Land and Environment Court New South Wales

• Medium Neutral Citation: Harrison v Harris (No 3) [2013] NSWLEC 140
• Hearing dates: 19, 21 (supplementary written submissions) and 22 August 2013
• Decision date: 23 August 2013
• Jurisdiction: Class 5
• Before: Pepper J

Decision

Application for a stay of orders dismissed.

• Catchwords: PRACTICE AND PROCEDURE: whether temporary stay ought to be granted in respect of a costs order and a publication order pending appeal - whether Court has power to order temporary stay of a costs order and a publication order - applicable legal principles - no stay of costs order granted - no stay of publication order granted.
• Legislation Cited: Crimes (Appeal and Review) Act 2001, s 63; Crimes (Sentencing Procedure) Act 1999, Pt 2; Criminal Appeal Act 1912, ss 2(1), 5AA, 5AB, 6(3), 10(1)(a); Land and Environment Court Act 1979, s 23; Water Management Act 2000, ss 91K(1), 353G(1)(a); Criminal Appeal Rules, r 15; Land and Environment Rules 2007, rr 5.2(2), 7.3; Uniform Civil Procedure Rules 2005, rr 36.4(2), 36.5
• Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685; Attorney-General for the State of Queensland v Fardon [2011] QCA 111; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; Environment Protection Authority v Pannowitz [2005] NSWLEC 175; Harrison v Harris [2013] NSWLEC 105; Harrison v Harris (No 2) [2013] NSWLEC 135; Heaven's Door Pty Ltd v Hillpalm Pty Ltd [2003] NSWLEC 113; (2003) 126 LGERA 319; Gosford City Council v Tauszik [2005] NSWLEC 493; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681; John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510; Kalifair Pty Ltd v DigiTech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737; Legal Services Commissioner v Madden [2008] QCA 52; New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602; O'Brien v Australian Securities and Investments Commissioner [2009] NSWCA 312; (2009) 74 ACSR 324; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 243 CLR 379; Porteous v Inspector McMartin [2005] NSWIRComm 122; R v Hilton (1987) 7 NSWLR 745; R v Velevski [2000] NSWCCA 445; (2000) 117 A Crim R 30; Rinehart v Welker [2012] NSWCA 1; (2012) 285 ALR 191; Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125; State of New South Wales v WorkCover [2000] NSWIRComm 124; X7 v Australian Crime Commission [2013] HCA 29
• Category: Interlocutory applications
• Parties: Russell Harrison (Prosecutor); Ronald Norman Harris (Defendant)
• Representation: B G Docking (Prosecutor); A A Henskens SC with S B Docker (Defendant); Crown Solicitor's Office (Prosecutor); Kemp Strang (Defendant)
• File Number(s): 50028 of 2012

EX TEMPORE Judgment

Mr Harris Seeks a Stay of a Costs Order and a Publication Order Pending Appeal

1 On 17 July 2013 the Court delivered judgment on sentence for an offence by the defendant, Mr Ronald Harris, against s 91K(1) of the Water Management Act 2000 ("the WMA") (Harrison v Harris [2013] NSWLEC 105). Mr Harris had pleaded guilty to the offence. The Court convicted Mr Harris and imposed a fine. In addition, Mr Harris was ordered to pay the prosecutor's legal costs as agreed or assessed ("the costs order") and to publish a notice in two newspapers disclosing his conviction for the offence and the penalty imposed by the Court ("the publication order"). The making of the publication order was pursuant to s 353G(1)(a) of the WMA.

2 At the sentence hearing Mr Harris agreed to the making of the publication order but not as to its terms (T 26/11/12 35.47-36.20). In particular, Mr Harris sought the addition of the following sentence:

Mr Harris was extracting the water to fill up his house dam and the channel leading to it.

3 It is apparent from the reasons contained in the judgment and the form of the publication order ultimately made, that the Court did not accept the reason proffered by Mr Harris for committing the offence. The notice ordered to be published was, however, completely silent on Mr Harris' reason for committing the offence.

4 Just as Mr Harris agreed to the making of the publication order, albeit in different terms, neither did Mr Harris oppose the making of a costs order against him. Thus in his written submissions he stated that "if the Court is minded to make a costs order against Harris in the proceedings, this is a matter which may be taken into account on penalty". This is precisely what the Court did (at [170]-[172]).

