Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited

Catchwords

(2006) 145 LGERA 234 Butler v Attorney-General (Vic) (1961) 106 CLR 268 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2009) 165 LGERA 256 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137(2006) 148 LGERA 299 Environment Protection Authority v Werris Creek Coal Pty Ltd(2009) 164 LGERA 287 Garrett v Dennis Charles Williams [2006] NSWLEC 785(2006) 160 LGERA 115 Garrett v Williams [2007] NSWLEC 56 Gittany v Sutherland Shire Council [2006] NSWLEC 242(2007) 156 LGERA 337 Hawkesbury City Council v JohnsonHawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hili v RJones v R [2010] HCA 45(2010) 204 A Crim R 434 Hoare v R [1989] HCA 33(1989) 167 CLR 348 Kelly v Saadat-Talab [2008] NSWCA 213(2008) 72 NSWLR 305 Markarian v R [2005] HCA 25(2005) 228 CLR 357 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50(2009) 195 A Crim R 1 R v Koloamatangi [2011] NSWCCA 288 R v McNaughton [2006] NSWCCA 242(2006) 66 NSWLR 566 R v Olbrich [1999] HCA 54

Judgment (61 paragraphs)

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8] NSWLEC 297 Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402 Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 Environment Protection Authority v Bituminous Products Pty Ltd [1999] NSWLEC 247 Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 Environment Protection Authority v Sydney Water Corp Ltd, NSWLEC, Talbot J, 18 December 1996, unreported Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 Garrett v Dennis Charles Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 Garrett v Williams [2007] NSWLEC 56 Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Kelly v Saadat-Talab [2008] NSWCA 213; (2008) 72 NSWLR 305 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 Muldrock v R [2011] HCA 39 Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 Newcastle City Council v Pepperwood Ridge Pty Limited [2004] NSWLEC 218 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Fletcher [2007] NSWLEC 596 Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 R v AB [2011] NSWCCA 229 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Koloamatangi [2011] NSWCCA 288 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Pearson [2005] NSWCCA 116 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13; [2002] Env LR 18 Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; (2003) 132 LGERA 1 Sullivan v R; Skillin v R [2008] NSWCCA 296; (2008) 51 MVR 572 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 Texts Cited: BJ Preston, 'Principled Sentencing for Environmental Offences', a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 B Craze et al, Soil testing procedures Department of Conservation and Land Management Department of Environment, Climate Change and Water "The Native Vegetation of the Sydney Metropolitan Catchment Management Authority Area" (2009) Department of Environment, Climate Change and Water NSW DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths M Tozer, "The native vegetation of the Cumberland Plain, western Sydney: systematic classification and field identification of communities" (2003) 8 Cunninghamia 1 Criminal Practice & Procedure NSW, LexisNexis Australia Category: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Kyluk Pty Limited (Defendant) Representation: Mr J Glissan QC (Prosecutor) Mr S Littlemore QC with Ms P Lane (Defendant) Office of Environment and Heritage (Prosecutor) McGirr James Hall (Defendant) File Number(s): 50604 of 2011

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Judgment 1Kyluk Pty Limited (the Defendant) pleaded guilty on 14 February 2012 to the offence that between about 11 June 2009 and 11 August 2009 contrary to s 118A(2) of the National Parks and Wildlife Act 1974 (the NPW Act) it picked plants that were part of an endangered ecological community (EEC), being "Shale/Sandstone Transition Forest in the Sydney Basin Region" (SSTF) as described in the Scientific Committee's Final Determination (the Final Determination). At the time of the offence SSTF was listed as an EEC in Sch 1 Pt 3 of the Threatened Species Conservation Act 1995 (the TSC Act). 2In pleading guilty the Defendant admitted the essential elements of this offence as particularised in the summons filed 15 July 2011. The Defendant has admitted that between about 11 June 2009 and 11 August 2009, it picked plants forming part of the SSTF at Lot 24 DP700072, known as 561 Appin Road, Gilead (the property) in the following manner: (a)it caused and/or permitted the picking of plants that were part of the SSTF at the property; and (b)it was the landholder of land at which plants that were part of the SSTF were picked. 3The offence is one of strict liability so that mens rea is not an element of the offence. This judgment considers the appropriate sentence for that offence. The parties' submissions, the evidence and the Statement of Facts refer to both picking and clearing. In this case there is no relevant distinction between the two terms.

