Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy

Land and Environment Court (NSW)|2019-08-01|Before: Robson J

Background

The background facts are largely uncontested and are summarised as follows.
Mr Murphy purchased Mookoo in 1977. Clement Gai Murphy, Mr Murphy's wife, has lived on Mookoo all her life. Mr and Mrs Murphy purchased Clifford in about 1990. At all relevant times, Mr Murphy was in lawful occupation and possession of both properties and had management and control thereof.

Sentencing principles

In sentencing Mr Murphy, the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'), particularly subpars (a), (b), (e), (f) and (g) are relevant. These provisions provide: 3A Purposes of sentencing 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, … (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.
Regard should also be had to the aggravating, mitigating and other factors of relevance as set out in s 21A of the Sentencing Act. These include: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, … (i) the remorse shown by the offender for the offence, but only 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), … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), …
In sentencing Mr Murphy, the Court should adopt the instinctive synthesis method to identify and weigh up all the relevant objective and subjective circumstances to reach a judgment on the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
While Mr Murphy's plea of guilty to the charge entails an acceptance of the proof beyond reasonable doubt of the elements of the offence, the prosecutor still carries the onus of proving beyond reasonable doubt any aggravating factors for the purposes of sentencing. For mitigating factors, the onus of proof lies upon the offender on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

The objective circumstances of the offence

The objective gravity or seriousness of the offence is a significant factor the Court considers in determining the appropriate sentence. This involves consideration of various circumstances discussed below.

Nature of the offence

The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme are illustrative of the objective seriousness of environmental offences: Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59] and Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290 ('Turnbull') at [22].
The objects of the NV Act are set out in s 3 as follows: 3 Objects of Act 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.
Pursuant to s 6(2) of the Protection of the Environment Administration Act 1991 (NSW) and the Dictionary to the Local Government Act 1983 (NSW), ecologically sustainable development can be achieved through the implementation of, inter alia, the precautionary principle, inter-generational equity, and the conservation of biological diversity and ecological integrity.
In Turnbull at [25], Preston CJ of LEC explained that: One of the principal means by which these objects are achieved is by the NV 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 NV Act. An offence against such provisions thwarts the attainment of the objects of the NV Act, including achieving the principles of ecologically sustainable development.
In Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 ('Brummell') at [13]-[14], Preston J further noted: There is a need for the upholding of the regulatory scheme under the NV Act. The scheme depends on persons, first, taking steps to ascertain when authority is required to clear native vegetation, secondly, making an application in the appropriate form and manner and obtaining the requisite authority before undertaking the clearing of native vegetation and, thirdly, complying with the terms and conditions of any authority (whether a development consent or a property vegetation plan) in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory scheme relating to native vegetation and fauna: Director General, Department of Environment and Climate Change v Rae at [18]. An offence which undermines the integrity of the regulatory scheme is objectively serious. The use of the criminal law ensures the credibility of the regulatory scheme.
The prosecutor submits that Mr Murphy's conduct did not provide for, encourage or promote the management of native vegetation; was akin to broadscale clearing; did not protect native vegetation of high conservation value; did not improve the condition of existing native vegetation; and did not encourage re-vegetation of land. The prosecutor contends that Mr Murphy's conduct was contrary to each objective of the NV Act and to the principles of ecologically sustainable development, and notes that no environmental impact assessment was conducted prior to the clearing. The prosecutor submits that Mr Murphy's conduct thwarted the objects of the NV Act.
Mr Murphy accepts that by clearing native vegetation without obtaining the necessary development consent or PVP, his conduct was contrary to the regulatory system that governs such activity.
I find that Mr Murphy's conduct in clearing native vegetation without development consent or a PVP offended against the legislative objective in the statutory offence (s 12 of the NV Act). In undertaking the clearing without lawful authority and without conducting an environmental impact assessment of the proposed clearing, Mr Murphy's conduct thwarted the attainment of the objects of the NV Act enshrined in s 3 and was contrary to the principles of ecologically sustainable development. The offence committed by Mr Murphy undermined the regulatory scheme. Offences which undermine the integrity of the regulatory system are objectively serious: Brummell at [14]. I accept the submissions of the prosecutor and find that Mr Murphy's conduct was akin to broadscale clearing and did not protect native vegetation of high conservation value or encourage re-vegetation of the land.

