Bentley v Gordon

Bentley v Gordon - [2005] NSWLEC 695 - NSWLEC 1995 case summary — Zoe

[24]

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.

[31]

"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.

[40]

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.

[42]

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.

[47]

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.

[58]

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.

[59]

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.

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