Nature of the Offence
42A fundamental consideration of relevance to the objective seriousness of this offence is the degree to which Augrid's conduct offends against the legislative objects of the NPWA (O'Neill at [74]). These objects are relevantly set out at s 2A(1) of the Act:
2A Objects of Act
(1) The objects of this Act are as follows:
(a) the conservation of nature, including, but not limited to, the conservation of:
(i) habitat, ecosystems and ecosystem processes, and
(ii) biological diversity at the community, species and genetic levels, and
(iii) landforms of significance, including geological features and processes, and
(iv) landscapes and natural features of significance including wilderness and wild rivers,
(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:
(i) places, objects and features of significance to Aboriginal people, and
(ii) places of social value to the people of New South Wales, and
(iii) places of historic, architectural or scientific significance,
(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,
(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.
43The conservation of objects of social, cultural and historic value to Indigenous people is an express object of the NPWA. The damage caused to the rock engraving is plainly incompatible with the objects set out in s 2A(1)(b) and (c) of the Act. It undermined the integrity of the system of preservation of cultural heritage under Pt 6 of the NPWA, which plays a critical role in promoting those objectives (Garrett at [67]-[69] and O'Neill at [76]). More importantly, although unintentionally, it had the tendency to perpetuate the "national legacy of unutterable shame" (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 104 per Deane and Gaudron JJ) caused by the dispossession of Aboriginal persons from their lands as a consequence of colonisation.
Maximum Penalty
44The maximum penalty for this offence is $220,000 in the case of a corporation (s 86(2)(b) of the NPWA). The maximum magnitude of the penalty reflects the seriousness with which Parliament views the offence of harming Aboriginal objects (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
45In O'Neill Biscoe J referred to the then relatively low maximum penalty for the former offence of damaging or disturbing an Aboriginal object. He noted that (at [73]):
73 The maximum penalties for many other environmental offences are very much higher than for the subject offences. For example, under s 119 of the Protection of the Environment Operations Act 1997 (NSW), penalties for individuals range up to $1 million and seven years imprisonment and for planning and development offences under s 126 of the Environmental Planning and Assessment Act 1979 (NSW), the maximum penalty for strict liability offences is $1,100,000 for any offender. By reference to those measures, the subject offences have not been placed by the legislature at the top end of the spectrum.
46On 2 July 2010, amendments were made to the NPWA resulting in a ten-fold increase in the maximum penalties for such offences. Although inadequately low compared with the maximum penalties enacted for other environmental and planning offences, the increase must nevertheless be taken by the Court as reflecting the legislature's (and therefore, the community's) view that the protection and preservation of Indigenous cultural heritage is to be taken seriously and the Court is "required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner" (R v Slattery (1996) 90 A Crim R 519 at 524 per Hunt CJ at CL; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 at [155] and Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42 at [72]). Of course, this does not mean that the imposition of any sentence for a breach of s 86(2) of the NPWA should proportionately increase to a commensurate level (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [37]).
Extent of the Harm Caused by the Damage to, and the Significance of, the Aboriginal Engraving
47The environmental harm caused by the commission of the offence is a central consideration in determining the objective gravity of the offence (s 194(1)(a) of the NPWA). Likewise the significance of the Aboriginal object harmed (s 194(1)(b) of the NPWA).
48The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145] and [147]):
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) 145 LGERA 234 (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.
...
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.
49In the present case, the harm caused to the environment encompassed not only the immediate and direct impact of the excavation on the rock engraving itself and to the local Indigenous community, but more broadly the commission of the offence also caused harm to the national Indigenous and non-Indigenous community. This is demonstrated by the evidence outlined below.
50During its investigation, the OEH obtained an expert report from an archaeologist, Ms Fran Scully. In Ms Scully's opinion the harm caused to the rock engraving was significant because not only had the irreparable damage to the engraving diminished the significance of it, the removal of the sandstone outcrop had also diminished the immediate context of the rock engraving thereby compromising its setting and meaning. Moreover, because the footprint was no longer recognisable, the significance of the rock engraving as an indicator of past Indigenous occupation of the area had likewise been diminished. A tangible link to the past had therefore been substantially eroded, if not obliterated.
51The significance of the rock engraving, and thus the extent of the harm caused by the damage to it, was also deposed to in the affidavits of Mr Ricky Lyons and Mr Lesley Turner. Relevantly, Mr Lyons described the cultural importance of the Aboriginal object in question as follows:
The significance of the rock engraving located at Orlando Road, Cromer
7. The rock engraving at Cromer is one of only 1632 Aboriginal objects registered on AHIMS (Aboriginal Heritage Information Management System) in NSW. Given that there are tens of thousands of known engraving, rock art and painting sites in NSW, this puts this site in the top 1 per cent of sites in terms of its current level of protection in NSW law.
8. As an Aboriginal person who resides in the Metropolitan area, I view all remaining art sites as significant, and as a link for all Aboriginal persons residing in our are to directly experience a link to our landscapes.