Maximum penalty for the offence

The maximum penalty for an offence against s 12 of the NV Act is $1,100,000, with a further daily penalty of $110,000: s 12(2) of the NV Act and s 126(1) of the Environment Planning and Assessment Act 1979 (NSW). Although s 126(1) was amended on 31 July 2015 by the Environmental Planning and Assessment Amendment Act 2014 (NSW), it continues to apply to an offence against s 12(1) of the NV Act.
The maximum penalty reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 ('Camilleri's Stockfeeds') at 698. The task of the Court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided: Camilleri's Stockfeeds at 698.

Harm to the environment

The harm caused by the commission of the offence is relevant in determining the objective seriousness of the offence under ss 21A(2)(g) (if the harm was substantial) and 21A(3)(a) (if the harm was not substantial) of the Sentencing Act.
For the reasons that follow, I find that the clearing of native vegetation on Mookoo and Clifford caused actual environmental harm. As noted above, the areas cleared comprised 528 hectares and 100 species of native vegetation were removed. It is estimated that the clearing removed vegetation communities from Mookoo and Clifford as follows: 1. 180 hectares of the Endangered Ecological Community ('EEC') (as determined by the NSW Scientific Committee in accordance with the procedures set out in the now repealed Threatened Species Conservation Act 1995 (NSW) ('Threatened Species Conservation Act')) Coolibah Woodland that was in moderate to good condition. While the vegetation community included koala feed trees, there is no suggestion that any koalas were directly harmed as a result of the clearing; 2. 82 hectares of Poplar Box / Belah Woodland that was in moderate to good condition. The vegetation community included koala feed trees and habitat for the vulnerable species the Grey-crowned Babbler. Two opportunistic sightings of this bird were recorded by the ecologists during their site inspection. There is no suggestion that any koalas or Grey-crowned Babblers were directly harmed as a result of the clearing; 3. 73 hectares of Poplar Box / Coolibah Floodplain Woodland that was in moderate to good condition and included koala feed trees. There is no suggestion that any koalas were directly harmed as a result of the clearing; 4. 54 hectares of Belah Woodland that was in moderate to good condition and included koala feed trees; 5. One hectare of Silver-leaved Ironbark / Poplar Box +/- Ironwood Woodland that was in moderate condition; and 6. One hectare of the EEC (as determined by the NSW Scientific Committee in accordance with the procedures set out in the now repealed Threatened Species Conservation Act) Carbeen / White Cypress Pine / River Red Gum Woodland that was in moderate to good condition.
Each vegetation community comprised vegetation of a mix of ages, including mature and old growth trees, with a very low presence of introduced non-native species (weeds). The species cleared existed in New South Wales prior to European settlement and were thus native within the meaning of s 6 of the NV Act. Previous disturbances were limited to livestock grazing, intermittent flooding and selective tree removal.
It is estimated that the vegetation removed was capable of providing habitat for 12 endangered species, 28 vulnerable species and 10 migratory species. Of these species, 26 have been recorded less than a kilometre away from the property's southern border in the Gwydir Wetlands State Conservation area, and two have been recorded at the Baroona Waterhole, adjacent to the property's southern border.
The vegetation communities that were removed existed within an otherwise extensively over-cleared and degraded landscape.
The vegetation cleared was approximately 2km from a Ramsar listed wetland (recognised under the Convention on Wetlands of International importance). The Gwydir Wetlands State Conservation Area is located less than a kilometre from the property's southern border. Vegetation was cleared from the floodplain of the Gwydir River.
The agreed facts provide that it is estimated that the clearing resulted in: 1. removal of overstorey and understorey strata and their replacement by introduced shallow-rooted crop species; 2. loss of genetic resources; 3. loss of soil seedbank; 4. removal of native fauna habitat features, including native tree canopy cover, native shrubs and ground layer species, litter, fallen logs, up to 37,000 tree hollows (which can take 100-140 years to develop), and up to 4,500 dead standing trees; 5. removal of native flora habitat; 6. increased habitat fragmentation and degradation of remaining habitat; 7. increased potential for weed invasion; 8. changed abiotic factors (humidity, temperature and wind) and chemical factors (herbicide, insecticide, fertiliser and drift); and 9. increased movement of machinery and vehicles compacting the soil and facilitating the spread of weeds.
Despite the fact that the terminology "estimated" was used at [38] above (as per the agreed facts at par (47)), I note that at the hearing, Ms Shahnawaz, counsel for the prosecutor, explained that the effects of the clearing were necessarily estimates as no survey of the flora or fauna was conducted prior to the clearing, and it was a scientific estimate made by experts who based their opinions on aerial imagery pre-dating the clearing, a field inspection of areas adjacent to the cleared areas and survey methods of rapid assessment, spot analysis, step-point transect and random traverse to prepare maps of the vegetation communities that they opined existed on the properties prior to the clearing (see Tcpt, 1 August 2019, p 41(23-27)).
For the potentially affected fauna species, the clearing has potentially removed areas of habitat and resources for local populations, including possible food, possible shelter, nesting, breeding and/or roosting sites.
For the flora species potentially affected, clearing is likely to have reduced the ability of these species to persist within the areas of native vegetation that remain on site and in the locality due to the loss of the soil seedbank and genetic diversity within the populations.
