[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
Turnbull v Chief Executive of the Office of Environment and Heritage (2017) 223 LGERA 81[2017] NSWCA 161
Walker Corporation Pty Ltd v Director-General of the Department of Environment, Climate Change and Water (2012) 82 NSWLR 12[2012] NSWCCA 210
Wong v The Queen (2001) 207 CLR 584
Judgment (37 paragraphs)
[1]
l, 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
Turnbull v Chief Executive of the Office of Environment and Heritage (2017) 223 LGERA 81; [2017] NSWCA 161
Walker Corporation Pty Ltd v Director-General of the 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)
Grant Wesley Turnbull (Defendant)
Representation: Counsel:
Mr T Howard SC with Mr D K Jordan (Prosecutor)
Mr T Alexis SC with Ms H Irish (Defendant)
[2]
Solicitors:
Mr N Allen, Office of Environment and Heritage (Prosecutor)
Cole & Butler (Defendants)
File Number(s): 2016/151258
Publication restriction: Nil
[3]
Judgment
Mr Grant Turnbull has pleaded guilty to a charge of clearing native vegetation contrary to s 12(1) of the Native Vegetation Act 2003 ("the Act") on his farming property, "Colorado", at Croppa Creek, near Moree, between about 1 June 2012 and 5 January 2013. Section 12(1) of the Act provides:
"(1) Native vegetation must not be cleared except in accordance with:
(a) a development consent granted in accordance with this Act, or
(b) a property vegetation plan."
Mr Turnbull's plea of guilty, whilst admitting the essential elements of the offence, did not admit the nature and extent of the native vegetation that was cleared or that the extent of environmental harm was as alleged by the prosecutor.
An extended sentence hearing was required to determine the factual basis for sentencing Mr Turnbull for the offence. The sentence hearing for Mr Grant Turnbull was held at the same time as the sentence hearing for Mr Cory Turnbull. Mr Cory Turnbull pleaded guilty to a charge of clearing native vegetation contrary to s 12(1) of the Act on the neighbouring property "Strathdoon". Although there was some overlap of evidence, there were also some differences between the two offences and the two offenders. I therefore have provided separate reasons for judgment for the sentence I impose on each offender. Where appropriate, I have referred to and incorporated in this judgment sentencing Mr Grant Turnbull, certain findings and reasons on particular aspects of the evidence and submissions in the judgment sentencing Mr Cory Turnbull.
[4]
Facts of the offence
Mr Grant Turnbull exchanged contracts to purchase Colorado in about August or September 2011 and settled the purchase on 31 January 2012.
Colorado is approximately 1,533 hectares in size and was made up of cultivated land and areas of uncleared native vegetation as of 31 January 2012.
Mr Turnbull purchased Colorado with the intention of clearing part of the land to create cropping areas. Prior to 31 January 2012, Colorado had primarily been a grazing property.
To that end, the first clearing of native vegetation on Colorado occurred between 1 November 2011 and 18 January 2012. The clearing was undertaken by Mr Grant Turnbull's father, Mr Ian Turnbull. The clearing was not in polygons 7 and 18 that were the subject of the charge in these proceedings. The clearing 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 Colorado by Mr Grant Turnbull (see Turnbull and Another v Director General, Office of Environment and Heritage (2014) 212 LGERA 163; [2014] NSWLEC 84).
Between about 18 August 2012 and 5 January 2013, Mr Turnbull carried out or authorised the carrying out of clearing of native vegetation on Colorado. The areas within which native vegetation was cleared were identified and numbered as polygons, including polygons 7 and 18. These are the two polygons of cleared vegetation constituting the offence committed by Mr Turnbull.
The clearing was carried out in order to allow cropping and/or prepare for broadscale cultivation in polygon 7. The clearing involved pushing over of trees and other woody plants using a bulldozer and pushing of felled vegetation into stacks and windrows. The felled vegetation was later burnt.
The parties agreed that some of the clearing on polygon 7 occurred between 18 August 2012 and 4 September 2012 and that the clearing in polygon 18 occurred between 4 September 2012 and 5 January 2013.
The total area of both polygon 7 and 18, within which native vegetation was cleared, was 103.6 hectares, polygon 7 being 101 hectares and polygon 18 being 2.6 hectares.
All of the vegetation in polygon 7 was cleared, except for approximately 18 trees which were left standing at the end of the charge period, and all of the vegetation in polygon 18 was cleared. The vegetation removed included trees, shrubs, smaller native plants and groundcover. The cleared areas were subsequently raked and ploughed during the charge period, which removed whatever groundcover had been left after the clearing of trees and shrubs.
[5]
The objective gravity of the offence
In determining the objective gravity of the offence, the circumstances of the offence in this case to which the Court may have regard include: the nature of the offence; the maximum penalty for the offence; the harm caused to the environment by commission of the offence; the state of mind of the offender in committing the offence; the offender's reason for committing the offence; the foreseeable risk of harm to the environment by commission of the offence; the practical measures to avoid harm to the environment; and the offender's control over the causes of harm to the environment.
[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.
[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.
[8]
Harm to the environment
The prosecutor submitted that the commission of the offence by Mr Turnbull caused actual environmental harm that was substantial, within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, in three ways:
1. loss of significant areas of remnant native vegetation which was not in low condition within an over cleared landscape;
2. loss of remnant native vegetation which was of high conservation value within the meaning of s 3(c) of the Native Vegetation Act, as is evident from, inter alia, the listing of the Brigalow within the Brigalow Belt South, Nandewar and Darling Riverine Plains Bioregions, as an Endangered Ecological Community under the Threatened Species Conservation Act 1995;
3. loss of important, mature habitat of native fauna, which is likely to impact on several threatened species, including koalas and grey crowned babblers, and in particular, the destruction of many hollow bearing trees.
