Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull - [2017] NSWLEC 140 - NSWLEC 2017 case summary — Zoe

NSWNSWLEC

Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull

[2017] NSWLEC 140

Land and Environment Court (NSW)|2017-05-02|Before: Preston CJ

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-05-02

Before

Preston CJ

Catchwords

[2006] NSWLEC 34 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304
[2002] NSWLEC 59 Hili v The Queen (2010) 242 CLR 520
[2010] HCA 45 Hudson v Director-General, Department of Environment, Climate Change and Water (2012) 187 LGERA 207
[2012] NSWCCA 92 Josefski v R [2010] NSWCCA 41 Latoudis v Casey (1990) 170 CLR 534

Source

Original judgment source is linked above.

Catchwords

[2006] NSWLEC 34 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304[2002] NSWLEC 59 Hili v The Queen (2010) 242 CLR 520[2010] HCA 45 Hudson v Director-General, Department of Environment, Climate Change and Water (2012) 187 LGERA 207[2012] NSWCCA 92 Josefski v R [2010] NSWCCA 41 Latoudis v Casey (1990) 170 CLR 534[1990] HCA 59 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Morton v R [2014] NSWCCA 8 Plath v Rawson (2009) 170 LGERA 253[2009] NSWLEC 178 R v Borkowski (2009) 195 A Crim R 1[2015] HCA 39 R v Rahme (1989) 43 A Crim R 81 R v Stahl [1999] NSWCCA 160 R v ThomsonR v Houlton (2000) 49 NSWLR 383[2014] NSWCCA 106 Turnbull and Another v Director-General, Office of Environment and Heritage (2014) 212 LGERA 163[2014] NSWLEC 84 Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12[2012] NSWCCA 210 Wong v The Queen (2001) 207 CLR 584

Judgment (42 paragraphs)

[1]

er Corporation Pty Ltd (No 2) [2011] NSWLEC 229 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; [2009] NSWLEC 4 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Taylor (No 4) (2002) 120 LGERA 414; [2002] NSWLEC 59 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hudson v Director-General, Department of Environment, Climate Change and Water (2012) 187 LGERA 207; [2012] NSWCCA 92 Josefski v R [2010] NSWCCA 41 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Morton v R [2014] NSWCCA 8 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Campbell [2014] NSWCCA 102 R v Derbas [2003] NSWCCA 44 R v Hayes [2001] NSWCCA 410 R v Morabito (1992) 62 A Crim R 82 R v Pham (2015) 256 CLR 550; [2015] HCA 39 R v Rahme (1989) 43 A Crim R 81 R v Stahl [1999] NSWCCA 160 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wickham [2004] NSWCCA 193 R v Wisbey [2001] NSWCCA 434 Rummery v Chief Executive, Office of Environment and Heritage (2014) 201 LGERA 428; [2014] NSWCCA 106 Turnbull and Another v Director-General, Office of Environment and Heritage (2014) 212 LGERA 163; [2014] NSWLEC 84 Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Sentence Parties: Chief Executive of the Office of Environment and Heritage (Prosecutor) Cory Ian Turnbull (Defendant) Representation: Counsel: Mr T Howard SC with Mr D K Jordan (Prosecutor) Mr T Alexis SC with Ms H Irish (Defendant)

[4]

Facts of the offence

Mr Cory Turnbull and his wife, Mrs Donna Turnbull, exchanged contracts to purchase Strathdoon in about August 2011 and settled the purchase on 31 January 2012. The vendor allowed Mr Turnbull to enter into occupation and commence farming before settlement.
At the time of exchange of contracts, Strathdoon was made up of cultivated land (cleared land converted into ploughed pastures for the growing of crops) and uncleared, native vegetation. The cultivated land comprised about 327 hectares of the 916 hectares total area.
Mr Turnbull purchased Strathdoon with the intention of converting it from a mixed use property into a cropping property. To that end, Mr Turnbull submitted, on 30 September 2011, a preliminary application for a Property Vegetation Plan ("PVP preliminary application") to the Border Rivers-Gwydir Catchment Management Authority ("BRG CMA") and, on 14 October 2011, a Property Vegetation Plan ("PVP plan"). Both the PVP preliminary application and PVP plan proposed clearing of native vegetation in areas that were later identified as polygons 12 and 17, being the areas in which native vegetation was cleared that are the subject of the charge in these proceedings.
Mr Turnbull proposed four activities on Strathdoon, three involved clearing of native vegetation and the fourth proposed an offset area. The three clearing activities were: Activity 1, to clear regrowth (Brigalow/Box regrowth) in areas of "heavy grazing" for a proposed land use of "minimum till cultivation"; Activity 2, to clear paddock trees (Belah/Box) within areas currently cultivated; and Activity 3, broadscale clearing of selected remnant trees within regrowth in areas of "heavy grazing".
Mr Turnbull had various telephone conversations with Mr Luc Farago, a Catchment Coordinator (Property Vegetation Planning) with the BRG CMA on 30 September, 7 October and 17 October 2011 and a meeting onsite on 1 November 2011. At the site meeting on 1 November 2011, Mr Farago discussed with Mr Turnbull the likelihood of gaining approval to undertake the proposed activities in the PVP application, including: " - Given that Mr Cory Turnbull does not yet own the property, this site inspection is just preliminary and that an additional site visit would be required to collect detailed data to support the PVP application for Strathdoon, once proof of ownership is provided to me. However, today's site inspection has provided clarity that some activities outlined in the PVP plan for Strathdoon would not be possible; … - With regard to regrowth, there was a mix of remnant and regrowth and native vegetation in the areas proposed … in 'Activity 1' in the PVP plan for Strathdoon; - With regards to Mr Cory Turnbull's proposal to change the current land use from 'heavy grazing' to 'minimum till cultivation', there was a mix of areas of groundcover that were greater than 50% native groundcover was present and areas where less than 50% native groundcover was present. Consequently, Mr Cory Turnbull would not be able to cultivate areas where greater than 50% groundcover was present, but I would need to collect further data on groundcover percentages to determine where Mr Cory Turnbull's intention to cultivate the groundcover may be possible; - I would need to return to Strathdoon to collect data to determine whether Mr Cory Turnbull could get authorisation to clear paddock trees in the existing cultivated paddocks proposed in 'Activity 2' in the PVP plan for Strathdoon; - That approval to undertake the broadscale clearing of remnant native vegetation, outlined in 'Activity 3' in the PVP plan for Strathdoon, could not be authorised as the vegetation is a mix of 'Poplar Box grassy woodland on alluvial heavy clay soils in the Brigalow Belt South Region' which is a greater than 70% cleared vegetation type, or 'Brigalow-Belah woodland on alluvial often gilgaied clay soil mainly in the Brigalow Belt South Bioregion' which forms part of the Endangered Ecological Community known as 'Brigalow within the Brigalow Belt South, Nandewar and Darling Riverine Plains Bioregions'; and - I stated to Mr Cory Turnbull that I would need to think about the remaining proposed activities in the PVP plan for Strathdoon and how they would work in a PVP, but I'd need to undertake the additional site visit of Strathdoon once he owned the property before I could finalise the draft PVP."
On 16 November 2011, Mr Farago telephoned Mr Turnbull and had a conversation to the following effect: Mr Farago: Based on my further thinking since the site visit on the 1st November, nothing had changed from the discussion we had on site. Specifically, that approval to undertake the broadscale clearing of remnant native vegetation, outlined in 'Activity 3' in the PVP plan for Strathdoon, could not be authorised as the vegetation is a mix of greater than 70% cleared vegetation type, and an Endangered Ecological Community. Mr Turnbull said: Well what do you think I could do in a PVP? Mr Farago said: There is the possibility of the PVP determining continuing use and clearing of the paddock trees in the existing cultivated paddocks utilising the proposed offset areas, and determining the characteristics of regrowth on Strathdoon. However, I wouldn't do any further work on your application until I've seen proof that you own the property. Mr Turnbull said: OK, I'll send you proof of ownership once the sale has settled.
On 1 December 2011, the Environment Protection Authority ("EPA"), which at the time administered the Native Vegetation Act 2003, wrote to Mr Turnbull saying, amongst other things: "The EPA understands that you have recently purchased the property 'Strathdoon'. During recent investigations involving your family the EPA identified that breaches of the NV Act have occurred and 'Strathdoon' is substantially covered by what appears to be remnant vegetation (see attachment A). While the EPA fully expects that you will comply with legislative requirements our aim is to ensure that you are fully aware of your responsibilities with respect to the NV Act. Clearing of native vegetation can be permitted via a Property Vegetation Plan (PVP) if it maintains or improves environmental outcomes. The EPA is aware that you have lodged an application seeking approval to clear native vegetation on 'Strathdoon' (PVP Request 15332). You are encouraged to carefully consider all advice you receive from the Border Rivers-Gwydir Catchment Management Authority (BRG-CMA) before you carry out any native vegetation management activities on 'Strathdoon'. Please be aware that it is an offence to clear remnant native vegetation except in accordance with a PVP granted under the NV Act, unless the clearing is otherwise permitted under the NV Act. Courts can impose significant penalties for clearing native vegetation in contravention of the NV Act. In addition, the EPA may impose Penalty Notices and/or require the landowner or person responsible for the management of the land where illegal clearing has occurred to take steps to remediate the land."
Starting on or about 18 January 2012 and continuing through to 4 September 2012, Mr Cory Turnbull personally carried out or authorised others to assist him in carrying out clearing of native vegetation on Strathdoon. The areas in which clearing occurred were identified and numbered as polygons. The two principal areas were polygons 12 and 17. There were four other small areas, polygons 13, 14, 15 and 16, in which native vegetation was cleared. The size of these cleared areas was respectively, 0.6 hectares, 0.4 hectares, 0.7 hectares and 2.2 hectares. At the sentence hearing, these small cleared areas were not addressed by the experts or pursued by the prosecutor in final submissions. The clearing in these small areas and its consequences would have a negligible influence on the sentence for the offence. Hence, I do not propose to address the clearing in these small areas or its consequences, but will address the clearing in polygons 12 and 17 and its consequences.
The clearing was carried out in order to allow cropping or prepare the areas for broadscale cultivation in polygons 12 and 17. The clearing involved pushing over of trees and other woody plants using a bulldozer and pushing of felled vegetation into stacks and windrows.
On 15 February 2012, Mr Cory Turnbull telephoned Mr Farago and notified him that he had settled the purchase of Strathdoon and that he wished to pursue the PVP application. They discussed the investigation by the EPA of alleged illegal clearing on Strathdoon. Mr Turnbull said: "OK, but it shouldn't be a problem as I've only been clearing regrowth and areas where the groundcover is less than 50% native". Mr Farago replied: "I would suggest that you stop any clearing of native vegetation until the EPA investigation is concluded and you have an approved PVP. In the meantime, I'll contact you the day before the 23rd February to confirm that it is still OK to undertake the site visit."
On 21 February 2012, Mr Farago telephoned Mr Turnbull to cancel the site visit on 23 February 2012 due to the ongoing EPA investigation of alleged illegal clearing on Strathdoon. Mr Farago told Mr Turnbull that his existing application for a PVP was on hold until the EPA investigation was completed.
On 27 March 2012, Mr Cory Turnbull was interviewed by investigators from the Office of Environment and Heritage about earlier clearing that had been carried out on Strathdoon by his grandfather, Mr Ian Turnbull, between 1 November 2011 and 18 January 2012. This clearing was not in polygons 12 and 17 that are the subject of the charge in these proceedings. However, the interview put Mr Cory Turnbull on notice of the concerns about illegal clearing of native vegetation at Strathdoon.
That clearing on Strathdoon in the period 1 November 2011 and 18 January 2012 was the subject of two proceedings: first, a prosecution of Mr Ian Turnbull (see Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150) and second, an appeal against a direction for remedial work on Strathdoon by Mr Cory Turnbull (see Turnbull and Another v Director-General, Office of Environment and Heritage (2014) 212 LGERA 163; [2014] NSWLEC 84.
Notwithstanding these various discussions and events, Mr Cory Turnbull continued to clear native vegetation on Strathdoon. The timing of the clearing was agreed between the parties to be, for the clearing in polygons 12 and 17, after 26 April 2012 and, for the pushing over of some trees in polygon 17, mostly before 28 June 2012.
A wheat crop was subsequently planted in polygon 12 and was harvested. Polygon 17 was subsequently sown to a field crop in 2013. The areas within both polygons continue to be cropped by Mr Turnbull to date.
The total area of both polygons 12 and 17, within which native vegetation was cleared, was 316.1 hectares, polygon 12 being 102.3 hectares and polygon 17 being 213.8 hectares. Most parts of these polygons were totally cleared of native vegetation, but some parts retained paddock trees. The trees which were cleared included Brigalow (Acacia harpophylla), Belah (Casuarina cristata), Poplar Box or Bimble Box (Eucalyptus populnea ssp. bimbil), Western Rosewood (Alectryon oleifolius), Wild Lime (Citrus glauca) and Wild Orange (Capparis mitchellii).
In addition, there was removal of native groundcover in polygon 17 during the charge period. The species of native groundcover included Queensland Bluegrass (Dichanthium sericeum), Windmill Grass (Chloris truncate), Slender Windmill Grass (Chloris divaricata) and Fairy Grass (Sporobolus caroli).
Each of these tree species and groundcover species are native to New South Wales.
In pleading guilty to the offence, Mr Turnbull has admitted the essential elements of the offence: 1. clearing occurred on the property; 2. clearing was of "native vegetation" as defined in the Act; 3. the clearing was not done in accordance with any development consent granted in accordance with the Act; 4. the clearing was not done in accordance any property vegetation plan approved under the Act; and 5. Mr Cory Turnbull carried out or was legally responsible for the carrying out of the clearing.

[6]

Nature of the offence

The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence and its place in the statutory scheme. A proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute. A fundamental consideration with particular relevance to environmental offences is the degree by which, having regard to the maximum penalties, the offender's conduct would offend against the legislative objective expressed in the statutory offence: Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15] and the cases cited.
The objects of the Act are stated in s 3 to be: "The objects of this Act are: (a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and (b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and (c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and (d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development."
The principles of ecologically sustainable development are described in s 6(2) of the Protection of the Environment Administration Act 1991. These principles are described as involving the principles of the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms. The third principle, the conservation of biological diversity and ecological integrity, is a fundamental consideration in the administration of the Act. For an explanation of the principles of ecologically sustainable development and of the principle of conservation of biological diversity and ecological integrity in particular, see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [56]-[63].
One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining approval for clearing of native vegetation, either in the form of a development consent or a property vegetation plan that permits the clearing of native vegetation. The application for and the grant of either form of authority involves undertaking a type of environmental impact assessment of the proposed clearing and the environmental outcomes that are likely to be achieved if the clearing takes place. The statutory provisions requiring prior environmental impact assessment and approval for the clearing of native vegetation are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including achieving the principles of ecologically sustainable development.
There is a need for the upholding of the regulatory system under the Act. The system depends on persons, first, taking steps to ascertain when authority is required to clear native vegetation, secondly, making an application in the appropriate form and manner and obtaining the requisite authority before undertaking the clearing of native vegetation and, thirdly, complying with the terms and conditions of any authority (whether a development consent or a property vegetation plan) in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna: Director-General of the Department of Environment and Climate Change v Rae at [18] and cases cited.
Offences which undermine the integrity of the regulatory system are objectively serious. The use of the criminal law ensures the credibility of the regulatory system.
The actions of Mr Cory Turnbull in clearing native vegetation on Strathdoon without the authority conferred by a development consent or property vegetation plan offended against the legislative objective expressed in the statutory offence (s 12(1) of the Act) and thwarted the attainment of the objects in s 3 of the Act. As found below, the native vegetation cleared had high conservation value and contributed to biodiversity, the effects were similar to broadscale clearing and did not improve or maintain environmental outcomes, and the commission of the offence caused actual environmental harm that was substantial. The actions of Mr Turnbull and their consequences ran counter to the objects of the Act and were not in accordance with the principles of ecologically sustainable development, for reasons analogous to those given in Bentley v BGP Properties Pty Limited at [65]-[71], [169]-[171].

