Environmental harm
32There is evidence of environmental harm caused by the clearing. The extent of that harm is a matter in dispute.
33On the question of the extent of environmental harm, evidence was adduced by the prosecutor from Dr Pamela Hazelton, Mr P A Redpath, Mr A J Garside, Associate Professor R L Goldingay and Mr S D Lewer. The prosecutor also sought to rely upon the evidence of Mr B A Summerell, whose evidence I refused to admit on the ground that he was not qualified to give evidence which ought to have been given by an arborist. The defendants relied upon the evidence of Dr D S Robertson.
34Mr Lewer, a regional biodiversity conservation officer of the Office of Environment and Heritage, identified the kind of plant specimens in the area that was cleared and concluded that the vegetation was ""Swamp Mahogany - Paperbark (+/- Swamp Oak) Forest" as the dominant species. He also is of the opinion that this vegetation floristically matched the determination for swamp sclerophyll forest endangered ecological community as listed in Sch 1, Pt 3 of the Threatened Species Conservation Act.
35The prosecutor sought to rely upon the fact that the subject land is swamp sclerophyll forest endangered ecological community as an aggravating factor. However, the defendants have not been also charged with an offence of clearing swamp sclerophyll forest endangered ecological community. Mr C R Ireland, appearing for the defendants, submits that if one were to regard this as an aggravating factor it would infringe the so-called De Simoni principle: The Queen v De Simoni (1981) 147 CLR 383. That case is authority for the principle that, although the sentence (or penalty) imposed on an offender should take account of all the circumstances of the offence, it is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. As Gibbs CJ said in that case (at 389):
... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
36Gibbs CJ went on to note the common law principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence, and noted (at 390) the judgment of Darling J in R v Bright [1916] 2 KB 441, who said (at 444 - 445) that the judgment "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation."
37The prosecutor, however, submits that there is a distinction between not increasing a penalty based on aggravation and not granting leniency on account of the fact that the event as charged amounts to the commission of another offence, relying upon the decision of the Queensland Court of Appeal in R v Dales [1995] QCA 329; (1995) 80 A Crim R 50. In that case the Court summarised the principles which emerge from the High Court in De Simoni, including, relevantly, that an act, omission or circumstance which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration, but the court may not take into account the circumstance that a more serious offence was not charged and increase the maximum penalty to which a person is exposed. The prosecutor submits that an offence of clearing swamp sclerophyll forest endangered ecological community is an offence against s 118D(1) of the National Parks and Wildlife Act and thus attracts the same penalty as the offence of which the defendants have been presently charged, so that this consideration is not excluded by the De Simoni principle.
38The prosecutor also relies upon the fact that the relevant part of the reasoning of the Queensland Court of Appeal in R v Dales was adopted by the New South Wales Court of Criminal Appeal in R v JCW [2000] NSWCCA 209. It was, however, a qualified adoption. Spigelman CJ (Simpson J concurring) at [38] expressly rejected that part of the reasoning in R v Dales in which the Queensland Court of Appeal said, at [25], that an act, omission or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or to deny leniency. In the course of his reasons Spigelman CJ referred, at [61], to the judgment of King CJ in The Queen v Austin (1985) 121 LSJS 181 at 183, in a passage quoted with approval by Olsson J in R v Zahra [1998] SASC 7010 at [18]. Relevantly, King CJ said:
If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself. If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree.
39In the present case the plea of guilty has been entered to the charges which are before the Court. In my opinion, the passing reference in the report of an expert witness to the fact that the vegetation within the cleared area is swamp sclerophyll forest endangered ecological community, together with the fact that the prosecutor has not chosen to charge the defendants with another offence against the Act, is not in the present circumstances a sufficiently aggravating factor which justifies an increased penalty. Moreover, it is an element of the offence that the defendants knew that the vegetation was a swamp sclerophyll forest endangered ecological community. There is no such admission in the present case, neither does the prosecutor point to any evidence which establishes beyond a reasonable doubt that the defendants possessed such knowledge. In those circumstances I reject the prosecutor's submission that this is an aggravating factor.
40In considering the extent of the harm caused or likely to be caused, the prosecutor insisted that the whole of an area of 1,610 square metres was clear felled. However, as the defendants contend, this is not the case. It is self evident from the aerial photographs that some vegetation in the form of trees remains standing within the area. This is confirmed by the evidence of Dr Robertson, who stated that perhaps 10 per cent of the trees in that area remains.
41Moreover, I have no hesitation in accepting Dr Robertson's evidence that there is no basis for concluding that any large old trees with hollows were removed. I accept his evidence that the vegetation cleared consisted mainly of broad-leaved paperbark together with some cabbage palm, swamp mahogany and swamp oak - all young trees and many of the trees were already dead as confirmed by the photographs which are in evidence. I thus accept the defendants' submission that the area cleared was only foraging habitat of the squirrel gliders. The area is already regenerating naturally and the damage can be further substantially repaired by implementing the remediation plan described in the orders which will now be made.