Although Mr Turnbull accepted that the commission of the offence caused some environmental harm, he disputed that it could be characterised as being "substantial". Mr Turnbull disputed that the areas, and hence the quantum, of native vegetation cleared in contravention of the Act were as large as the prosecutor alleged and that the native vegetation cleared was of high conservation value or habitat for threatened native fauna, including the koala.
[9]
Some initial comments about the number of trees cleared
The aggregate area of polygons 7 and 18, in which native vegetation was cleared, was 103.6 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 the order of magnitude of about 1,000, 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".
The prosecutor's rounded figure of 1,000 was derived from Mr Spiers' evidence that, on a lower (conservative) estimate, the total number of trees and shrubs removed in polygons 7 and 18 was 1,086, broken up to be in polygon 7, 1,067 and in polygon 18, 19. The prosecutor submitted that 18 isolated trees remained after clearing in polygon 7 but no trees remained in polygon 18.
The prosecutor also submitted that, in addition to whatever number of trees and shrubs were cleared in polygons 7 and 18, 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 7, 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. Mr Turnbull submitted that the number of trees cleared in contravention of the Act was lower for three 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, 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.
[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 Colorado that were cleared in the charge period (polygons 7 and 18) based on a comparison of aerial and satellite images of Colorado 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 7 and 18) and calculated the area contained within the polygons (101 hectares for polygon 7 and 2.6 hectares for polygon 18).
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.
[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 7 and 18. 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 20% of the total area of polygon 18 had crown cover. He estimated that 80% of that crown cover was trees and 20% was shrubs, giving 16% for trees and 4% shrubs. Dr Jenkins made no allowance for an area in which routine agricultural management activities could be carried out. Dr Jenkins applied his estimates of crown cover for trees and shrubs to the total area of 2.58 hectares to derive an area of 0.41 hectares of trees and 0.1 hectares of shrubs cleared in polygon 18 and 0.51 hectares of both trees and shrubs cleared.
For polygon 7, Dr Jenkins applied the same methodology, although he broke up polygon 7 into 11 sub-areas (7a to 7k) that had different crown cover and different proportions of trees and shrubs. Dr Jenkins made different allowances for the areas in which routine agricultural management activities could be carried out, deducting these areas from the total size of the sub-area concerned. Applying the same methodology as he had for polygon 18, Dr Jenkins' calculations for polygon 7 were, for 7a, 1.76 hectares of trees cleared and 2.64 hectares of shrubs cleared; for 7b, 0.11 hectares for each of trees and shrubs cleared; for 7c, 0.22 hectares for each of trees and shrubs cleared; for 7d, 0.14 hectares for each of trees and shrubs cleared; for 7e, 0.73 hectares for each of trees and shrubs cleared; for 7f, 1.34 hectares of trees cleared and 0.58 hectares of shrubs cleared; for 7g, 1.29 hectares of trees cleared and 0.86 hectares of shrubs cleared; for 7h, 1.47 hectares for each of trees and shrubs cleared; for 7i, 0.73 hectares of trees cleared and 1.10 hectares of shrubs cleared; for 7j, 0.42 hectares of trees cleared and 0.18 hectares of shrubs cleared; and for 7k, 0.5 hectares of each of trees and shrubs cleared. This gives a total of 8.71 hectares of trees cleared and 8.53 hectares of shrubs cleared, and 17.24 hectares of both trees and shrubs cleared in polygon 7.
[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 7 and 18. Mr Turnbull did not challenge the counting of individual trees in areas of low tree density but rather the estimated number of trees in the areas of clumps of trees. The lack of challenge to the counting of individual trees was of some significance because the majority of Mr Spiers' total number of trees removed in polygon 7 were individual trees (on the lower estimate, 792 out of 1,067) and all of the total number of trees removed in polygon 18 were individual trees. Mr Turnbull's challenge, therefore, was only to Mr Spiers' estimation of the number of trees in the clumps of trees cleared in polygon 7. 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) was not within polygon 7. 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 polygon that was 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 polygon that was cleared. Indeed, at the time Mr Spiers prepared his expert reports, he could not have selected the half-hectare sample sites within polygon 7 because of the extent of clearing that had already occurred in that polygon.
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.
[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 "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."
[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 polygon 7, 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 an aggregate of 2.24 hectares for polygon 7. 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 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.
[15]
The clearing of groundcover
The prosecutor also claimed that Mr Turnbull unlawfully removed native groundcover by raking and ploughing during the charge period. There was no issue that raking and ploughing did occur within the charge period, which removed whatever groundcover still remained after the clearing of trees and shrubs. Mr Turnbull submitted, however, that the prosecutor had not established beyond reasonable doubt that the groundcover removed by these activities was native groundcover.
I find that the prosecutor has established, beyond reasonable doubt, that there was native groundcover in the areas cleared in polygons 7 and 18. Dr Nadolny inspected Colorado and the neighbouring property Strathdoon 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, including in and around polygon 7.
Dr Nadolny assessed the vegetation that had been cleared on the properties as varying in structure from woodland or open forest to scattered trees or thickets of scrub with a predominantly native understorey. As to the groundcover, he said:
"Groundcover on the properties 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."
Dr Nadolny described the vegetation of polygon 7 as follows:
"57. Prior to the clearing event since 18 January 2012, the vegetation in area 7 along the northern boundary of 'Colorado' comprised mature Brigalow - Belah open forest/woodland (VCA ID 35), with most areas being thinned to an open woodland. There were also patches of Poplar Box - Belah woodland (VCA ID 56). The main woody species that had been cleared are Belah, Brigalow, Wilga, Western Rosewood, Poplar Box and Wild Lime (all native species).