[7]

Maximum penalty for the offence

The maximum penalty for the offence is relevant in determining the objective gravity of the offence. The maximum penalty for an offence is a public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It also provides a sentencing yardstick for the offence before the Court: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]. A yardstick is an instrument of measurement. The maximum penalty for an offence is used to measure the relevant features of a particular instance of an offence against the worst case: R v Campbell [2014] NSWCCA 102 at [28].
At the time of the commission of the offence, the maximum penalty prescribed by Parliament was $1,100,000 and a further daily penalty of $110,000: see s 12(2) of the Act which referred to s 126(1) of the Environmental Planning and Assessment Act 1979.
Subsequently, the Environmental Planning and Assessment Amendment Act 2014 introduced a three tier offence regime for offences against the Environmental Planning and Assessment Act and the maximum penalties were changed depending on the tier of the offence and whether the offender is a corporation or an individual: see ss 125A, 125B and 125C of the Environmental Planning and Assessment Act. These legislative changes came into force on 31 July 2015.
However, this changed penalty regime under the Environmental Planning and Assessment Act does not apply to the offence committed by Mr Turnbull against s 12(1) of the Native Vegetation Act, for the reasons given in Council of the City of Sydney v Adams [2015] NSWLEC 206 at [25]-[31].
The reference in s 12(1) of the Native Vegetation Act to s 126 of the Environmental Planning and Assessment Act is a reference to s 126(1) of the Environmental Planning and Assessment Act in force immediately before its repeal by the amending Act: see cl 44 of Sch 7 of the Environmental Planning and Assessment Regulation 2000.
The consequence is that the maximum penalty for the offence committed by Mr Turnbull remains at $1,100,000.

[9]

Some initial comments about the number of trees cleared

The aggregate area of polygons 12 and 17, in which native vegetation was cleared, was 316 hectares. The prosecutor sought to calculate approximately how many trees and shrubs might have been cleared within this aggregate area. No count had been taken before the clearing commenced. The nature and extent of the clearing precluded a count being taken after the clearing had occurred. Hence, the prosecutor sought to estimate the number of trees and shrubs cleared by extrapolation from assessments of the density of woody vegetation in representative quadrats to the canopy cover of trees and shrubs in the polygons shown in aerial photographs before the clearing occurred. The prosecutor contended that the clearing involved: "the removal of trees and shrubs numbering in their thousands and likely to have been in excess of 3,700, comprising native vegetation, with the exception of the African Boxthorn which was occurring in localised infestations mainly in areas beneath trees with canopies of 12 metres or higher".
This rounded figure of 3,700 (based on Mr Spiers' lower estimate of 3,709) was broken up to be, in polygon 12, at least 1,269 and, in polygon 17, 2,405 trees or shrubs, with the balance being in the smaller polygons. The prosecutor submitted that no more than 30 trees remained after clearing in polygon 12, some damaged by fire, and approximately 36 trees left in polygon 17, all of which were subsequently removed after the charge period.
The prosecutor also submitted that, in addition to whatever number of trees and shrubs were cleared in polygons 12 and 17, the clearing undertaken by Mr Turnbull involved clearing of native groundcover growing around and between the trees and shrubs. Native groundcover was cleared, in one or more of the ways defined in s 7 of the Act, through the actions of the bulldozer pushing over trees and shrubs and pushing felled vegetation into stacks and windrows. Furthermore, in polygon 17, during the charge period, Mr Turnbull raked and ploughed the cleared areas, which caused further clearing of groundcover.
Mr Turnbull disputed that the number of trees and shrubs cleared in contravention of the Act was as high as the prosecutor claimed. The defendant submitted that the number of trees cleared in contravention of the Act was lower for four reasons. First, some of the trees included in the prosecutor's count might have been African Boxthorn, a non-native species. Second, some of the trees included in the prosecutor's count were located in areas where clearing for routine agricultural management activities was permissible without approval under the Act, such as along fence lines. Third, many of the trees included in the prosecutor's count were regrowth and able to be cleared without approval under the Act. Fourth, Mr Turnbull submitted that the evidence on which the prosecutor's count was based overstated both the likely density and the likely number of trees in the areas cleared.
Mr Turnbull did not put forward his own estimates of the number of native trees cleared in contravention of the Act. Instead, the defendant led evidence estimating the aggregate of the areas of trees cleared within the polygons in contravention of the Act. This was around 15 hectares in polygon 12 but there was no area in polygon 17 because Mr Turnbull submitted all of the trees cleared in polygon 17 were regrowth.
Mr Turnbull also took issue with the prosecutor's allegation of unlawful removal of native vegetation in polygon 17 by raking and ploughing during the charge period. Mr Turnbull submitted that the prosecutor had not established, beyond reasonable doubt, that native groundcover existed across polygon 17. Mr Turnbull noted that the prosecutor had not particularised in the summons the native vegetation cleared to include groundcover in polygon 12.
I will shortly address this dispute between the parties about the areas and quantum of native vegetation cleared. At the outset, however, I should note that, in a number of respects, the parties respective contentions about the number of trees cleared lost perspective and overlooked the critical question for sentencing of the environmental harm caused by the clearing undertaken by Mr Turnbull. The environmental harm caused by the commission of the offence was not simply a product of the precise number of trees that were cleared by Mr Turnbull.
First, trees were only part of the native vegetation cleared in polygons 12 and 17 on Strathdoon. Native vegetation is made up of different types of indigenous vegetation, including trees (including any sapling or shrub, or any scrub), understorey plants and groundcover (being any type of herbaceous vegetation): see s 6(1) of the Act. Hence, "the quantum of native vegetation cleared" (to use the expression in Walker Corporation Pty Ltd v Director-General of the Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210 at [98]) is not limited to the number of trees cleared.
Secondly, as I observed in Director-General of the Department of Environment and Climate Change v Rae at [37]: "The significance of the number of trees removed needs to be evaluated in the context of the vegetation type in which the trees occur. The vegetation types of woodland and open woodland, by definition, have lower average densities (numbers) of trees per hectare than forest vegetation types, and hence will have greater space between trees. Hence, removal of a particular number of trees over a given area will have materially different effects if the vegetation type is a woodland or open woodland than a forest; it may result in the total or almost total clearance of the land in a woodland or open woodland but only partial clearance in a forest."
Thirdly, as I also observed in Director-General of the Department of Environment , Climate Change and Water v Rae at [38]: "The significance of the number of trees needs also to be evaluated by reference to the trees involved - their species, nature, age, ecological attributes, biological interactions and contribution to ecosystem functioning amongst other features - and the consequences caused by their removal."
As I find below, the areas cleared in polygons 12 and 17 on Strathdoon contained woodlands with relatively intact woody vegetation. The clearing resulted in the almost total removal of woody vegetation (apart from isolated trees) from areas that were previously of woodland and/or open woodland tree density. About 102 hectares in polygon 12 were cleared to such an extent that no more than 30 trees remained, and about 214 hectares in polygon 17 were cleared to the extent that only approximately 36 trees remained (which were later removed after the charge period). Furthermore, in polygon 17, during the charge period, raking and ploughing of the cleared areas removed whatever other native vegetation remained after the clearing. The clearing increased fragmentation, reduced vegetative connectivity and removed inadequately conserved vegetation communities, native vegetation important for maintenance of biodiversity and habitat of threatened species. Taking account of all of these factors, the effect of the clearing of native vegetation was similar to that of broadscale clearing, an outcome which the Act was intended to prevent (see s 3(b) of the Act).
Fourthly, flowing from these three points, the area impacted by the clearing was not limited to the sum of the areas of ground beneath the canopies of the trees that were cleared. This was the approach advocated by Mr Turnbull. It is incorrect. The trees cleared were but part of the native vegetation that occurred and that were cleared in polygons 12 and 17. The areas of native vegetation cleared were therefore larger in extent than the sum of the areas of ground beneath the canopies of the trees cleared.
Moreover, the trees cleared formed part of the ecological communities that occurred across and beyond the polygons. An ecological community is an assemblage of species occupying a particular area and interacting ecologically. The removal of individuals of a species from a particular area affects the ecological interactions and ecological functionings of other individuals of the species and of other species comprising the ecological community. For example, scattered trees, insofar as they have ecological relationships with other biota, such as for feeding or roosting of birds and animals, or microclimates and habitats for plants beneath their canopies, can make a disproportionately large contribution to ecological functioning at a local and a landscape level considering the relatively small area they occupy within the landscape. Hence, the removal of all or most of the trees in the cleared polygons affects the ecological interactions and functionings of the ecological communities in those polygons and elsewhere in the area occupied by those ecological communities. The impact of the removal of each tree is therefore not limited to the ground beneath the canopy of the tree, but extends further in space and in different ecological ways.
I made this point in earlier proceedings by Mr Cory Turnbull appealing a direction to undertake remedial work to compensate for previous clearing on Strathdoon. In Turnbull and Another v Director-General, Office of Environment and Heritage at [98] I said: "Calculating the area of native vegetation to be remediated based on areas of projected canopy cover cleared is particularly problematic with woodland and open forest communities where the definition of the communities and the functioning of the communities depends on there being spaces between the trees. In a case involving Cumberland Plain Woodland (an endangered ecological community) an approach to determine the area of the community on-site by limiting it to the areas immediately around the trees was rejected by the Court: Commercial & Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 at [26]-[43]. Vegetation communities are more than just the sum of canopy areas of the tallest stratum, such as trees. While the composition of the canopy is important to characterise communities and to permit their recognition, it is the totality of vegetation which provides the structural framework for habitat and primary productivity, which is utilised by the range of biodiversity which forms the ecological communities."
For these reasons, the reductionist approach of Mr Turnbull misdirected the necessary inquiry as to the environmental harm caused by the commission of the offence by looking only at the size of the areas beneath the canopies of the trees that were actually cleared.

[10]

The prosecutor's calculation of area and number of trees cleared

With these introductory comments, I now will address the dispute about the size of the areas cleared and the number of trees cleared.
Mr Spiers, a Natural Resources Project Officer with the prosecutor with expertise in the interpretation of aerial and satellite imagery, gave evidence identifying the areas on Strathdoon that were cleared in the charge period (essentially polygons 12 and 17) based on a comparison of aerial and satellite images of Strathdoon before and after the clearing during the charge period. Mr Spiers identified the areas cleared by drawing polygons around the areas of clearing (which he numbered, including as polygons 12 and 17) and calculated the area contained within the polygons (102.3 hectares for polygon 12 and 213.8 hectares for polygon 17).
Mr Spiers then quantified the number of trees and shrubs (he referred to them collectively as trees) removed in the polygons, by comparing the trees present in the images before the clearing with the trees present in the images after the clearing.
Where he could do so, he identified and counted the individual trees present before and after the clearing. This was done for trees in areas of tree cover described as being sparse or open (S), very sparse (V) or isolated plants (I). Mr Spiers said that the counting of individual trees in areas of low tree density was done with an estimated confidence level based on experience of 95%, which meant that there was a 5% margin for error. Mr Spiers said this was conservative. Mr Spiers provided a lower estimate that was 5% lower than his actual count and an upper estimate that was 5% higher than his actual count.
In areas of tree cover described as mid-dense (M) or higher, Mr Spiers identified the areas of clumps of trees and applied an average number of trees per hectare (29.7 trees per hectare) that he had derived from an assessment of six, half-hectare sample sites with mid-dense tree cover. Mr Spiers applied an upper and lower estimate for the average number of trees per hectare in the clump areas (25.2 and 34.2 trees per hectare respectively), on the basis of a range where there was a 95% chance that the number of trees within any other sample areas would have been within this range. Mr Spiers said the confidence level of 95% is a widely accepted level of significance in the scientific community.
Mr Spiers estimated that for polygon 12, the tree density prior to clearing was that there were some areas of mid-dense tree cover, large areas of sparse tree cover and the remainder of very sparse tree cover. The tree density following clearing was that there were some areas of very sparse tree cover, with a crown separation ratio greater than 10, and the remainder totally cleared. Mr Spiers estimated for polygon 17 the tree density prior to clearing was mostly mid-dense to very sparse tree cover and the tree density following clearing was very sparse tree cover, with a crown separation ratio greater than 10.
Applying these methods of counting individual trees and estimating trees in clumps, Mr Spiers provided a lower estimate of the total number of trees removed on Strathdoon as 3,709 (being 888 individual trees and 2,820 estimated trees within areas of clumps) and an upper estimate of 4,807 (being 982 individual trees and 3,825 estimated trees within areas of clumps). These total figures included some small areas in other polygons (polygons 13-16) with a total area of around 3.9 hectares, that are not now pursued by the prosecutor. For polygon 12, Mr Spiers provided a lower estimate of the total number of trees removed of 1,269 (being 257 individual trees and 1,013 estimated trees within areas of clumps) and an upper estimate of the total number of trees removed of 1,657 (being 284 individual trees and 1,374 estimated trees within areas of clumps). For polygon 17, Mr Spiers provided a lower estimate of the total number of trees removed of 2,405 (being 614 individual trees and 1,791 estimated trees within areas of clumps) and an upper estimate of the total number of trees removed of 3,108 (being 678 individual trees and 2,429 estimated trees within areas of clumps).

[11]

Mr Turnbull's challenge to the area of native vegetation cleared

Mr Turnbull challenged Mr Spiers' calculation of the area of native vegetation cleared in polygons 12 and 17. Mr Turnbull did not dispute that each polygon was of the size that Mr Spiers calculated. Rather, Mr Turnbull challenged that the native vegetation that was cleared within those polygons occupied the total area of the polygons. Mr Turnbull relied on the evidence of Dr Jenkins, a Senior GIS Consultant. Dr Jenkins calculated and aggregated the areas beneath the crowns of the trees and shrubs that were cleared in the polygons. Dr Jenkins estimated that 35% of the total area of polygon 17 had crown cover. He estimated that 50% of that crown cover was trees and 50% was shrubs, giving about 18% for each of trees and shrubs. Dr Jenkins deducted an allowance for the area in which routine agricultural management activities could be carried out (2.25 hectares) from the total area of polygon 17 (213.8 hectares) to give an adjusted area of 211.55 hectares. Dr Jenkins applied his estimates of crown cover for trees and shrubs to this adjusted area to derive 37.02 hectares as the area of both trees and shrubs cleared in polygon 17.
For polygon 12, Dr Jenkins applied the same methodology, although he broke up polygon 12 into three sub-areas (12a, 12b and 12c) that had different crown cover and different proportions of trees and shrubs. Applying the same methodology as he had for polygon 17, Dr Jenkins' calculations for polygon 12 were, for 12a, 4.87 hectares of trees cleared and 2.09 hectares of shrubs cleared; for 12b, 11.14 hectares of trees cleared and 2.78 hectares of shrubs cleared; and for 12c, 6.49 hectares of trees cleared and 1.62 hectares of shrubs cleared.
Dr Jenkins' calculations are of little assistance in determining the areas of the environments on polygons 12 and 17 harmed by the clearing in contravention of the Act. As I have earlier stated, the area affected by the clearing is not restricted to each piece of ground underneath the crown of each tree and shrub cleared. The environmental impacts of clearing trees and shrubs from these pieces of ground extended far further across the landscape. Mr Spiers' calculation of the areas within the polygons of cleared land provided lower bounded estimates of the areas affected by the clearing. As I have noted, the ecological impacts of the clearing extend beyond the areas actually cleared. Dr Jenkins' estimated areas of crown cover lost do not assist in understanding the full extent of environmental harm caused by the clearing.

