Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales - [2017] NSWLEC 132 - NSWLEC 2017 case summary — Zoe

NSWNSWLEC

Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales

[2017] NSWLEC 132

Land and Environment Court (NSW)|2017-08-21|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-08-21

Before

Robson J

Catchwords

(2006) 145 LGERA 234 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
[2010] NSWLEC 67 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103
(2006) 148 LGERA 299 Ex parte Newman
Re Fisher and McInerny [1969] 1 NSWR 538 Garret v Freeman (No 5) (2009) 164 LGERA 287

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137[2010] NSWLEC 67 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103(2006) 148 LGERA 299 Ex parte NewmanRe Fisher and McInerny [1969] 1 NSWR 538 Garret v Freeman (No 5) (2009) 164 LGERA 287[2009] NSWLEC 1 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Ibbs v R (1987) 163 CLR 447[1987] HCA 46 Markarian v R (2005) 228 CLR 357[2005] HCA 25 Plath v O'Neill [2007] NSWLEC 553(2007) 174 A Crim R 336 Plath v Rawson [2009] NSWLEC 178(2009) 170 LGERA 253 PF v R [2017] NSWCCA 179 R v H (1980) 3 A Crim R 53 R v Olbrich (1999) 199 CLR 270[1999] HCA 54 R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Veen v R (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465

Judgment (28 paragraphs)

[5]

Threatened Species Licence Conditions

Section 68U of the Forestry Act provides that any person carrying out forestry operations under a Forestry Approval is taken to hold a threatened species licence under the Threatened Species Act, which is to be enforced in the same way as any other threatened species licence issued under the Threatened Species Act.
Accordingly, Appendix B to the Forestry Approval contains the terms of the threatened species licence, which applies to Compartment 2330. Relevantly, the preamble to the threatened species licence provides: This licence is issued to the Forestry Commission of New South Wales and any person carrying out forestry operations defined in the Integrated Forestry Operations Approval (IFOA) under Part 4 of the Forestry and National Parks Estate Act 1998 of which this licence is Annexure B. ... This licence authorises the conduct of forestry operations on SFNSW estate within the Eden Region (as shown on Map 1 of the IFOA) that are likely to result in: 1. Harm to a threatened species (being an animal) or protected fauna; 2. The picking of a threatened species (being a plant) or a protected plant; or 3. Damage to the habitat of a threatened species. ...
Condition 5.2(a)(xiv) of the threatened species licence provides: (a) An adequately trained person must conduct a thorough search for, record and appropriately mark the following threatened and protected species features during or before the marking-up of a compartment. ... xiv. Rocky outcrops and cliffs; ...
The term "marking-up of a compartment" is not defined in the threatened species licence, however the Agreed Facts provide that this is the process by which tape, spray paint, or other materials are applied to trees or other prescribed features to guide forest workers during their operations in order to provide geographic limits to harvesting operations.
The term "rocky outcrop" is defined in the threatened species licence as follows: "Rocky outcrop" means an area where rocks or exposed boulders cover more than 70% of an 0.1 hectare area (30 metres by 30 metres); OR areas with skeletal soils (areas with shallow soils where rocks are exposed), supporting heath or scrub (sometimes with occasional emergent trees); OR a combination of both. These sites may occur where the geology varies from the surrounding area (e.g. rhyolite outcrops). Rocky outcrops include, but are not limited to, all areas of FT "rock" (FT no. 234).
Relevantly, condition 5.11 of the threatened species licence provides: 5.11 Rocky Outcrops and Cliffs (a) Specified forestry activities are prohibited within areas of rocky outcrops and cliffs. (b) In addition, exclusion zones of at least 20 metres wide must be implemented around all rocky outcrops more than 0.1 hectare (approx. 30m x 30m), and all cliffs. (c) Exclusion zones of at least 40 metres wide must be implemented around all rocky outcrops more than 0.5 hectare. (Note: it is not intended to exclude SFNSW from all areas that have a scattered or stony or rocky ground cover. Only those areas where rocks and exposed boulders cover greater than 70% of at least a 0.1 hectare area. Those areas that fall within the definition of Rocky Outcrops and Cliffs are considered to contain likely habitat for threatened flora and fauna.)
In the Agreed Facts the parties note that if a rocky outcrop is identified in the field, the outer edge of the outcrop is identified and the required 20m or 40m exclusion zone is measured with a laser rangefinder or hip chain and marked with fluorescent pink flagging tape.
The Rocky Outcrop is comprised of an area 0.27ha with 78% to 87% of that area covered by rocks and exposed boulders. The parties agree that the Rocky Outcrop is a rocky outcrop in accordance with the definition in the threatened species licence.
The threatened species licence relevantly defines "specified forestry activities" as follows: "Specified forestry activities" means: i. Timber felling (excluding miscellaneous forestry operations); ii. Construction and operation of log dumps; iii. Construction and operation of snig tracks; ...
Condition 8.1 of the threatened species licence makes provision for compulsory pre-harvest surveys, namely 'pre-logging and pre-roading' surveys. In accordance with this condition a pre-logging and pre-roading survey report was undertaken by Forestry Corporation prior to commencing the harvesting operations, which comprised a desktop review on 20 February 2013 and a traverse of Compartments 2329, 2330 and 2335 by Forestry Corporation's ecologist on 4 March 2013. Notably, the immediate area around the Rocky Outcrop was not searched for rocky outcrops, as it comprised very dense understory and shrub growth that impeded travel and masked the presence of holes, boulders and fallen logs (this type of undergrowth is colloquially referred to as 'impenetrable understorey'). Accordingly, the Rocky Outcrop was not identified prior to harvesting as being a rocky outcrop.
Condition 3(a) of the threatened species licence requires Forestry Corporation to prepare planning documentation demonstrating operational planning that has taken into account the requirements of the licence. The planning documents must show all exclusion and buffer zones of the relevant harvesting plan operational map. A harvest plan was prepared Mr Shane Clohesy, a harvest planner employed by Forestry Corporation, and was endorsed by the harvest planning team leader on 31 May 2013 and by the Regional Manager on 3 June 2013. While the planning documentation identifies three rocky outcrops within Compartment 2330, it does not identify the Rocky Outcrop.
All pre-harvest compartment mark-up in Compartment 2330 was undertaken between 5 June 2013 and 24 October 2013 by Mr William Pryor, the supervising forest officer. Three rocky outcrops with exclusion zones were marked-up in this manner.