58. I assessed the vegetation in two plots in area 7 in August 2012 shortly before they were cleared, using Biometric protocols, to confirm the Vegetation Type and assess the condition in comparison with Biometric benchmarks. I classified both plots as Poplar Box - Belah woodland (VCA ID 56), which corresponds to Biometric Type 186. The key attributes of the vegetation are shown in Table 1. The two plots illustrate the range of attributes present in the parts of this Area where at least moderate densities of trees had been retained. One of the plots (COL - 1) only attained a moderate condition score because it had no trees with hollows, had a significant infestation of African Boxthorn, lacked tree regeneration and was slightly under benchmark in terms of native over-storey cover. The second plot (COL - 2) (photograph 11 in attachment 5) attained benchmark in every important respect except that it lacked diversity of regenerating trees, which is not unexpected in properties with a long history of sheep grazing. However, it exceeded benchmark with respect to the most heavily weighted attributes, the number of trees with hollows and native species richness. It should also be noted that about 25 scattered trees were initially retained in area 7. These were cleared sometime between January 2013 and December 2013, when I inspected the properties, but probably included the Poplar Box recorded in plot COL - 1 discussed in this paragraph.
59. The woody vegetation in some other areas of area 7 was relatively sparse and could be best described as derived native grassland with scattered trees, with Rosewood and clumps of Wild Lime being especially prominent (photograph 12 in attachment 5)."
[16]
Conclusion as to the areas and quantum of native vegetation cleared
In conclusion, I find that Mr Turnbull cleared native vegetation in the areas of polygons 7 and 18 on Colorado, totalling 103.6 hectares. The native vegetation cleared included thousands of trees and shrubs, numbering at least 1,086, as well as large quantities of other types of native vegetation, including native understorey plants and groundcover. In addition, Mr Turnbull's actions of raking and ploughing the cleared areas removed native groundcover.
[17]
Loss of native vegetation of high conservation value
Dr Nadolny classified the native vegetation in the areas cleared on Colorado and the neighbouring property "Strathdoon" 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 identified the vegetation in polygon 7 to mainly comprise mature Brigalow - Belah open forest/woodland (VCA ID 35) with some patches of Poplar Box - Belah woodland (VCA ID 56). Dr Nadolny identified the vegetation in polygon 18 to be relatively open areas of Brigalow - Belah open forest/woodland (VCA ID 35).
Dr Nadolny overlaid the Border Rivers Gwydir Regional Vegetation Map on the boundary of the properties "Colorado" and "Strathdoon" with the clearing polygons. This confirmed that most of the vegetation cleared in both polygons 7 and 18 on Colorado was Brigalow - Belah open forest/woodland (VCA ID 35).
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 "Colorado" and "Strathdoon" but cautioned that it was not possible to accurately identify the nature and distribution of the vegetation within the cleared 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 7 and 18 was within the vegetation communities of Brigalow - Belah open forest/woodland (VCA ID 35) and Poplar Box - Belah woodland (VCA ID 56). 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 Colorado 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 African Boxthorn, might be growing within the vegetation, but this does not affect the classification of the vegetation community.
[18]
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. [2] 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 [3] 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 [4] , 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."
[19]
No remediation proposed
The environmental harm caused by the clearing is irremediable. Mr Turnbull has converted the cleared land to cropping and has grown successive crops since 2013. Mr Turnbull has no intention of restoring the lost native vegetation on the land or compensating for the lost native vegetation by creating any biodiversity offset on other land.
[20]
Conclusion on environmental harm
The commission of the offence has caused a high level of actual environmental harm involving:
1. the loss of significant areas of remnant native vegetation which was not in low condition and was within an over cleared landscape;
2. the loss of remnant native vegetation which was of high conservation value;
3. the loss of important, mature habitat of native fauna, including the destruction of many hollow bearing trees, which is likely to impact on several threatened species of fauna, including the Grey-crowned Babbler, and on the koala population in the area.
Such environmental harm can be considered to be substantial and an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.
[21]
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 Colorado and that he needed to obtain an authority under the Act to clear native vegetation on Colorado, either in the form of a development consent or a property vegetation plan. Mr Turnbull made a deliberate decision to clear native vegetation on Colorado, without obtaining authority under the Act, in the knowledge that to do so was illegal.
Mr Turnbull said, in an email sent on 25 July 2013 to Mr Farago at the Border Rivers - Gwydir Catchment Management Authority complaining about the refusal of Mr Turnbull's application for a property vegetation plan, that:
"How is it that you tell me to refer to the website and it will tell me what I need to know, however after you told Cory that in 2011, I did in fact go to the website and made my decision to clear based on just that information (how I interpret what I read was how I made decisions) then the OEH come in and want to prosecute for a supposed breach to the law when the starting point is your office and we are told to go to the website."
This establishes that Mr Turnbull knew from 2011 that the Act regulated clearing of native vegetation on Colorado.
Mr Turnbull first embarked on clearing of native vegetation on Colorado between November 2011 to January 2012. His purpose in doing so was to convert the property from a grazing property to a cropping property. This clearing was investigated by the Office of Environment and Heritage. Mr Turnbull was interviewed by the investigators in March 2012 about this earlier clearing in November 2011 to January 2012. From these investigations and 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 Colorado.
[22]
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 purchased the property and started what he referred to as "one farm development" to clear native vegetation on the property to convert it to a cropping property and thereby improve the agricultural productivity and profits from the property and improve its capital value.
[23]
Foreseeability of risk of harm
Having regard to the nature and extent of the clearing, and the native vegetation cleared, a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. The extent of foreseeability of harm is a relevant objective circumstance of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority at 700. The environmental harm caused, that I have found above, could reasonably have been foreseen as a consequence of the nature and extent of the clearing undertaken by Mr Turnbull: see R v Wickham [2004] NSWCCA 193 at [25] and Josefski v R [2010] NSWCCA 41 at [21] and [39].