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Relevant legislation 4The objects of the NPW Act, below, are to be achieved by applying the principles of ecologically sustainable development as provided for by s 2A(2): 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation. 5Section 118A(2) of the NPW Act states: 118A Harming or picking threatened species, endangered populations or endangered ecological communities (2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community. Penalty: (a) in respect of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community-2,000 penalty units or imprisonment for 2 years or both, and an additional 100 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence, (b) in respect of any vulnerable species-500 penalty units or imprisonment for 1 year or both, and an additional 50 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence. 6Part 2 Div 2 of the TSC Act provides for listing of EECs by the Scientific Committee appointed under the TSC Act. Division 3 specifies the procedure for such listing. The Final Determination is made by the Scientific Committee and must be gazetted (s 24(1)(d) TSC Act). Part 3 of Sch 1 of the TSC Act lists EECs. An EEC referred to in the NPW Act has the same meaning as in the TSC Act. The objects of the TSC Act are set out in s 3 as follows: 3 Objects of Act The objects of this Act are as follows: (a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management. 7Part 15 s 194 (Div 2), 199, 200 and 205 (Div 3) of the NPW Act inserted by the National Parks and Wildlife Amendment Act 2010 commenced on 2 July 2010 after the date of the offence in 2009. These sections apply by virtue of the transitional provisions made at the time of the amendment and relevantly state: 194 Sentencing-matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area-the views of Aboriginal persons who have an association with the object, place or area concerned, (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant. 199 Orders generally (1) Orders may be madeOne or more orders may be made under this Division against the offender. (2) Orders are additionalOrders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. (3) Other action not requiredOrders may be made under this Division regardless of whether any penalty is imposed, or other action taken, in relation to the offence. 200 Orders for restoration and prevention (1) The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow): (a) to prevent, control, abate or mitigate any harm caused by the commission of the offence, or ... (c) to make good any resulting damage, or (d) to prevent the continuance or recurrence of the offence. (2) The court may order the offender to provide security to the court or to the Director-General for the performance of any obligation imposed under this section. (3) An order under subsection (2) must specify: (a) the amount of the security required to be provided, and (b) the kind of security required to be provided, and (c) the manner and form in which the security is to be provided. ... 205 Additional orders (1) OrdersThe court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person, (b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct), (c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit, (d) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes, (e) order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court, (f) order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court. The Local Court is not authorised to make an order referred to in paragraph (c) or (d). (2) MachineryThe court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. (3) Failure to publicise or notifyIf the offender fails to comply with an order under subsection (1) (a) or (b), the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify: (a) the original contravention, its consequences, and any other penalties imposed on the offender, and (b) the failure to comply with the order. (4) Cost of publicising or notifyingThe reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender. 8Section 21A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) relevantly states: 21A Aggravating, mitigating and other factors in sentencing (1) GeneralIn determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factorsThe aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent, (cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance, (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, (ea) the offence was committed in the presence of a child under 18 years of age, (eb) the offence was committed in the home of the victim or any other person, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth), (ib) the offence involved a grave risk of death to another person or persons, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain, (p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender's vehicle. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. ... (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

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Final Determination under TSC Act 9The Scientific Committee's Final Determination to list the SSTF in the Sydney Basin Bioregion as an EEC relevantly states: The Scientific Committee, established by the Threatened Species Conservation Act, has made a Final Determination to list the Shale/Sandstone Transition Forest in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Part 3 of Schedule 1 of the Act. The listing of endangered ecological communities is provided for by Part 2 of the Act. The Scientific Committee has found that:

Shale/Sandstone Transition Forest (SSTF) is the name given to the plant community characterised by the species assemblage listed in paragraph 4, which occurs on areas transitional between the clay soils derived from Wianamatta Shale and the sandy soils derived from Hawkesbury Sandstone on the margins of the Cumberland Plain. All sites are within the Sydney Basin Bioregion. (The community is identified and discussed in UBBS (1997) under the name Western Shale/Sandstone Transition Forest. Most of the UBBS Eastern Shale/Sandstone Transition Forest is attributable to Cooks River Clay Plain Scrub Forest.)
SSTF occurs or has occurred in the Bankstown, Baulkham Hills, Blue Mountains, Campbelltown, Hawkesbury, Liverpool, Parramatta, Penrith, and Wollondilly Local Government Areas (LGAs).
The floristic composition of the community includes species otherwise characteristic of, or occurring in, either sandstone or shale habitats. The structure of the community is forest or woodland.
SSTF is characterised by an assemblage of species: [lists 106 species of plants] Not all these species will be present in every single stand, and the total species list from all stands of the community is considerably larger than that listed above. Depending on the disturbance history of a particular site a proportion of the species may be present only in the soil seed bank.
Characteristic tree species in SSTF are; Eucalyptus punctata, Eucalyptus resinifera, one of the stringybarks (Eucalyptus globoidea, Eucalyptus eugenioides, Eucalyptus sparsifolia, Eucalyptus agglomerata). One or more ironbarks (Eucalyptus fibrosa, Eucalyptus crebra, Eucalyptus paniculata, Eucalyptus beyeriana) may be locally important
Species composition varies between sites depending on geographical location and local conditions (e.g., topography, relative influence of sandstone or shale).