[12]

Mr Turnbull's challenge to the number of trees cleared

Mr Turnbull also challenged Mr Spiers' estimates of the number of trees cleared in polygons 12 and 17. The challenge was not to the counting of individual trees in areas of low tree density but rather to the estimated number of trees in the areas of clumps of trees. There were three main grounds of challenge to the estimation of the number of trees in clumps.
First, Mr Turnbull was critical that Mr Spiers' half-hectare sample sites with mid-dense tree cover (which were used to derive the average number of trees per hectare) were not within polygons 12 and 17 that were cleared. I do not find this to be a limiting factor. The sample sites were selected by Mr Spiers as having mid-dense tree cover representative of the areas of mid-dense tree cover in the polygons that were cleared. This is a sufficient basis for Mr Spiers to select these sample sites to derive an average number of trees per hectare that he could apply to derive an estimate of the number of trees in the areas of clumps in the polygons that were cleared. Indeed, at the time Mr Spiers prepared his expert reports, he could not have selected the half-hectare sample sites within polygons 12 and 17 because of the extent of clearing that had already occurred in those polygons.
Secondly, Mr Turnbull criticised Mr Spiers for not distinguishing between trees and shrubs. Mr Spiers' clumps did not discriminate between trees and scrubs. Consequently, Mr Turnbull submitted, Mr Spiers overstated both the likely density and likely number of trees removed in the polygons. Mr Turnbull referred to Dr Jenkins' evidence that the clumps that Mr Spiers treated as being trees in fact had a high proportion of shrub layer, some had closed canopies, and there was groundcover within some clumps which was not excluded by Mr Spiers drawing a line around the clump. Mr Turnbull contrasted Dr Jenkins' approach which did distinguish between trees and shrubs and calculated the areas beneath the crowns of trees and shrubs separately.
I reject this criticism of Mr Spiers' evidence. As I have noted earlier, native vegetation is not limited to trees alone, but includes all types of native vegetation. The environmental harm caused by the commission of the offence by Mr Turnbull is not restricted to the removal of trees alone, but also the removal of any shrubs, groundcover or other types of native vegetation in the areas cleared. Mr Spiers' estimates included both trees and shrubs that were able to be identified from the images as having been cleared. This is more helpful in understanding the quantum of native vegetation cleared than if only the number of trees cleared had been provided.
Thirdly, Mr Turnbull contested Mr Spiers' contention that approximately 112 hectares of "clumps of trees" were removed from Strathdoon. Mr Turnbull relied on Dr Jenkins' evidence taking issue with what Mr Spiers referred to as being clumps of trees. Dr Jenkins was unsure of what Mr Spiers included as clumps of trees. Dr Jenkins opined that Mr Spiers may have been referring to small areas within the polygons that contain certain localised tree density sufficient to be referred to as clumps (crown cover of 50-80%). If this was the case, Dr Jenkins said that such clumps were highly localised in the polygons and were small in area (two hectares in polygon 12 and areas of 0.1 to 0.2 hectares in polygon 17). Dr Jenkins therefore said that he was unable to agree with Mr Spiers that 112 hectares of clumps had been removed from Strathdoon.
I do not find this evidence of Dr Jenkins of assistance. Dr Jenkins was not able to access Mr Spiers' feature data sets that outlined the areas of vegetation clumps that Mr Spiers had used in calculating the area of 112 hectares of clumps. Dr Jenkins therefore speculated as to what features Mr Spiers might have been referring to in calculating the area of 112 hectares of clumps. Clearly, Mr Spiers included many more areas as clumps of trees than Dr Jenkins did, as Dr Jenkins only derived a few hectares of clumps in both polygons. Dr Jenkins did not embark on an alternative calculation of the number of trees in clumps. Instead, Dr Jenkins adopted an alternative methodology of simply determining the area of land beneath the crowns of trees and shrubs cleared. Dr Jenkins' evidence does not establish that Mr Spiers' calculation that there were 112 hectares of clumps of trees was incorrect, merely that Dr Jenkins did not adopt the same approach.

[13]

Mr Turnbull's argument for exclusion of African Boxthorn

Mr Turnbull criticised Mr Spiers' calculations of the size of areas cleared and the number of trees cleared for not making allowance for the existence of the non-native species, African Boxthorn. Mr Turnbull noted that the prosecutor's expert ecologist, Dr Nadolny, estimated that 1-2% of the vegetation that had been cleared, by biomass, comprised African Boxthorn. However, Mr Turnbull criticised that estimate as being based only on Dr Nadolny "looking about" and nothing else. Mr Turnbull also referred to the report of Dr Peter Hall, another ecologist, on which Dr Nadolny also relied. Dr Hall stated, based on his observations and assessments undertaken on the neighbouring property of "Colorado", that "in clumps of larger trees, African Boxthorn is dominant in the shrub layer on those sites where trees over 12m occur and comprises 10-50% crown cover in the shrub layer in those areas".
Mr Turnbull submitted that an allowance should have been made for the fact that the clearing included African Boxthorn that comprised 10-50% crown cover in the shrub layer in certain areas.
I reject this criticism. Neither of Mr Spiers' calculations of the total area cleared or the total number of trees cleared need to be adjusted because of the presence of African Boxthorn in certain parts of the shrub layer. Mr Spiers' calculation of the total areas cleared was simply a calculation of the areas of the polygons in which native vegetation was cleared. The presence of non-native vegetation within these areas cleared does not alter the calculation of the size of the areas within which native vegetation was cleared.
The presence of some non-native species within areas of native vegetation is usual. As the Court of Criminal Appeal noted in Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water at [32], [33]: "It must be remembered that in many situations where native vegetation exists there is also likely to be vegetation which is not indigenous. Ordinary experience suggests that many introduced species have found Australia's natural environment conducive to their propagation, very often to a level that seriously impacts upon the indigenous species. It could not have been the intention of the legislature that in circumstances where non-indigenous species were present, the Act would not operate to protect the indigenous species of vegetation. Accordingly, I accept the respondent's submission that a purposive interpretation of s 6(2) requires that the word 'comprises' be construed as 'includes'. To construe the word as meaning 'consists of' would frustrate the Act's stated objects of protecting native vegetation and preventing broadscale clearing that does not improve or maintain environmental outcomes. So to construe s 6(2) would require the prosecution to painstakingly identify the precise quantum of indigenous vegetation within a large parcel of land. In most cases where native vegetation has been cleared, although it may be possible to identify after the event that some individual trees have been removed, the vegetation will be in such a state that it is not possible to identify individual plants or trees which have been destroyed. The practical result of the appellant's interpretation would be to preclude a good many prosecutions, even where the evidence suggests that large-scale clearing has incidentally destroyed native vegetation." See also Rummery v Chief Executive, Office of Environment and Heritage (2014) 201 LGERA 428; [2014] NSWCCA 106 at [148].
Mr Spiers' estimate of the number of trees cleared within these areas is also not affected by the presence of African Boxthorn. Dr Nadolny's evidence was that African Boxthorn generally occurred as a shrub 1-2 metres tall and generally grew beneath trees. Any significant infestations were confined to localised areas. Dr Hall's evidence was similar that African Boxthorn occurred in the shrub layer in clumps of larger trees (over 12 metres). Mr Spiers' calculations of the number of trees cleared were derived from viewing the canopies of trees visible in the aerial and satellite images. Any African Boxthorn growing beneath the canopy of a tree or clump of trees would not have been visible in the aerial and satellite images, and therefore would not have been included in the counts or estimates of trees. Hence, no deduction from the estimated number of trees needs to be made. Any African Boxthorn plants not growing beneath trees, but in the open, would likely be few in number, both because of its general growth habit in the shrub layer beneath trees and because any significant infestations were confined to localised areas. The deduction that might need to be made to account for these isolated African Boxthorns would likely be small in number and potentially within the margin for error already allowed by Mr Spiers for other reasons. It would not materially affect the estimated number of trees cleared in the polygons determined by Mr Spiers.

[14]

Mr Turnbull's argument for exclusion of routine agricultural management activities

Mr Turnbull submitted that allowance needs to be made for areas of native vegetation that could have been cleared for routine agricultural management activities. Dr Jenkins calculated the areas that could have been cleared along permanent boundary and internal fence lines within polygons 12 and 17, allowing the width permitted by the regulation on one side of a fence in the case of fences occurring along the margins of cleared areas. Dr Jenkins calculated 2.25 hectares for polygon 17 and a total of 1.77 hectares for polygons 12a, 12b and 12c, giving a total deduction of 4.02 hectares. Mr Turnbull submitted that these areas, and the native vegetation within them, could have been cleared without approval in order to undertake routine agricultural management activities (see s 22(1) of the Act). Hence, the areas and the number of trees in the areas should be deducted from Mr Spiers' calculations.
The difficulty with this argument is that the clearing of native vegetation in those areas identified by Dr Jenkins was not in fact done by Mr Turnbull to carry out any routine agricultural management activity, including to construct boundary or internal fence lines. The polygons identified by Mr Spiers are artificial constructs used to derive the size of the areas and the number of the trees in the areas cleared. They do not represent any defined agricultural management area. Rather, those areas that were cleared were included within larger cultivated areas.
I do not consider a deduction should be made from the calculations of the areas cleared and the quantum of native vegetation cleared for routine agricultural management activities that Mr Turnbull had no intention of undertaking and did not in fact undertake. The onus of establishing that the clearing of native vegetation was permitted under Div 3 of Pt 3 of the Act, including that the clearing was for routine agricultural management activities under s 22(1), rested on Mr Turnbull (see s 12(3) of the Act). He has not discharged that onus. The clearing involved in the commission of the offence was not done for any activity within the meaning of "routine agricultural management activities" in s 11(1) of the Act. Mr Turnbull did not undertake the clearing for the construction, operation or maintenance of any fences, but rather to establish cropping areas. Furthermore, Mr Turnbull has not established that any clearing did not exceed the minimum necessary for carrying out any activity: see s 22(2)(a) of the Act and cl 26 of the Native Vegetation Regulation 2013.
In any event, even if allowance were to be made for areas that could have been cleared for routine agricultural management activities, the size of the areas is very small, totalling about 4 hectares on Dr Jenkins' calculations out of the 319 hectares cleared. This would not make any meaningful difference to the assessment of environmental harm caused by the clearing in contravention of the Act.

[15]

Mr Turnbull's argument for exclusion of regrowth

Mr Turnbull submitted that the native vegetation cleared on Strathdoon was largely regrowth that Mr Turnbull was permitted to clear without the authority conferred by a development consent or property vegetation plan. Mr Turnbull bears the onus of establishing that the clearing was permissible under Div 2 of Pt 3 of the Act and hence that the native vegetation that he cleared was "only regrowth" that was permitted to be cleared under s 19(1) of the Act: see s 12(3) of the Act and Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [134] and cases cited and Rummery v Chief Executive, Office of Environment and Heritage at [159], [166]. Mr Turnbull must make out these matters on the balance of probabilities (see s 141 of the Evidence Act 1995).
In Director-General of the Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) at [136]-[144], I explained the regrowth defence under the Act: "First, the defence operates with respect to the native vegetation that has been cleared in contravention of s 12. It is that native vegetation that must be established to be 'only regrowth'. Secondly, that native vegetation must be established to have 'regrown' so as to be 'regrowth', before it was cleared in contravention of s 12. It is not sufficient for the native vegetation to have 'grown' or be 'growth'; it must have 'regrown' so as to be 'regrowth'. For native vegetation to regrow, there must be a prior act or event of disturbance that is a cause of the regrowth. At the level of an individual plant of native vegetation, the act could be by humans or nature. For example, the cutting down of a tree by humans or the breaking off of a tree by a storm might result in regrowth from the remnant stump, such as coppice growth. The tree could be said to have regrown following the prior act of cutting down or breaking off. Similarly, above ground vegetative parts of groundcovers which are removed by slashing or mowing might produce new vegetative parts from rhizomes or subterranean stems. The groundcover could be said to have regrown following the prior act of slashing or mowing. At the level of stands or areas of native vegetation, removal of individual plants of native vegetation by human actions or natural causes may result in the germination of seeds and growth of native vegetation in the vacated space. The new native vegetation could be said to have regrown following the prior removal of the former native vegetation in the stand or area. This meaning of regrowth as connoting growth following upon an act or event of disturbance accords with the examples of excluded regrowth given in s 9(4) of the NV Act. That provision excludes certain types of regrowth from being regrowth if the regrowth follows unlawful clearing of remnant native vegetation or follows clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause. It is the growth of the native vegetation 'following' the unlawful clearing or the clearing by natural causes that makes the native vegetation 'regrowth'. This meaning of native vegetation regrowing following an act or event of disturbance, whether by human actions or natural causes, was adopted by Pain J in Department of Environment and Climate Change v Olmwood Pty Limited at [220], although there was general agreement between the parties. Similarly, Pepper J in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited distinguished between 'growth' and 'regrowth', between growing anew from an original source and growing again: at [234], [235]. Thirdly, not all regrowth of native vegetation will fall within the meaning of 'regrowth' for the purposes of s 9. As noted, s 9(4) excludes certain types of regrowth. If the native vegetation that was cleared in contravention of s 12 had regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause, that native vegetation will not be regrowth for the purposes of s 9 or s 19 of the NV Act. Fourthly, there is a temporal requirement for regrowth. Regrowth for the purposes of s 9 and s 19 of the NV Act only includes native vegetation that has regrown after the relevant date specified in s 9(2) of the NV Act. In the present proceedings, the relevant date is 1 January 1990. Hence, it must be established in the present proceedings that the native vegetation that was cleared in contravention of s 12 had 'regrown' since 1 January 1990. This temporal requirement in s 9(2) is cumulative on the other requirements of regrowth under s 9 of the NV Act. This means that the native vegetation cleared in contravention of s 12 must have 'regrown' within the meaning of that word (regrown following an act or event of disturbance), not regrown following unlawful clearing or following clearing by natural clauses within s 9(4), and regrown since 1 January 1990. Fifthly, the native vegetation cleared in contravention of s 12 must have been 'only regrowth' (s 19(1) of the NV Act). This requires each and every plant comprising the native vegetation cleared to be established to be 'regrowth' meeting the requirements of s 9. This requirement of being 'regrowth' will not be satisfied if some but not all of the vegetation was 'regrowth' (others being 'growth'), any of the native vegetation had regrown following unlawful clearing or following clearing by natural causes within s 9(4), or some but not all native vegetation had regrown since 1 January 1990."
In these proceedings, I find that Mr Turnbull has not established, on the balance of probabilities, that the native vegetation cleared on Strathdoon in the charge period was "only regrowth" and hence he has not established that he was permitted to clear the native vegetation under s 12(3) of the Act.

