Chief Executive of the Office of Environment and Heritage v Crown in the Right of New South Wales

Background to relevant personnel

1. For present purposes, and to properly understand the factual background of the offence and the organisational structure of the NPW Service, the following persons were relevantly employed by the OEH and performed services as part of the NPW Service: 1. Mr Allen Jeffrey, the Regional Manager; 2. Ms Penny Kendall, a Ranger who, despite not usually being responsible for the Clybucca site, was the acting Ranger at the time of the offence; 3. Mr Peter Greenup, a Senior Field Supervisor; 4. Mr Steven Ryan, a Senior Field Officer; and 5. Mr Ron Hunt, a Field Officer, who is referred to above and operated the machinery that physically caused harm to the subject Aboriginal objects.
2. Of the relevant personnel, none bar Ms Kendall had previously accessed the AHIMS in relation to the Clybucca site, and Ms Kendall had accessed it for alternate reasons. None of the relevant personnel had any formal training in the use of the AHIMS. Further, although a document entitled "Due Diligence Code of Practice for the Protection of Aboriginal Objects" ('Code') existed and was available to the NPW Service, Mr Greenup, Mr Ryan and Mr Hunt were not aware of the Code's existence, and had no formal training regarding managing cultural heritage.
3. The Code, which was annexed to the "Agreed Facts" (Ex A), has the express purpose to: …assist individuals and organisations to exercise due diligence when carrying out activities that may harm Aboriginal objects and to determine whether they should apply for consent in the form of an Aboriginal Heritage Impact Permit (AHIP).
4. This purpose was sought to be achieved by use of a checklist that contained internal references to other sections of the document. A copy of this checklist is annexed to this judgment and marked "A".
5. Mr Hunt, who operated the tractor and slashing implement which physically caused the damage to the relevant middens, had previously used a slashing implement to clear land in the Clybucca site multiple times over the 16 years leading to the incident. It was usually cleared once a year, although in some years it was cleared twice, and in other years not at all.

Planning of the clearing works

1. In late 2013, Ms Kendall met with Mr Greenup to organise for a strip of land known as the Inlet Trail at the Clybucca site to be cleared. The Inlet Trail, which was shown on a map contained in Ex A, runs essentially alongside and through the Clybucca midden complex. For clarity, the Inlet Trail begins to the west of the southern tip of the Clybucca midden complex, and ends to the northeast of the relevant part of the complex, crossing it for a stretch of approximately 400 metres.
2. This organisational process involved Ms Kendall preparing a "job prescription" for the works. Rather that creating a new job prescription, Ms Kendall adopted a job prescription that was prepared in 2011 which she considered "would still generally apply" ('Job Prescription'), and updated a map of the Clybucca site showing, amongst other things, the Inlet Trail to be cleared ('Map'). During this process, Ms Kendall reviewed the Code, but determined it was not necessary to apply for an Aboriginal Heritage Impact Approval (which I understand referred to an AHI permit issued pursuant to s 90 of the NPW Act), as the clearing works would "not involve damage or destruction of cultural heritage as long as the works proceeded with caution". Ms Kendall was of the opinion that proceeding with caution entailed putting controls in place such as informing Mr Hunt of the cultural issues at the site, as well as ensuring that no ground disturbance occurred, and that if any disturbance did occur, the works be halted. This was generally reflected in the Job Prescription, which relevantly stated in its "Risk Management" section: Slash only on existing trails Slashing only - Do not disturb ground surface especially where trail crosses the Clybucca Midden … …maintain ground surface integrity. No tree removal…
3. The Job Prescription then continues in the section entitled "Work Schedule": Numerous Aboriginal artefacts have been recorded on or near the trail. These are mapped on the attached map BUT It is highly likely that other artefacts occur in the locality. Disturbance to the ground surface is to be avoided. Slashing only no blade work or soil disturbance. If soil disturbance is considered necessary an aboriginal sites officer is to supervise activity.
4. The Job Prescription finally stated in the "Monitoring" section that there was to be "Pre-job mapping and joint inspection to define job". There is no evidence to suggest that any such inspection occurred.