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Evidence 10The Chief Executive, Office of Environment and Heritage (the OEH) (the Prosecutor) tendered a Statement of Facts with numerous annexures (exhibit F). Following rulings on admissibility the Statement of Facts was admitted. Ellipses indicate material excluded by ruling or not pressed. "Omitted" in square brackets reflects the original statement tendered to the Court. It provides (excluding references to annexures) as follows: BACKGROUND The defendant 4Kyluk is a property development company that is involved in purchasing and managing commercial and rural property in south-west Sydney. Mr Steven Michael Cenatiempo is a company director of Kyluk and is responsible for managing the properties owned by the company and the finances for the company. The other listed directors of the company are Mr Giovanni Cenatiempo and Ms Teresa Cenatiempo. ... The Property 5Kyluk is the registered proprietor of the Property, having purchased the Property on 13 February 2003. The Property is used by Kyluk for grazing cattle. 6The Property is approximately 40.31 hectares in area and is within the Campbelltown local government area. The property is accessed by an existing right of carriageway on Lot 1 DP 70208, also known as Leafs Gully Road, which connects to Appin Road. A copy of an aerial photograph showing the property, Leafs Gully Road and Appin Road. 7The Property is located approximately 5 km north of Appin on the Southern Tablelands of NSW. A creek-line is located inside the western boundary of the Property. To the north-east of the creek- line, the fall of the land within the Property is generally towards the south-west and west. MAPS AND AERIAL PHOTOGRAPHS Maps and aerial photographs of the Property (showing vegetation at the Property before the date of the offence) 8The following maps and aerial photographs show the vegetation present at the Property at various stages before the date of the offence: a.A copy of the aerial photographs, dated April 2008, January 2005, April 2003, November 2000, January 1998, April 1995, March 1992, February 1982, October 1977, April 1972, October 1965 and August 1956. b.A copy of the aerial photograph of the Property available through Google Earth online dated February 2007. c.A copy of the SPOT5 satellite image of the Property dated 11 June 2009. Maps and aerial photographs of the Property (showing vegetation at the Property after the date of the offence) 9The picking of vegetation was carried out on the Property in approximately July and August 2009. 10The following maps and aerial photographs show the vegetation present at the Property at various stages after the date of the offence: a.Aerial photographs showing the vegetation present at the Property as at 21 August 2009. b.Aerial photographs showing the vegetation present at the Property as at 6 September 2009. c.A copy of the aerial photograph of the Property available through Google Earth online dated 31 October 2009. CHRONOLOGY 11The following section is a chronology of the relevant events related to the picking of vegetation at the Property. 12[Omitted]. 13[Omitted]. 14[Omitted]. 29 July 2009: Observations from Mr Steven Jackson 15On 29 July 2009, Mr Steven Robert Jackson, an employee of AGL Energy Limited was driving down Leafs Gully Road and observed that there was no sign of any recent clearing on the Property. 7 August 2009: Email complaint to OEH 16On 7 August 2009, the Office of Environment and Heritage ("OEH") Environment Line email account received an email from an anonymous email address stating that: "Over the last couple of days there has been a lot of trees clearing on the land near where AGL is building a power station on off Appin Road at Gilead (Leafs Gully), this is supposed to be for Koala habitat". The email complaint was forwarded to OEH Senior Regional Operations Officer Melinda Hale, who subsequently advised Campbelltown City Council. 11 August 2009: Observation of clearing by Mr Steven Jackson 17On 11 August 2009, Mr Steven Robert Jackson, an employee of AGL Energy Limited was driving down Leafs Gully Road and noticed that vegetation of the Property had been extensively cleared. Mr Jackson observed an extensive area that had been almost completed cleared of vegetation, including large trees, bushes and grasses. The cleared vegetation had been pushed into windrows. 12 August 2009: Inspection of Property 18On 12 August 2009, Campbelltown City Council Officers Leslie Winch and Michael Plummer attended the Property and carried out an inspection. During the inspection, the Council Officers observed that: a.Large scale land clearing works had recently been undertaken, involving the felling of trees and understorey, and the stripping of other vegetative material. b.Felled trees and land clearing debris were left in piles, pushed into windrows across the cleared area of the land, and were present in the creek-line. c.Photographs taken of the Property by the Officers on 12 August 2009. 19... 13 August 2009: Inspection of Property 20On 13 August 2009, OEH Officers Jennifer Byrne, Melinda Hale and Dennis Pascall and Campbelltown City Council Officers Michael Plummer and Grahame Dawson attended the Property at about 10:15am and carried out an inspection. During the inspection, the OEH and Council Officers observed that: a.There was a "John Deere" backhoe fitted with an excavation arm and bucket located on the Property. b.Trees and understorey vegetation had been pushed into a number of windrows located across the Property, including areas close to the creek-line. c.There were large areas of bare soil and sandstone rock outcrops where the trees and understorey vegetation had been removed. d.Photographs taken of the Property by the Officers on 13 August 2009. 