Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano

Catchwords

[2014] HCA 2 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34(2017) 227 LGERA 290 Chief Executive, Office of Environment & Heritage v Orica Pty LtdDarter v YantoDarter v Mansibu [2006] SASC 152(2006) 94 SASR 505 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137(2009) 168 LGERA 121 Douar v The Queen [2005] NSWCCA 455(2005) 159 A Crim R 154 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499[2010] NSWCA 240 Elias v The QueenIssa v The Queen (2013) 248 CLR 483[2013] HCA 31 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289(2002) 125 LGERA 121 Environment Protection Authority v Taylor (No 4) [2002] NSWLEC 59(2002) 120 LGERA 414 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419(2006) 145 LGERA 189 Gore v The QueenHunter v The Queen [2010] NSWCCA 330(2010) 208 A Crim R 353 Harrison v Baring (No 2) [2012] NSWLEC 145 Hili v The QueenJones v The Queen (2010) 242 CLR 520

Judgment (33 paragraphs)

[1]

Background

The background facts of the offences are set out in the primary judgment and are not repeated. For the sentence hearing, the prosecutor relied on the facts recorded in the primary judgment and called additional evidence, as summarised below: 1. Two affidavits of Laura Douglas, affirmed 28 March 2018 and 1 March 2019 respectively; 2. An affidavit of Timothy O'Kelly, affirmed 16 March 2018; and 3. An affidavit of Robert Woods, affirmed 20 February 2018 (parts of which were read in the primary hearing).
Also in evidence is Mr Reitano's criminal record and a "Sentencing Assessment Report" dated 28 February 2019 ('Sentencing Report') prepared pursuant to s 17B, Div 4B of Pt 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') by the Griffith Community Corrections Office of Corrective Services NSW.
Both Mr Woods, Investigator at the NSW Office of Environment and Heritage and Ms Douglas, Ranger at the Griffith office of the NSW National Parks and Wildlife Service ('NPWS'), were cross-examined by Mr Blomfield, solicitor for Mr Reitano.

[2]

