade me to that inference on this sentencing hearing. Observations on the character of the offending [296] Based on the above review of the circumstances of the offending, and my reading of the whole of the material in Trial Exhibit 40 and the evidence given at trial, I have reached the following conclusions. [297] First, I accept that much of the early clearing by Mr Baker was driven primarily by a concern to deal with fire risk as he perceived it. However, I do not find that that materially mitigates the offending conduct. [298] The point was made on the appeal that Mr Baker was not experienced in managing fire in a large western Queensland cattle station. However, that strongly suggests he ought to have sought professional advice on his own initiative, in the same way any person in commerce takes advice on any area of the undertaking which he or she is unfamiliar with. Mr Baker seemed determined not to do this and to consider that it was up to the department or the QFRS to explain how to manage fire risk and that if they did not, he would do it in his own uninformed and idiosyncratic way, regardless of the statutes regulating clearing of native vegetation. Mr Baker plainly had the resources to obtain advice and it was never explained why he was so determined to do what he thought was best, despite his admitted inexperience and his view that the government was not solving the problem. I respectfully agree that the evidence sustains Mr Hunter’s characterisation of Mr Baker’s conduct in submissions as follows:183 The Appellant’s attempts to contact government departments to address the fire risk were entirely misconceived. As the landholder, he was obliged to manage fire within the framework of the SPA and FA. In particular, although he complained loudly about the risk to his property from Dyngie State Forest, the terms of the FA actually required him to prevent fires within Dyngie State Forest. The Appellant – a former solicitor – acquired Chess Park knowing full- well that Dyngie State Forest was completely within its bounds. He cannot plead ignorance of the terms of the FA. To the extent that the Appellant sought advice, he got it. He then complained about it or simply ignored it. He ignored the advice of an experienced neighbour, and did not get professional advice about fire management. [Emphasis in original] [299] Second, I reject the submission that Mr Baker’s clearing was explicable by fire management concerns. As noted in paragraph [253] above, a number of specific areas cleared even in early periods of clearing appear hard to explain by reference to fire risk management. That is all the more true for the 2012/2013 clearing to the west of the DSF explained from paragraph [289] above. In my view, that clearing was carried out for some other purpose. The only credible other purpose was to improve commercial grazing operations. To avoid any misunderstanding, I recognise that there is no evidence of an increase in value of the property from the clearing. However, the point is that a substantial part of the clearing was done for a commercial purpose, because it was done to improve the commercial grazing operations on the property. [300] The appellant’s submissions seemed at times to elide the question of whether there was evidence that the clearing increased the value of the property with the question 183 Complainant’s submissions on penalty at trial, paragraph 11(b)(ix) at Appeal Book, Vol 2, p 663. -- 74 of 115 -- 75 of whether the clearing was done for a commercial purpose. The latter inference is the one which arises on the evidence, at least for the clearing to the west of the DSF. [301] Third, I reject the submission made on behalf of the appellant that Mr Baker was frank as to what he was undertaking with the departmental officers. The evidence demonstrated that that was most certainly not the case in respect of the clearing to the west of the DSF and there was little other evidence to support that submission. [302] The effect of these findings is that, at least at the time of sentencing below, her Honour was correct to consider that personal deterrence was a very significant consideration for Mr Baker. His overall conduct showed a disregard of the law for a protracted period, in which he pursued unlawful clearing without justification or excuse, including for commercial purposes. Further, even the clearing which was probably for fire management purposes was undertaken with a disregard for the law and with no effort to obtain advice as to how properly to undertake fire management within the scope of the law, despite his ignorance on the subject. Mr Dillewaard’s report on environmental harm Summary of Mr Dillewaard’s evidence [303] Mr Dillewaard’s report was tendered without objection at the sentence hearing before the learned Magistrate.184 The report dealt with two topics: the environmental harm consequent on the clearing185 and the considerations relevant to the restoration of the cleared vegetation.186 This part of my reasons focuses on the first topic. Mr Dillewaard also gave evidence before her Honour which was generally consistent with the report. He was cross examined. [304] Mr Dillewaard’s report sought to identify relevant environmental values in the cleared areas and determine the impacts of the clearing in those areas on those values in order to define the impact of the clearing. His method was to interrogate public data sets that were said to identify values associated with the cleared areas. His report then identified the sources of data on biodiversity and other environmental values. These are set out in the report. They include Queensland Herbarium databases (which the appellant accepted he had the expertise to interrogate and explain) and other databases relating to, in particular, endangered fauna maintained by the Queensland and Commonweath governments.187 He then opined on the impacts of the clearing on the basis of direct or indirect impacts on those values. [305] His report also addressed other environmental issues such as carbon emissions caused by the clearing (ultimately not pressed by the respondent on appeal), ecological processes affected by clearing and land degradation. [306] The evidence relating to environmental harm was relied upon by the respondent at trial and again on appeal to establish a circumstance of aggravation of the offending. [307] On the subject of biodiversity Mr Dillewaard referred to databases relating to flora and fauna. On fauna he interrogated the Queensland and Commonwealth databases for the area of Chess Park and reported the threatened species for which “species or species habitat may occur within the area”. He did the same for flora species. He 184 Appeal Book, Vol 1, pp 159-292. 185 Appeal Book, Vol 1, pp 186-191. 186 Appeal Book, Vol 1, pp 191-194. 187 Appeal Book, Vol 1, pp 165-166. -- 75 of 115 -- 76 recognised that no specific study had been done for Chess Park on fauna, and readily accepted he did not have the expertise to do so. [308] He also reported on the area of the regional ecosystem represented by the clearing in the subregion and the bioregion as compared to the area cleared. The table shows the cleared areas to be miniscule compared to both figures (the largest proportion being 0.46 per cent of the subregion area).188 [309] It included a calculation of the carbon emissions “associated with the charge areas” calculated seemingly on the basis disclosed at page 3 of the report. [310] He then turned to identifying ecological processes “identified as being affected by the clearing”:189 (a) He identified a series of habitats in the bioregion, which were of concern. It is evident from the regional ecosystem numbers that the vast majority of these habitats were not at Chess Park, nor the subject of clearing; (b) He stated that fragmentation of habitat has been implicated in the decline of biodiversity and notes the clearing fragmented areas of native vegetation (which it unquestionably did); (c) He stated that ecosystems are dynamic and are naturally disturbed but that human clearing is outside that natural pattern and tends to harm an ecosystem. He notes that the clearing will have had that effect in the areas where it occurred; (d) He stated structural complexity is a key factor in species diversity. Structural complexity refers to the different kinds and heights of living and dead vegetation. He notes that the clearing, including the less extreme clearing which occurred, still impacted on structural complexity. The report includes an example of the effect of understorey clearing in Charge 20 of Complaint 4, which I will refer to below;190 (e) He states that clearing negatively affects hydrological patterns of native vegetation and “hydrological patterns across the property have been disturbed by the clearing” in all charge areas. No further justification of this conclusion is given; and (f) He stated that established patterns of nutrient cycling are relevant to species growth and survival. Human activity disrupts natural nutrient cycling and causes loss of natural nutrients, with fertilisers tending to increase but still disrupt that effect. He states that there is no detailed data for the cleared areas, but that there would be a detrimental effect from the clearing in all areas. [311] Mr Dillewaard then turned to make some observations about land degradation which included loss of topsoil, vegetation and increased salinity and many other factors. He noted that regional ecosystem 11.7.6 was particularly susceptible to degradation because the soil structure makes it susceptible to erosion.191 188 Appeal Book, Vol 1, pp 174-175. 189 Appeal Book, Vol 1, pp 179-184. 190 See Appeal Book, Vol 1, p 183. 191 As explained at Appeal Book, Vol 1, p 188. -- 76 of 115 -- 77 [312] Mr Dillewaard then addressed the impact assessment of the clearing by reference to site specific and general effects (including those already noted). [313] In my respectful view, his section dealing with site specific impacts identifies very few matters which meet that description. Generally, Mr Dillewaard’s evidence is to the effect that the clearing would have aggravated or caused, to some degree, the kinds of harm he has already identified. The only truly specific observation is that noted in paragraph [311] above. The gravamen of this part of the report is in this paragraph:192 Many of the ecological processes described will be impacted by the charged clearing… The consequences of this may not be readily apparent but have added to the already significant threatening processes occurring the bioregion. [314] The general effects section of the report takes the matter no further. Nor did Mr Dillewaard’s oral evidence. The position of the parties [315] The appellant challenged the admissibility and weight to be given to Mr Dillewaard’s report at some length both orally and in writing. He submitted in writing that Mr Dillewaard’s evidence on environmental harm was entirely inadmissible as being outside the scope of his expertise. In oral argument, although that argument was not abandoned, attention was focused on the question of weight. [316] The following arguments were pressed: (a) That many of the sources Mr Dillewaard relied upon as demonstrating particular kinds of environmental harm were unreliable as evidence of specific harm flowing from the particular clearing in this case because the sources contained disclaimers of accuracy and/or because when regard was had to the text, it was evident the source did not involve any specific analysis of Chess Park itself, much less the effect of the specific clearing;193 (b) That Mr Dillewaard was not qualified to give the evidence he did on environmental harm because I should infer that the evidence he gave was outside his expertise as a botanist;194 and (c) That the evidence that 47,350 tonnes of CO2 was caused by the clearing was opaque and not established by the report, nor was it within Mr Dillewaard’s expertise. [317] Other specific points were made with a view to persuading me that Mr Dillewaard’s evidence as a whole did not establish any specific environmental harm from the clearing in this case. [318] The respondent maintained the admissibility and reliability of Mr Dillewaard’s evidence on environmental harm. Ms Dann for the respondent also maintained that Mr Dillewaard’s evidence went beyond merely articulating potential harm from clearing of this kind and addressed some specific harm. She referred to parts of the report directly addressing site specific considerations. 192 Appeal Book, Vol 1, p 189. 193 21 June 2019, TS 1-29 to 38. 194 21 June 2019, TS 1-48 to 55. -- 77 of 115 -- 78 Analysis [319] As he did at length in the conviction appeal, the appellant again sought to challenge the admissibility of evidence which had been admitted at trial without objection and on which the appellant’s solicitor had cross examined at length. There was some technical debate as to whether it was open to the appellant to take the objection in the sentencing hearing before me. I do not think it is. Although I am exercising the sentencing discretion afresh, it is occurring in the course of an appeal by way of rehearing. That occurs on the record below, subject to the admission of fresh evidence. For the reasons given in my May reasons at paragraphs [659] to [697] it is too late to object to admissibility with a view to excluding the report entirely from the record. [320] Further, the basis of the objection was that Mr Dillewaard did not have the expertise to give the evidence that he did. However it was accepted that he is an expert botanist. Much of his evidence involved discussing the impact of land clearing on native vegetation. There is no reason to think that he did not have expertise in this area, particularly given his particular expertise demonstrated at the trial included the native vegetation of this State and the regional ecosystems into which it is classified. The same observation applies to his broader expertise on the impact of disturbance on regional ecosystems. I note in that respect that nearly every general point he made was supported by references. None of those references were investigated or challenged as irrelevant or as failing to support the propositions he advanced. [321] Of course, his expertise might have been challenged in cross examination on these specific points, but so far as I could see it was not. This highlights the unfairness of raising such points for the first time on the appeal. The situation might be different where the evidence is plainly outside the possible scope of the expert’s field of expertise, but this was not such a case. [322] The exception is in relation to Mr Dillewaard’s evidence about the impact on threatened species. However, he readily agreed that he was not an expert in assessing the presence and status of threatened species. That was not what he was doing. On the fauna issues, as I have explained, he presented the evidence available from public databases maintained by the State and Commonwealth. I see no reason to doubt he had the knowledge and experience properly to interrogate those databases and present the results. The question in relation to the documents produced by those searches was the weight to be given to them in circumstances where they included disclaimers of various kinds. In my view, it was open to her Honour at the trial and is open to me on appeal to give them appropriate weight as material received on sentence.195 [323] The above observations, however, are moot given my view as to what use properly can be made of Mr Dillewaard’s report. [324] In my view, having read the whole report on the environmental harm topic, it can be characterised as demonstrating that the clearing which occurred in this case would have contributed in some way to environmental harm of the kinds identified in the report. However, it is not possible to identify the extent of that impact in any particular respect. Further, the report identifies no acute or direct environmental impact from any specific clearing. 