Bentley v Gordon

Crimes (Sentencing Procedure) Act 1999 s 3A ((a), (b), (e), (f) and (g)), s 4(1), s 17, s 18(1) s 19(1), s 21A(2)(g), s 21A(3)(e), s 21A(3)(i), s 22 s 23(1), cl 45(2) of schedule 2 Criminal Procedure Act 1986 pt 5 of Chapter 4, s 254 LEGISLATION CITED: Fines Act 1996 Land and Environment Court Act 1979 s 41, s 21(i) National Parks and Wildlife Act 1974 s 5, s 118A(2) s 118A(2)(b), 118A(3), s 175(1), 176(1) Threatened Species Conservation Act 1995 s 4, s 14

Axer Pty Limited v Environment Protection Authority [1993] 113 LGERA 357; Camilleri's Stock Feeds Pty Limited v Environment Protection Authority [1993] 32 NSWLR 683; Director General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171; Environment Protection Authority v Ampol [1995] NSWLEC 16 (22 February 1995); Environment Protection Authority v Brir Pty Limited [1995] NSWLEC 15 (22 February 1995); Environment Protection Authority v Capdate Pty Limited [1993] 78 LGERA 349; Hansford v His Honour Judge Neesham [1995] 2 VR 233; Hoare v R [1989] 167 CLR 348; Ibbs v R [1987] 163 CLR 447; Law v Deed [1970] SASR 374; Lloyd J.R v Jobson [1989] 2 QR 464; Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659; CASES CITED: Mickelberg (1994) 13 A Crim R 365; Neal v R (1982) 149 CLR 305; R v Cameron [2002] 209 CLR 339; R v Gallagher (1991) 23 NSWLR 220; R v H [1980] 3 A Crim R 53; R v Morabito (1992) 62 A Crim R 82; R v Oliver [1987] A Crim R 174; R v Rushby [1977] 1 NSWLR 594; R v Sharma [2002] 54 NSWLR 300; R v Thomson (2000) 49 NSWLR 383; 115 A Crim R 104; Veen v R No 1 [1979] 143 CLR 458; Veen v R No 2 [1988] 164 CLR 465; Wong v R [2001] 207 CLR 584

DATES OF HEARING: 21.11.05, 22.11.05 EX TEMPORE JUDGMENT DATE : 11/22/2005

PROSECUTOR Mr PM Strickland SC SOLICITORS Department of Environment and Conservation LEGAL REPRESENTATIVES:

DEFENDANTS Mr Hugh Gordon (in person) SOLICITORS N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

HIS HONOUR: A threatened species of plant is destroyed 1 Black-eyed Susan is the common name of a species of plant. It is a slender, spiralling shrub with mature stems to 80 centimetres long. It may form single clumps with a number of flowering stems that emerge at one point from a single root stock or there may be plant clumps separated above the ground with connected roots. The flowers have four petals and range in colour from white through to pink to dark purple, with a black centre or eye.

2 The plant species has the scientific name Tetratheca juncea. The species is endemic, that is native only, to New South Wales. Unfortunately, Tetratheca juncea is now threatened in New South Wales. It has been listed as a vulnerable species under the Threatened Species Conservation Act 1995 ("the TSC Act"). A vulnerable species is one which the Scientific Committee established under the TSC Act considers is likely to become endangered in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate: s 14 of the TSC Act. 3 A key circumstance and factor threatening Tetratheca juncea is habitat clearance. Habitat clearance results in direct destruction of individual plants, fragmentation of populations of plants and reduction of the range and distribution of the species.

4 Tetratheca juncea has been declared a vulnerable species because: "(a) the extent of the area where it is found has significantly contracted. Historically it was found between Sydney and Port Stephens and from Port Stephens to Lake Macquarie and now it is only found from Port Stephens to Lake Macquarie, and

(b) the areas where it grows have often been disturbed as they are areas which are particularly vulnerable to being cleared for development purposes." 5 Between 1 August 2001 and 7 December 2001 the defendant, Hugh Charles Gordon, slashed, cleared and excavated land at Redhead in the local government area of Lake Macquarie. In doing so, he destroyed and damaged numerous plants of the vulnerable species Tetratheca juncea. 6 The defendant has been charged with picking a threatened species contrary to s 118A(2) of the National Parks and Wildlife Act 1974 ("the NPW Act"). 7 The defendant has pleaded guilty to the charge. The Court's task is to determine the appropriate sentence for the defendant's crimes.

The charge 8 The defendant, Hugh Charles Gordon, is charged with the offence that:

"between 1 August 2001 and 7 December 2001 at Redhead in the State of New South Wales he did pick a threatened species being a plant, to wit, Tetratheca juncea , contrary to s 118A(2) of the National Parks and Wildlife Act, 1974. Particulars: Land on which Tetratheca juncea located: Lot 1 DP 42613 and Lot 4 DP 248860."

9 The defendant on 18 December 2003 through his then counsel, Mr P Larkin, entered a plea of guilty. The offence provisions 10 Section 118A(2) of the NPW Act provides:

"A person must not pick any plant that is of or is part of a threatened species, an endangered population or an endangered ecological community." 11 A threatened species in the NPW Act has the same meaning as in the TSC Act: s 5 of the NPW Act. A threatened species in the TSC Act means:

"A species specified in Pt 1 or 4 of Schedule 1, or Schedule 2": s 4 of the TSC Act.

Schedule 1 of the TSC Act lists endangered species. Schedule 2 lists vulnerable species. 12 Tetratheca juncea is listed as a vulnerable species under Schedule 2 of the TSC Act. 13 To pick a plant that is a threatened species means to "gather, pluck, cut, pull up, destroy, poison, take, dig up, remove or injure the plant or any part of the plant": s 5 of the NPW Act. 14 Contravention of s 118A(2) of the NPW Act is an offence: s 175(1) of the NPW Act. 15 The penalty to be imposed for an offence against s 118A(2) of the NPW Act is the penalty provided in that Act: s 4(1) of the Crimes (Sentencing Procedure) Act 1999.

