Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 | Case summary

Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 | Case summary | Zoe

[5]

The Statement of Agreed Facts

Omitting the details of the vegetation species and fauna species said to be impacted as a consequence of the clearing (details to which I will later return), the SoAF was in the following terms: The Property - "Brynaman" 1. The property "Brynaman" is a farming and grazing property situated north-west of Garah in the State of New South Wales. The property consists of approximately 3,676 hectares and is comprised of the following lots: a. Lots 2, 8, 9, 10, 13 on DP750507; b. Lot 104 on DP1117730; c. Lot 2 on DP228487; d. Lots 37 and 43 on DP755977; and/or e. Lot 12 on DP1195420 ("the Property"). 2. At all relevant times, Anthony Boyle ("the Defendant") was an owner of the Property. The Clearing 3. Between about 18 December 2014 and 8 May 2017, the clearing of native vegetation occurred on the Property ("the Clearing"). 4. The Clearing occurred in the areas marked by hatching in Attachment A, excluding the areas marked in green ("the Cleared Areas"). 5. The Cleared Areas comprised approximately 500.8 hectares. 6. The Cleared Areas comprised: a. 43.7 ha of Closed/Dense - Isolated Plants; b. 75.1 ha of Mid Dense - Isolated Plants; c. 160.3 ha of Sparse - Isolated Plants; d. 221.8 ha of Very Sparse - Isolated Plants.
Paragraph (7) of the SoAF then set out a list of the ninety-nine plant species present in the adjoining remnant vegetation and likely to have been present in the Cleared Areas. The list was described as inclusive rather than exhaustive. The list is reproduced as Appendix A to this decision. 8. These species are "native vegetation" within the meaning of the Native Vegetation Act 2003 ("NV Act"). 9. Native vegetation that was removed by the Clearing had been continuously present on the Property since 1 January 1990. 10. The Clearing was carried out by contractors. 11. The contractors received instructions from Anthony Boyle. 12. The Cleared Areas, save for areas immediately along the creek, were subsequently cultivated. No development consent, property vegetation plan or other approval 13. The Clearing was not carried out in accordance with a development consent. 14. The Clearing was not carried out in accordance with a property vegetation plan ("PVP"). 15. The Clearing was not carried out for routine agricultural management activities in accordance with section 22 of the NV Act. 16. The Clearing was not a continuation of existing cultivation, grazing or rotational farming practices in accordance with section 23 of the NV Act. 17. The Clearing was not sustainable grazing in accordance with section 24 of the NV Act. 18. The Clearing was not clearing that was excluded from the operation of the NV Act in accordance with section 25 of the NV Act. Environmental harm 19. The Cleared Areas comprised the following Plant Community Types (PCTs): a. Coolabah - River Cooba - Lignum woodland/wetland; b. Coolibah woodland/wetland; c. Belah woodland; d. Poplar Box / Belah woodland; e. Poplar Box grassy woodland. Threatened species habitat 20. The Cleared Areas provided habitat for the Brown Treecreeper (eastern subspecies), Grey-crowned Babbler and Koala.
I interpose that (20) of the SoAF noted that the cleared areas were also listed as providing habitat to 35 fauna and five flora species that are threatened. The list is reproduced as Appendix B to this decision. Threatened ecological communities 21. The Clearing has removed part of the following Endangered Ecological Communities (EECs): a. Coolibah Black Box Woodland; and b. Aquatic ecological community in the natural drainage system of the lowland catchment of the Darling River.3 Environmental impact 22. The Clearing will have, or is likely to have, detrimental impacts to some degree on the environment and native flora and fauna through: a. Loss of individual flora and fauna and/or populations as a result of individual deaths and injury during the clearing process; b. The removal of overstorey and understorey strata and their replacement by the introduced non-native shallow-rooted crop species; c. Loss of genetic resources; d. Loss of soil seedbank; e. Removal of native fauna habitat features including: native tree canopy cover, native shrubs and ground layer species, litter, fallen logs and tree hollows; f. Removal of native flora habitat; g. Increased habitat fragmentation; h. Degradation of remaining habitat as a result of the increased potential for weed invasion, changed abiotic factors (humidity, temperature and wind) as well as chemical (herbicide, insecticide and fertilizer) drift from adjoining land use; i. Changed surface water flows; j. Reduced water quality; and k. Increased movement of machinery and vehicles compacting the soil and facilitating the spread of weeds. 23. The vegetation that existed in the Cleared Areas was in moderate condition. 24. The Clearing occurred in a landscape that had been already extensively cleared for agriculture. 25. The cumulative effect of sustained clearing increases with each episode. 26. The Clearing has potentially placed a number of flora and fauna populations at increased risk of local extinction, including the Koala, Brown Treecreeper and Grey-crowned Babbler. 27. The connectivity value of the vegetation communities in the Cleared Areas was that it provided a movement corridor to Gil Gil Creek. The movement corridors on the Property are depicted in Annexure B. Loss of connectivity means that species including small/medium reptiles, mammals and birds have less ability to access sufficient resources (food, shelter and mates) to maintain their populations than if the Clearing had not occurred. 28. The Clearing has significantly reduced the number of tree hollows that supported hollow- dependant fauna. Trees with hollows have a slow development time of approximately 100-140 years.