Summary of prosecutor's further evidence

The evidence of Ms Douglas and Messrs Woods and O'Kelly, Senior Rehabilitation Officer - Forestry within the Conservation Branch of the NPWS, was uncontested and may be shortly summarised.
Mr Woods provided details of the surveillance operations leading to the charges, the seizure of the wood (which had been cut and removed by Mr Reitano on or about 7 September 2016) by NPWS, and its subsequent transport to the NPWS depot at Griffith where it was weighed and stored. Whilst some of these facts were recorded in the primary judgment, Mr Woods' further evidence provided greater detail of these matters, in addition to his observations of the area where the trees had been felled, including photographs of the cleared region and details of Mr Reitano's utility vehicle ('ute') and empty trailer arriving at the Park and leaving loaded with "fresh cut timber". Video footage and associated photographs of various cleared areas showing recently cut tree stumps had been shown to the Court (and became Exhibit B) during the primary hearing.
Mr Woods gave evidence that the timber seized from Mr Reitano's ute and trailer weighed approximately 2,480kg. Mr Woods also provided details regarding a further quantity of River Red Gum timber seized on 8 September 2016 from a property at 860 Overs Road, Griffith, belonging to Mr Anthony Trafilo. Mr Woods had earlier observed this material being transported by Mr Reitano to this location. Mr Trafilo stated in a record of interview with NPWS officers that the firewood had been placed on his property by Mr Reitano and that his cousin had purchased wood from Mr Reitano on or about 1 September 2016. Mr Trafilo told NPWS officers that he noticed the pile of wood on his driveway when he arrived home on 7 September 2016. The wood seized from Mr Trafilo's property weighed approximately 4,960kg.
Ms Douglas provided further detail regarding earlier investigations into Mr Reitano's activities in the Park. Based upon her experience as a NPWS Ranger, she stated that the Park is comprised of various precincts and that in the Yarranda precinct, there is a firewood collection zone where individuals can purchase a permit to take up to six tonnes of fallen timber per year from April to September. Her search of the NPWS database of firewood collection permits indicated that Mr Reitano did not hold, nor had he ever held, a permit to collect firewood from the Park.
Ms Douglas noted that Mr Reitano had been the subject of earlier complaints and that she had concerns about his conduct in the Park as well as the safety implications of his actions in relation to the method which she understood he was using to fell the trees. Based upon footage obtained from the remote sensing surveillance cameras, Ms Douglas was aware that Mr Reitano would access the Park "two to three times per day, regardless of the weather" and that due to the heavy trailer which he attached to his ute, she stated that his attendances caused damage to tracks and roadways within the Park during wet weather. She also gave evidence of NPWS surveillance which recorded Mr Reitano travelling around Griffith and surrounding areas from June 2017 to December 2017 with loads of timber and that, according to NPWS records, Mr Reitano had been served with a notice pursuant to cl 34(1) of the National Parks and Wildlife Regulation 2009 (NSW) excluding him from the Park from 9:00am on 13 December 2017 until 5:00pm on 13 December 2019.
In her second affidavit, Ms Douglas produced two pages extracted on 5 July 2016 from the Griffith Buy, Swap, Sell, Give away page on Facebook and a further page extracted from Facebook on 27 February 2019. The first page extracted referred to an inquiry stating "hi just wondering who selling redgum [sic] wood please and price to yenda" with a reference to "Doug Reitano". The second page was similar, and the third page extracted had the following text: "Red gum fire wood for sale stock up for next year $130 per tone [sic] split and $90 per bin split..." and "seller information Doug Reitano".
Mr O'Kelly was retained to provide expert opinion in relation to the dominant species present within the Park; the habitat and ecological value of River Red Gum in the Park; the likelihood and extent of environmental harm caused by Mr Reitano's activities; and the commercial value of River Red Gum.
Mr O'Kelly deposed that he inspected the areas in the McCaugheys Lagoon precinct where Mr Woods had observed Mr Reitano and where Mr Woods and Ms Douglas had found the fallen logs and sawdust on 8 September 2016. He attended the location (which he marked on a map) where he had been informed that trees were felled and removed. He saw 20 "solid River Red Gum stumps" which he stated "indicated that these trees had recently been fallen". Mr O'Kelly also considered photographs of a "large quantity of timber that had been seized from Mr Reitano on 7 September 2016", all of which he considered to be River Red Gum.
In relation to habitat and ecological value of River Red Gum in the Park, Mr O'Kelly gave some history of the forest areas in the Park. He stated that various River Red Gum forests, including what is now known as the Park, have a long history of being influenced by human behaviour and that prior to 2010, these forests had been managed by the Forestry Corporation of NSW, primarily for commercial timber production and grazing by domestic livestock. Subsequently, a number of State forests on the Murrumbidgee River (including the Park) were transferred to the management of NPWS for reservation as national parks when the National Park Estate (Riverina Red Gum Reservations) Act 2010 (NSW) ('NPE Act') commenced.
Mr O'Kelly further deposed that the River Red Gum forests on the Murrumbidgee River (including within the Park) are an important component of the broader Murrumbidgee Valley floodplain ecosystem and that they provide important habitat for a wide range of threatened and non-threatened native species within a largely cleared and modified region. He noted that the Superb Parrot (Polytelis swainsonii) is listed as a threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and is known to nest in River Red Gum hollows within the Park. He deposed that hollow-bearing trees are similarly an important requirement for the Barking Owl (Ninox connivens). Further, many bird species that frequent the Murrumbidgee River Red Gum forests are listed under international migratory bird agreements.
In relation to environmental impact, Mr O'Kelly, similarly to Ms Douglas, opined that it is likely that logging within the Park would have an impact on many species of flora and fauna situated therein and that the felling of River Red Gum reduces the availability of current and future hollow-bearing trees for native fauna. Further, he noted that historically, many of the larger River Red Gum have been felled for commercial logging operations, which has increased the importance of protecting existing hollow-bearing trees as well as future hollow-bearing trees. These forests provide important pathways for native species to travel, enabling connectivity for altitudinal migrant species such as the Flame Robin, Scarlet Robin and Pied Currawong.
Mr O'Kelly stated that under the NPE Act, NPWS provides for domestic firewood collection from designated areas along the Murrumbidgee River. Since 2013, an area which includes McCaugheys Lagoon precinct was identified by NPWS as containing insufficient levels of coarse woody debris. This meant that any firewood collection being undertaken within this area would have a potential negative impact on native fauna. Mr O'Kelly noted that collection of firewood is managed by NPWS under a permit system but that firewood collection in the area of the Park where the offences occurred has not been allowed since the Park was created in 2010.
In relation to commercial value, Mr O'Kelly stated that based upon his investigations, the local sale price for River Red Gum firewood around Griffith is approximately $150 per tonne.
Further, based upon his inspection of the area of the Park where the offences took place, his knowledge of River Red Gum, and the background material he was given, Mr O'Kelly opined that Mr Reitano's activities caused environmental harm within the Park by removing habitat for multiple native species. He estimated that it would take "several decades" for those parts of the Park where Mr Reitano felled trees to return to their former state.

[3]

Summary of offender's evidence

At the sentencing hearing, Mr Reitano gave short oral evidence and tendered two character references and a National Australia Bank Account Balance Summary for the period commencing 21 December 2018 and ending 21 February 2019. His evidence may be shortly summarised.
In 2016, at the time of the offences, Mr Reitano was trying to start a handyman business building sheds and undertaking landscaping work. He stated that he would go and obtain "a little bit of wood every so often" and would distribute that wood to his parents and friends, including a Mr Pompiane who was gravely ill at the time and has since died.
In response to the evidence marshalled on behalf of the prosecutor through Ms Douglas (being an advertisement for the sale of wood on Facebook), Mr Reitano stated that the advertisement was for his son who wanted to sell some wood so he could "purchase a couple of guns" and that a photograph showing the wood (in Ms Douglas' affidavit) comprised "sleeper backs and not trunks or trees". Mr Reitano initially stated that he did not sell the wood he took, but gave most of it away. He stated that he presently has permanent casual employment and works approximately 110 hours per week in two roles based in Griffith, one being as a doorman at the Coro Club, a motel and entertainment venue on Thursday, Friday and Saturday nights; and as a maintenance worker at the Wickham Hill Winery for the rest of the time.
Mr Reitano was asked questions by his legal representative, Mr Blomfield, in relation to his earlier convictions for "taking wood" and his understanding of the objective seriousness of taking wood from a national park to which he replied "...I believe we do need to take care of the environment. It was the wrong thing to do at the time. Back in the days when I actually did it, it wasn't really policed that much. I don't know. I've seen a lot of other people go in and out of there, so I just did it myself." (Tcpt, 6 March 2019, p 16(1-20)).
Mr Reitano stated that he is not planning to take wood from a national park again. In cross-examination by Mr Singleton, counsel for the prosecutor, Mr Reitano indicated that this was because he has an acquaintance who manages a property known as "Yarundell Station" near Arundel, where he is permitted to attend and take wood.
Mr Reitano accepted that he had the opportunity to discuss with Mr Blomfield the various affidavits now relied upon by the prosecutor, as well as the written submissions prepared by the prosecutor.