16 The penalty prescribed in s 118A(2) of the NPW Act differs depending upon whether the plant picked is an endangered species or a vulnerable species. For a vulnerable species, the penalty is 500 penalty units or imprisonment for one year or both: s 118A(2)(b) under the heading Penalty. 17 Currently, there is an additional penalty of 50 penalty units in respect of each whole plant that was affected by or concerned in the actions that constituted the offence. However, at the time the offence in this case was committed, between August to December 2001, the additional penalty did not apply. Hence for this defendant, the penalty is limited to 500 penalty units or imprisonment for one year or both: see s 19(1) of the Crimes (Sentencing Procedure) Act 1999. 18 A penalty unit is the equivalent of $110: s 17 of the Crimes (Sentencing Procedure) Act 1999. Hence, 500 penalty units equates to $55,000. This is the maximum penalty: s 18(1) of the Crimes (Sentencing Procedure) Act 1999. 19 There are a number of statutory defences to a prosecution for an offence against s 118A(2) specified in 118A(3) of the NPW Act. However, as the defendant has pleaded guilty, none of these defences are relevant in this case.

The criminal procedure provisions 20 Proceedings for an offence against the NPW Act may be dealt with summarily before this Court: s 176(1) of the NPW Act. Such proceedings are assigned to Class 5 of the Court's jurisdiction: s 21(i) of the Land and Environment Court Act 1979 (the LEC Act). 21 In proceedings in Class 5 of the Court's jurisdiction part 5 of Chapter 4 of the Criminal Procedure Act 1986 (the CP Act) applies: s 41 of the LEC Act. 22 The payment of any money ordered by the Court to be paid as a penalty or for costs is taken to be a fine within the meaning of the Fines Act 1996: s 254 of the CP Act.

Defendant's relationship to owner of land and development of that land 23 A corporation, BGP Properties Pty Limited (BGP), has been the owner of the site since 26 September 2000. Mr Gordon is a former owner of the site. He purchased the site in February 1997 from Pacific Seaboard Transport and Finance Corporation Pty Limited who retained a mortgage over the site. On 26 September 2000, Pacific Seaboard Transport and Finance Corporation Pty Limited exercised its power of sale as mortgagee and sold the site to BGP. 24 Mr Gordon first became involved with the site in 1997 as its owner and as a director of Q Properties Pty Limited which managed the site. Mr Gordon intended that Q Properties would carry out development of the site. At the time of the incident in August to December 2001, Mr Gordon was the project manager for BGP at the site. He had been in that position since March 2001. He described his responsibilities in that role as "the direction of sub consultants, …the day to day control of the site and the development of future development plans." 25 Mr Gordon managed the site for BGP and took upon himself decision-making authority in relation to BGP. He was paid in relation to his work for BGP by another company, Whet Investments Limited, who paid Mr Gordon through another company, Dellwane Pty Limited, acting as trustee of the Gordon family trust. Mr Gordon had general instructions from BGP to undertake work necessary to prepare and lodge rezoning applications or development applications.

The incident 26 Between 1 August 2001 and 7 December 2001, the defendant caused vegetation to be cleared in a number of areas at the site. In the course of investigating the incident, the different areas where clearing occurred were labelled A through to E. I will refer to each of the sites using these labels. Site A 27 Site A is in the north-eastern part of the site. The southern portion of that site borders an area of Tetratheca juncea habitat. Clearing in site A involved picking Tetratheca juncea plants in the southern portion of site A. The vegetation in site A was slashed using a tractor with a flail mower, being cleared to just above ground level. This occurred between September 2001 and the end of November 2001. 28 On 25 October 2001, officers from the National Parks and Wildlife Service ("NPWS"), including a Ms Deborah Stevenson, inspected the site with Mr Gordon. During that inspection Mr Gordon told the NPWS officers that the vegetation in site A had been cut with a tractor and flail mower about three weeks prior to the inspection. Mr Gordon claimed the vegetation had been cleared by an unnamed contractor supervised by himself. However, Mr Gordon later admitted that he had supervised control and done the clearing work in that part of the site. 29 Mr Gordon was aware at the time of the clearing of site A that there was Tetratheca juncea habitat immediately to the south of site A. 30 Mr Gordon claimed slashing was undertaken in site A to reduce the volume and height of the native vegetation, to enable access to or through that area, to establish a boundary between that particular area and areas considered as habitat of threatened species and as part of on site investigations necessary to provide sufficient information to support a development application or a rezoning application. 31 When Mr Gordon was asked about the irregular shape of the clearing in site A, Mr Gordon claimed the shape was determined to the west by a forested area, to the south by what Mr Gordon determined was the boundary of the Tetratheca juncea habitat and to the east by the fact that the area was too wet for Mr Gordon to use the clearing equipment in that area. 32 Mr Gordon identified the vegetation communities in the areas around site A and established the boundaries of the area to be cleared. Site B 33 Site B is in the central section of the northern half of the site. The whole of site B was Tetratheca juncea habitat at the time of the clearing. Clearing in that area involved picking Tetratheca juncea throughout the cleared site. Vegetation at site B was cut to a low height above the ground by a tractor and flail mower. Vegetation that was uprooted was left in situ. 34 Mr Gordon supervised and authorised the work. The extent of the clearing in that site was determined by Mr Gordon based on what he told investigators he believed to be the transition between dry heath communities and Tetratheca juncea habitat. 35 After the clearing, NPWS officers observed Tetratheca juncea plants along the entire perimeter of site B. Mr Gordon claimed site B was cleared to lower the density of bitou bush, for weed control especially along the sewer line, to provide clear access into the northern part of site B between the Tetratheca juncea habitat, to delineate the Tetratheca juncea habitat areas and as an investigation area for potentially useable land. Vegetation cut in site B was left in situ. 36 In a record of interview after the clearing Mr Gordon identified site B as an area where Tetratheca juncea may have been picked.