Undertaking of clearing works

1. Mr Hunt undertook the clearing works over approximately two or three days from 9 January 2014. He was not accompanied during this time.
2. The clearing works were undertaken using a tractor with an attached slashing implement, approximately two metres by two metres in size, with blades fixed to a central metal plate on the underside that rotates at a high speed ('Slasher'). Whilst the Slasher normally has two "depth wheels", which allow its height to be appropriately adjusted, one of these was bent prior to the works being undertaken, and was removed. As such, the remaining wheel had been relocated to the centre of the Slasher by Mr Ryan so the clearing works could be undertaken. Mr Ryan was aware of the state of the Slasher, and approved the works regardless. The Slasher was repaired onsite very shortly after the clearing works were undertaken.
3. This caused the Slasher to be less balanced than it ordinarily would be, causing it to rock from side to side whilst being operated. This meant the blades would come into contact with the ground at certain points, impacting and damaging middens by striking them and otherwise exposing the objects contained therein. Whilst Mr Hunt noticed that this was occurring, he was not aware that the objects were Aboriginal objects.
4. Further, whilst undertaking the clearing works, Mr Hunt came across a number of fully and partially uprooted trees. The uprooted root systems contained shells that were previously underground and entwined in the roots. Given that some of these uprooted trees were blocking the path for the clearing works, Mr Hunt used the tractor to move the trees, and in particular fully uproot and remove from the Inlet Trail the partially uprooted trees, resulting in soil disturbance that damaged the middens. He did not consider that he should use a chainsaw, which would have caused less damage to the middens, as it would be unsafe to do so whilst unaccompanied.
5. It was agreed that the clearing works were not undertaken in accordance with the Job Prescription, as they: 1. were undertaken without recourse to the Job Prescription or Map; 2. were undertaken without a pre-job inspection; 3. involved the movement of the uprooted trees; 4. disturbed the ground surface and were not supervised by an "Aboriginal sites officer"; 5. slashed the trail wider than two slasher widths (four metres) wide; and 6. involved "blade work".

Harm caused by the clearing works

1. Harm was caused to estuary Aboriginal middens at three locations, known as "Inspection Point 8", "Inspection Point 10" and "Inspection Point 12".
2. Inspection Point 8 is partly mounded on a low ridge to the east of the Inlet Trail. It contains a midden which has a relatively high volume of shells. The clearing works pushed shell deposits up from the intact midden into a heap approximately 3 metres wide, and between 0.5 to 1 metre high. The harm caused was the movement of shells generally, the destruction of individual shells and damage to the midden itself. Despite this harm, various species of shells remain intact.
3. Inspection Point 10 is a thick deposit of densely packed shells. The clearing works caused extensive damage to an area approximately 40 metres in length, 3 metres in width, and with depressions and undulations up to 30 centimetres in depth. Shells were also dislodged from the midden when partially uprooted trees were moved. The harm caused was the movement and destruction of shells and damage to the midden itself. However, because the substrate is predominantly comprised of sand, a question arises as to whether some of the damage may have been caused before the clearing works were undertaken.
4. Inspection Point 12 is a densely layered midden. The clearing works caused extensive disturbance to the midden due to the dislodging of a partly uprooted tree. In particular, shell fragments were moved, and stone artefacts were scattered. The harm caused was the movement of shells and damage to the midden. However, similar to Inspection Point 10, a question arises as to whether some of this harm was caused prior to the clearing works being undertaken.
5. The clearing works have had a detrimental impact on the educational, cultural and scientific value of the Clybucca site at Inspection Points 8, 10 and 12. However, the evidence was that whilst the Crown did cause "non-trivial damage" to these sites, the majority of the Clybucca site retains its integrity and continues to have high scientific, educational and cultural value that has not been significantly diminished due to the clearing works.

Conduct after the offence

1. Upon becoming aware of the incident, the parties agree that the NPW Service reported it to the relevant OEH officers, ceased maintenance work on the Inlet Trail and formed an Aboriginal Custodian Group pursuant to the Plan of Management. It is not clear what is meant by this last point, given that the Plan of Management states that the Aboriginal Custodian Group has existed since 2003. In any event, the Aboriginal Custodian Group has met on a number of occasions to discuss the incident and its impacts.
2. The NPW Service is also presently engaged in the development of a Cultural Heritage Management Plan for the surrounding area, and it is intended that this will be completed by June 2017. This Cultural Heritage Management Plan will address the topics of cultural site management techniques, management requirements of the NPW Service and aspirational requirements of the local Aboriginal people regarding tourism development and promotion.
3. Further, the NPW Service has prepared a Field Operations Risk Management Framework that has been implemented in the area ('Framework'), which is not in evidence. The Framework seeks to identify levels of documentation and approval required for specific tasks, and has a key focus on cultural heritage management. It includes tools to address risk assessment, communication and information management protocols, standard operating procedure templates and an environmental impact assessment training package.
4. The NPW Service has also undertaken to train 24 Aboriginal community members in the local area to address deficiencies in Aboriginal site recognition skills. This has included the training of five NPW Service staff members.