195 Penalties and Sentences Act, s. 15, -- 78 of 115 -- 79 [325] It seems to me that the harm demonstrated by the report is the kind of harm likely to attend on any clearing of native vegetation of a least concern regional ecosystem, the prevention of which is the purpose of the restrictions on clearing imposed by Parliament. It is therefore neither a harmless instance of clearing (which might be thought to be a mitigating factor), nor one which involved a specific and significant environmental impact which would aggravate the offending. General deterrence [326] To my mind, Mr Dillewaard’s evidence highlights the mischief to which the statutory prohibitions are directed: that is, the clearing piece by piece of the remaining native vegetation in the State and the cumulative consequences of this for the regional ecosystems of the State. While any individual area of clearing might not have direct environmental consequences (though in some cases of course it might), the cumulative effect of unlawful clearing will be significant harm to the environment. General deterrence is therefore important to the maintenance of the scheme of protection contained in the statute. [327] The importance of general deterrence has been consistently recognised in land clearing and other environmental cases. The respondent referred to Director- General, Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31. In that case, Preston CJ of the New South Wales Land and Environment Court observed at [9] that the purpose of general deterrence was “particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law”. His Honour also referred to Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 at [47] where Mansfield J observed: It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation. The amount of a pecuniary penalty needs to demonstrate that such a conduct will not be tolerated by the court. [328] More recently in Chief Executive, Office of Environment and Heritage v Reitano (No 2) [2019] NSWLEC 39, Robson J said: [94] The purpose of general deterrence in the context of environmental offences is well- known and was concisely stated by Preston J in Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 as follows, at [65]–[68]: The sentence of the Court is an important denunciation of the conduct of the defendant. The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597–598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with -- 79 of 115 -- 80 approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court’s sentence, the offender is given his just desserts. [95] I find that there is a need for general deterrence so that there will be a real disincentive for others to engage in conduct similar to that of Mr Reitano. I accept the prosecutor’s submission that the fact that the offences took place in an isolated and unpopulated location makes such conduct difficult to detect and prevent: R v Peel [1971] 1 NSWLR 247 at 262. These circumstances in particular call for general deterrence when such offences are detected. [329] Bearing those observations in mind, in determining the appropriate penalty to meet the requirements of general deterrence it is necessary to consider the class of persons to which Mr Baker belongs. This class is persons who control large areas of relatively remote native vegetation in properties used for commercial grazing purposes. That class of person frequently has the resources and equipment to clear relatively large areas and to do so in areas where the unlawful clearing is hard to detect. General deterrence carries particular weight in those circumstances. Personal deterrence [330] At trial, and again on appeal, the respondent emphasised the importance of personal deterrence in Mr Baker’s case. For the reasons summarised in paragraphs [296] to [302] above, I conclude her Honour had good reason to consider personal deterrence required a substantial sentence be imposed to dissuade Mr Baker from future offending. Further, before her Honour there was no evidence of any remorse by Mr Baker, nor recognition by him of the unlawfulness of his conduct. The trial submissions on penalty sought to shift responsibility and blame to the departmental officers, in a manner which was unsustainable based on my reading of the evidence (particularly Trial Exhibit 40).196 [331] The situation has not improved since then. The submissions on the sentence appeal as initially filed, largely maintained the case on sentence put below. So much might have been expected when the conviction appeal was also on foot. More revealing, however, is the manner in which the sentence argument was conducted before this Court. Judgment on the conviction appeal was handed down on 17 May 2019. The sentence appeal was heard on 21 June 2019. However, despite failing on the conviction appeal almost entirely, and succeeding on two charges only on a limitations ground, still nothing was put before the Court on the sentence hearing which demonstrated remorse by Mr Baker or recognition by him of the unlawfulness of his conduct. This remained the position even after this situation was specifically raised on the first day of the two day hearing.197 [332] In a lighter moment, Mr Trewavas submitted that personal deterrence was lessened in significance because Mr Baker was 72 years old and therefore unlikely to be driving a bulldozer, the implication being he would be unlikely to further offend. I rejected that submission.198 In any event, of course, Mr Baker could always employ another to do the clearing. More important from a personal deterrence perspective is that Mr Baker remains the owner of Chess Park, and the native vegetation which remains continues to be at risk from illegal clearing. 196 See Appeal Book, Vol 1, pp 120-121. 197 21 June 2019, TS 1-74.40 to 75.20. 198 21 June 2019, TS 1-80.26 to .34. -- 80 of 115 -- 81 [333] Mr Baker asserted on a number of occasions in his correspondence with the departmental officers that he would do what he wished regardless of their views as to the laws which bound him. He made good on that assertion. I have no reason to think that he has formed a different view in relation to the obligation to comply with the law in relation to the clearing of native vegetation. [334] In reaching that conclusion, I have not overlooked my unwillingness positively to find that Mr Baker continued clearing after acknowledging the stop work notice. That Mr Baker continued to clear despite all the advice given to him and despite his clear understanding of the requirements of the law until he was stopped by legal action from the departmental officers provides little ground for optimism that he will not undertake clearing again if he considers it useful or necessary to do so according to his own idiosyncratic views. That Mr Baker is likely to approach clearing on this basis tends to be supported by the submissions on sentence in which he contends that it was the department’s fault that the trial occurred because they should have stopped him breaking the law.199 [335] In considering a just penalty to give effect to the need for personal deterrence, I also need to take into account the resources available to Mr Baker. A penalty which has little financial significance will have little deterrent effect. As to that, such evidence as I have before me strongly supports the conclusion Mr Baker has very substantial means at his disposal. Chess Park is unencumbered and it is seemingly a valuable property in the long run, despite the undoubted present effect of drought. [336] Perhaps speaking more eloquently of the extent of Mr Baker’s personal resources, however, is the extent of the resources committed to the conviction appeal and these appeals. Given the seniority of counsel retained and the extent of the work undertaken on all of the appeals, the costs to Mr Baker of conducting his appeals would have been very, very substantial. Approach to calculation of penalty The approach below [337] Before her Honour, the prosecution contended for a gradually increasing fine proportionate to the maximum penalty based on the four periods of offending identified by the prosecution. The premise of this was to reflect the ever increasing clarity which Mr Baker should have had that the on-going clearing was unlawful, based on the receipt of key advice from departmental officers. The four periods were those identified in paragraphs [262] to [288] above. [338] The prosecution contended and her Honour accepted, that:200 (a) The conduct in each period should be compared to the maximum penalty for the most serious offence. A fine for that period should then be notionally determined based on the seriousness of the offending having regard primarily to the extent of Mr Baker’s awareness of his legal obligations from time to time; 199 Defendant’s submission on penalty at trial, paragraph 30 at Appeal Book, Vol 1, p 118. 200 Complainant’s submissions on penalty at trial, paragraphs 109-111 at Appeal Book, Vol 1, p 62; 20 March 2017, TS 10.28 to .37 at Appeal Book, Vol 1, p 16. -- 81 of 115 -- 82 (b) On this basis (and of course taking into account all other matters), the prosecution submitted that: (i) For the first period, a fine of 20 per cent of the relevant maximum penalty should be imposed, being $33,300; (ii) For the second period, a fine of 30 per cent of the relevant maximum penalty should be imposed, being $49,950; (iii) For the third period a penalty of 50 per cent of the relevant maximum penalty should be imposed, being $83,250; and (iv) For the fourth period a penalty of 70 per cent of the relevant maximum penalty should be imposed, (being $146,520) but moderated to $110,000 because of the maximum penalty attaching to Complaint 3 Charges 32 and 33. [339] The prosecution submitted, and her Honour accepted, that this approach was sustained by s. 49 Penalties and Sentences Act. That section provides: 49 Single fine for 2 or more offences (1) If an offender is found guilty (including being found guilty on a plea of guilty) of 2 or more offences— (a) that are founded on the same facts; or (b) that form, or are part of, a series of offences of the same or a similar kind; the court may impose a single fine for all the offences. (2) A fine imposed under subsection (1) must not be more than the total of the maximum fines that could be imposed for each of the offences. [340] It is evident that her Honour adopted the prosecution’s analysis merely by way of reaching a single fine, she did not impose four distinct fines, one for each period.201 Her Honour thus imposed a total fine of $276,000. [341] Some difficulty existed in dividing up the offences by reference to the material dates identified by the prosecution, because the particulars of the time period over which some offences were committed bridged the dates identified by the prosecution. I doubt that would materially have affected her Honour’s conclusion, however. Given that the approach of focusing on separate periods was a technique to reason to a single fine for the whole of the offending, the overlap of a few of the offences would not have affected that reasoning in any substantive way. The approach on this appeal [342] Both parties support the approach of imposing a single fine under s. 49(1) Penalties and Sentences Act for the whole of the offending. I intend to adopt that approach. The authorities on penalty [343] The first point to note when considering other authorities on sentence in relation to the SPA offences before this Court is the change in the sentencing regime which occurred in May 2013. The situation was explained as follows.202 201 20 March 2017, TS 7.6 to .8 at Appeal Book, Vol 1, p 13. 202 Complainant’s submissions on penalty at trial, paragraph 97 at Appeal Book, Vol 1, p 57. -- 82 of 115 -- 83 [344] On 28 March 2003, s. 60B (penalty guide) was enacted into the VMA.203 The penalty guide provided a guide for calculating the level of penalty for a vegetation clearing offence based on the number of hectares involved and the nature of the ecosystem affected. The penalty guide was removed from the legislation on 23 May 2013.204 [345] This Court has recognised that cases imposing sentences by reference to the repealed sentencing guide are of little assistance in identifying comparable sentences.205 It is convenient here to note that the appellant relied in writing on a table of Magistrates Court decisions put before McGill SC DCJ in Scriven v Sargent (No. 2) [2016] QDC 16 (considered further below).206 His Honour considered that that table was of little assistance as showing comparable decisions because of the lack of adequate detail to assess comparability. I agree. There is the additional difficulty that they are mostly decisions applying s. 60B VMA. [346] Between them, the parties referred me to four cases, three in this Court and one in the Magistrates Court: Hindman v Sargent,207 Scriven v Sargent (No. 2),208 Hill v Holeszko209 and Coombe v Ashlin and Blinco.210 [347] Hindman and Coome were conveniently summarised in Hill v Holeszko by Farr DCJ at [44] as follows: [44] Of those matters that have been decided since the repeal of s 60B, the following are of most relevance: 1. In the aforementioned matter of Hindman v Sargent, the appellant appealed a $110,000 fine on the basis of it being excessive. In imposing the original sentence, the magistrate applied the s 60B Penalty Guide as it was then still in force. It was repealed however before the appeal was heard, hence his Honour Judge Andrews SC remarks, and of course his Honour did not take it into account. In that matter the defendant, who pleaded guilty to two charges, carried out assessable development over a period of three months by the clearing of native vegetation covering 676 hectares without an effective development permit. In relation to the second charge, he cleared an area of 638 hectares of native vegetation. The second offence was committed approximately two years after the first. All the vegetation was classified as “not of concern” vegetation. In that matter, his Honour also received additional expert evidence which resulted in a conclusion that the clearings did not have adverse environmental impacts. In fact, it was accepted that by retaining the canopy, the clearings assisted conservation. His Honour found that the offending was at the low end of the range of clearing offences (save for the fact that large areas were cleared) and made significant findings in favour of the appellant in mitigation including: • that the appellant thought that a permit would only be necessary for broad scale clearing, and not for the clearing he did; 203 Natural Resources and Other Legislation Amendment Act 2003 (Qld), s. 69. 204 Vegetation Management Framework Amendment Act 2013 (Qld), s. 55. 205 Hindman v Sargent (unreported 5 May 2014) applied by Farr DCJ in Hill v Holeszko [2017] QDC 35 at [42]. 206 Defendant’s submissions on penalty at trial, paragraph 13 at Appeal Book, Vol 1, pp 114, 129-142. 207 Unreported, District Court of Queensland, Andrews DCJ, 5 May 2014. 208 [2016] QDC 16 (setting aside the Magistrate’s sentence); Unreported, District Court of Queensland, McGill SC DCJ, 21 April 2016 (resentencing the defendant). 209 [2017] QDC 35. 210 Unreported, Magistrates Court of Queensland, Magistrate Ryan, 2 September 2015. -- 83 of 115 -- 84 • the appellant was not careless of reckless as to whether or not he created an adverse environmental impact — and that his ambition was to restore the land; • the appellant was at worst reckless in failing to apply for a permit; • that since the offences the appellant had applied for thinning permits; and • that there was a marginal benefit to him in carrying out the clearing when compared to the substantial costs incurred. The maximum penalty was $124,875 for Charge 1 and $166,500 for Charge 2. The court upheld the appeal and substituted a fine of $15,000 for each offence. 