[9]

Sentencing principles

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'), which provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are 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 the crime and the community.
Relevantly, s 194 of the Parks Act sets out considerations that the Court is to take into account when sentencing, and provides: 194 Sentencing - matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area - the views of Aboriginal persons who have an association with the object, place or area concerned, (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant.
Both Forestry Corporation and the EPA agree that subss (c), (d), and (e) are relevant for the purpose of these proceedings, however the EPA submits that subs (h) is also relevant, while Forestry Corporation submits that subs (a) should also be taken into account.
It is clear and both parties accept that in determining the appropriate sentence, the Court is to have regard to both the objective circumstances of the offence and the personal circumstances of the defendant; see Veen v R (1979) 143 CLR 458 at 490; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71] and [168]-[171].
Further, s 21A of the Sentencing Act sets out the aggravating and mitigating factors that a Court is to consider in arriving at the appropriate sentence: ... (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... (o) the offence was committed for financial gain, ... The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), ... (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23).

[13]

Environmental Harm

The extent of environmental harm caused by the offence was agreed by the parties in the Agreed Facts, and was described as follows: (i) a total of 52 trees were felled at EPA Location 1; (ii) there was machinery disturbance at EPA Location 1. Within the rocky outcrop there was very minor impacts where minor outcrops were crushed or otherwise damaged by machinery or trees that had been felled. The impacts in the buffer zone were more extensive, however these impacts were relatively minor and comparable to similar impacts which occur naturally through treefall, wildfire and the effects on rocks as trees grow from saplings to mature trees; (iii) the impact on vegetation in 0.24ha of forest is minor in the context of the extent of similar forests; (iv) the impacts on threatened species habitats appear to have been relatively minor, however, the incident has resulted in major modification to the habitats within almost the entirety of EPA Location 1 and the 20m buffer, including the removal of the majority of the canopy trees and substantial modification to the understorey, and to a lesser extent, groundcover vegetation which will affect, at least in the short term, the foraging and sheltering habitats available to the fauna that are either resident within EPA Location 1 or which may occur there from time to time; (v) the diameters of the stumps that remain at EPA Location 1 indicate that the trees were not particularly large, suggesting that the felled trees were probably not hollow bearing; (vi) there is no evidence of sediment movement at EPA Location 1; (vii) overall, the localised impacts of EPA Location 1 is considered relatively minor in the context of the extent of similar forests and habitats within Glenbog State Forest and contiguous forests, and in the context of the impacts associated with historic and ongoing logging within Glenbog State Forest and other forests within the region, including within adjoining areas in Compartments 2330 and 2335; and (viii) the impacts at EPA Location 1 are likely to take in the order of probably hundreds of years to diminish to negligible levels given the intensity of recent and historic logging operations at EPA Location 1.
Both parties submitted that it is important to recognise that the offence charged does not relate to the actual clearing within the exclusion zone, which would, as Forestry Corporation notes, constitute a breach of a different condition of the threatened species licence (condition 5.11).
The EPA submits that although there is no evidence of harm or likely harm to the environment, pursuant to Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234, it is open to the Court to take into account the possibility of harm if the conduct is repeated. The EPA relies on the comments of Preston CJ of LEC at [175], where his Honour stated: Harmfulness needs to be considered not only in terms of actual harm but also harm that is likely to occur in the future as a result of the commission of the offence. 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 Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366.