Causes of the offence

1. The parties agree that the incident was caused by a number of factors, including: 1. Mr Hunt's failure to read and comply with the Job Prescription and Map that were prepared by Ms Kendall; 2. the failure to use equipment that was fit for purpose; 3. the failure to provide adequate (or any formal) training to relevant staff members in relation to what constituted Aboriginal objects, particularly at the Clybucca site, and how they should be treated; 4. the lack of supervision of Mr Hunt whilst he undertook the clearing works, and in particular Mr Ryan's misapprehension that Ms Kendall would be supervising the clearing works; 5. the lack of instructions provided with the Job Prescription as the document was handed down the chain of command, and in particular when it was placed in Mr Hunt's pigeon hole; and 6. the fact that Mr Hunt was alone, and was therefore unable to use a chainsaw.
2. It was also noted that it was not commonplace for job prescriptions to be completed for the preparation of works in an Aboriginal place or areas where Aboriginal objects had been identified, although the parties agree that the Job Prescription prepared in these circumstances was fit for purpose.

Sentencing framework

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') sets out the purposes for which a sentence may be imposed, and states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
2. Section 21A of the Sentencing Act outlines the various mitigating and aggravating factors that should be taken into account, and relevantly provides: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
3. To the extent that the aggravating and mitigating factors set out in ss 21A(2) and (3) of the Sentencing Act are relevant to these proceedings, I have regard to them in the following discussion.
4. In addition to the above, s 194 of the NPW Act provides for further considerations when imposing a penalty for an offence under that Act: 194 Sentencing - matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area - the views of Aboriginal persons who have an association with the object, place or area concerned, (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant.

Objective factors

1. As outlined above, the Court should have regard to both objective and subjective factors.
2. I find it appropriate in the circumstances to consider the factors provided by s 194 of the NPW Act insofar as they are relevant when determining the objective gravity of this offence.

Extent of harm to the Aboriginal objects

1. The concept of harm in the context of both the environment and Indigenous cultural heritage is broad: Ausgrid at [48]-[49]. As noted by Preston CJ of LEC in Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 at [147] ('Waste Recycling'): Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no [discernible] direct harm to human interest, should also be treated seriously.
2. The parties agree that the commission of this offence has had a detrimental impact on the educational, cultural and scientific value of the Clybucca midden complex at Inspection Points 8, 10 and 12 through causing what is described as "non-trivial damage" to three middens and the shells and other artefacts contained therein.
3. Section 5 of the NPW Act defines "harm" as including both the destruction and damage to an object or place, as well as the act of moving an object from the land on which it had been situated. For obvious reasons, the destruction or damage to an object or place is objectively a greater harm than the movement of an object. Section 5 of the NPW Act also notes that "harm" does not include "an act of omission that…is trivial or negligible". I also note that none of the harms excluded in reg 3A of the National Parks and Wildlife Regulation 2009 (NSW) are relevant for present purposes.
4. I consider that both the act of using an unstable slashing implement whilst undertaking clearing works around and on top of the Clybucca midden complex and the moving of partially uprooted trees using a tractor was neither a trivial nor a negligible act, and that the failure to provide Mr Hunt with sufficient instructions (or indeed adequate training) was similarly neither a trivial nor a negligible omission. As such, at least some level of harm has been caused by the clearing works for the purposes of s 5 of the NPW Act.
5. The physical harm caused can be summarised into three categories: 1. the physical damage caused to the middens themselves at Inspection Points 8, 10 and 12; 2. the destruction of shells at Inspection Points 8 and 10; and 3. the movement of shells at Inspection Points 8 and 10, and the movement of shells and artefacts at Inspection Point 12.

Significance of the Aboriginal objects

1. The parties agree (and I have found) that the Clybucca midden complex is of high cultural, scientific and educational value, and that this has not been substantially diminished as a result of the offence.
2. However, whilst this is tangentially relevant to the consideration contained in s 194(1)(b) of the NPW Act, it does not properly address the point. The consideration is the significance of the Aboriginal objects that were harmed, not the significance of the Aboriginal place in which those objects were found.
3. As noted by Preston CJ of LEC in Waste Recycling at [147], even where harm causes no discernible direct harm to "human interest", this harm should still be treated seriously.
4. I consider that "human interest" refers to the interests of humanity generally, rather than specific people or communities. The educational, cultural and scientific value of the Clybucca midden complex generally would be something that is in the human interest. These values, it is agreed, have not been substantially diminished because of the harm to the subject Aboriginal objects. The corollary of this position is that because these values have not been substantially diminished, the human interest in the Clybucca midden complex has not suffered discernible harm.
5. This, however, misses the point. It is of limited consequence whether the value of the Clybucca midden complex has diminished or not. What has diminished is the value of the Aboriginal objects that were harmed as a result of the clearing works. It is this harm that should be taken seriously.
6. Whilst I take into account the fact that the Clybucca midden complex still retains educational, cultural and scientific value, and that the physical harm caused to the subject Aboriginal objects may have little discernible direct harm to general human interest in the Clybucca midden complex, I find that the Aboriginal objects that were harmed also held educational, scientific and in particular cultural value, and were therefore of significance.

