Chief Executive, Office of Environment and Heritage v Brummell

Land and Environment Court (NSW)|2019-07-30|Before: Preston CJ

y Thomas Brummell (Defendant) Representation: Counsel: Ms A Bonnor (Prosecutor) Mr R Ranken (Defendant)

Solicitors: NSW Department of Planning, Industry and Environment (Prosecutor) Webb and Boland Lawyers (Defendant) File Number(s): 2018/144293 Publication restriction: Nil

The objective circumstance of the case

In determining the objective gravity of the offence committed by Mr Brummell, the Court may consider: the nature of the offence; the maximum penalty for the offence; the harm caused to the environment by commission of the offence; the state of mind of the offender in committing the offence; the offender's reason for committing the offence; the foreseeable risk of harm to the environment by commission of the offence; the practical measures to avoid harm to the environment by commission of the offence; and the offender's control over the causes of harm to the environment.

Nature of the offence

The objective seriousness of the offence committed by Mr Brummell is informed by the nature of the contravened statutory provision and its position in the statutory scheme. Regard should be had to the objects of the Act and of the contravened statutory provision, and the degree to which the offending conduct contravenes these objects: Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140 at [22] and Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15].
The objects of the NV Act are stated in s 3 to be: "(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."
The principles of ecologically sustainable development are described in s 6(2) of the Protection of the Environment Administration Act 1991 to involve the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation pricing and incentive mechanisms, including the polluter pays principle. The principle of conservation of biological diversity and ecological integrity is a fundamental consideration in the administration of the NV Act. For an explanation of the principles of ecologically sustainable development and the principle of conservation of biological diversity and ecological integrity in particular, see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [56]-[63].
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 this 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.
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 actions of Mr Brummell in clearing native vegetation on the property without the authority of either a development consent or a property vegetation plan offended against the legislative objective expressed in the statutory offence (s 12 of the NV Act) and thwarted the attainment of the objects in s 3 of the NV Act. As found below, the native vegetation cleared had high conservation value and contributed to biodiversity, the effects were similar to broadscale clearing in the parts of the property that were cleared and did not improve or maintain environmental outcomes, and the commission of the offence caused actual environmental harm of medium significance. The actions of Mr Brummell in clearing native vegetation on the property, and the consequences of his actions, ran counter to the objects of the NV Act and were not in accordance with the principles of ecologically sustainable development, for reasons analogous to those given in Bentley v BGP Properties Pty Ltd at [65]-[71], [169]-[171].

Maximum penalty for the offence

The maximum penalty for the offence against s 12 of the NV Act is a public expression by Parliament of the seriousness of the offence and provides a sentencing yardstick for determining the appropriate sentence for the offence committed by Mr Brummell.
At the time of commission of the offence, the maximum penalty prescribed was $1,100,000: s 12(2) of the NV Act which referred to s 126(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act"). Section 126(1) of the EPA Act was amended on 31 July 2015 by the Environmental Planning and Assessment Amendment Act 2014. The former provision continues to apply to an offence against s 12(1) of the NV Act after that date by force of Sch 1 cl 44 of the Environmental Planning and Assessment (Offences and Enforcement) Regulation 2015 and Sch 4 cl 44 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017.