2. In Coombe v Ashlin and Blinco the defendants each pleaded guilty to 6 charges, alleging that they had cleared native remnant vegetation over a period of two years between January 2010 and March 2012. The property upon which the clearing occurred was 522.5 hectares and the cleared areas totalled 93.5 hectares. No permits or authorisations for the clearings had been granted and there was no certified Property Map of Assessable Vegetation agreement in place. Of the 93.5 hectares, 90.6 hectares were categorised as being of “least concern regional ecosystem” and 2.9 hectares were “of concern regional ecosystem.” The defendants were business partners and owned the property. Both made admissions and stated that the clearing had been conducted for the purpose of either growing pasture or cultivating crops, including wheat and oats, and to feed cattle that were kept on the property. Those efforts had been largely unsuccessful however. The learned magistrate took into account the defendant’s early pleas of guilty, their cooperation with the administration of justice and the fact that they had incurred expense during the clearing and were under financial pressure due to damage to the property that had resulted from flooding in the years since the property was cleared. She also accepted that the clearing had caused environmental harm, particularly by causing a loss of connectivity for native fauna. She also had regard for the fact that both defendants had worked in the industry for many years and would have been well-aware of the permit system. The defendants were sentenced on the basis that the clearing the subject of each charge was essentially one course of conduct and fines totalling $15,000 for each defendant were imposed. [348] In Hill itself, the circumstances were as follows. In the Magistrates Court the defendant pleaded guilty to two counts of clearing in breach of s. 578(1) SPA. The first involved 4.1 hectares of least concern native vegetation and the second 14.8 hectares, comprising 10.8 hectares of “of concern” vegetation and about 4.0 hectares of endangered vegetation. The clearing in each case occurred over about 18 months. The clearing occurred following the issue of a Notice of Native Forest Practice for both areas. On inspection by DNRM officers after completion of the clearing, Mr Hill made a number of admissions. The clearing was outside the scope of the clearing permitted under a relevant Code applying by reason of the Notice of Native Forest Practice. Further, Mr Hill used contractors to undertake the clearing. He was aware of the need to comply with the relevant Code and did not take any steps to ensure his contractors complied with the Code. There was some benefit from the clearing, though the value was not established. -- 84 of 115 -- 85 [349] The learned Magistrate imposed sentences of $7,500 for clearing of the least concern area and $16,500 for clearing of the “of concern” and endangered areas. The appellant appealed to this Court on sentence alone. Farr DCJ was persuaded that only the former sentence was excessive. He reduced that penalty to $4,500. His Honour’s reasons were concise. After referring to Hindman and Coombe, he concluded: [46] Those same considerations however lead me to a different conclusion in relation to the charge concerning the South Bingera property. It involved only 4.1 hectares of clearing which consisted entirely “of least concern regional ecosystem.” Given that circumstance, a fine of $7,500 is excessive, notwithstanding the increased maximum fine that is now available. In my view, a fine of $4,500 would adequately reflect the seriousness of the offending conduct whilst properly recognising the appellant’s lack of prior convictions, his timely plea of guilty, and his cooperation with the administration of justice as well as giving due and proper regard to principles of personal and general deterrence. [47] Moreover, a total of $21,000 in fines for the two offences roughly equates to the value of the timber that was cleared and gives due recognition and effect to the words of Preston CJ in Director-General of the Dept of Environment and Climate Change v Rae (as previously mentioned in paragraph 41 above). [350] The last case to consider is Scriven. McGill DCJ referred to the following considerations: the appellant cleared 1,819 hectares of least concern vegetation on freehold owned by him. The maximum penalty for this offence was $124,825 (valuing a penalty unit at $75). His Honour referred to the Magistrate’s finding that the clearing occurred in drought to obtain feed for cattle, which his Honour treated as a mitigating factor. His Honour noted that it was unclear if a permit would have been given to clear for that purpose and that the area cleared was rather large. He referred to the cases set out above and others emphasising the need for general deterrence, and that the vegetation was least concern. [351] In relation to personal deterrence, his Honour observed that the appellant had shown no remorse, had not cooperated with authorities and maintained a defiant attitude to the statutory scheme. He found that there was no evidence of enduring ecological effects. His Honour’s observations in that regard echoed those in paragraph [325] above, though he accepted that the evidence of there being some significant adverse impact was uncontradicted. There was little direct evidence of the appellant’s financial position, though his Honour found that any fine is likely to be a considerable burden to him, particularly a large fine. Nevertheless, personal deterrence suggested a large fine was justified. [352] His Honour considered Hindman and concluded that the matter before him was more serious, particularly given the finding that Mr Hindman was trying to restore the land, albeit unlawfully. [353] His Honour noted that the Magistrate’s decision imposed a fine of $110,000, close to the maximum penalty. He concluded:211 There were a number of features of this particular clearing which showed that it was not in the worst category of cases. Despite the mitigating feature that this was done to provide food for cattle during drought and despite the, I suspect, fairly limited financial position of the appellant, his defiant attitude towards the legislation means that a fairly substantial fine needs to be imposed… 211 Scriven v Sargent (Unreported, District Court, McGill SC DCJ, 21 April 2016), 4-5. -- 85 of 115 -- 86 [354] His Honour imposed a fine of $40,000. Mr Scriven also had to pay trial and investigation costs of $23,823.59. [355] In my view, the present case was much more serious and called for a higher penalty than was imposed in any of the cases to which I have been referred. [356] All the authorities except Scriven involved cooperation and pleas of guilty. All involved much fewer individual offences. Hindman involved a person found to have been trying to restore the vegetation, albeit on a misconceived basis. Coombe involved persons under financial difficulty (though I consider that penalty to have been very modest in any event). Hill involved more negligence than defiance of the law and involved much smaller areas. [357] Scriven has some similarity to this case but the personal deterrence issue was leavened by the financial difficulties of Mr Scriven and the fact that he breached the law to feed his cattle in drought. Even allowing for that, though, the fine imposed by McGill DCJ was on the basis of penalty units at $75. That represents a substantially higher penalty if relativity to the maximum penalty was maintained, perhaps of $60,000. Mr Baker’s course of conduct represents a more defiant attitude to his legal obligations than occurred in Scriven and as I have found, neither his idiosyncratic views of fire management, much less his deliberate understorey clearing for commercial purposes, attract the sympathy that clearing for drought fodder might attract. The need for personal deterrence is also much more compelling given the resources apparently at Mr Baker’s disposal. [358] I should add that, perhaps unlike their Honours in Scriven and Hindman, I would put more emphasis on the need for general deterrence to maintain the integrity of the remaining native vegetation and prevent its degradation by clearing piece by piece. [359] In Hili v The Queen (2010) 242 CLR 520, the majority held: [54] In Director of Public Prosecutions (Cth) v De La Rosa212, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out213, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said214: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”215. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”216 (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”217. [Footnotes in original] 212 (2010) 243 FLR 28 at 98 [303]-[305]. 213 (2010) 243 FLR 28 at 98 [303]. 214 (2010) 243 FLR 28 at 98 [303]. 215 (2010) 243 FLR 28 at 98 [304]. 216 (2010) 243 FLR 28 at 98 [304]. 217 (2010) 243 FLR 28 at 98 [304]. -- 86 of 115 -- 87 [360] Those observations of course apply to this case, as to every other. Further, the relatively few decisions on sentencing for vegetation clearing offences, particularly since s. 60B was repealed, mean that it is difficult to identify sentencing patterns based on “accumulated experience and wisdom” in relation to vegetation clearing offences specifically. Manner in which offences were charged [361] Also in contrast to the above cases, Mr Baker has been charged with numerous offences. The prosecution of the offences in this manner was justified. The offending occurred in separate and distinct areas involving differing forms of clearing in distinct periods spread over some three years. The prosecution frequently aggregated separate areas of clearing in the same general area to create a single charge where the clearing was linked in time and location: see for example Complaint 4 Charge 3.218 The number of charges was a reflection of the extent to which distinct clearing occurred over time. [362] Further, the carrying out of clearing in that way added to the difficulty of detecting and proving the offending. It had real consequences for the complexity of the trial. It is a relevant factor in sentencing that there are multiple offences, properly charged as such involving distinct decisions by Mr Baker from time to time to undertake clearing. The issue of cooperation [363] Mr Baker gave Mr Smith permission to come onto Chess Park to investigate and did not require a warrant. There is no other evidence of any cooperation in the administration of justice in this case. I reject the appellant’s submission that the correspondence in Trial Exhibit 40 reflects cooperation. As I have found, aspects of that correspondence were disingenuous. I also reject the appellant’s submission that it is irrelevant on sentence that, apart from accepting responsibility for clearing, that Mr Baker put the prosecution to proof on every issue. While that is Mr Baker’s right at trial, such can be indicative of a lack of remorse or contrition.219 I find that it indicates that in this case, though it scarcely matters much in the exercise of my discretion given the lack of remorse evident in any event. Conclusion on penalty [364] There are many factors to take into account in reaching a single specific fine. I do not think the authorities involve circumstances sufficiently similar to those extant in this case to provide much assistance. Nor is there a sufficient body of authority to identify principles or approaches to these particular kinds of cases. [365] One guideline of assistance is the maximum penalties. For the Forestry Act offences, the maximum for each offence is $110,000. Those offences involved relatively small areas of clearing and the value of the timber cleared was modest (see paragraph [437]) below. On the other hand the clearing took place later in the period of clearing and at a time when Mr Baker would have been in no doubt as to the prohibition on clearing in Forestry Act areas. The issues of personal deterrence loom almost as large on these offences as on the SPA offences. One difference is that Mr Baker is 218 Complainant’s trial submissions on Complaint 4, paragraph 50. 219 R v Milos [2014] QCA 314 at [166]; R (Commonwealth) v Elomar (2010) 264 ALR 759; [2010] NSWSC 10 at [130] -- 87 of 115 -- 88 no longer lessee of the DSF and he has acquired the Crown’s interest in FEA 34.220 Accordingly the former area is not at future risk from Mr Baker’s conduct and the latter is now protected by the current scheme for protection of native vegetation on freehold land. [366] For the SPA offences, all of the considerations in this part of this judgment are engaged. The maximum penalty for the offences is between $166,500 and $183,150. I do not think these amounts identify the maximum single fine on account of the SPA offences. As I have found, the SPA offences were distinct in time, place and character and involved continual disregard of well understood legal obligations. And the latest in time were done to improve the operations of the grazing property. Bearing in mind the acute personal deterrence considerations in particular, I consider that an aggregate penalty for the 39 SPA offences can properly exceed the statutory maximum for an individual offence, even if none of the offences are of the worst possible kind (though that is not a necessary condition for imposing the statutory maximum221). [367] Taking all of the above considerations into account, it seems to me that the penalty imposed by the learned Magistrate when Mr Baker had been convicted of all offences was a reasonable one. Indeed, given the striking lack of remorse shown by Mr Baker before this Court and his financial resources, taken with all the other factors, I might have concluded that a higher fine was appropriate for the whole of the offending if it had been open to me to do so. However, the prosecution did not contend for a higher penalty and the possibility was not raised in the appeal. In those circumstances, her Honour’s fine represents the upper limit of the penalty which I may impose.222 [368] Given that matter, I consider some adjustment ought to be made for success on Charges 1 and 2 of Complaint 1. It is difficult to adjust her Honour’s penalty of $276,000 in a scientific manner for success on those two charges. It seems to me that a fair adjustment is comprehended by a reduction of the overall penalty to $250,000. [369] No submission was made that I ought to take into account any costs orders made at trial or on appeal in setting the amount of the fine. Recording of a conviction [370] A conviction should be recorded. [371] The offending is not trivial nor minor, it was protracted and involved numerous separate and distinct offences. The nature of the offending is also informed by the attitude shown by the appellant at the time and since to compliance with the law. His lack of remorse and lack of contrition remains steadfast. [372] As Ms Dann correctly submitted, there is no evidence as to good character potentially to engage s. 12(2)(b) Penalties and Sentences Act. Similarly, there is nothing about Mr Baker’s age to suggest a conviction should not be recorded. Mr Trewavas’ submission that Mr Baker was not a future risk because he was 72 is not one which was persuasive. 220 Day 5 (Appeal), 28 August 2018, TS 37 to 38. 221 Veen v R (No 2) (1988) 164 CLR 465 at 478; Marshall v R [1993] 2 Qd R 307 at 311. 222 Lucev v Queensland Police Service [2013] 1 Qd R 518. -- 88 of 115 -- 89 [373] There is no evidence that recording a conviction will affect Mr Baker’s wellbeing or financial position. It is not a matter one would infer in relation to an older man who already has the resources necessary to acquire Chess Park and conduct this expensive litigation. THE S. 599 SPA APPEAL The s. 599 orders [374] Her Honour’s reasons on the s. 599 orders given on 28 February 2017 are set out in full in paragraph [74] above. Her Honour’s orders on that day were as follows: IT IS ORDERED THAT: 1. For the duration of this order the defendant must not clear any native vegetation in the areas that are identified on the maps being sheets 1 of 25 to and including 18 of 25 forming part of the Restoration Notice Monitoring Site Plan 2017/000678 attached to Restoration Notice 2017/000798 until such clearing has been approved by an official, within the meaning of that term in the Vegetation Management Act 1999 (the VMA) of the Department of Natural Resources and Mines (“the department”). 