Indeed, it is reasonable to infer that Mr Turnbull in fact foresaw the risk that clearing of native vegetation on the property was likely to cause harm to the environment. Mr Turnbull was aware that the native vegetation was fauna habitat and that fauna used the property, including koalas. He had attended a workshop in February 2012 advising of the presence of koalas and koala habitat in the area. He said in August 2012 he was removing all internal fences not only for ease of movement around the farm, but also for koalas, kangaroos and emus that would get entangled in them. He was advised by investigators in August 2012 that koalas had been affected in the clearing on Colorado.
[24]
Practical measures to prevent risk of harm
Mr Turnbull could and should have refrained from clearing the native vegetation on the property unless and until authority in the form of an approved property vegetation plan or a development consent had been obtained authorising the clearing. That was the law, as Mr Turnbull had been told.
[25]
Control over causes
Mr Turnbull carried out and directed others to carry out the clearing of native vegetation on the property and therefore had control over the causes that gave rise to the offence and the harm to the environment.
[26]
Conclusion on objective circumstances
Having regard to the nature of the offence, the high maximum penalty, the high degree of harm to the environment, the pre-meditated and intentional commission of the offence with knowledge of its illegality, the commission of the offence to increase the profit and capital value of the land to the offender, the foreseeability of risk of harm to the environment by reason of the commission of the offence, the existence of practical measures to avoid that risk of harm, and the control over the causes of harm to the environment, the offence should be considered to be in the middle range of objective seriousness.
[27]
Subjective circumstances of the defendant
Within the limits set by the objective gravity of the offence, the Court may take into account the favourable factors personal to the offender.
[28]
Lack of prior criminality
Mr Turnbull does not have any prior convictions for any environmental or other offences: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act.
[29]
Prior good character of offender
There is evidence that, prior to committing the offence, Mr Grant Turnbull has otherwise been of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act. One character reference was tendered.
Mr Jarratt, a family friend, has known Mr Turnbull for almost 40 years. He has attended family and other functions with Mr Turnbull. Mr Jarratt said he has seen Mr Turnbull's "generosity, compassion and humility on many occasions" and that he is "an honourable, trustworthy person of impeccable character".
[30]
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]."
[31]
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, there was no expression of remorse by Mr Turnbull. He elected not to give evidence (as was his right). Hence, he has not apologised or expressed remorse for committing the offence or causing environmental harm by committing the offence. In terms of s 21A(3)(i), there was no evidence that he has accepted responsibility for his actions or acknowledged the harm caused by his actions or made reparation for the harm caused.
[32]
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 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."
[33]
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].
[34]
The appropriate penalty
I take into account the medium objective seriousness of the offence and the mitigating, subjective circumstances of Mr Turnbull. I take into account the need to impose a sentence that achieves the purposes of denouncing the conduct of Mr Turnbull, ensuring Mr Turnbull is adequately punished for the offence, making Mr Turnbull accountable for his actions, recognising the harm done to the environment by commission of the offence and deterring both Mr Turnbull and other persons from committing similar offences.
Synthesising these factors, I consider the appropriate penalty for the offence committed by Mr Turnbull is a fine of $360,000. This figure should be discounted by 12.5% for the utilitarian value of the plea of guilty, which results in a fine of $315,000.
I consider it is also appropriate to order Mr Turnbull to pay the prosecutor's costs. Mr Turnbull accepted that such an order for payment of costs was likely. The prosecutor did not indicate the quantum of its costs. Mr Turnbull estimated that the prosecutor's costs are likely to be significant. Mr Turnbull submitted that the Court should direct that the amount of costs be determined in accordance with the legal costs legislation (see s 257G(b) of the Criminal Procedure Act). I consider that this course is appropriate in the circumstances.
[35]
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 two reasons: first, his farm income is limited and secondly, he will have to pay the legal costs of both the prosecutor and his own defence.
As to the first reason, Mr Turnbull tendered various financial statements of a trust, Qanagco Trust, that was said (from the bar table) to be the vehicle through which Mr Turnbull undertakes farming operations on Colorado. There was no evidence of the arrangements between Mr Turnbull and Qanagco Pty Ltd as trustee for the Qanagco Trust. The Trust tax returns described the main business activity as "Grain, cereal growing". These financial statements were unsatisfactory in many respects.
The Qanagco Trust Balance Sheets as at 30 June 2015 and 30 June 2016 recorded the property "Colorado" as a non-current asset, yet the property was owned by Mr Turnbull and not owned by Qanagco Pty Ltd as trustee of the Qanagco Trust. There was no evidence as to whether or how Qanagco Trust came to own the property.
[36]
Orders
The Court orders:
1. Mr Grant Wesley Turnbull is convicted of the offence as charged.
2. Mr Turnbull is fined $315,000.
3. Mr Turnbull is to pay the prosecutor's costs of the proceedings in the amount as may be determined under s 257G of the Criminal Procedure Act 1986.
Rayner, L., Ellis, M. and Taylor, J.E. (2013) Hollow occurrence and abundance varies with tree characteristics and among species in temperate woodland Eucalyptus. Austral Ecology doi:10.1111/aec.12052 [online]
Spark, Phil (2012) Croppa Creek Koala Monitoring Report For Surveys Conducted 22nd of February 2012 and 3rd and 4th October 2012. Prepared for the Border Rivers Gwydir Catchment Management Authority. November 2012.