Harm to the environment

The clearing of the native vegetation on the property caused actual environmental harm. The areas cleared of native vegetation comprised 423ha of the 606ha of the property (around 70%).
Prior to the clearing, the native vegetation was of varying vegetation density, from the "isolated plants" category through to the "sparse or open" category. The clearing has removed a large majority of the pre-1990 woody vegetation from the cleared areas of the property. The native vegetation cleared was agreed not to be in a low condition.
The clearing of native vegetation comprising part of the endangered ecological community of Coolibah-Black Box Woodland in the Darling Riverine Plains, Brigalow Belt South, Cobar Peneplain and Mulga Lands Bioregion was not carried out consistently with recovery actions for that community recommended by the Office of Environment and Heritage. The clearing has had a potentially significant detrimental impact by: 1. reducing the available genetic resources of important functional species within the ecological community; 2. removing important fauna habitat features (including canopy cover, shrub cover, tree hollows and/or fallen timber); and 3. increasing fragmentation of these ecological communities.
The native vegetation in the cleared areas provided important resources and ecological functions to maintain the health and regenerative capacity of vegetation communities in the locality and region.
As a result of the clearing, it was agreed that: "a. Eucalyptus trees between 5-9cm diameter at breast height (dbh) were affected. These trees represent a functional, self-sustaining ecological community. These trees are likely to be less than five years old and could be argued to be 'regrowth' as defined in the Native Vegetation Act 2003. b. Non-Eucalyptus trees less than 5cm, 5-9cm and 10-19cm dbh were affected, this removed regenerating trees and affected the biological diversity of the community affected. These trees are likely to be less than ten years old and could be argued to be 'regrowth' as defined in the Native Vegetation Act 2003. c. Eucalyptus trees 20-29cm dbh were affected. These trees are less likely to possess tree hollows but may have dead stags, fissures in bark or other habitat refuge. These trees are likely to be less than 50 years old but were likely alive before 1991 (not regrowth). d. Eucalyptus trees 30-49cm dbh were affected. These trees have potential to possess small and less likely medium size tree hollows. These trees are likely to be less than 80 years old but were likely alive before 1991 (not regrowth). e. Eucalyptus trees 50-79cm dbh were affected. These large trees have potential to possess small and medium size tree hollows and, less likely, large tree hollows. These trees are likely to be more than 100 years [old]. f. Eucalyptus trees 80cm + dbh were affected. These very large trees are highly likely to possess small, medium and large tree hollow size classes. These trees are likely to be more than 200 years old. g. Trees with hollows less than 20cm in diameter were affected. This size of tree hollows is an important breeding resource for listed tree hollow dependent species in PCT 39. h. Trees with hollows more than 20cm in diameter were affected. This size of tree hollows is an important and hard to replace (over 100 years) breeding resource for listed tree hollow dependent species in PCT 39."
Removal of the native vegetation in the cleared areas may affect other biota by affecting breeding, dispersal, soil chemistry, feeding and resting resources. Further, the loss of hollow bearing trees in the cleared areas has the potential to cause long term damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to form, with prominent hollows mainly confined to trees over 100 years old.
The removal of all or most of the local population of trees, shrubs and ground layer in the cleared areas may affect the ecological interactions in these areas and in the surrounding area that are no longer part of the joined, contiguous ecosystem.
Whilst there had not been a systematic survey of fauna on the property or surrounding areas before the clearing occurred, the same plant community type in the same condition as that affected by the clearing could be expected to provide habitat to 41 threatened species of fauna and seven threatened species of flora.
The clearing of the native vegetation on the property has removed an area of mature habitat for the threatened species of fauna that is important for the continued survival of possible local populations.
The environmental harm caused by the clearing of native vegetation on the property is intended to be mitigated by an order to carry out remediation work issued by the prosecutor to Mr Brummell on 28 June 2019 under s 11.15 of the Biodiversity Conservation Act 2016. The order would require remediation of the cleared areas of the property, including by sowing with native grasses and regeneration or alternatively planting of over-story species in these areas. Mr Brummell has appealed against the order to this Court under s 11.23 of the Biodiversity Conservation Act 2016. The appeal has not yet been heard. The issues of whether there will be remediation of the cleared areas and the nature and extent of any remediation therefore remain unresolved at this time.
The prosecutor submitted that these environmental impacts of the clearing were "substantial" for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Act"). The prosecutor submitted that the substantial nature of the impact on the environment caused by the clearing is established by four features.