2. The defendant Michael Vincent Baker must allow departmental officials access to “Chess Park” in order to carry out inspections to ensure compliance with this order, provided the defendant has been given notice of the proposed inspection not less than 3 days in advance of the date of the inspection. The defendant must allow the departmental officials to be accompanied by any other person whose assistance is reasonably required for the purpose of the inspection. 3. The parties have liberty to apply on the giving of not less than 5 days notice to the other. 4. The defendant Michael Vincent Baker must comply with this order for a period of 5 years from the date of the order. The appeal ground [375] Paragraph 3A of the Second Notice of Appeal articulates the ground of appeal. It states: 3A. The orders made by the learned Magistrate on 28 February 2017 in accordance with the draft order were made in excess of the learned Magistrate’s jurisdiction. [376] This broad contention is explained in particulars as follows: i. Section 599(3)(c) of the SPA provides: “the order may require the defendant – to restore, as far as practicable, premises to the condition the premises were in immediately before development or use of the premises started”. ii. Order 1 is not an order made pursuant to s 599(3)(c) of the SPA. iii. Order 1 is an order prohibiting the defendant clearing native vegetation in the areas described therein without the approval of an official [the Chief Executive or an authorised officer] under the [VMA]. iv. There is no power conferred on a Magistrate under the VMA or the SPA to approve the clearing of native vegetation or to delegate the approval of the clearing of native vegetation to the Chief Executive or an authorised officer; v. In the absence of a development application, the Chief Executive has no power under the VMA or SPA to approve the clearing of native vegetation. vi. There is no power under the VMA or the SPA which allows an authorised officer to grant approval for the clearing of native vegetation. [Emphasis in original] -- 89 of 115 -- 90 Context in which the s. 599 appeal arises [377] This broad heading relates to a number of factual and legal issues which arose in the course of oral argument. These issues were not covered in any of the extensive written submissions and require clear articulation prior to dealing with the appeal of her Honour’s orders. Those issues are as follows. The events relating to the Restoration Notices [378] The orders originally sought by written application prior to the 27 and 28 February 2017 hearing were varied during that hearing. There was no written amended application. Rather Mr Hunter handed up the proposed orders during the hearing. [379] It is accepted that her Honour had the initial Restoration Notice before her when hearing and determining the application for those orders. Indeed I was told without objection that the Restoration Notice referred to by her Honour and contemplated by the orders made was issued a week before the hearing on 27 February 2017. The version of the Restoration Notice before her Honour was not made an exhibit in the hearing and it was not tendered before me. What was tendered, however, was an Amended Restoration Notice (the Amended Notice) which was issued on 16 May 2017.223 [380] I was again told from the bar table without objection that the amendments contained in the Amended Notice did not affect the maps referred to in order 1 of the s. 599 orders. It was not explained to me what the amendments comprised, however neither Mr Trewavas nor Ms Dann relied upon any difference in terms of the two notices as being relevant to any submission made. [381] It seemed to be accepted by both parties that Mr Marland, who appeared for Mr Baker on 27 and 28 February 2017, communicated to her Honour that some form of dispute of, or challenge to, the Restoration Notice was intended or underway. It is unclear to what dispute process he was referring. One might infer that he was referring to an internal dispute process which led to the Amended Notice, given that the Amended Notice was issued less than three months later. That seems to be confirmed by the factual background stated by Boddice J in Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128 (referred to further below) at [8] to [9]. [382] So far as her Honour’s position is concerned, it is probably sufficient to find that her Honour had been told Mr Baker was not accepting the lawfulness of the Restoration Notice and was challenging it in some respect which was not further explained. [383] The Amended Notice has also been challenged by Mr Baker. He brought an application for review of the decisions to issue the Amended Notice and the PMAV in QCAT. Jurisdictional issues in that application raised by the appellant were determined as preliminary issues by the learned President of QCAT. His Honour concluded that QCAT had jurisdiction. The appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal by the decision cited in paragraph [381] above. [384] In that case, the appellant contended, in effect, that the relevant decision makers had no power to issue the restoration notices or the PMAV because their power to do so 223 Sentence and Costs Appeal, Exhibit 4. -- 90 of 115 -- 91 in each respect depended on the decision maker holding a reasonable belief that a person had committed a vegetation clearing offence. The appellant contended that to know that an offence had been committed (as it was contended was the position here where the decision makers referred to the convictions before her Honour) was not the state of mind called for by the statute because it contemplated reasonable belief. [385] Boddice J (with whom Gotterson and Philippides JJA agreed) rejected that argument, in short, because “knowledge of a conviction of a vegetation clearing offence is a fact relevant to the forming of the requisite belief that the person had actually committed a vegetation clearing offence. Knowledge of that fact provides a firm basis for a belief that the person has in fact committed the vegetation offence.”224 [386] Relevant to this case, there was also an argument advanced that to construe the provision as applying where there was in fact a conviction extant was a construction which gives rise to the risk of double punishment. His Honour rejected that contention as follows: [37] This construction also does not give rise to the risk of double punishment. The fact that a Magistrate may, upon finding a relevant offence proven, make a restoration order does not render the issuing of a restoration notice under s 54B the imposition of a penalty for the same act or offence. [38] Section 54B provides an administrative regime for the issuing of restoration notices by a decision maker who has the requisite state of mind not only as to a person having committed a relevant offence. The decision maker importantly must also have the requisite state of mind as to the ability of the matter to be rectified. Such a scheme is consistent with protection of the environment in the public interest. It is properly a separate administrative scheme which does not constitute the imposition of a penalty upon a particular offender. The order relates to the land in question. [387] So far as I am aware, the substantive QCAT review is continuing. No evidence was adduced as to the issues in that review or the range of potential outcomes. The nature of the appeal [388] The parties were not ad idem as to the task before me on this issue in the appeal given the appellant’s success on two of the Forestry Act charges on the conviction appeal. [389] The appellant225 submitted that the effect of that success was that the exercise of the discretion to make orders under s. 599 SPA had necessarily miscarried and that it fell to me to decide the application for those orders afresh. In short, the appellant contended I should deal with the s. 599 orders in the same manner as for the sentencing appeal. [390] The respondent submitted that the s. 599 orders related only to the SPA offences and that, thus, the appellant’s success on two Forestry Act offences was irrelevant to the exercise of her Honour’s exercise of discretion.226 [391] The resolution of this question was made more difficult by the ambiguous status of the further matters put before me during the course of argument. As noted above, the Amended Notice was tendered in evidence and I was informed, without objection, about the QCAT review of the Amended Notice and the PMAV. The parties also appeared to treat the decision in Baker v Chief Executive as relevant in 224 At [31]. 225 26 June 2019, TS 2-13.13 to 18.44. 226 26 June 2019, TS 2-32. -- 91 of 115 -- 92 this appeal for the fact its outcome left the QCAT review on foot, not just (or even primarily) as authority for any proposition. [392] Technically, these matters comprise fresh evidence on the appeal of the s. 599 orders for which leave was required. So far as I could identify, neither party turned their minds to that question. However, both parties seemed content for me to receive and act on the evidence of the Amended Notice and of the continuing QCAT review of that notice and the PMAV. To the extent necessary I give leave to adduce the fresh evidence pursuant to s. 223(2) Justices Act. [393] It might be a fine point as to whether her Honour’s discretion must be taken to have miscarried by reason of the setting aside of the two Forestry Act convictions. On the one hand, those convictions are outside the statutory regime which gives rise to the s. 599 orders and are not included in any complaint alleging vegetation clearing offences. Further, her Honour made the s. 599 orders before exercising her sentencing discretion, which strongly suggests that no balancing of the s. 599 orders with any penalty imposed, inter alia, on the Forestry Act offences played a part in the exercise of her discretion. [394] On the other hand, her Honour when giving brief reasons on the s. 599 orders referred to the fact of conviction on all 46 charges, suggesting she took into consideration the commission of all those offences in exercising her discretion to make the orders. One might reasonably contend however, that the difference between conviction on 46 and 44 charges is de minimis as a factor in the exercise of the discretion (assuming it was a factor), especially as her Honour’s main concern as shown in paragraph [74] above was Mr Baker’s continued clearing after various advices from the department. Setting aside convictions on the two Forestry Act charges does not change this underlying proposition. [395] However, I am conscious that I am rehearing the matter on the evidence before her Honour and the further evidence before me. That seems sufficient to justify the conclusion that I should exercise the discretion afresh, even if it were thought that the limited success on the conviction appeal did not justify that approach. [396] Thus, I approach the matter on the basis that the respondent is seeking: that I make orders in the same terms as those made by her Honour in paragraph [374] above. Statutory scheme [397] There are a number of provisions in the VMA as well as the SPA which inform the argument on this matter. [398] It is convenient to start with the key provision. Section 599 SPA provides: 599 Magistrates Court may make orders (1) After hearing the complaint, the Magistrates Court may make an order on the defendant it considers appropriate. (2) The order may be made in addition to, or in substitution for, any penalty the court may otherwise impose. (3) The order may require the defendant— (a) to stop development or carrying on a use; or (b) to demolish or remove a work; or (c) to restore, as far as practicable, premises to the condition the premises were in immediately before development or use of the premises started; or -- 92 of 115 -- 93 (d) to do, or not to do, another act to ensure development or use of the premises complies with a development approval, a compliance permit, a code or a master plan; or (e) for development that has started—to apply for a development permit or make a master plan application; or (f) to make a request under section 401 for compliance assessment of development, a document or work requiring compliance assessment; or (g) if the court believes a work is dangerous— (i) to repair or rectify the work; or (ii) to secure the work. (4) The order must state the time, or period, within which the order must be complied with. (5) A person who contravenes the order commits an offence against this Act. Maximum penalty—1665 penalty units or imprisonment for 12 months. (6) If the order states that contravention of the order is a public nuisance, an assessing authority, other than a local government, may undertake any work necessary to remove the nuisance. (7) If an assessing authority carries out works under subsection (6), it may recover the reasonable cost of the works as a debt owing to the assessing authority from the person to whom the order was given. [399] The complaint under s. 599 is a complaint alleging an offence against, amongst others, s. 578 SPA. The scope of the acts which can comprise such an offence is very broad.227 Section 578 is just one of a number of offences under Part 3. [400] Also relevant are the VMA provisions dealing with Restoration Notices and PMAVs. [401] Division 5A of Part 2 VMA deals with PMAVs. It relevantly provides: 20AK What is a property map of assessable vegetation (or PMAV) (1) A property map of assessable vegetation (or PMAV) is a map certified by the chief executive as a PMAV for an area and showing the vegetation category area for the area. (2) The map may also show for the area the location of the boundaries of, and the regional ecosystem number for, each regional ecosystem in the area. 20AO What is a category X area (1) A category X area is an area, other than a category A area, category B area, category C area or category R area, shown on the regulated vegetation management map as a category X area. (2) However, an area is not a category X area if the chief executive decides under section 20CA the area is not a category X area. 20B When chief executive may make PMAV (1) The chief executive may make a PMAV for an area if— (a) the area becomes a declared area; or (b) the area becomes an offset area; or (c) the area becomes an exchange area; or (d) the area has been unlawfully cleared; or 227 See the May reasons at [36] and [42]-[49]. Needless to say, Schedule 3 which identifies assessable development is far more extensive than just those provisions dealing with clearing native vegetation. -- 93 of 115 -- 94 (e) the area is subject to— (i) a restoration notice; or (ii) an enforcement notice under the Planning Act containing conditions about restoration of vegetation; or (f) the area has been cleared of native vegetation and in relation to the clearing a person has been found guilty by a court, whether or not a conviction has been recorded, of a clearing offence; or (g) the chief executive reasonably believes— (i) a person has committed a vegetation clearing offence in relation to the area, whether before or after the commencement of this section, or a vegetation clearing offence is being committed in relation to the area; or (ii) the area was cleared of vegetation in contravention of a tree clearing provision under the Land Act 1994 as in force before the commencement of the Vegetation Management and Other Legislation Amendment Act 2004, section 3; or (iii) prohibited development under the repealed Moratorium Act, part 5 was carried out in relation to the area; … [402] It is also convenient here to note s. 70B dealing with registration of a PMAV: 70B Record of particular