Site C 37 Site C is generally south-west of site B in the central section of the site. It extends from the western boundary of that part of the site across the central section of the site. The south-eastern section of site C, being in the central portion of the site, is Tetratheca juncea habitat. 38 Clearing in that area involved picking Tetratheca juncea. The site was cleared around the same time as sites A and B. Vegetation was removed from site C with a tractor and a flail mower, being cleared to just above ground level by Mr Gordon. In parts of site C, instead of using the tractor and flail mower, Mr Gordon used a 12 tonne excavator. He claims this was in areas that were heavily weed infested. 39 Mr Gordon authorised and undertook the clearing work. Mr Gordon marked the boundaries of the area to be cleared. 40 After some vegetation was removed from site C, there were remnants of vegetation scattered across the site. In some areas the vegetation was piled in wind rows. The picking left areas of bare mineral earth. In other areas, the vegetation was cut to a low height above the ground. When inspected on 9 November 2001 there were heavy vehicle track marks in the soil on site C and an area was seen that had been excavated to about 1 metre deep with water pooled in it. 41 After the clearing, NPWS officers observed Tetratheca juncea plants along the northern and eastern edges of site C. In parts of site C Mr Gordon claimed there was a heavy weed infestation. In other parts of site C Mr Gordon identified areas as Tetratheca juncea habitat. Mr Gordon claimed he did not clear those areas on the basis that they contained clumps of Tetratheca juncea.

42 In another part of site C there is an area used as an airstrip. This area had been cleared prior to the offence period. In another part of site C there were car bodies and motor bikes that had been illegally dumped on the site. Finally, there are a number of test pits that were dug by Mr Gordon. 43 Mr Gordon claimed site C was cleared as part of the same site investigations as were carried out with sites A and B to delineate areas of threatened species habit and to effect weed control.

Site D 44 Site D is in the southern area of the site. The prosecutor does not allege that Tetratheca juncea was picked by the defendant during the offence period in site D. Its relevance is simply as a control for subsequent investigations. Site E 45 Site E is in the north-western corner of the site. Site E is bounded to the north and west by the site's boundary. The eastern section of site E is Tetratheca juncea habitat. Clearing of site E involved picking Tetratheca juncea in the eastern section of site E. Tetratheca juncea plants were observed along the eastern edge of site E after the clearing. Vegetation was cleared from site E in September and October 2001. Vegetation in site E was removed using an excavator. 46 Mr Gordon authorised and did the clearing work. 47 Vegetation cleared from that area was left in situ with remnants of vegetation scattered across the site. The picking left areas of bare mineral earth exposed across that site. 48 Prior to the clearing Mr Gordon himself identified what he considered to be the boundary of Tetratheca juncea habitat along the eastern edge of site E.

49 On 1 November 2001, NPWS officers, including Ms Deborah Stevenson, saw heavy vehicle track marks in site E and a number of Tetratheca juncea plants near the eastern edge and within the disturbed areas on the eastern side of site E. Mr Gordon claimed site E was cleared as part of the site investigations to establish land capability, to establish boundaries between threatened species habitat, and because of weed infestation in an area that had been previously disturbed through sand mining.

Tracks 50 Prior to clearing sites A to E, Mr Gordon had created some tracks at the site using machines to clear vegetation. Mr Gordon claimed this was to establish the existence of different communities of threatened species. Other tracks at the site were in existence before the commencement of the period of the offences, that is, before 1 August 2001. However, prior to clearing sites A to E, Mr Gordon traversed all the existing tracks at the site with machinery. 51 At least one track created by Mr Gordon between sites A and B between 1 August 2001 and 7 December 2001 involved picking Tetratheca juncea with those plants being cut to make the track.

Purposes of sentencing 52 Section 3A of the Crimes (Sentencing Procedure) Act 1999 states the purposes for which the Court may impose a sentence on the defendant to be as follows: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of crime in the community." In Veen v R (No 2) (1988) 164 CLR 465 at 476, Mason CJ, Brennan, Dawson and Toohey JJ stated:

"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." 53 Section 3A of the Crimes (Sentencing Procedure) Act 1999 commenced on 1 February 2003. It applies to the determination of a sentence thereafter for an offence, whenever committed, unless before 1 February 2003 the Court has convicted the person being sentenced of the offence or the Court has accepted a plea of guilty to the offence and the plea has not been withdrawn: cl 45(2) of schedule 2 of the Crimes (Sentencing Procedure) Act 1999. 54 In this case, the offences were committed between 1 August 2001 and 7 December 2001, that is, before 1 February 2003. However, the Court has not convicted the defendant of the offences before 1 February 2003. The defendant entered a plea of guilty on 18 December 2003. However, this is after 1 February 2003. Accordingly, s 3A does apply to the determination of the sentence for the defendant. 55 In this case, the purposes in paras (a), (b), (e), (f) and (g) of s 3A are of particular relevance. 56 The sentence of the Court is an important denunciation of the conduct of the defendant. 57 The sentence must also serve as a public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598. 58 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171, (27 September 2002)at paras 85 and 93 per Lloyd J. 59 The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and important components of it such as threatened species, must be complied with. 60 Retribution or the taking of vengeance for the harm which has been done by an offender will also be an important aspect of sentencing in environmental offences. The community must be satisfied that the offender is given his just desserts. The purpose of sentencing hearing 61 The plea of guilty admits only the elements of the offence. It does not admit any matter of aggravation or deny any matter of mitigation not covered by the offence: R v Jobson [1989] 2 QdR 464 and Law v Deed [1970] SASR 374. 62 The Court in order to determine the appropriate sentence must determine the facts for the purpose of sentencing, the criminality and culpability of the defendant and the nature and characteristics of the defendant. The principle of proportionality 63 A basic principle of sentencing law is that the sentence must reflect both the objective circumstances of the offence and the personal or subjective circumstances of the defendant: Veen v R (No 1) (1979) 143 CLR 458 at 490 and Veen v R (No 2) (1988) 164 CLR 465 at 472. This is the principle of proportionality.

Objective circumstances 64 "A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances": Hoare v R (1989) 167 CLR 348 at 354.