First, the scale of the clearing. The areas cleared of native vegetation comprised 423ha, at least 25 species of native vegetation were removed, affecting 58 identified fauna and flora species listed as threatened that were associated with the habitat. The lost habitat was important and mature. The clearing removed a large majority of the pre-1990 woody vegetation from the cleared area.
Secondly, the status under legislation of the cleared areas and affected endangered ecological community. An ecological community is an assemblage of species occupying a particular area and interacting ecologically. The cleared areas comprised part of the listed endangered ecological community of Coolibah-Black Box Woodland in the Darling Riverine Plains, Brigalow Belt South Cobar Peneplain and Mulga Lands Bioregion.
Thirdly, the ecological and conservation value of the native vegetation in the cleared areas. Conservation value considers the vegetation's capacity to support a diversity of flora and fauna. The native vegetation in the cleared areas provided important resources and ecological functions in maintaining the health and regenerative capacity of vegetation communities in the locality and the region. Much of the native vegetation cleared had likely been continuously present since 1 January 1990. The native vegetation cleared provided habitat for a large range of species of native fauna, including birds, reptiles, bats and koalas and other mammals. Trees affected ranged from young trees to, most significantly, very large trees, which were highly likely to contain hollows and be more than 200 years old. Trees with such prominent hollows of greater than 20cm diameter were affected - these important breeding resources are mainly confined to trees over 100 years old. The loss of hollow bearing trees causes substantial long term damage to wildlife habitat because of the period required for hollows large enough to be useful for wildlife to form.
The vegetation that existed was not in low condition. The majority of trees cleared had intact crowns of varied diameters, which would have provided foraging and nesting resources for the wide variety of fauna known to occur in the plant community type PCT 39. In addition to the detriment caused in the cleared area itself, removal of all or most of a local population of trees, shrubs and ground layer detrimentally affected the ecological interactions in the surrounding areas that are no longer part of a joined, contiguous ecosystem. Wider impacts may include detriment for breeding, dispersal, soil chemistry, feeding and resting resources.
Further, the vegetation that was cleared was intrinsically of high conservation value given that PCT 39 is part of an endangered ecological community.
Fourthly, the nature of the clearing. It was not carried out consistently with recovery actions for PCT 39.
Mr Brummell accepted that the clearing had caused the various environmental impacts agreed in the statement of agreed facts and summarised above. However, Mr Brummell noted that none of the 25 species of native vegetation recorded as having been cleared on the property was itself listed as threatened under the current Biodiversity Conservation Act or the former Threatened Species Conservation Act that was in force at the time of the clearing.
Mr Brummell also submitted that, while it is accepted that the native vegetation was of a kind that was capable of providing habitat for the listed species of endangered flora and fauna, there is no evidence that those particular flora and/fauna were present at the time that the clearing was carried out. Equally, there is no evidence that the potential adverse effects upon other biota referred to in the statement of agreed facts have in fact materialised.
I find that the clearing has caused actual environmental harm. The clearing removed all of the native vegetation in the cleared areas except for a few isolated clumps of trees and a thin line of vegetation along a dry drainage line. The clearing was of the nature and had the effect of broadscale clearing. The native vegetation cleared was of value in itself but also provided habitat for other species of fauna and flora, some of which are threatened species. The removal of habitat of numerous species of fauna and flora has caused impacts on ecological functioning and biodiversity.
The harm caused to the environment by commission of the offence is of medium significance and can be categorised as "substantial" under s 21A(2)(g) of the Sentencing Act. I agree with and adopt the prosecutor's submissions that the clearing has caused substantial environmental harm by reason of: first, the scale of the clearing (423ha of native vegetation were cleared, at least 25 species of native vegetation were removed, and 58 species of endangered fauna and flora were potentially affected); secondly, the status of the cleared native vegetation as part of an endangered ecological community under the former Threatened Species Conservation Act and the current Biodiversity Conservation Act; thirdly, the ecological and conservation value of the cleared native vegetation, including in providing habitat for endangered species of fauna and flora, the presence of trees providing habitat for fauna, including hollows in the trees for breeding of fauna, and in enabling ecological interactions and functions; and fourthly, the nature of the clearing being inconsistent with the recovery actions needed for the particular plant community type.
The causing of substantial environmental harm is an aggravating factor under s 21A(2)(g) of the Sentencing Act.