Practical measures that may have been taken

1. Whilst it was submitted by the Crown that there is no evidence before the Court of any further measures that could be taken following the slashing, this submission again misses the crux of this factor. The question is not what could now be done, but rather what could have been done to prevent the harm from occurring in the first place. Such practical measures can be inferred from the evidence before the Court.
2. The evidence before the Court demonstrates beyond reasonable doubt that there was a systemic failure on the part of the Crown, through the NPW Service, to prevent the harm. Whilst a system did exist, it was not always satisfactory in its own right, nor was it properly applied in many instances where it was appropriate. Whilst the below findings may not have prevented the incident from occurring if they were performed in isolation, each gives rise to real concerns as to the conduct of the Crown and the system that it adopted.
3. First, whilst Ms Kendall did prepare the Job Prescription, it is not clear on the evidence before me that she properly followed the Code whilst undertaking this process. The agreed facts state that she formed the view that an AHI permit would not be necessary, "as the works would not involve damage or destruction of cultural heritage as long as the works proceeded with caution". This is a different test to that contained in s 87(1) of the NPW Act, which provides that the defence of holding an AHI permit is available for all types of harm to Aboriginal objects, and goes further than "damage and destruction". It is also a different test to that contained in the Code, which relevantly asks two questions that could have led Ms Kendall to her conclusion, being (a) "Will the activity involve harm that is trivial or negligible?", and (b) "Will the activity cause or permit harm to an Aboriginal Place or an Aboriginal object?". These again include a wider concept of "harm". As such, I find that Ms Kendall failed to properly apply the correct considerations when considering the Code.
4. Second, the evidence before the Court suggests that Ms Kendall did not update the Job Prescription in any event, but rather only updated the Map. The agreed facts do not state whether Ms Kendall updated the Job Prescription, the email she sent to Mr Greenup states that it attached "the job prescription from 2011 which would still generally apply", and the Job Prescription is dated 20 April 2011. I therefore find that Ms Kendall did not make any updates to the Job Prescription.

Reasonable foreseeability

1. The parties agree (and I find) that the harm caused by the offence was foreseeable to the Crown, and was indeed foreseen by the Crown.

Control over the causes

1. The parties agree (and I find) that the Crown had complete control over the causes of the harm.

Views of local Aboriginal persons

1. As noted above, there has been substantial harm suffered by the local Aboriginal peoples, and I find that this should be taken into account.

Commercial gain

1. The parties agree (and I find) that the Crown did not commit the offence for commercial gain.

Nature of the offence

1. Committing an offence under s 86(1) of the NPW Act is clearly inconsistent with s 2A(1)(b) of the NPW Act, which expressly provides that the legislative objects of the NPW Act include the conservation of objects and places of cultural value, including places of cultural value to Aboriginal people, places of social value to people generally and places of historic or scientific significance. It is further incompatible with s 2A(1)(c) of the NPW Act, as it reduces the ability for the Clybucca site to foster appreciation and understanding of Australia's cultural heritage.
2. A further legislative object is found in s 2A(1)(d) of the NPW Act, which provides that the NPW Act provides for the management of reserved land in accordance with management principles. The Clybucca site has been declared an historical site pursuant to s 30F of the NPW Act, and should therefore be managed in accordance with the principles contained in that section. Knowingly causing harm to Aboriginal objects is clearly inconsistent with a number of these principles, including the management of the land in a manner which conserves places, objects and features of cultural value, the provision for the sustainable use of modified natural areas, the promotion of public appreciation and understanding of the site's cultural value or the provision for appropriate research.
3. It is clear that Pt 6 of the NPW Act, and in particular the offence contained in s 86(1), seeks to give effect to the legislative objects and protect Aboriginal objects. This is consistent with the findings of Preston CJ of LEC in Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 ('Garrett'), where (in relation to Pt 6 of the NPW Act as it then existed) his Honour stated at [67]: The conservation of places, objects or features of cultural value within the landscape, including places, objects or features of significance to Aboriginal people, is an express object of the National Parks and Wildlife Act: s 2A(1)(b)(i). Informed and responsible members of the public view the protection and preservation of cultural heritage seriously. The scheme provided for under Pt 6 of the National Parks and Wildlife Act plays a critical role in achieving that objective…
4. Given the above, it is clear that an offence against s 86(1) of the NPW Act, and particularly one that occurs on reserved land, is inconsistent with many of the objects of the legislation. I consider this nature of the offence to be a relevant consideration when determining an appropriate sentence.

