Chief Executive of the Office of Environment and Heritage v Humphries

The objective gravity of the offence 12In determining the objective gravity of the offence in this case, the Court has had regard to: the nature of the offence; the maximum penalty for the offence; the state of mind of the offender in committing the offence; the offender's reasons for committing the offence; the foreseeable risk of harm to the environment by commission of the offence; 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 13The objective seriousness of an environmental offence is illuminated by the nature and purpose of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme: see DirectorGeneral, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15]. 14The objects in s 3 of the Act include: (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. 15In Rae, I said: 17. 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 consent from the regulatory authority. The application for consent involves undertaking an environmental impact assessment of the clearing for which consent is sought. The statutory provisions requiring prior environmental impact assessment and consent are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including ecologically sustainable development. The discussion in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [65]-[71], [168], [169], although concerning the regulatory scheme under the Threatened Species Conservation Act 1995 and the National Parks and Wildlife Act 1974, is equally apposite to the Native Vegetation Act 2003. 18. 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 consent is required to clear native vegetation, secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna: see Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349, 355-356 at [72]-[77]; Garrett v Freeman (No. 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68]; Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [76]; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at 299 [46]. 19. Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system. 16The actions of Mr Humphries in clearing and directing the clearing of native vegetation on the property without first applying for and obtaining development consent or a property vegetation plan under the Act, offend against the legislative objective expressed in the statutory provision and also thwart the attainment of the objects of the Act. 17As found below, Mr Humphries was aware that he should not clear native vegetation on the property without first obtaining either development consent or a property vegetation plan that authorised the clearing. Mr Humphries had entered into a management agreement with the local catchment management authority. A term of that management agreement was that he not clear native vegetation within nominated areas. The two areas cleared by Mr Humphries were within the nominated areas. 18Further, the native vegetation that Mr Humphries cleared had significant conservation status and contributed to biodiversity. The effects of clearing were similar to those caused by broad scale clearing and caused a medium degree of environmental harm. 19The actions of Mr Humphries and their consequences run counter to the objects of the Act and are also not in accordance with the principles of ecologically sustainable development: see Rae at [20] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [67]-[71], [169]-[171]. Maximum penalty 20The maximum penalty prescribed by Parliament is 10,000 penalty units or $1.1 million and a further daily penalty of 1,000 penalty units or $110,000: see s 12(2) of the Act which refers to s 126(1) of the Environmental Planning and Assessment Act 1979. 21These high maximum penalties reflect the seriousness with which Parliament views the offence of clearing native vegetation contrary to s 12(1) of the Act: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. Harm to the environment 22Mr Humphries' actions resulted in the clearing of nearly all of the native vegetation in the 89 hectares involved. Only isolated trees remain in some parts. 23The native vegetation in the cleared areas was of an open woodland structure, dominated by Coolibah and Poplar Box, falling within the vegetation community of the "Coolibah - Black Box Woodland in the Darling Riverine Plains, Brigalow Belt, South Cobar Peneplain and Mulga Lands Bioregions" ('Coolibah - Black Box Woodland') listed as an endangered ecological community ('EEC') under Sch 1 of the Threatened Species Conservation Act 1995 ('TSC Act'). 24Coolibah - Black Box Woodland has been extensively cleared throughout its range. It is estimated that there has been a 61% reduction in the distribution of the community and only 15% of its estimated preEuropean extent remains in the Moree plains subregion. Land clearing continues to threaten Coolibah - Black Box Woodland. Only 28% of the estimated 250,000 hectares which occurred in the Gingham and Lower Gwydir prior to regulation of the Gwydir River remained in 2008. All remaining Coolibah and Coolibah - Black Box open woodland has high conservation value in the Gwydir. 