5 On 14 August 2013 an application was made to the duty judge seeking the temporary stay of the costs order and the publication order, but not the fine. The urgency of the application arose from the fact that compliance with each of the orders sought to be stayed was, Mr Harris stated in support of his application, required by either 14 or 15 August 2013. While this may have been correct in respect of the publication order, it could not have been correct in respect of the costs order, which was simply expressed as "the defendant is to pay the prosecutor's legal costs as agreed or assessed". No timeframe for payment of the prosecutor's costs was stipulated in the order (at [178(5)]).

6 Because the duty judge was not the same judge as the trial judge, the duty judge stood Mr Harris' application for a stay over to be heard by the trial judge (Harrison v Harris (No 2) [2013] NSWLEC 135). The necessity for the trial judge to deal with the application emanates from Mr Harris' reliance on r 15 of the Criminal Appeal Rules, which states as follows (emphasis added):

15 Suspension of penalty or costs pending appeal

Where a person is ordered to pay money as a penalty or for costs, the Judge of the Court of Trial may suspend the payment thereof upon such person entering into recognisances (Forms Nos XX and XXI) to prosecute an appeal and abide the judgment of the Court thereon, before such persons, in such amount and with or without sureties, or upon any other terms and conditions that such Judge directs.

7 The duty judge accepted that it was at least arguable that he was not "the Judge of the Court of Trial" for the purpose of r 15, and therefore, agreed to adjourn the temporary stay application to be listed before the trial judge, especially in light of an undertaking by the prosecutor that no reliance would be placed on any alleged failure to comply with the orders in question between 14 August 2013 and the date of the determination of Mr Harris' stay application by the trial judge.

8 The Court has been informed that a notice of intention to appeal has been filed in accordance with s 10(1)(a) of the Criminal Appeal Act 1912. Although no notice of appeal had been filed as at the date of the hearing of Mr Harris' motion, Mr Harris handed to the Court a draft notice of appeal setting out the proposed grounds of appeal. Mr Harris informed the Court that "at a minimum" the grounds articulated in that document would form the basis of the appeal. That is to say, the final form of the notice of appeal would contain those grounds and any additional grounds of appeal.

Applicable Legal Principles in Granting a Stay of Orders Made in a Summary Criminal Matter Pending Appeal

9 The parties were not able to agree on the applicable legal principles governing the granting of a stay of orders made in the Court's summary criminal jurisdiction.

10 The Court's jurisdiction in this regard is somewhat unusual insofar as the Court is a superior court of record that nevertheless exercises exclusively a summary jurisdiction in criminal matters.

11 Moreover, whereas for example s 63 of the Crimes (Appeal and Review) Act 2001 provides for a stay of Local Court sentences pending appeal, no equivalent provision applies to the Court.

12 The prosecutor furnished the Court with authorities referring to the common law insistence upon the existence of special or exceptional circumstances before bail will be granted pending the hearing of an appeal (R v Hilton (1987) 7 NSWLR 745 at 752 and R v Velevski [2000] NSWCCA 445; (2000) 117 A Crim R 30 at [9] and [21]). The prosecutor submitted that by analogy, the same test applied to the present application.

13 In Velevski, the Court cited Hilton with approval and reviewed other authorities in formulating the following propositions (at [10]-[18]):

(a) first, where an applicant has already been convicted and no longer has any presumption of innocence in his or her favour, this is a factor that weighs against the granting of bail pending appeal;

(b) second, more than an arguable point is necessary to warrant the provision of bail in these circumstances;

(c) third, the applicant must be most likely to succeed on his or her appeal. What must be established is a ground of appeal that is certain to succeed absent the need for detailed argument as to the certainty. It is not sufficient to show a merely arguable ground of appeal, or even one that has a reasonable prospect of success; and

(d) fourth, where the prospects of success on the appeal are put forward as a special circumstance.

14 Plainly enough, as these propositions demonstrate, decisions such as Velevski and Hilton are distinguishable. At a general level, they are distinguishable to the extent that those cases concern the granting of bail pending the hearing of an appeal. At a more particular level, they are distinguishable to the extent that no custody considerations arise in the present case in light of the sentence imposed. In my view, these authorities provide no meaningful assistance.