The EPA further submits that the Court is to take into account the potential risk of harm, relying on Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]. Accordingly, the EPA submits that while there is no actual direct harm to the environment, this does not mean that the breach of the threatened species licence should not be taken seriously. The EPA submits that Forestry Corporation's failure to search, record and mark-up the areas subject to the licence as required, is contrary to the aims of the licence, and has undermined the protective regulatory scheme contained in the Parks Act and impeded the achievement of ecologically sustainable development (see Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 ('Smoky Mouse') at [57]-[61] per Pepper J).
In relation to the harm caused, Forestry Corporation submits that while it is accepted that it will take hundreds of years for the area to recover, this is a product of the time it takes for trees to re-grow and ought not be overstated. Further, while Forestry Corporation accepts that harm also includes the potential or risk of harm, not merely actual harm (see Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 102; (2006) 148 LGERA 299 at [145]), it disputes the EPA's submission that the Court should also consider the possibility of harm if the conduct is repeated. Forestry Corporation submits that this is a misreading of Preston CJ of LEC's comments in Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [175], and rather his Honour's comments in that case go to potential latent harm that has not yet been discovered, not the possibility of a repeated offence.
In the circumstances, Forestry Corporation submits that the harm caused is minor and ought to be characterised at the low end of the spectrum.
Although there is no actual direct harm, I find that Forestry Corporation's failure to search, record and mark-up areas in accordance with the licence has undermined the protective regulatory scheme contained in the Parks Act and the Forestry Act. As stated in Smoky Mouse at [58]-[61], compliance with the Parks Act is essential to achieving the objects of the Act, as well as the objects of the threatened species licence, being broadly the conservation of biological diversity, the promotion of ecological sustainable development, and the conservation of habitat.

[15]

State of mind

The EPA submits that Forestry Corporation acted recklessly, and that pursuant to s 21A(1)(c) of the Sentencing Act, this raises the level of culpability and affects the relative seriousness of the offence. The EPA further submits that the reckless nature of Forestry Corporation's conduct is evidenced by its adoption of the 'operator select' method (noted at [20] above), which has no statutory or licence basis, and was adopted by Forestry Corporation to save time and effort. The EPA further submits that the fact that such a method relies on removing vegetation until a rocky feature is visually sighted contemplates a substantial risk that the exclusion zone will be compromised.
Forestry Corporation submits, relying on R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], that where an offence is alleged to have been committed intentionally, recklessly or negligently the facts must be established beyond a reasonable doubt, and this has not been made out. Forestry Corporation submits that there is no evidence as to the offence being carried out intentionally or recklessly, given that, as a matter of fact, the operator select method was a search methodology that it had put in place in an attempt to comply with condition 5.2(a)(xiv). Accordingly, Forestry Corporation submits that there is no evidence indicating the requisite standard of an 'indifference to obvious risk' such that it could be found to be criminally negligent, see Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 ('Orica') at [147].
I find that the EPA has failed to demonstrate beyond reasonable doubt that Forestry Corporation committed the offence intentionally, recklessly or negligently. I so find having regard to the operator select method, which has not been shown to be inherently faulty or inappropriate, although it does appear to attempt to delegate primary responsibility for compliance with condition 5.2(a)(xiv) in a way that is not permissible, in that Wiltons Logging were briefed "about the difficulty in marking-up [an] area and were told to exercise discretion" in performing the harvesting operations. However, in any event it was agreed that invoking the operator select method did not discharge Forestry Corporation's duty to carry out a thorough search for rocky outcrops, and I find that the evidence does not establish the degree of carelessness required to show such a disregard for the objects of the statute or an indifference to obvious risk (see Orica at [147]).