21 [Omitted]. 14 August 2009: Telephone conversation with Mr Cenatiempo 22At about 3:45pm on 14 August 2009, Officer Dawson received a telephone call from Mr Steven Cenatiempo. They had a conversation in words to the following effect: Mr Dawson said:"Are you the owner of 561 Appin Road, Gilead?" Mr Cenatiempo said:"Yes" Mr Dawson said:"Why was the vegetation cleared" Mr Cenatiempo said:"It was cleared because cows are going to be placed on the land and the main reason for clearing the land was for fire hazard reduction they have had a lot of fires in the past. Why what's wrong?" Mr Dawson said:"You need council approval to remove one tree." Mr Cenatiempo said:"I didn't know that." Mr Dawson said:"Can you give Council an undertaking that no further clearing will be conducted?" Mr Cenatiempo said:"Yes, no more work will be done." Mr Dawson said:"Council is in the process of writing to you requesting information as to why the trees and vegetation was removed." Mr Cenatiempo said:"Yes." Mr Dawson said:"Who cleared the vegetation?" Mr Cenatiempo said:"Its like I said it was cleared due to being a fire hazard." Mr Dawson said:"Council's letter will also require that a meeting be arranged to discuss the land clearing with you." Mr Cenatiempo said:"Yes." Mr Dawson said:"I will relay the information to the council officers involved in this matter and advise them that you didn't know you required council approval to remove the vegetation due to fire hazard reduction, and that no further work will be conducted on the property." 23... 24... 25At about 12:48pm, Officer Dawson attended the business premises of Kyluk at 9 Lincoln Street, Minto NSW 2566 and hand delivered the letter to Mr Cenatiempo. Upon arrival, they had a conversation in words to the following effect: Mr Dawson said:"Are you Michael Steven Cenatiempo?" Mr Cenatiempo said:"Yes." Mr Dawson said:"I have correspondence from Council regarding the land clearing at 561 Appin Road, Gilead." [Mr Dawson handed him the envelope]. Mr Cenatiempo said:"Ok." [Mr Cenatiempo opened the envelope] Mr Dawson said:"Council recognises that you stopped all further work when instructed." Mr Cenatiempo said:"Well I don't feel I did anything wrong." Mr Dawson said:"When you read and absorb the information Council would like to meet with you about the land clearing." Mr Cenatiempo said:"That's fine." Mr Dawson said:"The contact details are on the Order and Prevention Notice." Mr Cenatiempo said:"Yes, I will look at it and ring you." Late August 2009: Kyluk engages Anderson Environmental Consultants Pty Ltd 26In late August 2009, Kyluk engaged Anderson Environmental Consultants Pty Ltd to provide advice on the preventative action required to stabilise the areas of cleared/disturbed land on the Property. Mr Jason Anderson of Anderson Environmental Consultants Pty Ltd gave advice to Mr Cenatiempo over the phone that in general mulching would reduce the risk of erosion. After being advised by Mr Cenatiempo that there was mulch already present on the Property, Mr Anderson recommended that Mr Cenatiempo spread the mulch over the area of cleared/disturbed land on the Property as an immediate measure. 27Kyluk subsequently engaged Green Waste Australia Pty Limited and Cockerill Contracting Pty Limited to mulch the vegetation that had been placed in windrows on the Property and to apply the mulch to the area of cleared/disturbed land on the Property. Green Waste Australia Pty Limited and Cockerill Contracting Pty Limited undertook this work from approximately 25 August 2009 until 9 September 2009. The total cost for the mulching works over this period was $32,262.50. 28... 29... 28 August 2009: Inspection of Property 30On 28 August 2009, Campbelltown City Council Officers Grahame Dawson and Michael Plummer attended the Property at 11:15am and carried out an inspection. During the inspection the Council Officers observed that: a.There were approximately 6 to 8 persons operating pieces of heavy machinery to mulch vegetation and spread the mulch at the Property. b.... c.Photographs taken of the Property by the Officers on 28 August 2009. 31... 32... 29 August 2009: Inspection of Property 33On 29 August 2009, Campbelltown City Council Officer Russell Hart attended the Property and carried out an inspection. During the inspection Officer Hart observed there to be several large earthmoving and other plant machines on the Property, that appeared to be locked up and that no works were under way on the Property. Photographs taken of the Property by Officer Hart on 29 August 2009. 30 August 2009: Inspection of Property 34On 30 August 2009, Campbelltown City Council Officer Russell Hart attended the Property and carried out an inspection. During the inspection Officer Hart observed there to be several large earthmoving and other plant machines on the Property, that appeared to be locked up and that no works were under way on the Property. Photographs taken of the Property by Officer Hart on 30 August 2009. 31 August 2009: Inspection of Property 35On 31 August 2009, Campbelltown City Council Officer Michael Plummer attended the Property and carried out an inspection. During the inspection Officer Plummer observed there to [be] no works undertaken on the Property. Photographs taken of the Property by Officer Plummer on 31 August 2009. 