As a result of the clearing, it is estimated that there is: 1. less area for species to live; 2. less resources available for flora and fauna survival (food, breeding, resting, growing and pollination); 3. decreased ability for flora and fauna to move between patches of native vegetation to access what resources remain (food, breeding sites, mates and growing areas); 4. increased competition within each species' population (intra-specific) and between species (inter-specific) for the reduced pool of resources that remain; 5. greater risk of fauna predation from introduced predators (cats and foxes); and/or 6. increased risk of disease and death resulting from higher levels of competition and predation.
Prior to the clearing, the native vegetation was of varying vegetation density. Using the classification system in the 'Australian Soil and Land Survey Field Handbook' by the National Committee on Soil and Terrain, a change in vegetation class was recorded if there was a change in crown cover class. The classifications ranged from "Closed or dense" (pertaining to the lowest crown separation ratio and highest percentage crown cover) to "Isolated plants" (pertaining to the highest crown separation ratio and lowest percentage crown cover), with "Mid-dense", "Sparse or open" and "Very sparse" falling in between. The crown density cover of the vegetation for the majority of the clearing (around 333 hectares) was "Very sparse" or "Sparse or open" vegetation. Around 37 hectares of clearing was of "Closed or dense" vegetation and 55 hectares of vegetation was "Mid-dense". For the remainder (around 103 hectares), there was no change in crown density, but vegetation was removed.
Given the above, the prosecutor submits that the clearing caused actual environmental harm by the removal of 528 hectares of remnant native vegetation which was of high conservation value. The prosecutor contends that the impacts on the ecological functioning in the cleared areas include the loss of biodiversity with the removal of up to 100 species of groundcovers, shrubs and overstorey species. The prosecutor submits that the harm caused to the environment by the offence was substantial, an aggravating factor pursuant to s 21A(2)(g) of the Sentencing Act.
Mr Murphy submits that by his plea and agreement to the agreed facts, he has acknowledged that there has been harm to the two EECs mentioned above.
Mr Murphy submits that none of the species of vegetation that were cleared are presently identified as being critically endangered, endangered or threatened under Sch 1 of the Biodiversity Conservation Act 2016 (NSW) ('Biodiversity Conservation Act'), nor were they identified as critically endangered, endangered or vulnerable under Schs 1, 1A and 2 of the Threatened Species Conservation Act as in force at the time of the clearing.
Further, while Mr Murphy accepts that the native vegetation was of a kind that was capable of providing habitat for certain flora and fauna identified in the agreed facts, there is no evidence that those particular flora and/or fauna were present prior to or at the time the clearing was carried out, although, as noted above, a number were recorded within a kilometre of the property's southern border in the Gwydir Wetlands State Conservation area.
I find that the clearing caused actual environmental harm as it involved the removal of 528 hectares of remnant native vegetation which was of high conservation value. I make this finding on the basis that the clearing of vegetation communities that were in moderate to good condition within an otherwise degraded landscape is the clearing of vegetation that had high conservation value. I am conscious of the scale of the clearing set out at [33] above and I note that the conduct constituting the offence involved clearing significant areas of vegetation communities.
The native vegetation that was cleared, apart from being valuable in and of itself, provided habitat for various species including vulnerable species. As stated above, the trees and vegetation cleared were classified as "native vegetation" within the meaning of that term in s 6 of the NV Act. The parties agreed that the cleared trees and vegetation were likely capable of providing habitat for 12 endangered species, 28 vulnerable species and 10 migratory species. I accept the prosecutor's submission and find that the impacts on the ecological functioning in the cleared areas include the loss of biodiversity with the removal of up to 100 species of groundcovers, shrubs and overstorey species.
While I am conscious that the vegetation cleared was classified as largely "Very sparse" or "Sparse or open" as per [43] above, I note the comments of Preston J in Director General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 ('Rae') at [37]-[38]: 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. 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…
For the above reasons, I find beyond reasonable doubt that the harm caused by the offence was substantial and thus an aggravating factor pursuant to s 21A(2)(g) of the Sentencing Act. In making this finding, I take into account the scale of the clearing, the ecological and conservation value of the native vegetation removed and the fact that the vegetation (and in particular Coolibah Woodland, Poplar Box / Belah Woodland, Poplar Box / Coolibah Floodplain Woodland, Belah Woodland and Carbeen / White Cypress Pine / River Red Gum Woodland, two of which were EECs under the former Threatened Species Conservation Act) contained mature and old growth trees which were in moderate to good condition.
I am conscious that environmental harm caused by the clearing of native vegetation may be mitigated by an order issued pursuant to the Biodiversity Conservation Act to carry out remediation works. The nature and extent of the remediation order issued by the prosecutor is not before the Court, however although not determinative, I note that Mr Murphy has appealed against the order. In those circumstances, the issue of whether and in what manner the cleared areas will be remediated remains uncertain.

