Chief Executive, of the Office of Environment and Heritage v Newbigging

Land and Environment Court (NSW)|2013-08-05|Before: Sheahan J, Mr J

Introduction 1The defendant Murray Newbigging has pleaded guilty to a charge that, on a property known as "Spring Tank", near Peak Hill in the Parkes local government area, he committed an offence against s 12 of the Native Vegetation Act 2003, in that he cleared native vegetation otherwise than in accordance with either a development consent granted in accordance with that Act, or a property vegetation plan. 2He is charged with using machinery, including his own bulldozer, to clear vegetation which included Eucalyptus melliodora (Yellow Box), and/or Eucalyptus microcarpa (Inland Grey Box). The charge specifies that the offence came to the attention of an authorised officer on 3 February 2011, and the charge period is agreed to be from about 26 January 2009 to 15 February 2011, both inclusive. 3The unchallenged evidence of the prosecutor indicates a lack of cooperation from the defendant as to the service of the summons issued on 18 January 2013, but it was eventually served on him on 18 March 2013 (see affidavit of John Rae, and pars 40-41 of the Agreed Statement of Facts ('ASF') - Exhibit P1). As List Judge on 5 April 2013, i.e. after service had occurred, I adjourned the matter for directions on 3 May, pending the defendant's receipt of legal advice from solicitors in Dubbo. 4The offence is essentially one of "strict liability", and, on 3 May 2013, a plea of guilty was entered on the defendant's behalf, and a date was set (5 August 2013) for a sentencing hearing. The ASF was filed on 12 July 2013, but additional affidavit evidence was read at the hearing, without objection or any requirement for cross-examination. 5The maximum penalty for the offence is a fine of $1.1 million.

The defendant and his family farming operation 6The defendant was born on 14 March 1957, and left school, after completing fourth form in 1973, to commence work full-time on the family farm at Peak Hill. He worked there until it was sold in 1977, and he then farmed 850ha of leased and share-farmed land until he purchased the property "Riverlea" (667ha) in 1979. Since 1980, he and his wife Julie have operated a farming business in partnership, with their sons David and Nigel as employees. 7In 1990 the defendant acquired some "River paddocks" (184ha), in 1997 "Rosebank" (666.9ha), in 2002 "Wilga Downs" (791ha), and then, in March 2010, "Spring Tank" (either 578 or 596ha - see annexure 'A' to his affidavit, c.f. ASF 4). "Spring Tank" was bought by the defendant for his two sons, but it is managed by the defendant in conjunction with the other family properties. 8Having ceased grazing sheep in 2006-08, the partnership is engaged in dry land cereal cropping, growing wheat, canola, barley and chick peas, in a four-year rotation. Returns have recently been affected by adverse seasons, and the partnership has incurred losses. The defendant does not "plough in [his] stubble" - it is "left each year to protect the new planting", and it enhances wildlife protection by providing shelter for quail, which grazing land does not. 9The defendant himself is active in community affairs, including the Rural Fire Service and the local Show Society. Since 1990 he has been involved in Landcare groups etc, and, in July 2000, was involved in a river care project on the Bogan River. 10His counsel, Mr Joseph Dalzell, tendered eight recent "references" (Exhibit N1). Most authors acknowledge the proceedings, but speak of the Newbiggings' reputation as progressive farmers, known for their conservation farming practices, and of the defendant's dedication, his "passionate" commitment to best farming practices and leaving his farms for his sons in a better state, and his dependability, reliability, attention to detail, respect for the environment. In his own affidavit, the defendant gives extensive details of his sensitive and innovative farming and water management practices, his environmental activities, and his generous support of worthy causes. 11The Newbiggings have practised "controlled traffic" or "tramline" farming ('CTF'), on all their properties since 2008. CTF involves managing soil compaction by confining it to narrow strips across the property to maximise the remaining undamaged soil area for cropping. CTF uses large machinery and satellite guidance, plus GPS auto steer to maximise cropping, and the defendant concedes that he removed the vegetation the subject of the charge in order to use CTF, and machinery with auto steer, because dust at night made it impossible to see obstructing trees (ASF 20-23). 12The prosecutor, without objection, put before the court a technical information manual prepared by the West Australian Department of Agriculture on "tramline" farming system (Exhibit P3). That manual deals with "direction of working", and notes (at p15, s 5.1): Traditionally, tramline farming is done with working up and back in straight lines. This is the most efficient method of working a paddock because:

driving to a straight line is easier than following a curved path;
double worked corners of round and round operations are eliminated;
precise inter-row or close to row operations work more easily in straight lines. However, every paddock on the farm may not be suitable for up and back farming because of complications with paddock shape and obstructions such as trees and rocky outcrops ... 13The manual also notes (at p43, s 9.1): Length of run For maximum efficiency of cropping operations generally, the longer the run the better, as the numbers of corners and turnings are reduced. In some cases it may be practical to join paddocks. (An example of the combination of three paddocks into one is shown in figure 9.1, and the prosecutor suggested that something similar has occurred on the subject land.)