Maximum Penalty 65 The first of the objective circumstances relevant to determining the gravity of the crime is the maximum statutory penalty. "The maximum penalty available for an offence reflects the public expression of Parliament of the seriousness of the offence.": Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698. See also R v Oliver (1987) A Crim R 174 at 174, R v H (1980) 3 A Crim R 53 at 65, Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Hansford v His Honour Judge Neesham [1995] 2 VR 233 at 236. 66 As I have noted above, at the time of commission of the offences the maximum penalty for an offence against s 118A(2) of the NPW Act was $55,000 and one year imprisonment or both. Although the maximum penalty prescribed for the offence is intended for cases falling within the worst category of cases for which the penalty is prescribed (see Ibbs v R (1987) 163 CLR 447 at 451-452), as was noted in Veen v R No 2 (1988) 164 CLR 465 at 478: "That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category."

See also Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Environmental harm Seriousness of environmental harm 67 A second objective circumstance relevant to determining the seriousness of the crime is the objective harmfulness of the defendant's actions. 68 Harmfulness in the case of s 118A(2) of the NPW Act involves the adverse impacts on the threatened species, here, Tetratheca juncea. It also includes harm to the habitat of the threatened species and to other biota that have ecological relationships to the threatened species, such as fauna that are pollinators of a threatened species of plant. 69 Harmfulness needs to be considered not only in terms of actual harm but also likely harm. The seriousness lies not only in the actual death or damage to the plants of the threatened species and their habitats at the time of commission of the offence but also in the potential for harm which the acts constituting the picking of the plants might entail: see Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 366. 70 The culpability of the defendant depends in part on the seriousness of the environmental harm. In Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 701, Kirby P, said: "In environmental matters the Court has previously exercised its discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty."

71 If the harm is substantial, this objective circumstance is an aggravating factor: see s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. It is a factor to be taken into account in determining the appropriate sentence.

72 The significant extent of the harm caused to a threatened species was considered to be an aggravating factor by Lloyd J in Director General, National Parks and Wildlife Service v Wilkinson (2002) NSWLEC 171 (27 September 2002) at para 91.

Significance of population of threatened species 73 In assessing the seriousness of the harm caused by the commission of the offence, the significance of the population or subpopulation of the threatened species is relevant. 74 In this case, the population of Tetratheca juncea within the Lake Macquarie region is of State and national significance. It is the largest known population and represents a stronghold for the species at present. There are only four sites known to have more than four hundred plants. 75 The subpopulation of Tetratheca juncea on the site at Redhead is the largest recorded and is of extremely high conservation significance. Prior to the clearing, there were seven thousand clumps of Tetratheca juncea on the site. The significance of the subpopulation of Tetratheca juncea on the site is further enhanced by the fact that there are two other subpopulations on nearby sites. Preservation of proximate subpopulations of threatened species is important because, as a group, the subpopulations provide stepping stones to promote pollination and achieve outcrossing. In short, it enhances genetic diversity, a critical component for the conservation of biological diversity. 76 Prior to being picked at the site, Tetratheca juncea was located generally in higher and drier parts of the site. These parts of the site were relatively undisturbed prior to the commission of the offence, with little weed infestation. The defendant's actions of slashing, clearing and excavation of vegetation at the site have had significantly adverse impacts on the subpopulation of Tetratheca juncea and on the species. These impacts may be summarised as: direct damage, fragmentation, weed infestation, edge effects, off road vehicles, increased frequency of fire and other impacts.

Direct damage 77 The slashing, clearing and excavation of vegetation at the site by the defendant has caused the destruction, injury and removal of Tetratheca juncea plants. Tetratheca juncea plants were uprooted by the excavator, cut to just above ground level, crushed by heavy machinery and crushed by fallen vegetation. Using an excavator to clear areas of the site caused damage to or killed plants in those areas. In terms of plants that were slashed, the damage to those plants was greater the lower they were slashed. The vegetation slashed in sites A to E was slashed just above ground level. 78 Prior to the defendant's actions in August to December 2001, there were seven thousand clumps of Tetratheca juncea in the subpopulation on the site. As a result of the commission of the offence, approximately two thousand clumps were picked at the site. In the northern and central parts of the site a higher proportion of clumps were picked, namely, 34 per cent. The total area of native vegetation cleared on the site was approximately 19.05 hectares of a total site area of 44 hectares.

79 Mr Gordon conceded that the actions of slashing had an extreme, short term impact on the Tetratheca juncea plants on the site. However, Mr Gordon submits the long term impact was mitigated by the ability of the Tetratheca juncea plants to re-sprout from underground root stock. 80 Mr Gordon referred to a report by three ecologists, T A James, G R Sainty and F J Bravo, to the New South Wales National Parks and Wildlife Service and Lake Macquarie Council dated August 2002 entitled "Clearing of Native Vegetation - Lots 1 and 4 Cowlishaw Street, Redhead." That report records that re-sprouting from underground root stock appears to be the main means of reproduction of Tetratheca juncea. The report also sets out in a table the results of density estimation of clumps of Tetratheca juncea in a number of transects undertaken by the authors after the clearing had occurred. The results show that in transects in cleared areas there were a number of clumps of Tetratheca juncea. Mr Gordon submits that this reveals that the action of slashing did not have a long term effect. 81 Although it may be accepted that Tetratheca juncea has, as one of its means of reproduction, re-sprouting from underground root stock, that does not mean that there has not been immediate harm to the population of Tetratheca juncea on the site. Furthermore, it does not mean that the abundance of Tetratheca juncea has not been reduced on a long term basis. Fragmentation 82 The picking of Tetratheca juncea at the site has caused fragmentation which could threaten the long term viability of the species on the site through genetic isolation. Picking of Tetratheca juncea on the site has caused a reduction of the area of habitat of two species of native bees that are pollinators of Tetratheca juncea. This may have a negative effect on the genetic diversity within populations of Tetratheca juncea and will impact the long term viability of the subpopulation of Tetratheca juncea at the site. 83 Ms Deborah Stevenson, an environment protection officer with the Department of Environment and Conservation and formerly a senior threatened species officer with the National Parks and Wildlife Service, gave evidence that fragmentation of the Tetratheca juncea subpopulation on the site is likely to make genetic exchange between the remaining plants more difficult because it removes habitat for the native bees which are responsible for pollinating the species.