State of mind in committing the offence

While the offence against s 12 of the NV Act is a strict liability offence, the state of mind of the offender at the time of the offence may make the offence objectively more serious. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally: Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123], Rae at [42] and Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 ('Traikaero') at [35].
In Brummell at [51], Preston J noted that: A critical difference between [recklessness and negligence] is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).
For an offender to be reckless in the commission of an offence, they need to have "knowledge or foresight of the likelihood of the consequence or circumstance occurring" in the sense of a "real and not remote" chance: Brummell at [52]. In Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126], Pepper J considered recklessness in the context of clearing native vegetation as follows: An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]).
As per Brummell at [53], negligence requires consideration of: …whether the risk of [the] consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.
The prosecutor notes that three PVP requests were made for Mookoo in 2008 and that each time, the request did not progress beyond an initial enquiry from the landholder. By making PVP enquiries with Border Rivers-Gwydir Catchment Management Authority, the prosecutor submits that Mr Murphy must have believed or suspected that the clearing of native vegetation was unlawful without appropriate approval. The prosecutor submits that the decision made around 2010 to commence clearing was some two years prior to the commencement of the offence period, which then continued to 2016.
In light of the evidence, the prosecutor submits that the Court should treat with circumspection Mr Murphy's statement that "I am now aware that I should have sought approval from the relevant government departments before the clearing was undertaken" (emphasis added). As such, the prosecutor submits that Mr Murphy's actions were premeditated by some years and that his state of mind in committing the offence was reckless, thereby aggravating the seriousness of the offence.
Mr Murphy submits that the offence did not represent an outright rejection of the relevant principles of ecologically sustainable development but a misguided and perhaps high-handed approach to appropriate land management.
Mr Murphy deposes that he (and his wife) made the decision in 2010 to "undertake the removal of timber, woody weeds and ground cover in areas on both Clifford and Mookoo in order to open the country back up and use it to ultimately grow fodder for stock and plant cereal crops" and that his "ultimate goal" was to "clean out the Lippia".
The evidence agreed between the parties was that three PVP requests had been made for Mookoo in 2008 and on each occasion, the PVP request did not progress beyond an initial enquiry from the landholder. In order to find Mr Murphy's conduct reckless as contended by the prosecutor, I would need to find that Mr Murphy was aware of a risk that the clearing would be done otherwise than in accordance with lawful authority, was likely to result (in the sense of a substantial chance): Brummell at [52]. The evidence before the Court is insufficient to establish to the requisite standard that Mr Murphy was subjectively aware that his conduct was in breach of the law. As such, I do not find that Mr Murphy had the necessary awareness of the risk that the clearing would be done without lawful authority, was likely to result. However, viewed objectively, a reasonable person in Mr Murphy's position would have foreseen that risk, particularly in light of the fact that three PVP requests had been made prior to charge period. In the circumstances, I find Mr Murphy's conduct to be negligent to the criminal standard so as to warrant criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 439, and Brummell at [54]. I also note that the prosecutor cited Turnbull at [169] and R v Morabito (1992) 62 A Crim R 82 at 86 to submit that a large measure of premeditation will make an offence more serious than if it is committed on the spur of the moment. While I do not find that the offence was committed on the spur of the moment, I do not consider that there was a large measure of premeditation.

