Dore v State of Queensland & Anor [2004] QDC 364

DISTRICT COURT OF QUEENSLAND CITATION: Dore v State of Queensland & Anor [2004] QDC 364 PARTIES: EDMUND P DORE, (Appellant) v STEPHEN FRANCIS PENNY (Respondent) ROBERT J DORE, (Appellant) v STEPHEN FRANCIS PENNY (Respondent) GARY J DORE (Appellant) v STEPHEN FRANCIS PENNY (Respondent) FILE NO/S: 200 of 2004 201 of 2004 202 of 2004 DIVISION: Trial PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Tully DELIVERED ON: 17 September 2004 DELIVERED AT: Cairns HEARING DATE: 5 August 2004 JUDGE: Bradley DCJ ORDER: Appeals against conviction and sentence dismissed CATCHWORDS: COUNSEL: Mr D Grealy for the respondent SOLICITORS: Appellants appeared on own behalf Crown Solicitor for the respondent -- 1 of 8 -- Background [1] In May 2002, three brothers, Edmund, Robert and Gary Dore, purchased 192.69 hectares of land at Murrigal, Murray Upper via Euramo for over $400,000. The brothers hold the property as tenants in common in equal one third shares. The gazetted but unused Bellenden Road diagonally crosses the top half of the property. [2] On 1 July 2002 two anonymous complaints were received by the Department of Natural Resources and Mines (“DNRM”) alleging the clearing of vegetation on the property. On 3 July 2002 an inspection was undertaken and a large area of vegetation was found to have been cleared on the property and over Bellenden Road. The brothers admitted to officers of the DNRM that they had cleared the vegetation some one to one and half weeks prior to the inspection. No development approvals for clearing on the brothers’ property and no tree clearing permits for clearing on the road had been issued. [3] About 27 hectares of remnant endangered regional ecosystem and about 3 hectares of remnant of concern regional ecosystem were cleared by the brothers on their own property and about .7 of a hectare of remnant endangered regional ecosystem was cleared on Bellenden Road. Endangered status means that there is less than 10% of pre-European extent remaining across a bioregion (in this case the Wet Tropics Bioregion) or its distribution has contracted to less than 10% of its former range. Of concern status means that between 10% and 30% pre-European extent remains in an intact condition in the bioregion. [4] Each of the brothers pleaded guilty in the Tully Magistrates Court to an offence under the Integrated Planning Act 1997 in relation to the clearing on their property, and another offence under the Land Act 1994 in relation to the clearing on Bellenden Road. On 2 April 2004 each of the brothers was fined $15,000 with respect to the first offence and $3,000 with respect to the second. In default of payment the Magistrate ordered “Levy in distress”. Convictions were not recorded against them. [5] The brothers were represented by counsel in the Magistrates Court but were not legally represented in their appeal to this court although Mr David J. Walter of EnviroWild Pty Ltd, Herberton prepared their Notices of Appeal and a lengthy written submission running to well over 100 pages in support of the appeals. [6] Unfortunately the Notices of Appeal, not having been prepared by someone with legal qualifications, are long (some 10 pages) and confusing, as are the written submissions. During the hearing of the appeal, however, the brothers confirmed that they were each appealing against both their conviction and the penalties imposed upon them. The Issues [7] The issues for determination in this appeal as I perceive them are: • Given their pleas of guilty in the Magistrates Court, can the brothers competently appeal to this court against their convictions? • If so, did the brothers actually commit offences against the Integrated Planning Act and the Land Act? -- 2 of 8 -- 3 • If the brothers’ appeals against conviction are unsuccessful, were the penalties imposed upon them excessive? [8] The brothers’ Notices of Appeal sought to challenge the various warrants and notices issued pursuant to the relevant legislation, which enabled officers from the DNRM to enter and inspect their property and demand compliance with the legislation. However, no argument was advanced to attempt to persuade me that this Court has jurisdiction to consider challenges to the Warrant to Enter, the Compliance Notice, the Enforcement Notice or the Trespass Notice. [9] The Vegetation Management Act 1999 provides an avenue of appeal against a Compliance Notice to the Magistrates Court and proceedings with respect to a Trespass Notice may be taken in the Magistrates Court. The Integrated Planning Act gives the brothers the right to appeal to the Planning and Environment Court against the giving of the Enforcement Notice. The written submissions reveal that such an appeal has been commenced. The District Court cannot therefore assist the brothers in relation to any challenge to the warrants or the notices issued to them or in respect to their property. Given their pleas of guilty in the Magistrates Court, can the brothers competently appeal to this court against their convictions? [10] The appeal to this Court is pursuant to s 222 of the Justices Act. Section 222(1) provides: “If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court Judge”. Section 222(2)(c) provides – “If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”. [11] The general principle is that a person may appeal against a conviction notwithstanding the conviction was entered on his or her own plea of guilty if: • There was no deliberate and unequivocal plea of guilty; or • The person did not appreciate the nature of the charge or did not intend to admit that s/he was guilty of it; or • Upon the admitted facts s/he could not in law have been convicted of the offence charged; or • To refuse to allow an appeal would otherwise result in a miscarriage of justice.1 [12] The major thrust of the brothers’ arguments was crystallised by Gary James Dore when he made the following submission before me:- 1 Long v Spivey [2004] QCA 118; R v Frantzis & Anor (1996) 66 SASR 558 -- 3 of 8 -- 4 “We own our land in fee simple. It was granted to us by the Crown and we believe the State