[16]

Native vegetation not established to have "regrown"

First, Mr Turnbull has not established that the native vegetation cleared on Strathdoon in the charge period had "regrown". As I have noted, for native vegetation to regrow, there must be a prior act or event of disturbance that is a cause of the regrowth. Mr Turnbull contended that the native vegetation cleared in the charge period had regrown following extensive clearing of native vegetation on Strathdoon between 1975 and 1985. Both Mr Spiers and Dr Jenkins agreed, from their analyses of the aerial and satellite imagery, particularly the 19 September 1975 and 15 June 1985 images, that extensive clearing of native vegetation occurred on Strathdoon between 1975 and 1985. The experts disagreed, however, on whether the native vegetation that was cleared in the charge period had regrown since 1 January 1990, the relevant date for the purposes of s 9(2)(a) of the Act. Mr Spiers considered that most of the native vegetation cleared had started regrowing by the date of the 1985 image and the remainder had regrown after the 1985 image but before 1 January 1990. Dr Jenkins considered, on balance, that the native vegetation had regrown after 1 January 1990.
The first difficulty Mr Turnbull faced on this evidence was establishing that the native vegetation cleared in the charge period had "regrown" as a result of that extensive clearing between 1975 and 1985 and did not just grow after those dates. It is not sufficient that, in a temporal sense, the point of time when the native vegetation began growing is later than some act or event of clearing or disturbance. There needs to be established some causal link between the earlier act or event of clearing or disturbance and the later growth of the native vegetation so that the native vegetation can be described as having "regrown" following the earlier act or event.
Dr Jenkins gave evidence about certain areas of native vegetation cleared by Mr Turnbull that he termed "candidate regrowth" areas (mainly area 12b in polygon 12 and the whole of polygon 17). In relation to candidate regrowth area 12b, Dr Jenkins accepted that the 1991 image shows "abundance of small regrowth" in the same location as darker patches in the 1985 image. The contentious issue was whether the darker patches in the 1985 image represented "very early stages of regrowth" or whether they were "areas of on-ground woody debris that acted both as a viable propagation zone and exclusion zone for browsing stock". If the former, the vegetation evident in 1991 started regrowing before 1985. If the latter, however, the vegetation evident in 1991 would not have started regrowing before 1985 but rather later. Further, Dr Jenkins observed a small percentage (5%) of trees evident in the 2009 image that were not evident in the 1991 image, suggesting that they had emerged since 1991.
In relation to candidate regrowth area 17, Dr Jenkins considered that the darker patches in the 1985 image were piled up woody debris and not early stage growth of vegetation, the regrowth evident in the 1991 was not necessarily coincident with the darker patches in the 1985 image, the woody vegetation pattern evident in the 2009 image was not always consistent with early stage growth in the darker patches in the 1991 image, and there was woody vegetation present in the 2009 image that was not evident in the 1991 image.
I will address this evidence when I deal with the temporal requirement that any native vegetation that can be said to be regrowth must have regrown since 1 January 1990. For the present purposes, however, I note that Dr Jenkins does not actually address the issue of whether the native vegetation that was cleared in the charge period had "regrown" as a result of the earlier clearing evident in the 1975 and 1985 images. Although Dr Jenkins used the word "regrowth", he did not give any evidence that the cause of the native vegetation growing on the land since 1 January 1990 was that earlier clearing between 1975 and 1985. The purpose of Dr Jenkins' analysis of the images was simply temporal - to identify the dates on which certain vegetation was evident. This accorded with his expertise and his instructions. Dr Jenkins' expertise is in interpretation of aerial and satellite imagery. He has no qualifications or experience in botany or ecology. Dr Jenkins accepted, when cross-examined, that issues concerning the capability and timing of native vegetation to regrow after clearing fell outside his expertise and were matters for botanists.
Dr Jenkins' evidence about regrowth also only addressed trees. Dr Jenkins focused on what he referred to as the darker patches, which he interpreted to contain trees. He had observed in the images lighter patches that he interpreted to be typical of grassy groundcover. Dr Jenkins said that he did not attempt to estimate shrub regrowth. Furthermore, Dr Jenkins did not express any opinion on whether grassy groundcover, or any other type of native vegetation other than trees, had regrown, whether since 1 January 1990 or at all.
The result is that Mr Turnbull has not established that the native vegetation cleared in the charge period had "regrown" as a result of the earlier clearing on Strathdoon between 1975 and 1985.

[18]

Native vegetation not established to have regrown since 1 January 1990

Thirdly, Mr Turnbull has not established that the native vegetation cleared in the charge period had regrown since the relevant date of 1 January 1990.
As I have earlier found, Mr Turnbull did not attempt to establish that any native vegetation that was cleared, other than trees, had regrown since 1 January 1990. In relation to trees, Mr Turnbull relied primarily on Dr Jenkins' evidence that certain darker patches of trees had not regrown by the date of the 1985 image but had by the date of the 1991 image and that other patches of trees had grown after the date of the 1991 image. Mr Turnbull submitted that this evidence established that the trees that were cleared were regrowth.
I find, however, that the evidence does not establish that the native vegetation cleared in the charge period had regrown since 1 January 1990.
First, I prefer the evidence of Mr Spiers to that of Dr Jenkins that the darker patches visible in the 1985 image in the "candidate regrowth" areas 12b and 17 represent early stages of vegetation growth before 1 January 1990. Mr Spiers said that, on a careful analysis of the 3D version of the images: "In my opinion, regrowth is discernible in the 1985 photo, because I can see structures that are short upright trees or shrubs casting shadows in that image in both areas 12b and 17. At least some of the vegetation apparent in this area in 1991 therefore started regrowing by the date of the 1995 image. I can also see dark areas in the 1985 image where regrowth is not apparent, but is apparent in the 1991 image."
In respect of the latter vegetation, Mr Spiers concluded that regrowth started in those dark areas in the 1985 image, even though it was not apparent in that image, because it was present in the 1991 image in the same location.
Mr Spiers elaborated: "37. In the area identified by Dr Jenkins as 12b I have also identified regrowth in the 1991 imagery emanating from the corresponding dark areas in the 1985 imagery, which I observe to be the residue, the remainder of trees and shrubs from the clearing carried out between 1975 and 1985. I have been able to identify the presence of tree regrowth. This regrowth has steadily increased in size and canopy extent up until the clearing events. I therefore do not agree with Dr Jenkins' assertion that the regrowth has occurred after 1 January 1990 because there isn't enough information to make that conclusion. 38. In the area of polygon 17 I have identified regrowth in the 1991 imagery emanating from the corresponding dark areas in the 1985 imagery, which I observe to be the residue, the remainder of trees and shrubs from the clearing carried out between 1975 and 1985. These areas include smaller trees. This regrowth has steadily increased in size and canopy extent up until the clearing events. I therefore do not consider the concept of 'Candidate Regrowth' to be valid and therefore do not agree with Dr Jenkins' assertion that the regrowth has occurred after 1 January 1990…"
Mr Spiers also observed the presence of abundant small regrowth in the 1991 image in the same location as in the 1985 image. This supported his conclusion that features discernible in the 1985 image are consistent with early regrowth.
At the hearing, Mr Spiers demonstrated his evidence by displaying the 1985 and 1991 images, including using a swipe function to move between the images. The same dark areas and features were able to be identified in each image and compared.
In contrast, Dr Jenkins' contention that the dark patches did not show any regrowth but were only piled up woody debris was not demonstrated to my satisfaction. Mr Spiers said in re-examination that, when viewing the images, he could discern the difference between emerging vegetation and on-ground woody debris, including by recognising the different colours and different shapes of vegetation compared to woody debris.
Further, I note that the existence of some piles of woody debris in some patches does not eliminate the coexistence of emerging vegetation in and around the piles. Indeed, Dr Jenkins referred to the areas of on-ground woody debris as "a viable propagation zone and exclusion zone for browsing stock", in which areas regrowth could evidently occur.
Secondly, Dr Jenkins' evidence that the 1985 image does not establish that the native vegetation cleared in the charge period had commenced growing by that date did not prove that the native vegetation commenced growing after 1 January 1990. Dr Jenkins' jumped to that conclusion but did not give any reasons for how that conclusion could be drawn from the images available. All that could be said is that vegetation discernible in the 1991 image, but not in the 1985 image, must have started growing sometime between 1985 and 1991. Dr Jenkins was not in a position to say when the vegetation in the 1991 image started growing or for how long that vegetation had been growing. Dr Jenkins accepted that this was a matter outside his expertise and a matter for a botanist.
Mr Turnbull did call a botanist, Mr Richardson, but Mr Richardson said, during cross-examination, that he did not look at this question but had simply deferred to Dr Jenkins.
Mr Turnbull sought to address this deficiency by examining the 1991 image to determine how big the trees in the darker patches were in that image and hence draw a conclusion as to how long they had been growing to reach that size. Mr Turnbull noted that Mr Spiers accepted in cross-examination that the vegetation in the darker patches in the 1991 image was very small in height and diameter as it cast no shadow, or a very small shadow, indicating a very short stem. It lacked any distinctive texture or pattern. Mr Spiers also accepted that a constraint on the resolution of the imagery at 0.5-0.6 metre pixel size showed that unresolvable vegetation (that is individual tree crowns that cannot be clearly discerned) on the probabilities was very small stems of about 0.5 metres or less. Mr Spiers agreed that while some foliage may be resolvable (for example, as vegetation patches closely packed over a distance of about 10-20 metres), the individual stems are not resolvable and therefore comprise many small stems. Mr Spiers agreed that small stems with crowns less than the resolvable size, on the probabilities were very young regrowth trees.
Mr Turnbull submitted that this evidence established that the trees discernible in the darker patches in the 1991 image were very young and likely to be less than 18 months old (i.e. grew after 1 January 1990).
I do not consider that these answers of Mr Spiers establish that the vegetation discernible in the darker patches in the 1991 image grew after 1 January 1990, for three reasons. First, Mr Spiers' answers only addressed the observable features in the vegetation in the darker patches. He was not asked directly whether, by reason of those observable features, the vegetation he identified started growing after 1 January 1990. That was the conclusion drawn by Mr Turnbull in submissions, but it was not put directly to Mr Spiers. Mr Spiers was asked, in the context of the questioning about patches where the stems are indistinguishable at the pixel resolution, that the probability was that the trees were "very small or very young regrowth trees", to which Mr Spiers agreed but he was not confident in giving an age. He guessed a year and a half to two years old. However, he said his expertise was not in how fast trees grow. It would depend on the climate at the time and what species were growing. Some trees grow faster than others.
Secondly, the conclusion is not the only available conclusion to be drawn. Mr Turnbull's assumptions in drawing that conclusion were that, first, the vegetation concerned was in fact trees and, second, that the trees grow at such a rate that, if they appear to be of low elevation in the 1991 image, they must be very young trees. These assumptions were not proven. There was no evidence that the vegetation in the darker patches were in fact trees, rather than shrubs or other types of vegetation. There was no evidence about what species of trees were involved, how fast those species of tree grow, what were the climatic and environmental conditions that prevailed in the growing period or what was the growth rate of the particular trees involved.
Thirdly, Mr Spiers answers had to be considered in the context of his other evidence. As earlier summarised, Mr Spiers correlated the dark patches discernible in the 1991 image with dark patches in the same locations in the 1985 image. Mr Spiers concluded that the vegetation shown in the darker patches in the 1991 image was the same vegetation shown in the darker patches in the 1985 image. This supported his conclusion that the vegetation shown in the 1991 image started growing before the date of the 1985 image.
The only evidence on the regrowth of trees was given by another botanist, Dr Nadolny, called by the prosecutor. Dr Nadolny said that, in circumstances where the clearing event occurred before 1985, the regrowth visible in the 1991 image would have regrown before 1 January 1990. He gave four reasons.
First, most of the trees in areas 12b and 17 were Brigalows, an Acacia, that had regrown in thickets, generally originating from root suckers: "I am confident that the stems arose as root suckers because the aerial images show that the area that was cleared between 1975 and 1985 grew back in largely the same pattern, with many stems regenerating directly beneath the crowns of trees that had been cleared. Such a pattern would not have been as apparent if the regeneration had been from seed. In my experience Acacia root suckers usually emerge within a year, or at the most two to three years, of the disturbance that destroys the aerial part of the original tree, or severs the root from the original tree. This is also true for other species present that are capable of reproducing vegetatively, such as Rosewood and Wild Lime. If they do regenerate vegetatively, usually they start growing in the next season. In general, root suckers do not take five years to emerge from prior clearing."
Dr Nadolny noted that regeneration sometimes can be prevented by follow up clearing of the regenerating vegetation or by browsing by livestock. However, Dr Nadolny said that neither was likely to have occurred here because the vegetation could not have recovered and regrown to the extent that could be seen in the 1991 image within the period of 18 months from 1 January 1990.
Secondly, Dr Nadolny concluded that trees that had regenerated from seeds would have started growing before 1 January 1990. Dr Nadolny observed that: "At least some of the trees that established following the clearing between 1975 and 1985 were probably seedlings. In particular, Belah typically regenerate from seed, and individuals, particularly in Area 17, were often scattered in a way that suggests that they could have established from seed. Establishment of seedlings is not restricted to a finite period after disturbance, provided there is a source of seed available (e.g. from retained trees, although the supply of seeds in the soil rapidly diminishes in the years, or even months, following a clearing event if all trees have been removed) and ground that is relatively free of herbaceous growth so that seedlings can become established. However, most importantly, regeneration from seed requires prolonged wet conditions for seedlings to start growing plus follow-up rain over at least most of the following year for them to become established. Rainfall in the Croppa Creek district (which includes 'Strathdoon'), was below average in 1989, 1990 and 1991 (see Table 1, below). The level of rainfall in 1988 was much higher than average. Consequently, seedlings that had established following the pre-1985 clearing would have been more likely to have regrown in 1988 than in 1990 or in 1991. It is unlikely that significant establishment of seedlings occurred in the 1990 to 1991 period at all (in contrast to wet years such as 1988)."
Dr Nadolny concluded: "Therefore, putting all of this together, it is highly unlikely that the trees visible in the 1991 aerial image (in Areas 12b and 17 where clearing occurred between 1975 and 1985) started regrowing after 1 January 1990."
Thirdly, Dr Nadolny noted that Dr Jenkins and Mr Spiers agreed that there were some patches of trees in areas 12b and 17, which were not visible in the 1991 image but were present in the more recent images, suggesting that those trees could have emerged after 1 January 1990. Dr Nadolny noted that if they did emerge afterwards, at the time of clearing they were relatively small trees that contributed marginally to canopy cover and habitat, and insignificantly to biomass. Dr Nadolny agreed with Dr Jenkins' estimate that such trees comprised only 5% of the total number of trees.
However, this agreement of Dr Jenkins and Mr Spiers does not in fact establish that those trees had "regrown" since 1 January 1990, only that they had grown since that date. The delay of over six years (the clearing preceded the 15 June 1985 image and emerged after the 28 June 1991 image) before the trees started growing makes it highly unlikely that the trees grew as a result of the clearing. Hence, they could not be "regrowth", only growth.
Fourthly, there is evidence that large remnant trees were cleared. Dr Nadolny referred to the photographic evidence of some felled trees with large spreading crowns and formation of hollows, concluding that they would have been very old and would have been established much earlier than 1958 (the date of the earliest aerial photograph he examined). Dr Nadolny also estimated the age from an analysis of growth increments on three felled Brigalows in Area 17, being 69, 70 and 89 years respectively. Indeed, Mr Turnbull accepted in cross-examination that he had cleared some large remnant trees that were not regrowth.