Maximum penalty

1. Section 86(1)(b) of the NPW Act specifies that the maximum penalty for this offence is 2,500 penalty units and/or imprisonment for 1 year for an individual, and 10,000 penalty units for a corporation. Prior to considering the implications of the maximum sentence, the Court should first determine whether the Crown is liable as an "individual" or as a "corporation".
2. The Crown may be considered a "corporation sole" established under common law: Town Investments Ltd and others v Department of the Environment [1977] 1 All ER 813 at 820 (Lord Diplock, with Lord Edmund-Davies agreeing). This is consistent with s 8 of the Crown Proceedings Act 1988 (NSW), which states that "No proceedings (whether civil or criminal) involving the Crown shall abate or be affected by the demise of the Crown". The Crown in the Right of New South Wales is, in turn, a separate legal entity to the Crown in the Right of the Commonwealth, or the Crown in the Right of any other State: Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 at 231 (Isaacs CJ); Commonwealth v Mewett (1997) 191 CLR 471 at 498 (Dawson J).
3. The words "corporation" and "individual" are not defined in the NPW Act. However, the term "individual" is defined as a "natural person" in s 21 of the Interpretation Act 1987 (NSW), and s 3 of the NPW Act expressly binds the Crown to the terms of the NPW Act. As such, the Crown in the Right of New South Wales should be considered a "corporation" for the purposes of s 86 of the NPW Act.
4. As such, the applicable maximum penalty is 10,000 penalty units. Applying the rate of $110 per penalty unit pursuant to s 17 of the Sentencing Act, the maximum penalty is therefore $1.1 million.
5. It is noted that the NPW Act was the subject of numerous changes pursuant to the NPW Amendment Act, including the introduction of the present s 86 of the NPW Act (which has subsequently been amended). Prior to this amendment, knowingly causing harm to Aboriginal objects was governed by (the now repealed) s 90 of the NPW Act. As a result of the amendment, the penalty for knowingly causing harm to Aboriginal objects was increased from 200 penalty units to 10,000 penalty units. This represents a fifty-fold increase to the maximum penalty.
6. In Ausgrid, Pepper J, who was considering a ten-fold increase under s 86(2) of the NPW Act, stated at [46] that such an increase: …must nevertheless be taken by the Court as reflecting the legislature's (and therefore, the community's) view that the protection and preservation of Indigenous cultural heritage is to be taken seriously and the Court is "required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner"[:] R v Slattery (1996) 90 A Crim R 519 at 524 per Hunt CJ at CL…

State of mind

1. Whilst intention is not necessary to obtain a guilty verdict in a prosecution brought pursuant to s 86(1) of the NPW Act, the state of mind of the Crown can be taken into account when undertaking the sentencing process. As noted by Preston CJ of LEC in Rawson at [98]: A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed…Offences committed deliberately are more serious than offences committed due to inadvertence or error… [references omitted]
2. Further, s 175C of the NPW Act states the following: 175C Evidence as to state of mind of corporation (1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (2) In this section, the state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose.
3. As noted above, a corporation sole such as the Crown should be considered a corporation for the purposes of criminal offences performed in contravention of the NPW Act.
4. There is no evidence before the Court which suggests that the Crown had any intention to harm the subject Aboriginal objects, and so I find that the harm to the Aboriginal objects was not intentional.
5. However, I do find that the Crown, through the NPW Service, was recklessly indifferent as to whether it caused the harm. The test for reckless indifference was summarised by Pepper J in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [98] as follows: The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464).
6. It is clear on the evidence available that the Crown, through Ms Kendall, was aware that there were Aboriginal objects underneath the Inlet Trail. Moreover, Ms Kendall (and therefore the Crown) had the foresight that some harm could possibly be caused as a result of the clearing works, and that would probably result from the movement of trees, although this would be avoided if caution was taken pursuant to the requirements under the Job Prescription.

Conclusions on objective factors

1. Having regard to the factors discussed above, I find that the offence committed by the Crown is of low to moderate objective gravity. This is more than that posited by the Crown, but approximately the same as that submitted as appropriate by the prosecutor.

Subjective factors

1. In addition to considering the objective gravity of an offence, the Court is also required to examine the subjective factors relevant to the offender's personal circumstances. Having regard to the mitigating factors set out in s 21A of the Sentencing Act and the subjective factors outlined by Preston CJ of LEC in Rawson at [140], I consider that the following subjective factors are presently relevant.