36... 3 September 2009: Inspection of Property 37On 3 September 2009, Campbelltown City Council Officers Grahame Dawson, Leslie Winch and Mike Plummer attended the Property and carried out an inspection. During the inspection, the Council Officers observed that: a.A number of male persons were observed operating machinery on the site, mulching the felled trees and undergrowth. b.Photographs taken of the Property by the Officers on 3 September 2009. 38... 39... 7 September 2009: Inspection of Property 40On 7 September 2009, Campbelltown City Council Officer Grahame Dawson attended the Property at about 10:54am to carry out an inspection. During the inspection Officer Dawson observed that the machine previously used to mulch the vegetation was not being used and that no activity was being undertaken on the Property. 41... 8 September 2009: Inspection of Property 42On 8 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. From the road, Officer Plummer observed that: a.There were several utility type vehicles on the property and 3 mechanical excavator type machines being used by 6 persons to mulch vegetation at the Property. b.Photographs taken of the Property by Officer Plummer on 8 September 2009. 10 September 2009: Inspection of Property 43On 10 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. From the road, Officer Plummer observed that there was various machinery and mulched piles of vegetation located on the Property but that no works were being undertaken at the Property. Photographs taken of the Property by Officer Plummer on 10 September 2009. 16 September 2009: Inspection of Property 44On 16 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. Officer Plummer observed that apart from the "John Deere" backhoe, all other machinery had been removed from the Property. 45... 2 October 2009: Inspection of Property 46On 2 October 2009, Campbelltown City Council Officers Grahame Dawson and Michael Plummer attended the Property with Ms Teresa James to carry out an inspection of the Property. During the inspection, the Officers observed that: a.Mulch had been spread in number of locations on the Property. b.A number of trees damaged by the clearing works and that there had been disturbance to the sandstone rocks and boulders at the Property. c.Vegetation had been pushed into the creek-line located at the Property. d.Photographs taken of the Property by the Officers on 2 October 2009. [omitted] 47[omitted]. 10 September 2010: Notice for information and records 48On 10 September 2010, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 1 October 2010. Kyluk responded to the notice for information and records as follows: a.On 1 October 2010, Kyluk provided its response to the notice by letter to OEH. In its response to the notice, Kyluk advised that it had no knowledge of the clearing. 8 October 2010: Notice to nominate a corporate representative 49On 8 October 2010, OEH issued a statutory notice requesting Kyluk to nominate a person to answer questions as Kyluk's corporate representative by 15 October 2010. In response to the notice Kyluk did the following: a.On 14 October 2010, Kyluk advised by letter to OEH that it nominated Mr Cenatiempo as Kyluk's corporate representative. 7 December 2010: Notice to nominate time and place for interview 50On 7 December 2010, OEH issued a statutory notice requesting Mr Cenatiempo, as the corporate representative of Kyluk, to nominate a time and place to attend and answer questions by 21 December 2010. In response to the notice Kyluk did the following: a.On 16 December 2010, Mr Cenatiempo issued a letter to OEH advising that the request to nominate a time and a place was not appropriate and not reasonable. Mr Cenatiempo also requested an extension of time to nominate a time and place of 14-21 days after the OEH's response to the letter was received by Kyluk. b.On 16 December 2010, OEH issued a letter to Mr Cenatiempo advising that should he fail to nominate a time and place by 21 December 2010, that OEH would nominate a time and place to attend and answer questions. c.On 20 December 2010, Mr Cenatiempo issued a letter to OEH advising that he nominated 8 February 2011 at the OEH offices in Sydney as the time and place to attend and answer questions. d.On 23 December 2010, OEH issued a letter to Mr Cenatiempo advising that the time and place nominated was not reasonable in the circumstances and requested that he nominate an alternative time and place by 5 January 2011. OEH also advised that should he fail to nominate a time and place by 5 January 2011, that OEH would nominate a time and place to attend and answer questions. e.On 4 January 2011, Mr Cenatiempo issued a letter to OEH advising that he nominated 26 January 2011 at the OEH offices in Sydney as the time and place to attend and answer questions. f.On 10 January 2011, OEH issued a letter to Mr Cenatiempo confirming that he was to attend and answer questions at the OEH offices in Sydney on 27 January 2011 (due to the public holiday on 26 January 2011). g.On 10 January 2011, Mr Cenatiempo issued a letter to OEH confirming that he was to attend and answer questions at his solicitor's offices in Sydney on 27 January 2011. 