[18]

Prior criminal record

The parties have set out in the Agreed Facts a list of penalty infringement notices (PINs) that have been issued to Forestry Corporation. The PINs relate to three separate categories, being pollute waters, breach of environment protection licence, and breach of threatened species licence, and span from 2003 to 2014. There were 49 PINs referred to in total, and as noted in the Agreed Facts, all PINs were paid by Forestry Corporation.
The Agreed Facts also sets out a number of proceedings that have been brought against Forestry Corporation in this Court. Forestry Corporation was the defendant in six separate proceedings spanning from 1992 to 2011 and relating to the same three categories identified above (being pollute waters, breach of environment protection licence and breach of threatened species licence).
The EPA submits, relying on Ex parte Newman; Re Fisher and McInerny [1969] 1 NSWR 538 at 539, that the Court should take into account the large number of PINs issued to Forestry Corporation. While there is some authority suggesting that PINs may not be relevant to sentencing, the EPA submits that this applies in circumstances where the previous PINs are unrelated to the facts of the offence before the Court (see e.g. Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125 at [110]; Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102). Given that 15 of the PIN events referred to in the Agreed Facts relate to breach of a threatened species licence, the EPA submits that the PINs are relevant, and the Court should place weight on the fact that they were all issued in a relatively recent time period (since January 2007) and indicate Forestry Corporation's long history of non-compliance with threatened species licences.
The EPA submits that Forestry Corporation's former convictions and PINs were considered an aggravating factor in Smoky Mouse (at [103]), and notes particularly the comment by Pepper J at [100] that: ...the number of convictions suggests either a pattern of continuing disobedience in respect of environmental laws generally or, at the very least, a cavalier attitude to compliance with such laws. I would attribute more weight to these past convictions than that suggested by the Forestry Commission.
Forestry Corporation submits that while the Court can take into account its prior convictions and PINs as an aggravating factor, the weight given to this consideration should be diminished given the circumstances, locations and timing of those other offences. Further, Forestry Corporation emphasises that these prior offences should be considered in the context of its management of approximately 2,000,000ha of State forests.
In relation to the PINs, Forestry Corporation accepts that the Court may take into account the number of PINs that relate to breaches of a threatened species licence, however notes that of the 15 relevant PINs, the most recent PIN in relation to the Eden Region (which has an area of 164,300ha) was issued in 2013, and there have been no PINs issued in respect of the Glenbog State Forest. Further, Forestry Corporation submits that none of the PINs issued for breaches of a threatened species licence relate to condition 5.2.
In relation to the prior convictions in this Court, Forestry Corporation submits that of the six convictions since 1992, only one related to a breach of a threatened species licence. Further, Forestry Corporation submits that the circumstances of these proceedings can be distinguished from those in Smoky Mouse, where the bushfire hazard reduction burning caused likely harm to the Smoky Mouse (an endangered species) because of lost habitat, which raised the objective seriousness in that case.
I find that Forestry Corporation does have a record of prior offences that should be taken into account in sentencing. While this is an aggravating factor, I do not find that, in the circumstances, this necessarily manifests a reckless attitude towards compliance with environmental obligations such as to be a significant aggravating factor.

[23]

Early guilty plea

Forestry Corporation entered a plea of guilty to the offence on 17 June 2016. While the EPA accepts that Forestry Corporation's plea of guilty is a mitigating factor as per ss 21A(3)(k) and 22 of the Sentencing Act, the EPA submits that the extent of the discount should reflect the fact that the plea was only entered after completion of service of the prosecution brief, and therefore it cannot be said that the plea was entered at the first opportunity. The EPA also notes that Forestry Corporation accepted that the Rocky Outcrop was a "rocky outcrop" as defined in the threatened species licence in letters to the EPA dated 8 August 2014 and 20 April 2015.
Relevantly, the EPA relies on PF v R [2017] NSWCCA 179 which states at [63]: ...The purpose of s 22 is to provide an incentive to offenders to enter a plea, rather than forcing the prosecution to prove its case at a trial. This provides a utilitarian benefit to law enforcement, as does the assistance in the prevention, detection or investigation of other offences, which is also rewarded, pursuant to s 23 of the Sentencing Procedure Act. As the Court recognised in R v Thomson and Houlton, this effect is maximised where the discount is quantified and the discount given is expressly indicated and recorded.
Forestry Corporation disputes the EPA's submission that the plea was not entered at the earliest opportunity, submitting that rather the plea was entered at the first opportunity following the EPA completing its brief of evidence as to liability. In relation to the EPA's submission that Forestry Corporation accepted the Rocky Outcrop was a "rocky outcrop" - Forestry Corporation submits that this is immaterial to the timing of the plea, as the offence charged relates not simply to the existence of a rocky outcrop, but rather to whether a "thorough search" was conducted. Forestry Corporation submits that there is a "genuine debate" as to what constitutes a thorough search, and that it was only upon receiving and assessing all of the EPA's evidence that it could make a determination that a plea of guilty was appropriate.
Accordingly, Forestry Corporation submits that there is substantial utilitarian value in its plea of guilty, and accordingly the full discount should be applied as per s 22 of the Sentencing Act and R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.
While I acknowledge that there is a utilitarian benefit in an early plea of guilty, I do not accept that Forestry Corporation's plea was entered at the first available opportunity, and as such I find the appropriate discount is 20%.