Prior criminality

1. The NPW Service (and in turn the Crown) has been convicted of two prior environmental offences. The Crown pleaded guilty to both offences. It has not been convicted of any offences relating to Aboriginal objects.
2. First, it was convicted of one offence pursuant to s 120(2) of the Protection of the Environment Operations Act 1997 (NSW) ('PEO Act') for allowing Perisher Creek to be polluted with partially treated effluent from the Perisher Sewerage Treatment Plant ('Perisher STP'): Environment Protection Authority v The Crown in the right of New South Wales [2002] NSWLEC 52 (Talbot J) ('EPA v Crown').
3. Second, it was convicted of one offence pursuant to s 64(1) of the PEO Act for breaching a term of an environmental protection licence: Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) (2010) 174 LGERA 19; [2010] NSWLEC 67 (Pain J) ('EPA v NSW'). This offence related to a failure to "operate equipment in a proper and efficient manner", and again involved releasing effluent from the Perisher STP: EPA v NSW at [1] (Pain J).
4. The Crown submitted that, given the breadth and functions performed by the NPW Service, such convictions should be seen as aberrations, and the lack of a more substantial criminal record should be a mitigating factor. This was conceded by the prosecutor insofar as it submitted that the large areas of land containing Aboriginal objects under the NPW Service's control are generally managed well.
5. Section 21A(3)(e) of the Sentencing Act states that the Court should take into account whether the NPW Service "does not have any record (or any significant record) of previous convictions". It is clear that the NPW Service does have a criminal record. However, I find that it is not a significant record. The prior convictions involved substantially different parts of the NPW Service undertaking different processes, did not relate to Aboriginal heritage offences and were not predominantly the result of systemic failure. However, I do not consider this finding to be of substantial weight when determining an appropriate sentence.

Contrition and remorse

1. It is agreed that "The Crown, via officers of the [NPW] Service, has expressed contrition for harm caused as a result of the offence". The Crown submitted that this contrition is demonstrated primarily through the various undertakings it has performed since the incident as outlined above at paragraphs 49 - 52.
2. Contrition and remorse are more readily demonstrated by "taking action", rather than simply offering "smooth apologies": Waste Recycling at [203] (Preston CJ of LEC). As summarised by Pepper J in Ausgrid at [80], there are four types of action which may demonstrate genuine contrition and remorse: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence… (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities… (c) third, taking action to address the cause of the offence…and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence... [references excluded]
3. With regard to the first type, it was agreed that "All maintenance work on the Inlet Trail has been halted". This provides no indication as to when the work was halted. Further, there is no evidence of any attempts to rectify the physical harm caused at Inspection Points 8, 10 and 12.
4. With regard to the second type, it is agreed that the NPW Service, upon becoming aware of the incident, voluntarily and "immediately contacted relevant OEH officers" regarding what had occurred.
5. With regard to the third type, I consider that many of the above actions undertaken after the incident occurred do not, on the evidence before the Court, appear to necessarily be acts of contrition. In particular, I find: 1. the Aboriginal Custodian Group, which was formed in 2003 in circumstances separate to the present offence, would likely have met to discuss this incident and its impacts without being convened by the NPW Service given the outrage of the local Aboriginal community; 2. there is little evidence before the Court that the Cultural Heritage Management Plan (which itself is not in evidence) is the result of contrition on the part of the NPW Service for this offence, not least because it involves an area far larger than just the Clybucca site and has aspirations such as "tourism development and promotion"; 3. there is similarly little evidence before the Court that the Framework (which is also not itself in evidence) is the result of contrition, in particular because it again involves an area far larger than just the Clybucca site; and 4. there is no evidence that the training provided to the five employees has been provided to employees, such as Mr Hunt, who would most benefit from that education, and prevent similar future incidents.

Cooperation with law enforcement authorities

1. Section 23 of the Sentencing Act provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
2. It is agreed that the Crown provided substantial assistance to the OEH, the entity that investigated the offence. Whilst this is to be expected, given that the OEH is also the employer of all the relevant personnel at the NPW Service pursuant to s 6(b) of the NPW Act, I do not consider that this has any impact on this factor.
3. As such, I find that the Crown provided substantial assistance to the law enforcement authorities that were investigating this offence.