84 Ms Stevenson explained that pollen extraction from Tetratheca juncea flowers requires vibration. Accordingly, sonicating bees are the pollen vectors. The result of fragmentation and reduction in the number of bees will be fewer sexually reproducing plants of Tetratheca juncea. This will make the subpopulation of Tetratheca juncea at the site less able to adapt to future environmental change. Weed infestation 85 The picking of Tetratheca juncea at the site has significantly increased the density of weeds and the likelihood of invasion by weeds from adjoining disturbed areas into previously intact areas of native vegetation on the site. Several weed species including bitou bush (Chrysanthemoides monilifera) have since the clearing been recorded along the tracks created at the site during the period of the offence. The spread of weed seeds on tyres of machines, associated disturbance and the opening up of vegetation has increased potential for weed invasion.

86 Ms Stevenson gave evidence that the clearing activities and subsequent disturbances have opened up the vegetation at the property by removing the naturally dense understory and disturbing the soil's surface. This has allowed weeds to establish in areas formerly inaccessible to them. These activities have encouraged fast growing native colonisers such as bracken fern (Pteridium esculentum) and blady grass (Imperata cylindrica) to establish disturbed areas at the expense of slower growing native species such as Tetratheca juncea. 87 Of particular concern to Ms Stevenson is the spread of bitou bush, a weed of national significance which is now invading areas of undisturbed heath vegetation as well as disturbed track edges and regenerating vegetation. Edge effects 88 Picking of Tetratheca juncea at the site and the clearing of sites A to E and on the tracks of the site has altered the environmental conditions around the intact areas of Tetratheca juncea that remain at the site. This is known as edge effects. Edge effects can include an increase in soil temperature, increased exposure to winds, and increased transfer of dust, seeds, insects and diseases from adjoining areas. Edge effects can affect plants within 40 metres of the cleared areas of the site. 89 The clearing of the site has led to approximately 93 per cent of Tetratheca juncea plants remaining at the site after clearing now being exposed to edge effects. 90 Ms Stevenson also notes that the creation of edges in previously intact vegetation as a result of slashing and other forms of disturbance exposes the remaining vegetation, including Tetratheca juncea, to disease, desiccation and insect attack. Off road vehicles 91 Ms Stevenson gave evidence that the defendant's actions in the offence period and subsequent disturbances have allowed greater access to the site by off road vehicles. These vehicles are heavily utilising and expanding the network of tracks through the site. This has resulted in further fragmentation and degradation of the Tetratheca juncea subpopulation on the site through the direct destruction of dry heath / woodland vegetation, soil disturbance and the transport of weed propagules into the site on vehicle tyres. Increased frequency of fire 92 Ms Stevenson gave evidence that enhanced access on to the site has led to incidents of arson on the site. Frequent fires would degrade the Tetratheca juncea subpopulation at the site and affect the ability of Tetratheca juncea to re-establish on the site. This is because Tetratheca juncea is sensitive to frequent fire. Further, frequent fires promote a dense understory of fire tolerant species such as blady grass and bracken fern that in turn excludes Tetratheca juncea.

Other Impacts 93 Ms Stevenson also identified that the defendant's actions and subsequent disturbances have led to: the removal of the protective vegetation in which Tetratheca juncea occurs; soil compaction; altered surface drainage; destruction of the soil seedbank for Tetratheca juncea; disturbance of the moist fertile humic layers in the top soil and the introduction of weeds.

Conclusion on environmental harm 94 Cumulatively, these impacts on Tetratheca juncea and its habitat on this site caused by the defendant's actions are substantial and are an aggravating circumstance of the offence. Defendant's state of mind 95 A third objective circumstance relevant to determining the seriousness of a crime is the state of mind of the offender at the time of the offence. The state of mind can have the effect of increasing the seriousness of the crime. For that reason, it becomes an aggravating feature of the offence and is taken into consideration when assessing the objective gravity or circumstances of the offence. 96 A large measure of premeditation will make the offence more serious than where it is committed on the spur of the moment: R v Morabito (1992) 62 A Crim R 82 at 86. 97 The extent to which the offences were foreseen, negligent or the consequence of conduct which was intended will also be relevant: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700. 98 Section 118A(2) of the NPW Act is not limited to preventing deliberate or negligent picking of threatened species of plants. It envisages that proper precautions must be taken to ensure that threatened species of plants are not picked. The comments of Mahoney JA in Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359-360 although said in the context of pollution offences are equally applicable to s 118 of the NPW Act. Mahoney J A stated: "The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur.

Precautions may be costly. The cost of precautions to avoid pollution will no doubt become accepted, in due course, as an ordinary cost of operating in an industry where, absent precautions, pollution may occur. The legislature was no doubt conscious of the effect which increased costs may have in a market; what I have said is expressed in general terms and is, of course, subject to the circumstances of each case. But I believe legislation of this kind contemplates that, in general, the cost of preventing pollution will be absorbed into the costing of the relevant industries and in that way will be borne by the community or by that part of it which uses the product which the industry produces. In assessing the quantum of a fine considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the cost of precautions be undertaken. As the learned judge indicated, in the present case, in order to prevent pollution of the river, it was necessary, inter alia, that the company delay spraying until the conditions were appropriate for it. No doubt that delay cost money. Ordinarily, the fine to be imposed should be such as to make it worthwhile that costs of this kind be incurred.