Reasons for committing the offence

A factor by which the criminality of an offence may be augmented is the reason for its commission: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [237] and Rae at [47]. Pursuant to s 21A(2)(o) of the Sentencing Act, offences carried out for financial gain are objectively more serious.
Given that all the clearing was carried out for the purpose of growing fodder and cereal crops (as noted above), the prosecutor submits that the native vegetation was removed to improve the productivity of the properties with a resultant increase in profits or land value. The prosecutor submits (as noted above) that Mr Murphy expended at least $82,866.27 between March 2015 and July 2016 for labour and plant hire for the clearing and that Mr Murphy's statement that "I was not motivated by greed but rather I wanted to return the country to what I believed was its original state" should be given little weight in light of his admission that he intended to grow fodder and crops over the whole of the cleared area. As such, the prosecutor contends that the Court should find that the offence was carried out for commercial gain, an aggravating factor pursuant to s 21A(2)(o) of the Sentencing Act.
Mr Murphy submits that it is open to the Court to find that the offence was partly committed for financial reasons having regard to the fact that approximately 40% of the cleared area was subsequently cropped. However, Mr Murphy contends that his intention was to return the country to what he believed was its original state prior to the construction of Copeton Dam.
Mr Murphy notes that he and his wife were born and raised in the broader Moree area and have been involved in farming in the area, including on Mookoo, since before the completion of the Copeton Dam and the regulation of the Gwydir River. Mr Murphy submits that prior to the construction of the Copeton Dam, the land that is the subject of the offence was open and timbered grazing country that benefitted from flooding which would result in large amounts of blue couch grass growing throughout the paddocks. He notes that the completion of the Copeton Dam in the late 1970s and subsequent regulation of the Gwydir River impacted the characteristics of the land as it resulted in a cessation of beneficial flooding. Mr Murphy submits that this resulted in a change from blue couch to lippia which choked out the remaining couch grass and increased woody weeds.
While Mr Murphy accepts that there was no excuse for failing to seek the appropriate consents and approvals, he submits that the reasons for offending were not wholly financial but had in mind considerations of the state of the land prior to the changes brought by the completion of the Copeton Dam and subsequent regulation of the Gwydir River.
In Rae at [11]-[12], Preston J opined: 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 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…
Contrary to the submissions made on behalf of Mr Murphy, I find beyond reasonable doubt that the clearing was generally undertaken in order to develop the properties and that this undoubtedly involved a commercial advantage. In making this finding, I am conscious, and adopt, the comments of Preston J in Rae at [11]-[12] noted above.
While I note that Mr Murphy deposes that he was "not motivated by greed", he also deposes that the removal of "timber, woody weeds and groundcover" was "to open the country back up and to use it to ultimately to grow fodder for stock and plant cereal crops" and it was an agreed fact that all the clearing was carried out for the purposes of growing fodder and cereal crops. I find beyond reasonable doubt that the clearing was undertaken for commercial gain which is sufficient to engage s 21A(o) of the Sentencing Act, increasing the objective seriousness of the offence.

Foreseeability of risk of harm

The prosecutor submits that it was entirely foreseeable that clearing vegetation would cause harm to the environment and that it should have been foreseen by Mr Murphy. The prosecutor notes that Mr Murphy has owned Mookoo since 1977 and Clifford since around 1990, he resides on Mookoo and has managed both of the properties. The prosecutor contends that Mr Murphy's affidavit demonstrates his knowledge of the properties. The prosecutor submits that as a farmer and through his involvement since 1979 with the Talmoi Bore Trust, Mr Murphy would have had some awareness of the surrounding environment. Separate to the immediate loss of vegetation, the prosecutor says that Mr Murphy ought to have appreciated the consequences of his conduct on the broader environment.
Mr Murphy submits that there is no evidence that he was aware that the cleared vegetation included the two EECs at the time he authorised the clearing. Mr Murphy further submits that there is no evidence that he was aware that the native vegetation was capable of providing habitat for the fauna and flora listed in the agreed facts at the time of the clearing, or that any of those species were classified as vulnerable, endangered or critically endangered.
Having regard to the nature and extent of 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 environmental harm which I have referred to and found above could reasonably have been foreseen as a consequence of the clearing undertaken on the properties by Mr Murphy.

Practical measures to prevent risk of harm

I find that Mr Murphy could have and should have refrained from clearing the native vegetation from his property unless or until development consent or a PVP had been obtained authorising the clearing. As such, there were practical measures to prevent the risk of harm.

Control over causes of offence

Mr Murphy had complete control over the causes of the offence. He engaged Greenstar Earthmoving to undertake the clearing, he instructed Mr Baillie, the contractor who undertook the physical work, on a daily basis over a relatively long period of time and he looked to see what Mr Baillie had cleared and instructed him to clear more as required. Mr Murphy therefore had control over the causes that gave rise to the offence and the harm to the environment.