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: 24 October 2017
Parties
Applicant/Plaintiff:
Chief Executive of the Office of Environment and Heritage
The trees and shrubs removed included Brigalow (Acacia harpophylla), Belah (Casuarina cristata), Poplar Box or Bimble Box (Eucalyptus populnea ssp. bimbil), Western Rosewood (Alectryon oleifolius), Wild Lime (Citrus glauca), Warrior Bush (Apophyllum anomalum), Thorny Saltbush (Rhagodia spinescens), Budda (Eremophila mitchellii) and Wilga (Geijera parviflora). The groundcover included Queensland Bluegrass (Dichanthium sericeum), Windmill Grass (Chloris truncate), Slender Windmill Grass (Chloris divaricata) and Fairy Grass (Sporobolus caroli). All of these species of trees, shrubs and groundcover are native species.
The parties agreed that approximately 5% of the trees cleared were trees that began growing in the polygons after 1 January 1990 as a result of natural growth.
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 Grant Turnbull carried out or was legally responsible for the carrying out of the clearing.
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 Grant Turnbull in clearing native vegetation on Colorado 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].
Mr Turnbull did not put forward his own estimates of the number of native trees cleared in contravention of the Act. Instead, he led evidence estimating the aggregate of the areas of trees cleared within the polygons in contravention of the Act. This was 17.24 hectares in polygon 7 and 0.51 hectares in polygon 18, giving a total area of vegetation cleared in contravention of s 12(1) of the Act of 17.75 hectares.
Mr Turnbull also took issue with the prosecutor's allegation of unlawful removal of native vegetation 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 polygons 7 and 18. Mr Turnbull noted that the prosecutor had not particularised in the summons the native vegetation cleared to include groundcover.
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 7 and 18 on Colorado. 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 7 and 18 on Colorado 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 101 hectares in polygon 7 were cleared to such an extent that no more than 18 trees remained and 2.6 hectares in polygon 18 was cleared so that no trees remained. Furthermore, in polygon 7, 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 7 and 18. 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 Grant Turnbull appealing a direction to undertake remedial work to compensate for previous clearing on Colorado. 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.
Mr Spiers estimated that for polygon 7, the tree density prior to clearing was mid-dense (M) to very sparse (V), with a crown separation ratio of 0-5. The crown separation ratio is the ratio of the mean gap between crowns and the mean crown width. The tree density following clearing was all very sparse (V), with a crown separation ratio greater than 10. Mr Spiers estimated for polygon 18, the tree density prior to clearing was very sparse, with a crown separation ratio of 1 to 20. The tree density following clearing was "totally cleared".
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 in polygons 7 and 18 on Colorado of 1,086 and an upper estimate of 1,269. For polygon 7, Mr Spiers provided a lower estimate of the total number of trees removed of 1,067 (being 792 individual trees and 274 estimated trees within areas of clumps) and an upper estimate of the total number of trees removed of 1,248 (being 876 individual trees and 372 estimated trees within areas of clumps). For polygon 18, Mr Spiers provided a lower estimate of the total number of trees removed of 19 (being 19 individual trees and no estimated trees within areas of clumps) and an upper estimate of the total number of trees removed of 21 (being 21 individual trees and no estimated trees within areas of clumps).
Dr Jenkins' calculations are of little assistance in determining the areas of the environments on polygons 7 and 18 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.
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 11 hectares of clumps of trees of mid tree density were removed from polygon 7. 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 very small in area (typically in the order of 0.1 to 0.2 hectares in polygon 7) and could not be sensibly measured. Dr Jenkins therefore said that he was unable to agree with Mr Spiers that 11 hectares of clumps had been removed from polygon 7 on Colorado.
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 11 hectares of clumps. Dr Jenkins therefore speculated as to what features Mr Spiers might have been referring to in calculating the area of 11 hectares of clumps. 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 11 hectares of clumps of trees was incorrect, merely that Dr Jenkins did not adopt the same approach.
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 could 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.
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 2.24 hectares on Dr Jenkins' calculations out of the 101 hectares cleared in polygon 7 on Colorado. This would not make any meaningful difference to the assessment of environmental harm caused by the clearing in contravention of the Act.
Table 1, to which Dr Nadolny referred, included an entry for "native groundcover (grasses)", "native groundcover (shrubs)" and "native groundcover (other)". In each of the two plots in area 7 assessed in August 2012, Dr Nadolny recorded vegetation according with each of these categories of native groundcover.
Dr Nadolny noted that the eastern part of area 7 was being cleared when he inspected Colorado in August 2012. He said that a winter field crop had been sown in this area in 2013, so the clearing of both woody vegetation and groundcover must have been completed in the whole area by late autumn in 2013. About 25 scattered large trees had been initially retained and were evident in a satellite image captured in January 2013, but they had been cleared and all signs of them had been removed by the time of his inspection in December 2013. The removal of these trees was outside the charge period.
Dr Nadolny described the vegetation of polygon 18 as:
"Area 18 was part of a remnant area of native vegetation that had been retained in the clearing undertaken before 18 January 2012. Area 18 included scattered large Poplar Box trees as well as relatively open areas of Brigalow - Belah woodland. Photograph 17 at attachment 5 shows an area of less than 100 metres east of area 18 with similar Brigalow - Belah woodland."
Photograph 17, to which Dr Nadolny referred, showed extensive groundcover in the uncleared area.
Dr Nadolny described the groundcover in the cleared areas of Colorado and Strathdoon as follows:
"89. With a possible exception of area 12 on 'Colorado', the groundcover in all the Cleared Areas on the Properties also appeared to comprise remnant native vegetation. There was no evidence of sowing of plants to establish pasture, and according to Paul Spiers' reports of 26 October 2012 and 20 November 2012 there was no evidence that any of the Cleared Areas had been cropped since 1990. Therefore, there is no reason for groundcover to have been systematically destroyed. There could have been destruction in some areas of groundcover when trees were cleared in the past, however, according to Paul Spiers' reports, there was little tree clearing in the Cleared Areas since 1990 so any damage to native groundcover is not likely to have been significant.