The property is cleared 14"Spring Tank" is located between Parkes and Narromine, and is bounded on three sides by Strahorn State Forest, which has an area of 2,300ha (see ASF Annexure 'A'). 15The property was formerly owned, from 1984, by Noreen and Ronald Symons, who operated it as a mixed farming business - sheep and oats in rotation - cropping around trees, and using some paddocks only for grazing. Mr Symons swore two affidavits in the proceedings, one for each party. 16From 2003 to 2006 the three Newbigging men worked for the Symonses sowing crops. The partnership then leased the property from the Symonses, from some time in 2007 until March 2010, and continued to crop the same areas, putting in barley and wheat. Although Mr Symons regularly saw David and Nigel working the land, it was Murray with whom he did business. 17The trees in a large clump in the middle of "Spring Tank" were mature when Symons brought the property in 1984. He knew them to be Yellow Box and Kurrajong, with a few Pines. The property's "large scattered paddock trees" outside that clump were also Kurrajong and Yellow Box. Symons deposes that he removed only a few dead trees in the north-western area "to enable open cultivation of the land", but he does "remember [that] some time during the lease [eight or ten scattered trees] were cleared in the north-east" (par 15). He does not know by whom (ASF 11). 18On 15 February 2011, Symons observed smoke and flames coming from large trees pushed over "where the clump ... had been", in the centre of the property (par 20, and ASF 12). In his later affidavit, Symons said (in par 9) that "the material that was burnt included undergrowth and saplings". The defendant had used his "own bulldozer and machinery ... to uproot the trees and shrubs and then burn" them (ASF 15). 19The defendant has conceded (ASF 13-18) that the "native vegetation cleared included the trees, understorey plants and ground cover", that it included the two species specified in the summons, and that he cleared "a dense area of vegetation in the centre of the Property and all remaining isolated paddock trees". Some of the cleared area had carried vegetation listed as an "Endangered Ecological Community", being Inland Grey Box woodland, and also included foraging habitat for the Barking Owl. 20Relevant officers of the prosecutor also inspected the property on 15 February 2011. They noted that within the property boundaries defined by the Strahorn State Forest, there was a wide panorama of bare soil and minimal stubble, which included, it is now agreed, an area of clearing comprising 44.4ha, not counting any area allowed in respect of the "paddock trees", which were also cleared. They recorded the locations of burning stacks of vegetation, took samples, and took photographs (Exhibit P2). 21The prosecutor's aerial and satellite photography/imagery shows no observable change in vegetation cover, between June 1983 and February 2005, but extensive tree removal occurred in the charge period, including the removal of trees continually present on the property prior to 1 January 1990, not adjacent to the perimeter of the property (ASF 19). 22The photographs before the court (Exhibit P2) are very graphic in their presentation of the aftermath of the clearing operation. Piles of smouldering vegetation are depicted, as are the defendant's D7H Caterpillar bulldozer with a 3.75m width blade, a 3-tyned rear ripper, and a Stick-rake attachment for the bulldozer, 7.65m wide. 23Breast height diameters ('DBH') of cleared timber shown in the photographs are estimated to range from 30 to 70cm. A particularly large tree, estimated to be more than 200 years old, was included in one stack of smouldering vegetation (photograph 069). The burnt Yellow Box shown in photograph 070 measured 66cm DBH, and had an estimated length of 18m. The stack of vegetation in photograph 081 was 43m in length, and included at least 7 trees, the estimated DBH of three of which were 60, 55 and 35cm. Samples of both charged species were identified in that stack. 24On 1 December 2011, the same officers flew over the property and took additional photographs (which are not before the court, but see pars 64-80 of Wendy Woolfrey's affidavit).