27 January 2011: Interview with Kyluk's corporate representative 51On 27 January 2011, Kyluk's corporate representative, Mr Cenatiempo, was interviewed under caution. During the interview, Mr Cenatiempo admitted that: a.Mr Cenatiempo stated that he had no knowledge of the clearing taking place on the Property. b.Mr Cenatiempo stated that during his inspection of the Property after the clearing he observed up to 20 trees cleared on the Property. c.Mr Cenatiempo stated that he was aware that the removal of trees on the Property required council approval before works were undertaken to remove the trees. 9 February 2011: Notice for information and records 52On 9 February 2011, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 23 February 2011. Kyluk responded to the notice for information and records as follows: a.On 23 February 2011, Kyluk advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that it requested a 14 day extension to the deadline. b.On 24 February 2011, OEH advised by letter to Kyluk that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 2 March 2011. c.On 1 March 2011, Kyluk provided its response to the notice by letter to OEH. In its response to the notice, Kyluk advised that it had no knowledge of the clearing taking place on the Property. 9 February 2011: Notice for information and records 53On 9 February 2011, OEH issued a statutory notice requesting Mr Cenatiempo (in his capacity as a director of Kyluk) to provide information and/or records in relation to any clearing occurring on the Property by 23 February 2011. Mr Cenatiempo responded to the notice for information and records as follows: a.On 23 February 2011, Mr Cenatiempo advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that he requested a 14 day extension to the deadline. b.On 24 February 2011, OEH advised by letter to Mr Cenatiempo that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 2 March 2011. c.On 1 March 2011, Mr Cenatiempo provided his response to the notice by letter to OEH. 24 March 2011: Notice for information and records 54On 24 March 2011, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 1 April 2011. Kyluk responded to the notice for information and records as follows: a.On 28 March 2011, Kyluk advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that it requested a 21 day extension to the deadline. b.On 29 March 2011, OEH advised by letter to Kyluk that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 4 April 2011. c.On 7 April 2011, OEH advised by letter to Kyluk that the time for compliance with the notice had now passed and that Kyluk was in breach of the notice. OEH advised that the obligation to comply with the notice nevertheless continued, even though the due date for compliance had now passed. d.On 7 April 2011, Kyluk provided its response to the notice by letter to OEH. 6 May 2011: Notice to nominate time and place for interview 55On 6 May 2011, OEH issued a statutory notice requesting Mr Cenatiempo, as the corporate representative of Kyluk, to nominate a time and place to attend and answer questions by 20 May 2011. In response to the notice Kyluk did the following: a.On 20 May 2011, Mr Cenatiempo issued a letter to OEH advising that he nominated 31 May 2011 at his solicitor's offices in Sydney as the time and place to attend and answer questions. 31 May 2011: Interview with Kyluk's corporate representative 56On 31 January 2011, Kyluk's corporate representative, Mr Cenatiempo, was interviewed under caution. During the interview, Mr Cenatiempo stated that: a.Mr Cenatiempo stated that he had no knowledge of the clearing taking place on the Property. b.Mr Cenatiempo stated that he didn't know why cleared had occurred on the Property. Reports prepared by Anderson Environmental Consultants Pty Ltd 57Anderson Environmental Consultants Pty Ltd was engaged to provide various reports to Kyluk in relation to the clearing occurring at the Property. In total, Anderson Environmental Consultants prepared 4 reports for Kyluk: a."Preliminary Erosion Control Works Plan, Assessment and Certification for 561 Appin Road Campbelltown City Council" (September 2009). b."Long Term Erosion Control Plan for 561 Appin Road, Campbelltown City Council LGA" (October 2009). c."Ecological Restoration Plan for 561 Appin Road, Gilead Campbelltown City Council LGA" (January 2010). d."Flora and Fauna Assessment and Seven Part Tests of Significance for 561 Appin Road, Gilead Campbelltown City Council" (February 2010). The current state of vegetation at the Property 58Kyluk has not undertaken any remediation works at the Property (with the exception of those works undertaken in response to the emergency order and prevention notice). Kyluk has at no stage submitted any development applications in connection with any remediation works proposed to be undertaken at the Property. 59... 60On 23 November 2011, Campbelltown Officers Leslie Winch and Grahame Dawson attended the Property to carry out an inspection. The Officers observed that: a.The previously cleared areas on the Property had been recolonised by a number of invasive weed species as well as some eucalypt species. b.The regrowth seemed to be concentrated around the windrows; in the open areas the regeneration appeared to be mostly of grasses. c.Photographs taken by the Officer on 23 November 2011. 61... SHALE/SANDSTONE TRANSITION FOREST EEC The nature and distribution of Shale/sandstone Transition Forest EEC 62In 1998, SSTF EEC was listed as an endangered ecological community on Part 3 of Schedule 1 to the Threatened Species Conservation Act 1995. In 2001, SSTF EEC was listed as a threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). 