State of mind in committing the offence

Although the offence against s 12(1) of the NV Act is a strict liability offence, the state of mind of the offender in committing the offence can increase the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious that one not so committed: Director General, Department of Environment and Climate Change v Rae at [42].
In this case, Mr Brummell gave evidence that he did not look into the legality of clearing the vegetation from the property prior to undertaking the clearing. Mr Brummell said: "I accept that I did not look into the legality of clearing the vegetation from the property prior to the work being completed. It was my understanding that the law in NSW was being changed and that vegetation removal was once again allowed. The only enquiries that I made in this regard was to the local member of State Parliament and I recall that at a meeting of farmers he said words to the effect as follows: He said: 'We're going to get rid of the native vegetation laws and we're going to fix that area so farmers can again undertake farming and develop country'.
Mr Brummell continued that: "In hindsight I accept that I should not have relied on these comments from a politician and that I should have obtained either legal advice or advice from the LLS [Local Land Services] before the work was undertaken."
In oral evidence at the sentence hearing, Mr Brummell said that, although the local State MP for Barwon, Mr Humphreys, referred to the NSW government as "going to get rid of the native vegetation laws", Mr Brummell nevertheless understood him to be saying that the laws had already been changed. Mr Brummell said that at the time of the clearing, it was very early in his days of farming and he had not had any involvement with the native vegetation laws.
The prosecutor submitted that Mr Brummell either negligently or recklessly cleared the native vegetation on the property. The prosecutor submitted that for conduct to be criminally negligent, there needs to be a breach of a duty of care and failure to take relevant precautions or practical measures. The circumstances of breach or failure need to involve a sufficient degree of carelessness, disregard of the objects of the relevant statute, or indifference to the obvious risks as would warrant criminal punishment: Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [113]-[114].
The prosecutor submitted that for conduct to be reckless, the offender needs to be 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 and Climate Change v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271 at [126].
The prosecutor noted that Mr Brummell accepted that he did not look into the legality of clearing the vegetation. He stated that he understood the law in NSW was being changed and that vegetation removal was once again allowed. The only enquiries he made were to the local State MP, Mr Humphreys, after he had stated at a meeting of farmers that "we're going to get rid of the native vegetation laws and we're going to fix that area so farmers can again undertake farming and develop country". Mr Brummell indicated that he relied on the comments by Mr Humphreys and did not obtain advice before undertaking the clearing work.
The prosecutor submitted that, on this evidence, Mr Brummell's state of mind was negligent and there may be a basis to find that it was reckless.
Mr Brummell submitted that his conduct fell short of criminal negligence or recklessness. Mr Brummell accepted that he needed to seek approval prior to undertaking the clearing and that he failed to look into the legality of clearing the vegetation before he undertook the clearing. Although at the time he acted upon incorrect representations by the local State MP regarding the relaxation of native vegetation laws, Mr Brummell accepts now that he should not have done so and should have first obtained either legal advice or advice from the local land services. As such, Mr Brummell has accepted his responsibility for the wrongdoing.
Mr Brummell submitted, however, that this conduct did not involve "the degree of carelessness, disregard of the objects of the NV Act or indifference to the obvious risks as would warrant criminal punishment, let alone recklessness."
I find that Mr Brummell committed the offence negligently but not recklessly. The heightened mental states of negligence or recklessness apply to the external element of the offence of clearing native vegetation under s 12(1) of the NV Act of the absence of lawful authority in the form of a development consent or a property vegetation plan under the NV Act.
A critical difference between the two mental states 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).
Recklessness refers to the state of mind of the offender who, in clearing native vegetation, is aware of a risk that the particular consequence or circumstance, that the clearing will be done except in accordance with such lawful authority, is likely to result. The offender is reckless when he or she has knowledge or foresight of the likelihood of the consequence or circumstance occurring. The word "likely" conveys "the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent": Boughey v The Queen (1986) 161 CLR 10 at 21.
Negligence, in contrast, assesses the offender's conduct not be reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances. In the context of s 12(1) of the NV Act, negligence refers to whether a hypothetical reasonable person in the position of the offender would have known or foreseen that the consequence or circumstance, that the clearing will be done except in accordance with the lawful authority of a development consent or a property vegetation plan, is likely to result. The issue is to be decided on an objective basis. What is to be considered is whether the risk of this 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 degree of departure from the appropriate standard of care, in order to be negligent under the criminal law, needs to be such that the court, on an assessment of all of the facts, can conclude that failure to take the relevant precaution warrants criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 439 and see also NSW Sugar Milling Cooperative Ltd v Environment Protection Authority at 321, 325.
In this case, Mr Brummell was not subjectively aware that his conduct of clearing native vegetation on the property was in breach of the law. Mr Brummell said that at the time he cleared the native vegetation, it was still very early in his days of farming and he had not had any involvement with the native vegetation laws. Before undertaking the clearing, he had attended a meeting at which the local State member for Barwon, Mr Humphries, had said that the government was going to get rid of the native vegetation laws so that farmers could again undertake farming and develop their country. Mr Brummell said that he had understood Mr Humphries to be saying that the government had already done this, so that removing vegetation was once again allowed. For this reason, Mr Brummell made no further enquiries and did not seek advice about the native vegetation laws.
On this evidence, Mr Brummell did not have the necessary awareness of the risk that the particular consequence or circumstance, that the clearing of the native vegetation on his property might not be in accordance with the lawful authority of a development consent or property vegetation plan, was likely to result.
However, a reasonable person in Mr Brummell's position would have foreseen this risk. Mr Humphreys' statement was couched in the future tense: the repeal of the native vegetation laws was to be done in the future. Only when this was done would farmers be allowed to remove native vegetation on their property. A reasonable person would not interpret these statements to mean that these laws had already been repealed and the removal of native vegetation was already allowed to be carried out.
Mr Humphreys' statement also put the reasonable person on notice that there were native vegetation laws that prevented farmers from removing native vegetation on their property without lawful authority. A reasonable person in Mr Brummell's position, hearing this statement, would make enquiries about what were these native vegetation laws, how they regulated what farmers can and cannot do on their property and, in particular, whether the laws prevented clearing of native vegetation of the nature, to the extent and in the location proposed by Mr Brummell.
In these circumstances, an objective reasonable person in the position of Mr Brummell would have foreseen the likelihood that the proposed clearing of native vegetation on the property might be in breach of the native vegetation laws and would have made enquiries about these laws and sought advice as to the lawfulness of the proposed clearing. Mr Brummell's conduct fell so short of the standard of care of an objectively reasonable person in Mr Brummell's position that it was negligent to the criminal degree.
The commission of the offence negligently increases the objective seriousness of the offence.