[10]

The Native Vegetation Act

I have earlier set out the terms of s 12 of the Native Vegetation Act, this being the provision that is the foundation of the charge to which the Defendant has pleaded guilty. There are two other elements of the Native Vegetation Act to which it is necessary I have regard in these proceedings. The first of them is s 3 Objects of Act. This provision sets out what are the statutory objectives sought to be achieved by this legislation. The provision is in the following terms: 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.
As Preston CJ observed, referring to these statutory objects, in Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [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 second of the additional provisions to which it is appropriate to refer is s 38 Directions for remedial work. It is unnecessary to set out the entirety of this provision. It is sufficient to note that it vests power in the Director-General (the Prosecutor, relevantly, in these proceedings) to give a mandatory notice to a landholder (this being the relevant element for the purposes of these proceedings) to carry out remediation work where there has been a clearing of native vegetation in breach of the Native Vegetation Act (as is here the position admitted by the Defendant's plea of guilty). A number of types of work are capable of being encompassed within such a remediation notice. These types of work are set out in s 38(2) as being: (a) work to repair any damage caused by the clearing, (b) work to rehabilitate any land affected by the clearing (including the taking of steps to allow the land to regenerate), (c) work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing.
It is this statutory power pursuant to s 38 of the Native Vegetation Act that provides the basis for the remediation order (the terms of which have been settled between the parties and is reproduced as Appendix E to this decision - although Appendix E is watermarked "Draft", it accurately, as I understand it, reflects the terms of the agreed remediation order) being imposed with respect to various locations on properties owned by the Defendant.

[11]

The Sentencing Procedure Act

In addition to the relevant provisions of the Native Vegetation Act, a number of provisions of the Sentencing Procedure Act are also engaged. The first of these is s 3A, the provision that sets out the objects of the Act explaining the purposes for which sentencing is undertaken. This provision is in the following terms: 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, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (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.
The second elements of the Sentencing Procedure Act are those contained in s 21A of that Act which are relevant to this offending conduct and this Defendant. This provision contains, in s 21A(2), those elements which can, if proved beyond reasonable doubt, give rise to a finding that the offending conduct was carried out in circumstances of aggravation. The second element of the provisions is s 21A(3), which sets out a range of subjective factors potentially applicable to the Defendant. The relevant elements of s 21A of the Sentencing Procedure Act, potentially or actually engaged for my sentencing assessment of this Defendant, will each require separate consideration. The relevant portions of the provision are set out below: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) …, (b) …, (c) …, (ca) …, (cb) …, (d) …, (e) …, (ea) …, (eb) …, (f) …, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) …, (i) …, (ia) …, (ib) …, (j) …, (k) …, (l) …, (m) …, (n) …, (o) the offence was committed for financial gain, (p) …. 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, (b) …, (c) …, (d) …, (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, (h) … (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), (j) …, (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), (l) … (m) assistance by the offender to law enforcement authorities (as provided by section 23), (n) ….
The final element of the Sentencing Procedure Act engaged by these proceedings is s 22, a provision which mandates that I have positive regard to the entry by the Defendant of his guilty plea and the utilitarian value that the entry of that plea has had for the system of the administration of justice. This provision is in the following terms: 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) …. (3) …. (4) …. (5) ….

[12]

The Remediation Order

At the commencement of the sentencing hearing, considerable progress had been made by the parties in reaching agreement on the terms of a Remediation Order to be made - binding the Defendant to have remediation activities undertaken to provide environmental compensation for the damage occasioned by his unlawful native vegetation clearing.
As at the commencement of the proceedings, Mr Littlemore's written submissions summarised the position (submissions at (41)) that had been reached at that time. This constituted agreement that: 1. he is not to cultivate any crops on the remediation area and he is to plough in any crops that exist there; 2. he must monitor regenerating vegetation, and replant to a particular density of stems; 3. he must care for the regenerating vegetation and report to the Department on his actions and on the progress of the regeneration; 4. he must not disturb vegetation or the soil without the consent of the Department. 5. he must manage exotic flora to a coverage of less than 5%; and 6. he must exclude stock completely from part of the remediation area, and must fence that area in order to graze any stock only on the balance of the paddock.
I was advised by Mr Littlemore that the area encompassed by the remediation requirements was 975 ha (to be contrasted, Mr Littlemore submitted, with the some slightly more than 500 ha which had been impacted by the unlawful vegetation clearing). I expressly note that the SoAF sets out the agreement that the charged clearing area is 500.8 hectares. Although, as can be seen from (P) on page 3, of the Remediation Order, that Order asserts that "1,020 hectares of native vegetation was removed", I expressly pay no heed to that assertion as the charge relates only to 500.8 hectares as agreed in the SoAF.
I was also advised that the sole outstanding matter not yet settled for the Remediation Order related to the installation of sedimentation fencing. In order to permit the parties to attempt to settle this sole outstanding matter, I took an earlier than usual morning adjournment break to facilitate those discussions. As a consequence of those discussions, this one remaining issue was resolved - thus resulting in an agreed remediation order.
It is to be observed that the 975 ha encompassed by the requirements of the Remediation Order are not solely located on the property, "Brynaman", where the unlawful land clearing has taken place but also encompass remediation activities to be undertaken on other family properties in the same district.
I am unaware as to whether these additional properties could be regarded as being within the same bioregion as that where the unlawful vegetation clearing took place. However, that is not a matter to which I need have regard given that the Prosecutor accepts that the scope of the activities now mandated by the Remediation Order are an appropriate response to the environmental impacts of the unlawful vegetation clearing for which the Defendant has accepted responsibility.
It is also appropriate to note, as later discussed in the context of the extent to which the Defendant has shown contrition and remorse for his offending conduct, the cost of giving effect to that which is required by the Remediation Order is not a matter to be weighed in the Defendant's favour in my sentencing consideration.
In light of some comments made by Mr Littlemore during the course of his oral submissions, there are three further short observations to be made concerning the remediation order.
The first is that the remediation order is not imposed by order of this Court, it is one where the ability to create the obligation arises from the statutory powers available to the Prosecutor.
Second, it is those statutory powers which permit the remediation order to be made binding, as it is, not only the Defendant but on his wife and his two sons, thus making all four of those persons remediators for the purposes of carrying out the works specified in the order.
Finally, as I reminded Mr Littlemore during the course of him addressing, at some length, various climatic and other factors which might, in his submission, interfere with or impede the carrying out of the obligations created by the order, that was not a matter relevant for my consideration to exercising the sentencing discretion being undertaken concerning the Defendant's unlawful vegetation clearing.
A copy of the Remediation Order is at Appendix E to this decision.