The Investigation 25Woolfrey, a compliance officer with the prosecutor, deposes at length to her investigation, which commenced on Friday 11 February 2011, and included an extensive site inspection on 15 February 2011, with senior officer Jason Brouff, and the later aerial inspection (1 December 2011). 26On or about 24 February 2011, the defendant participated in a voluntary interview, under caution, with OEH officers including Woolfrey. Apparently exhibited to her affidavit was a bundle of material which is not before the court, including the record of that interview ('ROI'). In that ROI the defendant agrees (ASF 29) that he made the following "admissions" (sic?): (i) to carrying out the clearing on the Property using his own bulldozer and that he cleared scattered timer, big trees and isolated paddock trees. (ii) he did all the clearing on the Property using his own bulldozer; (iii) he was the manager of the Property and was solely responsible for all management decisions relating to the Property; (iv) he made no inquiries with the relevant Catchment Management Authority (CMA) or anyone else prior to clearing the Cleared Area; and (v) he did not know anything about the NV Act. 27He also admitted (ASF 30-33) having had extensive discussions in early 2000 regarding clearing operations, for which he was granted consent under the former (1997) Act in February 2002. The consent allowed clearing of native vegetation for dry land CTF on "Riverlea" and "Rosebank", and was subject to conditions, dealing with separation from boundary fences, revegetation, etc. He complained about the delay involved in obtaining that approval (from application in April 2001 to consent in February 2002), but he claimed he had "made a model farm out of [his] place". 28In September 2008, the relevant department forwarded to contractors across the State, including the defendant, information about the later legislation, but the defendant denied (in his ROI) having read any of that mail (see ASF 34). 29The ASF included the following in respect of "environment" harm (ASF 35-38 - footnotes omitted): 35. The clearing has changed the local ecology and reduced habitat for a wide range of native species. It has removed mature eucalypts of hollow-bearing age, woody debris, associated litter and native grass understorey. 36. The vegetation connectivity has been significantly reduced. However, the effects of clearing on soil erosion, salinity and water quality on the Property are minor. 37. The native vegetation cleared from the Property was in medium condition. It was typical of Inland Riverina Forests and contained trees of varying age classes, including mature aged trees and recruitment trees, which contained habitat features, such as hollows, important for a range of native fauna species. 38. The Prosecutor also relies on the reports of Paul Spiers, Ian Cole and Craig Wood as to environmental harm caused by the clearing of the Cleared Area on the Property. 30On 15 December 2011, the defendant agreed to a remedial direction in respect of an area of 46ha (ASF 24). That remediation area is slightly more than the now agreed charge area, but Annexure A clearly shows it to be on the south-western boundary of the property, well away from the charge area. The defendant deposes (par 33), that since December 2012 (sic?), he has done no farming on the remediation area, leaving it to regenerate. He has marked it off, and has sprayed it twice for noxious weeds. 31Woolfrey deposes to a number of unsatisfactory telephone conversations with the defendant during the negotiation of that remedial direction. She also deposes to the aerial inspection of the land on 1 December 2011, and says that the defendant said to her, on 13 December 2011, that he "did it all off my own bat". He said he had obtained advice from a Sydney solicitor, a Mr McGirr.