[20]

The clearing of groundcover

The prosecutor also claimed that Mr Turnbull unlawfully removed native groundcover in polygon 17 by raking and ploughing during the charge period. There was no issue that raking and ploughing did occur in the charge period, which removed whatever groundcover still remained after the clearing. Mr Turnbull submitted, however, that the prosecutor had not established beyond reasonable doubt that the groundcover removed was native groundcover.
I find that the prosecutor has established, beyond reasonable doubt, that there was native groundcover in the areas cleared, including polygon 17. Dr Nadolny had inspected Strathdoon and the neighbouring property, Colorado, on numerous occasions throughout 2012 (13-15 February, 13 March, 28 June and 21-22 August 2012) and on 3-4 December 2013. He inspected and photographed cleared areas and areas of uncleared vegetation. Many of the photographs show groundcover.
On 13 March 2012, Dr Nadolny examined areas on Strathdoon where Mr Farago had carried out assessments of vegetation in November 2011. Dr Nadolny said that when he inspected area 17 in March 2012, the vegetation was still intact. When he returned on 28 June 2012, he observed area 17 being cleared: "There were signs that trees had been bulldozed and I also observed a large chain on the edge of the area being cleared that may have been attached to two bulldozers working together to clear vegetation. At that stage scattered large trees, mostly Belah, had been left standing, but in most cases felled trees had been pushed against them. I assumed that the intention was to allow this vegetation to dry out then to set fire to it in order to burn the standing trees at the same time as disposing of the felled trees. When I returned in August 2012 the felled vegetation had been burnt and the area had been stick-raked and ploughed, although scattered Belah trees had been retained. This area was sown to field crops in 2013."
Dr Nadolny described the vegetation of area 17 as follows: "66. The trees mainly comprised Brigalow (Acacia harpophylla), Belah (Casuarina cristata) and Wild Lime (Citrus glauca), with a few poplar boxes (Eucalyptus populnea ssp bimbil) and assorted other trees. The understorey was predominantly native grasses with some native chenopods and forbs, but was floristically diverse. 67. Most of the vegetation cleared appears to be Brigalow - Belah open forest / woodland (VCA ID 35) and conforms to the description of Brigalow within the Brigalow belt South, Nandewar and Darling Riverine Plains bioregions - endangered ecological community listing, as described in the NSW Scientific Committee's Final determination. This is also listed as an endangered community under the EPBC Act. The remainder of the vegetation is Belah woodland (VCA ID55), which is listed as an over-cleared community in the catchment (which means that clearing would not be approved by the CMA). 68. During my second inspection (13th March 2012), in the company of Officer Glen Turner, I re-examined an area within Area 17 on 'Strathdoon' where an officer working for the Border Rivers-Gwydir Catchment Management Authority, Luc Farago, had assessed the vegetation in a 50x20 metre plot (Photograph 13 in Attachment 5). I agree with Officer Farago's classification of the vegetation within that plot being in Brigalow-Belah Open-forest/woodland (VCA ID 35). Officer Farago assessed the groundcover in the plot at 50 points. He found the groundcover comprised native vegetation at 10 points, non-native vegetation at 12 points and bare ground at 28 points. Officer Farago concluded that the groundcover was not native because non-native plants covered a larger area than native plants. However, he made a note that the groundcover at the plot was not representative of the 'Strathdoon' property in general. 69. It should be noted that Officer Farago's assessment had been on the 1st November 2011 when cool-season annuals such as clover, which are typically non-native species are often abundant. According to the protocol [1] , where possible, groundcover assessment should be done at a time when the relative abundance of native species is most pronounced. So I reassessed the groundcover in March 2012. 70. Officer Glen Turner and I relocated the plot surveyed by Officer Farago and I confirmed the identity and size of the trees and reassessed the groundcover, using a line intercept method, similar to that employed by Officer Farago. This involved classifying the groundcover encountered at 1 metre intervals along the 50 metre tape into one of 14 categories. The counts of each of the 14 categories were as follows: Litter - 1; Bare ground - 2; Cryptogram - 2; Exotic Annual - 6; Exotic perennial - 0; Native shrub - 12; Native hummock grass - 0; Native grass (other) - 20; Native forb - 7. In summary, 39 of the 50 points (i.e. an estimated 78% of the groundcover) comprised native plants, whereas only 6 of the points (i.e an estimated 12% of the points) comprised non-native plants. 71. Officer Farago listed two non-native grasses (Paspalum notatum and Paspalum dilatatum) as being present. All of the Exotic annuals I encountered were non-grasses and I did not find any non-native grasses in the plot. One prominent grass on the site was Early Spring Grass (Eriochloa pseudoacrotricha), which could easily be confused with Paspalum dilatatum), particularly when it was just beginning to flower. However, it is also possible that the Paspalum had been present at the time of Officer Farago's inspection, since that species is prominent along the roadside."
Dr Nadolny said that the groundcover on the property had been dominated by native grasses or by other native species in all areas examined. Prominent grasses included Queensland Bluegrass (Dichanthium sericeum), Windmill Grass (Chloris truncate), Slender Windmill Grass (Chloris divaricata) and Fairy Grass (Sporobolus caroli). These are all native species.
Mr Turnbull challenged Dr Nadolny's conclusion that there was native groundcover in area 17 at the time of clearing in three ways. First, Mr Turnbull contrasted Dr Nadolny's conclusions with Mr Farago's groundcover assessment in November 2011. Mr Farago had concluded, from his plots in area 17, that the groundcover was less than 90% native because non-native plants and bare groundcovered a larger area (80%) than native plants. Dr Nadolny agreed in cross-examination that Mr Farago had found mostly bare ground and described his results from reassessing Mr Farago's plots as "vastly different". Dr Nadolny's assessment was that 78% was native with the remaining 12% either non-native or bare ground. However, Dr Nadolny gave rational explanations for the difference in the result of the assessments of Mr Farago and himself.
The first reason was that preceding Mr Farago's assessment in November 2011, it had been winter and dry, while preceding Dr Nadolny's assessment in March 2012, it had been summer, there had been an unusually high rainfall event, and a "very very good season for grasses".
The second reason was that the grasses Dr Nadolny found were all summer growing grasses which were not active at the time of Mr Farago's visit. Dr Nadolny said that this is a feature of grassland assessment that the amount of grass vegetation varies markedly with the seasons, not only the amount of grass but also the composition. Dr Nadolny explained that the summer growing grasses are C4 plants with a different metabolic pathway (that plants use to capture carbon dioxide during photosynthesis). The C4 pathway makes them very well adapted for growing in summer. Most native grasses are C4 plants. A lot of other plants are C3 plants and are typically temperate plants, including clovers, medics and annual grasses from Europe. They typically grow in winter and early spring. There is, therefore, a sequential difference in groundcover over the seasons, with changes in the proportion of native grasses to exotic grasses.
The third reason was that when people are required to do groundcover assessments, they are required to do them in certain seasons. Dr Nadolny had referred in his report to the protocol that requires, where possible, groundcover assessments to be done at a time of year when the relative abundance of native species is most pronounced. Clause 62(1)(a) of the Native Vegetation Regulation 2013 requires that the calculation of the percentages referred to in s 20 of the Act (including the percentage of indigenous species of vegetation) to "only be made at the time of year when the proportion of the amount of indigenous vegetation in the area to the amount of non-indigenous vegetation in the area is likely to be at its maximum". For the reasons given by Dr Nadolny, his assessment in March 2012, but not Mr Farago's assessment of November 2011, met this requirement to assess groundcover when the relative abundance of native species is more pronounced.
Secondly, Mr Turnbull contended that the fact that groundcover composition can change significantly over relatively short periods of time made the proof of the extent of native groundcover at the time of clearing in area 17 critical. However, Dr Nadolny said that when he inspected area 17 in March 2012, and carried out his assessment of groundcover, clearing had not commenced. By the time of his inspection in June 2012, clearing was well underway. Dr Nadolny's assessment therefore provided the best evidence of the groundcover in area 17 immediately before the clearing. This was that the groundcover was dominated by native grasses.
In any event, even if the groundcover composition were to have changed by the time of clearing, so that there was more non-native groundcover than Dr Nadolny recorded in March 2012, the evidence indicates that there still would have been some native groundcover present. Hence, native groundcover would still have been cleared amongst the non-native groundcover cleared.
Thirdly, Mr Turnbull relied on Mr Richardson's evidence at the hearing. Mr Richardson had not addressed groundcover in his reports or evidence in chief at all, only focusing on the trees cleared, following Dr Jenkins' approach. When challenged in cross-examination about his omission to address the impact of the clearing of native groundcover (all the spaces between the trees), he criticised Dr Nadolny's methodology in identifying groundcover species. This criticism was unsupported by any prior written report or evidence in chief and it was not put to Dr Nadolny in cross-examination. Notwithstanding Mr Richardson's criticism of Dr Nadolny's assessment methodology, he nevertheless accepted that it gave an indication of the extent of native groundcover in areas cleared. Mr Richardson did not himself proffer any opinion on whether the groundcover was predominantly native groundcover. Indeed, when asked what his position as to whether there was likely to have been predominantly native groundcover in the spaces between the trees in the cleared polygons, he answered that he did not have a position on that.
I therefore reject Mr Turnbull's challenge to Dr Nadolny's assessment that there was native groundcover in area 17 prior to clearing, which was removed by the clearing and by the raking and ploughing of the cleared ground.

[22]

Loss of native vegetation of high conservation value

Dr Nadolny classified the native vegetation in the areas cleared on Strathdoon and the neighbouring property "Colorado" to have been within three, closely related vegetation types under the New South Wales Vegetation Classification and Assessment (VCA) Project: • VCA ID 35 Brigalow - Belah open forest/woodland on alluvial often gilgaied clay from Pilliga Scrub to Goondiwindi, Brigalow Belt South Bioregion • VCA ID 56 Poplar Box - Belah woodland on clay-loam soils on alluvial plains of north-central NSW • VCA ID 55 Belah woodland on alluvial plains and low rises in the central NSW wheat belt to Pilliga and Liverpool Plains regions.
Dr Nadolny overlaid the Border Rivers Gwydir Regional Vegetation Map on the boundary of the properties "Strathdoon" and "Colorado" with the clearing polygons. This showed that most of the vegetation cleared in both polygons 12 and 17 on Strathdoon was Brigalow - Belah open forest/woodland (VCA ID 35), with the remainder being Belah woodland (VCA ID 55). Dr Nadolny's inspection of the area within polygon 17 confirmed this classification.
The botanist called by Mr Turnbull, Mr Richardson, agreed that it was reasonable to assume that the vegetation communities identified by Dr Nadolny occurred on both "Strathdoon" and "Colorado" but cautioned that it was not possible to accurately identify the nature and distribution of the vegetation within the clearing polygons. His reasons included the absence of an accurate vegetation map which relies on ground truthing, the potential for intergrading between the three, closely related vegetation communities, vegetation occurred at different densities across Strathdoon, and the presence of some weedy non-native vegetation, such as African Boxthorn. None of these reasons affects Dr Nadolny's central conclusion that the native vegetation cleared in polygons 12 and 17 was within the vegetation communities of Brigalow - Belah open forest/woodland (VCA ID 35) and Belah woodland (VCA ID 55). Indeed, Mr Richardson agreed with it as a general proposition. Dr Nadolny's conclusion was not dependent on the vegetation mapping accurately showing the precise boundaries between the vegetation communities. Similarly, it matters not that there may be areas of vegetation in which the two communities integrade. It is sufficient that within the clearing polygons both vegetation communities occurred. The occurrence of different densities of vegetation across Strathdoon does not necessarily affect the classification of vegetation communities. There would inevitably be varying degrees of disturbance, including clearing, and regrowth, which might affect the observed density of vegetation at different times. But this does not cause the vegetation not to be of the identified vegetation communities. Similarly, it is inevitable that some non-native vegetation, such as weeds, might be growing within the vegetation, but this does not affect the classification of the vegetation community.
Dr Nadolny noted that the vegetation assigned to VCA ID 35 (Brigalow - Belah open forest/woodland) also fits the definition of Brigalow within the Brigalow Belt South, Nandawar and Darling Riverine Plains Bioregions, which is listed as an endangered ecological community under the Threatened Species Conservation Act 1995. There was debate between Dr Nadolny and Mr Richardson, however, as to whether the particular native vegetation in the areas cleared in polygons 12 and 17 on Strathdoon met the description in the determination of the Scientific Committee listing this community as an endangered ecological community. Mr Richardson was inclined to agree with Dr Nadolny that the remaining vegetation at the edges of Strathdoon may very well satisfy the description of the endangered ecological community. He also considered that it is possible some of the vegetation cleared within polygon 12 met this description, but the evidence available did not provide him with any confidence that this was definitively the case. Part of the problem is that there was no data before the clearing demonstrating the distribution of vegetation types, the floristic species present or the structure of the vegetation within the cleared areas.
The prosecutor's purpose in contending that some of the vegetation cleared met the description of the endangered ecological community was to demonstrate the high conservation value of the vegetation cleared and hence the significance of the environmental harm caused by the clearing. However, as will be shortly explained, the high conservation value and significance of environmental harm caused is demonstrated by other factors. In these circumstances, it is not necessary to determine whether the native vegetation also met the description of this endangered ecological community.
Dr Nadolny noted that the conservation value of native vegetation takes into account its capacity to support a diversity of fauna: "106. The conservation value of vegetation takes into account its capacity to support a diversity of fauna. In general, loss of habitat and the food resources within the habitat resulting from broad-scale clearing of native vegetation, depending on the location and condition of that habitat, may have a severe impact on local populations of some resident species of wildlife. In particular, territorial birds and animals that are displaced by a sudden loss of food resources and habitat have little prospect of establishing territories in adjacent areas, which are generally already fully occupied. The impacts are expected to be even greater if the clearing causes fragmentation of habitat so that the more vulnerable species of wildlife can no longer move through the landscape in safety. In that case isolated populations can become extinct. These concepts are explained more fully in the NSW Scientific Committee's determination to list 'Clearing of native vegetation' as a key threatening process on Schedule 3 of the TSC Act (see Attachment 8). 107. In this case, the accumulated impact of the clearing on some species of fauna could be substantial because, with the exception of the Properties, most properties in the district had already been cleared and are used entirely for the growing of field crops, so remnant vegetation is confined to roadsides, watercourses and other narrow strips. This can be seen by inspecting Figure 1. On that image, which was captured prior to the commencement of clearing on the properties, areas of open woodland on the two Properties appear with a speckled appearance. With the exclusion of narrow strips, the most prominent areas of woodland shown in the image are on the Properties 'Nome' and 'Essex', which adjoin each other and are about 6 kilometres south of 'Strathdoon'. There is also an area of intact forest cover, just south of the areas of woodland. However, this forest occurs on soil derived from sandstone and contains different vegetation types to those that have been cleared on the Properties. 108. The ecological principle that the impacts of clearing are greater in over-cleared landscapes has been recognised in the State's legislation. In the Environmental Outcomes Assessment Methodology (EOAM) of the Native Vegetation Regulation 2005, which was in force at the time of the clearing, 'overcleared landscapes' are defined as the mapped landscapes in New South Wales, called 'Mitchell Landscapes', which are more than 70% cleared. The Mitchell Landscape covering the Cleared Area has been mapped as Croppa Clay Plains, which, according to the documents supporting the EOAM on the OEH website, are listed as 85% cleared. Under the improve-or-maintain test outlined in the EOAM, clearing is not to be permitted in overcleared landscapes, even with off-sets, unless the vegetation is assessed to be in low condition, according to criteria set out in the EOAM. 109. As well as the landscape being over-cleared the three vegetation communities, referred to below, present in the Cleared Area are also regarded as 'overcleared', meaning that a large proportion of the area that they were thought to occupy in pre-European times has now been cleared. This is simply because all of these communities chiefly occur in landscapes and on soils that are suitable for broad-acre cropping. According to the NSW VCA database, the best estimates are: VCA ID 35 Brigalow - Belah open forest / woodland: Pre-European extent = 120,000 Ha ±30%; Current extent = 12,000 Ha ±30% (10%±50% remaining); VCA ID 56 Poplar Box - Belah woodland: Pre-European extent = 450,000 Ha ±60%; Current extent = 100,000 Ha ±30% (22%±80% remaining); VCA ID 55 Belah woodland: Pre-European extent = 35,000 Ha ±30%; Current extent = 12,000 Ha ±30% (10%±50% remaining). 110. While these estimates, by their nature, are imprecise, the small proportion of each community that remains explains why the communities are of conservation concern. In the EOAM overcleared vegetation types are defined as 'vegetation types of which more than 70% have been cleared within the relevant Catchment Management Authority Area' (Note - in this context 'vegetation types' has the same meaning as 'vegetation communities'.) The Office of Environment and Heritage maintains a database that lists vegetation types and the percentage of each that is cleared in each catchment [2] . In that database the percent cleared of each of the three vegetation types in the Border Rivers-Gwydir Catchment is: Brigalow - Belah open forest / woodland (VCA ID 35) = 90% cleared Poplar Box - Belah woodland (VCA ID 56) = 80% cleared Belah woodland (VCA ID 55) = 85% cleared Therefore, under the Native Vegetation Act permits to clear any of the intact vegetation comprising one of these communities would not be approved, unless the vegetation type is assessed to be of low condition, according to criteria set out in the EOAM. It should also be noted that, despite this restriction, substantial broad-scale clearing involving these three communities has occurred in the Catchment, and particularly in the Croppa Creek and Northstar districts, since the estimates were published. Therefore it is likely that these percentage cleared estimates for the Border Rivers-Gwydir Catchment should be increased. 111. The EOAM defines woody native vegetation to be in low condition if (1) over-storey percent foliage cover is less than 25% of the lower value of the over-storey percent foliage cover benchmark for that vegetation type; and (2) less than 50% of the vegetation in the ground layer is indigenous; or (3) more than 90% is ploughed or fallow. Based on the information I was able to collect, more than 50% of vegetation in the ground layer was native and the area had not been ploughed, so the vegetation was not considered to be in low condition on either of the Properties."
Mr Richardson downplayed the significance of the clearing of native vegetation on Strathdoon. He adopted Dr Jenkins' approach of limiting the area cleared by, firstly, including only the ground beneath the crowns of trees cleared, secondly, excluding areas that could have been cleared for routine agricultural management activities and, thirdly, excluding all areas of regrowth. For polygon 12, Dr Jenkins, on this basis, calculated an area of 15.07 hectares had been cleared but this could increase to 28.99 hectares if the vegetation in area 12b was not regrowth. For polygon 17, Dr Jenkins considered that all vegetation cleared was regrowth. Mr Richardson said, on this basis, clearing regrowth does not constitute environmental harm. If, however, the vegetation was not regrowth, Dr Jenkins calculated the area cleared in polygon 17 to be 74.04 hectares.
Mr Richardson then used Dr Jenkins' calculation of the total area of vegetation within the locality of Strathdoon (within 10 kilometres), based on vegetation mapping shown in an ecological report in 2008, of 9,910 hectares.
Mr Richardson calculated that the area of native vegetation cleared in polygon 12 was 0.15% (if the area was 15.07 hectares) or 0.29% (if the area was 28.99 hectares) of all the native vegetation within the locality (9,910 hectares). For polygon 17, the area of native vegetation cleared was 0.75% (if the area was 74.04 hectares) of all the native vegetation within the locality (9,910 hectares). On this basis, Mr Richardson concluded there was no significant or substantial environmental harm caused by the clearing of native vegetation on Strathdoon.
I do not accept Mr Richardson's conclusion. First, the numerator of the proportion of vegetation cleared is too small. The area of native vegetation cleared in polygons 12 and 17 is significantly higher than Dr Jenkins calculated and Mr Richardson adopted. For the reasons I have explained earlier, Dr Jenkins was incorrect to limit the area cleared to the ground beneath the crowns of the trees cleared, to exclude areas that might have been but were not cleared for routine agricultural management activities, and to exclude areas of vegetation cleared as being regrowth. The total area on Strathdoon within which native vegetation was cleared was instead around 316 hectares.
Secondly, the denominator of the proportion of vegetation cleared was too large. The area selected by Mr Richardson, with a radius of 10 kilometres, would cover around 31,416 hectares. This is considerably larger than the area of 1,000 hectares, with a radius of 1.79 kilometres, recommended by the Environmental Outcomes Assessment Methodology to assess the landscape value of native vegetation for the purpose of determining whether areas can be cleared with appropriate offsets. The calculation of the area of vegetation within the 10 kilometre radius was based on vegetation mapping in an ecological report in 2008. However, the actual vegetation mapping was done in 2000 or 2001. Since then, considerable areas of native vegetation in the locality have been cleared. The calculation of native vegetation in the locality also included extensive areas of native vegetation on Strathdoon and Colorado that were cleared prior to the clearing that constituted the offence. Dr Jenkins and Mr Richardson did not exclude from the calculation of native vegetation in the locality those areas that had already been cleared by the time the clearing on Strathdoon occurred. The vegetation mapping also had issues concerning its reliability, including in the vicinity of Croppa Creek.
Thirdly, Mr Richardson adopted different approaches for the numerator and denominator. For the numerator, Mr Richardson only included in the area of vegetation cleared the limited area Dr Jenkins calculated of the ground beneath the crowns of trees cleared (and which were not cleared for routine agricultural management activities and were not regrowth). For the denominator, however, Mr Richardson included the area of all vegetation shown in the vegetation mapping in the 2008 ecological report, which was not limited to the ground beneath the crowns of trees but included spaces between the trees.
Fourthly, Mr Richardson's approach failed to consider the significance of the vegetated areas on Strathdoon and Colorado in the locality, and their importance to ecological functioning within and beyond the boundaries of the two properties. Mr Richardson accepted that, looking at an aerial image taken in 2009, the two properties stood out as having the greatest areas of vegetation present within a radius of 10 kilometres.
These four errors in approach by Mr Richardson significantly undermined his conclusion. In cross-examination, Mr Richardson accepted that the clearing of polygons 12 and 17 on Strathdoon comprised a large proportion of the native vegetation in an area within a radius of 1.79 kilometres from the centre of Strathdoon. Indeed, Mr Richardson accepted that the clearing of those polygons on Strathdoon constituted the clearing of a large proportion of vegetation within the locality of Strathdoon.