has no authority to come onto our land because we own it in fee simple and they’ve got no authority to come onto our land. And it was sealed by the Crown on our Deed of Grant.” [13] It can be deduced therefore from the brothers’ submissions that even though they fully understood the offences with which they were charged, were legally represented by competent counsel, and did deliberately enter pleas of guilty before the magistrate, nevertheless they now argue that the law under which they were convicted is invalid or at least does not apply to them or their property. In other words, the brothers are arguing that on the admitted facts they could not in law have been convicted of the offences. Accordingly it is now necessary to examine the validity of the relevant provisions of the Integrated Planning Act and the Land Act as they apply to the brothers in the present circumstances. Did the brothers actually commit offences against the Integrated Planning Act and the Land Act? [14] As I understand it, the brothers’ central argument with respect to the clearing of vegetation on their own land, is that they own their property in fee simple as stated on the relevant Deed of Grant and the property has therefore been “alienated from the State”. Thus, the brothers argue that “the State or its officers have no jurisdiction over the clearing of the native vegetation on our registered freehold land”. [15] So far as the offence regarding Bellenden Road is concerned, the brothers argue that the road is controlled by the Cardwell Shire Council which has indicated to the brothers that should they make an application to use the road for agricultural and grazing purposes there would be no objection from the Council and, the brothers argue, a tree clearing permit is not required for the clearing of vegetation from the road. [16] The contract of sale signed by each of the brothers as purchasers on 11 April 2002 with respect to the freehold property included special conditions whereby the brothers acknowledged that approximately 38 hectares of the property had been identified as having remnant vegetation and further, that the brothers acknowledged that they had been given a copy of the booklet “A Guide to Vegetation Management Policy in Queensland”, a booklet prepared by the DNRM. It is evident that the restrictions on clearing vegetation on the property (and Bellenden Road) existed at the time the property was purchased and were disclosed in the contract of sale. [17] In the written submissions prepared on behalf of the brothers, the original Deed of Grant with respect to their property is referred to. However, that Deed of Grant is expressly subject to the conditions and reservations declared by the Land Acts, the Mining on Private Land Acts and the Petroleum Acts, although it does not expressly refer to restrictions on the clearing of vegetation. The Deed of Grant does state however that it is made “in conformity with the Laws and Regulations in force for the alienation of Crown Land in our State of Queensland”. [18] Indeed, for centuries the right of the State to impose restrictions on the ownership of land has been recognised, and in fact, at common law there is no right to compensation where mere restrictions are imposed by the State, unlike the generally accepted right to compensation in the event of land being acquired by the State. The -- 4 of 8 -- 5 rights of fee simple owners have at common law always been restricted by the torts of nuisance, negligence and the law relating to restrictive covenants and to easements. [19] It has been said that a grant of an estate in fee simple in land is a grant of the largest interest in land known to the common law, and one which gives the owner “the lawful right to exercise over, upon, and in respect to the land every act of ownership which can enter into the imagination including the right to commit unlimited waste”. But the right to use such land has in modern times, been severely restricted.2 [20] In Queensland the Constitution Act 1867 gives the Executive power, with the advice and consent of the Legislative Assembly, to “make laws for the peace, welfare and good government of the colony in all cases whatsoever.” These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign”.3 Such words permit the Legislative Assembly of Queensland to pass laws restricting, modifying or even removing common law rights. The Legislative Assembly of Queensland is the supreme law-making authority in the State of Queensland and there is no doubt that it had the power to pass the Integrated Planning Act and the Land Act. Equally there is no doubt that the Integrated Planning Act applies to the land owned by the three brothers or that the Land Act applies to Bellenden Road. [21] The brothers’ property has not been “alienated from the State” in the sense that Queensland State law does not apply to the property or that the Queensland legislature is precluded from passing laws adversely affecting the property. [22] Other arguments advanced by the brothers appear mainly to be based on a misinterpretation of the relevant legislation and can be shortly disposed of: • section 4.3.18 of the Integrated Planning Act and the Justices Act 1886 do permit Stephen Francis Penny (the Respondent) to make the complaints against each of the brothers and permit the Magistrates Court in Tully the jurisdiction to hear the complaints; • other Acts do not, inconsistently with the Integrated Planning Act, provide that the clearing carried out by the brothers was not an offence; • there is no doubt that an offence against the Integrated Planning Act can be committed on freehold land and that the brothers’ land is “freehold land” as defined by the Act; • the allegation in the offence under the Land Act that each of the brothers “cleared trees or allowed trees to be cleared” was not objected to as being duplicitous or ambiguous in the Magistrates Court and cannot now be relied upon to overturn a conviction when a plea of guilty was originally entered; • there is no doubt that Bellenden Road is land for which a tree clearing permit is needed if clearing is carried out. 2 