The Prosecutor's Expert Evidence 32The prosecutor relies on the relevant experience and expertise of three of its technical officers - Paul Spiers, Ian Cole, and Craig Wood. 33Mr Dalzell noted (Tp22, LL38-41 and p23, LL41-3) that the defendant's family could not afford to incur the expenditure required to dispute the prosecutor's expert evidence, in particular that based on the computer programme known as the "Scattered Paddock Tree Calculator" (Tp11, LL35), which allowed 16.2ha for the trees removed outside the central "clump". 34As the experts' evidence was also not tested by cross-examination, I accept it, including the 16.2ha estimate/allowance, making the total area cleared 60.06ha, but I now record some salient points from that evidence. 35Spiers, a natural resource project officer employed by the prosecutor, set out in some detail his methodology, assumptions, etc, and came to the following conclusions (emphasis mine): Change in vegetation cover for intervals between images 28. There was no observable change in vegetation density between the earliest photography of 03/06/1983, and photography of 10/05/2004. 29. Small areas of trees in the north-east of the Land have been observed removed in the period between the SPOT5 image of 01/02/2005 and the SPOT5 image of 26/01/2009. This is identified in Table 4. 30. Extensive tree removal has been observed as occurring between the SPOT5 image of 26/01/2009 and the Aerial photo mosaic date of 01/12/2011. This involved removing all the trees not adjacent to the perimeter of the Land and leaving the ground devoid of vegetation. A summary of categories (densities of vegetation) removed is shown in Table 5. 31. The trees removed in both instances appear to have been continually present on the Land prior to 1 Jan 1990, and as such could not be considered as regrowth within the meaning of the Native Vegetation Act 2003. Number of trees removed. 32. I have attempted to quantify the number of trees removed from the Land. This was done in two stages: a. Stage 1 was by identifying the individual trees using the 1983 stereoscopic imagery on the Planar® workstation. I created a shapefile containing points and the points corresponded to individual trees where I could identify them. This counting process was done for trees in areas of density S, V and I as per Table 4. This amounted to 218 individual trees. b. Stage 2 was identifying the number of trees in the areas labelled as density M (50% to 80% crown cover). This was done by first creating a one (1) hectare template which was placed over two representative areas. I then proceeded to count the individual trees in those areas using the 1992 stereoscopic imagery on the Planar® workstation and confirmed with the 1983 imagery. I have estimated there are approximately 18 stems per hectare within one area and 26 stems per hectare within the other area, all designated M density. Therefore average tree density for one hectare I assessed as being 22 stems per hectare. This is only an estimation as I may have counted two trees as one due to the lack of definition that comes when the trees are close together. I estimate there may be an error factor in this method of + or - 10%. I have then extrapolated this figure out to cover the complete areas of M density that have been cleared. I estimate there have been approximately 616 trees, (22 stems per hectare x 28 hectares M density vegetation) cleared out of these areas. This would comprise larger and medium trees. There may have been smaller trees, that may not have been counted, due again to the lack of definition when the trees are close together. c. Estimated total number of trees to have been removed between the image dates of 26 Jan 2009 and 1 Dec 2011 is approximately 834 individual stems. 36Cole, a senior natural resources officer employed by the prosecutor, prepared a report on environmental harm, and his conclusions include the following (some citations excluded, but some emphasis added): 16 ... about 44.4ha of a mature Eucalyptus melliodora (Yellow box) woodland containing E. populnea and E. microcarpa trees (the Endangered Box-Gum woodland) has been cleared from the centre of the Property. Elsewhere on the Property about 16.2ha of various other patches of native vegetation or individual paddock trees from the same Endangered Box-Gum woodland have also been cleared. Native groundcover that forms an essential part of this woodland is at risk if the area is cultivated. Such cultivation would constitute further clearing under the NVA (2003). 17. The tree species that have been cleared and the predominately native grass groundcover on the Property are typical of the over-cleared grassy woodland that is listed for protection as Endangered Box-Gum woodland under the NSW Threatened Species Conservation Act 1995. 18. The eucalypt species identified ... are slow growing and only achieve diameters and heights shown in photographs 1, 50, 69, 81 [in Exhibit P2] after many years. The cleared tree in photograph 69 in particular appears to have reached full maturity and is likely to be at least 200 years old. Growth rates of similar dominant Eucalyptus species in Western Australia appear to be around 0.5 cm diameter/year ... If this figure is used, a tree that was 21 years old (i.e. present in 1990) would be around 10 cm diameter and a tree of 30cm diameter would be around 60 years old. Hence there is a high degree of certainty that the important overstorey trees allegedly cleared on this Property would have existed on the site prior to 1990. 19. A number of studies have highlighted the ecological importance of scattered trees in woodland environments. These studies call for a halt to processes that lead to their decline ... 20. In disturbed landscapes scattered paddock trees are biological legacies that provide continuity through time and can be considered keystone structures. That is, that their contribution to ecosystem functioning is disproportionately large given the small area they occupied and low biomass of any given tree, and the low density of scattered trees collectively; instead of diminishing, their environmental importance increases as their numbers decline ... 21. Clearing has removed large numbers of native vegetation, changing the local ecology and reducing habitat for a wide range of native species. Woodland trees provide considerable environmental benefit and play an important part in the local ecology. Woodland trees that exist even as scattered paddock trees have generally been shown to: a) have a positive effect on soil properties, increasing soil carbon levels and decreasing soil acidity and compaction ..., b) generally increase soil fertility in their vicinity by accessing nutrients leached beyond root the pasture root zones ..., c) increase litter, woody debris, organic carbon, nitrogen and phosphorus tend to be higher around trees than in more open paddock areas, d) increase abundance and species richness of native invertebrates ..., e) decrease deep drainage by pumping considerable amounts of sub-surface water reducing salinity risks ..., f) add value to habitat provided by more intact remnants, g) increase habitat for species that feed on pollen, nectar, seed and invertebrates ..., h) enable species to move across landscapes and contribute to gene flow and the survival of meta-populations in variegated landscapes ... Loss of paddock trees has been measured at 0.54-2.5% per annum in different agricultural landscapes across Australia ... At this rate it is estimated that paddock trees will be lost from the landscape over the next 40 - 180 years ... 22. Clearing has removed large tree hollows reducing native species habitat. Large nature trees are essential for the presence of nesting hollows for native birds and bats ... Yellow Box (Eucalyptus melliodora) formed small hollows (15 cm entrance diameter) in trees over 84 cm DBH. Many of the cleared trees on the Property were in the size range where a significant number of hollows would have been expected to occur. 23. Clearing has removed woody debris and litter reducing native species habitat. Presence of course woody debris (logs over 10 cm diameter) and other associated tree litter is also essential to biodiversity and overall ecological function ... 37Wood, another natural resources project officer with the prosecutor, reported on scattered paddock trees, and relevantly concluded (again some emphasis added): 34. The Effective Clearing Area [ECA] was calculated (using the Scattered Paddock Tree Calculator) as 16.2 hectares ... This information is used to determine the effective clearing area for Paddock Trees assessment in the BioMetric tool ... I calculated the ECA by selecting a large Paddock Tree polygon and manually entered in 99 trees, 8 metres for the average canopy diameter, 65% for the average % foliage cover and 8% for the lower benchmark. This is a common practice used by expert assessors as it (sic) much quicker than digitising all Paddock Tree polygons and produces the same ECA result (provided the polygon is maintained in 'Low Condition' status). ... 42. It is therefore my opinion that the landholder would not have been entitled to the clearing of native vegetation on the property as the Property Vegetation Plan (PVP) would not have improved or maintained environmental outcomes.

