Esat v Rauchle [2018] QDC 235

DISTRICT COURT OF QUEENSLAND CITATION: Esat v Rauchle [2018] QDC 235 PARTIES: IMRAAN ESAT (appellant) v SCOTT CAMERON RAUCHLE (respondent) FILE NO/S: 1256/18 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Wynnum DELIVERED ON: 4 December 2018 DELIVERED AT: Brisbane HEARING DATE: 9 November 2018 JUDGE: Farr SC DCJ ORDER: 1. Appeal allowed; 2. The fine of $2,000 imposed in the Magistrates Court at Wynnum on 9 March 2018 is set aside; 3. The respondent is fined the sum of $6,000 to be paid within 90 days in default 30 days imprisonment; 4. Application to adduce new evidence is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the respondent pleaded guilty to one charge of unlawfully damaging marine plants – where the respondent was fined $2,000 in default 30 days imprisonment with no conviction recorded – where the appellant submits that the respondent’s conduct required Development Approval which would have incurred an application fee in excess of the fine imposed at sentence – whether the sentence was inadequate – whether the sentence adequately recognises the principle of general deterrence – determination of appropriate penalty Justices Act 1886 (Qld) s 222, s 223, s 225 Sustainable Planning Act 2009 (Qld) Sustainable Planning Regulation 2009 (Qld) -- 1 of 17 -- 2 Bode v Commissioner of Police [2018] QCA 186 Mbuzi v Torcetti [2008] QCA 231 McDonald v Queensland Police Service [2017] QCA 255 Robinson Helicopter Company Inc v McDermott [2016] HCA 22 Stevenson v Yasso [2006] QCA 40 COUNSEL: G M Elmore for the appellant I A Munsie for the respondent SOLICITORS: Department of Agriculture and Fisheries for the appellant Australian Law Partners for the respondent [1] On 9 March 2018 the respondent pleaded guilty in the Wynnum Magistrates Court to one charge of unlawfully damaging marine plants.1 He was fined $2,000 in default 30 days imprisonment and no conviction was recorded.2 [2] The appellant has appealed against the amount of that fine, pursuant to s 222 Justices Act 1886 (JA) on the grounds that: 1. The sentence was manifestly inadequate; and 2. The magistrate erred by failing to giving sufficient consideration to the element of general deterrence. [3] The appellant has also sought to adduce new evidence. Circumstances of offending conduct [4] On 18 August 2016, Queensland Boating and Fisheries received information that someone was burning mangroves in Wynnum along the creek and in the backyard of 50 St Catherines Terrace, Wynnum. [5] On 23 August 2016 Field Officer Imraan Esat attended at that address and observed a large area of mature mangroves which had been recently removed adjacent to 50 St Catherines Terrace. He could see through the fence at that property a number of trees which had been cut into lengths in the backyard, as well as some partially burned branches in an open fireplace. He was able to identify them as mangroves. [6] Mr Esat returned to that address on 24 August 2016 with other departmental officers and four officers from the water police. A search warrant was executed at that time. [7] During the execution of that warrant, Mr Esat and one of the accompanying police officers spoke with the respondent who made the following statements:  he lived at that address;  he initially denied knowing anything about the dead mangroves, but later said that he may have pruned some of the mangroves a bit with a saw to get his boat into the property;  he didn’t obtain any approvals prior to undertaking that exercise;  he moved into that house in April 2016; 1 The complaint alleged one charge of contravening s 123 of the Fisheries Act 1994 (Qld). 2 The maximum penalty at the time of sentence was 3,000 penalty units which at the time equated to $353,400. -- 2 of 17 -- 3  he had been burning pine needles and small sticks;  that he had conducted such a burning on the previous Saturday (although he was not sure about that);  the trees were cut in the last few months; and  he was unaware that mangroves were protected. [8] Investigators seized a quantity of dead plant material (45 large logs) and partially burnt plant material from the fire pit. [9] The area of marine plants was measured and it was estimated that approximately 52m² of stumps were located. As the mangroves were mature mangroves, the canopy cover would have been far greater. [10] Mr Esat attended at Wynnum Creek again two days later at which time he identified 40 separate cuts to mangroves at that location, mostly at ground level, which involved the complete removal of what was believed to have been very large mature mangroves. [11] A search of Brisbane City Council records revealed that there were no development