[23]

Loss of habitat of fauna and threatened fauna

Dr Nadolny concluded that the clearing involved loss of important, mature habitat of native fauna, including hollow bearing trees: "112. Loss of hollow-bearing trees causes extremely long-term damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to form, with prominent hollows mainly confined to trees over a hundred years old. [3] I formed an opinion that a significant number of the trees, particularly Poplar Boxes, felled on 'Colorado' in Area 7 and on 'Strathdoon' in Area 12, contained hollows. My opinion was based on felled trees with hollows that I closely inspected and on the size of trees that I saw had been felled. A recent study carried out in Central West NSW by Rayner and co-workers [4] confirms that there is a strong relationship between stem diameter and both the probability of trees being hollow-bearing and the number of hollows they possess. The study found that, for most of the species of trees samples, including Poplar Box, if they had a single stem and a moderate degree of senescence in their crown then a probability of having a hollow of 50% was attained when the tree attained a size of over 40 cm DBH. The results of this study accord with my experience that, outside the high rainfall zones, boxes with stems of over about 50 cm are more likely than not to have hollows and that trees with stems of over 80 cm in diameter generally all have hollows. Cleared vegetation on 'Strathdoon' and, for example, two of the three plots surveyed by CMA Officer Farago contained trees with hollows."
Dr Nadolny concluded that the native vegetation cleared was habitat for threatened faunal species: "113. Although I did not conduct a systematic survey of fauna, I observed a diversity of fauna, including two threatened species, the Koala and the Grey-crowned Babbler (eastern subspecies) (identified by Michael Wood), during the inspection during 21-22/8/2012 of the Properties. Documentation of Officer Wood's observations of these species is placed in Attachment 7. Data from the BioNet Atlas of NSW Wildlife website (Table 4) indicates that two other threatened species have been observed in the vicinity of the Properties recently, the Painted Honeyeater and the Spotted Harrier, while several other species are known or predicted to occur in similar habitat in the Croppa Creek district. 114. Table 4 shows the threatened faunal species, which, according to the Atlas of NSW Wildlife, are predicted to occur in the area covered by the Croppa Creek (8939-N) 1:25,000 Topographic Map Sheet, together with the actual number of records of threatened faunal species. The Properties are roughly in the middle of this map sheet. A total of 43 threatened are predicted to occur in the area with observations of 16 of those species recorded in the database. I assessed the 43 species based on their habitat requirements and other information available on the OEH and BioNet Atlas of NSW Wildlife websites, supplemented by my knowledge of those species, and eliminated 21 of them as being unlikely to have been present on the Properties. These included four species of woodland birds and the Black-striped Wallaby that had been recorded in the area in the 1980s, but which are likely to have become extinct since that date because of the extent to which vegetation in the district has been cleared. 115. Assessing the remaining species, I concluded that, in addition to the Koala and Grey-crowned Babbler (eastern subspecies), which were observed during our last inspection, and the Painted Honeyeater and the Spotted Harrier, which have recently been recorded in the vicinity of the Properties, the Varied Sittella and, perhaps the Glossy Black Cockatoo and Turquoise Parrot were also likely to have occurred on the Properties and the Five-clawed Worm-skink possibly occurred. All of these species are listed as vulnerable except for the Five-clawed Worm-skink, which is endangered. There are several recent records of the Varied Sittella in the Croppa Creek district, while the Black Cockatoo feeds on Casuarina fruits, which I observed to have been abundant on the Belahs on the Properties, and nests in hollow-bearing trees (which, as I have already indicated had been present in the cleared vegetation). The Turquoise Parrot feeds on native grass seeds, which I had found to have been abundant, and nests in hollows. The Five-clawed Worm-skink usually occurs on cracking-clay soils, which were present, and makes use of the cracks. It tends to be found where there is plentiful fallen timber and leaf-litter in habitats such as Poplar Box woodland. It is considered engendered because most areas suitable for the species have been developed for agriculture. 116. Based on my observations, supported by information provided by OEH Officer Michael Wood, who accompanied me on the inspection on the 23 August 2012 (see Attachment 7), there appears to be a sizable population of Koalas in the vicinity of the Properties. During our inspection (21-22/8/2012), even though I only inspected a small proportion of the Koala habitat that was present on the Properties, I personally observed a total of 6 Koalas during the August 2012 inspection, including 3 adjacent to Area 12 on 'Strathdoon' and one at the northern end of 'Colorado' that was not documented in Attachment 7, which was within Area 7, weeks before that Area was cleared. All of them were on Poplar Boxes, adjacent to newly cleared areas on the Properties. I also observed that Koala scats consistently are present under Poplar Box trees and occasionally under Belah trees. These findings are supported by Mr Hall's results from his Koala survey and are consistent with Poplar Box being an important feed tree and Belah being a tree that Koalas sometimes shelter in during the day. A significant area of Koala habitat, contained scattered Poplar Boxes, has been destroyed on 'Strathdoon' and 'Colorado' in the Cleared Areas. Koalas are highly territorial with complex social interactions, and they are known to be severely impacted by clearing and, for example, it is common to see Koalas wandering about in search of a new territory following a clearing event. Mr Phil Spark [5] , in a report to the Catchment Management Authority, reported a sudden increase in the Koala population on adjacent properties just after the clearing in question occurred. The most likely explanation for this sudden increase is that Koalas that were on the Properties had been displaced by the clearing. 117. Koalas are still present on the Properties and I observed a juvenile Koala on 'Strathdoon' on a retained Poplar Box within Area 12 on the south western side of the Area (Waypoint 5 recorded by Officer Turner on the 3rd December 2013; see Map 6 in Attachment 3 for location). A systematic search for Koala scats beneath Poplar Boxes during the December 2013 inspection showed that there was high use of Poplar Boxes by Koalas along the south-western edge of Area 12, with 11 of 12 trees examined having scats beneath them (average DBH = 59cm), and retained Poplar Box trees were also heavily used, with scats found under 9 of 10 trees examined (average DBH = 74.5 cm). However, it should be noted that Mr Hall's data show that Koala scats, while being widespread on 'Colorado' may occur less frequently in some locations. Nevertheless, in my opinion based on my observations, and experience in dealing with issues related to Koalas, the potential impact of the clearing on the Properties on the local population of Koalas is likely to be significant."
I accept this evidence of Dr Nadolny of the environmental harm caused by the clearing.
Mr Michael Wood, a compliance and regulation officer with the prosecutor, and Mr Ben Pascoe, an environmental consultant retained by the Commonwealth Department of Sustainability, Environment, Water, Population and Communities to prepare a koala habitat assessment on the properties, gave evidence as to the actual presence of a population of koalas on Strathdoon and Colorado when they visited in August 2012. The population of koalas utilised areas of Strathdoon, including the areas cleared by the commission of the offence, at the time of the clearing.
Mr Pascoe observed, in his expert witness report in these proceedings, that: "The majority of koala food trees showed scratches and scats at the base of the trees indicating a high presence of koalas in the area. Scats were often found fresh and on top of leaf litter indicating recent use. One scat was observed in the fork of a trunk indicating recent koala activity."
Mr Pascoe considered that "the high number of fresh scats indicates a high density population which would be expected in confined areas and high quality habitat". Vegetation within the site was reasonably well confined to the site without good connectivity to adjoining habitat. Mr Pascoe said it would be reasonable to assume that the site is one of the last remaining examples of large habitat systems in the area.
Mr Pascoe observed that: "Many of the remaining Bimble Box trees [which are recognised koala food trees] showed scratches consistent with koala scratches at the base of the trunk and koala scats around the base of the tree within the Lockiel [Colorado] and Strathdoon properties".
Two koalas were observed within Bimble Box trees on the neighbouring property "Colorado" and one koala about 2 kilometres south of the site walking along the road away from the site. Mr Pascoe said that: "The evidence of koalas within this site is significant because it is a relatively isolated site with limited opportunity for movement to other large habitat areas. Koala populations are generally sparse in the Western Slopes and Plains Koala Management Area and evidence of koalas in this management area should be considered significant. This koala habitat is considered to be 'core koala habitat' as it has a breeding population of koalas."
Mr Pascoe concluded: "The loss of habitat within this site would severely impact the existing population of koalas since they do not have good opportunity to move outside of the site due to a lack of other suitable surrounding habitat, habitat corridors, and threats of predators and cars."
Mr Wood also identified another threatened species, the Grey-crowned Babbler, on the property in August 2012.
Dr Harrington, a fauna ecologist called by Mr Turnbull, agreed that records indicated that the clearing occurred in known koala habitat. The vegetation cleared contained known koala food trees, including Bimble Box. There were 35 recorded koala locations within 10 kilometres of the property, although no individuals had been recorded from within Strathdoon. Therefore, the vegetation cleared is likely to have contained known habitat for the koala.
However, given the uncertainty of the number and size of Bimble Box trees present within the areas cleared, Dr Harrington said it was not possible to be decisive on the habitat quality for the koala.
Dr Harrington then embarked on a similar exercise to Mr Richardson to assess the significance of the environmental harm caused by the clearing of known koala habitat on Strathdoon. Dr Harrington relied on Dr Jenkins' calculations of the area of native vegetation cleared.
For polygon 12, Dr Harrington estimated, based on the vegetation communities that provide habitat for koalas on the property and Dr Jenkins' determination of what represented native vegetation under the Act, that 69.55 hectares of koala habitat was cleared (excluding regrowth and areas for routine agricultural management activities). Dr Harrington then reduced this area further. Based on calculations by Dr Jenkins, the total area of remnant tree and shrub cover lost within areas 12a and 12c in polygon 12 was 15.07 hectares, of which an estimated 2.8 hectares represented Bimble Box trees that were possibly cleared.
Dr Harrington estimated, based on the vegetation communities that provide habitat for koalas, that there were approximately 5,870 hectares of koala habitat within 10 kilometres of the property. The removal of 69.55 hectares of koala habitat represents 1.2% of available koala habitat within 10 kilometres of the property.
Dr Harrington considered that the removal of 155 mature feed trees, or 1.2% of available habitat in the locality, represents a relatively small proportion of koala feed trees likely to occur in the locality, but conceded that their removal is likely to have resulted in some environmental harm to the local koala population.
For polygon 17, based on Dr Jenkins' assessment that the vegetation cleared was likely to have been regrowth, Dr Harrington did not consider the environmental harm, including harm to koalas, caused by the clearing of vegetation in polygon 17.
I do not accept Dr Harrington's conclusions on environmental harm. They are based on the same flawed methodology of Dr Jenkins and Mr Richardson. The calculation of areas of native vegetation (including koala habitat) is too low and the calculation of native vegetation in the locality is too high, for the reasons I have given earlier. This affected his assessment of the significance of the loss of koala habitat occasioned by the clearing.
Dr Harrington accepted in cross-examination that there was a local koala population that was using the known koala habitat (koala food trees) in the areas cleared on Strathdoon and that the removal of that habitat (food trees) would have caused impacts on the local population. Dr Harrington accepted that if all of the food trees within its home range have been removed, a koala will need to move outside its home range. He accepted that no food trees remained in the areas cleared on Strathdoon. Dr Harrington's failure to address the impact of clearing known koala habitat on the basis that the trees in that habitat were regrowth was unacceptable. Koalas do not select food trees depending on whether the trees are classified as regrowth under the Act or not. In any event, I have found the food trees were not regrowth.
Dr Harrington accepted that the vegetation cleared on Strathdoon was likely to have contained known habitat for the Grey-crowned Babbler. There are records for Grey-crowned Babbler in the area and Dr Harrington observed them during his site visit in September 2015. Dr Harrington accepted that a number of hollow bearing trees were cleared on Strathdoon which would have caused some environmental harm for any hollow-dependent fauna species inhabiting those trees.