Rehabilitation and Recidivism

1. I find that there is a low probability that the Crown will reoffend. Regardless of whether the steps taken since the incident are indications of contrition or remorse, they do appear to provide a basis that will assist in overcoming the systemic failures that led to the incident occurring. Further, the voluntary reporting and cooperation with law enforcement authorities (even if those interactions were for all intents and purposes internal interactions) give additional weight to this finding.
2. This is consistent with a finding that the Crown has good prospects of rehabilitation. As noted by McClellan CJ at CL and Johnson J, with Price, Hulme and Button JJ agreeing, in R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [123]: In this sense, every offender is in need of rehabilitation. Some may need greater assistance than others. It has been commonplace to speak of "paying your debt" to society. That phrase, in colloquial parlance, captures the essence of rehabilitation, enabling the offender to re-establish him or herself as an honourable member of the community.
3. As such, I find that the Crown also has good prospects of rehabilitation.

Conclusions on subjective factors

1. I find that the subjective circumstances of the Crown mitigate the penalty that would otherwise be imposed by the Court to a moderate degree.

The appropriate sentence

1. As set out in s 3A of the Sentencing Act, the imposition of a sentence serves a number of purposes. A consideration of these purposes, when weighed with the objective and subjective factors outlined above, forms the basis for the Court to determine the appropriate sentence in the circumstances.

Deterrence

1. General deterrence is an important consideration when determining the appropriate sentence for offences committed pursuant to s 86 of the NPW Act: s 3A of the Sentencing Act; Ausgrid at [89] (Pepper J); O'Neill at [80] (Biscoe J). As outlined by Preston CJ of LEC in Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [9]: Most importantly, the sentence of the Court needs to operate 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…
2. As such, any penalty should act as a warning to other persons who may be inclined to commit similar offences. However, in circumstances such as the present, the harm was not caused because the offender intended to cause that harm. Rather, the harm was caused because the offender failed to take adequate precautions to prevent that harm from occurring. It is important that the criminal justice system encourages people to take adequate steps to prevent harm when failing to do so would lead to the commission of an offence. It is therefore important, in effect, to deter people from failing to take adequate steps. This should be taken into account when formulating a sentence. Deterrence generally requires the Court to impose a sentence that changes the calculus of a possible offender to make the penalty of committing an offence higher than the reward that may be achieved by committing that offence. It is therefore important that the Court also imposes penalties that change the calculus for unintentional offences so that the penalty for failing to take adequate precautions outweighs the costs of taking those precautions in the first place: Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [156] (Preston CJ of LEC); Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 359 (Mahoney JA).
3. Further, general deterrence is an important consideration in prosecutions involving public bodies which have responsibilities to administer the system under which the prosecution is brought: Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [197] (Lloyd J). It is important that such defendants should be an example to others given their environmental management responsibilities: EPA v NSW at [80] (Pain J).

Guilty plea

1. Section 22 of the Sentencing Act relevantly provides: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed.
2. The Crown pleaded guilty at the first available opportunity. As such, I find that it should be entitled to requisite discount of its sentence at the upper end of the range of approximately 25%: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, with Wood CJ at CL, Foster A-JA, Grove and James JJ agreeing).

Proportionality

1. Although each case must be considered on its own facts and circumstances, it is also important to ensure that the sentence given in a particular prosecution is not disproportionate to sentences made in other proceedings.
2. To date, no sentences have been imposed for an offence under s 86(1) of the NPW Act since the NPW Amendment Act came into effect in 2010. However, one sentence has been entered in relation to proceedings brought under s 86(2) of the NPW Act, and two sentences have been entered by judges of the Land and Environment Court for knowingly causing damage to an Aboriginal object pursuant to s 90 of the NPW Act prior to the enactment of the NPW Amendment Act. I shall consider each in turn, and note that in each set of proceedings the offender(s) pleaded guilty to all charges.
3. In Ausgrid, Pepper J convicted the offender for a breach of s 86(2) as it presently exists. The offence involved damage being caused to an Aboriginal rock engraving during excavation works. As a result, Pepper J ordered that the offender pay a fine of $4,690 (reduced from $7,000, with a maximum penalty of $220,000), pay $36,000 in costs (which her Honour took into account when determining the fine: Ausgrid at [86]), and publishing an agreed notice regarding its offence in the Sydney Morning Herald.
4. In O'Neill, Biscoe J convicted two separate offenders in relation to breaches of ss 86(b) and 90(1) of the NPW Act as it then existed. The offences involved excavation at the property owned by the offenders, where the offenders knowingly moved a midden that they were aware of, causing harm. Both respondents were separately ordered to pay fines of $400 for disturbing an Aboriginal object pursuant to s 86(b) of the then NPW Act, and $400 for knowingly causing damage to an Aboriginal object pursuant to s 90(1) of the then NPW Act. The maximum penalties for these offences were $11,000 and $5,500 (and/or 6 months imprisonment) respectively. Neither offender was a corporation for the purposes of the NPW Act.
5. In Garrett, Preston CJ of LEC convicted the offender in relation to three separate breaches of s 90(1) of the NPW Act as it then existed. The offences involved the excavation and construction of a mine, where the offender knowingly destroyed two deposits of Aboriginal artefacts, and knowingly damaged a declared Aboriginal place. His Honour ordered that the offender pay fines of $200 and $450 for the two destroyed Aboriginal objects, and $750 for the damaged Aboriginal place. It is noted that the offender participated in a restorative justice conference prior to the sentence being ordered. The offender was not a corporation for the purposes of the NPW Act, had pleaded guilty early, had no prior convictions, had cooperated with the authorities and had expressed contrition.