approvals in relation to 50 St Catherines Terrace Wynnum that would permit the damage, destruction or removal of marine plants at that time. [12] The seized material was later identified to be Avicennia marina subsp. Australasica, or grey mangrove. Grey mangrove is classified as a marine plant and normally grows between the upper and lower tidal limits. [13] The respondent subsequently declined to participate in a formal interview with investigators. [14] Mr Esat received information from a member of the public that prior to departmental officers attending at 50 St Catherines Terrace, the respondent had been removing and destroying marine plant material. He had been seen to be burning branches at his property while using his vehicle to remove the leaves from his property.3 Law regarding appeals [15] Section 222(1) of the JA provides the defendant’s right of appeal to the District Court. Section 223(1) provides that such an appeal is by way of rehearing on the original evidence on the record, although the court may give leave to adduce fresh, additional or substituted (new) evidence if the court is satisfied there are special grounds for giving leave.4 Section 225 JA empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just. [16] In Stevenson v Yasso [2006] QCA 40 at paragraph 36, McMurdo P observed that the District Court judge in his appellate jurisdiction “was required to make his own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.” 3 Statement of Facts (exhibit 1 in the court below). 4 Justices Act 1886 (Qld) s 223(2). -- 3 of 17 -- 4 [17] In Mbuzi v Torcetti [2008] QCA 231 at paragraph 17, Fraser JA relevantly observed that “the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.” [18] In McDonald v Queensland Police Service [2017] QCA 255 at paragraph 47, Bowskill J, with whom Fraser and Philippides JJA agreed said: It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [19] In Bode v Commissioner of Police [2018] QCA 186 at paragraph 42, McMurdo JA restated the task of a court conducting an appeal by way of rehearing to be as is described by the High Court in Robinson Helicopter Company Inc v McDermott5 as follows: “A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.” Application for leave to adduce new evidence [20] The appellant seeks to adduce new evidence being: (a) Three photographs taken at the respondent’s house; and (b) Transcripts of sentencing submissions and remarks relating to two comparable sentences. [21] As I stated to counsel during the hearing, in my view sentencing submissions and remarks in other matters do not constitute evidence and leave is not required in that regard. [22] In relation to the photographs, counsel for the appellant submitted that the photographs would assist the court in understanding the submissions made in the court below, but he concedes that they could have been produced in that court. Nevertheless, counsel for the respondent has no objection to their admission. [23] In Pavlovic v Commissioner of Police6, the relevant test for the consideration of new or fresh evidence on a s 222 appeal was stated to be: “[31] whether “the evidence relied on could with reasonable diligence have been produced by the accused at the trial”[which] reflects the primary importance of the trial in 5 [2016] HCA 222. 6 [2007] 1 Qd R 334. -- 4 of 17 -- 5 the administration of justice. A trial cannot be regarded as a dress rehearsal or as the first step in a process which inevitably leads to an appeal and a possible retrial; … [35] … whether “the evidence is apparently credible (or at least capable of belief)” [36] whether the evidence, if believed, “might reasonably have led” the tribunal of fact “to return a different verdict.”” (footnotes omitted) [24] I will return to this issue later. Respondent’s antecedents [25] The respondent was 48 years of age at sentence and had no relevant prior convictions. Submissions [26] The appellant submits that the conduct the subject of the charge was of a nature that required a Development Approval under the Sustainable Planning Act 2009 (Qld) (SPA). It is further submitted that the fee for such an application, pursuant to Schedule 7A, Part 1, column 2 of the Sustainable Planning Regulation 2009 (Qld) (SPR) is $5,843. [27] The appellant submits therefore that the fine imposed was substantially less than the application fee that the respondent would have been required by law to pay and for that reason, the sentence fails to properly reflect the consideration of general deterrence and is therefore inadequate. [28] The respondent submits that this may not have been a matter that required a Development Approval or alternatively, submits that the sentence