The Defence Case 38Mr Dalzell asserted (and it was conceded) that the defendant was not motivated by "aggressive negligence or contempt" (Tp23, LL46-9, and Tp26, LL33-5), and he also submitted that harm must be assessed in terms of its relativity to the local area, including the surrounding "dense state forest" (Tp21, LL 43-4), and in terms of "regrowth" vegetation involved (c.f. Spiers par 31, quoted above in [35]). 39The defendant deposed (par 29) that the cleared vegetation included pine and African Box Thorns, and also saplings, regrowth and undergrowth. After the clearing operation, some 70ha of trees remain on "Spring Tank", apart from the remediation area (par 30). He has done no more clearing since 15 February 2011, and has resolved to undertake no further clearing (par 31). 40He deposed (par 32) that one of his reasons for the clearing was occupational health and safety ('OH&S'), particularly as workers are engaged at night. Since December 2012 (sic?), no farming work has been undertaken on the land identified in the remedial direction (par 33). It has been left to regenerate. He sprays it for noxious weeds. He deposed (in pars 34-8) to his detailed compliance with the direction. 41The defendant also relies upon the affidavit evidence of accountant Mark Job, who has done the Newbiggings' accounts since 1 July 2002. The defendant's only business interest is the partnership with his wife, which, at 30 June 2013, had debts of $3,173,222.39, and a bank balance of $4,769.02. In only three of the last ten years has there been a taxable income - $2,044 in 2004, $37,514 in 2009, and $411,185 in 2012 - and there are accumulated losses of $577,376 over 11 years, including a business loss for the financial year 2013 of $244,992. 42Job opines (par 8c) that the Newbiggings would have limited ability to borrow additional monies, and (par 7) that "any significant financial penalty imposed on Murray Newbigging would place a very serious financial burden on the business as a going concern. Any substantial penalty will threaten the viability of the business to such an extent that it would need to be significantly reduced or wound up". 43Mr Dalzell submitted (Tp22, LL13-14) that the area of cleared land made little impact on the returns generated from the property.