Conclusion on objective seriousness

The prosecutor submits that the offence falls within the upper range of the mid-range of objective seriousness and Mr Murphy submits that the offence is slightly below the middle range of objective seriousness.
Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it "…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender", it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [279].
Given the nature of the offence, the high maximum penalty, my findings that the environmental harm was substantial, that Mr Murphy committed the offence negligently, that the offence was committed for financial gain, that the risk of harm to the environment was foreseeable, that there were practical measures to prevent the risk of harm and that Mr Murphy had complete control over the causes that gave rise to the offence, I find that the offence falls in the middle range of objective seriousness.

Subjective circumstances of the offender

Within the limits set by the objective seriousness of the offence, the Court may have regard to the offender's subjective circumstances. This requires consideration of favourable factors personal to Mr Murphy rather than the offence for which he has been charged. The matters that I take into account are: Mr Murphy's plea of guilty; the extent of his contrition and remorse; his lack of prior criminality; his prior good character; his assistance to authorities; and likelihood of reoffending.
Mr Murphy deposes that he is currently 68 years old and has been married to his wife for 42 years. Mr Murphy further deposes that together with his wife, he has worked hard to continue to farm the property on which his wife was raised. Mr Murphy says that he and his wife have three adult children and are currently in the process of undertaking succession planning with them.
Mr Murphy notes that despite being diagnosed with multiple sclerosis in 1978, he has been able to manage his health well and has not suffered any ongoing complaints, although his diagnosis remains.

Plea of guilty

I note that Mr Murphy pleaded guilty to the offence, a mitigating factor pursuant to s 21A(3)(k) of the Sentencing Act. In determining the discount that should be applied to the sentence for the utilitarian value of Mr Murphy's plea, it is necessary to have regard to the timing and circumstances in which the intention to plead guilty was indicated: s 22(1) of the Sentencing Act.
Mr Murphy indicated an intention to plead guilty on 5 February 2019 and entered a plea of guilty on the seventh occasion the matter was listed before the Court without the need for a contested hearing. Mr Murphy submits that the plea was entered at an early opportunity and that he is entitled to a 25% discount on the penalty imposed to reflect the utilitarian benefit of the plea, which includes Mr Murphy's agreement to the agreed facts (which avoided the need for additional expert evidence concerning the extent of environmental harm and related matters). The prosecutor accepts that there is utilitarian value in the plea having been entered and that the discount should be close to the full discount (Tcpt, 1 August 2019, p 24(38-39)).
I consider that Mr Murphy's delay in entering the plea does not significantly reduce its utilitarian value. In the circumstances, I find it appropriate to adjust the maximum discount from 25% to 22.5% to the sentence imposed.

Contrition and remorse

As stated above at [18], pursuant to s 21A(3)(i) of the Sentencing Act, remorse shown by an offender 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),
In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [203]-[204], [210], [212], Preston J stated (citations omitted): [203] Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms. [204] First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence… … [210] Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly… … [212] Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly…
The prosecutor submits that Mr Murphy cropped 210.5 hectares of the cleared area as at 20 September 2017 and that he refers in his affidavit to having "ongoing discussions" with the prosecutor regarding a remediation order. The prosecutor notes that the remediation order it issued has now been appealed by Mr Murphy and submits that Mr Murphy's remorse is qualified at best.
Mr Murphy deposes that he has expressed remorse for the decision to unlawfully remove native vegetation. Mr Murphy contends that he has acknowledged the wrongfulness of his actions for which he has accepted responsibility. Mr Murphy says that the proceedings have had an impact on him and resulted in a change in attitude towards compliance with the law and cooperation with those who administer it.
In addition to the matters in s 21A(3)(i) of the Sentencing Act, the existence of genuine remorse is relevant to the weight that needs to be given in sentencing to individual deterrence and the offender's prospects of rehabilitation. This is because remorse by an offender can be associated with insight by the offender into the reasons for or factors contributing to the offending conduct: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [116] and Turnbull at [214].
Mr Murphy deposes that he is now aware that he should have sought approval before the clearing was undertaken and he now "regrets" that he did not do so. He accepts that the clearing had a negative effect on native vegetation, has impacted the vegetation diversity and may also impact native fauna. Mr Murphy contends that he has acknowledged that he should have considered the potential impacts on the environment and has expressed his regret that he did not do so. Mr Murphy further says that he is ashamed to be a defendant in criminal proceedings.
There is no evidence that Mr Murphy acted swiftly or efficiently to rectify any harm caused, no evidence that Mr Murphy voluntarily reported the offence, and somewhat limited acceptance by Mr Murphy of the conduct which constituted the offence. While I accept that Mr Murphy is ashamed that he is a defendant in criminal proceedings, that he is a man without a criminal record, that he is "disappointed" that he is now in the position that he is in, and, as considered below, is otherwise a respected member of the community, I consider that his somewhat qualified expressions do not amount to genuine remorse.
Further, although Mr Murphy's evidence is that he is having "ongoing discussions" in relation to a remediation order, there is no evidence of any remediation being undertaken. While I accept that the proceedings have had an impact on Mr Murphy and may have resulted in a change of attitude towards compliance with the law, I find the remorse expressed by Mr Murphy to be qualified.