[4]

Introduction

It is a principle of sentencing law that the sentence imposed for an offence must reflect and be proportionate to the objective circumstances of the offence, and the personal or subjective circumstances of the offender: Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [107] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 ('Orica') at [56].

[5]

Legislative provisions

Section 3A of the Sentencing Act identifies the purposes of sentencing an offender and, relevant to the present matter, provides: 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, ... (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.
Subsections 21A(2) and (3) of the Sentencing Act set out numerous aggravating and mitigating factors the Court must take into account where applicable. The relevant factors are listed below and consideration of same follows. 21A Aggravating, mitigating and other factors in sentencing ... (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), (e) the offence was committed in company, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... (i) the offence was committed without regard for public safety, ... (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain, ... The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (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) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, ...

[6]

Objective circumstances

The primary consideration in sentencing is the objective gravity or seriousness of the offence which has two principal components: the precise acts of the offender; and the consequences of those acts.
In Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80 ('Dib Hanna Abdallah Hanna'), Preston CJ of LEC summarised the authorities as follows, at [94] (citations omitted): The objective seriousness of each offence 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 proportionate to the gravity of the offence considered in light of its objective circumstances and the objectives of punishment such as retribution and general and individual deterrence … It fixes the lower limit because the allowance for matters personal to a particular offender cannot produce a sentence which fails to reflect the objective gravity of the offence … and the objectives of punishment ... The objective circumstances of the offence and the objectives of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set …
In determining the objective seriousness of the offences, the relevant factors are: the nature of the offences; the maximum penalty under the Parks Act; the environmental harm caused by the commission of the offences; the foreseeability of the risk of environmental harm; the practical measures the offender could have taken to prevent environmental harm; control over the causes giving rise to the offences; and whether the offences were committed with any state of mind or for financial gain.
The prosecutor submits that the offences are objectively very serious, and fall within the high range of objective seriousness. Mr Blomfield submits that Mr Reitano's conduct is not at the highest end of objective seriousness for this type of offence, noting that despite the significant monetary penalties imposed under the Parks Act, the custodial sentence is "only six months".

[7]

Nature of the offences

The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme is illustrative of the objective seriousness of environmental offences: Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 ('Coe') at [128]-[129], [133], Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71], [168]-[171] and Orica at [59].
Considering the objects of an act can assist with identifying the purpose of creating an offence: Environment Protection Authority v Le Dome Pty Ltd [2002] NSWLEC 167; (2002) 125 LGERA 121 at [80] and Coe at [132]. Accordingly, in determining the appropriate sentences to be imposed on Mr Reitano, it is instructive to have regard to the objects of the Parks Act.
As detailed above at [33], the objects of the Parks Act include the conservation of nature including habitat, ecosystems, ecosystem processes, and biological diversity at the community, species and genetic levels. The Parks Act also provides for the management of land reserved under the Act in accordance with the management principles applicable to each type of reservation.
The purpose of reservation for a national park in s 30E(1) of the Parks Act is: ...to identify, protect and conserve areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor or tourist use and enjoyment so as to enable those areas to be managed in accordance with subsection (2).
Under s 30E(2), a national park is to be managed in accordance with the following principles: (a) the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena and the maintenance of natural landscapes, (b) the conservation of places, objects, features and landscapes of cultural value, (c) the protection of the ecological integrity of one or more ecosystems for present and future generations, (d) the promotion of public appreciation and understanding of the national park's natural and cultural values, (e) provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the national park's natural and cultural values, (f) provision for the sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the conservation of the national park's natural and cultural values, (fa) provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the national park that is permitted under section 185A having regard to the conservation of the national park's natural and cultural values, (g) provision for appropriate research and monitoring.

[8]

Maximum penalty

The maximum penalty for each offence is 1,000 penalty units or six months imprisonment, or both. Currently, one penalty unit is $110 and therefore the maximum fine that may be imposed by the Court is $110,000 for each offence.
The maximum penalty in each case is an expression of the seriousness with which Parliament views these offences (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698) and whilst Mr Reitano's offending should be considered in this light, it is but one of a number of factors that bear upon the ultimate determination of the sentences: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27].
The maximum penalty also provides a sentencing yardstick for the offences (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ('Markarian') at [31]) and is used to measure the relevant features of a particular incidence of crime against the worst case: R v Campbell [2014] NSWCCA 102 at [28].
In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling and Processing'), Preston J stated, at [143]: Although the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which the penalty is prescribed (see Ibbs v R (1987) 163 CLR 447 at 451-452) that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case. Ingenuity can always conjure up a case of greater heinousness: Veen v R (No 2) (1988) 164 CLR 465 at 478 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

[9]