I do not mean by this that the legislature saw the legislation as providing, by payment of a fine, a licence to pollute. In the end, the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventive measures. In assessing the fine in an individual case, it is proper to bear in mind the economic realities upon which such legislation is based." 99 In the context of the conservation of threatened species, it is equally true to say that the object of the NPW Act is to prevent damage to threatened species and their habitat. Business must be arranged and precautions taken to ensure that damage to threatened species does not occur. The cost of taking precautions to avoid damaging threatened species must become accepted as an ordinary cost of doing business. So, too, therefore, in assessing the amount of a fine for an offence involving damage to threatened species, considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the costs of taking precautions to avoid damaging threatened species are undertaken. 100 In this case, the defendant was aware of the existence of Tetratheca juncea on the site. He knew that slashing, clearing and excavating on this site might cause the picking of individual plants of Tetratheca juncea. The defendant's actions were deliberate and planned.

Knowledge of Tetratheca juncea at the site 101 At the time of the offence, Mr Gordon knew that the site contained a number of different species of flora and fauna. Mr Gordon told the NPWS investigator on 25 October 2001: "I've got a detailed species list which is quite extensive. I mean, to put it into context there has been 201 native species of flora identified on the site." 102 In particular, Mr Gordon was aware, and had been since 1996 or 1997, that Tetratheca juncea was on the site and that the plant was a vulnerable species. At the time of clearing in sites A to E and clearing the tracks at the site, Mr Gordon had received advice from Mr Geoff Winning, a flora and fauna consultant, about how to identify Tetratheca juncea. In addition, Mr Gordon had read a number of reports identifying potential Tetratheca juncea habitat at the site. These reports included: · Flora Assessment: Lots 1 and 4 Cowlishaw Road, DP 24886, Redhead NSW by Dr Anne Clements & Associates Pty Limited (April 1999) (the Clements report). Figure 7 of that report identifies the location of Tetratheca juncea habitat at the site. · Report by Mr Robert Payne dated November 2000 entitled "Lake Macquarie Tetratheca juncea Conservation Management Plan Final". · Redhead natural area study prepared by Don Caldwell Consultants, Enviro Sciences Pty Limited, May 1991. · Fauna Survey and Assessment 10A Cowlishaw Road, Redhead NSW by Dr Leong Lim, Countrywide Ecological Service (April 1998). · Redhead Survey 24-25 September 1998 by Dr Arthur White (September 1998). 103 The Clements report had a detailed species list for areas of the site. Mr Gordon had been in possession of the Clements report since 1999, had read it on a number of occasions and had told NPWS investigators that he understood it. Mr Gordon did not agree with the boundaries that Dr Clements had established for Tetratheca juncea or with Dr Clements' population estimates. Mr Gordon stated that he formed this opinion on the basis of Mr Winning's work and his own knowledge of the site from "site investigation by traversing those areas, marking them with survey tape and establishing the boundaries by the use of a flail mower." 104 Mr Gordon's reliance on Mr Winning's work needs to be qualified. Mr Gordon did not, prior to commencing the slashing, clearing or excavating on the site, request Mr Winning to map locations of Tetratheca juncea on the site or to prepare a report on the subpopulation of Tetratheca juncea on the site. Subsequently, as part of the process of preparation of a development application, Mr Winning was requested and did prepare a report dated October 2001. However in preparation of that report, Mr Winning still did not survey any of the Tetratheca juncea habitat areas identified in the Clements report or do any other survey of Tetratheca juncea at the site. 105 What Mr Gordon did ask Mr Winning to do was to estimate the abundance of Tetratheca juncea in certain areas of the site that Mr Gordon himself had identified as containing Tetratheca juncea. These were areas that Mr Gordon had not already cleared. Mr Winning did not himself do any field work in the cleared areas. Knowledge of obligation in relation to threatened species 106 At the time of the commission of the offences in August to December 2001, Mr Gordon was aware that "there was an obligation on myself not to harm or cause harm to threatened species or their habitats." 107 In relation to the clearing on the site, Mr Gordon told NPWS investigators on 25 August 2001, "The activities have been a direct result of my independent judgment as to what we are entitled to do or what we have a duty to do under the various legislation." 108 Mr Gordon was aware of the need for a licence under s 91 of the NPW Act if they were to pick Tetratheca juncea but did not apply for a licence as Mr Gordon considered the clearing would not encroach on Tetratheca juncea.

Knowledge of potential impacts of activities 109 Around July 2001, Mr Gordon informed Mr Winning he intended to slash some areas of the site. Mr Winning suggested he should not do that as he thought that would need development consent. Mr Winning did not give Mr Gordon any advice prior to the clearing about which areas should or should not be cleared. 110 Mr Gordon relied on his own interpretation of what would be a "responsible and appropriate delineation" when deciding where to clear. In deciding where to slash. Mr Gordon stated that he: "selected what I considered to be an appropriate boundary. I slashed that area in the knowledge that there would be a transition zone and that there would likely be individual plants, given the density and population numbers within the areas that we selected not to slash, but there may be individual plants outside of that area. But I considered, given the overall numbers and densities and the areas that we were preserving,…those individuals to be insignificant in terms of the habitat and certainly in terms of the viability of the long term population of the species on the site." 111 When Mr Gordon was asked if he was aware of the presence of any threatened species in site A before the clearing had occurred, Mr Gordon stated: "It's likely that there may have been individual plants within the area of site A of Tetratheca juncea particularly along the transitional boundary area between A and the southern habitat."

112 Mr Gordon claimed to have identified plants along the boundary with surveyor's tape and to have not cleared or slashed in that area. 113 In relation to Tetratheca juncea generally, Mr Gordon stated: "I took the view that the spirit of the legislation was about the preservation and enhancement of viable populations and my intentions in these activities were to protect and preserve those core areas and I can see that given the scale of the property and the scale of the population that it's likely that I may have cut or picked individual plants. However, this may be a technical breach of the legislation but I don't consider that in any way I have breached the spirit of the legislation." 114 On 12 October 2001, during the period of the offence, Mr Wellington a NPWS officer, spoke to Mr Gordon about the clearing. During the course of their conversation the following exchange occurred: "Wellington: I've been contacted by Lake Macquarie Council officer informing me that a breach of s 118 of the National Parks and Wildlife Act may have occurred. It was my understanding that a number of threatened species are recorded in the vicinity of the subject land. Are you aware of that?