matters in land registry (1) This section applies if a PMAV is made and contains a category A area. (2) As soon as practicable after the PMAV is made, the chief executive must give the registrar of titles written notice that the PMAV has been made. (3) The registrar must keep records showing the PMAV has been made. (4) The registrar must keep the records in a way that a search of the register kept by the registrar under any Act relating to title to the land the subject of the PMAV will show the PMAV has been made. (5) If the PMAV is replaced, the chief executive must give written notice of the fact to the registrar. (5A) Also, the chief executive may, by written notice, ask the registrar to remove the particulars of the PMAV from the registrar’s records if the chief executive considers it is necessary or desirable to remove the particulars— (a) to achieve the purposes of this Act: or (b) because the particulars are no longer relevant for the land the subject of the PMAV. (6) As soon as practicable after receiving a notice under subsection (5) or (5A), the registrar must adjust or remove the particulars of the PMAV from the registrar’s records. [403] The VMA deals with Restoration Notices in Subdivision 7 of Part 3. That part of the Act relevantly provides: Subdivision 7 Power to require compliance 54A Stop work notice (1) This section applies if an official reasonably believes a person is committing a vegetation clearing offence. (2) The official may give the person a notice (a stop work notice) requiring the person to stop committing the offence or not to commit that type of offence again. … -- 94 of 115 -- 95 54B Restoration notice (1) This section applies if an official reasonably believes— (a) a person has committed a vegetation clearing offence, whether before or after the commencement of this section; and (b) the matter is capable of being rectified. (2) The official may give the person a notice (a restoration notice) requiring the person to rectify the matter. (3) The restoration notice must state— (a) that the official believes the person has committed a vegetation clearing offence; and (b) the vegetation clearing offence the official believes has been committed; and (c) briefly, how it is believed the offence has been committed; and (d) the matter the official believes is reasonably capable of being rectified; and (e) the reasonable steps the person must take to rectify the matter; and (f) the stated reasonable period in which the person must take the steps. (4) The restoration notice must be accompanied by or include an information notice about the decision to give the notice. (5) The person must comply with the restoration notice unless the person has a reasonable excuse. Maximum penalty—1665 penalty units. (6) In this section— step includes any action or other measure the official believes is necessary to rectify the matter. Examples— • giving a proposed restoration plan under section 55AB(1) or making a request under section 55AB(3) • setting objectives and timeframes for restoring the vegetation • giving the chief executive a progress report about whether the steps taken within a particular period to rectify the matter have satisfied a stated objective 54C Contravention of stop work notices and restoration notices (1) This section applies to a person who is given a stop work notice or a restoration notice. (2) If the person does an act, or makes an omission, in contravention of the stop work notice or restoration notice, an official may use reasonable force and take any other reasonable action to stop the contravention. (3) Any reasonable cost or expense incurred by the official in doing anything under subsection (2) may be recovered as a debt owing to the State by the person. 55A Record of restoration notice in land registry (1) As soon as practicable after a restoration notice is given, the chief executive must give the registrar of titles written notice of the giving of the restoration notice. (2) The registrar must keep records showing the restoration notice has been given. … [404] Also relevant to the argument on this issue was Subdivisions 2 to 4 of Part 3 dealing with entry. They relevantly provide: Subdivision 2 Power to enter places 30 Power to enter places (1) An authorised officer may enter a place if— -- 95 of 115 -- 96 (a) an occupier of the place consents to the entry; or (b) it is a public place and the entry is made when it is open to the public; or (c) the place is— (i) the subject of— (A) a development approval; or (B) a lease, licence or permit under the Land Act 1994; or (C) a stop work notice or restoration notice; or (D) an enforcement notice under the Planning Act relating to the contravention of a vegetation clearing provision; and (ii) entered during daylight hours; or (d) the entry is for the purpose of giving an occupier a stop work notice requiring the occupier to immediately stop committing a vegetation clearing offence; or (e) the entry is authorised by a warrant. … (3) Subsection (1)(c) does not apply to a part of a place where a person resides. Subdivision 3 Procedure for entry 31 Entry with consent (1) This section applies if an authorised officer intends to ask an occupier of a place to consent to the authorised officer or another authorised officer entering the place under section 30(1)(a). … 32 Application for warrant (1) An authorised officer may apply to a magistrate for a warrant for a place. … 33 Issue of warrant (1) The magistrate may issue a warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence) that may provide evidence of a vegetation clearing offence; and (b) the evidence is at the place, or, within the next 7 days, may be at the place. … Subdivision 4 Powers after entering a place 36 General powers after entering places (1) This section applies to an authorised officer who enters a place. … Appellant’s submissions [405] As to the order prohibiting clearing of native vegetation, the appellant submits that on the proper construction of s. 599, the plenary power conferred by s. 599(1) is confined by the express orders identified in s. 599(3). He submits that the only express power which could sustain the first order made by her Honour is s. 599(3)(c) by which a Court may require a defendant to restore premises to the condition they were in immediately before development or use of the premises started. The -- 96 of 115 -- 97 appellant submits that an order prohibiting clearing of native vegetation does not fall within the ordinary meaning of “to restore” and so is outside the scope of the power under s. 599(3), and therefore outside power under s. 599(1). The appellant also objected to order 1 as taking effect in substance as a prohibitive injunction.228 [406] The appellant also submitted orally that even if the first order was within power, it should not be made because it was unnecessary given the extensive and detailed obligations which already bind Mr Baker pursuant to the terms of the Amended Notice and the PMAV.229 [407] As to the second order sought, the appellant submits that an order requiring Mr Baker to permit departmental officers access to check compliance with the prohibition on clearing native vegetation is also not within the scope of the express powers in s. 599(3). Further, no such power should be implied because: (a) There is already provision for power to inspect under the VMA on a warrant; and (b) Permitting access involves interference with the right to quiet enjoyment of property, and abrogation of such a right must be the result of a clear manifestation of Parliament’s intention: Kuru v State of NSW (2008) 236 CLR 1 at [37] and [51]. Respondent’s submissions [408] As to order 1, the respondent challenges both steps in the appellant’s argument. The respondent submits: (a) On the proper construction of s. 599, s. 599(3) does not exhaustively identify the orders which may be made under s. 599(1), particularly given the broad range of circumstances where s. 599 might fall to be applied. The respondent relied on Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157; (b) An order prohibiting clearing of native vegetation is within the ordinary meaning of an order to restore the land because the evidence demonstrated that that is the way the native vegetation was mostly likely to be restored; and (c) There was nothing problematic in itself with the order being in the form of a prohibitory injunction given that some of the specific orders in s. 599(3) were in that form. [409] The respondent submitted that the order was appropriate given Mr Baker’s demonstrated reluctance to comply with instructions from the department. [410] As to order 2, the respondent submitted: (a) Kuru concerned the situation where the investigation was of potential offences, whereas s. 599 arises only after there has been a hearing of a complaint; and 228 Appellant’s submissions in relation s. 599 orders, paragraphs 11-30 at Appeal Book, Vol 2, pp 720- 733. 229 26 June 2019, TS 2-22.25 to 26.9. -- 97 of 115 -- 98 (b) It was otherwise a reasonable order for the efficacy of the primary order made. Analysis Section 599(1) is not confined to orders under s. 599(3) [411] In my view, the appellant’s argument that the scope of the power conferred by s. 599(1) is defined by and confined by the specific powers listed in s. 599(3) is wrong. ABCC v CFMEU dealt with a provision with some similarity to and some difference from s. 599. There the High Court was considering ss. 545(1) and (2) Fair Work Act 2009 (Cth). Section 545(1) provided that the Federal Court of Australia may make any order it considered appropriate if satisfied that a person had contravened, or proposed to contravene, a civil remedy provision. Section 545(2) provided examples of what orders could be made under s. 545(1). Section 545(2) however contained express provision that the examples did not limit the scope of s. 545(1). In that case, the question was whether s. 545(1) was wide enough to include an order that a person ordered to pay a pecuniary penalty not be entitled to indemnity from the CFMEU. [412] Ultimately the Court concluded that that power did arise incidentally to the power in s. 546 to impose a pecuniary penalty, not under the plenary power conferred by s. 545(1). However, the majority230 made the following observation about provisions conferring powers cast in plenary terms: [103] As Jessup J observed in the Full Court, it assists in the construction of s 545(1) to have regard to its legislative history. But the starting point of the process must be the text of s 545(1) read in the context of the Fair Work Act as a whole and, in particular, in light of s 546. So approached, the first and most immediate point of significance is the breadth of the terms in which s 545(1) empowers the court to make any order the court considers appropriate. What is “appropriate” for the purpose of s 545(1) falls to be determined in light of the purpose of the section and is not to be artificially limited. As the ABCC submitted, such broad terms of empowerment are constrained only by limitations that are strictly required by the language and purpose of the section. To adopt and adapt the language of Flick J in Transport Workers’ Union of Australia (NSW Branch) v No Fuss Liquid Waste Pty Ltd, the object and purpose of the power under s 545(1) is quite separate and distinct from that of the power under s 546 to order that a contravener pay a pecuniary penalty. [Emphasis in original, footnotes omitted] [413] However, the importance of context in defining the scope of such plenary grants of power is highlighted in the next two paragraphs as follows: [104] The second point of significance is contextual, and it points the other way. It will be observed that all of the example orders listed in s 545(2) are directed to preventing the occurrence of an apprehended contravention, remedying the effects of a committed contravention or compensating victims of a contravention for the consequences of the contravention. None of the example orders is penal. That suggests that the types of orders that may be regarded as “appropriate” within the meaning of s 545(1) are limited to preventative, remedial or compensatory orders, or at least do not include penal orders. [105] The third point dovetails with the second. As was earlier set out, the chapeau to s 545(2) expressly provides that the sub-section does not limit s 545(1). Standing alone, that could be taken to mean that s 545(2) does not in any way limit the scope of s 545(1). If so, it would permit of the possibility that s 545(1) extends to 230 Keane, Nettle and Gordon JJ. -- 98 of 115 -- 99 “appropriate” penal orders, notwithstanding that the example orders in s 545(2) are not penal. But, read in the context of s 545 as a whole, and particularly in light of the absence from s 545 of any explicit or apparently implicit suggestion of a penal purpose, the stipulation that s 545(2) does not limit s 545(1) presents as more likely to mean that the preventative, remedial and compensatory orders instanced in s 545(2) do not limit the range of preventative, remedial and compensatory orders open to be made under s 545(1). [Footnotes omitted] [414] The balance of the majority’s analysis focuses on relevant aspects of the statutory context in which s. 545 fell to be considered. [415] In my view, the case is authority for the proposition that plenary grants of power should not be artificially read down or confined, but must be determined by reference to the statutory context in which they appear. Bearing that in mind, I do not think that s. 599(1) is confined by the express orders in s. 599(3). [416] I recognise that s. 599(3) does not expressly state that it is “without limiting subsection (1)” as s. 545(2) Fair Work Act did in ABCC v CFMEU. It is common where plenary grants of power are followed by specific examples for such a statement to be included.231 However, the absence of such a statement does not compel the conclusion that s. 599(3) is exhaustive. Where a plenary grant of power is made, as in s. 599(1), the starting point is that Parliament intends the grant to take effect according to its terms. Indeed, if s. 599(3) was meant to be exhaustive, s. 599(1) would be otiose. [417] The conclusion that s. 599(3) is not exhaustive is strongly supported by the context in which s. 599 falls to be applied. The application of the section arises after the hearing of a complaint raising any one or more of the development offences identified in Subdivision 1. Further, s. 578 can be breached in various different ways and in diverse circumstances; and that section is just one of at least 10 development offences identified. The range of circumstances in which the section falls to be applied is of the greatest possible breadth. The conferral of a plenary power is consistent with that circumstance, so as to permit efficacious orders to be made in circumstances which might be unforeseeable. [418] Accordingly, it is irrelevant whether the orders sought by the respondent fall within the confines of one of the orders in s. 599(3) or not. What needs to be established is that on the proper construction of s. 599(1), the power conferred by that subsection can sustain those orders. Order 1 is within power [419] There is no argument advanced by the appellant as to why, if s. 599(1) is not specifically limited by s. 599(3), order 1 would not otherwise be within the scope of that power. In my view it would be. On the evidence before her Honour and before this Court, the prohibition on clearing native vegetation in the areas unlawfully cleared is likely to address the effects of the unlawful assessable development. Though this might seem obvious, it is confirmed by Mr Dillewaard’s evidence after trial. Mr Dillewaard states that natural revegetation would be suitable for most 231 See Australian Consumer Law (Cth), s. 243; Uniform Civil Procedure Rules 1999 (Qld), r. 367. -- 99 of 115 -- 100 areas232 and that the first few years are the most critical as un-sympathetic management will hinder restoration efforts.233 [420] If I am wrong about s. 599(1) authorising order 1, I agree with the respondent that it is within the scope of s. 599(3)(c) in any event. I agree with the respondent’s submission that in the circumstances of this case, order 1 is properly characterised as being an order to restore the premises (defined to include land) to the condition they were in before the unlawful assessable development (i.e. the clearing of native vegetation) started. Specifically, I adopt the following propositions advanced by the respondent: [7] The parties agree that “restore” is not defined in the SPA. Although the appellant argues that the orders do not impose a requirement on him to restore the land so as to enliven s 599(3)(c), his submissions do not specifically address why the orders do not fall within the ordinary dictionary meaning of “restore”234 in the factual context of unlawful clearing of native vegetation. Short of planting hundreds of mature, 27- metre-tall trees (if that were even possible), the only way to “restore” the areas unlawfully cleared is to allow them to naturally revegetate. That process will take decades. [8] The Macquarie Dictionary defines the word “restore” as meaning”: 1. to bring back into existence, use, or the like; re-establish: to restore order. 