Harm to the environment

The extent of the harm caused or likely to be caused by the commission of each offence (as noted above, a matter for consideration under s 194(1)(a) of the Parks Act, and s 21A(2)(g) of the Sentencing Act if the damage caused was substantial) is relevant in determining the objective seriousness of the offences. Harm includes both actual and potential harm: Waste Recycling and Processing at [145]-[149] and Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [206].
The prosecution relies upon the evidence of Mr O'Kelly summarised above at [13]-[20] to demonstrate the extent of environmental harm caused by the offences, particularly by the removal of habitat for "multiple species". The prosecutor also relies upon Mr O'Kelly's evidence that the subject area was not identified by NPWS as an area where firewood collection was permitted and that any firewood collection being undertaken would have a "potential negative impact on native fauna". Further, the loss of canopy had the effect of reducing foraging opportunities for nectivorous fauna and negatively impacted insect availability.
It was submitted by Mr Blomfield on behalf of Mr Reitano that the extent of the harm caused or likely to be caused was "mid-range" as taking wood from the Park would not necessarily cause damage to the species that live there. Further, it was submitted that in determining the extent of the harm, the Court would take into account that there are circumstances where, subject to appropriate authority, wood may be taken from the Park, albeit not from the area where the offences took place.
There being no evidence to the contrary, and no challenge to his evidence, I accept Mr O'Kelly's evidence and find that the activities the subject of the offences caused environmental harm within the Park by removing habitat for "multiple species" and that it will take "several decades" for those parts of the Park where the trees were felled to return to their former state. Further, as noted above, the River Red Gum forests are an important refuge for native fauna and flora within an otherwise predominantly cleared landscape, and these forests also contain significant wetlands which depend on a healthy forested ecosystem and are vitally important for threatened hollow-dependent fauna such as the Superb Parrot and Barking Owl.

[10]

Foreseeability of risk of harm

A reasonable person in Mr Reitano's position would foresee the risk of harm to the environment caused or likely to be caused by the felling and subsequent removal of River Red Gum. Further, as considered below, Mr Reitano could not have failed to have foreseen the risk of harm as it would have previously been brought to his attention by his experiences in the Local Court in relation to similar conduct.

[11]

Practical measures to prevent the risk of harm

Mr Reitano could and should have ensured that he only took timber from areas where such activity was permitted. There is no evidence of any inquiries made by him and, in light of the matters considered below, it is clear that no environmental harm would have been caused if he had made such inquiries, attained the requisite permit, and conducted himself accordingly.

[12]

Control over causes

Mr Reitano had complete control over the causes of harm to the environment in that he carried out the activities constituting the offences.

[13]

State of mind

The offences against s 156A(1)(b) of the Parks Act are strict liability offences so mens rea is not an element of the offences. Despite this, the state of mind of an offender at the time of an offence can have the effect of increasing the objective seriousness of the offence.
Given the background material, Mr Reitano's admissions to NPWS officers, his experiences in relation to earlier environmental offences, his oral evidence regarding his many trips to and through the Park, and my finding that he, on his own admission, sold wood that he collected on occasion, I find beyond reasonable doubt that Mr Reitano's conduct in felling and removing River Red Gum from the Park was pre-meditated and intentional. This increases the objective seriousness of the offences.

[14]

Commercial gain / reasons for committing the offences

The carrying out of an offence for a profit increases the seriousness of the offence: Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [47]-[48].
As referred to at [27] above, there was dispute in relation to whether Mr Reitano was undertaking a commercial operation. The prosecutor submits that the offences were undertaken for a commercial purpose and on a "commercial scale".
I take into account the fact that when Mr Reitano was questioned by NPWS officers at the time of the offences, he indicated that he had sold firewood "over the years" and he also stated that he had been "known to sell some ...to cover my costs".
Having regard to the conduct of Mr Reitano around the time of the offences, the evidence of the published Facebook advertisements, the evidence regarding both the amount of timber seized directly from Mr Reitano shortly after the offences were committed, the amount of timber that he had earlier deposited on Mr Trafilo's property, and the evidence that firewood sells in the Griffith area for approximately $150 per tonne, I find that the offences occurred in the course of a commercial activity. I am unconvinced that the wood (or the majority thereof) was intended for distribution without payment to Mr Reitano's family and/or friends. The fact that a significant quantity of River Red Gum was already in storage at the time of the offences makes it clear that Mr Reitano committed the offences for financial gain. Committing an offence for financial gain is an aggravating factor pursuant to s 21A(2)(o) of the Sentencing Act. I find beyond reasonable doubt that Mr Reitano committed the offences for the purpose of financial gain.

[15]

Other matters

Apart from the submissions made in relation to s 194 of the Parks Act, in summary, the prosecutor submits that the Court's characterisation of the offences should bear in mind: first, apart from being isolated offences, they were part of a long course of persistent and brazen criminality; second, they were pursued for a commercial purpose; third, they were undertaken on a commercial scale; fourth, they were part of a broader enterprise carried out with a brazen disregard for the environment, public safety, public resources and the law; and fifth, they involved significant harm to the environment and some damage to public resources.
I have taken these submissions into account in my consideration of the appropriate sentences, and, for completeness, I note the following: first, I am conscious that Mr Reitano is being sentenced for two offences for which he has been found guilty and not for any other conduct; in relation to the second and third matters, I have found that the offences were undertaken for commercial gain, however, as noted above, they were not part of a large, "commercial scale" operation; fourth, I do not consider the subject offences as being part of a "broader enterprise undertaken with a brazen disregard for the environment" and I do not find that the offences were carried out without regard for public safety or damage to public resources, although, as I have found above, I consider the conduct to be pre-meditated and intentional, and carried out with disregard for the law; and, fifth, as found above, there was significant harm to the environment.
The prosecutor also submits that there are a number of aggravating factors (within the meaning of s 21A(2) of the Sentencing Act) being: first, that Mr Reitano has a record of prior convictions; second, that the offences were committed in company; third, that the harm was substantial; fourth, that the offences were committed without regard for public safety; fifth, that the offences were part of a planned or organised criminal activity; and sixth, that the offences were committed for financial gain.
Again, while I have taken these submissions into account in my consideration both above and to follow, I find: first, I consider Mr Reitano's previous convictions below; second, I do not accept that the offences were committed in company despite Mr Clarke's presence (see primary judgment at [14], [22], [26], [35]); third, I have found that the environmental harm was substantial; fourth, I have not found that the offences were committed without regard for public safety and in this regard, I note that it is accepted by the prosecutor that there is no evidence that Mr Reitano left cut trees hanging, nor is there evidence which establishes that anyone, with the possible exception of Mr Clarke, was actually endangered as the trees were being felled, nor was anyone endangered by the driving associated with the offending conduct; fifth, I do not find that the offences were part of an organised criminal activity, although as found above, I accept that Mr Reitano's conduct was pre-meditated and intentional; and, sixth, for the reasons stated above, I find that the offences were committed for financial gain.

