Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull

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)

Solicitors: Mr N Allen, Office of Environment and Heritage (Prosecutor) Cole & Butler (Defendants) File Number(s): 2016/151258 Publication restriction: Nil

Judgment

1. 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."
2. 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.
3. 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.

Facts of the offence

1. Mr Grant Turnbull exchanged contracts to purchase Colorado in about August or September 2011 and settled the purchase on 31 January 2012.
2. 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.
3. 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.
4. 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).
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

The objective gravity of the offence

1. 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.

Nature of the offence

1. 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.
2. 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."
3. 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].
4. 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.

Maximum penalty for the offence

1. 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].
2. 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.
3. 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.
4. 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].
5. 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.
6. The consequence is that the maximum penalty for the offence committed by Mr Turnbull remains at $1,100,000.

Harm to the environment

1. 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.
2. 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.

Some initial comments about the number of trees cleared

1. 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".
2. 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.
3. 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.
4. 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.

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

1. With these introductory comments, I now will address the dispute about the size of the areas cleared and the number of trees cleared.
2. 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).
3. 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.
4. 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.
5. In areas of tree cover described as mid-dense (M) or higher, Mr Spiers identified the areas of clumps of trees and applied an average number of trees per hectare (29.7 trees per hectare) that he had derived from an assessment of six, half-hectare sample sites with mid-dense tree cover. Mr Spiers applied an upper and lower estimate for the average number of trees per hectare in the clump areas (25.2 and 34.2 trees per hectare respectively), on the basis of a range where there was a 95% chance that the number of trees within any other sample areas would have been within this range. Mr Spiers said the confidence level of 95% is a widely accepted level of significance in the scientific community.

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

1. 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.
2. 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.
3. 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.

Mr Turnbull's challenge to the number of trees cleared

1. 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.
2. 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.
3. 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.

Mr Turnbull's argument for exclusion of African Boxthorn

1. 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".
2. 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.
3. 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.
4. 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."

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

1. 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.
2. 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.
3. 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.

The clearing of groundcover

1. 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.
2. 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.
3. 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."
4. 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)."

Conclusion as to the areas and quantum of native vegetation cleared

1. 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.

Loss of native vegetation of high conservation value

1. 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.
2. 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).
3. 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).
4. 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.
5. 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.

Loss of habitat of fauna and threatened fauna

1. 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."
2. 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."

No remediation proposed

1. 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.

Conclusion on environmental harm

1. 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.
2. Such environmental harm can be considered to be substantial and an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

State of mind of the offender

1. 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.
2. 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.
3. 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."
4. This establishes that Mr Turnbull knew from 2011 that the Act regulated clearing of native vegetation on Colorado.
5. 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.

Reasons for committing the offence

1. 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.
2. 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.

Foreseeability of risk of harm

1. 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].
2. 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.

Practical measures to prevent risk of harm

1. 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.

Control over causes

1. 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.

Conclusion on objective circumstances

1. 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.

Subjective circumstances of the defendant

1. Within the limits set by the objective gravity of the offence, the Court may take into account the favourable factors personal to the offender.

Lack of prior criminality

1. Mr Turnbull does not have any prior convictions for any environmental or other offences: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act.

Prior good character of offender

1. 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.
2. 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".

Plea of guilty

1. 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.
2. 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.
3. 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.
4. 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].
5. 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].
6. 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]."

Remorse

1. 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)"
2. 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].
3. 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.

Purposes of sentencing

1. 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."
2. 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.
3. 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.
4. 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.
5. 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."

Consistency in sentencing

1. 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].
2. 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].
3. 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].

The appropriate penalty

1. 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.
2. 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.
3. 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.

Financial means to pay the fine

1. 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."
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Orders

1. 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.

Endnotes

1. The OEH Vegetation Types database http://www.environment.nsw.gov.au/resources/nature/BioMetric_Vegetation_Type_CMA.xls
2. NSW Scientific Committee (2007) Loss of Hollow-bearing Trees - key threatening process determination. Department of Environment and Climate Change, Sydney. (http://www.environment.nsw.gov.au/determinations/LossOfHollowTreesKtp.htm )
3. 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]
4. 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