63[omitted]. 64SSTF EEC It is restricted to transitional sandstone and shale soils within the Sydney region, particularly at the edge of the Cumberland Plain in western Sydney. Approximately 9,642 ha of SSTF remain in intact condition comprising 21% of the pre-1750 extent. Only 420 ha or 4% of remaining SSTF EEC is protected on OEH estate. SSTF EEC provides habitat for a number of plant species of national, state and regional conservation significance. 65SSTF EEC is threatened by further loss and fragmentation of habitat. Clearing for agricultural land and residential development have led to increasingly isolated small remnants which are more susceptible to degradation, provide less habitat values and support fewer species. ... 11Annexures to the Statement of Facts included consultant reports from Anderson Environmental Consultants Pty Ltd prepared to assist the Defendant comply with statutory notices from the Council. These outlined measures to be taken after the clearing event such as the spreading of mulch to reduce erosion.

[6]

Expert reports 12In Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22 (Kyluk (No 1)) I determined on a voir dire to admit expert reports of Mr Tulau, Senior Environmental Scientist with the Soil Science Section at OEH, and Ms James, consultant botanist/ecologist, tendered by the Prosecutor.

[7]

Ms James 13Exhibit TAJ-1 to Ms James' affidavit filed on 15 July 2011, her curriculum vitae, states that she specialises in vegetation survey, plant identification and conservation assessment. Until October 1998 she held the position of Identifications Botanist, Plant Sciences, National Herbarium of NSW, Royal Botanic Gardens. She holds a Bachelor of Science. 14Exhibit TAJ-5 to Ms James' affidavit filed on 30 November 2011 states that Ms James visited the property on 2 October 2009 and 15 December 2010. She was instructed to provide her opinion as to the extent and size of the EEC picked on the property, the extent of harm/damage caused or likely to be caused by the clearing, and the significance of the EEC. In preparing her report she considered, among other things, a map "extent of cleared area" prepared by Ms Byrne dated February 2011 which was annexed to her report. 15On 15 December 2010 Ms James undertook a foot survey across the property for approximately five hours in a selection of the areas surveyed in 2009 in order to provide information on changes that have occurred since 2009. Figure 1 identifies the approximate location of the survey areas and extent of clearing across the site and marks out the areas resurveyed in 2010. The resurveyed areas were selected to sample both EECs and their respective soils and different parts of the property, including close to the outer extent of alleged clearing. Ms James observed that regeneration of native species is occurring across much of the affected area except in patches where there is a deeper layer of mulch or highly compacted soil. The regenerating vegetation includes species characteristic of SSTF. The area of SSTF pre-clearing is more accurately calculated with information from soil analysis and GIS mapping by Ms Byrne. The area of SSTF cleared is estimated to be 12.54 ha. 16Both the transitional soils and sandstone derived soils support SSTF. The sandstone derived soils close to the main creek line support a high sandstone form of the EEC which can occur on Hawkesbury sandstone derived soils and locally corresponds with Hinterland Sandstone Transition Grey Gum Forest and most commonly occurs on the fringes of the Cumberland Plain within the Campbelltown and Liverpool local government areas. Characteristic tree species occur close to the creek. The transitional soils support vegetation more consistent with Cumberland Shale Sandstone Ironbark Forest which is also a component of SSTF that occurs on the fringes of the Cumberland Plain. Sixty-five per cent of the species listed for the community are represented at the property within the transitional areas. Two publications Ms James referred to (M Tozer, "The native vegetation of the Cumberland Plain, western Sydney: systematic classification and field identification of communities" (2003) 8 Cunninghamia 1, and Department of Environment, Climate Change and Water "The Native Vegetation of the Sydney Metropolitan Catchment Management Authority Area" (2009) Department of Environment, Climate Change and Water NSW) identify both high and low sandstone influence communities as components of the SSTF. Ms James states that the distribution of these two forms (high and low sandstone influence communities) in the OEH mapping and the more detailed site inspection shown in Fig 2 were very similar. Figure 2 shows the approximate extent SSTF on the property, main extent of clearing in 2009 and location of soil pit sites. Ms James states that the Final Determination predates the publications she referred to and is less specific in relation to soils and sandstone influence although par 9 identifies that the EEC can occur on both shale and sandstone derived soils. The characteristic canopy species of the higher sandstone parts of the property are included in the listing provided in par 4 of the Final Determination. 