Citation: Kennedy v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 107
Court: Court of Criminal Appeal, NSW
Date: 18 June 2014
Judges: Ward JA (principal judgment); Johnson J and R S Hulme AJ (agreeing)
Background
The appellant was a grazier who owned a rural property near Bendemeer, NSW. Between approximately June and August 2009, he directed his brother to clear native vegetation on the property using a bulldozer, chainsaw, and log loader. The clearing was not carried out under a property vegetation plan or development consent as required by the Native Vegetation Act 2003 (NSW).
The appellant was charged with unlawfully clearing native vegetation contrary to section 12 of the Act. After five mentions before the Land and Environment Court, his counsel entered a guilty plea on his behalf in December 2011. He was subsequently convicted and fined $40,000, and ordered to pay the prosecutor's costs.
The difficulty that emerged was that the appellant's own affidavit revealed he had pleaded guilty on a narrow and arguably mistaken basis. He understood the plea to relate only to a failure to use felled timber for on-farm construction within the time limit permitted under the routine agricultural management activities (RAMA) exception, rather than to the broader charge of unlawful clearing. The sentencing judge queried whether the plea was properly understood before proceeding to sentence.
Legal Issues
- Whether the guilty plea was made under a material misapprehension such that its acceptance occasioned a miscarriage of justice.
- Whether proposed fresh evidence on appeal would have led to acquittal at first instance, specifically evidence going to whether the vegetation cleared was "regrowth" within the meaning of section 9 of the Native Vegetation Act 2003, or whether the clearing was otherwise permitted under the RAMA exception in section 11.
- Whether the sentencing judge erred in the exercise of his discretion in imposing the $40,000 fine.
Decision
On the conviction appeal and the guilty plea
The Court of Criminal Appeal examined the circumstances surrounding the plea carefully. Although the appellant's affidavit showed a limited subjective understanding of the basis for the plea, the Court found that the plea was entered without qualification by counsel at the time it was made. The sentencing judge had taken considerable care to explore whether the appellant truly intended to maintain the plea before proceeding, and the appellant had confirmed he did. The Court found no miscarriage of justice in accepting the plea.
On the fresh evidence application
The appellant sought to rely on new evidence going to whether the cleared vegetation constituted "regrowth" under section 9, which would have rendered it outside the Act's prohibition, or whether the clearing was otherwise authorised under the RAMA exception. The Court assessed this evidence carefully but concluded it would not have led to acquittal. The agreed facts acknowledged that the overstorey included large native trees, and the evidence as a whole did not support a conclusion that the vegetation met the statutory definition of regrowth or that the RAMA exception was satisfied in the circumstances.
On the RAMA exception
The RAMA exception in section 11 of the Act permits clearing for routine agricultural management activities, including use of timber for on-farm construction, subject to conditions including that the timber be intended for use within 18 months. The critical issue was whether, at the time of clearing, the appellant had the requisite intention to use the timber on the farm within that period. The Court found the evidence did not establish that the clearing as a whole fell within the exception, and the agreed facts confirmed that the clearing was not authorised by any relevant instrument.
On sentence
The Court found no error in the sentencing discretion. The sentencing judge had taken into account mitigating factors including the degraded condition of the property, the absence of prior environmental convictions, the noxious animal infestation, and the remediation work the appellant had undertaken. The appellant raised additional matters on appeal, including OHS obligations and access difficulties arising from his injuries, but the Court observed that competing obligations under other legislation would not authorise a breach of the Native Vegetation Act 2003. The appeal on sentence was also dismissed.
Orders Made
• The appeal from both conviction and sentence is dismissed.
Key Takeaways
- A guilty plea entered by counsel without qualification binds the accused even where the accused holds a subjective misunderstanding about its basis, provided the sentencing court has taken reasonable steps to confirm the plea is maintained.
- Fresh evidence on appeal will not found a successful conviction appeal unless it would have led to acquittal at first instance; evidence that falls short of establishing an applicable statutory exception does not meet that threshold.
- Under the Native Vegetation Act 2003, the RAMA exception for use of cleared timber in on-farm construction requires that the requisite intention to use the timber within 18 months exist at the time of clearing, and the onus of establishing that intention rests on the accused.
- Obligations under other legislation, including occupational health and safety law, do not authorise clearing that would otherwise contravene the Native Vegetation Act 2003.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that where a sentencing judge has identified and weighed relevant mitigating circumstances, appellate intervention requires a demonstrated error in the exercise of the sentencing discretion, not merely a different view of the weight to be given to those factors.
Legislation and Cases Referenced
Legislation
- Native Vegetation Act 2003 (NSW), ss 9, 11, 12
- Native Vegetation Conservation Act 1997 (NSW), s 47
- Native Vegetation Regulation 2005 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB
- Environmental Planning and Assessment Act 1979 (NSW)
- Rural Fires Act 1997 (NSW)
- Rural Lands Protection Act 1998 (NSW)
- Threatened Species Conservation Act 1995 (NSW)
Cases
- 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
- Charlesworth v R [2009] NSWCCA 27
- Han v R [2012] NSWCCA 257
- Clark v R [2012] NSWCCA 158
- Elmir v R [2009] NSWCCA 22
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593
- Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271