15 In my opinion, the principles to be applied in the present application are not analogous to those applied to an application for a grant of bail pending a hearing of a criminal appeal for the reasons given above. I am reinforced in this view by the decision in O'Brien v Australian Securities and Investments Commissioner [2009] NSWCA 312; (2009) 74 ACSR 324. That case concerned an application seeking a stay of orders disqualifying three directors from managing a corporation for a period of five years pending the determination of an appeal against the orders. The Court expressly rejected the Australian Securities and Investments Commission's submission that the relevant principles were those applicable to a grant of bail pending the hearing of a criminal appeal (at [44]).

16 The Court made reference to the decision in Hilton and noted that the common law principle expressed in that case no longer applied because the question of bail pending an appeal was now exclusively the subject of the terms of the Bail Act 1978. The Court further stated that to equate civil penalty proceedings with criminal proceedings was, for the purpose of an application for a stay pending appeal, misconceived (at [47]).

17 Mr Harris relied upon the decision of Gosford City Council v Tauszik [2005] NSWLEC 493 as authority for the proposition that exceptional or special circumstances were not required by the Court in order to extend the time for compliance with the orders made by the Court pending an appeal in criminal proceedings. In Tauszik a stay was sought pursuant to the institution of an appeal by the defendant in the Court of Criminal Appeal from his conviction and from orders requiring the defendant, within a month of making the orders, to pay a fine of $25,000, to pay the costs of the proceedings, to plant and maintain two Norfolk Island Pine trees on his property and to lodge a bond with the prosecutor of $10,000. The Court resolved the application by extending the time for compliance with the sentence orders under Pt 1 r 8 of the Land and Environment Court Rules 1996 until after such time as the defendant had prosecuted his appeal in the Court of Criminal Appeal. The Court made an order in the following terms (at [23]):

Conditional upon the defendant diligently prosecuting his appeal to the Court of Criminal Appeal, time for compliance with the Orders and Further Orders made on 22 April 2005 be extended until 30 days after abandonment of the appeal or determination by the Court of Criminal Appeal.

18 But, as the facts of that case reveal, Tauszik provides no guidance in resolving the issue of the appropriate test to be applied where a stay is sought of sentencing orders pending an appeal to the Court of Criminal Appeal from this Court. In that decision discussion as to the applicable test did not arise and Cowdroy J was able to determine the matter by other means.

19 In O'Brien, also relied upon by Mr Harris, Tobias JA applied the broad discretionary approach advocated in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 (at [23]-[26] and [43]) in refusing to grant a stay. A similar approach has been taken in subsequent civil cases (New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 at [83]-[104]; Legal Services Commissioner v Madden [2008] QCA 52 and Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at [11]-[18]). But O'Brien and cases of its ilk must be treated with caution in their application to the present case to the extent that they concerned applications for stays in a civil context.

20 Neither party was able to provide to the Court any authority since 1985 that had applied the requirement of special or exceptional circumstances as a threshold test in relation to an application for a temporary stay which did not concern the granting of bail.

21 Rather, it appears that the principles applicable to the determination of applications for stay in criminal appeals before a Court exercising summary jurisdiction in this state are those operating in cases of appeals in non-criminal, or civil, matters (Porteous v Inspector McMartin [2005] NSWIRComm 122 at [8] and [13] and State of New South Wales v WorkCover [2000] NSWIRComm 124 at [15]). If so, it will not be necessary for Mr Harris to demonstrate special or exceptional circumstances in order to obtain a stay of the orders he complains of (Alexander at 693-694).

22 Curiously, this has resulted in a different test for appeals from a trial judge to the Court of Appeal, or in this instance the Court of Criminal Appeal, than the test for the granting of a stay from an appellate court to the High Court pending a grant of special leave. In the latter, special or exceptional circumstances must be shown before a stay will be granted (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 684-685, followed by the Court of Appeal in Rinehart v Welker [2012] NSWCA 1; (2012) 285 ALR 191 at [41] overturning its earlier decision in John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510). Given that the jurisdiction to grant a stay is, at any level of the court hierarchy, an extraordinary one (as recognised in Rinehart at [43]), it is difficult to conceive of the rationale behind the different approaches. Nevertheless, the distinction continues to be maintained in New South Wales (see, for example, Heaven's Door Pty Ltd v Hillpalm Pty Ltd [2003] NSWLEC 113; (2003) 126 LGERA 319 at [22]) and in the absence of any authority directing me to adopt a different course, I must maintain it.