[16]

The extent of the environmental harm

The Prosecutor and the Defendant have agreed on how the environmental harm caused by the Defendant's vegetation clearing is to be described. That agreement is reflected in the terms of (19) to (28) earlier set out in the SoAF. It is unnecessary to repeat them at this point.
However, in my setting out of the relevant elements of the SoAF, I noted the extent of the assemblages of plant and animal species potentially impacted by the Defendant's activities undertaken to "develop" "Brynaman". I did not, there, reproduce the full lists and I do not do so now. However, as earlier noted, those two lists are reproduced as Appendix A and Appendix B to this decision. The two marked air photos that are appended to the SoAF are also reproduced as Appendix C and Appendix D to this decision.
It is to be observed that Mr Littlemore submitted that I should conclude that the environmental harm was "at the low end of the scale". The tenor of this submission can be seen from what was in the written submissions on behalf of the Defendant on this point: 13. The defendant does not put in issue that some environmental harm was caused by the clearing. Because of his negotiated agreement with the prosecutor there is no disputed matter in the plea of guilty, which should also be taken into account as evidence of co-operation and remorse, below. The defendant asserts that the degree of environmental harm, the assessment of which was based on hypotheses and predictions of likelihood, must be regarded as "low", consistently with the applicable principles of criminal sentencing, in this case where there can be no certainty or judgment of inevitability about inferences of future harm - least of all in the light of the remediation offered by the defendant, and his promises for improving the environmental status of other land. 14. The parties have agreed that the clearing removed some part of two unquantified areas of EECs: Coolibah Black Box woodland; and Darling River Catchment Aquatic EEC, in the natural drainage system. The parties have further agreed that the clearing has had or will likely have some degree of adverse impact on native flora and fauna, placing five flora and an undetermined number of fauna populations (including koala, brown treecreepers and grey-crowned babblers) at potentially increased risk of local extinction: Facts p 26. 15. The parties have further agreed that adverse impacts caused by the clearing are: reduced connectivity of the vegetation communities and significant reduction of tree-hollow fauna habitat: Facts paras 27, 28. Submission: Environmental harm is at the low end of the scale 16. This contention as to degree of harm is supported by the following concessions: a) A small number (five) of flora species is demonstrably affected, but to an uncertain and minor degree: the effect is no more than that they are likely to have their ability to persist reduced; b) No endangered fauna population was identified to be directly affected; c) It is difficult to assess the likelihood of any risk of extinction of any EEC or CEEC; d) It is likely that, if left undisturbed, natural regeneration of the native vegetation communities will occur; e) the involvement in the cleared areas of koala habitat is merely inferential from evidence found on adjoining land.
To the contrary position, the Prosecutor submitted (footnotes omitted): 20. The cleared areas comprised 5 different Plant Community Types ("PCTs") being woodlands or woodland/wetlands. 21. The cleared areas provided habitat for the Brown Treecreeper (eastern subspecies), Grey-crowned Babbler and Koala, which placed these animals at potential risk of local extinction. The cleared areas are also listed as providing habitat to 40 threatened fauna species, including many that are considered endangered or vulnerable according to the classification under the now repealed Threatened Species Conservation Act 1995 and the current Environment Protection and Biodiversity Conservation Act 1999. 22. The clearing also removed part of the Collibah Black Box Woodland and the Darling River catchment Aquatic Endangered Ecological Community ("EEC"). The removal of part of these EECs provides further example of the high conservation value of the vegetation cleared and hence the significance of the environmental harm caused by the clearing. 23. It is agreed that the clearing will have, or is likely to have, detrimental impacts to some degree on the environment and native flora and fauna as described in the ASF at paragraph [22]. ….
The submissions of the Prosecutor are to be preferred and I accept them. An overall reading of all the paragraphs in the SoAF describing the scope of the environmental harm caused by the Defendant's vegetation clearing together with an examination of Appendices A to D means that the conclusion that the environmental harm occasioned by the Defendant's unlawful conduct was substantial is inevitable. The submission to the contrary for the Defendant misstates the scope of the impact of the clearing activities caused by the Defendant.