Gordon: Yes, I knew there are Tetratheca juncea , Wallum Frogs, Squirrel Gliders on the property. I've had studies done.

Wellington: From what I have been told you have cleared some large areas and may have been causing harm to threatened species.

Gordon: Why don't you let me be the judge of that, don't prejudge what I've done. I've avoided all threatened species." 115 The prosecutor submits that Mr Gordon's actions were done wilfully and recklessly in full knowledge that it was unlawful. 116 Having regard to the matters that I have set out above, I do not find that Mr Gordon wilfully breached s 118A(2) of the NPW Act, that is, to say that he knew that it was an offence and intended to commit the offence. 117 However, I do find that Mr Gordon was aware that Tetratheca juncea existed on the site and was likely to occur in the areas that he slashed, cleared or excavated, that Mr Gordon acknowledged that such activities might cause the picking of individual plants of Tetratheca juncea and that the conduct of slashing, clearing or excavating was deliberate and intended. 118 In Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700, Kirby P described the offences in that case in these terms: "The offences were not "unforeseen non-negligent and unintended accident[s]": Majury v Sunbeam Corporation Ltd [1974] NSWLR 659 at 664. Indeed, the evidence indicates that the offences were foreseen, to some extent negligent and, in part, the consequence of conduct which was intended." That statement is equally apposite to describe the offences in this case.

Reasons for commission of offence 119 The criminality involved in the commission of the offence is also to be measured by reference to the reasons for its occurrence: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 366, per Badgery-Parker J. See also Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at para 92. 120 In this case, the reasons for the clearing are set out in the agreed statement of facts. 121 On 27 October 2001, Mr Ian Fletcher, a development compliance officer with Lake Macquarie City Council, inspected the site while a tractor was clearing a part of the site. In the course of that inspection Mr Fletcher had a conversation with Mr Gordon which included the following exchange: "Fletcher: I have been conducting enquiries regarding alleged unauthorised land clearing and upon my return along Kalaroo Road I observed a tractor and slasher working in this area. What can you tell me about the work happening here?

Gordon: Yeah, we're just carrying out weed and vegetation control and generally doing some ground maintenance, preparing the site for surveying. It's all in preparation for the submitting of a development application to council."

122 Mr Gordon maintains the clearing was undertaken to control noxious weeds at the site because of duties under the Bushfire Act, to clearly delineate the habitat of threatened species and to improve knowledge of the site with a view to pursuing some form of development at the site. 123 In relation to weeds at the site, Mr Winning considered that there were not many weeds on the site at the time of the offence with the weeds being restricted to the south-west corner of the site and the edge of the railway line. Furthermore, during the site inspection of 30 October 2001, Mr Gordon said to Mr Jason Bentley, a NPWS investigator: "Obviously you didn't think I would do all this for weed and fire management?".

124 In respect of clearing for development purposes, Mr Gordon stated in an interview with Mr Jason Bentley the following: "Bentley: I've been informed that one of the reasons that property was cleared was for accessibility for planning purposes. Do you wish to say anything about that?

Gordon: That was definitely one of the reasons for the activities, for establishing boundaries, establishing not only property boundaries but ecological community boundaries. It was our company's intentions to establish some interim land use for the property as well as applying for a high use under or through a rezoning application and we've been advised by council that we would need certain information with respect to land capability and flora and fauna assessment and reports that I have seen prepared by Q Properties I considered to be inaccurate and poorly prepared. This was predominantly due to the inaccessibility of the site and the inability of those consultants to properly access the site in a meaningful manner. So certainly some of the logic behind the clearing was to make certain areas of the site more accessible for site investigation and therefore planning purposes." 125 Having regard to these facts, it is clear that an actuating reason for the defendant carrying out the activities of slashing, clearing and excavating the site which resulted in the picking of Tetratheca juncea was to prepare and submit a development application in order to use the land for a higher economic use. 126 This reason is to be contrasted to the situation in Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 366 where there was an unprecedented error of omission or the situation in other cases where the reason was simply an accident. Here, the reason was for business purposes and was deliberate and intended. Conclusion on objective circumstances 127 Having regard to the objective gravity or circumstances of the offence that I have described above, the offence should be considered as being at the higher end of the scale. An appropriate penalty that would reflect the objective circumstances would be $44,000.

Subjective circumstances of the defendant 128 A proportionate sentence does not only depend on the objective circumstances of the offence but also must be appropriate to the particular defendant. This requires the Court to take into account any personal mitigating factors present: Veen v R (No 1) (1979) 143 CLR 458 at 490, Veen v R (No 2) (1988) 164 CLR 465 at 472, R v Gallagher (1991) 23 NSWLR 220 at 222, 223, 229, 230 and 233. 129 The personal mitigating factors will include the nature or characteristics of the defendant and the defendant's responses to the charges. The nature of the defendant includes his character and prior criminality. The defendant's response to the charge includes contrition and remorse, co-operation with authorities, and any offer of compensation or restitution. Nature of defendant 130 The defendant has no prior convictions of relevance. This lack of prior criminality is a factor in sentencing in this case. It influences both the choice of sanction and the severity of sentence: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1983) 32 NSWLR 683 at 701 and s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. Plea of Guilty 131 The defendant has pleaded guilty to the offence. Section 22 of the Crimes (Sentencing Procedure) Act 1999 expressly requires: "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed." 132 A guideline judgment in respect of the discount for a plea has been given by the Court of Criminal Appeal in R v Thompson (2000) 49 NSWLR 383, 115 A Crim R 104. This judgment continues to have force in New South Wales despite the decision of the High Court in Wong v R (2001) 207 CLR 584 and R v Cameron (2002) 209 CLR 339, because of s 22 of the Crimes (Sentencing Procedure) Act 1999: see R v Sharma (2002) 54 NSWLR 300. 133 A plea of guilty is of utilitarian value and can also show contrition and remorse. In R v Thompson (2000) 49 NSWLR 383 at 419, Spigelman CJ held that: "The utilitarian value for pleas in the criminal justice system should generally be assessed in the range of 10 to 25 per cent discount on sentence. The primary consideration in determining where in the range a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." 134 In this case, the proceedings were commenced on 31 July 2003. The proceedings first came before the Court on 11 September 2003. The proceedings were stood over to 9 October 2003, 23 October 2003, 12 December 2003 and then 18 December 2003. On 18 December 2003, the defendant entered a plea of guilty. Accordingly, there was a period of about three months from the time the matters first came before the Court to the time the defendant entered a plea of guilty. An explanation for the adjournments during that three month period provided by the prosecutor is that the prosecutor was still completing its evidence. The prosecutor submits that the delay was acceptable. 135 In the circumstances, I am satisfied the defendant should be entitled to a discount reflecting the utilitarian value of the plea at the higher end of the range, namely, 20 per cent.