25The native vegetation cleared also provided habitat for species of fauna, including species listed as threatened on Sch 1 and 2 of the TSC Act. 26The recent fragmentation by clearing of areas of habitat on the "Jackson" property will have had direct and indirect adverse effects on the Coolibah - Black Box Woodland and its associated fauna. Adverse effects of the clearing are likely to have included the direct or indirect deaths of individual resident reptiles, amphibians, mammals and birds. Loss of a strategic corridor of habitat will have had an adverse effect for resident species and for nomadic and migratory species which visited the property irregularly and reduced habitat connectivity across the surrounding landscape. The vegetation cleared was, therefore, of significant conservation status. 27The statement of agreed facts assessed the environmental harm caused by the clearing by reference to a number of parameters (paragraphs 38 to 64), including key threatening processes for biodiversity; adverse effects on biodiversity, including threatened species and EECs; adverse effects on connectivity; and adverse aquatic impacts. 28These impacts are summarised in the conclusion in paragraph 61 as follows: The areas of clearing on "Jackson" previously contained native open forest and woodland and native groundcover vegetation. The clearing of this native vegetation consisting of open forest and woodland is likely to have many significant adverse effects, including: (a) destruction or significant degradation of habitat for native flora and fauna, including habitat for a number of threatened wetland and migratory bird species and two vegetation communities listed as endangered ecological communities, (b) resulting direct or indirect deaths of individual reptiles, amphibians, mammals, birds and other native species, (c) reduced longterm viability of local fauna populations including likely populations of threatened species, (d) fragmented habitat connectivity for the movement and survival of native fauna in the surrounding landscape, including flood dependent species from the adjacent State Conservation Area, the Gwydir Ramsar site and migratory bird species, (e) resulting disruptions to ecological processes including pollination and dispersal of native plants, (f) altered downstream flow regimes and impacts on riparian and aquatic habitat, and (g) release of greenhouse gases into the atmosphere. 29Mr Humphries referred to the fact that the native vegetation in the areas cleared had been disturbed. There were mats of the noxious weed, lippia (Phyla canescens), as well as other exotic grasses. While this may be accepted, it does not diminish materially the conservation significance of the native vegetation cleared or the significance of the environmental impacts described. 30I find that the commission of the offence caused actual environmental harm of medium seriousness. Such harm can be considered to be substantial and an aggravating factor in terms of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 31Mr Humphries has offered to make partial reparation for the environmental harm caused by commission of the offence by undertaking conservation works on other parts of the property. Mr Humphries has proposed fencing an animal corridor from the flood plain to the southern grazing area and planting trees in the corridor so that wildlife can move across the cleared country without being exposed. Mr Humphries has also proposed entering into a conservation agreement with the OEH over the flood plain area in the northern section of the property adjacent to the Gingham Channel. The conservation agreement would add another layer (beyond the restrictions under the Act) of protection to the native vegetation in the area from being cleared. The flood plain area proposed to be conserved under the conservation agreement is one of the few remaining wetland areas on the Gingham Channel flood plain in the district. It is an area of significant conservation value. 32Worthy though these initiatives are, they do not repair the environmental harm caused in the two areas cleared. Those areas remain largely denuded of native vegetation and are tilled and cropped. Hence, the environmental impacts of the clearing continue unabated in these cleared areas. State of mind of the offender 33In Rae I said: 42. 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 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 ... 43. A large measure of premeditation will make an offence more serious than if it is committed on the spur of the moment ... 34Here, Mr Humphries knew that the Act applied to the property and that he needed to make application to obtain development consent or approval of a property vegetation plan under the Act in order to clear vegetation on the property. 