Discussion 44The leading judgment of this court on the imposition of sentences for offences against s 12 of the Native Vegetation legislation is a judgment of the Chief Judge, Preston J, in Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; 168 LGERA 121 ('Rae') where His Honour said, at pars [8]-[13] (many citations omitted): 8 The sentence of the court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his just deserts. The sentence must deter the offender from committing similar offences in the future. 9 Most importantly, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. The purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law: see [including many examples] Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 (17 July 2009) at [47]. 10 In [Lamattina], Mansfield J stated at [47]: "It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation. The amount of the pecuniary penalty needs to demonstrate that such conduct will not be tolerated by the court." 11 The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits, with the expectation of a concomitant increase in the capital value of the land ... 12 On land used or proposed to be used for purposes of agriculture, clearing of native vegetation might be intended to increase the grazing productivity (such as increasing pasture and stocking rate), change from a financially lower yielding to a financially higher yielding agricultural use (such as from grazing to cropping) or facilitate more practical and cost effective operations, including of machinery and equipment, also with the expectation of an increase in the capital value of the land. Sentencing courts have repeatedly noted that offenders have cleared native vegetation for commercial gain ... 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. 45This court has on many occasions adopted and applied those principles in cases such as the present, and I do so again, as I did, for example, in Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 ('Powell'), and in Director-General of the Department of Environment, Climate Change & Water v Graymarshall Pty Ltd [2011] NSWLEC 125, Director-General of the Department of Environment, Climate Change & Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149. See also Pain J in Director General, Department of the Environment, Climate Change & Water v Ian Colley Earth Moving Pty Ltd [2010] NSWLEC 102, and Pepper J in both Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; 192 LGERA 314 ('Rummery') and Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119. 46Of those cases, Powell is the most comparable for the consideration of penalty in this matter, especially in terms of area cleared. 47Pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999 ('CSP Act'), the court imposes a sentence for a range of stated purposes, which include: (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, ... (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.

Objective seriousness 48The prosecutor submits that the primary factor for which the court must have regard is the objective gravity or seriousness of the offence, in light of (i) the nature of the offence, (ii) the prescribed maximum penalty, (iii) the extent of harm caused to the environment, (iv) the state of mind of the offender and his reasons for committing the offence, (v) the foreseeability of the risk of harm to the environment, (vi) the practical measures available to the defendant to avoid harm to the environment, and (vii) the defendant's control over the causes of harm. 49The objects of the Native Vegetation Act (in s 3) are as follows: (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. 50The prosecutor submits that the present defendant's conduct thwarted or undermined those objects, in the manner explained by Preston J in Rae, at [17]-[18] (some citations omitted): 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 ... 51The defendant was not without knowledge of the regulation of native vegetation clearing (ASF 29-34), and he chose not to apply for and obtain relevant consents and approvals, nor to read or seek available information, so offending the legislative objects of the Act. 52The vegetation involved in this clearing operation had "significant conservation status" (Tp10, L4), it contributed to biodiversity and "ecosystem functioning" (Tp13, LL 36-8), and it was in "moderate to good condition" (Tp11, L17). The actions of the defendant are inconsistent, also in that sense, with the legislative objects. 53The prosecutor submits that the defendant's approach was "reckless", in the sense identified in Director General, Department of Environment Climate Change and Water v Linklater [2011] NSWLEC 30, at [50], and I accept that submission. 54A state of mind of recklessness increases the culpability and objective gravity of an offence. 55The Parliament has chosen to impose a high maximum penalty for an offence against s 12 (a fine of $1.1 million), to reflect the seriousness with which the Parliament and the community view the offence of clearing native vegetation without an approval. The rural community remains divided on the issue, and, despite his asserted involvement in relevant environmental causes, the defendant is not enthusiastic about "the way this Act's going" (ASF 33). 56In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299 ('Waste'), it was stated at [145]-[147] as follows: 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 57The area of land cleared is a major, but not the only, indicator of environmental harm. As I have already noted, the court is satisfied to find, on the evidence, that 60.6 (44.4 + 16.2)ha of land was cleared by the defendant (Cole par 16, and Wood par 34). 58It is also relevant to consider the number of "trees" removed, and I accept the calculation by Spiers, that that number is approximately 834 individual stems (Spiers par 32c). Such evidence needs to be evaluated in its proper context. As noted by Preston J, in Rae at [37]-[38]: 37 The significance of the number of trees removed needs to be evaluated in the context of the vegetation type in which the trees occur. The vegetation types of woodland and open woodland, by definition, have lower average densities (numbers) of trees per hectare than forest vegetation types, and hence will have greater space between trees. Hence, removal of a particular number of trees over a given area will have materially different effects if the vegetation type is a woodland or open woodland than a forest; it may result in the total or almost total clearance of the land in a woodland or open woodland but only partial clearance in a forest. 38 The significance of the number of trees needs also to be evaluated by reference to the trees involved - their species, nature, age, ecological attributes, biological interactions and contribution to ecosystem functioning amongst other features - and the consequences caused by their removal. Mr Shelly's evidence is that the areas cleared were woodlands with relatively intact woody vegetation. The clearing resulted in the almost total removal of woody vegetation (apart from isolated trees) from ten of the twelve areas that were previously of woodland or open woodland tree density. 155 hectares were cleared to an extent that only 5% of the trees that were formerly there remained. The clearing increased fragmentation, reduced vegetative connectivity and removed inadequately conserved vegetation communities, native vegetation important for maintenance of biodiversity and habitat of threatened species. Taking account of all of these factors, the effect of the clearance was similar to that of broadscale clearing, an outcome which the Act was intended to prevent ... 59Also relevant are the various species involved, and their environmental significance. Mature Yellow Box woodland, including native trees, was totally cleared in this matter. Some of the cleared vegetation was part of an endangered ecological community (ASF 17). One of the trees was identified as being at least 200 years old. Barking Owl foraging habitat has also been lost, affecting local ecology and a wide range of species. Vegetation connectivity has been significantly reduced (ASF 18, 35 and 36). 60Both direct and indirect harm to the environment, and to the broader ecological system, have been established, indicating, in the prosecutor's submission, that the court can conclude that the harm was "substantial", within the meaning of s 21A(2)(g) of the CSP Act, an aggravating factor to be taken into account, pursuant to s 21A(1). 61I accept that submission, and reject the defence submission that this offence is at the "lower end of the scale" (Tp24, L29). 62As Pepper J said in Rummery at [92], the fact that there was prior disturbance to existing vegetation does not exculpate the offender. As Cole observes (pars 19-20), clearing may assume even greater significance in a disturbed environment as one is potentially removing "biological legacies that provide continuity through time and can be considered keystone structures". 63In any event, as the prosecutor notes (in subs par 38), it is an agreed fact that the vegetation cleared from the property was "in medium condition", and was "typical of Inland Riverina Forests". Although of mixed quality and age (Tp25, LL43-8), rather than "pristine forest" (Tp15, L4), or "regrowth" (Spiers, par 31), this was not "a degraded area, of little or no ecological importance". 64Despite the fact that the outcome of the clearing activity was "not as bad as it could have been" (Mr Dalzell at Tp24, L36), and that the concept of "environmental harm" may not be acknowledged uniformly across society, substantial damage was done in this case (Mr Lenehan at Tp26, LL38-45). 65It is common ground, however, that there were only "minor" and short-term effects, in terms of erosion, salinity and water quality (Tp24, LL30-3).