imposed was not inadequate taking all relevant considerations into account including the fact that the relevant legislation does not impose a minimum fine by way of penalty. Was a Development Approval required? [29] An issue arose in the court below between the parties as to whether the conduct in question was self-assessable development or conduct which required development approval from an assessment manager. [30] Counsel for the respondent argued at sentence that there was a self-assessable code that permitted the respondent to conduct such works without paying a fee. I note though that no self-assessable code was tendered at sentence, nor specifically identified. [31] Whether or not a defined activity complies with a self-assessable code is, of course, a question of law. -- 5 of 17 -- 6 [32] The combined effect of s 232 of SPA and r 9 and Schedule 3 of SPR7is that a person is able to determine the circumstances in which marine plant operational work is assessable development and self-assessable development.8 [33] Assessable development for operational work involving marine plants excludes “self- assessable development under Part 2”.9 There are various self-assessable codes provided for marine plant development. [34] Although no self-assessable code was tendered at sentence, the most relevant self- assessable code appears as the “Code for self-assessable development: Maintenance works on existing lawful structures (other than powerlines and on-farm drains) in a declared Fish Habitat Area or involving the removal, destruction or damage of marine plants: Code number: MPO2 January 2013.” (The Code). As the Code explains: “This code is prepared under the Sustainable Planning Act 2009 (SPA) and the Fisheries Act 1994 to provide an authorisation for certain works with minor impacts to marine plants or a declared Fish Habitat Area (FHA) without requiring a development approval from Fisheries Queensland, a service of the Department of Agriculture, Fisheries and Forestry (DAFF).” [35] The question of whether the development was a self-assessable development is determined only with reference to s 232(1) of SPA and Schedule 3, Part 2 of SPR. Schedule 3, Part 2 of SPR prescribes whether something is self-assessable development, and the code operates in conformity with Schedule 3, Part 2 – importantly how self-assessable development is carried out. [36] In Schedule 3, Part 2, Table 4 of SPR the circumstances in which self-assessable development “for the removal, destruction or damage of marine plants” are prescribed. Counsel for the respondent specifically referred to a privately owned boat ramp as being a structure around which marine plants can be trimmed.10 He then submitted that this was an instance of such an activity as there was a boat ramp associated with the land in question and had been there for over 40 years.11 It then becomes a question of law, with reference to Schedule 3, Part 2, Table 4 of SPR, whether the work carried out by the respondent: “… is reasonably necessary for the maintenance of existing structures, including, for example, the following structures, if the structures were constructed in compliance with all the requirements, under any act, relating to the structure of that type – boat ramps.” [37] Counsel for the respondent submitted in the court below that the activity the subject of the charge would therefore fall within the category of activity that did not require development approval. The learned magistrate however noted immediately: 7 The Fisheries Act adopts the definition of “assessable development” from the SPA. The Fisheries Act defines fisheries development to include assessable development. 8 Schedule 9 Sustainable Planning Regulation 2009 (Qld). 9 Schedule 3. 10 Transcript sentence submissions day 1, p 14, l 11-21. 11 Transcript sentence submissions p 18, l 9. -- 6 of 17 -- 7 “But part of the concern here – we seem to have gone beyond a trim, we’ve gone beyond a prune. We’ve had the landscape shaved to the extent where those stumps are at ground level and there doesn’t appear to be any regrowth in the last 12 months.” [38] The learned magistrate’s assessment in that regard is not open to challenge. The photographs tendered at sentence reveal the mangrove plants were cut to ground level in an exercise that went well beyond mere trimming or pruning. [39] It follows that the respondent’s activity would not have fallen within the category of self-assessable development, but rather was development that required the respondent to make application for development approval and pay the requisite application fee. [40] Section 260 of SPA and r 21A and Schedule 7A of SPR provide for the application