35In May 2007, Mr Humphries had contacted the Border Rivers-Gwydir Catchment Management Authority ('CMA') concerning removal of certain native vegetation and advice on obtaining a property vegetation plan. The CMA had delegated authority to approve property vegetation plans. A CMA officer wrote to Mr Humphries on 29 November 2007 recording her inspection of the property and her discussion with Mr Humphries about the Act. Mr Humphries was advised that: Any clearing of native vegetation is covered under the Native Vegetation Act 2003 with a few exceptions. Please check exemptions to the Act before you decide to do any clearing on the property, if clearing does not fit into exemptions please contact me for a property vegetation plan. 36Mr Humphries did not pursue obtaining a property vegetation plan or a development consent under the Act. 37On 14 April 2009, Mr Humphries entered into a management agreement with the CMA. The term of the management agreement was ten years from the commencement of the agreement (from 14 April 2009). The agreement nominated two management areas A and B. The larger area cleared by Mr Humphries comprised one of the four areas forming management area B and an area within management area A. The smaller area cleared by Mr Humphries was within management area A. Under the management agreement, Mr Humphries agreed, from commencement until the completion date, not to clear native vegetation from the land in any way that diminished the outcomes of the project (cl 3.4 of the management agreement). Mr Humphries also agreed to carry out the landholder's commitments in the project specification (cl 3.1 of the management agreement). One of the management undertakings in the project specification was: 4G NATIVE VEGETATION - Protect remnant trees and shrubs as defined under the Native Vegetation Act 2003. No clearing or cutting of native vegetation is to occur within the nominated areas. 38The nominated areas were management areas A and B. 39In the interview with OEH, Mr Humphries admitted that he had been sent information on the Act and about the need for development consent or a property vegetation plan to clear native vegetation but he said that "we just sort of never got around to it". 40In these circumstances, Mr Humphries knew that the Act applied to the property and that he could not clear native vegetation on the property without development consent or a property vegetation plan, but nevertheless made a deliberate decision to go ahead with the clearing of the native vegetation in the two areas without obtaining development consent or a property vegetation plan. Mr Humphries' conduct in clearing the native vegetation can be seen to be premeditated and he intentionally carried it out with knowledge of its illegality. The commission of the offence with this knowledge increases the objective seriousness of the offence. Reasons for committing the offence 41Mr Humphries stated that lippia, a noxious weed, was widespread on the property. Mr Humphries said that he had tried to spray the lippia with herbicide but could only access small areas of the lippia weed with the spray rig. Even these small areas where lippia was sprayed and killed would soon be reinfested because the weed still existed in the immediately surrounding areas. Mr Humphries therefore decided that the only way to effectively control lippia was to clear the affected areas and establish pastures in these areas. 42Mr Humphries now accepts that his response to the lippia weed problem was disproportionate - he went too far with the clearing. Mr Humphries said, "in hindsight", that: [A] run of poor seasons also contributed to my thought process at the time, in that I was concerned that the country would be overrun by lippia and that it would in effect become worthless. 43Mr Humphries said that, in clearing the country, the primary role of the cleared areas would be to fatten and breed cattle once the improved pastures had been established. 44In these circumstances, Mr Humphries' reasons for committing the offence were not solely to control the lippia weed but were also to bring back the agricultural productivity and the profits from these areas of the property that he used to enjoy prior to the reduction of water flows down the Gingham Channel and flooding of the area. The carrying out of an offence to make a profit or to save incurring an expense increases the objective seriousness of the offence: see Rae at [48]. Foreseeability and risk of harm 45Having regard to the nature and extent of the clearing, the native vegetation cleared and its location, 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; Rae at [50]. 46In this case, it is reasonable to infer that Mr Humphries did in fact foresee the risk that clearing of native vegetation on the property was likely to cause harm to the environment. Mr Humphries has farmed the country for decades. He has observed the adverse impacts on the native vegetation of reduced water flows along the Gingham Channel as well as the beneficial impacts when improved water flows occur. He had discussions with the CMA about clearing native vegetation on the property in 2007 and entered into the management agreement in 2009. He understood from these actions the adverse impacts of clearing of native vegetation, and conversely, the benefits of improved management of native vegetation, including revegetation. Practical measures to prevent harm 47Mr Humphries could and should have refrained from clearing the native vegetation on the property unless and until a development consent or a property vegetation plan had been obtained authorising the clearing. That was the law, as Mr Humphries knew. Control over causes 48Mr Humphries carried out and directed his son to carry out the clearing of native vegetation on the property and therefore had control over the causes of harm to the environment. Conclusion on objective circumstances 49Having regard to all of these objective circumstances, the offence should be considered to be of medium objective gravity.