[25]

Deterrence

The EPA made submissions in relation to both general and specific deterrence. Relying on Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [8]-[9], the EPA submits that sentences imposed for environmental offences must both deter the offender from committing a similar offence again, and also serve as a general deterrence for other members of the community who might otherwise be tempted to commit a similar offence if only a light punishment is imposed.
In relation to general deterrence, the EPA refers to Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) LGERA 234 at [139]-[141]: [139] The sentence must serve the purpose of general or 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. [140] 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. [141] 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.
In relation to specific deterrence, the EPA submits that Forestry Corporation's prior criminality is a relevant consideration; see Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477; Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 at [34].
Forestry Corporation submits that there is no need for either general or specific deterrence in these proceedings, particularly given that since the introduction of the LIDAR technology, the chances of such an offence reoccurring are considerably low.
In relation to general deterrence, in cases such as this where the offence relates to a failure to take adequate precautions to prevent harm from occurring, it is important for the Court to impose penalties such that the penalty for failing to take adequate precautions outweighs the cost of taking those precautions in the first place: Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [156] (Preston CJ of LEC); Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 359 (Mahoney JA). Further, general deterrence has a particular role to play in prosecutions involving public authorities, with such defendants serving as an example to others given their environmental management responsibilities; see Garret v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [197]; Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) (2010) 174 LGERA 19; [2010] NSWLEC 67. Accordingly, I find that there is a need for general deterrence.
I am also satisfied that there is a need for specific deterrence notwithstanding Forestry Corporation's submission regarding the low chances of such an offence reoccurring. As noted by Cowdroy J in Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 at [34]: The Court is satisfied that an element for general and specific deterrence is warranted in view of two matters. Firstly, there have been prior convictions of the defendant for environmental offences as detailed above. Secondly, the nature of the undertaking of the defendant requires a high degree of care in the fulfilment of its operations. For this reason there is a need for specific deterrence to remind those in authority of a need to observe maximum safeguards for the environment.

[26]

Appropriate sentence

In determining the appropriate penalty the Court's task is to take into account the objective circumstances of the offence and the subjective circumstances of Forestry Corporation, and to weigh these factors applying an instinctive synthesis approach: Markarian v R (2005) 228 CLR 357; [2005] HCA 25.
Relevantly, the EPA notes that in imposing a penalty, the Court is required to have regard to the principle of 'even-handedness' to ensure the sentence is not outside the general pattern of sentencing for similar offences; see R v Visconti [1982] 2 NSWLR 104.
Forestry Corporation similarly notes that reference to previous cases can be useful, however cautions as per Axer v EPA (1993) LGERA 357 of the difficulty in comparing one case on penalty with another given the divergence in facts and circumstances. Forestry Corporation submits that the Smoky Mouse decision provides a useful benchmark for the appropriate penalty in these proceedings, though this would indicate the upper limit, Forestry Corporation submits, as the objective seriousness in those proceedings was higher than that which would be appropriate in these proceedings.
I note that the parties have agreed in the Agreed Facts that Forestry Corporation will pay the EPA's professional costs, which I was informed during the course of proceedings would amount to $65,000. Relevantly, Forestry Corporation submits that the quantum of the EPA's costs may be considered in determining the appropriate penalty; see Environment Protection Authority v Barnes [2006] NSWCCA 246; Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123].
Adopting an instinctive synthesis approach and taking into account all the relevant circumstances, I find that the appropriate monetary penalty for the offence is $10,000. Discounted by 20% for the early plea of guilt, this results in a total fine of $8,000.
The EPA also seeks orders under s 205(1)(a) and (2) of the Parks Act that Forestry Corporation publish a notice in a specified form in the Bega District News. The parties have largely agreed on a form of the notice, however there was some disagreement regarding certain words. Importantly, publishing the prosecution and punishment of environmental offenders improves general deterrence, in that it demonstrates to the wider public the consequences of such conduct; see Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [242]; Environmental Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]. Accordingly I find it appropriate to make the publication order sought in the form set out in Annexure A.
Finally, I also find it appropriate that Forestry Corporation pay the EPA's legal costs as agreed or assessed.

Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales

At a glance

Court

Decision date

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Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (41)

Cited By (6)