[22]

The clearing was carried out for financial gain - s 21A(2)(o)

In his affidavit, the Defendant describes the activity of development carried out in earlier times on another of the properties owned by him in the district. He said: 11. "Bootalaroo" covers 2,500 acres and was originally a sheep farm. In the early 1980s Suzie and I were encouraged by the government to convert the grazing country into farming country and we received tax concessions for any land that was developed accordingly. That development took place throughout the 1980s and was undertaken as and when our finances permitted. The development involved using bulldozers to clear native vegetation from country that we had previously used for grazing, and clearing that country to cultivate crops.
His description of the clearing which he has caused and which gave rise to the charge to which he has pleaded guilty was addressed, later in his affidavit, in the following terms: My decision to develop "Brynaman" 29. At the time that we purchased "Brynaman" there was publicity about the repeal of the Native Vegetation Act. 30. In 2014, the local state Members of Parliament and other senior National Party officers assured farmers that the native vegetation laws were in the course of being amended, and that clearing native vegetation would again be lawful after the government had amended the law. They also intervened on behalf of a number of farmers to prevent their prosecution by the OEH. 31. I was honestly but mistakenly of the belief that I would not be prosecuted for again developing country as we done in the 1980s. I admit that I was aware that before undertaking the clearing, I should have made further enquiries and consulted with Local Land Services or the OEH. I admit that I should not have simply relied on what the local Member of Parliament had said about the law changing. The development work 32. The clearing on "Brynaman" was undertaken by a contractor between January 2015 and early 2016. The development work that was done was to clear what I assessed as scrub and small regrowth timber to plant pastures for livestock and rotational cropping.
The Prosecutor submits that I should conclude that the clearing was carried out for the purposes of financial gain as a factor of aggravation, which, if proved to the criminal standard, increases the objective seriousness of the offending conduct and, hence, the penalty liable to be imposed for undertaking it.
It is clear, from the Defendant's own evidence concerning the reason for the "development activities" that effected the clearing of ~ 500 ha on "Brynaman" that this clearing was undertaken to enable expanded grazing and/or cropping activities to be undertaken on a greater area of this property, then would have been available had the land management activities merely been conventional ones addressing the rundown state of this property as it was when it was purchased.
However, it was submitted on behalf of the Defendant that I should not find that financial gain was, in the relevant sense of s 21A(2)(o) of the Sentencing Procedure Act had been established. The reasons advanced for this proposition can be seen, clearly, in the written submissions on the Defendant's behalf. The relevant element of these submissions, at (22), was in the following terms: The only statutory aggravating factor relevant to the present case is that, in a somewhat equivocal sense, the offence was "committed for financial gain" - Sentencing Procedure Act S.21A(2)(o). Clearing is impliedly and normally done to improve the commercially productive prospects of agricultural land, even if motivated by "improving" the land for other, e.g. environmental, reasons: Rae [2009] NSWLEC 137 at [11]-13]. It is more appropriately considered as a factor warranting general deterrence. In Lee v R [2019] NSWCCA 15, dealing with an offence of identity fraud under the Crimes Act, Price J (with whom Hoeben CJ at CL and Rothman J agreed) said at [55] that: (W)here an inherent characteristic of the class of offence charged is financial gain, it has been held that financial gain must not be treated as an aggravating factor unless the financial gain was significant and above that expected in the lowest level of offending for that type of offence: (Prculovski [2010 NSWCCA 274; Huang [2017] NSWCCA 312 at [61 - 62]. Indeed, it is to be inferred from the reasoning of Howie AJ in Prculovski at [43] that financial gain was seen as a concomitant of planning or organising a criminal activity under the next paragraph of s.21(2) of the Sentencing Procedure Act.
I am unable to accept this submission.
First, the Defendant's own evidence acknowledges that the clearing was carried out for the purposes of property "development", an activity engaged for the purposes of enhancing the grazing and/or cropping capability of "Brynaman".
Second, the nature of the offence with which the Defendant has been charged (the relevant statutory provision having been set out earlier at [8]) does not include any express or implied term that such clearing needed to have been carried out for financial gain.
Third, the consistent approach taken in analogous circumstances (Director-General of the Department of Environment and Climate Change v Rae at [47] - [49]; Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 at [187] - [189]; and Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141 at [148] and [149]) has been to conclude, in circumstances effectively identical to those present in this instance, that the clearing was carried out for financial gain and that this constituted a factor of aggravation increasing the objective seriousness of the offending conduct.
For these reasons, I reject the submissions advanced on behalf of the Defendant and conclude that I am satisfied, beyond reasonable doubt, that the Defendant's clearing on "Brynaman" was carried out for financial gain, thus constituting a second factor of aggravation increasing the objective seriousness of the Defendant's offending conduct.

[23]

Was the Defendant reckless?

A defendant's conduct is to be classified as reckless if he is put on notice, in the sense that he believes or suspects, that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSLEC 150 at [141]).
The Prosecutor submitted (footnotes omitted): 36. The offence against s 12(1) of the NV Act is a strict liability offence so mens rea is not an element of the offence. However, the state of mind of an offender at the time of the offence can have an effect of increasing the moral culpability of the offender and therefore the objective seriousness of the offence. A large degree of premeditation will make an offence more serious than if it is committed on the spur of the moment. 37. Mr Boyle appears to cite some reliance on what he was told by others, namely local politicians, about his understanding of the state of the law when he committed this offence. He said he knew the law was "in the course of being amended" yet he made the conscious decision to clear the land without making proper enquiries. He personally assessed the land as "scrub and small growth timber" without any professional assistance from a lawyer or an ecologist or the Office of Environment and Heritage. He admits that he should have made further enquiries and consultations.
The Prosecutor then quoted from Rummery at the point I have noted above and continued: 39. Proper inquiries, which could have been undertaken by Mr Boyle any time over the course of 2 and half years, would have revealed that the clearing was unlawful. 40. It is submitted the evidence indicates that Mr Boyle closed his mind to the possible illegalities of his actions and was reckless in his conduct.
Although (31) of the Defendant's affidavit is to be considered (as I have) in the narrow confine of the risk of environmental harm, I do not consider, on fine balance, that the inference of recklessness, proved to the criminal standard, is to be drawn from it and the other material cited by the Prosecutor. Hence, this cannot increase the objective gravity of his offending conduct.