Fine

1. Having regard to the objects and factors contained in ss 3A, 21A and 23 of the Sentencing Act and ss 2A and 194 of the NPW Act, in light of the objective gravity of the offence, subjective circumstances and present sentencing patterns, and utilising the instinctive synthesis method, I find that the appropriate penalty for the Crown's breach of s 86(1) of the NPW Act is $60,000.
2. Given the early guilty plea of the Crown, I consider it appropriate to apply a 25% discount to this amount, and find that it should be fined $45,000. This fine is to be paid to National Parks and Wildlife Fund ('NPW Fund') pursuant to s 138(1)(b)(vii) of the NPW Act.

Publication order

1. I also consider it appropriate to make a publication order pursuant to s 205(1)(a) of the NPW Act. The fine paid pursuant so s86(1) of the NPW Act is to be paid into the NPW Fund pursuant to s 138(1)(b)(vii) of the NPW Act. The NPW Fund is effectively managed and operated by the NPW Service so that it is able to exercise its functions: s 139 of the NPW Act. This raises doubts as to whether a fine alone is an adequate penalty.
2. In these circumstances, and in light of the other circumstances of this matter as outlined above, I find it is appropriate for the Crown to publicise the offence, including the circumstances of the offence and the fine ordered against it as a result of the offence, and its impacts on the local Aboriginal peoples.

Prosecutor's costs

1. The Crown has agreed to pay the prosecutor's legal costs and disbursements as agreed or assessed. These were estimated during oral submissions to be in the vicinity of $20,000 to $25,000. I find that an order to this effect is appropriate in the circumstances pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Orders

1. The Court orders that: 1. The defendant is convicted as charged. 2. The defendant is fined the sum of $45,000. 3. The defendant pay the prosecutor's costs and disbursements as agreed or assessed. 4. The defendant is to cause a notice in the form of Annexure 'B' to be placed within the first 12 pages of the Sydney Morning Herald, within the first 5 pages of the Mid Coast Observer, and within the first 5 pages of the Macleay Argus, at a minimum size of 8 centimetres by 12 centimetres, between 1 February 2017 and 28 February 2017. 5. The defendant is to provide the prosecutor a complete copy of the pages of the publications in Order (4) showing the notice.

Annexure 'A' Annexure A text only version (49.7 KB, pdf) Annexure A text only version (71.6 KB, rtf)

Annexure 'B' National Parks and Wildlife Service convicted of knowingly causing harm to Aboriginal objects The National Parks and Wildlife Service has been convicted of causing harm to a number of objects that it knew were Aboriginal objects. In early January 2014, an employee of the National Parks and Wildlife Service conducted some vegetation clearing works on a trail that ran alongside and crossed the Clybucca-Stuarts Point Midden Complex. In the course of undertaking these works, the employee used a tractor and slashing implement that was not fit for purpose, and caused damage to the Midden Complex. The employee also moved multiple partially uprooted trees with the tractor, causing further damage to the Midden Complex. This conduct resulted in the Midden Complex being damaged at three locations. This involved a number of shells being destroyed, and further shells and artefacts being scattered, exposing them to the elements. Whilst the employee operating the tractor and slashing implement was unaware that it was causing damage to Aboriginal objects, the National Parks and Wildlife Service had considered the potential harm to the Midden Complex, and attempted to provide a previously prepared job prescription to the relevant employee. However, the National Parks and Wildlife Service did not take sufficient steps to ensure that it was read and given effect to by the employee who carried out the clearing works. The National Parks and Wildlife Service was prosecuted by the NSW Office of Environment and Heritage. It pleaded guilty to the charge, and has been ordered to pay a fine of $45,000, and the costs of the NSW Office of Environment and Heritage. This notice was placed by order of the Land and Environment Court of NSW and was paid for by the National Parks and Wildlife Service. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2018