2. to bring back to a former, original or normal condition, as a building, statue or painting. 3. to bring back to a state of health, soundness, or vigour. 4. to put back to a former place, or to a former position, rank, etc. 5. to give back; make return or restitution of (anything lost or taken away). 6. to reproduce, reconstruct, or represent (an ancient building, extinct animal, etc.) in the original state. … [10] Order 1, that Mr Baker not clear any native vegetation in the charge areas where he was found guilty of having cleared native vegetation under s 578(1)235, is an important means by which Mr Baker is required to re-establish and bring back the cleared areas to their former and original condition. Order 4 states that this applies for a period of 5 years from the date of the order. [11] Order 1 is consistent with the evidence and supplementary expert report provided by Mr Dillewaard for sentencing purposes236. Mr Dillewaard states that natural revegetation would be suitable for most areas237 and that the first few years are the most critical to achieving outcomes as un-sympathetic management will hinder restoration efforts.238 [Footnotes in original] 232 Trial Exhibit 59, pp 1, 29 at Appeal Book, Vol 1, pp 164, 192-193. 233 Trial Exhibit 59, p 30 at Appeal Book, Vol 1, p 193. 234 Other than to argue that the ordinary meaning of “restore” requires a positive act. See appellant’s submissions in relation s. 599 orders, paragraph 17 at Appeal Book, Vol 2, p 731. 235 See order 1 made on 28 February 2017. 236 See Trial Exhibit 59. 237 Ibid at pages I (summary), 29 (under Part 5.2) and 30. 238 Ibid at page 30 (under Part 5.4). -- 100 of 115 -- 101 Order 2 is not within power [421] As to order 2, as the respondent submits, if order 1 is within power, order 2 seemingly must also be because it ensures that departmental officers can check whether the restoration of the cleared areas is not being interfered with. This order is, thus, supplementary to the primary order directed at creating the conditions to reverse the effect of the unlawful clearing. [422] The appellant’s reliance on Kuru must, however, be dealt with. Kuru involved the construction of statutory provisions which permitted police officers to enter a dwelling to investigate or take action to prevent acts of domestic violence if invited to enter by a person apparently residing in the dwelling. The statute also limited the right to remain if the invitation was withdrawn. In the course of examining the interaction between the purpose for which entry on invitation was permitted and the withdrawal of the invitation, the majority made the following general observation:239 [36] Each of para (a) and para (b) of s 357H(1) limited the exercise of the power to enter or remain on the premises. Neither can be read as granting a power to enter or a power to remain. The powers to enter and to remain were given by the other provisions of the Act: s 357F or s 357G as the case required. And as earlier observed by reference to s 357F(3), the power to enter and remain given by s 357F could be, and in this case was, revoked. That the purposes identified in ss 357F and 357H for the police entering the appellant’s premises had not been fulfilled when the appellant revoked their permission to remain neither precluded revocation of the invitation to remain in the flat nor engaged the relevant statutory provisions in a way that authorised the police officers to remain there. [37] To the extent that, in the end, there was any ambiguity about the meaning and ambit of the authority provided to police by ss 357F and 357H to remain in the appellant’s flat after he had made it clear that he was requiring them to leave, such ambiguity must be resolved in favour of the foregoing construction. This is because of the strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person’s residence. That principle has been recognized and upheld by this Court on numerous occasions.240 It derives from the principles of the common law of England. Indeed, it appears to be a principle against which the provisions of ss 357F and 357H of the Act were written. It defends an important civil right in our society. If Parliament were to deprive persons of such a right, or to diminish that right, conventional canons of statutory construction require that it must do so clearly.241 [Footnotes in original] [423] The appellant contends that these observations apply to s. 599. He contends that the Court cannot infer the derogation from the principle of quiet enjoyment by an occupier of that person’s residence. [424] In response, Ms Dann submitted that that case was concerned with the investigation of offences and did not apply with similar force where s. 599 by definition applies: where there has already been a hearing of the complaint about the development offences in question. [425] Although Kuru does not confine the right to the situation of investigation of offences by the State, the cases referred to by the High Court in the above passage are search 239 Per Gleeson CJ, Gummow, Kirby and Hayne JJ. 240 George v Rockett (1990) 170 CLR 104 at 110-111; New South Wales v Corbett (2007) 230 CLR 606 at 611-612 [18]-[22], 627-628 [87] and cases there cited. 241 Potter v Minahan (1908) 7 CLR 277 at 304; Ex parte Walsh; Re Yates (1925) 37 CLR 36 at 93; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 558-559 [28], 562-563 [43], 577 [90]. -- 101 of 115 -- 102 warrant cases. However, I do not see that as a relevant point of distinction. In my view, the search warrant cases provide the context for the application of the general principle: see the discussion of the Court in George v Rockett (1990) 170 CLR 104 at 110-111. Further, the effect of the order in this case is to require Mr Baker to permit the departmental officers to enter on his premises to check his compliance with order 1. While the circumstances that justify order 1 are (in this case) his conviction, and while inspection will allow departmental officers to check if restoration of the cleared areas is being permitted, it is nonetheless the case that if they find Mr Baker has not complied with order 1, it will arm them with evidence of an offence: see s. 599(5). The effect of the order is therefore not so different from a warrant to enter the land and investigate. [426] I recognise that the order proposed does not require access to Mr Baker’s dwelling (and any order I make could be expressly confined in that way) nor does it have the same capacity for surprise and distress which can arise from the execution of a warrant (because of the requirement for notice). As I observed in argument, those considerations make the extent of the interference with Mr Baker’s common law right to quiet enjoyment less than might otherwise be the case (and would be the case for an executed search warrant). [427] However, the principle articulated by the appellant is well known. It would have taken very little effort for Parliament to expressly state that orders permitting authorities to check on compliance were within power. I also note that there is nothing in any of the express orders identified in s. 599(3) which necessarily implies a power to make orders permitting compliance to be checked. [428] Further, as has been seen, the VMA contains its own regime providing rights of access in certain circumstances and a warrant process in others. The same is so of the Local Government Act 2009 (Qld)242 and the City of Brisbane Act 2010 (Qld)243, pursuant to which most development offences are investigated. It is reasonable in my view to construe s. 599(1) in the context of the express provision in other related Acts which provide for investigation of development offences which deal with rights of access. [429] In my view, s. 599(1) does not authorise an order in the form of order 2. Discretion [430] I have found that there is power to make an order in the form of order 1, but no power to make an order in the form of order 2. The next question is whether I ought to exercise the discretion conferred on the Magistrates Court to make order 1. [431] I have already found that order 1 is apt to address the consequences of the unlawful clearing. That matter also supports exercising the discretion to make the order. As I have found in the part of these reasons relating to sentence, in the period leading up to the trial, Mr Baker showed little inclination to comply with advice from the department nor to make an effort to comply with the law. Since then he has shown no sign of accepting the criminality of his conduct or of remorse for his offending. [432] What then tells against making order 1? The appellant submits that I should not do so because: 242 Chapter 5 Part 2 Division 1. 243 Chapter 5 Part 2 Division 1. -- 102 of 115 -- 103 (a) Mr Baker is already bound by the more onerous obligations in the Amended Notice to restore the cleared areas; and (b) Mr Baker will already commit an offence if he clears any native vegetation in the areas which he previously cleared. [433] As to the former, the Amended Notice has an extensive and detailed set of provisions imposing restoration obligations on Mr Baker.244 Notably, requirement 1 is a more detailed and elaborate version of order 1. Requirements 2 and 3 impose obligations to control weeds. Requirement 4 does not permit use of mechanical means to clear weeds (presumably to avoid collateral damage to re-growing native vegetation). Requirement 5 requires erosion, stock and fire management to foster native vegetation. Requirements 6, 7 and 8 impose reporting obligations including photographic reports. The Amended Notice is to remain in force for 30 years unless restoration is shown to have been completed earlier than that. [434] The difficulty with the respondent’s reliance on the Amended Notice before me, however, is that the respondent is seeking to have the notice reviewed in QCAT. As I have noted, there is no evidence as to what is sought by the review, so I cannot be satisfied that those parts which reflect order 1 are not under challenge. The jurisdictional challenge sought to attack the whole of the notice. I do not think the existence of the Amended Notice to be sufficient to justify not exercising the discretion to make the order. [435] As to the appellant’s second argument, it appears correct that Mr Baker will commit an offence if he clears any native vegetation from the unlawfully cleared areas as it regrows. This matter was not mentioned in the written submissions and was not fully explored in oral argument. However, to be fair to Mr Trewavas who argued this point for the appellant, I did not press him on the detail and his proposition that clearing the Category A areas under the PMAV would be an offence was not disputed by Ms Dann for the respondent. The decision to make the PMAV consequent on the conviction, however, also appears to be under review in QCAT. [436] Ultimately, I am not persuaded that the existing statutory and regulatory provisions which might protect the cleared areas pending their full regrowth are such as to rob the making of order 1 of any efficacy. Given the other factors favouring the making of the order set out in paragraph [431], I consider it appropriate to make an order in the form of order 1. FORESTRY ACT COMPENSATION ORDER [437] On 20 March 2017, her Honour ordered payment of loss and damage under s. 88(2A) Forestry Act in respect of the Complaint 1 and Complaint 3 offences in the amount of $17,471.01. The Amended Notice of Appeal dealing with penalty and costs sought orders setting aside that order. The parties agreed that, as a result of the successful appeal on Charges 1 and 2 in Complaint 1, the Court had to reconsider the effect of this success on the amount of loss and damage awarded under s. 88(2A) by her Honour at trial. The parties agreed that the correct calculation of the variation which should be made to the order is that the amount of the order should be reduced 244 Appeal on Costs and Sentence, Exhibit 4, Item 3, pp 4-7. -- 103 of 115 -- 104 to an amount of $4,704.05 (including GST). I will vary her Honour’s order accordingly. COSTS OF THE CONVICTION APPEAL [438] Section 226 Justices Act confers a discretion upon this Court to make such order as to costs of the conviction appeal as I may think just. Section 232A of that Act provides: (1) In deciding the costs that are just for this division, the judge may award costs only - (a) for an item allowed for this division under a scale of costs prescribed under a regulation; and (b) up to the amount allowed for the item under the scale. (2) However, the judge may allow a higher amount for costs if the judge is satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal. [439] The similarity between ss. 158B and 232A is evident. The only material difference is that s. 232A is concerned with the amount of costs that are just, while s. 158B is concerned with the amount of costs which are just and reasonable. Little turns on that distinction. The respondent seeks costs. The appellant does not dispute that an order for costs is just in respect of Complaints 2 and 4. The arguments on Complaints 1 and 3 merged with the arguments on whether the appeal in relation to those offences was of special difficulty.245 The following issues arise: (a) Whether the appeal was of special difficulty, complexity or importance so as to enliven the discretion under s. 232A(2); (b) If it was, whether counsel’s fees may be allowed despite there being no item for counsel’s fees in the scale of costs; and (c) If it was, what amount is just to award by way of costs of the appeal. The appeal was of special difficulty and complexity and importance [440] The observations in paragraphs [227] to [229] above apply mutatis mutandis to the identification of special difficulty, complexity or importance in respect of an appeal. [441] The fact that the trial was of special difficulty does not necessarily mean that the appeal will be such. Indeed, if the appellant had confined the appeal to the limitations issues which it agitated, either generally or in relation just to Complaint 1, the appeal, while still involving some difficult issues, would probably not have qualified as one of special difficulty, complexity or importance. In that situation the appeal would probably have taken less than a day, with submissions of modest proportions, and the broader question of the scope of the right to clear for fire management would not have arisen. [442] However, that was not what happened. Rather, the appellant chose to raise numerous issues, very few of which were raised at trial. The choice the appellant made as to how to approach the appeal had the following consequences: (a) The appellant’s written submissions on the appeal ran