[25]

Introduction

In these proceedings, both the Prosecutor and Mr Littlemore made submissions proposing how I should characterise the Defendant's offending conduct. These submissions were contained in each of the written submissions and the Prosecutor and Mr Littlemore expanded on these during the course of their oral submissions. The respective positions can be understood from the relevant portions of the written submissions and it is unnecessary to undertake an analysis of that which was advanced orally.
It is customary, when sentencing for environmental offences, to describe where the relevant offending conduct might fall within a range which might be defined as running from minor offending conduct through to that which could be characterised as being toward the worst type of conduct (noting, however, that it is not appropriate to characterise conduct as being the worst case as it is always possible to hypothesise something that is even less acceptable (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 at [478])).
It is also to be noted that such a process of characterisation is not one of mathematical precision warranting identification on some statistical basis (such an approach was expressly disapproved by the Court of Criminal Appeal in Camilleri's Stock Feeds).
Mr Littlemore also set out what penalty he considered were appropriate to be imposed for these two offences (a course of some precision not available to the Prosecutor, see Barbaro v The Queen, Saveio Zirilli v The Queen [2014] 253 CLR 58; [2014] HCA 2). 44. While in a particular case it may be relevant to the penalty that the offender has extensive holdings in a local area, and consequently for purposes of deterrence there is a need for penalties … substantial enough to deter others, as well as (the offender) himself, from clearing native vegetation, particularly in this area, where unlawful clearing appears to have been an ongoing concern for the community. (Kurstjens [2017] NSWLEC 54: at [92]) 45. such a consideration is inapplicable in the present case, given the profound subjective effect so evident from the offender's own evidence, and his referees' testimonials. Further, 'others … in this area' are demonstrably well aware of this offence, and will be equally well informed of the sentence imposed on Mr Boyle. It is plainly unnecessary to aggravate the penalty to achieve either objective of the deterrence factor. 46. It is submitted that these are the elements, objective and subjective, warranting a substantial discount of the sentence in the present case: a) The Court will have regard to the Appendix of comparable cases, especially the $200,000 mark set by the more serious cases of Rae and Graymarshall, and the $160,000 gross fine imposed in less serious cases, such as Turnbull. b) the Defendants' offence is objectively in the middle range of "moderate", indicating a fine towards 15 to 20% of the maximum: EPA v Orange City Council; i.e. $165,000 - $200,000. c) The very early entry of a plea of guilty - which is a matter of objective fact - entitles the offender to a penalty discounted by 25%, i.e. a reduction to $123,750 - $150,000. d) Further, the statutory subjective factors set out below are extremely strong and warrant further reduction of the penalty that might otherwise apply: (i) absence of prior criminality - which is conceded by the prosecution; (ii) acceptance of responsibility; (iii) prior good character of an exceptional degree, over a lifetime; (iv) profound and patent contrition and remorse as demonstrated inter alia by the plea of guilty; (v) the inconceivable prospect of any further such offence; (vi) the implicit and punitive material cost of remediation; and (vii) very significant utilitarian assistance to authorities on a number of levels, including cooperation with the investigation and prosecution processes, and agreement on the quantum of costs to be paid.
The reference to EPA v Orange City Council is to the quite mathematically structured approach proposed by Stein J in Environment Protection Authority v Orange City Council (unreported, Land and Environment Court of New South Wales, 23 June 1995), where he wrote, at page 7: The lowest end of the range should be seen as between 0 and 10% which translates in dollars to between 0 and $12,500. The highest end of the range may be seen as between 80 and 100% that is between $100,000 and $125,000. Between these ranges, lowest to highest, there might be seen to be mid-range of penalty available. This perhaps would include between say 30 to 60% or between $35,500 and $62,500. You will note that when I dealt with what I regard as the lowest end, the highest end of the range and the mid-range, this leaves in between two other zones or areas. One would be between 60 and 80%, which I suppose could be termed, for want of a better word, mid to high. The other, from the lowest to the mid-range of between 10 and 30%.
That approach was discussed by the Court of Criminal Appeal in Environment Protection Authority v Middle Harbour Constructions Pty Limited (2002) 119 LGERA 440; [2002] NSWCCA 123 where Beazley JA (as her Honour then was) said, albeit obiter: 14. In the present case, the appellant submitted before the trial judge that this fell "in the low range but not the lowest range of the penalty". Counsel for the respondent submitted that the range was within the 0-10% category, or to adopt Stein J's terminology, a penalty at the lowest end of the range. 15. It needs to be stressed that Stein J's reference to a percentage scale in EPA v Orange City Council was a guarded attempt to articulate the degree of seriousness of the offence he had under consideration, and presumably, to provide some guidance in other matters. His Honour's remarks were not intended to be prescriptive and should not be so understood. 16. What is necessary in each case to determine what is the appropriate penalty taking into account all relevant matters, being the matters prescribed by statute and any aggravating or mitigating circumstances of the offences…
For my own part, I wrote recently, in Environment Protection Authority v Viva Energy Pty Ltd [2019] NSWLEC 13 at [112] to [114] (Viva), of my preference for a more descriptive approach. The more descriptive approach, whether in the structured form I prefer or in a less settled but nonetheless descriptive framework adopted by others, reflects the necessary imprecision of the instinctive synthesis process to be undertaken when weighing up the objective factors (including, here, two factors of aggravation) of the offending conduct and the Defendant's subjective factors.