90. Mr Ian Turnbull [the father of Grant Turnbull who worked on both Colorado and Strathdoon] informed me (in a conversation on the 14th February 2012, in the presence of Officers Turner and Beaman) that he considered the groundcover to comprise native pasture, but there had been extensive 'bare areas' before the pasture had grown in response to recent above average rainfall. Most native groundcover species that were present at the time of clearing tolerate heavy grazing and would have still been present albeit at reduced densities regardless of grazing pressure, unless the heavy grazing occurred in combination with drought. In that case drought would have been the principal cause contributing to the loss of groundcover (if such a loss occurred). According to the definition of regrowth in s 9 of the NV Act, if clearing of groundcover had occurred as a consequence of drought then the groundcover that regenerated following the drought would still be remnant vegetation rather than regrowth. In other respects, the species that were present were generally species that could cope with a heavy grazing regime and species that were sensitive to grazing or browsing pressure appeared to be absent, which indicates that the Properties are likely to have been grazed heavily over an extended period, as stated by Mr Turnbull. The high density of grass cover at the time of my inspection was probably related to the above average rainfall and, perhaps, to temporary absence of livestock. Native Windmill Grasses, in particular, are known to rapidly respond to rainfall by increasing their cover."
Mr Turnbull challenged Dr Nadolny's conclusions that there was native groundcover in areas 7 and 18 at the time of clearing. Mr Turnbull submitted that the prosecutor had failed to demonstrate, beyond reasonable doubt, whether and what native groundcover, including its nature and extent, existed in the polygons prior to the clearing in the charge period.
I reject Mr Turnbull's submission. It is not necessary for the prosecutor to prove the nature of the native groundcover (including the species) or the extent of the native groundcover present at the time of the clearing. It is sufficient to prove that native groundcover was present before the clearing, which was removed by the clearing.
As to the second, Mr Turnbull did not contest that, by his actions, all vegetation, except for some isolated trees in polygon 7, was removed and the whole of the area raked and ploughed and sown with a crop by autumn 2013. To the extent that the cleared areas had any groundcover before the clearing, it was removed.
As to the first, Dr Nadolny's observations and descriptions of the groundcover present in the areas cleared are sufficient to prove that native groundcover was present. It is not necessary to identify and prove every species of groundcover or that is was only native groundcover and there was no non-native groundcover amongst the native groundcover: see Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water at [32] and [33] and Rummery v Chief Executive, Office of Environment and Heritage (2014) 201 LGERA 428; [2014] NSWCCA 106 at [148].
Furthermore, the prosecutor does not have to prove that native groundcover covered all of the ground in the areas cleared. As the Court of Appeal noted in another case about earlier clearing by Mr Turnbull on other areas on Colorado, Turnbull v Chief Executive of the Office of Environment and Heritage (2017) 223 LGERA 81; [2017] NSWCA 161 at [75], [76]:
"It matters not that native vegetation was not present on each and every part of the Cleared Area…it is not necessary for a party alleging contravention and seeking a remedial order to identify and prove the precise dimensions of each section or native patch of vegetation that has been removed from an area. Parliament did not enact legislation with the intention that it should be unworkable."
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, Nandewar 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 polygon 7 on Colorado 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 Colorado 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 7 met this description, but the evidence available did not provide him with any confidence that this was the case. Part of the problem, he said, was 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 [1] . 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 Colorado. 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. On this basis, Mr Richardson calculated an area of 17.24 hectares had been cleared in polygon 7 and 0.51 hectares had been cleared in polygon 18.
Mr Richardson then used Dr Jenkins' calculation of the total area of vegetation within the locality of Colorado (within 10 kilometres), based on vegetation mapping shown in an ecological report in 2008, of 10,485 hectares.
Mr Richardson calculated that the area of native vegetation cleared in polygon 7 was 0.16% (if the area was 17.24 hectares) of all the native vegetation within the locality (10,485 hectares). For polygon 18, the area of native vegetation cleared was 0.005% (if the area was 0.51 hectares) of all the native vegetation within the locality (10,485 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 7 and 18 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 and to the ground beneath the crowns of the trees cleared and to exclude areas that might have been but were not cleared for routine agricultural management activities. The total area on Colorado within which native vegetation was cleared was instead around 103.6 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 Colorado and Strathdoon 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 Colorado 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 Colorado and Strathdoon 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 in polygons 7 and 18 on Colorado comprised a large proportion of the native vegetation in an area within a radius of 1.79 kilometres from the centre of Colorado. Indeed, Mr Richardson accepted that the clearing of those polygons on Colorado constituted the clearing of a large proportion of vegetation within the locality of Colorado.
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 Colorado and Strathdoon when they visited in August 2012. The population of koalas utilised areas of Colorado, 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 "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 larger 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 24 recorded koala locations within 10 kilometres of the property, comprising 25 recorded individuals including two individuals recorded from within Colorado. 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 7, 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 98.7 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 polygon 7 was 17.3 hectares, of which an estimated 2.0 hectares represented Poplar Box cover, which equates to an estimated 110 mature Poplar 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 98.7 hectares of koala habitat represents 1.6% of available koala habitat within 10 kilometres of the property.
Dr Harrington considered that the removal of 110 mature feed trees, or 1.6% 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 18, based on Dr Jenkins' calculations, Dr Harrington estimated that the loss of 2.6 hectares of vegetation, which included five Poplar Box trees, caused negligible environmental harm, including to koalas.