Subjective circumstances of the offender 50Within 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 criminality 51Mr Humphries does not have any prior convictions for any environmental offences (s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 ('the Sentencing Act'). Prior good character 52There is evidence that Mr Humphries has otherwise been of good character (s 21A(3)(f) of the Sentencing Act). Nine character references were tendered from persons in the Moree district who have known Mr Humphries professionally and personally for many years. They speak consistently of Mr Humphries' honesty and integrity, kindness and generosity, and contributions to the community, particularly sporting clubs and teams in the district. They also speak of his love of wildlife and birds. He is a respected member of the community. This prior good character should be taken into account. Plea of guilty 53Mr Humphries has pleaded guilty to the offence, a fact that the Court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the Sentencing Act. However, in determining the extent of any discount that should be given for a plea of guilty, the Court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: see s 22(1)(b) of the Sentencing Act. 54In this case, Mr Humphries entered his plea of guilty on 2 August 2013, at the fourth directions hearings of these proceedings before the Court. However, Mr Humphries submitted that this delay was explicable and should not result in a reduction in the utilitarian value of the plea of guilty. 55The first return of the summons was on 17 May 2013. On this occasion the prosecutor sought, and the Court directed, time to provide its further evidence and the matter was adjourned to a second directions hearing on 14 June 2013. On 14 June 2013, the prosecutor sought, and the Court directed, further time to complete its evidence by 21 June 2013. The matter was adjourned to a third directions hearing on 28 June 2013. On 28 June 2013, Mr Humphries made a request for particulars concerning the area that the prosecutor alleged had been cleared by Mr Humphries contrary to s 12 of the Act. The summons had not particularised the area cleared. The Court adjourned the proceedings for a fourth directions hearing on 2 August 2013 and directed the prosecutor to provide the particulars requested. On 11 July 2013, the prosecutor wrote to the defendant's solicitors giving particulars of the area alleged to have been cleared. 56On the fourth directions hearing on 2 August 2013, the defendant entered his plea of guilty. Mr Humphries therefore submitted that he had entered his plea of guilty at the earliest practicable time. 57I accept that there were reasons for Mr Humphries delaying in entering his plea of guilty until 2 August 2013. I consider that this delay did not diminish the utilitarian value of the plea of guilty and that therefore the discount afforded for the utilitarian plea of guilty should remain at the maximum of 25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]. Contrition and remorse 58Mr Humphries gave evidence at the sentence hearing by affidavit and he and his son attended the sentence hearing in court. Mr Humphries expressed his regret for the clearing that was undertaken. He now understands that he should not have cleared without obtaining approval. He realises that he removed native vegetation that he should not have touched. He apologises for the harm caused. He has offered to undertake conservation measures in partial reparation, including entering into a conservation agreement over a significant area of the property. His contrition and remorse is also evidenced by his plea of guilty, his co-operation with the investigating authority, his full and frank admissions in the interview with the OEH, and his negotiation of a statement of agreed facts. 59I find that Mr Humphries is remorseful for his actions, has accepted responsibility for his actions, has acknowledged the environmental harm caused by his actions, and will carry out remedial work to make partial reparation for such harm: see s 21A(3)(i) of the Sentencing Act. These factors make it less likely that Mr Humphries will reoffend in the future: s 21A(3)(g) of the Sentencing Act. Assistance to authorities 60Mr Humphries co-operated with OEH in the initial investigation in 2011 and by voluntarily participating in a recorded interview with OEH in 2013. He has also assisted in preparing and agreeing a statement of agreed facts. Payment of prosecutor's costs 61Mr Humphries has agreed to pay the prosecutor's costs of the proceedings, agreed in the sum of $34,000.