[26]

State of mind of the offender

The offence against s 12(1) of the Act is a strict liability offence and mens rea is not an element of the offence. Nevertheless, the state of mind of an offender at the time of the offence can have an effect of increasing the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: see Director-General, Department of Environment and Climate Change v Rae at [42] and cases cited. A large measure of premeditation will make an offence more serious than if it is committed on the spur of the moment: R v Morabito (1992) 62 A Crim R 82 at 86.
Mr Turnbull knew that the Native Vegetation Act applied to Strathdoon and that he needed to obtain an authority under the Act to clear native vegetation on Strathdoon, either in the form of a development consent or a property vegetation plan. Mr Turnbull decided to pursue the latter route.
In October 2011, Mr Turnbull applied for approval of a property vegetation plan that proposed clearing of native vegetation in the areas that he later cleared in committing the offence. He knew that his application for a property vegetation plan had not been approved by the time he embarked upon the clearing on Strathdoon.
Mr Turnbull had been told by Mr Farago of BRG CMA, at a site visit and in a follow up telephone conversation in November 2011, of the problems in approving the clearing proposed by Mr Turnbull in the property vegetation plan. One problem was that there was a mix of remnant and regrowth native vegetation in the areas proposed to be cleared: the native vegetation was therefore not "only regrowth" that could be cleared without permission. A second problem was that, in areas that Mr Turnbull proposed to change the land use from heavy grazing to minimum till cultivation, there were areas where greater than 50% native groundcover was present that could not be cleared. A third problem was that there was insufficient data on the remnant paddock trees to justify their removal. A fourth problem was that remnant native vegetation in the areas to be cleared was a mix of two, over cleared vegetation communities, which Mr Farago said were the Poplar Box grassy woodland on alluvial heavy clay soils in the Brigalow Belt South Region (which was a greater than 70% cleared vegetation type) and the Brigalow - Belah woodland on alluvial often gilgaied clay soil mainly in the Brigalow Belt South Bioregion (which formed part of an endangered ecological community). Mr Farago said broadscale clearing of native vegetation, which is a mix of a greater than 70% cleared vegetation type and an endangered ecological community, could not be authorised.
Before undertaking the clearing involved in committing the current offence, Mr Turnbull knew that earlier clearing undertaken on Strathdoon between 1 November 2011 and 18 January 2012 was being investigated by the EPA as being in breach of the Act. The EPA wrote to Mr Turnbull on 1 December 2011 saying so and warning him that any further clearing without authority will be an offence against the Act. The EPA advised Mr Turnbull to carefully consider all advice received by the BRG CMA before he carried out any clearing of any native vegetation on Strathdoon.
In February 2012, Mr Farago advised Mr Turnbull to stop any clearing of native vegetation on Strathdoon until the EPA investigation was concluded and he had an approved property vegetation plan.
In March 2012, Mr Turnbull was interviewed by investigators of the Office of Environment and Heritage about the earlier illegal clearing of native vegetation on Strathdoon. From this interview, Mr Turnbull was made aware again of the requirements of the Act and the need to obtain prior authority before undertaking clearing of native vegetation on Strathdoon.
Mr Turnbull wanted to clear the native vegetation on Strathdoon to convert the property to a cropping property. He said this was the reason he bought the property. This was also the explicit reason stated in his application for a property vegetation plan to undertake clearing. Converting the property to a cropping property improved its farming capacity and its value.
Mr Turnbull said that he made the application for a property vegetation plan based on his own assessment that much of the native vegetation was regrowth (based on his conversation with the previous owner, his observation of the trees and inspection of a photocopy of a 1991 aerial photograph). He conceded that there were some remnant trees that he knew were not regrowth. He said he had identified some areas as containing groundcover that was less than 50% native groundcover. He conceded in cross-examination, however, that there were seasonal variations so that sometimes native groundcover was dominant and sometimes it was not. He also conceded that "at the end of the day it didn't matter if it was native or non-native" groundcover, because it was all going to go when the land was converted to cropping.
However, after making the application for the property vegetation plan, Mr Turnbull was told by Mr Farago, both at the site visit and in the follow up telephone conversation in November 2011, that Mr Turnbull's assessments about regrowth and groundcover were not correct, in the ways I have summarised earlier.
Mr Turnbull selectively recalled some statements of Mr Farago at the site visit in November 2011 that Mr Turnbull believed permitted him to clear some of the native vegetation on the property. He recalled Mr Farago saying that in areas where less than 50% native groundcover was present, "you are able to clear around large remnant trees" and "you will be able to cultivate the areas under the regrowth".
However, Mr Turnbull also recalled Mr Farago saying in the follow up telephone conversation in mid-November 2011 that authorisation was unlikely to be granted to broadscale clearing affecting a Brigalow/Belah vegetation type that Mr Farago referred to as an "EEC" and a Poplar Box vegetation type that Mr Farago referred to as "greater than 70% cleared".
These selective statements of Mr Farago did not in fact authorise, and Mr Turnbull could not reasonably believe that they did authorise, the clearing of native vegetation of the nature and to the extent that Mr Turnbull undertook on Strathdoon. Moreover, those selective statements need to be considered in the context of the other statements, including warnings and advice, given by Mr Farago.
Considering all of the warnings and advice given by Mr Farago to Mr Turnbull, Mr Turnbull could not reasonably believe that he was permitted to clear native vegetation of the nature and to the extent that he proposed in the property vegetation plan without the authority of an approved property vegetation plan.
Mr Turnbull received further warnings and advice afterwards. The letter from the EPA in December 2011, the advice of Mr Farago in February 2012, and the interview by investigators of the Office of Environment and Heritage in March 2012, all served to emphasise that Mr Turnbull could not undertake the clearing of native vegetation that he had proposed without first obtaining the authority of a property vegetation plan.
Notwithstanding these warnings and advice, Mr Turnbull undertook the clearing of native vegetation that he had been told not to do without the authority of a property vegetation plan. The clearing in polygons 12 and 17 was undertaken after 26 April 2012 and the pushing over of some trees in polygon 17 mostly before 26 June 2012. Clearing at these times was after Mr Turnbull had received the warnings and advice not to clear native vegetation on the property without the authority of a property vegetation plan.
I find that Mr Turnbull made a deliberate decision to clear native vegetation on Strathdoon, without obtaining authority under the Act, in the knowledge that to do so was illegal. Whatever belief he had when he first applied for approval of the property vegetation plan that the clearing of some of the native vegetation may be permitted on the basis that it was regrowth or less than 50% native groundcover could no longer reasonably be held after the warnings and advice he had received before he undertook the clearing.
Mr Turnbull's conduct in clearing the native vegetation on Strathdoon was pre-meditated and intentionally carried out with the knowledge of its illegality. This increases the objective seriousness of the offence.

[27]

Reasons for committing the offence

The criminality involved in the commission of an offence is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence. The carrying out of an offence to make a profit or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission, such as a development consent or a property vegetation plan, increases the seriousness of the crime. Offenders should not profit from crime: Director-General, Department of Environment and Climate Change v Rae at [47], [48] and cases cited. The objective seriousness of an offence is increased if the offence was committed for financial gain, such as to make a profit or to save incurring an expense: s 21A(2)(o) of the Crimes (Sentencing Procedure) Act.
In this case, Mr Turnbull was the owner and occupier of the property. He deliberately decided to clear native vegetation on the property to improve the agricultural productivity and profits from the property and to improve its capital value.
Not only did Mr Turnbull clear the property for the purpose of making such financial gain, he in fact made substantial financial gain by the commission of the offence. Mr Turnbull has cropped the areas cleared since 2013 for profit. The capital value of Strathdoon has also increased. Mr Turnbull purchased Strathdoon for around $2 million and Mr Turnbull accepted that it is now worth about $5 million and that the $3 million increase in value is primarily a consequence of the clearing having been carried out so as to create cropping land where there was previously grazing land in a landscape dominated by native vegetation. Not all of the increase in the capital value of Strathdoon could be attributed to clearing polygons 12 and 17; other areas of Strathdoon had been cleared outside the charge period for this offence. Nevertheless, the clearing of native vegetation in polygons 12 and 17 contributed to the increase in value of Strathdoon.

[34]

Prior good character of offender

There is evidence that Mr Cory Turnbull has otherwise been of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act. Four character references were tendered.
Mr Garwood, an Ag Sales consultant, has known Mr Turnbull for the past six years. He observed that the prosecution has caused Mr Turnbull and his wife: "a great deal of stress and anxiety especially against the backdrop of events involving other members of the Turnbull family however they have shown considerable insight into why they are before your Honourable Court and they are extremely remorseful for what has occurred."
Ms Cook, a family friend, has known Mr Turnbull since he was a small boy, often visiting his family home. She said Mr Turnbull is "an honest, respectful young man". She has observed that his life is challenged by worry and anxiety, mainly due to the prosecution. She observed that he is "very remorseful for what has happened" and understands why he is before the Court. She said Mr Turnbull "has made it known that he accepts the responsibility" and wishes "to put these actions behind them and look forward to their future."
Mr Burey, the General Manager of Kenway and Clark, a large agricultural dealership, has known Mr Turnbull for the past five years when he began farming in the Moree area. Mr Burey is a close friend of Mr Turnbull's parents. Mr Burey said Mr Turnbull and his wife are "a hard working couple that are dedicated to the vocation and profession they have chosen". He believed that they "understand the position they are in and are remorseful for contravening the Native Vegetation Act. Cory has acknowledged and accepted responsibility for the offence that has occurred."
Mr Krieg, a close family friend, has known Mr Turnbull from almost 20 years as they were in boarding school together in Toowoomba. Mr Krieg said that Mr Turnbull: "has always been one of the most responsible people that I have ever known. He has always been the level headed person you can rely on. Cory has always had a passion for as long as I have known him for farming and wildlife".
Mr Krieg considered that: "Cory is one of the most responsible, driven and next-generation farmers that agriculture in Australia will need and will be proud to have. He is leading the way in minimal till farming, reduced chemical usage and environmentally friendly practices."
Mr Krieg said that he was aware of the situation that the Turnbull family was currently in and believed that "Cory had the best of intentions towards the environment and his family to do the right thing and find a healthy balance between them both."

[35]

Plea of guilty

Mr Turnbull has pleaded guilty to the offence, a fact the Court is required to take into account: ss 21A(3)(k) and 22(1)(a) of the Crimes (Sentencing Procedure) Act. He is entitled to a discount for the utilitarian value of his plea of guilty to the criminal justice system. In assessing the utilitarian value of the plea, the timing of the plea is a critical factor. The Court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: s 22(1)(b) of the Crimes (Sentencing Procedure) Act. A plea entered at the earliest possible opportunity has more significant utilitarian benefit and should attract a greater discount than a plea entered at a later stage, which should attract a lesser discount.
In this case, Mr Turnbull was ordered, under s 246(1)(a) of the Criminal Procedure Act 1986, to first appear before the Court on 8 August 2014 to answer to the offence charged. Mr Turnbull did not enter a plea of guilty, however, until 31 July 2015, almost one year later. In the meantime, there were nine attendances at which various case management directions were made.
After Mr Turnbull entered a guilty plea on 31 July 2015, the dates for the sentence hearing were not fixed until 2 December 2016, some one and a half years after the guilty plea was entered. Five days were fixed for the sentence hearing between 26 April and 2 May 2017.
Various reasons were given at each court attendance, before the plea of guilty was entered, for the delay in entering the plea of guilty. These included that Mr Turnbull was awaiting further particulars or evidence from the prosecutor. However, the reason for a delay in entering a plea of guilty is generally irrelevant because, if a plea is not forthcoming, the utilitarian value of the plea is reduced: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(8)] and Morton v R [2014] NSWCCA 8 at [32], [33].
As a result of the considerable delay in this case, the discount to be afforded for the utilitarian value of the plea of guilty should be reduced from the maximum of 25% stated in the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160].
Another factor that affects the utilitarian value of the plea of guilty to the criminal justice system is the extent to which the offender has contested unsuccessfully the facts that form the basis for sentence. I explained this factor in Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [152], [153]: "Another factor that affects the utilitarian value of the pleas of guilty to the criminal justice system is the extent to which the offender has contested unsuccessfully the facts that form the basis for sentence. It is well settled that the utilitarian benefit of a plea of guilty is affected not only by the timing at which the plea is entered but also by the difficulty of assembling the relevant evidence and the length and complexity of the trial. A plea of guilty that avoids the necessity for and difficulty of gathering and adducing evidence on complex issues and a lengthy and complex trial will be of greater utilitarian benefit: R v Thomson at [154]. However, the utilitarian benefit of a plea of guilty in such a case will be reduced where the offender, by the plea, admits only the essential legal ingredients of the offence but otherwise contests the factual basis of the plea and on which the court should pass sentence. Any dispute as to factual matters beyond the essential ingredients admitted by the plea must be resolved by accusatorial process upon evidence before the court applying ordinary legal principles appropriate to a criminal trial: Chow v Director of Public Prosecution at 605; R v Palu at [21]. If the contested factual matters, by their nature, extent or complexity, necessitate gathering and adducing evidence and a lengthy or complex sentence hearing to resolve the factual basis for sentence, the utilitarian benefit to the criminal justice system that ordinarily should have resulted from the plea of guilty, such as avoiding evidence gathering and a lengthy and complex trial, and the associated costs, will be dissipated: see also Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [161]-[166]."
This was a factor taken into account in Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull at [165]-[168].
In this case, Mr Turnbull's plea of guilty admitted only the essential elements of the offence; otherwise, Mr Turnbull contested every fact forming the basis for sentence for the offence. Mr Turnbull contested, among other matters, the size of the areas of native vegetation cleared; the quantum of native vegetation cleared; whether the clearing of the native vegetation even required permission because it was regrowth or for routine agricultural management activities; the type of native vegetation cleared, including whether trees, shrubs, groundcover or other type of vegetation were cleared; the floristic species of the vegetation cleared; the vegetation communities involved; the conservation value of the native vegetation cleared; and the fauna that might have been impacted and the nature and extent of the environmental harm caused by the clearing. This contesting of the factual basis for sentencing led the prosecutor to prepare and adduce at the sentence hearing extensive evidence of experts and departmental witnesses to prove these factual matters concerning the nature and extent of the clearing of native vegetation and its consequences, including the environmental harm caused by the clearing. I have found that the prosecutor has established, beyond reasonable doubt, these factual matters about the clearing and its consequences. The sentence hearing was therefore extended, over five days, by Mr Turnbull not admitting these factual matters that I have found proven. This affects the utilitarian benefit of Mr Turnbull's plea of guilty to the criminal justice system.
Having regard to the lateness of the plea and the extensive contest of the factual basis of the plea, the discount to be afforded for the utilitarian value of the plea of guilty should be reduced to 12.5%.

