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Court of Criminal Appeal 18 June 2014

Rummery v Chief Executive, Office of Environment and Heritage

[2014] NSWCCA 106

Other
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST CONVICTION APPELLANT PLEADED GUILTY APPEAL AND NEW TRIAL ADMISSION OF NEW EVIDENCE

Citation: Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 18 June 2014
Judge(s): Ward JA; Johnson J; RS Hulme AJ

Background

The appellant was a landholder at a rural property near Bendemeer in New South Wales. He was charged with clearing native vegetation between August 2008 and August 2010 otherwise than in accordance with a development consent or a property vegetation plan, in contravention of s 12(1) of the Native Vegetation Act 2003 (NSW). The property had a long history of clearing and logging dating back to the 1920s.

After pleading guilty in March 2012 (with legal representation), the appellant was convicted by Pepper J in the Land and Environment Court in December 2012. He was fined $80,040 and ordered to pay the prosecutor's costs. He then appealed both the conviction and the sentence, representing himself at the sentencing hearing.

The appeal raised multiple grounds, including whether the prosecution was statute-barred for part of the charged period, whether the vegetation cleared may have been exempt "regrowth," whether the prosecution had properly established the presence of an endangered ecological community, and whether error had occurred in the sentencing exercise.

  • Whether the appellant's guilty plea should be set aside on the basis that some or all of the alleged clearing may have been statute-barred
  • Whether new evidence should be admitted on appeal, including documents relating to when an authorised officer first became aware of the alleged clearing
  • Whether the prosecution had established that the cleared vegetation was not "regrowth" within the meaning of s 9 of the Native Vegetation Act 2003
  • Whether the clearing was permitted as a "routine agricultural management activity" under s 11 of the Act
  • Whether the prosecution had established the presence of an endangered ecological community
  • Whether there was error in the sentencing discretion, including the assessment of the extent and value of environmental harm

Decision

The Court dismissed the appeal against conviction. The appellant had pleaded guilty with legal representation, and the Court applied the established principle that an appellate court will only set aside a conviction following a guilty plea where a miscarriage of justice is demonstrated. The Court found no such miscarriage. The appellant's arguments about the statute of limitations, the regrowth exemption, and the endangered ecological community were examined but did not displace the validity of the guilty plea or the conviction.

On the question of fresh evidence, the Court considered whether documents produced in response to notices for production gave rise to a denial of procedural fairness. It concluded they did not warrant the admission of fresh evidence sufficient to disturb the conviction.

On sentence, the Court found error in the primary judge's assessment of environmental harm. The sentencing judge had relied on tree age calculations that were shown to be significantly overstated, leading to a higher assessment of harm than was warranted. The Court allowed the appeal against sentence and substituted a reduced fine.

A minority view from RS Hulme AJ went further, holding that the harm assessment should be reduced even more substantially. He noted that a significant proportion of the cleared trees (approximately 10 to 20 percent) fell within the "regrowth" category that the appellant could lawfully have cleared, and that this should have further reduced the penalty. The majority did not accept this as requiring an equivalent further reduction, but all three judges agreed the sentence appeal should be allowed.

Orders Made

• The appeal against conviction should be dismissed
• The appeal against sentence should be allowed

Key Takeaways

  • A conviction entered on a guilty plea will only be set aside on appeal where a miscarriage of justice is demonstrated; the fact that a legal argument might have been available at trial is not, on its own, sufficient.
  • Under the Native Vegetation Act 2003, vegetation cleared in the period alleged must be established to fall within the Act's prohibitions; exemptions for "regrowth" under s 9 and "routine agricultural management activities" under s 11 remain available as defences, but a guilty plea admits the elements of the offence as charged.
  • Error in a sentencing court's factual findings about the extent of environmental harm, where those findings rest on incorrect calculations, can constitute a ground to disturb the sentence on appeal.
  • RS Hulme AJ, in dissent on the quantum of the fine, held that the proportion of cleared trees that could lawfully have been removed as regrowth was a mitigating factor relevant to the seriousness of the offence, even though clearing that regrowth alongside protected vegetation formed part of the overall offence.
  • The Court of Criminal Appeal confirmed that appeals against conviction and sentence in Land and Environment Court matters under the Criminal Appeal Act 1912 are appeals in the strict sense, requiring demonstrated error by the primary judge.

Legislation and Cases Referenced

Legislation
- Native Vegetation Act 2003 (NSW), ss 6, 7, 9, 11, 12, 19, 34, 35, 42
- Native Vegetation Regulation 2005 (NSW); Native Vegetation Regulation 2013 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB
- Criminal Procedure Act 1986 (NSW), ss 257B, 257G
- Environmental Planning and Assessment Act 1979 (NSW)
- Threatened Species Conservation Act 1995 (NSW)
- Supreme Court Act 1970 (NSW)

Cases
- Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593
- Meissner v R (1995) 184 CLR 132
- Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
- Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213
- Director General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229
- Clark v R [2012] NSWCCA 158
- Han v R [2012] NSWCCA 257
- Charlesworth v R [2009] NSWCCA 27