"Subjective" Factors 66Although the defendant has contended that one of the reasons for his unlawful conduct was to improve OH&S, the prosecutor submits that the primary motivation was obtaining a commercial benefit. The necessity to remove native vegetation arose from his choice of his preferred method of farming, adopted in order to "maximise" cropping (ASF 20/22) and returns. Apart from protecting human safety, he would also wish to avoid the losses involved in machinery damage. The defendant's deliberate choice to clear the land to avoid OH&S problems and equipment damage adds a "commercial flavour" to the offence (Tp17, L30). Mr Dalzell conceded the commercial element involved also in seeking to practise CTF (Tp23, LL46-9). 67The prosecutor rightly submits that a reasonable person in the defendant's position would have foreseen the risk of harm caused, or likely to be caused, to the environment. A person involved in Landcare etc groups would normally be expected to be particularly alert to such issues (subs 49), but the defendant adhered to his position that his actions were not wrong, whereas the regime and its underlying policy were/are wrong (Tp19, LL5-19). 68In terms of practical measures available to the defendant to reduce harm, the most obvious was the choice to refrain from clearing, unless and until consent had been obtained. 69In terms of control, the defendant was the manager of the property on behalf of his family, and he used a bulldozer and machinery which he owned. 70There was no voluntary reporting of the offence, or of the harm done, and he proceeded to burn the best evidence of the clearing. It was that act of concealment which led to the discovery of the offence.