[30]

The Defendant's character - s 21A(3)(f)

Set out in the Defendant's affidavit, at (19) to (23), is a list of the volunteer functions he has undertaken and activities he has supported in his local and regional community. It is unnecessary to list the range of positions he has held in various agricultural or community organisations, it is sufficient to note that it is an impressive list of such activities over a lengthy period of time. These community contributions also stand to be weighed in his favour in my sentencing consideration. Although he refers to the commendable community activities of his wife (at (19) and (24)) and his sons (at (24)), those activities are not of relevance in my sentencing consideration of his culpability and appropriate punishment.
In addition, fifteen character testimonials were provided to support the Defendant. These testimonials, together, became Exhibit 1.
Mr Littlemore's submissions concerning these references were: 39. The testimonial letters tendered by the offender are quite phenomenal in their unequivocal judgment that the offence is wholly uncharacteristic. What they depict is a greatly respected leader in his own community, a selfless, honest, generous, sincere and moral man who has been revered for his service to the district surrounding Moree, Garah and Mungindi - both societally and industrially. Those who know him best, and over a lifetime, speak of his inspiration for young famers and his practical assistance to them; his enthusiasm for enlightened farming practices; and his conscientious concern for the welfare of the land.
I have carefully read those testimonials. First, it is appropriate to note that each of the authors providing such a supporting document acknowledged that they had been made aware of the charge to which the Defendant had pleaded guilty and that each testimonial was offered in circumstances where the author considered that the Defendant's criminal behaviour was out of character with the person that they knew. Each of the authors spoke positively of the Defendant and his contribution to his community. To the extent that these testimonials speak as to the regard in which each author holds the Defendant, they provide evidence of matters to be weighed in the Defendant's favour in my sentencing assessment.
However, it is also necessary to consider, in the context of the extent to which the Defendant has (or has not) expressed genuine contrition and remorse for his offending behaviour and the extent to which specific deterrence in sentencing for this Defendant is required, elements of these references in a little detail. That is dealt with in the following two sections of this consideration of factors engaged pursuant to s 21A(3) of the Sentencing Procedure Act and is also discussed in the context of my conclusion on the Defendant's subjective factors.

[34]

The Defendant's submissions on contrition and remorse

The written submissions on behalf of the Defendant contained two elements relevant to this topic. The first was in the following terms: 30. Further, the offender's referees have no doubt about his remorse and contrition (quite independently of the remediation factor discussed below). He has endured the humiliation and embarrassment of speaking about his offence to every one of them, and told them of the ever-present shame he feels, as he says in his own evidence, of finding himself in conflict with the criminal law. Plainly, what has greatly hurt has been what he perceives to be the effect of his offence on the Boyle family and its good name.
The second was in the following terms: Remorse, contrition and remediation 34. The fundamental evidence of contrition is the offender's guilty plea. 35. Mr Boyle has been served with a remediation notice, and has agreed with the prosecutor on the appropriate remediation measures, which in this case amount to providing other land which retains the characteristics of the cleared vegetation. To this extent, the defendant has taken steps to mitigate the identified environmental harm. 36. This Court has accepted that setting aside land outside the area cleared is capable of satisfying the environmental objectives underpinning the requirement to remediate. 37. As Preston Ch J said in Waste Recycling [2006] NSWLEC 419 at [203] - [204]: Contrition and remorse will be more readily shown by (offenders) 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: ... 38. Offering up land with vegetation in reasonable condition along the watercourse for preservation and management for positive environmental outcomes may be taken as proof of a commitment to the restoration of some of what was lost as a result of the clearing.
As earlier noted, there was the statutory power to impose such a remediation order quite separate from any function I am undertaking in these proceedings.

[36]

Relevant paragraphs from the Defendant's affidavit

In this instance, it is appropriate to set out the relevant elements of the Defendant's own affidavit evidence (which evidence stands uncontradicted in these proceedings) and elements of the testimonials in Exhibit 1. 35. Since the investigation into the development work that I had undertaken on 'Brynaman' commenced in or about October 2016, I have not had a good night's sleep, so concerned have I been about the outcome of this prosecution. I have never expected to find myself in conflict with the law. 36. I have read the material that has been served in this case by the OEH, and I accept that the clearing on 'Brynaman' may have an impact on the environment of the farm and the surrounding area and affect the habitats of native animals. 37. An article was published in the Sydney Morning Herald on 10 March 2018 which made reference to our case. Annexed hereto and marked ACB-1 is a true copy of the said article. 38. After the article was published, I received many telephone calls about the matter, causing Suzie and me to be very embarrassed and to suffer social humiliation. I am ashamed to be declared guilty of an offence. I have also seen that the matter has had an adverse impact on my son Charles, which I deeply regret. 39. It is quite clear to me that traditional attitudes of government and landholders to the about development of farming land can no longer be sustained. It was only 20 years ago that we received government subsidies for doing the same kind of clearing work that I am now to be sentenced for, and that has been a very radical change for me to accept. I do accept that law is different now in a way that I had not appreciated properly or at all at the time of the clearing. …. 41. I am deeply disappointed that my last active involvement in farming is to deal with a prosecution for unlawful clearing. I keenly feel that by taking a convenient course I have let down not just myself, but also my family. 42. I feel it is important to say that the clearing was not motivated by greed or commercial exploitation, but rather by a desire to resolve the future of the property and achieve fairness between Charles and Thomas in relation to our succession planning and handing on the farms. 43. As I no longer have any real or active involvement on the farms, I should express my regret that it will be Charles and Thomas who will have to come to terms with and deal with the remediation work resulting from the clearing for which I was responsible. 44. In relation to 'Brynaman' there remain 3,100 acres of untouched native vegetation on the property and there will also be a remediation area of the areas that were unlawfully cleared. It is my sincere hope that preservation and remediation will ensure that there is no permanent detriment from the clearing I undertook.
"Accepting" that there "may" (see his (36) above) have been impacts hardly shows any understanding of the environmental harm his actions have caused. It is to be observed that "sorry" is entirely absent from the above extracts. The final sentence in (44) is the closest a reader could come to seeing regret for the damage to the environment caused by his offending conduct of native vegetation clearing.
Nowhere in the above material is there anything which could be regarded as any genuine contrition for the substantial environmental harm caused by the vegetation clearing he caused to take place.