[16]

Conclusion on objective seriousness of the offences

In determining the objective seriousness of the offences, I have taken into account the nature of the offences committed by Mr Reitano; the maximum penalties prescribed for the offences; the harm to the environment caused by the offences; Mr Reitano's state of mind when committing the offences with knowledge of their illegality and the likely consequences of same; the reasonable foreseeability of harm caused or likely to be caused to the environment by the commission of the offences; the existence of practical measures to prevent that harm; and, Mr Reitano's control over the causes that gave rise to the offences.
A difficulty arises in relation to offences contrary to s 156A of the Parks Act, if for no other reason than because those offences cover such a large range of potential circumstances and offending. In the circumstances, I find that each of the offences is at the low end of medium objective seriousness for offences of this kind.

[17]

Subjective circumstances

Within the limits set by the objective seriousness of the offences, the Court may have regard to the offender's subjective circumstances. This requires consideration of those matters which relate to Mr Reitano himself rather than the offences for which he has been found guilty. The matters that I take into account are: Mr Reitano's record of prior convictions; his character; the likelihood of re-offending; the extent of his remorse; and his prospects of rehabilitation.
In relation to the mitigating factors in s 21A(3) of the Sentencing Act, the prosecutor submits that none are applicable, however notes that Mr Reitano did agree to a number of matters in an agreed statement of facts tendered at the primary hearing. While the prosecutor accepts that this does not fall within the statutory list of mitigating factors, it is a matter which should be seen in Mr Reitano's favour.

[18]

Record of previous convictions

A significant record of prior convictions can be taken into account as an aggravating factor pursuant to s 21A(2)(d) of the Sentencing Act. Prior criminality may show whether the latest offence is an uncharacteristic aberration or whether the offender has manifested a continuing attitude of disobedience to the law. In the latter case, the purposes of retribution, deterrence, and protection of society may all indicate a more severe penalty is warranted: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477, McNaughton at [26]-[34], Tsakonas v The Queen [2009] NSWCCA 258; (2009) 197 A Crim R 581 at [36] and Dib Hanna Abdallah Hanna at [161].
Mr Reitano has a lengthy criminal record which includes the following environmental offences: 1. Two counts of gather, pluck, poison vegetation in a park (2014); 2. Two counts of possessing vegetation in a park (2014); 3. One count of picking or possessing a protected native plant (2016); and 4. One count of removal/damage of vegetation (2016).
In addition, Mr Reitano's criminal history includes driving-related and other offences from 2006 through to 2016, including "drive while disqualified from holding a licence" on numerous occasions, resulting in two terms of imprisonment being imposed (one being suspended), and an intensive corrections order in 2016 for a further driving-related offence. In addition, there was a conviction for "assault occasioning actual bodily harm" in 2008.
The causes of and circumstances giving rise to the prior offences are unclear. Further, the consequences of the conduct constituting the prior offences, particularly those that involve environmental harm, are also unclear. Despite this, in relation at least to the environmental offences, it is obvious that Mr Reitano has not been deterred from re-offending by the sentences imposed.
In these circumstances, although I do not regard Mr Reitano's prior criminal record as increasing the objective seriousness of the offences, I consider that his prior convictions (in relation to the environmental offences) amount to a continuing attitude of disobedience towards the law. I find that the nature, number, and repetition associated with the various non-environmental offences are indicative of a propensity to re-offend despite earlier penalties.
Although it was submitted on behalf of Mr Reitano that, leaving aside the more serious offences (some of which led to imprisonment), the relatively small fines imposed for the environmental offences may not have indicated to Mr Reitano the objective seriousness of the conduct constituting the present offences, I do not find that submission compelling. In the circumstances, Mr Reitano cannot be treated as a first time offender or as an offender with little criminal history.

[19]

Good character

Good character can refer to the absence of prior convictions (not applicable here) and it can also refer to a history of prior good works and contribution to the community. Generally speaking, evidence of good character operates to reduce the sentence which would otherwise be imposed. The weight of such evidence will vary according to the circumstances of the case: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [23], [25]. Save for the character references considered below, there is no evidence to support the good character of Mr Reitano.
Mr Reitano marshalled character references from Sam Panarello (of Presto Cleaning Co) and Paul Fisher. Each had known Mr Reitano for more than 20 years. It is clear, as suggested by the prosecutor and accepted by Mr Blomfield on behalf of Mr Reitano (Tcpt, 6 March 2019, p 46(35-37)), that the referees may not have understood that Mr Reitano had "a history of this type of offending". Despite this, it was submitted by Mr Blomfield that the references portrayed Mr Reitano as being "trustworthy and generous".
In the absence of the referees' understanding of Mr Reitano's previous convictions and the two present offences for which he is being sentenced, I do not place weight upon the references, except to the extent that they demonstrate that Mr Reitano is held in high regard by long-time friends and is seen to be "generous".