"Instinctive Syntheses" 71I agree with the prosecutor that the admitted and proven circumstances of the offence as I have recounted them render it of moderate objective gravity. 72The court must then arrive at a penalty, by an "instinctive synthesis" (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51]) of the objective circumstances of the offence, discussed above, with the subjective circumstances of the defendant. In that process, the court must weigh the aggravating and mitigating features of the offence (CSP Act s 21A), and, in this respect, I noted, during the hearing (at Tp26, LL48-50), that the absence of mitigating factors is not, of itself, an aggravating factor. 73Favourable to the defendant are his clear environmental record (ASF 39), his community stature and asserted environmental commitment (verified by Exhibit N1), and his plea of guilty, entered effectively at quite an early stage (Tp19, L30-p20, L10. See also Powell, at [159]). The defendant is also entitled to some credit for accepting a remedial direction, although his approach to it was rather "begrudging" (subs par 57 - on Woolfrey's evidence), and he has made no commitment to rectify, in any way, the damage actually done by his clearing activity. Accordingly, his attitude does not satisfy the test articulated by Preston J in cases such as Waste. 74His co-operation with the prosecutor was equivocal (Tp20, LL11-29), and, therefore, "neutral" - he resisted service, but later agreed to a ROI, and negotiated the ASF. 75In addition, there is little demonstration of contrition or remorse, beyond (1) his attendance at court with his sons, (2) his decision not to seek a dismissal of the charge under s 10 of the CSP Act (an application I would have refused - see Powell at [153]-[156]), and (3) Mr Dalzell's submission that the defendant "deeply regrets" his situation (Tp25, L28): see Waste at [203]-[214]. 76In determining the appropriate fine, the objective of deterrence has to be borne in mind. In terms of general deterrence, the cost of taking precautions to avoid committing an offence must be made attractive to potential offenders, so that commercial considerations do not prevail over observance of the law. 77I would expect that these proceedings and their outcome will be of significant specific deterrence to the defendant, but It is appropriate, in the absence of any evidence of adequate remorse, that the court impose on the defendant a penalty which will induce genuine regret, and make it highly unlikely that this offender will offend again (Tp21, LL3-12). 78Penalty orders in cases of this type usually include an order that the defendant pay the prosecutor's costs of investigating the offence and conducting the proceedings, and that impost is taken into account when determining the fine to be imposed. 79Negotiations on the appropriate quantum of costs were incomplete at the time of hearing. Mr Dalzell told the court his client accepted that he would be ordered to pay the prosecutor's costs, but was concerned at, for example, the use of an aircraft in the investigation. The imagery obtained on the relevant flight was vital, in the absence of admission or agreement, to the determination of both the area and the stem numbers cleared, and I consider that the use of aerial means was, therefore, reasonable. 80Since the hearing, the parties have agreed on costs, and the defendant has consented to an order for costs in the sum of $45,000. The prosecutor makes no claim at all for the aerial inspection, but the agreed amount covers all investigation costs. 81I turn, then, to the question of financial capacity to pay an appropriate level of fine, as well as those agreed costs. 82Pepper J said in Rummery, at [168]: On the basis of the material before me, I am unable to determine with any confidence what the actual impact of the imposition of more than a nominal fine will be on Mr Rummery, other than to accept that it will cause him a degree of financial distress. I am certainly unable to find that it would result in the forced sale of his primary residence, or even, if they are separate, of Yarragool. 83Likewise, in this matter, the information before the court is inadequate. 84Although the partnership's profitability might be down, the asset value of the defendant's substantial landholdings - apparently (see [6] and [7] above) about 2700-2800ha - must be taken into account (despite heavy debt) (Tp20, L31-p21, L1): See Loel v Warringah Council [2012] NSWLEC 11, at [79]-[83]. The evidence before the court indicates that he is, in his region, a comparatively large landowner (Tp26, LL13-21), and he may have to resort to the liquidation of some assets to pay the fine (Tp23, LL4-7).

Conclusion 85While I acknowledge Mr Dalzell's submissions on the defendant's subjective circumstances, all that is really put by the defendant in mitigation of penalty is that the facts "could have been worse", and that he displayed neither "aggressive negligence", nor "contempt" for the law. 86Consistency in sentencing suggests the imposition of a fine similar to that I imposed in Powell. The circumstances Pepper J faced in Rummery are not comparable to the present case. The defendant here is also in a different financial position, overall, from the defendant in Powell (Tp23, LL19-32). 87In consideration of that disparity, I have settled on a discount of 30%, rather than 25%, for the plea, and all mitigating factors. 88A fine of $160,000, as in Powell, but here discounted by 30%, is appropriate.

Orders 89The Orders of the Court will be: (1)The defendant is convicted of the offence charged in the summons. (2)The defendant is ordered to pay a fine of $112,000.00. (3)The defendant is ordered to pay $45,000.00 in respect of the costs and disbursements of the prosecutor, including investigation costs. (4)The exhibits, other than Exhibit P1, are returned.

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: 09 September 2013

(1993) 113 LGERA 357

(2006) 145 LGERA 234

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (15)

Cited By (6)