[38]

The testimonials

I have earlier indicated that the testimonials, to the extent that they reflect the authors' opinion of the character of the Defendant, are to be accepted on the basis of reflecting the genuinely held opinion of the relevant author.
However, to the extent that those testimonials seek to recount what the Defendant may have said concerning his offending conduct, they are to be treated with caution.
As can be seen from the relevant portions of each of the references reproduced in the table below, what is said by each referee is not an attempt to recount, in direct speech, precisely what the Defendant said to each of his referees when discussing his offending conduct - it is that person's interpretation of what was said. This, even if the extracts reproduced were to be accepted, limits their utility for the purposes of me obtaining an understanding of what was in the Defendant's mind during his discussion with each of his referees. The relevant matters, extracted from each of the references contained in Exhibit 1, are set out in the table below: Referee Relevant comment Tim Poole (Page 1) "Mr Boyle has expressed to me his regret in not first gaining approval for this clearing. This is very clearly an issue that has caused huge emotional stress to the family, and one they realise could have been avoided." Peter Birch (Page 3) "Charlie now realises that going through the correct channels and procedures and applying for permission to remove some native vegetation would have been a much better strategy." Tom Keene (Page 4) "He expressed to me his regret for this action and is remorseful this has occurred. His contrition and level of embarrassment over the unlawful clearing is genuine and in turn a reflection of his fundamental good character…" E.S Henry (Page 7) "Charlie has accepted he has broken the law in discussions with me. He has pointed out that changes to regulations…resulted in confusion regarding landholder responsibility…He does however understand that not gaining prior approval to clear the land is a misdemeanor on his part." Richard Cummins (Page 9) "Charlie is well aware of the damage to his excellent reputation by clearing land illegally. He thought he was 'cleaning' unproductive country….rather than 'clearing'. He is aware he has done the wrong thing in not seeking approval beforehand…Charlie is remorseful for illegally clearing the land without approval…" Paul Fisher (Page 11) "It is obvious to me from our discussions that Charlie realises he should have obtained relevant approvals prior to carrying out any clearing. I understand that Charlie was under the misapprehension that the law was going to be changed, and acted on that basis…" Annette Wiliamson (Page 12) "Charlie realises now he should have obtained permission to clear the land before starting to selectively clear the country and he appears to be very remorseful for his actions." Jon Churven (Page 14) "There is a remorsefulness which has affected the whole family, an extremely close family and there is no doubt that he realises approval should have been sought prior to any clearing." Maurice Killen Hickson (Page 15) "He told me how he now realizes that he should have obtained approval prior to any timber clearing. He fully realizes that he has broken the law." Austin Kelly (Page 16) "I have had brief and general discussion with he and his wife about the charge against him…and they are both remorseful and realise the importance and severity of the charge." DH Hickson (Page 18) "I am sure that not a moment goes by that he doesn't regret what he did and he now realizes that he should have obtained approval prior to any clearing!" P.J Done (Page 20) "He is very upset with what has occurred…He now understands that he should have sorted out exactly what approvals were needed/required before he launched into the works he felt were required." Michael Standish (Page 22) "…it is clear that he is extremely distressed that the clearing of land was unlawful and is concerned at the impact this may have on the reputation of the family and the continuing operation of the farms by his children…" Peter Prosser (Page 23) "…I believe it has had a huge impact on himself and his family, particularly as there has been little chance of income…This coupled with a prospective large fine has had a devastating impact on him both mentally & financially. Charlie has indicated to me that he is quite remorseful of his actions and now realises that he should have obtained approval for land clearing…" Terry Cotton (Page 25) "…he has reflected on how this issue has had a substantial effect on his wife, his children and their young families…I know Charlie is now of the opinion that he should have gone through the relevant authorities to achieve the desired result…"

[44]

Objective seriousness

The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71], [168]-[169].
In Plath v Rawson, Preston CJ set out the circumstances to which the Court may have regard in determining the objective seriousness of an offence. He said (at [46]-[47]): The primary consideration in sentencing is the objective gravity or seriousness of each offence. The objective gravity fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportional to the gravity of the crime considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence: Gittany [Construction Pty Ltd] v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [108], [109] and cases therein cited. The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [4]-[6] and Graham v The Queen [2009] NSWCCA 212 at [43], [44]. In assessing the objective gravity or seriousness of the offence, the sentencing court may have regard to not only the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander, but also circumstances which are personal to the offender at the time of the offence which become objectively relevant because of their causal connection with the commission of the offence. These include the mental state of the offender and the reasons for committing the offence: see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]-[86].