23 Because none of the authorities furnished to the Court demonstrate any requirement for special or exceptional circumstances to be established for a stay pending appeal in respect of a criminal sentence imposed in the Court's summary jurisdiction, I propose to adopt the course followed in Porteous, and apply the test in Alexander.

24 The principles expounded in Alexander may be summarised as follows (see further Kalifair Pty Ltd v DigiTech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 at [18] and O'Brien at [24]-[26]):

(a) an applicant for stay is not required to demonstrate any special or exceptional circumstances;

(b) it is sufficient to demonstrate a reason or an appropriate case to warrant the exercise of discretion in his or her favour. Prima facie a successful party is entitled to the benefit of the judgment obtained by him or her and to commence with the presumption that the judgment is correct;

(c) the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties. The mere filing of an appeal will not, of itself, provide a sufficient reason;

(d) these factors will include an examination of the seriousness of the findings, the public interest, and the harm, including reputational harm, to the applicant, if the stay if refused. Thus a court will weigh considerations such as the balance of convenience and the competing rights of the parties;

(e) one aspect of the public interest is whether the granting of the stay would permit the criminal activity to continue (Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125 at 132);

(f) a court will make a preliminary assessment about whether the applicant has an arguable case on appeal; and

(g) where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, a court will normally exercise its discretion in favour of granting a stay.

25 But if this approach is incorrect and the special and exceptional circumstances test applies, then for the reasons that follow I find that the test cannot be satisfied by Mr Harris either with respect to the costs order or the publication order, and the application must be dismissed. This conclusion assumes, of course, that the Court has the power to grant a stay in respect of each order, a matter that is elaborated upon below.

No Stay of the Costs Order

26 As a threshold issue the question of whether the Court has the power to stay the costs order arose.

27 Mr Harris submitted that pursuant to r 15 of the Criminal Appeal Rules the Court had such a power. The prosecutor argued that r 15 did not apply because the Court had not ordered Mr Harris to "pay money...for costs" insofar as the prosecutor did not obtain an order for payment of "such costs as the Court specifies", that is to say, a specified quantum of money.

28 In my opinion, there is no warrant for the restriction placed by the prosecutor on the construction of the words "where a person is ordered to pay money as a penalty or for costs" contained in r 15. The prosecutor's submission ignores the word "or" in the rule. On any reading, r 15 is engaged if a court orders a person, in this case Mr Harris, "to pay money...for costs". This is exactly what the Court ordered (at [178(5)]). As counsel for Mr Harris pithily submitted, the payment of the costs was to be made in money and not "chickens". It is not necessary, in my opinion, that a specific quantum of costs be ordered by the Court in order to enliven r 15.

29 Mr Harris submitted that it will be open to the Court of Criminal Appeal to determine that, having regard to the objective seriousness of the offence, a costs order is not warranted. In the circumstances, it would therefore be "wasteful" of the parties' resources to proceed to an assessment of costs while the appeal is being determined. The 'wastefulness' is said to arise as a result of irrecoverable legal fees occasioned by the costs assessment process. Accordingly, the more sensible, pragmatic and "less wasteful" approach is to await the outcome of the appeal before any costs order is enforced.

30 Having regard to the principles articulated in Alexander, I disagree for the following reasons:

(a) first, Mr Harris' prospects of overturning the costs order are, in my view, remote. This is because not only are such orders routinely made upon conviction for an environmental offence, but Mr Harris tacitly accepted the making of such an order by the Court at the sentence hearing, presumably in order to get the benefit of the submission that the costs order was a matter to be taken into account in determining the appropriate penalty to be imposed on him, which it was and which he did. Mr Harris appears now to be traversing the sentencing position he previously encouraged the Court to accept insofar as he now submits that no costs order was warranted. And to the extent that he contends that the sentence imposed was "manifestly excessive" (ground 16 of the draft grounds of appeal), if successful this is only likely to result in a decrease in the amount of the fine, if any, that he is ordered to pay;

(b) if costs are assessed, the order takes effect as at the date when the relevant costs assessor's certificate is filed (r 5.2(2)(h) of the Land and Environment Rules 2007 ("the LEC Rules") picking up r 36.4(2) of the Uniform Civil Procedure Rules 2005 ("the UCPR")). This is not likely to occur for a considerable period of time;

(c) although it is readily inferred by the Court that fees will be additionally incurred by the parties occasioned by the costs assessment process, first, no attempt has been made to quantify these additional costs and therefore the Court does not know how "wasteful" it would be and second, in the absence of any evidence the Court does not know how burdensome it would be on Mr Harris to refuse a stay of the costs order; and

(d) this argument can be raised every time a court makes a costs order where the costs are to be assessed. Absent something more, it is insufficient to justify a stay of the costs order pending appeal.