Reasons for committing the offence

The carrying out of an offence to make a profit or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission, such as a development consent or a property vegetation plan, increases the objective seriousness of the offence: s 21A(2)(o) of the Sentencing Act and Director General, Department of Environment and Climate Change v Rae at [47] and [48].
Mr Brummell gave evidence that: "I made the decision at the end of 2013 that 'Glengarry' was suited towards farming more so than grazing due to the flat and open country which predominated 'Glengarry'. Teresa and I did not have any other farming country at that time and the decision to turn 'Glengarry' into farming country was partially to broaden our business operations and be better prepared for drought. As such, I organised for vegetation to be removed from the property and that process had been completed [by] February 2016. 'Glengarry' has subsequently been cropped with wheat, chickpeas, sorghum and oats for cattle grazing. We've only sold enough of the crops to cover our production costs. Most of the crops have been stored and used to feed our cattle. Without this source of feed, we would not have been able to maintain our cattle through the recent times of drought and our grazing operations would have been in peril. We would also have found it very difficult to recover financially from the cost of Teresa's medical treatment."
In oral evidence, Mr Brummell added a further reason for clearing the native vegetation, which was weed control. Mr Brummell said that weed control is difficult in treed country. The removal of all of the trees made chemical weed control possible.
The prosecutor submitted that the decision to clear and crop the relevant area was plainly to improve the agricultural productivity of the property. To this extent, the clearing was carried out for financial gain. However, whilst the prosecutor submitted that s 21A(2)(o) of the Sentencing Act was thereby engaged, in view of the overall circumstances, including the drought conditions and the high expense Mr and Mrs Brummell incurred for the medical treatment of Mrs Brummell, the prosecutor accepted that this factor ought not be given significant weight.
Mr Brummell acknowledged that the clearing was in part motivated by desire to broaden his business operations to include some farming and that he saw the flat open property of the country as suited to that purpose. However, Mr Brummell submitted that he was also motivated by a desire to be better prepared for the impact of drought upon his grazing operations. This is evident by the fact that he only sold enough of the crops planted on the cleared land to cover production costs, with most of the crops being stored and used to feed their cattle. This meant that they were able to maintain their cattle through the recent drought.
I find that Mr Brummell committed the offence of clearing native vegetation on the property for financial gain. Mr Brummell acknowledged that he cleared the native vegetation in order to turn the property into farming country. This not only broadened his agricultural business operations, but it also ensured that the business was better prepared for drought. By cropping the cleared areas, Mr Brummell was able to feed his cattle herd during drought times. The alternatives would have been to destock, selling his herd of cattle, or to purchase imported feed to feed his cattle. Both alternatives had downside costs. Destocking entailed the loss of his breeding stock. Importing feed risked introducing weeds from outside the local area. But so too the clearing of native vegetation on the property to provide stock for his cattle had attendant costs, particularly to the environment affected. Mr Brummell's decision to pursue the option of clearing native vegetation on the property, over the alternatives, was a business decision. It involved a weighing of the costs and benefits of that option compared to the costs and benefits of the alternatives.
Mr Brummell's commission of the offence for financial gain is an aggravating factor under s 21A(2)(o) of the Sentencing Act.

Foreseeability of the risk of harm

Having regard to the nature and extent of the clearing, and 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 extent of foreseeability of harm is a relevant objective circumstance of the offence.
The environmental harm caused, that I have found above, could reasonably have been foreseen as a consequence of the nature and extent of the clearing undertaken by Mr Brummell. Mr Brummell did not contest that harm to the environment was not foreseeable in this case.

Practical measures to prevent risk of harm

Mr Brummell could and should have refrained from clearing the native vegetation on the property unless and until authority in the form of a development consent or approved property vegetation plan had been obtained authorising the clearing.
Mr Brummell accepted that he could have made enquiries of the Local Land Services office, the local council or the Office of Environment and Heritage as to whether the laws had in fact been repealed and he was once again allowed to remove native vegetation. If he had made such enquiries, he would have been told that the NV Act had not been repealed yet and that he needed to obtain development consent or an approved property vegetation plan authorising the clearing of the native vegetation on his property.

Control over the causes of the offence

Mr Brummell undertook the clearing of the native vegetation on the property and had control over the causes that gave rise to the offence and the harm to the environment.