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 the neighbouring property "Strathdoon" and that the removal of that habitat (food trees) would have caused impacts on the local population. Dr Harrington earlier had accepted in his report that there was known koala habitat (food trees) and there were koalas recorded and observed on Colorado. 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 Colorado.
In relation to other threatened species of fauna, Dr Harrington accepted that the vegetation cleared on Colorado 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 Colorado, which would have caused some environmental harm to any hollow-dependent fauna species inhabiting those trees.
On 23 February 2012, Mr Turnbull attended a workshop run by the Catchment Management Authority at which the presence of koalas and koala habitat in the Croppa Creek area (in which Colorado is located) was discussed.
By August 2012, clearing of native vegetation on Colorado was being investigated by the relevant environment departments of both the NSW Government and the Commonwealth Government. On 28 August 2012, Mr Turnbull had a telephone conversation with an investigator from the Office of Environment and Heritage, Mr Spencer. The first conversation, at around 8:15am in the morning, was to the following effect:
"Mr Spencer: Grant, we have received information that some clearing is taking place on your properties.
The Defendant: We weren't clearing, we were just clearing up the stacks of trees already felled and cleaning up the property.
Mr Spencer: Did you have any machinery working there?
The Defendant: The only movement on the property today will be moving the tractors off the property and into the sheds, in case anyone says we are clearing. I give you my word, there will be no more clearing done.
Mr Spencer: It's very important that no more occurs until this is sorted out.
The Defendant: From the beginning we have been waiting for someone to come out and sit down with us and tell us what we can and can't do and we're still waiting. We are not environmental vandals, we just want someone to come and tell us what we can do, so we can get a farm plan, we have been waiting for CMA for 18 months. We have put aside 500 hectares of land for conservation and made corridors for wildlife.
Mr Spencer: I know there are some disputes with the property over what is considered regrowth.
The Defendant: Alright, I give you my word there'll be no more clearing."
Later that day, at around 9pm, Mr Spencer and Mr Turnbull had a further telephone conversation to the following effect:
"Mr Spencer: Grant, I just need to clarify a few things. You know when I spoke to you and I told you it was in your best interest to stop clearing until the matter is sorted out. I have received information that some clearing has occurred today on the property.
The Defendant: I gave you my word that we wouldn't do any more and we put the tractors away in the shed, one went in earlier today and the other around tea time, we can't leave them out there, there's poachers out there and you can't leave anything around when you're not using it.
Mr Spencer: There has been a report of some trees being pushed over on your property, someone is obviously looking at your place.
The Defendant: When you rang me, I tried to ring Ivan, the Dozer driver, but he must have had his phone off. It took me about an hour, an hour and a half to get out to where he was working, we don't have radios. I told him to stop working and put the dozer in the shed. He had to cross some fields to get over to where the sheds are, one of the tractors got bogged and we had to pull it out, but they are all in the shed.
Mr Spencer: Was Ivan doing any clearing of trees?
The Defendant: He probably was, but as soon as I got off the phone with you I went out there and put the dozers away. I gave you my word that no clearing was going to happen and as soon as I spoke to you I went out and stopped it."
There were further telephone conversations between Mr Spencer and the defendant through until early 2013.
On various days between 21 and 31 August 2012, investigators of the Commonwealth Department of Sustainability, Environment, Water, Populations and Communities inspected Colorado and observed cleared native vegetation and burning of felled vegetation. They provided monitoring warrants authorising their inspection of the property to Mr Ian Turnbull and emailed copies to Mr Grant Turnbull.
On 31 August 2012, Mr Grant Turnbull emailed one of the investigators, Mr Peters, saying:
"We are very aware of wildlife and hope you and your associates could see the areas of large trees and undergrowth that my father pointed out would remain untouched and left in its natural state. We also will be removing all internal fences, not only for our ease of movement around the farm but for koalas, kangaroos and emus that would only get entangled in them when trying to get through."
On 3 September 2012, Mr Peters emailed Mr Grant Turnbull saying:
"The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) protects matters of national environmental significance. Matters of national environmental significance include nationally listed threatened species and ecological communities, listed migratory species among others. Matters of national environmental significance which are relevant in the Moree and Croppa Creek area include the species Phascolarctos cinereus commonly known as koala. In particular the koala may be present/ is known to use the properties Lockeil [now known as Colorado], Strathdoon and Buckie Station. You may wish to use the search tool available on the department's website at www.environment.gov.au/erin/ert/index.html to find out more about the matters of national environmental significance that may occur in the Moree and Croppa Creek area.
A person proposing to take an action that is likely to have a significant impact on a matter of national environmental significance must refer their proposal to the department for assessment and approval. Substantial penalties apply to a person who takes such an action without approval.
…
The steps to follow to seek that approval can be found on the department's website. I gave Ian [Turnbull] a hardcopy on Thursday.
As you are aware it was suspected that actions had been taken on the properties 'Lockiel' [Colorado] and 'Strathdoon' since 2 May 2012 which may have had a significant impact on koala habitats and communities on those properties particularly the felling of trees and the burning of fallen trees and grassland.
Also as you are aware on 30 and 31 August 2012 my colleagues and I entered those properties by virtue of monitoring warrants issued under s 409 of the EPBC Act. We have made a number of observations, taken measurements, photographs, video footage and samples which gives me further grounds to suspect that actions have been taken on both properties since 2 May 2012 which may have a significant impact on the koalas on those properties.
One such action which may have a significant impact was the apparently deliberate setting of a series of fires in the grassland and fallen trees in the north western sector of Lockeil [Colorado] in the late afternoon of Friday 31 August while my colleagues and I were still conducting examinations elsewhere on the property. In the midst of that burning in the previously cleared area was a single standing tree in which a koala had been observed. It was known that we were on the property conducting examinations and taking samples etcetera with a particular interest in areas of fallen timber. The lighting of those fires might be seen as an attempt to obstruct my colleagues and I from carrying out our duties.