31 I therefore decline to grant a stay in respect of the costs order.

No Stay of the Publication Order

32 A question as to the Court's power to grant a stay in respect of the publication order was also highlighted by the application.

33 I reject the argument by Mr Harris that the making of the publication order, insofar as the order stated that (at [178(6)]) Mr Harris "at his own expense" was to place a notice in the form attached to the judgment in the publications specified, meant that the publication order was an order "to pay money as a penalty" for the purpose of r 15 of the Criminal Appeal Rules.

34 True it is that in order for the notice to be placed in the publications specified, money would have to be paid by Mr Harris in order to effect this outcome. But compliance with the order is achieved by the placing of the notice in the publications; compliance is not achieved merely by the payment of money by him. The order was not, therefore, one that can be properly characterised as an order "to pay money as a penalty". Rule 15 of the Criminal Appeal Rules does not apply.

35 The prosecutor submitted that the Court of Criminal Appeal could not entertain an appeal against the publication order because it was not a "sentence" within the meaning of that Criminal Appeal Act, and therefore, this Court had no power to grant a stay in respect of an order against which no appeal lay.

36 Section 2(1) of the Criminal Appeal Act defines "sentence" to mean:

"Sentence" means:

(a) any order made by the court of trial on convicting a person of an offence, including:

(i) any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order or home detention order and any sentence of imprisonment whose execution is suspended), and

(ii) any community service order, and

(iii) any good behaviour bond, and

(iv) any fine,

imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999, or

(b) any order made by the court of trial in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or

(c) any order made by the court of trial in respect of a person under section 12 or 17A of the Crimes (Sentencing Procedure) Act 1999 on convicting the person of an offence, or

(ca) any order made by the court of trial, after a person's conviction for an offence, revoking a good behaviour bond and any order made by the court of trial as a consequence of the revocation of the good behaviour bond, or

(d) any order made by the court of trial imposing a limiting term of imprisonment on a person under section 23 (1) of the Mental Health (Forensic Provisions) Act 1990, and any other order or penalty made or imposed by the court of trial in respect of the person under section 23 (2) of that Act, or

(e) any order made by the court of trial in respect of a person under section 39 of the Mental Health (Forensic Provisions) Act 1990, or

(f) any direction for compensation made by the court of trial in respect of a person under section 94 (Directions for compensation for injury) or 97 (Directions for compensation for loss) of the Victims Rights and Support Act 2013, or

(g) any order for restitution made by the court of trial in respect of a person under section 43 of the Criminal Procedure Act 1986, or

(h) any order for the payment of costs made by the court of trial in respect of a person under Division 3 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986, or

(i) any child protection registration order made under section 3D of the Child Protection (Offenders Registration) Act 2000, or

and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction.

37 Appeals in criminal cases dealt with by the Supreme Court in its summary jurisdiction are dealt with under s 5AA of the Criminal Appeal Act. That provision relevantly states:

5AA Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction

(1) A person:

(a) convicted of an offence, or

(b) against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or

(c) in whose favour an order for costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

38 Section 5AB of that Act provides:

5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction

Section 5AA applies to and in respect of a person:

(a) convicted of an offence, or

(b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or

(c) in whose favour an order for costs is made,

by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court.

39 Accordingly, by reason of s 5AB, s 5AA applies to an appeal to the Court of Criminal Appeal from a decision of this Court in its summary jurisdiction.

40 Part 2 of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") applies to "Penalties that may be imposed". These penalties relevantly concern custodial sentences (Div 2), non-custodial alternatives (Div 3), fines (Div 4) and non-association and non-association and place restriction orders (Div 4A). The Part does not expressly refer to publication orders.

41 An issue arises, therefore, whether the words "imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999" in paragraph (a) to the definition of "sentence" in s 2(1) of the Criminal Appeal Act, are words of limitation that exclude the publication order from the definition of "sentence" in that Act. If so, it is arguable that the Court of Criminal Appeal has no power to entertain an appeal against the making of the publication order.