fee in relation to particular development. Specifically, r 21A of SPR provides: “21A Assessment manager application fee applies for relevant aspects of development—Act, s 260 (1) For section 260(1)(d)(ii) of the Act, the prescribed fee (the assessment manager application fee) for a development application for an aspect (the relevant aspect) of development mentioned in schedule 7A, part 1, column 2, is the fee stated in schedule 7A, part 1, column 3, opposite the relevant aspect.” [41] Schedule 7A of SPR requires the payment of an application fee of $5,843 for the removal, destruction or damage of marine plants covering an area of at least 25m2. The respondent’s conduct here affected an area of approximately 52m2. Such a fee only applies when a development approval is being sought.12 Development approval is not required for self-assessable development.13 [42] On all of the evidence it is apparent that the respondent carried out assessable development when committing the offence against s 123 of the Fisheries Act as alleged. Because the work was assessable development, the application fee pursuant to Schedule 7A of SPA applied in the amount of $5,843. Comparative sentences [43] A comparative sentencing table was tendered by the prosecution at sentence. A copy of that table is attached to this judgment and marked annexure A. The learned sentencing magistrate was referred to the matters of McMahon [2007], Phillips [2005], Dpena [2007] and Williams [2009]. Counsel for the respondent also referred to the matters of Lordan [2007], Pappin [2003] and Mougrapi [2005]. In written submissions, the prosecution specifically relied upon the matters of Gorman [2014], Kriwopschin [2015] and Vandebroek [2011]. [44] It must be noted though that sentence outcomes prior to 1 July 2013 would not have considered the application fee for development approvals under Schedule 7A. Planning approval operated under a different scheme. Schedule 7A, “Fees for Development Approval,” was inserted in the SPR by subordinate legislation 12 Sustainable Planning Act 2009 (Qld) s 260. 13 Sustainable Planning Act 2009 (Qld) s 236(1). -- 7 of 17 -- 8 number 114 of 2013 s 113, the Sustainable Planning Amendment Regulation (no. 3) 2013. Schedule 7A appears for the first time in SPR, current as at 1 July 2013. Prior to this, fees for development approval were administered by various assessment agencies. Whilst the amount of the application fee is undoubtedly a relevant consideration in the determination of sentence, it is not the only consideration. Nevertheless, the amount of an application fee that was lawfully required to be paid before approval for the development could be obtained is an important consideration. [45] Hence, those matters determined prior to 1 July 2013 are of significantly less relevance for comparison purposes than the matters determined after that date. [46] The avoidance of the cost of obtaining a Development Approval is intrinsic in the nature and circumstances of the offending conduct. This is not a matter though where the respondent embarked upon the activity intending to avoid payment of the fee. It was accepted in the court below that the respondent was simply ignorant of that lawful requirement. I will also act on that basis. [47] Of course, whilst ignorance of the law does not provide a defence to a charge, it may nevertheless, depending upon circumstances, constitute a relevant circumstance that may act to mitigate penalty. [48] The three comparable matters particularly relied on by the appellant at sentence were Kriwopschin, Gorman and Vandebroek. The facts relating to those matters are detailed in annexure A and I will not repeat them here. Defence counsel sought to distinguish them from the present case on the basis that Kriwopschin offended after having been advised of the lawful requirements to obtain development approval by Fisheries officers the previous year. Similarly, Gorman was put on notice by the local council that he should stop cutting mangroves and obtain an appropriate permit, yet he continued cutting after being directed to stop. [49] There can be no doubt that Gorman is a more serious case than the present, and I note that a fine of $10,000 was imposed notwithstanding that only 8 plants were damaged. Similarly, whilst Kriwopschin had some features that were more serious than those in the present matter, counter balancing that to some degree is the fact that the area cleared in that matter was only 20m2. [50] Vandebroek was determined prior to 1 July 2013 and is therefore of less comparable value. Nevertheless, he was fined the sum of $4,000 for cutting 138 mangrove branches. Determination [51] The respondent has