Consistency in sentencing 62A relevant consideration in sentencing is the ascertainment of a general pattern of sentencing for offences of the kind under consideration. The task of the sentencing court is to pursue the ideal of even-handedness in the manner of sentencing: broadly similar cases should be dealt with similarly and broadly different cases should be dealt with differently: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [49]; Elias v R; Issa v R [2013] HCA 31; (2013) 298 ALR 637 at [29]. 63However, as I noted in Rae at [70]-[76], care needs to be taken in the task of achieving consistency. There is always 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. There is also a risk that earlier sentences may not be appropriate and therefore ought not to fix the figures or range in subsequent cases: see Rae at [75]. 64I have considered again the sentencing decisions for offences involving clearing of a native vegetation under former and current legislation up to August 2009 that I reviewed in Rae [77] - [91]; up to February 2011 that I reviewed in Director General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [74]-[76]; and up to April 2012 that I reviewed in Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442. I have also considered the sentencing decisions up to the end of 2012 that Pepper J reviewed in Chief Executive of the Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [178]-[188]. Since then, the only other sentencing decision for unlawful clearing of native vegetation is Chief Executive of Office of Environment and Heritage v Newbigging [2013] NSWLEC 144. I have considered the sentences imposed in those decisions as well as why those sentences were imposed, having regard to the particular facts and circumstances of the offences and offenders involved: see Hili at [48], [54], [55]. 65The Prosecutor and Mr Humphries both submitted that the sentence in Linklater was analogous to this case. In Linklater, the fine imposed was $82,500. However, Mr Humphries submitted that the area cleared in Linklater was about twice as large as the total area cleared in this case and that Mr Linklater's culpability was greater than Mr Humphries' culpability. Mr Humphries submitted that the sentence in Linklater should set the upper limit. 66Whilst the area cleared in Linklater was greater, the environmental significance of the native vegetation cleared in this case was greater. The areas cleared were to be remediated and revegetated by Mr Linklater but in this case the cleared areas will remain cleared and the environmental harm unabated, although other areas will be conserved by Mr Humphries. I have also found that Mr Humphries intentionally cleared the vegetation knowing that he needed authorisation by a development consent or property vegetation plan, while Mr Linklater cleared recklessly. 67Mr Humphries also submitted that the sentence in Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 sets a lower limit. The fine in that case was $40,000. The area cleared in Kennedy and the environmental harm caused were less than in this case and there were different subjective circumstances.

Synthesising the objective and subjective circumstances of the offence and the offender 68I take into account the objective circumstances of the offence, as mitigated by the subjective circumstances of Mr Humphries. I also take account of the existing pattern of sentencing, making allowances for the differences in the particular circumstances, both objective and subjective, between those cases and the present case. 69I take account of the need to impose a sentence that achieves the relevant purposes of sentencing in s 3A of the Sentencing Act of denouncing the conduct of Mr Humphries, ensuring that he is adequately punished for the offence, making him accountable for his actions, recognising the harm done to the environment by commission of the offence, and preventing crime by deterring other persons from committing similar offences of clearing of native vegetation illegally. 70Synthesising these factors, I consider that an appropriate penalty is a fine of $90,000. This figure should be discounted by 25% for the utilitarian value of the plea of guilty, which results in a fine of $67,500. 71In addition, Mr Humphries should be ordered under s 257B of the Criminal Procedure Act 1986 to pay the prosecutor's costs of the proceedings as agreed in the sum of $34,000. 72Having assessed the amount of a fine that would otherwise be appropriate for this offence, it is necessary to assess whether Mr Humphries has the financial means to pay a fine in the amount determined: s 6 of the Fines Act 1996. 73Mr Humphries has provided financial statements of the partnership of he and his wife that runs the agricultural business on "Jackson" and the nearby property "The Gully". These financial statements show that the partnership has made losses on its primary production account in 2009, 2012 and 2013, but small profits in 2010 and 2011. It made profits in each year from hiring equipment and from contract farming and harvesting. At 30 June 2013, the partnership owed the bank $2.275 million. The assets of the properties, "Jackson" and "The Gully", are not brought to account in the partnership accounts. Those properties are owned by Mr Humphries personally. The partnership otherwise had assets of $897,414 and a deficiency of assets of $1.458 million. 74Mr Humphries submitted that this financial information supports a conclusion that a substantial fine could impose hardship on Mr Humphries and his family, through either increasing their already large indebtedness in circumstances where the partnership has made losses in recent years, or forcing a sale of assets. Mr Humphries did not submit that a fine would force the sale of the family home. 75I do not consider that this financial information warrants an adjustment of the amount of the fine that I have determined would otherwise be appropriate. I consider that a fine in the amount of $67,500 would be within the financial means of Mr Humphries to pay. 76Accordingly, the Court orders: (1)The defendant is convicted of the offence as charged. (2)The defendant is fined the sum of $67,500. (3)The defendant is to pay the prosecutor's costs of the proceedings in the agreed sum of $34,000.

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: 10 January 2014