Lack of prior criminality

Mr Murphy has no prior convictions for any offences (s 21A(3)(e) of the Sentencing Act) and I take this into account in addition to my finding of good character below: Ul-Hassan v R [2018] NSWCCA 177 at [105].

Prior good character

Mr Murphy has been involved in the Moree and Garah communities throughout his life, acting as the volunteer gardener at his children's school and volunteering with the Garah Meals on Wheels scheme. He is a trustee of the Talmoi Bore Trust, which is responsible for the equitable and sustainable distribution of bore water to properties throughout the district. Mr Murphy deposes that his wife is the coordinator for the Garah/Boomi District Meals on Wheels (and has held this position for approximately 40 years) and also volunteers at the Fairview Nursing Home in Moree, approximately 60km away from their property.
Mr Murphy also relies on a number of personal references which were tendered at the hearing to attest to his good character and standing in the local community. Character references were marshalled from Paul Gunthorpe, CEO of Gunthorpe Ogle Pty Ltd (auctioneers, stock and station agents); A M Hall, Chairman of Talmoi Bore Water Trust; and Murray Woods, who has known Mr Murphy for 50 years. The referees spoke of Mr Murphy as a valued member of the Moree District community and a supporter of many local organisations including the Moree Rugby Union Club and the Fairview Retirement Village. They noted that Mr Murphy was an elected trustee and a competent and resourceful member of the local Bore Water Trust, and that he had displayed good farming and managerial skills over the years.
Mr Murphy is a person of good character pursuant to s 21A(3)(f) of the Sentencing Act. I accept that he has been an honest, hard-working member of his local farming community.

Assistance to authorities

Assistance by the offender to law enforcement authorities (as provided by s 23) is a mitigating factor under s 21A(3)(m) of the Sentencing Act.
Mr Murphy complied with statutory notices, cooperated with the investigators who conducted an inspection of his properties, negotiated with the prosecutor to reach an agreed position in relation to facts and agreed to pay the prosecutor's costs. These actions have assisted the prosecutor.

Likelihood of re-offending

Mr Murphy submits and I accept that he is disappointed with himself and that he is ashamed of being a defendant in criminal proceedings as he has prided himself on being a person who has looked after his family and community. I find that Mr Murphy is unlikely to re-offend: s 21A(3)(g) of the Sentencing Act.

Deterrence

The imposition of a sentence serves a number of purposes, including retribution and denunciation, as well as deterrence, both general and specific. As noted at [17] above, s 3A(b) of the Sentencing Act provides that one of the purposes for which a court may impose a sentence is "to prevent crime by deterring the offender and other persons from committing similar offences".
In Rae at [9]-[10], [13], Preston J stated (citations omitted): [9] …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…the purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law… [10] "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." … [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.
The prosecutor submits and I accept that as Mr Murphy is undertaking succession planning, the need for specific deterrence is less relevant, however I find that general deterrence is particularly relevant in imposing a sentence for the offence of clearing native vegetation.