submitted that even if the activity was development that needed approval through an assessable development process, the fine imposed was nevertheless sufficient in all the circumstances and would act as a suitable deterrent to other members of the public. [52] I have some difficulty in accepting that submission. The imposition of a fine that represents only 34 per cent of the application fee that would otherwise have had to have been paid hardly acts as a deterrent. In fact, if anything, it acts as a financial incentive to others to behave in a similar way. -- 8 of 17 -- 9 [53] For that reason, it is my opinion, that the sentence imposed fails to adequately recognise the sentencing principle of general deterrence,14 and is inadequate in the circumstances and the discretion to set aside that order and sentence afresh is enlivened. [54] In determining the appropriate penalty the following matters are of relevance: (a) the application fee that the respondent would otherwise have had to pay; (b) the respondent’s timely plea of guilty; (c) the fact that the respondent was ignorant of his lawful requirements and did not intentionally seek to avoid payment of the application fee; (d) the respondent’s lack of prior convictions; (e) the fact that the respondent was remorseful; (f) the damage caused; (g) the respondent’s activity was not undertaken for commercial gain; and (h) the respondent’s recklessness in undertaking the activity without first checking the lawfulness of the proposed activity with his local authority, notwithstanding the fact that his neighbours had told him that such activity was unlawful.15 [55] It is also of relevance to note that this is an appeal by the prosecuting authority, hence the respondent is placed in jeopardy of sentence a second time and for that reason, a moderate approach is appropriate. The appellant has submitted that the appropriate range is one of $7,000-$10,000. [56] Taking all of the above matters into account however, in my view, a fine of $6,000 would properly reflect all relevant considerations. Application for leave to adduce new evidence [57] Notwithstanding the respondent’s non-objection to the proposed new evidence being adduced, it does not satisfy the criteria for the receipt of such evidence and the application is dismissed. Order 1. Appeal allowed; 2. The fine of $2,000 imposed in the Magistrates Court at Wynnum on 9 March 2018 is set aside; 3. The respondent is fined the sum of $6,000 to be paid within 90 days in default 30 days imprisonment. 4. Application for leave to adduce new evidence is dismissed. 14 Penalties and Sentences Act 1992 (Qld) s 9(1)(c). 15 Transcript p 1-16 l 25-30. -- 9 of 17 -- -- 10 of 17 -- -- 11 of 17 -- -- 12 of 17 -- -- 13 of 17 -- -- 14 of 17 -- VANDEBROEK, AW Fl0/032 15 April 2011 -,Document No.: 1612611 Caboolture Sections 122 & 123 Fisheries Act 1994 as at 20.10.17 123(a) Fisheries Act 1994 mangrove trees. At about 6.04pm on 26 November 2014 while the Inspectors were in the mangroves, the Defendant called out to them from the patio area at the rear of his unit. At the start the Defendant admitted to doing the excavation for the inlet through the foreshore up to his property. On 28 November 2015 the Defendant participated in a recorded interview with Inspectors when he stated and admitted as follows. He excavated the inlet over a two month period and put the excavated mud containing mangrove roots on either side of the inlet. He did this and he erected a jetty structure on the foreshore land to get his boat up to his property and give it a parking spot, to load it without walking through the mangroves and to do work on it. He cut down the mangrove tree where its stump is under his jetty. He did this because the tree was hanging over his property and he was concerned it could cause damage to his property in a storm. He said he knew he shouldn't have excavated the channel and have cut down the mangrove tree. He knew mangroves were protected as marine plants and you had to go through proper channels to remove or prune them. He said he knew this from a previous occasion in 2013 when he was given an infringement notice and it was explained to him by Fisheries Officers. On Monday 1 December 2014, Inspectors did a more detailed examination of the inlet excavated by the Defendant. The Inspectors measured the inlet covered 20 m2. The defendant was a land-owner and personally cut 138 I Ex parte branches of mangroves at the intertidal zone at the rear of his property. The branch material was identified by a Government Botanist as being Grey Mangroves. Defendants participated in a Fine: $4,000 Filing fees: $75.90 -- 15 of 17 -- -- 16 of 17 -- -- 17 of 17 --