9. 'Mundowie' or footprints are important markers of cultural routes, and this one points down the hill directly to the Narrabeen lake catchment area, a resource rich area. Finds around the carving indicate that there may have been regular movement of people from and to the Lake, bring shellfish and other resources with them to a camp on higher, drier land. This carving demonstrates Aboriginal people's relationship to the landscape, not just isolated objects as being significant for our people.
10. As an Aboriginal person, I note that the practical track marking was probably also linked to spiritual creation stories, but I am not personally aware of the particular story for this print.
52As Mr Lyons stated, "to be able to see such a carving, adjacent to industrial and urban development is an important reminder to all Australians that our country has a deep and rich cultural history." Mr Lyons considered the damage caused to the engraving to be "deeply offensive to me as an Aboriginal person."
53Mr Turner reiterated this sentiment. She emphasised that:
...Aboriginal peoples' definition of culture is not limited to particular places or physical evidence of Aboriginal existence on the land. It includes both the tangible and intangible things that tell a story about the land, environment, people, family, history, law, community and spirituality.
54Mr Turner noted that while the local Aboriginal community was the most appropriate group to comment on Aboriginal heritage, it was the view of the NSWALC that the rock engraving the subject of this prosecution was particularly significant "due to the extremely high rates of both historical and contemporary destruction of Aboriginal heritage both illegal and legally authorised." She went on to observe that:
The rock engraving of a footprint at Cromer is a rare and representative example of Aboriginal heritage sites in the area. The site provides clear and intact evidence of Aboriginal occupation in the area prior to European colonisation. It's [sic] significance is strengthened as in that it is a rare example of an intact surviving occupation site in a highly urbanised setting.
55Mr Turner noted that the continued destruction of Aboriginal culture and heritage sites was an issue, the significance of which went beyond the local and national level to the international level, as embodied and enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. Articles 11 and 31 of that Declaration specifically recognise the international significance of Indigenous culture and heritage. Significantly, Mr Turner went on to state that:
The proper protection of Aboriginal culture and heritage is of deep importance to the NSW Aboriginal Land Council and Aboriginal communities in NSW. In this case, the harm that has occurred due to the engraving being sliced in half means that the engraving can never be replaced. The destruction of Aboriginal sites, such as has occurred in this instance impacts on the ability of Aboriginal peoples to connect with a living culture of the past. These sites tell important stories for Aboriginal communities and must be protected to provide Aboriginal people with opportunities to strengthen and maintain culture now and in the future.
56On 25 July 2011, the MLALC wrote to the OEH by way of response to a request for information on the history and significance of the engraving and expressed the following view:
All Aboriginal rock engravings are look [sic] upon as significant to Aboriginal people no matter what the size, shape or other. Aboriginal sites are the oldest historical documentation of life and culture on the continent. Metro LALC views Aboriginal engravings as valuable as any non Aboriginal sculpture, painting, memorial or other historical object. We view the management and protection of the sites of a priority [sic] for all Australian people and visitors.
57The prosecutor submitted that the harm caused by damage to the rock engraving was sufficiently substantial that it amounted to an aggravating factor in the determination of an appropriate sentence pursuant to s 21A(2)(g) of the CSPA. The prosecutor bears the burden of proving beyond reasonable doubt that the damage or harm reaches the threshold of being "substantial" (Garrett at [81]).
58I do not agree. First, while there was considerable evidence of the harm that the damage and destruction of Aboriginal objects causes generally to the Indigenous community, there was limited evidence of the specific significance of the rock engraving in question. The paucity is such that no conclusion may be confidently drawn as to the extent of the importance and the cultural, social and historical value of this object, and thus, the extent of the harm caused by the damage to it.
59Second, the physical state of the object and its surrounding environment at the time that the excavation occurred cannot be ignored. It was, as the prosecutor conceded, weathered and covered in dirt and leaves. The sandstone block upon which the footprint was engraved had been damaged by earlier kerb construction. The roots of an adjacent tree were threatening to encroach upon it. It was not protected by fencing or signposting in any way and other Aboriginal engravings located nearby had been vandalised. Although the fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor (Waste Recycling and Processing Corp at [149] and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [159]), it is nevertheless relevant to any assessment of the extent of the harm caused by the commission of the offence (Queanbeyan City Council (No 3) at [158]).
60Third, although the damage to the engraving cannot be remediated and approximately half of the engraving was removed by the excavation, it has not been completely destroyed. Notwithstanding that each case turns on its own facts, I am fortified by the decision in Garrett where the Court held that the complete destruction of Aboriginal artefacts did not result in the damage constituting "substantial" harm for the purpose of s 21A(2)(g) of the CSPA (at [82]).
61In making this finding, this is not meant in any way to diminish the significance of the engraving to the Aboriginal people of the area. It is simply a finding that on the evidence before the Court it is not possible to conclude to the requisite criminal standard that the particular act of Ausgrid caused "substantial" harm as that term is understood in s 21A(2)(g) of the CSPA.
62Having said this, I nevertheless have no hesitation in finding that the harm caused to the engraving by reason of the commission of the offence was moderate. I do not understand from its submissions, both oral and written, that Ausgrid would cavil with this characterisation.