As discussed with Mr Ian Turnbull in person on 30 August and by phone with Mr Grant Turnbull on 1 September, I would strongly urge you to take no further clearing or burning of trees or grassland which may have a significant impact on the koala species without first seeking and being granted appropriate approval from the Commonwealth Department of Sustainability, Environment, Water, Population and Communities."
On 3 September 2012, Mr Grant Turnbull responded by email to Mr Peters, apologising for burning vegetation on 31 August 2012 whilst the investigators were present on the property. Mr Turnbull said "we had thought your presence there was complete". He said he "will contact Mr Peters before anything…like that is done and hope you will contact myself on your departure of the property". Mr Turnbull also advised Mr Peters that he will be using bulldozers in the north east area of Colorado to push and spread piles of dead ground wood to be burnt. Mr Turnbull said: "Wanting to give you the 'heads up' on it because if you start getting phone calls of bulldozers operating there, you can be assured they will not be removing standing habitat". He added:
"We do want to work with you on this not against and hence I am informing you of what we are doing in having the equipment over there in that field. There will not be any trees removed from the ground. This is just a continuation of work started back in January (as is the entire project). This is one farm development started in the new year and would continue for up to 24 months. However if the new legislation has come into effect and if we now have to go through your office referral process, then this may prolong the project time frame."
In this passage, Mr Turnbull clearly admits that the clearing of native vegetation started back in January 2012 and is part of one farm development that has continued through the year and into the next year.
On 7 September 2012, Mr Turnbull emailed Mr Peters advising that he will be moving "sticks, logs and dead trees" on the north east of Colorado into individual lots and burning them. He said: "there would not be any standing trees removed with this action, just the raking with bulldozers and such to facilitate control".
On 10 September 2012, Mr Peters replied to Mr Turnbull saying, amongst other things:
"In the interim I will repeat that unless it is assessed as a necessity to eliminate fire risks no further clearance including tree felling or the burning of previously fallen trees should be undertaken until your proposed actions are assessed properly and the necessary approvals are in place."
There was further email communications and telephone conversations between Mr Peters and Mr Grant Turnbull in early October 2012 about further clearing and burning activities taking place on Colorado. On 5 October 2012, Mr Peters asked Mr Grant Turnbull whether he had progressed his plan to refer proposed future actions relating to clearing of native vegetation for assessment and decision under the EPBC Act.
At a time prior to 12 October 2012, Mr Grant Turnbull retained First Steps Environmental to prepare and manage an application on his behalf for a property vegetation plan (PVP) applying to Colorado. An initial PVP application was submitted by Mr Turnbull to the Border Rivers - Gwydir Catchment Management Authority on 23 October 2012. A final PVP plan was submitted by Mr Turnbull on or about 20 November 2012. On 16 May 2013, the Catchment Management Authority sent a letter to Mr Turnbull advising him that his PVP application was unsuccessful.
On 30 November 2012, Mr Turnbull signed a "referral proposed action" for the purposes of the EPBC Act. The referral under the EPBC Act was subsequently withdrawn.
Notwithstanding the information and advice that Mr Turnbull received about the need to obtain prior authority under the Act and the EPBC Act before clearing native vegetation on Colorado, and the warnings to stop clearing until the necessary authority had been obtained, Mr Turnbull cleared native vegetation on Colorado without obtaining authority. Most of the clearing in polygon 7 occurred between 18 August 2012 and 4 September 2012 and the clearing in polygon 18 occurred between 4 September 2012 and 5 January 2013. Hence, Mr Turnbull started clearing after he became aware of the fact that the Act regulated and required prior authority for clearing of native vegetation on Colorado and continued clearing of native vegetation on Colorado during investigations into clearing and despite the information and warnings given to him not to do so.
Mr Turnbull's conduct in clearing the native vegetation on Colorado was premeditated and intentionally carried out with knowledge of its illegality. This increases the objective seriousness of the offence.
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 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%.
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.
Qanagco Trust Balance Sheets as at 30 June 2015 and 30 June 2016 recorded another property, 'Buckie Station', as a non-current asset. Yet, Mr Turnbull owned that property as well. He sold it in 2015 and the resultant capital gain on the sale of $1,159,424 was included in his personal income tax return for the year ending 30 June 2015 and Mr Turnbull paid tax on that capital gain ($538,352). Again, there was no evidence as to whether or how Qanagco Trust came to own the property.
Qanagco Trust Balance Sheets as at 30 June 2015 and 30 June 2016 recorded as a non-current asset, "G.W Turnbull - Freehold Land - Colorado EPA Costs". There was no evidence explaining how the payment of "EPA Costs" or a liability to pay "EPA Costs" was a non-current asset at all or a non-current asset of Qanagco Trust and not of Mr Turnbull.
Qanagco Trust Balance Sheets as at 30 June 2015 and 30 June 2016 recorded unpaid trust distributions to Mr Turnbull of $1,451,338.73 and $2,556,956.26 respectively. There was no evidence as to whether Mr Turnbull had the capacity to direct the payment of the distribution to him or whether he did or did not do so or why the distributions have not been paid to Mr Turnbull.
These financial statements and tax returns of Qanagco Trust do not establish Mr Turnbull's personal financial position or that he would be unable to pay the fine in the amount determined to be appropriate for the offence he has committed.
Mr Turnbull's personal tax returns were equally unhelpful in providing information about Mr Turnbull's real assets and income.
The upshot is that Mr Turnbull has not established, on the evidence, his financial position or his inability to pay the fine that is appropriate.
This brings me to the second 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.