to hundreds of pages; 245 Appellant’s submissions on costs on appeal, paragraphs 4, 5 and 10 at Appeal Book, Vol 2, pp 612- 613. -- 104 of 115 -- 105 (b) The appeal took seven days to hear (and frankly much of the detail in the submissions was not covered even in that period); (c) Many issues raised on the appeal required detailed legal analysis of some complexity to be resolved, without the benefit of any reasons from the trial judge; (d) The challenges to the evidence of each of Mr Goulevitch, Mr Dillewaard and Mr Tran required me to consider most of the evidence given at trial to be able properly to address the issues raised; (e) The challenge to the evidence of Mr Tran meant that the question of the scope of a landholder’s right to clear for fire breaks was litigated again in this appeal; and (f) Some of the legal issues raised for the first time on appeal were themselves of importance, particularly those which required the Court to construe for the first time statutory provisions of importance to the VMA scheme and to consider the validity of the complainant’s approach to pleading and proving vegetation clearing cases. [443] Even with my limited experience in hearing s. 222 appeals, the above characteristics are such as to make the appeal one of special difficulty and complexity. Such appeals often take less than an hour to hear246 and seldom take more than half a day. The practice for listing such matters reflects that. Section 222 appeals are usually listed on a Friday during criminal sittings, frequently with two or even more listed on one day. Appeals of more difficulty or complexity than that do occur, but in my experience they seldom require more than a day or at most two days for hearing and have nothing like the difficulty and complexity of the conviction appeal. [444] The scope and importance of the legal issues raised, along with the importance of the question of lawfulness of fire break clearing, is separately sufficient to support the conclusion that the appeal was one of special importance. [445] The appellant nonetheless submitted that the appeal was not one of special difficulty, complexity or importance. That submission was maintained orally.247 [446] The one basis for that submission was that I had found in my May reasons that, “…all the prosecution had to prove through Mr Dillewaard was that the charge areas had been cleared of native vegetation. That was all that was required to make out the offence”.248 This was relied upon as a finding. It was then said that as it turned out, it was unnecessary for Mr Dillewaard to give evidence to establish the character of the vegetation cleared. [447] There are four reasons why I reject this submission as justifying the conclusion that the appeal was not one of special difficulty and complexity. [448] First, the appellant did not conduct the appeal on the basis that proof of native vegetation being cleared would be sufficient. Rather, it advanced elaborate arguments as to why the prosecution had not established the offences as charged, inter alia, because of defects in Mr Dillewaard’s evidence. It also contended that the 246 Something apparently also true when Robin DCJ was sitting in this Court: see Morley v Senewiratne & Anor [2008] QDC 325 at 6.19 to .21. 247 26 June 2019, TS 2-88.5. 248 May reasons at [871]. -- 105 of 115 -- 106 SPA complaints were invalid because of insufficient pleading of the particulars relating to the native vegetation cleared. Undoubtedly the appellant would say that it was the prosecution’s fault that the appeal was conducted in that way because it pleaded the case more broadly than required. However, in that case it was up to the appellant to concede the point (or not appeal on those grounds). Even on the hearing of the appeal, when I raised the issue, the appellant offered no concession. [449] Second, my view that the offences could have been proved in the manner set out in my May reasons at [871] to [875] was expressly not the basis upon which I decided the appeal (see [876]). That was not the way the prosecution approached the issue (nor of course, did the appellant). The points were not fully argued, nor conceded on the appeal by the appellant. Close consideration might have led to a different conclusion, particularly bearing in mind the need to exclude various exemptions which referred to statutory categories of native vegetation. [450] Third, even if Mr Dillewaard’s evidence could have been shorter, it would still have been required. He would still have had to go to the property and conduct inspections, review the imagery and so on. Given the approach of the appellant to every other issue in the appeal, I have little confidence that even modest evidence from Mr Dillewaard would not have attracted challenges on appeal. [451] Finally, and most compelling, even if Mr Dillewaard’s evidence could have been simpler, the remaining characteristics of the appeal would have been ample for it to qualify as being of special difficulty and complexity. [452] The appellant also submitted that appeals for the Forestry Act complaints should be treated differently because they did not involve special difficulty or complexity, even if the appeal in relation to the two SPA complaints did. I disagree. [453] It can be accepted that there was less difficulty and complexity in the appeal so far as it related to the Forestry Act offences as compared to the SPA offences. The jurisdiction arguments related only to the SPA appeals, the evidence of Messrs Dillewaard and Tran was, at the least, less important to making out those offences. On the other hand, most other aspects of the appeal applied to the Forestry Act offences and at least one related only to the Forestry Act offences.249 Some matters relating to the Forestry Act offences were also abandoned at the appeal, though they still had to be addressed by the respondent in submissions. One such point was substantial and another highly contentious.250 In my view, the appeal insofar as it can be shown to relate just to the Forestry Act offences remained of special difficulty and complexity. For the same reasons I consider it just to order costs of those complaints (subject to dealing with the appellant’s success on Charges 1 and 2 of Complaint 1). [454] Further, it is not realistically possible to try to separate out the parts of the appeal which related to the Forestry Act offences from those which related to the SPA, especially given the overlap on many significant grounds of appeal: i.e. grounds relating to Mr Goulevitch’s evidence, the reasons grounds and the limitations grounds. In my view, ss. 226, 232 and 232A permit a Court to deal with costs in 249 Ground 6 dealt with in my May reasons at [495]-[653]. 250 As to the former, the argument that s. 24 Criminal Code applied to the Forestry Act offences was abandoned: see Court Document 29 filed in the appeal, paragraph 1. As to the latter, the numerous allegations of deliberate misconduct were abandoned at the appeal: see Court Document 29, paragraph 2. -- 106 of 115 -- 107 accordance with those provisions on the basis of the appeal as a whole where it is just to do so. This is such a case. Power exists to award counsel’s fees as such under s. 232A(2) [455] The appellant appeared to submit that there was no power under s. 232A(2) to award a separate amount for counsel’s fees. 251 The argument proceeded in this way. [456] The appellant began by contending that there is no power to award an additional amount for counsel’s fees under the relevant scale of costs.252 In my view, that is correct. Item 2 provides that Part 2 covers all legal professional work, even if the work is done by more than one lawyer. The appellant submits that the word “lawyer” should be read as including barristers and solicitors. I agree. Not only is the word now apt to refer to both because of the Legal Profession Act 2007 (Qld), but also because the work of a barrister and of a solicitor falls within the scope of the expression “legal professional work”. [457] Part 2 then specifies a sum in accordance with that schedule for costs which may be allowed for legal professional work as follows: Work for hearing of complaint up to and including day 1 1 Instructions and preparation for the hearing, including attendance on day 1 of the hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . up to $1500.00 After day 1 2 For each day of the hearing after day 1 . . . . . . . . . . . . . . . . . . . . . . . . up to $875.00 Other court attendances 3 Court attendance, other than on the hearing of the complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .up to $250.00 [458] Part 3 provides for disbursements. It relevantly provides by Item 5: 5 Disbursements, other than to witness for attending Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable. [459] I do not think that Item can be read as permitting payments for legal professional work to a lawyer acting as advocate. It does not say as much. Rather it provides that fees and payments including travelling, accommodation and other expenses of a lawyer acting as advocate may be recovered. This Item is concerned with expenses of an advocate, not fees for acting as advocate. It says nowhere that payments to a lawyer as advocate may be recovered. The express provision for legal professional fees in Item 2 and Part 2 confirms this approach. [460] The appellant’s next step is to emphasise that in awarding costs under s. 232A(2) or indeed s. 158B(2), it has been held that a Court ought to use the scale as a guide to determining the amount of costs which is just or just and reasonable respectively. This proposition is supported by authority. One recent statement in this Court was 251 That seems to be the gravamen of paragraph 13 of the appellant’s submissions on the costs of the appeal so far as I could determine. 252 Justices Regulation 2004 (Qld), sch 2. -- 107 of 115 -- 108 Hickey v Crime and Misconduct Commission [2008] QDC 340 at [42] to [44] where Shanahan DCJ said: [42] The respondent submits that the scale should be used as a guide in arriving at a quantum above the scale (Washburn v State Energy Commission (WA) 1992 8 WAR 188 at 193, 194; Durrant v Gardner [2000] QDC 198, McGill DCJ, 23 June 2000 at [46]). It is submitted that the amount awarded should be a small multiple of that scale. [43] To my mind, it is clear that the legislature has limited the discretion to award costs to successful defendants in criminal prosecutions as a matter of policy. That policy is based on the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders being made in the event of unsuccessful prosecutions. Any award of costs above the scale must be made with that principle in mind. No authorities have been placed before me where solicitor/client costs or indemnity costs have been awarded in these circumstances. [44] The costs to be awarded must be “just” in relation to the appeal and “just and reasonable” in relation to the summary trial. The amounts to be awarded must be made bearing in mind the policy of the legislation. The scale in the regulation is a clear indication of that policy as it bears little relation to present day economics. However, to my mind, the legislative intent is clear. [461] The appellant’s final step is to challenge the reliance by the respondent on Morley v Senewiratne as justifying an award of a multiple of the amount in Part 2 for legal costs plus counsel’s fees as well. This last step does not do justice to the respondent’s submissions in relation to counsel’s fees. True it is that Morley did not specifically allow counsel’s fees in addition to the multiple of the Part 2 amount awarded by his Honour. However, neither did his Honour expressly refuse to do so. [462] Further, the respondent did not rely on Morley as authority that counsel’s fees may be allowed as part of the amount of costs which may be justly allowed under s. 232A(2). Rather it relied on Hickey v Crime and Misconduct Commission which was followed by Schloss v Bell (at [59]). In Hickey, Shanahan DCJ said: [47] The Respondent also submits that the amount of costs should be limited to the items set out in Schedule 2 of the Regulation. That may be so when costs are awarded under s 158B(1) and s 232A(1) but I am of the view that no such limitation applies when it is appropriate to award a higher amount under s 158B(2) or s 232A(2). In that regard, the Note to paragraph 1 of the Schedule 2 of the Regulation recognizes the discretion to allow a higher amount for costs which, in my view, qualifies the limitation in paragraph 1. [48] The respondent submits that a fair assessment for a global sum may include two days preparation for counsel and solicitor and two days appearing at hearing for counsel and solicitor for the summary trial and one day’s preparation for counsel and solicitor and one day’s appearance for counsel and solicitor at the appeal. That submission appears to overlook that the summary trial took three days of hearing. The respondent also submits as an alternative that a daily fee for the appearance of senior counsel (based on the National Guide to Counsel Fees, Registrar, Federal Court of Australia, 27 July 2006) be used to calculate a maximum sum based on the days of hearing. That equates to maximum costs of $17,210 for the summary trial and $6,360 for the appeal. I am satisfied that it was appropriate to brief senior counsel in this matter. Any award of costs that is just (and reasonable) should recognise that. In relation to the summary trial I am of the view that it is just and reasonable to award costs based on the daily rate for senior counsel as provided by the Federal Court scale but also to award costs for the solicitor’s preparation as a function of the scale set by the Justices Regulation 2004. To my mind a multiple of three times that scale would be appropriate. -- 108 of 115 -- 109 In relation to the appeal I am of the view that is just to award costs based on the daily rate for senior counsel as provided by the Federal Court scale but also to award costs of the solicitor’s preparation as a function of the scale set by the Justices Regulation 2004. Again a multiple of three is appropriate. [463] Judge Shanahan’s reasons are inconsistent with the proposition which seems to underpin the appellant’s argument about counsel’s fees (if that is indeed the point of that part of the appellant’s submissions). Though I am not bound by that decision, and should bring my own judgment to bear on the matter, considerations of comity suggest I should follow it unless persuaded that is was wrongly decided.253 Far from being persuaded it is wrong, I think it the better view. [464] In addition to the point made by his Honour, there is another argument in favour of that view. Each of ss. 158B(2) and 232A(2) confer a power to allow a higher amount for costs. The subsections themselves identify what informs allowing such an amount: (a) A judge must be satisfied the higher amount is just; and (b) Whether it is just or not must be determined having regard to the special difficulty, complexity or importance of the matter. [465] The construction contended for by the appellant would make the sections read as if they said “the judge may allow a higher amount for costs for an item under the scale”, or some similar reading. The section does not say that. Nor is there any compelling reason to read down the broad discretion conferred in ss. 232A(2) and 158B(2), particularly when the considerations allowing a higher amount for costs are stated in the subsection.254 [466] Further, the structure of s. 232A tends to support the broader reading. The chapeau provision of s. 232A(1) provides that “a judge may award costs only” then specifies the scale. Section 232A(2) then permits a judge to allow “a higher amount for costs…”. Thus s. 232(2) picks up the chapeau provision of 232(1). In this way the section communicates that in the ordinary case, the judge may award costs calculated in a specific manner but in the exceptional case he or she may allow an amount for costs not so calculated. [467] Of course in some cases, it might be just to award costs in the special case by awarding some multiple of professional costs allowed under the scale, however in others it might be just to allow professional costs calculated by reference to professional fees for solicitors’ work and separately for counsel’s fees. Quantum of costs of the conviction appeal [468] Sadly, this Court does not have the option of referring the matter for assessment of costs.255 Indeed one wonders on what basis that could be done. In the standard case, the scale applies. In the special case, the question to be addressed is what is just (or just and reasonable for trial costs) having regard to the special character of the case. I do not see how a costs assessor could make that judgment. 