[46]

Comparability in sentencing

In their written submissions and during the course of their addresses, both the Prosecutor and Mr Littlemore referred to a range of cases that each said might provide some guidance to me as to the appropriate sentence which might be imposed on the Defendant. Although many of those cases were in common to their positions, a number were also cited by one but not by the other.
A full list of those cases to which I was referred is set out in the table that comprises Appendix F to this decision. The table sets out the name of the case to which I was referred; who made reference to it; the extent of the unlawful vegetation clearing undertaken by the defendant in each instance; and the penalty which was imposed for that clearing.
I have carefully read each of the decisions to which I have been referred.
First, it is to be observed that the sentencing exercise I am undertaking involves my consideration of the objective seriousness of this Defendant's conduct coupled with all the relevant subjective factors peculiar to this Defendant. The instinctive synthesis to be undertaken, having regard to this mix, is necessarily peculiar to the facts and circumstances involved in these proceedings.
Second, although to some extent, consideration of other sentencing outcomes may be regarded as reflecting penalties imposed within a relevant broad range of the sentencing outcomes potentially available, these, at most, provide, if apparently of likely relevance, merely guidance on how the facts and circumstances applicable to this Defendant and his offending conduct might be considered.
Having carefully considered all of the earlier decisions to which I have been referred by the Prosecutor and/or Mr Littlemore, it seems to me that only the decisions in:

Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (Preston CJ);
Director-General of the Department of Environment and Climate Change v Rae (Preston CJ); and
Director-General of the Department of Environment and Climate Change v Hudson (No 2) (Pepper J) have sufficient resonance to provide some guidance to me, in a broad sense, concerning the outcome appropriate in these proceedings.

Although each of these decisions have idiosyncratic factors that caused the sentencing judge to determine the appropriate penalty to be imposed in each instance, each provides an appropriate basis to understand why offending conduct constituting comparatively broadscale native vegetation clearing and the attendant environmental harm warrants the imposition of a very substantial financial penalty for that unlawful activity.
As I have noted, the facts and circumstances of the offending conduct differ in each instance as to the subjective factors for each defendant (as is also the position in these proceedings), broad guidance is available on what might be an appropriate starting penalty to be derived from my instinctive synthesis of all relevant factors concerning this Defendant and his unlawful conduct.
I have carefully considered each of these cases and their punitive outcome. I have read each of the judgements giving rise to the nominated penalty in each instance. Whilst they provide a very broad framework, there is limited consistency between them. Self-evidently, the sentencing exercise undertaken in each instance turned on the facts and circumstances of the offending conduct and the subjective factors engaged for each individual defendant.
As a broad conclusion, it seems to me that the nature of the environmental harm occasioned by the clearing undertaken by this Defendant (to be regarded as a factor of aggravation for the reasons earlier set out) when coupled with the second factor of aggravation (namely that the native vegetation removal in this instance had clearly been undertaken for the purposes of achieving a financial benefit by being able to use the cleared land for grazing and/or cropping purposes) together with my assessment of the overall conclusion to be drawn with respect to the Defendant's subjective factors, the appropriate starting penalty for this defendant should be a significant one.

[48]

The Defendant's guilty plea

I have earlier set out the terms of s 22 of the Sentencing Procedure Act, the provision that engages my assessment of the utilitarian value to the administration of justice arising as a consequence of the guilty plea entered by the Defendant on 12 October 2018. As was properly conceded by the Prosecutor, I additionally have regard to the fact that, on 31 August 2018, the Defendant's legal representatives conveyed to the Prosecutor's legal representatives that the Defendant intended to plead guilty but that the terms upon which he was prepared to do so remained to be settled.
The maximum discount on the otherwise applicable starting penalty to be afforded to a Defendant who has pleaded guilty is 25% (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383). The full measure of this conventionally maximum discount is afforded to those defendants who enter a guilty plea at the earliest opportunity. In these proceedings, there is a contest between the parties as to whether the indication by this Defendant of an intention to plead guilty, followed by the subsequent entry of that plea, should entitle him to the maximum discount of 25%.
The Prosecutor, in oral submissions, put that the plea should not be regarded as having been entered at the earliest opportunity and that the discount which should be afforded to the Defendant should be somewhere in a range between 15% and 20%.
On the other hand, Mr Littlemore submitted that I should regard the Defendant's plea as having been entered at the earliest opportunity and thus he had an entitlement to a full discount of 25% (see earlier at [78]).
During the course of his oral submissions, he emphasised that there had been an earlier notification of the intention to plead guilty, even though the formal plea to this effect was entered some 6 weeks' later. Although the plea was entered formally at a mention before the List Judge on 12 October 2018, Mr Littlemore submitted that the notification of the intention to do so would have had utilitarian value in lessening the extent of preparation necessary for the Prosecutor's case.
Although I am unable to accede to the proposition that the Defendant's plea was entered at the earliest possible occasion, I am satisfied that there was significant utilitarian value to the system of justice in two aspects of the finalisation of this prosecution.
First, there was the indication of the intention to enter the plea which, I am satisfied, would have lessened the preparation burden on the Prosecutor for the preparation for trial of these proceedings.
Second, it is also to be observed that the sentencing hearing itself, being conducted for the Prosecutor entirely on the basis of the SoAF meant that the processes for the Court were confined to a sentencing hearing (one conducted efficiently in half a day), rather than what would have necessarily been a far longer trial had the question of the Defendant's guilt been contested.
My assessment of the utilitarian value of the Defendant's guilty plea causes me to be satisfied that a significant discount should be afforded to him in these circumstances.
However, despite Mr Littlemore's submissions, I am unable to conclude that the plea should be regarded as having been entered at the earliest opportunity and thus the maximum discount afforded.
On the other hand, I am also of the view that the range proposed by the Prosecutor is unduly restrictive and would not, even with a discount at the maximum proposed by the Prosecutor, adequately reflect the value of the guilty plea in these proceedings.
Doing the best I can, under the factual circumstances here applicable, I am satisfied that the Defendant is to be given a discount of 22.5% on what would be the otherwise appropriate starting penalty to reflect his offending conduct.

Chief Executive, Office of Environment and Heritage v Boyle

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (54 paragraphs)

Parties

Cases Cited (34)

Cited By (18)