[20]

Remorse

Section 21A(3)(i) of the Sentencing Act states that remorse shown by the offender would 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).
Genuine remorse is relevant to the weight that needs to be given in sentencing to individual deterrence and the offender's prospects of rehabilitation: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [116]. Contrition can be associated with insight by the offender into the reasons for, or factors contributing to the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of re-offending and the need for a sentence to be imposed for the purpose of individual deterrence is similarly reduced: R v Wisbey [2001] NSWCCA 434 at [31].
In light of the fact that Mr Reitano maintains he did not take the wood from the Park (claiming that he was on the grounds of Yanco Agricultural High School), I cannot find that he has accepted his offending behaviour or has shown remorse. Nothing in the evidence indicates that he has insight into the offending conduct or has accepted responsibility for his actions. I specifically note that the comment in the Sentencing Report relating to Mr Reitano "not making the same poor judgment when in a similar situation" (in future) was clarified by Mr Reitano in his oral evidence (Tcpt, 6 March 2019, p 34(9-18)) to mean acceptance of "poor judgment" only in relation to earlier environmental offences (in 2014 and 2016), and not the subject offences.

[21]

Likelihood of re-offending

Pursuant to s 21A(3)(g) of the Sentencing Act, a mitigating factor to be taken into account in determining the appropriate sentence is that the offender is unlikely to re-offend.
The Sentencing Report provides that Mr Reitano resides in stable accommodation with his 20 year old son, that he has a positive relationship with his three children, and despite noting that he maintains his innocence (in that he maintains that he was not logging in a protected area or a national park), the Report notes that "he has accepted his offending behaviour and any consequences resulting from it". The Report also states that Mr Reitano "has had time to reflect on his offending, and has acknowledged the stress it has brought to his children, as they are very concerned and worried about what the outcome of his offence will be". Further, the Report notes that Mr Reitano is willing to engage in interventions with Community Corrections "to ensure that he doesn't make the same poor judgment when in a similar situation" (although as noted above, this comment was clarified by Mr Reitano in his oral evidence), and that he is willing to undertake community service work. More relevantly, the Report states that Mr Reitano has been assessed as a "T1/Low risk of re-offending according to the Level of Service Inventory".
Mr Blomfield submits that as the Sentencing Report assesses Mr Reitano as a low risk of re-offending, he is suitable for and would benefit from community service as an alternative to full-time custody.
Given that Mr Reitano's remorse for the current offences is slight at best, on the material before me, I am unable to conclude on the balance of probabilities that he is unlikely to re-offend in the future. Mr Reitano has not provided compelling evidence, apart from the fact of his present employment, to suggest that he will not re-offend.
The prosecutor submits that Mr Reitano's prospects of rehabilitation "appear to be poor" due to his age, criminal record, persistence and lack of remorse. Despite the fact that Mr Reitano pleaded not guilty in each matter and maintains his innocence, in accepting the matters in the Sentencing Report, I find on the balance of probabilities that there are prospects of rehabilitation: Alseedi v The Queen [2009] NSWCCA 185 at [65].

[22]

Deterrence

The purpose of general deterrence in the context of environmental offences is well-known and was concisely stated by Preston J in Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 as follows, at [65]-[68]: The sentence of the Court is an important denunciation of the conduct of the defendant. The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.
I find that there is a need for general deterrence so that there will be a real disincentive for others to engage in conduct similar to that of Mr Reitano. I accept the prosecutor's submission that the fact that the offences took place in an isolated and unpopulated location makes such conduct difficult to detect and prevent: R v Peel [1971] 1 NSWLR 247 at 262. These circumstances in particular call for general deterrence when such offences are detected.
Mr Reitano's criminal record and to a lesser extent the evidence of his other activities in the Park (which are not the subject of sentencing on this occasion), point to a strong need for specific deterrence. This is especially so in light of the lack of effectiveness of previous efforts of the Local Court. Again, the fact that there are specific convictions for environmental offences indicates Mr Reitano's propensity to disregard the law. This, combined with my finding above regarding the likelihood of re-offending, suggests that there is a need for the sentences imposed to reflect individual deterrence to a significant degree.

[23]

Totality

The two offences arise out of the same course of conduct and there is considerable overlap between them. In these circumstances, the principle of totality applies.
The totality principle was considered by Street CJ in R v Holder; R v Johnston [1983] 3 NSWLR 245 as follows, at 260: …The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences…
I also note the caution expressed by Preston J in Orica, at [142]: The effect of the totality principle is to require the Court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In the case of fines, adjustment may be made by reducing the amount of the fine for each offence. Care needs to be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.
The prosecutor concedes that the totality of both offences is to be reflected in the aggregate sentence. Whilst the prosecutor accepts that the offences overlap significantly, it reminds the Court that the environmental damage that occurred once the trees were felled was increased once they were removed because there was no opportunity for the dead logs to become environmental accommodation.