253 BRB Modular Pty Ltd v AWX Constructions Pty Ltd [2015] QSC 222 per Bond J at 10; Thompson Residential Pty Ltd v Tran [2014] QDC 156 at [17]. 254 See the principles stated in paragraph [412] above. 255 Lucy v OCC Holdings Pty Ltd (No. 2) [2008] QDC 169. -- 109 of 115 -- 110 [469] Some considerations have been identified in other cases which may inform the application of s. 232A(2) and indeed s. 158B(2). They are not necessarily consistent. [470] There is authority for the proposition that the discretion is not unfettered, but rather must be exercised using the scale as a guide.256 How the scale provides a guide, however, is difficult precisely to articulate. In Morley, Robin DCJ considered that the scale identified a cap to which the Court should have regard as providing the starting point for determining how much the costs should be increased. He also opined that he would expect the Court to be more parsimonious in awarding costs in favour of the prosecutor where he or she represents a public authority with responsibility for enforcing the law. [471] As to the latter point, in Hickey Shanahan DCJ on the other hand emphasised the public interest in limiting costs for successful defendants, reflecting the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders. He considered that while the scale was far below likely real costs of criminal litigation, that reflected the statutory policy he had discerned. [472] Together, the two cases support the proposition that the scale is relevant because it identifies a starting point for determining what is just and thereby identifies a statutory intention that costs awards be approached bearing in mind the public interest in not discouraging the prosecution of criminal proceedings nor their defence. [473] In my opinion, however, to recognise such considerations does not confine the determination of what a just amount might be having regard to the special difficulty of an appeal and the particular circumstances relating to its conduct. In my view, each case has to be determined on its merits, bearing in mind those considerations. In this case, there are particular factors which favour a substantial order for costs in favour of the prosecution. [474] First, the conviction appeal was not just of special difficulty, it was of the most difficult and complex kind likely to be encountered on an appeal under s. 222 Justices Act. So much is clear from a review of the magnitude and breadth of the submissions by the parties (particularly the appellant, who made the running on the issues in the appeal), and the extent of the May reasons. It is worth noting that none of the other cases referred to by the parties involved an appeal which took anything like seven days to hear. I would add that the appeal was completed in seven days of hearing only because many of the issues addressed in the written submissions and the evidence required to be considered were not canvassed in oral argument at all. [475] Second, the appeal was of that magnitude because the appellant chose to make it so. This is particularly relevant to the assessment of the amount of costs which is just because the appellant’s approach to the appeal means that the public policy of not discouraging the defence (or appeal) of criminal proceedings has less significance in determining the amount which is just. In this case, the appellant committed vast resources to the appeal. Further, he did so not by reference to the way the trial was conducted below, but by reference to points exhaustively developed after the trial had been completed. The burden on the respondent in answering the appellant’s 256 See Lucy v OCC Holdings Pty Ltd (No. 2) at [10]. -- 110 of 115 -- 111 contentions was therefore also vast, despite the efforts of the respondent’s counsel to do so efficiently. [476] It is of course the appellant’s right to appeal on any point which can be ethically advanced. However, where an appellant adopts the approach adopted in this case, with the resources at his disposal to do so, the public interest in not discouraging the appeal of convictions recedes, probably to vanishing point. [477] Further, the appellant conducted the conviction appeal in a manner which involved unnecessary and unjustified personal attacks on the prosecutor and witnesses called by the respondent. The conduct undoubtedly added a gratuitous element of tension and confrontation to what was already a difficult and complex matter. If I could form the view that that conduct materially contributed to the difficulty and complexity of the appeal, I would have taken it into account. Such allegations may do so, particularly where allegations of impropriety are made against trial counsel, which can result in new counsel being briefed on an appeal, even where the allegations are baseless. That did not occur in this case, primarily I suspect because of the self- evidently baseless nature of the allegation raised by the appellant against trial counsel in written submissions (and abandoned on the hearing of the appeal). Otherwise, it does not appear on the evidence before me to have added materially to the difficulty and complexity of the case. I therefore do not take that into account. In other circumstances, however such allegations might be relevant to the determination of the just amount of costs. Evidence of costs and disbursements on the appeal [478] I now turn to the evidence before me which may inform the determination of the just amount to allow on the conviction appeal. I am conscious that I am not approaching the determination of the just amount under s. 232A(2) working backwards from full indemnity. However, the costs incurred provide useful evidence in making that determination.257 [479] Ms Silvester gave the following evidence as to costs. None of the amounts allow for the appellant’s success on Charges 1 and 2 of Complaint 4. [480] Scale costs for the conviction appeal totalled $11,400. [481] Counsel’s fees totalled $221,705 comprising the following: (a) Mr Hunter QC: (i) Fees paid on the Forestry Act charges: $16,046.25; (ii) Fees paid on the SPA charges: $90,928.75; (b) Ms Dann: (i) Fees paid on the Forestry Act charges: $21,065.00; (ii) Fees paid on the SPA charges: $93,665.00. [482] Transcript fees totalled $9,420.65. [483] Document production fees totalled $8,438.20. [484] Ms Silvester also claims an amount described as solicitors’ fees. She swears she spent 566.3 hours working as solicitor on the appeals, including the seven days of 257 See Lucy v OCC Holdings Pty Ltd (No. 2) at [7] and [8]. -- 111 of 115 -- 112 hearing. This equates to 16 working weeks calculated as seven hours per day, five days per week. Frankly, given the nature of the appeal, this seems modest. Also modest is her nominal charge out rates of some $35 per hour. External solicitors would have charged hourly rates perhaps ten times that rate or more. Certainly, a solicitor in private practice with the experience necessary to prepare and instruct on these appeals competently would have done so. At Ms Silvester’s nominal rate, her time is costed at $175,720.50. Determination of costs and disbursements to be paid [485] I intend first to determine the amount I would award without regard to the success the appellant had on the conviction appeal, then adjust that sum to take that into account. [486] I deal first with counsel’s fees. In my view, this is an appropriate case to allow specific sums for counsel’s fees. This was a particularly onerous and difficult advocacy task, quite apart from the necessity for the respondent to deal with the elaborate and mostly new legal and factual issues raised by the appellant’s extensive submissions on the appeal. For the same reason, the retaining of senior and junior counsel was unquestionably necessary to ensure the presentation of the respondent’s case on appeal in such a manner and to such extent that a just result was able to be achieved.258 Further, as I have already said, the scope of the appeal was the choice of the appellant, and the appellant considered that three counsel were required. [487] In determining what amount of costs is just, therefore, I take into account the costs to the respondent of retaining both counsel. Ms Silvester’s own time makes up the balance of the legal professional costs of the respondent. As I have said, both the time taken and the amount allocated to that time was modest given the scope of her task as the solicitor with responsibility for the appeal. [488] The respondent claims legal professional fees in the light of these amounts calculated on the basis of allowing seven days preparation and seven days to appear for each counsel at $5,000 per day and $3,000 per day for senior and junior counsel respectively plus scale fees multiplied by three for the appeal. [489] While the matter could be approached in a number of ways, I consider that approach to provide an appropriate approach to the question of what is just having regard to the special difficulty, complexity and importance of the appeal. That is particularly so given that the matter involved appeals in respect of four separate complaints. [490] In many cases, one might be inclined to reduce the rates or days for counsel’s fees to reflect an enduring consideration for the modesty relating to costs shown in the scale and the policies which underpin the limits on costs in the ordinary case. However, for the reasons I have given, this is no ordinary case. I think it just to award the amount sought by the respondent for counsel’s costs of the conviction appeal. [491] Thus the amount of costs to be allowed for counsel’s fees is: (a) Seven days preparation and seven days appearance for senior counsel at $5,000 per day, totalling $70,000; and (b) Seven days preparation and seven days appearance for junior counsel at $3,000 per day, totalling $42,000. 258 Per Barwick CJ in Stanley v Phillips (1966) 115 CLR 470 at 478. -- 112 of 115 -- 113 [492] I next turn to fees in relation to Ms Silvester’s work. Multiples of scale fees are hardly an adequate or just manner of determining an allowance for her work. Given the modest rate claimed and the efficiency with which she appears to have carried out the work of preparing the appeal, I consider the amount sought could easily be sustained as a just amount on account of her endeavour. However, I will limit those costs to $100,000. [493] Total legal professional costs are therefore ordered at $212,000. [494] As to disbursements, the appellant does not dispute that they should be allowed in full. [495] The next matter to deal with is whether that sum should be further adjusted for any reason. [496] The appellant submits that my observation that the prosecution did not need to prove the regional ecosystem to which the native vegetation belonged meant that there should be an adjustment to the costs of the appeal awarded to the prosecution in respect of the costs of the appeal on issues relating to that matter. I reject the argument for the reasons given in paragraphs [447] to [451] above. [497] The appellant also submits that there should be an adjustment to take account of their success on Charges 1 and 2 of Complaint 1. I agree. However, the appellant lost on every argument that related to those charges except the limitation point. Further, the appellant failed on the limitations issues on a number of charges. Finally, the limitation issues were very limited in scope both legally and factually compared to other grounds of appeal which were litigated. Overall, the success on the conviction appeal represented a proportion of the total costs of the appeal which was small, perhaps vanishingly small. However, some adjustment should be made for that success. Accordingly I reduce the respondent’s costs by $5,000 to $207,000. [498] The appellant is ordered to pay the respondent’s costs and disbursements of the appeal in the total amount of ($207,000 + $9,420.95 + $8,438.20 =) $224,859.15. FORMAL ORDERS ON THE CONVICTION APPEAL [499] I have not yet made orders on the conviction appeal. No specific submissions have been made as to the proper form of the orders on that appeal. It is to be regretted that orders on the appeal have been delayed for so long. However, I formed the judgment, not caviled with by either party, that is would be convenient if all the orders on both notices of appeal were made at the same time so as to facilitate the conduct of a single leave application under s. 118(3) District Court Act 1967 (Qld), should either party be inclined to so apply. [500] It seems to me that the correct orders on the conviction appeal to deal with the success on the two charges are as follows: (a) The conviction of the appellant on Charge 1 and Charge 2 of the Complaint 1 be set aside; (b) Charge 1 and Charge 2 of the Complaint sworn 17 August 2013 be dismissed. -- 113 of 115 -- 114 ORDERS ON THE SECOND NOTICE OF APPEAL [501] It is a moot point whether some of the following orders should be technically made on the First Notice of Appeal or the Second Notice of Appeal. [502] In any event, the following further orders will be made in the appeals: (a) The order made on 20 March 2017 that the appellant pay a fine of $276,000 to the cfomplainant within 3 months of the date of that order and in default to the State Penalties Enforcement Registry be set aside; (b) The appellant is fined $250,000 to be paid within 3 months of the date of this order; (c) The order made on 20 March 2017 that the appellant pay $17,471.01 by way of loss and damage in relation to the Complaints 1 and 3 pursuant to s. 88 Forestry Act 1959 (Qld) within 3 months of the date of that order be varied such that the amount be reduced to $4,704.05 (including GST) and the date for payment be varied to 3 months from the date of this order; (d) The order made on 20 March 2017 that the defendant pay $541,309.15 costs to the complainant pursuant to s. 157 Justices Act within 3 months of the date of that order be set aside; (e) The appellant pay the respondent’s costs of the trial in the amount of $495,892.86 within 3 months of the date of this order; (f) Order 2 of the orders made on 28 February 2017 be set aside; (g) The appellant pay the respondent’s costs of the conviction appeal in the amount of $224,859.15 within 6 months of the date of this order; (h) The Amended Notice of Appeal filed 5 September 2018 and the Amended Notice of Appeal filed 30 May 2019 are otherwise dismissed. [503] I will hear the parties as to the costs of the Second Notice of Appeal. -- 114 of 115 -- 115 ANNEXURE A Complaint 4, Charge Pre to Post Clearing Date Range Vegetation Management Class Clearing Status Area (hectares) 3 3 July 2012 – 12 December 2012 Least Concern Light Parkland Clearing 29.0 20 26 April 2013 – 31 July 2013 Least Concern Light Parkland Clearing Heavy Parkland Clearing 25.7 21 1 September 2013 – 4 November 2013 Least Concern Heavy Parkland Clearing 5.5 23 25 September 2013 – 22 December 2013 Least Concern Light Parkland Clearing 15.3 24 17 May 2012 – 18 June 2012 Least Concern Thick Woody Clearing Heavy Parkland Clearing 8.9 30 29 June 2013 – 22 December 2013 Least Concern Light Parkland Clearing 6.7 31 31 July 2013 – 22 December 2013 Least Concern Light Parkland Clearing 5.5 -- 115 of 115 --