Contrition and remorse 136 The defendant's plea of guilty entitles him to a discount reflecting the utilitarian benefit. In addition, however, if contrition and remorse is expressed a defendant is entitled to a further discount: Neal v R (1982) 149 CLR 305 at 315, Camilleri's Stock Feeds v Environment Protection Authority (1993) 32 NSWLR 683 at 700 and Environment Protection Authority v Ampol (1995) NSWLEC 16 (22 February 1995). 137 Mr Gordon has stated in submissions from the bar table his contrition and remorse. Mr Gordon acknowledged the inappropriateness of his conduct to the Court and to the community. Mr Gordon stated that, with the benefit of hindsight, he would not again take the approach that he adopted at the time and certainly would not recommend it to other persons. Mr Gordon stated that he understood that his actions have caused significant distress and grief in the local community. Mr Gordon added that it has also caused emotional and economic stress to him and his family. 138 The making of restitution or compensation can also provide evidence of remorse and contrition. Where it occurs it justifies a reduction in sentence: Mickelberg (1994) 13 A Crim R 365 at 370 and s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. 139 In this case, however, Mr Gordon has made no attempt to rehabilitate the site or to prevent further damage to the site since the clearing. 140 Ms Stevenson gave evidence that remedial action needs to be taken in order to prevent and to mitigate long term damage to the large and significant Tetratheca juncea subpopulation at the site. Ms Stevenson stated the remediation of the site requires active management of the weed problem focusing on bitou bush and other aggressive weeds. A bushland management plan should be prepared for the property and the plan should be implemented by qualified and experienced bush regenerators. In addition to weed removal, some of the more disturbed areas on the property require assisted regeneration. The success or otherwise of such a regeneration programme would need to be monitored on a regular basis and the bushland management plan reviewed in light of the monitoring results. 141 In addition, Ms Stevenson stated that regular surveys of the Tetratheca juncea subpopulation of the site should be undertaken to assess the response of the species to the rehabilitation works and there should be a report to the Department of Environment and Conservation's Biodiversity Conservation Section. 142 Ms Stevenson stated access to the property needs to be actively managed, access points need to be identified and areas need to be securely fenced and monitored. The network of tracks through the site needs to be rationalised and only those tracks required for management purposes should be retained. Remaining tracks should be closed and re-vegetated. 143 None of these measures recommended as being necessary for the long term conservation of the subpopulation of Tetratheca juncea have been undertaken or caused to be undertaken by the defendant. 144 The prosecutor submits that the failure of the defendant to remedy the harm caused by the defendant's actions, such as taking the steps recommended by Ms Stevenson, shows that the contrition and remorse expressed by Mr Gordon lacks genuineness. 145 I find that Mr Gordon does now feel remorse as to his actions and has learnt from the experience that this offence has caused him. Nevertheless, it is true to say that no attempts have been made by Mr Gordon to rehabilitate the land or to remedy the harm done. 146 Whilst Mr Gordon is of the view that the vegetation, which includes Tetratheca juncea, may have an inherent capacity to regenerate, it is also true to say that without intervention the continuing adverse impacts that I have earlier described, such as weed infestation, off road vehicles, more frequent fires and other impacts, will continue to affect adversely the subpopulation of Tetratheca juncea on the site. There is a need for remedial action. The fact that Mr Gordon has not taken remedial action or otherwise made any offer for restitution or compensation means that there can be no further reduction in the sentence for contrition and remorse that might otherwise be available if he had done these things. Co-operation with regulatory authorities 147 The co-operativeness of a defendant is a matter to be taken into account in fixing penalty: Camilleri's Stock Feeds v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701, Environment Protection Authority v Brir Pty Limited (1995) NSWLEC 15 (22 February 1995), Environment Protection Authority v Ampol (1995) NSWLEC 16 (22 February 1995) and s 23(1) of the Crimes (Sentencing Procedure) Act 1999. 148 Mr Gordon has co-operated significantly with the prosecutor in the investigation of the offence and the conduct of the proceedings and has participated in voluntary records of interview. In addition, Mr Gordon has co-operated in the conduct of this sentencing hearing. He has been able to agree a statement of facts. He has co-operated in the tender of the evidence and the manner in which of the hearing has been conducted. 149 Mr Gordon has also agreed to pay the prosecutor's costs in the agreed sum of $10,000.

Conclusion on subjective circumstances 150 Taking each of these subjective circumstances into account, it is appropriate to reduce the sentence that would reflect the objective gravity or circumstances that I have outlined earlier by $14,000.

The appropriate sentence 151 Accordingly, having regard to both the objective circumstances of the crime and the subjective circumstances of the defendant, the appropriate sentence is a fine in the amount of $30,000. In addition, the defendant should pay the prosecutor's costs of $10,000. 152 The orders of the Court are therefore:

(1) The defendant is convicted of the offence as charged. (2) The defendant is fined the sum of $30,000. (3) The defendant is to pay the prosecutor's costs in these proceedings in the agreed sum of $10,000, such costs to be paid within three months of today. 153 In each of the matters 50069 of 2003 and 50071 of 2003, I order that the proceedings be dismissed with no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.