Conclusion on objective seriousness

Having regard to the nature of the offence, the high maximum penalty, the medium level of actual harm to the environment (which is substantial), the commission of the offence negligently, the commission of the offence for financial gain, the foreseeability of risk of harm to the environment by reason of the commission of the offence, the existence of practical measures to avoid that risk of harm and the control over the causes that gave rise to the offence and the harm to the environment, the offence should be considered to be in the low to middle range of objective seriousness.

Subjective circumstances of the offender

Within the limits set by the objective seriousness of the offence, the Court may take into account the favourable factors personal to the offender.

Lack of prior criminality

Mr Brummell does not have any prior convictions for environmental or other offences: s 21A(3)(e) of the Sentencing Act.

Prior good character

There is evidence that Mr Brummell has otherwise been a person of good character: s 21A(3)(f) of the Sentencing Act.
Various character references were tendered in evidence, from Mr Laird Morgan, director and owner of Arubial Pty Ltd who runs the Lillyvale Feedlot at Condamine, Councillor Tanya Cameron who has known Mr Brummell for most of his life, Mr Peter Greenaway, who resides at the neighbouring property to Mr Brummell's family property, and Mr David Cameron another resident of the same district. These referees spoke of Mr Brummell being an honest, hardworking member of the local farming community who strived to make a living from the land independently in the face of great challenges and setbacks, but particularly in respect of Mrs Brummell's significant health issues.

Plea of guilty

Mr Brummell has pleaded guilty to the offence, a fact the Court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the Sentencing Act.
Mr Brummell is entitled to a discount for the utilitarian value of his plea of guilty to the criminal justice system. In assessing the utilitarian value, the Court is required to consider when he pleaded guilty or indicated an intention to plead guilty: s 22(1)(b) of the Sentencing Act. In short, the earlier the plea of guilty or the indication of an intention to plead guilty, the greater the utilitarian value and the greater the discount.
These proceedings were commenced on 8 May 2018. Mr Brummell pleaded guilty to an amended summons on 8 February 2019. Although there was a delay between the commencement of the proceedings and Mr Brummell pleading guilty, the matter did not need to be listed for a hearing and there were no substantial procedural matters in the intervening period. Furthermore, the prosecutor had filed all of the evidence on which it sought to rely when it commenced the proceedings and did not incur any further expense in preparing evidence in the period before Mr Brummell entered his plea of guilty.
In these circumstances, Mr Brummell submitted that a plea of guilty should be considered as having been entered at an early opportunity and the full discount reflecting the utilitarian benefit of the plea should be allowed. The prosecutor accepted that the plea was entered at an early time, although noted that it was not the earliest time and therefore the discount should be less than the full discount.
I consider that, having regard to the delay in entering the plea of guilty but this delay not causing any particular costs to be incurred, the discount to be recorded for the utilitarian value of the plea of guilty should be slightly reduced from the maximum of 25% to 22.5%.

Remorse

Apart from the utilitarian value of a plea of guilty, genuine remorse is a further mitigating factor. However, s 21A(3)(i) of the Sentencing Act states that remorse shown by the offender for the offence 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 this case, Mr Brummell has shown remorse for the offence. Mr Brummell, in his affidavit and oral evidence, has accepted responsibility for his actions of clearing native vegetation on the property and has offered a sincere apology to the community for committing the offence and for the damage caused to the environment by the commission of the offence. In his affidavit, Mr Brummell said: "I would like to apologise for my poor decision to remove native vegetation from 'Glengarry'. I accept that it was a criminal act and that by doing so I have had a detrimental impact on the environment of the area. As a farmer, I pride myself on my management of the environment and I accept that I have let myself, my wife and my community down by choosing to unlawfully clear native vegetation from my property. Moving forward, I will make it a priority to ensure that I obtain legal advice and obtain necessary consent before carrying out any clearing."
In his oral evidence, Mr Brummell accepted that he should have more enquiries into the law. If he had sought advice, and been told the law, he would not have undertaken the clearing. He has come to appreciate the damage the clearing has caused to the environment, including the loss of habitat and connectivity for animals.
Mr Brummell acknowledged that there should be remediation of the cleared areas, although he has not undertaken any remediation since the clearing. He has appealed the remediation order issued by the prosecutor because he disagrees with the extent of remediation required by the order, but he said that he accepted that some form of remediation order should be made by the Court on the appeal.
Mrs Brummell corroborated her husband's recognition of the harm caused to the environment and his commitment to obtaining all necessary approvals in the future. Mrs Brummell said: "The Court process and the investigation have caused Jeff and I to realise the importance of protecting the environment in greater detail than he has done in the past. Moving forward, I am certain that we will ensure that obtaining approvals and legal compliance will be a key aspect of our business operations."
Mr Brummell referred to his shame at having committed the offence. In his affidavit, Mr Brummell said: "There is also the social stigma attached to being prosecuted in the Land and Environment Court. I feel like everyone in the community is talking about it and certainly all of the District knows that I have been prosecuted for illegal clearing. I can't help but feel like a criminal in social situations and as result I have gone into my shell somewhat and I am reluctant to go into town."
In his oral evidence, Mr Brummell added that it is known in the community that he has been prosecuted. He said that he feels like a "leper" and that people stay 4 to 5 metres away from him.
Mrs Brummell also noted the effect of the prosecution on Mr Brummell: "I have observed the impact that these proceedings have had on my husband Jeff. I have observed him to become withdrawn and reserved both at home and in terms of his interactions with the wider community. Prior to these proceedings, Jeff would normally be happy to socialise, however he now withdraws from these interactions and insists on staying at home. There is a stigma in the community associated with the native vegetation offence with which he has been charged."
I find that Mr Brummell has shown remorse for his actions. He has accepted responsibility for the clearing of native vegetation on his property and for the harm caused to the environment. Mr Brummell has not yet made reparation for the harm caused by the offence, but he accepts that he will need to remediate the cleared areas, although to an extent not yet determined.