42 Again, neither party were able to assist the Court in the resolution of this question by the provision of any relevant authorities.

43 Although, as is apparent from the reasons below it ultimately does not matter, I am inclined to accept the submission of the prosecutor that a publication order does not fall within the definition of "sentence" in the Criminal Appeal Act.

44 Commencing with the text of the definition of that term in s 2(1) of the Criminal Appeal Act (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 at [14]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]; Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 at [23], [40], [68] and [88]; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 243 CLR 379; X7 v Australian Crime Commission [2013] HCA 29 at [25] and Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179 at [22]-[23]), the examples given in subparagraphs (i) to (iv) of the definition appear to be illustrations of the orders that may be made by the court at first instance that are imposed under Pt 2 of the CSPA. Deleting that subordinate clause from the definition of "sentence" results in a definition that can only be construed as being restricted to "any order made by the court of trial on convicting a person of an offence...imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999". This, as stated above, does not include a publication order.

45 A contextual analysis of the definition of "sentence", having regard to the scope and purpose of both the Act, ss 5AA and 5AB and the definition of the term (Alcan at [47]; Cross at [23]-[24]; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 quoted in Baini at [42]), does not derogate from this view insofar as the further meanings given to the term in paragraphs (b) to (i) of the definition are careful to refer only to orders made under the criminal legislation expressly referred to therein. In my view, no objective legislative intention is evinced permitting a more inclusive and plenary definition of that term. Rather, the term "sentence" is to be construed exclusively in terms of the orders made under the stipulated enactments.

46 But in my opinion this is not necessarily the end of the matter. The making of a publication order can be considered to be an aspect of the sentence imposed on a defendant such that it is embedded in the quantification of the nominated fine. In order for the Court to consider whether or not the penalty imposed on Mr Harris is manifestly excessive (ground 16 of the draft grounds of appeal), the publication order must therefore be regarded as an element of the fine, and, albeit indirectly, is accordingly amenable to review by way of appeal under s 2(1)(a)(iv) of the Criminal Appeal Act as part of any review of the fine. Were it otherwise, the Court of Criminal Appeal would not be able to properly form the opinion under s 6(3) of the Act that some other sentence, whether more or less severe, was warranted in law and should have been passed.

47 Consequently, I do not accept the prosecutor's submission that this Court has no power to stay the making of the publication order on the ground that the Court of Criminal Appeal has no jurisdiction to entertain an appeal against the making of the publication order.

48 It is therefore unnecessary for me to determine whether an alternative power resides in this Court to stay the publication order pursuant to s 23 of the Land and Environment Court Act 1979, or to extend the time for compliance with the order until after the determination of the appeal, in the manner carried out in Tauszik, pursuant to either r 36.5 of the UCPR or r 7.3 of the LEC Rules.

49 In any event, adopting the reasons below, I would be disinclined to extend the time even if I am wrong in my conclusion that the Court has the power to stay the operation of the publication order.

50 Mr Harris relied on an affidavit sworn by him on 12 August 2013, in which he stated that if he was required to comply with the publication order before the appeal was determined "it would have an adverse impact on my reputation, which will render any appeal against that order nugatory".

51 In response, the prosecutor relied on two affidavits by Mr James Weavers, affirmed 14 and 22 August 2013, respectively. Mr Weavers is a paralegal employed in the Crown Solicitor's Office of New South Wales who has assisted with the carriage of this matter on behalf of the prosecutor.

52 In his first affidavit, Mr Weavers deposed that had Mr Harris sought to comply with the publication order, the relevant notice directed by the Court to be published would have had to have been provided to The Land by 9 August 2013 and the The Riverine Grazier by 12 August 2013. That is to say, prior to the application to the duty judge made on 14 August 2013.

53 In his second affidavit Mr Weavers deposed that enquiries had been made revealing that, as a consequence of publicity surrounding the conviction and sentence of Mr Harris, articles about the decision had appeared in The Weekly Times (with an estimated circulation of 168,000 readers), The Daily Advertiser (with an average weekly readership of 162,000 people) and the Cowra Community News (with an average weekly readership of 2,000 to 3,000 people). Copies of these articles were attached to Mr Weavers' second affidavit. It is fair to say that they reflected adversely on Mr Harris.