[24]

Consistency in sentencing

The Court should be consistent with any pattern of sentencing for like offences. The prosecutor has referred me to three sentencing matters in this Court relating to offences against s 156A of the Parks Act including: Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52 ('Coffs Harbour Hardwoods Sales'), Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 ('Vaccount') and Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 ('Leda Management Services'). I have also considered Plath v Knox [2007] NSWLEC 670 ('Knox') and Plath v Glover [2010] NSWLEC 119 ('Glover'), both of which relate to individual, rather than corporate offenders.
In Coffs Harbour Hardwoods Sales, the defendant pleaded guilty to two offences, one being an offence against s 118A(2) of the Parks Act for picking 21 plants of a threatened species, and one being an offence against s 156A(1)(b) of the Parks Act for damaging vegetation on land reserved as a nature reserve. During logging operations, approximately 4,000 square meters of the reserve was cleared by a bulldozer. The defendant was found to be negligent in the commission of the offences, however in light of mitigating factors and the principle of totality, fines of $45,000 and $40,000 were imposed for the ss 118A(2) and 156A(1)(b) offences respectively. The defendant was ordered to pay the prosecutor's legal costs of $26,000, a restoration order in relation to the prevention of soil erosion was imposed, and a publication order was made.
In Vaccount, the defendant pleaded guilty to an offence against s 156A(1)(b) of the Parks Act for felling and/or crushing vegetation on land reserved as a national park. Over 500 trees were removed from the park and the defendant's state of mind was found to be negligent in committing the offence. The offence was considered to be one of moderate objective gravity. A fine of $100,000, discounted by 27% to $73,000, and an order that the defendant pay the prosecutor's legal costs of $47,100 and investigation costs of $2,900 was imposed.
In Leda Management Services, the defendant pleaded guilty to an offence against s 156A(1)(b) of the Parks Act for damaging vegetation and soil within a nature reserve. Between 3,200 and 3,840 square meters of land was cleared. A fine of $50,000, discounted by 35% to $32,500 was imposed, in addition to a rehabilitation order and a publication order. The defendant was also ordered to pay the prosecutor's legal costs in the amount of $38,000.

[25]

Appropriate sentences for the offences

The modern approach to sentencing requires synthesising all relevant factors to reach a single sentence for the offence - "the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case" (Markarian at [51]) - rather than engaging in "some exercise in addition or subtraction": Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34], Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].
In determining the appropriate penalty and severity thereof for the offences, I take into account the objective circumstances of the offences and the subjective circumstances of Mr Reitano, as considered above. Further, I take into account the purposes of sentencing in s 3A of the Sentencing Act. There is a need for the Court, through the sentences it imposes, to ensure that Mr Reitano is adequately punished and held accountable for the offences he committed, and denounced in a manner which is proportionate to the seriousness of the offences: Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 at [110].

[26]

Appropriateness of imprisonment

There is limited information before the Court regarding the means of Mr Reitano. It is clear that Mr Reitano has a modest income (of no more than $1,430 per week as noted by the prosecutor) and his capacity to pay the quantum of fine that is available to the Court is limited. The prosecutor submits that if an "appropriate" fine is imposed, it is likely that he would default and then go through the enforcement process prescribed in s 58 of the Fines Act 1996 (NSW) ('Fines Act'), which may include community service and potential imprisonment for up to three months. The prosecutor submits that Mr Reitano's inability to pay an appropriate, that is, a significant fine, affects the sentencing options available to the Court and if the Court reduced the fine due to Mr Reitano's limited means, the sentence would be "inadequate". In these circumstances, the prosecutor submits that imprisonment must be considered and that a prison sentence is appropriate because the conduct the subject of the offences is at or towards the higher end of the spectrum in terms of objective seriousness.
I consider that the limited material before the Court in relation to Mr Reitano's ability to pay a substantial fine creates a concern for imposing the appropriate sentences. The only evidence is that which Mr Reitano stated as to his current employment and the National Australia Bank Account Balance Summary. There is simply no evidence in relation to whether Mr Reitano has any assets of his own which might be available to pay any fine and there is no evidence that he will receive income from any other source, apart from his present employment.
However, s 5(1) of the Sentencing Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. This provision reflects the common law principle that imprisonment should only be imposed as a sanction of last resort: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [115].
The authorities speak of a three-stage process in passing a sentence of imprisonment on an offender: Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154 ('Douar') at [69]-[72]. Each step requires the Court to consider the objective seriousness of the offence balanced against the subjective circumstances of the offender, but it is the former that will principally determine which of the available sentencing alternatives the Court should adopt: R v Zamagias [2002] NSWCCA 17 ('Zamagias') at [23], R v Geddes (1936) 36 SR (NSW) 554 ('Geddes') at 556 and Dib Hanna Abdallah Hanna at [215]. If the Court decides that there is no appropriate penalty other than a custodial sentence, the second stage is for the Court to determine what the term of imprisonment should be. Once that term has been established, the third stage is to consider how the sentence should be served, including consideration of whether an alternative to full-time imprisonment is available and should be utilised: Zamagias at [28] and Douar at [72]. Whilst there is a logical difficulty arising from the statutory requirement to choose a term of imprisonment before selecting the manner in which that term should be served, that approach is nevertheless required: Douar at [73].

[27]