Assistance to authorities

Mr Brummell has provided assistance to the prosecutor, a law enforcement authority: see s 21A(3)(m) and s 23 of the Sentencing Act.
Mr Brummell has cooperated with the prosecutor during the investigation of the offence and in the processes leading up to the sentencing hearing. This included facilitating access to the property for the prosecutor's officers and experts. Mr Brummell has agreed with the prosecutor a statement of agreed facts, which reduced the extent of factual contest for the sentencing hearing. Mr Brummell has agreed to pay the prosecutor's costs of the proceedings in the amount of $48,000.

The appropriate sentence

I take into account the objective circumstances of the offence and the subjective circumstances of Mr Brummell as the offender, as I have discussed above.
I take into account the purposes of sentencing in s 3A of the Sentencing Act. The purposes of punishment, retribution and denunciation are relevant. There is the need for the Court, through the sentences it imposes, to ensure that Mr Brummell is adequately punished for the offence, to hold him accountable for his actions, and to denounce the conduct of Mr Brummell in proportion to the seriousness of the offence.
There is a need for the Court to recognise the harm done to the environment, and to the community, by reason of Mr Brummell's offending conduct. His conduct caused actual environmental harm of medium significance to native vegetation and vegetation communities of high conservation value. The sentence of the Court needs to reflect this environmental harm and the purpose of restoration and reparation.
The sentence needs to act as a deterrent. The purpose of general deterrence is relevant to ensure that persons do not clear native vegetation without first obtaining authority to do so in the form of a development consent or an approved property vegetation plan. The purpose of general deterrence is particularly relevant when imposing sentences for offences of clearing of native vegetation: Director General, Department of Environment and Climate Change v Rae at [9]-[13].
In the circumstances of this case, having regard to Mr Brummell's lack of prior convictions, his remorse for committing the offence, Mr Brummell's prior good character, Mr Brummell's insight into the cause of his offending being the failure to make enquiries as to the law and his commitment to seek legal advice and obtain necessary consent in the future, and the unlikelihood of his reoffending, there is less need for individual deterrence of Mr Brummell.
In determining the appropriate penalty, the Court should be consistent with a pattern of sentencing for like offences. I have had regard to the sentences imposed by this Court and the Court of Criminal Appeal in other cases involving the offence of clearing of native vegetation. I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders involved that led the sentencing court to impose those sentences. The cases include the decisions to which I have earlier referred in this judgment as well as my recent decision in Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 and the decisions referred to in [83] of that decision.
The sentence that I consider to be appropriate to be imposed for the offence committed by Mr Brummell is not inconsistent with the sentences imposed in these cases that provide a check or yardstick. The amounts of the fines imposed in those cases vary considerably, depending on the particular facts found about the objective and subjective circumstances of the offence and the offender involved and any other component of the sentence (such as the amount of costs ordered). It is not a useful exercise to compare only the amount of the fine imposed in each of these cases with the amount of the fine I consider to be appropriate in the present case. They are different but that is because the circumstances are different. Furthermore, the more appropriate yardstick against which the sentence in this case should be compared is the maximum penalty set by Parliament for the offence ($1,100,000), rather than the amounts of fines imposed in past cases.
Synthesising all of the relevant objective and subjective circumstances of the offence and of Mr Brummell as the offender, and considering the relevant purposes of sentencing, I consider that the appropriate monetary penalty for the offence is $320,000. This amount should be discounted by 22.5% for the utilitarian value of the plea of guilty. This makes the amount $248,000.