54 More problematic, the articles appearing in The Daily Advertiser and the Cowra Community News appeared to be based on a media release from the NSW Department of Primary Industries dated 19 July 2013, which contained several inaccuracies that were contrary to findings made in the judgment. These were: first, that the offence was committed at a time of a severe water shortage; and second, albeit by way of imputation, that Mr Harris had tampered with the meter for the purpose of stealing water. Both are wrong.

55 As a consequence of the publication of the judgment on the internet and the publication of these articles, the prosecutor submitted that Mr Harris' reputation had already suffered damage, and therefore, that a refusal to stay the publication order would not render nugatory the subject matter of the appeal.

56 In response to the material contained in Mr Weavers' affidavits, Mr Harris submitted that:

(a) first, it could not be assumed that the published articles would reach the same audience as The Land and The Riverine Grazier. Therefore, further harm to Mr Harris' reputation would occur by reason of compliance with the publication order;

(b) second, because the notice the subject of the publication order was in the form of a Court order, it would carry more weight in the eyes of the public than the content of the articles published to date and therefore be potentially more damaging; and

(c) third, compliance with the publication order would only serve to perpetuate the factual errors in the media release repeated in, and reinforced by, the published articles.

57 I do not accept, as a matter of inference, the latter two submissions made by Mr Harris. If anything, the publication of the Court ordered notice would assist in correcting the errors contained in the published articles insofar as there is neither a mention of a severe water shortage at the time of the commission of the offence, nor is a reason given for Mr Harris' commission of the offence.

58 In respect of the first reason, I found the evidence given by Mr Weavers in his second affidavit to be persuasive. While I accept that it cannot be assumed that the readership of the various publications is the same, it is nevertheless clear that harm to Mr Harris' reputation has in all likelihood already been inflicted.

59 Mindful of the factors contained in Alexander and subsequent authorities, the Court refuses to exercise its discretion to grant a stay of the publication order. This is because:

(a) first, Mr Harris agreed that there ought to be an advertisement, the only matter of controversy being that he sought the inclusion of the additional sentence explaining his reason for committing the offence. Although I am prepared to find that at least some of the proposed grounds of appeal are arguable, I do not accept that Mr Harris' prospects of success on appeal are such that the Court of Criminal Appeal will quash the making of the publication order in its entirety. The best outcome that Mr Harris can hope for is the inclusion of the additional sentence in the notice, which is unlikely to repair the reputation damage caused by the commission of the offence to which, it must be recalled, Mr Harris has pleaded guilty;

(b) second, it follows that the subject matter of the appeal will not be rendered nugatory if no stay of the publication order is granted. Having said this, it must be acknowledged that no prejudice would flow to the prosecutor if a stay of the order was granted; and

(c) third, in my opinion, the public interest warrants compliance with the publication order insofar as the order is necessary to achieve the required element of general deterrence, which is an aspect of Mr Harris' punishment (Environment Protection Authority v Pannowitz [2005] NSWLEC 175 at [69]).

60 Finally, I note that although Mr Harris did not act to place the notices in the specified publications in the time required by the order, I accept his explanation for not doing so, namely, that he needed to obtain advice, including advice from senior counsel, as to the prospects of successfully appealing the sentence and, it may be presumed, obtaining a stay of the orders.

Costs

61 The prosecutor sought his costs of the stay application. Mr Harris accepted that if he lost the application the appropriate order would be that he suffer an adverse costs order. However, Mr Harris submitted that these costs should exclude the costs of the second day of the hearing of the stay application which was necessitated only because of the late filing by the prosecutor of Mr Weavers' second affidavit.

62 I agree. The explanation provided by the prosecutor, namely, that the second affidavit of Mr Weavers was necessitated only as a result of oral submissions made by Mr Harris on the first day of the hearing of the stay application cannot be maintained when regard is had to the content of Mr Harris' affidavit and his written submissions filed on 15 August 2013. Both plainly put the prosecutor on notice that the issue of the potential damage to Mr Harris' reputation absent a stay of the publication order would be agitated. There is, therefore, no sound reason why Mr Weavers' second affidavit could not have been filed and served earlier. Had this occurred, a second day of oral argument would not have been required.

Orders

63 Consistent with the reasons given above, the orders of the Court are as follows:

(1) the defendant's application is dismissed; and

(2) the defendant is to pay the prosecutor's costs of the application, excluding the costs of 22 August 2013.

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Decision last updated: 27 August 2013