Non-custodial penalty

Having regard to the circumstances of the current offences, there are non-custodial penalties other than imprisonment, being the imposition of a fine and/or a community correction order in relation to each offence which are available to the Court. Pursuant to s 8 of the Sentencing Act, following the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) on 24 September 2018, if the Court convicts an offender but determines that imprisonment is not appropriate, it may make a community correction order instead. Mr Blomfield submits that "Mr Reitano would perhaps benefit from some community service [as] an alternative to full-time custody..." (Tcpt, 6 March 2019, p 46(10-14)). Further, the Sentencing Report notes that Mr Reitano is suitable for community service.
The sentences I impose must be commensurate with the seriousness of Mr Reitano's crimes: Geddes and R v Rushby (1977) 1 NSWLR 594. I do not accept that a community correction order is appropriate in this matter because I consider that such an order would not address the matters summarised at [112] above. I find that the imposition of a fine is both sufficient and appropriate to achieve the proper purposes of sentencing in the present circumstances.
Whenever the Court considers the imposition of a fine, it is mandatory to consider s 6 of the Fines Act, which provides: 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
As I am required to consider Mr Reitano's means in exercising my discretion to fix the amount of any fine, if I am satisfied that he would be unable to pay the amount of the fines which I otherwise determine to be appropriate, I may reduce these amounts: R v Rahme (1989) 43 A Crim R 81.
However, whilst it is clear that the means of an offender to pay a fine is a matter for consideration, it may not be decisive. There are other sentencing considerations such as achieving appropriate deterrence that may justify imposing a fine for an amount the offender is unlikely to be able to pay. In Darter v Diden [2006] SASC 152; (2006) 94 SASR 505, Doyle CJ stated, at [29]-[31]: I consider that a substantial fine was called for, even after making allowance for the loss of the vessel and the period of detention. A substantial fine was called for because, in particular, of the seriousness of the offence and its prevalence. Deterrence remains a factor, even if it is attenuated by the unlikelihood of recovery of the fine in future like cases. Treating the offender's capacity to pay as relevant, but not decisive, is consistent with the approach at common law. In Flego v Lanham (1983) 32 SASR 361 at 365-367 Wells J considered this issue. He said (at 366): "But the offender's capacity to pay should always be kept in mind as a factor worthy of consideration; it cannot be decisive (see generally Reid v Liersch unreported, Walters J, 23 September 1970), but it is likely to be of some moment." Legoe J came to a similar conclusion in Winkler v Cameron (1981) 33 ALR 663. This approach is consistent with the view of Finlay J in R v Rahme (1989) 43 A Crim R 81 at 86-88, although that case was complicated by the fact that the sentencing judge had been urged to impose a substantial fine rather than a sentence of imprisonment. In Smith v The Queen (1991) 25 NSWLR 1 at 21 Kirby P expressed opposition to the imposition of a fine which was beyond the means of the person fined. That case also was complicated by its particular circumstances. It was a case involving contempt of court by a prisoner serving life imprisonment, the response of the judge having been to impose a very substantial fine. The matter was complicated by the life sentence being served, which rendered other forms of punishment impractical, but likewise made the prospect of payment of the fine illusory. Nevertheless, Mahoney JA (at 23-24) and Meagher JA (at 24) both upheld the fine, recognising that it was unlikely ever to be collected. I have considered these cases and remain of the view that the defendants' capacity to pay was a relevant consideration, but not decisive. There is nothing in the Crimes Act to suggest that it is a decisive factor. Nor, in my opinion, does ordinary sentencing principle require that it be so treated.

[28]

Sentence

Adopting an instinctive synthesis approach, considering all the relevant objective and subjective circumstances, the purposes of sentencing, and the harm resulting from each offence, I find the appropriate starting points are $20,000 for each offence. However, I consider that the aggregate amount of the fines, being $40,000, exceeds what is just and appropriate in the circumstances, particularly given the total criminality involved for the offences. I consider the appropriate adjustment to remove any double punishment is to reduce each penalty by 25%. Accordingly, the total fine imposed is $30,000.

[29]

Moiety

The prosecutor has requested that an order pursuant to s 122(2) of the Fines Act be imposed, directing that one half of the fine be paid to the Chief Executive, Office of Environment and Heritage. The role of s 122 has been considered in a number of recent decisions including: Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [72]-[74], Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 at [64]-[66], Harrison v Baring (No 2) [2012] NSWLEC 145 at [91] and Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [64]-[69]. In the circumstances, I find that it is appropriate to make such an order.

[30]

Costs

The prosecutor seeks an order under s 257B of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act') that Mr Reitano pay its costs of the proceedings.
It is well accepted that costs orders under s 257B of the Criminal Procedure Act are compensatory, not punitive, as they are awarded to indemnify the successful party for the expenses it incurred in bringing the proceedings, rather than punish the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 ('Latoudis') at 543, 563, 567, Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290 at [260] and Dib Hanna Abdallah Hanna at [280].
As considered above, there is limited material before the Court to establish whether Mr Reitano could pay any order for costs. However, given the compensatory function of costs orders, the mere fact that an unsuccessful party may be of limited financial means should not have a bearing on the Court's discretion to award costs: Latoudis at 566, Environment Protection Authority v Taylor (No 4) [2002] NSWLEC 59; (2002) 120 LGERA 414 at [45], Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71 at [21] and Dib Hanna Abdallah Hanna at [282]-[284]. In these circumstances, I find it appropriate in each of the proceedings to make an order under s 257B of the Criminal Procedure Act that Mr Reitano pay the prosecutor's costs as determined under s 257G of the Criminal Procedure Act.

[31]

In proceedings 2018/00120897: 1. Mr Douglas Brian Reitano is convicted of the offence against s 156A(1)(b) of the National Parks and Wildlife Act 1974 (NSW) as charged. 2. Mr Reitano is fined $15,000. 3. Pursuant to s 122 of the Fines Act 1996 (NSW), Mr Reitano must pay 50 per cent of the fine imposed by Order (2) to the prosecutor. 4. Mr Reitano is to pay the prosecutor's costs of the proceedings as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

[32]

In proceedings 2018/00120937: 1. Mr Douglas Brian Reitano is convicted of the offence against s 156A(1)(b) of the National Parks and Wildlife Act 1974 (NSW) as charged. 2. Mr Reitano is fined $15,000. 3. Pursuant to s 122 of the Fines Act 1996 (NSW), Mr Reitano must pay 50 per cent of the fine imposed by Order (2) to the prosecutor. 4. Mr Reitano is to pay the prosecutor's costs of the proceedings as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

[33]

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: 03 April 2019

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