Even-handedness

In determining the appropriate penalty, the Court should be consistent with any patterns of sentencing for like offenses. The prosecutor directed the Court to various cases including Traikaero, Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69 ('Swansbel'), Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54, Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141, Turnbull, and Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110.
In considering the recent decision of Pain J in Swansbel, I have had regard to her Honour's analysis at [61]-[67] of a number of cases sharing similar features to the matter before me. I have also considered the cases (and there is some overlap) referred to and considered by Preston J in Brummell at [99] and Traikaero at [83].
While Mr Murphy acknowledges that the Court should have regard to other cases as they provide a yardstick for sentencing, he submits that greater assistance should be obtained by reference to general sentencing principles: R v Woodman [2001] NSWCCA 310 at [22], [24]-[25], R v Hawker [2001] NSWCCA 148 at [17], Cvetkovic v R [2013] NSWCCA 66 at [73], Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 ('Hili') at [54], and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ('De La Rosa') at [303]-[305]. Mr Murphy submits that it is important to have regard not just to what has been done in other cases, but why it was done: Hili at [18] and De La Rosa at [304].
I have had regard to the matters considered by the Court in the decisions to which I have been referred, including the objective and subjective circumstances in those cases. I am conscious of the fact that each case turns upon its particular facts and caution must be exercised in considering other cases as "there is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances….": Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366.
The sentence that I consider to be appropriate for the offence committed by Mr Murphy is not inconsistent with the sentences imposed in the cases referred to above.

Moiety and costs orders

The prosecutor seeks an order that Mr Murphy pay one half of any fine imposed to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW) ('Fines Act').
I am satisfied that the Court has the power to make an order under s 122(2) of the Fines Act for the reasons given by Preston J in Brummell at [104]-[111] and in the circumstances of this case, I consider it appropriate to exercise the power as sought by the prosecutor.
The prosecutor also seeks an order for costs under s 257B of the Criminal Procedure Act 1986 (NSW). Mr Murphy has agreed to pay the prosecutor's professional costs in the amount of $47,500.
In fixing the amount of the fine, the Court is required, pursuant to s 6 of the Fines Act, to consider the means of the offender to pay.
Mr Murphy submits that his family does not lead an extravagant lifestyle and while it is accepted that a fine is appropriate, he says it will be difficult to pay as the properties have been in drought for over 24 months and his income has been minimal.
The prosecutor mentioned that there is evidence in the character reference of Mr Woods that Mr Murphy recently managed to purchase nearby land, however there is no date provided in respect of this (Tcpt, 1 August 2019, p 39(39)-(41)).
In the absence of any financial records or other material that would support a finding that a substantial fine would impose a hardship on Mr Murphy, I do not consider that Mr Murphy has established that he will be unable to pay either the fine or the prosecutor's costs.

The appropriate sentence

I take into account the objective seriousness of the offence and the mitigating, subjective circumstances of Mr Murphy. I also take into account the need to impose a sentence that achieves the purposes of sentencing in s 3A of the Sentencing Act which include denouncing the conduct of Mr Murphy and ensuring that Mr Murphy is adequately punished for the offence he committed. The sentence should make Mr Murphy accountable for his actions, recognise the harm done to the environment by the commission of the offence and deter others from committing similar offences.
In the circumstances, synthesising all of the relevant objective and subjective circumstances and considering the relevant purposes of sentencing, I consider that the appropriate penalty for the offence is $340,000. I discount this amount by 22.5% for the utilitarian value of Mr Murphy's guilty plea. This reduces the penalty to $263,500.

Orders

The orders of the Court are: 1. Anthony Guy Murphy is convicted of the offence against s 12(1) of the Native Vegetation Act 2003 (NSW) as charged. 2. Mr Murphy is fined $263,500. 3. Mr Murphy is to pay one half of the fine imposed to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW). 4. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Mr Murphy is to pay to the Registrar of the Land and Environment Court, for payment to the prosecutor, the prosecutor's costs of the proceedings in the amount of $47,500.

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: 27 August 2019

Native Vegetation Act 2003(NSW)ss 3, 6, 12

Environment Planning and Assessment Act 1979(NSW)s 126

Environmental Planning and Assessment Amendment Act 2014(NSW)

Local Government Act 1983(NSW)

Environment Administration Act 1991(NSW)s 6

Threatened Species Conservation Act 1995(NSW)

Fines Act 1996(NSW)ss 6, 122

R v Hawker [2001] NSWCCA 148 R v Morabito (1992) 62 A Crim R 82 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Woodman [2001] NSWCCA 310 Ul-Hassan v R [2018] NSWCCA 177 Texts Cited: National Committee on Soil and Terrain, Australian Soil and Land Survey Field Handbook (3rd ed, 2009, CSIRO Publishing) Category: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Anthony Guy Murphy (Defendant) Representation: Counsel: Z Shahnawaz (Prosecutor) R Ranken (Defendant)

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2017) 227 LGERA 290

(2012) 192 LGERA 314

(2009) 168 LGERA 121

(2006) 148 LGERA 299

(2006) 145 LGERA 189

At a glance

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