See Bone v Mothershaw [2002] QCA 120 3 Ibralebbe v The Queen 1964 AC 900 at 923 and Union Steamship Co of Australia Pty Ltd v King (1998) 166 CLR 1 at 9-10 -- 5 of 8 -- 6 [23] Both the Integrated Planning Act and the Land Act are laws validly passed by the Queensland Legislative Assembly and both create offences which can be committed by the owners of freehold land. The brothers do not dispute the fact of the clearing of the vegetation without appropriate approvals or permits and such clearing constituted the commission of offences under the two Acts. The brothers cannot succeed in their appeals against their convictions. Were the penalties imposed upon the brothers excessive? [24] On behalf of the brothers the following points in mitigation were made to the Magistrate: • The land was cleared for agricultural purposes; to produce sugar cane, bananas or for cattle. • The property is subject to a significant debt. • That the cost of complying with the Enforcement Notice to remediate the property will, on one estimate be $644,000 and take 17 years (although the brothers’ own expert report suggests that the land could be adequately rehabilitated at a cost of $20,000 over a period of three years). • That the cleared land is capable of restoration by natural regeneration and/or positive intervention and is not lost forever and each of the brothers is committed to ensure the cleared land is rehabilitated. • That each of the brothers is a young man of good character and with no relevant criminal history. They are third generation farmers dependant on the land for their income and between them employ between 12 and 15 people from the local community. • The Dore family has been involved in assisting the Commonwealth in restoring the Murray Upper River System. • That each of the brothers is acutely embarrassed by the charges and realises that they had been operating under a false belief that the restrictions referred to in the contract of sale were only relevant to “leaseholders” as opposed to “landholders”. • That each of the brothers fully cooperated with the enforcement authorities and entered an early plea of guilty. • The area cleared involves an isolated patch of vegetation, not an area adjacent to areas of great significance such as World Heritage listed Wet Tropics areas. • The land had been previously disturbed by logging. [25] On the other hand, it was submitted on behalf of the prosecution that the offences committed by the brothers were made with full knowledge of the law, and were deliberate, complete, systematic and mechanical, involving the destruction of approximately 30 hectares of ecosystem. -- 6 of 8 -- 7 [26] The prosecution commissioned three expert reports which were tendered to the Magistrate, to illustrate the direct and indirect effects of the clearing on native flora and fauna. [27] The prescribed maximum penalty for the offences is a fine of $124,875 under the Integrated Planning Act and one of $30,000 under the Land Act. Clearly the legislature considers such breaches of the law to be serious. [28] The expert reports revealed that the clearing would have an adverse impact on fauna including endangered and vulnerable species, and on rare and threatened species of flora. [29] On 28 March 2003 both the Land Act and the Vegetation Management Act was amended to include penalty guides for courts dealing with offences such as those committed by the brothers. The guides dictate levels of penalty based on the number of hectares involved and the nature of the ecosystem affected. The sentencing Magistrate concluded that the guides had no application because they were enacted after the commission of the offences. The Magistrate is clearly wrong in reaching this conclusion.4 [30] The Magistrate was also of the view that any such penalties should be calculated by reference to the area of the cleared land only and not applied equally to each person charged in relation to the same area of land. Again, it is arguable that the Magistrate is wrong in his interpretation of the penalty provisions. In any event the Magistrate arrived at a global penalty and apportioned it between the three brothers. Had the Magistrate applied the penalty guides with reference to the area of land cleared, and divided the penalty between the three brothers, each of them would have been liable to a total fine in the order of $22,575. [31] The evidence put before the Magistrate by the prosecution clearly indicates that the vegetation cleared is of ecological importance and has been adversely affected in a way that will have an impact on endangered and threatened flora and fauna. The land was cleared in the context of a commercial endeavour and each of the brothers stood to gain from its clearing. [32] The legislature has made it clear that significant penalties should be imposed on those who commit such offences and the issue of general and personal deterrence is of great importance. [33] On the other hand, the brothers have suffered severe economic consequences as a result of their actions including the cost of restoring the land and the inability to use it for farming purposes. As Gary Dore said in submissions to me, “We never bought a national park. We’re farmers, that’s what we do.” Further, the brothers are not entitled to compensation for the restrictions placed on the use of their property. It is not difficult to have some sympathy for the brothers in these circumstances. [34] The Magistrate reflected the matters he could take into account in mitigation in the fines imposed and further he gave the brothers the benefit of not recording a conviction against each of them. The Magistrate did not award the cost of the DNRM’s investigation into the offences or the prosecution costs (claimed at 4 R v Truong (1999) QCA 21 -- 7 of 8 -- 8 $11,000) against the brothers despite it being conceded on their behalf that they were reasonably incurred. [35] In all of the circumstances, particularly having regard to the applicability of the penalty guides, the fines imposed by the Magistrate cannot be said to be manifestly excessive. The appeals against sentence are dismissed. -- 8 of 8 --