[36]

Remorse

Apart from the utilitarian value of a plea of guilty, genuine remorse is a further mitigating factor. However, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act states that remorse shown by the offender for the offence will only be a mitigating factor 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)"
The existence of genuine remorse is also relevant to the weight that needs to be given in sentencing to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson; R v Houlton at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of reoffending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: R v Wisbey [2001] NSWCCA 434 at [31].
In this case, Mr Turnbull's expression of remorse was qualified. Mr Turnbull gave evidence, by affidavit and orally at the sentence hearing.
In his affidavit, Mr Turnbull merely said: "As the landowner, I accept that I am responsible for the clearing of native vegetation on Strathdoon during the period of the charge, as is found to be in contravention of the Act. I did much of the clearing myself and had assistance in some areas."
Mr Turnbull disputed, however, the nature and extent of the native vegetation cleared and the extent of environmental harm that were alleged by the prosecutor.
In examination in chief, Mr Turnbull explained that the qualification he added in his affidavit was a reference to the issues concerning whether the vegetation cleared was regrowth or could be cleared for routine agricultural management activities. When asked how he felt about the fact that he had been brought before the court in relation to clearing that was in breach of the law, Mr Turnbull replied: "If it's found that I have breached the Native Vegetation Act by - or I have pleaded guilty to that, I'm aware of, but so far as the regrowth, if the line ball decision comes in that it's on the wrong side of 1990, I do take full responsibility for that. I regret my decision of clearing at the time. It was unintentional for me to go as far as I did and I apologise for my actions."
When asked whether the experience of this case had caused him to reflect on his actions of clearing of native vegetation years ago, Mr Turnbull replied: "Yes, I wouldn't wish this upon anyone."
When asked what he would say to the court as to what the future might hold in relation to activities on his farm that might be either on the right side or the wrong side of relevant legislation, including the Native Vegetation Act, Mr Turnbull replied: "At the time I thought I was following the Native Vegetation Act and I can see by a very small margin how things can escalate very quickly into something that turns into a two and a half, three year court case, for actions I thought at the time were within the law."
Finally, in response to the question of what the prosecution has taught him about how he might conduct himself in the future as to his activities on the farm, Mr Turnbull replied: "I really rethink any decisions I made if this opportunity or in retrospect and given the availability of the technology that's available at the time, yeah, I might be able to make more defined decisions."
Such weak and qualified expressions do not amount to genuine remorse for committing the offence. Mr Turnbull still said he believed that he was following the Act when he cleared native vegetation on the property. His expression of responsibility was limited to saying that if the Court finds that he did not follow the law, he would take responsibility for that. But so he must. Mr Turnbull committed the offence. To say that he accepts responsibility for what the Court finds he did in breach of the law is not an expression of remorse for committing the crime.
Mr Turnbull's statements, in essence, are statements of regret for being apprehended and prosecuted for committing the offence and for the sentence that might be imposed, not remorse for committing the crime and causing the consequences including the environmental harm.
Furthermore, Mr Turnbull did not accept responsibility for, but instead disputed to the end, the nature and extent of the clearing that he had undertaken and the extent of environmental harm caused by that clearing.
Mr Turnbull has not acknowledged the full extent of the environmental harm caused by his actions and he has not made any reparation for such environmental harm. Indeed, Mr Turnbull said in cross-examination that he had not sought to reinstate any of the cleared areas and that, by reason of his actions of ploughing, cropping and applying herbicides to the cleared areas, the land was "very unlikely to regenerate from seed stock". He said "I can't see I'd find a very good reason for letting that happen".
When asked whether the fact that the land was very unlikely to regenerate made him feel sad, Mr Turnbull replied: "No. I set out to achieve a goal of turning a grazing farm into a cropping farm, using the guidelines set out by the Act in what I thought was a legal manner. And to walk away now would mean that the environment and myself would not benefit at all."
I find Mr Turnbull has not expressed genuine remorse for the commission of the offence or its consequences, which meets the criteria in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act.

[37]

Purposes of sentencing

In fixing the appropriate penalty for the offence, the Court needs to consider the purposes of sentencing relevant to the offence and the offender in this case. Section 3A of the Crimes (Sentencing Procedure) Act states that: "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."
The purposes of punishment and denunciation and retribution are important in this case. There is the need for the Court, through the sentence it imposes, to denounce the conduct of Mr Turnbull, to hold him accountable for his actions and to ensure that he is adequately punished for the offences. Retribution for the environmental harm which Mr Turnbull has caused is important in sentencing for environmental offences. The community must be satisfied that the offender is given his just desserts.
There is a need for the Court to recognise the harm done to the environment, and to the community, by reason of Mr Turnbull's offending conduct. Mr Turnbull's conduct caused significant actual environmental harm to vegetation communities of high conservation value, not in low condition, and in an over cleared landscape and to threatened fauna, including the koala and Grey-crowned Babbler. The sentence of the Court needs to reflect this environmental harm and the purpose of restoration and reparation.
The sentence of the Court also needs to act as a deterrent, both to Mr Turnbull to prevent him reoffending, and to other persons to prevent them committing similar offences. Mr Turnbull's lack of remorse for, and insight into, his offending conduct, and his failure to make reparation for the environmental harm caused by the commission of the offence, gives rise to a risk that Mr Turnbull may reoffend. The Court's sentence needs to deter him from doing so.
The sentence of the Court also needs to operate as a general deterrent, as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed. The purpose of general deterrence is particularly relevant when imposing sentences for offences of clearing of native vegetation: see Director-General of the Department of Environment and Climate Change v Rae at [9]-[13]. As I said in Director-General of the Department of Environment and Climate Change v Rae at [13]: "The very high maximum penalties fixed by parliaments for offences of clearing native vegetation contrary to law are, to a significant extent, intended to act as a deterrent, a countervailing disincentive to the economic incentives to clear native vegetation illegally. The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the offender and also of other owners, occupiers and developers of land on which native vegetation occurs who might be tempted to clear illegally by the prospect that only light punishment will be imposed by the courts. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational."

[38]

Consistency in sentencing

A relevant consideration in sentencing is the ascertainment of a general pattern of sentencing for offences such as the offence under consideration. As was said in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6], the administration of criminal justice functions as a system, which should be systematically fair and that involves reasonable consistency: see also R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [24]. The consistency sought is "consistency in the application of the relevant legal principles": Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49]. Like cases should be treated alike and different cases treated differently: R v Pham at [28].
Care must be taken in the task of achieving consistency. There is always a difficulty in attempting to compare the penalty in one case with a penalty in another case because of the wide divergence of facts and circumstances: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365. Each case is different and the penalty imposed in one case does not demonstrate the limits of a sentencing court's decision: R v Stahl [1999] NSWCCA 160 at [10]; Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; [2001] NSWCCA 280 at [35]; Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79].
The sentences imposed in comparable cases illustrate, but do not define, the possible range of sentences available. Sentences are not binding precedents, but are merely historical statements of what has happened in the past. As was said in Hili v The Queen at [54], approving what was pointed out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194 at 98: "…a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits…But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.' When considering past sentences, 'it is only by examination of the whole circumstances that have given rise to the sentence that 'unifying principles' may be discerned.'": See also R v Pham at [27].
As noted, the purpose of consistency in sentencing does not command a sentence within a range or band derived from current sentencing practices: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [82]. "Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court": Director of Public Prosecutions v Dalgliesh (a pseudonym) at [83] and see also at [50]-[52].
Similarly, the highest penalty imposed in past sentences does not define or state the upper limit of the range of penalties for the offence. The upper limit of the sentences that can be imposed for the offence is in fact the maximum penalty set by Parliament. As Grove J noted in R v Hayes [2001] NSWCCA 410 at [15]: "If the upper limit of the statistical range is treated as reserved for the worst case or the worst offenders then persistent selection of sentences for others within that range will inevitably reduce the upper figure."
This would be contrary to Parliament's intention as expressed in the maximum penalty it set for the offence.
Discrimination is also required when looking at the sentences that shape the range. If the early sentences imposed for an offence are wrong (are too low or too high), they may have influenced subsequent sentences. As was said in R v Derbas [2003] NSWCCA 44 at [33]: "[Sentencing statistics] tend to be self perpetuating in that as soon as the first few cases suggest a particular figure or range, other judges are urged and there is a tendency to follow that figure or range. If that early figure or range is wrong, the fact that it is later often followed does not make it right."
Provision needs also to be made to account for views changing over time about the sentence that should be imposed in particular cases. In Director of Public Prosecutions v Dalgliesh (a pseudonym) at [51] the High Court quoted with approval the observations in Director of Public Prosecutions (VIC) v OJA (2007) 172 A Crim R 181 at 196 [30]-[31]: "'[T]he need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. … [I]t should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. … One must allow for the possibility that sentences to this point have simply been too low.'"
Applying this approach to consistency in sentencing, I have had regard to the sentences imposed in previous cases for offences involving the clearing of native vegetation. I have considered not simply the sentences imposed but also the objective and subjective circumstances of the offences and the offenders involved that led the court to impose those sentences. The object of doing so was to check there would be consistency in the application of the relevant legal principles when sentencing the offender in the present case. The cases I have considered include: Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119; Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210; Corbyn v Walker Corporation Pty Ltd (2012) 186 LGERA 442; [2012] NSWLEC 75; Director General of the Department of Environment, Climate Change and Water v Graymarshall (No 2) [2011] NSWLEC 149; Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129; Chief Executive, Office of Environment and Heritage v Newbigging [2013] NSWLEC 144; Rummery v Chief Executive, Office of Environment and Heritage (2014) 201 LGERA 428; [2014] NSWCCA 106; Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150; Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; [2009] NSWLEC 4; Hudson v Director-General, Department of Environment, Climate Change and Water (2012) 187 LGERA 207; [2012] NSWCCA 92; Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 as well as the other cases referred to in those cases.
The sentence that I consider appropriate to be imposed on Mr Turnbull for the offence he has committed is not inconsistent (in the sense explained above) with the sentences imposed in those cases. The amounts of the fines imposed in those cases vary considerably, depending on the particular facts found about the objective and subjective circumstances of the offence and the offender involved and any other component of the sentence (such as the amount of costs ordered). It is not a useful exercise to compare only the amount of the fine imposed in each of those cases with the amount of the fine that I consider to be appropriate in the present case. They are different but that is because the circumstances are different. Furthermore, the more appropriate yardstick against which the sentence in this case should be compared is the maximum penalty set by Parliament for the offence ($1,100,000) rather than the amounts of the sentences imposed in past cases.

[40]

Financial means to pay the fine

In fixing the amount of the fine, the Court is required to consider the financial means of the offender to pay the fine. Section 6 of the Fines Act 1996 provides: "In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount."
A "fine" includes any monetary penalty imposed by the Court as well as any costs (including expenses and disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer: s 4(1)(a) and (f) of the Fines Act. The prosecutor in this case is the law enforcement officer: see definition of "law enforcement officer" in s 3 of the Fines Act. Hence, the Court needs to consider the financial means of Mr Turnbull in exercising its discretion to fix the amount of any monetary penalty for the offence and any costs order payable by Mr Turnbull.
If the Court is satisfied that the offender would be unable to pay the amount of fine determined by the Court to be appropriate, the Court may reduce the amount of fine to take account of the offender's means: R v Rahme (1989) 43 A Crim R 81.
Mr Turnbull submitted that he would have financial difficulty in paying a substantial fine for three main reasons: first, his farm income is limited; secondly, his existing obligations to comply with and pay for the remedial work previously ordered by the Court; and thirdly, he will have to pay the legal costs of both the prosecutor and his own defence.
As to the first reason, Mr Turnbull said his present financial commitments include the following current loans: "(a) a loan of about $1,950,000 from the Commonwealth Bank to purchase Strathdoon which has since been refinanced with Suncorp, (b) a house loan (c) equipment finance for a combine harvester (d) vehicle hire purchases (e) an overdraft with Suncorp which was extended from $125,000 to $300,000 in 2015, noting that this was a temporary extension due to 2014 being a dry dismal year which could not support 2015, and we are now back to the original overdraft."
Mr Turnbull said he has three children, now aged 6, 4 and 2. Mr Turnbull said: "I already struggle to meet the costs of the farm and the expenses of raising our three children. Donna [his wife] no longer works as a dental nurse since the birth of our third child, and is raising our young children. If Donna had to find work, we would have to put our children into day care. The consequence of our children going to day care is that we would have to pay around $80 per day per child and Donna would have to earn over $1,200 net per week just to cover the weekly cost of day care which is just not achievable."
Mr Turnbull provided various financial statements for the 2013-2016 financial years. For 2016, Mr Turnbull made a gross profit from primary production trading (essentially cropping) of $659,948. He made a further $109,543 in contract income, giving a total primary production income of $769,492. He had a total expenditure of $672,450, giving a net primary production income of $97,042. To this figure was added other income of interest and rebates and refunds of $12,838, to give a net profit from ordinary activities of $109, 879. This net profit was distributed evenly between the two partners, Mr Turnbull and his wife.
The balance sheet for 2016 showed current assets of $58,615 (mainly trade debtors) and non-current assets (particularly the property "Strathdoon") of $2,210,504. The property was shown at its historic cost (purchase price) of $1,950,000. The total assets were $2,274,506. The current liabilities were $156,683 and non-current liabilities (essentially loans for the property and equipment) were $2,213,368, giving total liabilities of $2,370,050. There was, therefore, a net liability of $95,544.
In cross-examination, Mr Turnbull accepted that Strathdoon was now worth around $5 million, an increase in value of around $3 million. On this basis, Mr Turnbull would have net assets around $2.9 million.
Mr Turnbull also owns a house near Toowoomba. He lives there when he is not working. His wife and children live there. The children go to school in Toowoomba. He owns the house but it is mortgaged. He did not provide information about the market value of the house or the amount of the mortgage.
As to the second reason, Mr Turnbull is already paying for the remedial work ordered by the Court in 2014. The costs are therefore included in the financial statements discussed above.
I do not consider that Mr Turnbull has established that he would be unable to pay the amount of fine I have determined as appropriate. Mr Turnbull's income from primary production is considerable, around $750,000 in 2016. Of course, primary production income can vary depending upon the season. And he does have expenses that need to be met from that income. But there is significant cash flow. Mr Turnbull has valuable non-current assets, particularly Strathdoon that has increased in value, by around $3 million, by reason of the property being cleared of native vegetation. These assets could be used as collateral to obtain finance. It is true the assets are already mortgaged. But the increased capital value of the property offers the potential to increase the loan facilities. Finally, Mr Turnbull can apply to pay any fine by instalments.
Mr Turnbull's liability to pay the costs of the prosecutor is not yet quantified. The prosecutor's costs might be substantial. The amount of costs will be determined either by agreement with the prosecutor or, failing agreement, in accordance with the legal costs legislation. This provides some opportunity for Mr Turnbull to limit the amount of costs payable. I note that a dominant factor for the prosecutor's costs being substantial is that Mr Turnbull contested the factual basis for sentencing. This contest increased the time and cost of the prosecutor in having to establish the nature and extent of the clearing and the consequences, including environmental harm, caused by the clearing. Mr Turnbull's conduct, therefore, was a dominant cause of the amount of the prosecutor's costs.
Again, for similar reasons, I do not consider that Mr Turnbull has established that he would be unable to meet those costs as assessed. Mr Turnbull can also seek agreement with the prosecutor for him to pay the costs by instalments.
This brings me to the third reason. I do not consider that the fact that Mr Turnbull will be ordered to pay the prosecutor's costs of the proceedings is a reason to impose a lesser fine than is appropriate. It is true that any costs payable are considered to be a fine for the purpose of the Fines Act and also part of the penalty imposed on the offender: see Environment Protection Authority v Barnes at [88]. However, a fine and a costs order serve different purposes. A fine serves the purposes of sentencing for the offence committed by the offender, including punishment of the offender. A costs order serves to compensate the prosecutor, not punish the offender: see Latoudis v Casey (1990) 170 CLR 534 at 569; [1990] HCA 59 and Environment Protection Authority v Taylor (No 4) (2002) 120 LGERA 414; [2002] NSWLEC 59 at [45].
If a court considered that an offender would be unable to pay the aggregate of the amount of the fine and the amount of the costs order, the court, exercising the discretion under s 6 of the Fines Act, can impose a lesser penalty. However, in order to do so, ordinarily it will be more appropriate to reduce the amount of costs payable rather than the amount of the fine. A reduction in the amount of the fine may impact on the achievement of the purposes of sentencing for which the fine, in the amount fixed as appropriate, was imposed. For example, if the amount of the fine were reduced significantly, perhaps by the amount of costs payable, it may no longer act as a general deterrent to others tempted to commit similar offences. It is the public punishment of the fine that acts as the deterrent not the private compensation of the costs order.
In this case, however, I do not consider that Mr Turnbull has established that he will be unable to pay both the fine and the costs payable. There is, therefore, no need to adjust either amount.
I also do not consider that the fact that Mr Turnbull will have to pay for the legal costs for his defence should be a reason to reduce the amount of the fine that is otherwise appropriate. The increased amount of defence costs is a product of the defence contesting, unsuccessfully, the factual basis for the sentence, including the nature and extent of clearing and its consequences.
Furthermore, if a court were to determine that an offender would be unable to pay all of the fine, the prosecutor's legal costs and the offender's legal costs, so that some reduction in the amounts payable is appropriate, priority should not be given to the offender's legal costs by reducing instead the fine or prosecutor's legal costs. Rather, the offender's legal costs should rank last.

Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

Parties

Cases Cited (59)

Cited By (15)