Moiety of the fine and costs order

The prosecutor seeks an order pursuant to s 122(2) of the Fines Act 1996 directing the payment of one half of any fine imposed on Mr Brummell to the prosecutor. This was not opposed by Mr Brummell.
The prosecutor submitted that this Court has power to make an order under s 122(2) of the Fines Act directing payment of a share of the fine imposed to the prosecutor. Section 122 provides: "(1) This section applies where: (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. (3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f)."
Section 4(1)(e) and (f) of the Fines Act 1996 provide for a "fine" to include witnesses' expenses and costs under a costs order. Hence, the power in s 122(2) does not extend to directing that any portion of witnesses' expenses or costs under a costs order can be directed to be paid to the prosecutor.
Pursuant to s 122(1)(a), s 122 applies where the statute that authorises the imposition of a penalty does not make any provision for its application when recovered. Section 12 of the NV Act authorises the imposition of a penalty for an offence. The maximum penalty is determined by reference to s 126(1) of the EPA Act. Neither of those Acts, as they apply to the offence before the Court in the present proceedings, make any provision for how a penalty is to be applied when recovered. The condition in s 122(1)(a) is therefore satisfied.
The condition in s 122(1)(b) is also satisfied as the prosecutor, the Chief Executive of the Office of Environment and Heritage, is not a police officer.
The power in s 122(2) to direct a moiety of the fine imposed is reposed in "the court before which proceedings are taken to recover any such fine." The prosecutor submitted this should be construed as referring to the court that has power to impose the fine. The court before which proceedings are "taken to recover" a fine is the court before which proceedings are brought prosecuting the offence and which, if the offence is proved, may impose a fine or other penalty on the offender.
The origin of the reference to proceedings to recover a fine is in the "popular action" brought by a "common informer": The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228; [2001] FCA 1364 at [23]. Popular actions by common informers historically were encouraged, in order to ensure the enforcement of the law, by a statute conferring on the common informer a right to recover the penalty imposed by the statute: Bradlaugh v Clark (1883) 8 App Cas 354 at 358, 378; Orpen v Haymarket Capital Ltd (1931) 145 LT 614 at 615-616; Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12 at 14-15 and Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [66]. The action taken by the common informer to recover the statutory penalty was in the proceedings prosecuting the offender for committing the offence. The common informer had to first prove the offender committed the offence charged and the court before which the prosecution was brought had to impose a statutory penalty for the proved offence. The common informer then could seek to recover the statutory penalty imposed on the offender.
Section 122(2) of the Fines Act 1996, like its predecessor, s 5(3) of the Fines and Penalties Act 1901, is a statutory provision entitling recovery of a statutory penalty imposed by a court. Persons entitled to claim (recover) a share in the statutory penalty imposed are not limited expressly to common informers, but can include the Crown or State (including government agencies) as prosecutor, except where the prosecutor is a police officer.
The prosecutor submitted that the language of s 122 of the Fines Act reflects the historical character of an action in which a common informer would "recover" part or whole of the penalty imposed upon proof of commission of a statutory offence. The statutory power to direct that part of the penalty imposed be paid to the prosecutor has been retained intentionally, as it still serves modern functions. One function is that described in Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [62]: "Payment of a moiety in the fine to the prosecutor may compensate the prosecutor for the costs and expenses it incurred during the investigation of the offence."
I agree with and adopt the prosecutor's submissions. The power in s 122(2) of the Fines Act 1996 is able to be exercised by this Court in the proceedings in which a fine or other penalty is imposed for a statutory offence and at the time of imposition of the fine or other penalty.
In the circumstances of this case, I consider it is appropriate to exercise the power in s 122(2) of the Fines Act to direct that one half of the fine imposed be paid to the prosecutor.
The prosecutor also seeks an order for costs under s 257B of the Criminal Procedure Act 1986. The parties have agreed on the amount of the costs as $48,000.

Orders

The Court orders: 1. Jeffrey Thomas Brummell is convicted of the offence against s 12(1) of the Native Vegetation Act 2003 as charged. 2. Mr Brummell is fined $248,000. 3. Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Chief Executive of the Office of Environment and Heritage (the prosecutor). 4. Pursuant to s 257B of the Criminal Procedure Act 1986, Mr Brummell 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 $48,000.

Amendments 12 August 2019 - Correction to typographical error at [79]. 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: 12 August 2019

(2006) 145 LGERA 234

(2017) 227 LGERA 290

(2009) 168 LGERA 121

(2012) 192 LGERA 314

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Cases Cited (18)

Cited By (33)