17In relation to environmental significance, Ms James states that SSTF has been listed as an endangered community at both state and national levels since 1998 and 2001 respectively. Approximately 9,642 ha of SSTF remain in intact condition comprising 21 per cent of pre-1750 extent. Only 420 ha or 4 per cent of remaining SSTF is protected on OEH estate. SSTF is a variable community with different forms that reflect varying sandstone influence and geographical location. The pre-clearing vegetation was of high conservation value. There is a history of disturbance at the property although significant clearing of vegetation only occurred twice including in 2009. The clearing in 2009 removed a significant proportion of the 17 years of growth of SSTF. The level of vegetation and species richness recorded in her inspections is consistent with this finding. The frequency and intensity of the clearing and the extent of soil disturbance are key factors in determining the success of regeneration and species richness. The impacts of clearing have been most significant on the extent and diversity of trees and shrubs. Tree cover prior to clearing, based on an aerial photograph taken in 2009, varied across the property but tree cover in December 2010 was significantly less. Tree and shrub regeneration is occurring but it is patchy and at lower densities than the original cover. These trees are likely to take almost 20 years to reach the size of the felled trees. Natural re-establishment of the pre-clearing tree cover will take significantly longer due to the extensive removal of trees (limiting regrowth) and seed held in capsules as well as soil disturbance and it is not assured unless the property is protected and managed appropriately. 18Exhibit TAJ-7 to Ms James' affidavit filed on 20 December 2011 attaches a report dated 16 December 2011 prepared in response to a request by OEH in November 2011 to provide a supplementary report in relation to, among other things, the extent that SSTF will regenerate on the property and whether there is any evidence of steps taken to remediate the cleared areas on the property. On 30 November 2011 Ms James inspected the eastern end of the adjoining property for the first time and undertook a foot traverse within vegetation immediately adjacent to the subject property. From the road and across the fence line from the adjoining land, Ms James made the following observations: the shrub layer had regenerated across the property "within cleared areas and where under scrubbing has occurred", SSTF on sandstone influenced soils was regenerating, some grazing had recently occurred based on evidence of cow dung and condition of groundcover, there was no evidence of weed control with strong growth of noxious and environmental weeds including lantana, which was not previously recorded for the property and required urgent control. There was good connectivity of native vegetation between the site and the adjoining land. 19Ms James states that it is likely the SSTF will "regenerate and recover sufficiently over 5 to 20+ years to re-establish a tree, shrub and ground layer providing no further clearing occurs. The composition and integrity of the regrowth is more difficult to determine". She expects that the clearing will encourage greater regrowth of more resilient species increasing the risk of species loss within the ground layer and smaller shrub layer and highlights that there are many references to the adverse impacts of clearing and soil disturbance on recovery ability, species diversity and integrity. Ms James notes that the specific requirements of individual species are complex and largely unknown, that slower growing shrubs dependant on regeneration from seed and more sensitive species are most at risk, and that weed invasion poses a major threat to regeneration. 20Ms James states that the condition of SSTF (of both high and low sandstone influence) pre-clearing was moderate to good and observed that both forms of SSTF were subject to disturbance including through clearing of vegetation. She states that the likelihood of loss of vegetative rootstock and seed from the property as a result of disturbance is moderate for high sandstone influence SSTF and high for low sandstone influence SSTF. Ms James found that neither form is likely to return to its pre-clearing conditions. In relation to high sandstone influence SSTF this is "largely due to the extent and depth of mulch applied to the soil and invasion by exotic, weedy species". In relation to low sandstone influence SSTF she states, "Although low sandstone SSTF at the [property] appears to be regenerating well it is unlikely to return to pre-clearing species diversity particularly in wetter or more isolated sites ... due to loss of species, dense shrub regrowth and weed invasion. SSTF close to the western perimeter is more likely to recover due to a good source of available propagules and less soil disturbance." In her concluding paragraph, Ms James states that due to its inherent resilience SSTF has the potential to "condition similar to that of pre-clearing, however, this is likely to be limited by dense regrowth of woody shrubs, the extent and depth of mulch applied to the soil surface and lack of weed control during a critical period. Both short-term and long term impacts of the clearing including loss of biodiversity (flora and fauna) and degradation of ... SSTF..." Ms James assessed whether the offence was likely to significantly affect the EEC (seven part test under the TSC Act) and concluded that there was potentially a significant impact on the SSTF. 21She made the following findings, among others, in conducting the seven part test. Firstly, "[r]egeneration is occurring within the SSTF and a form of the community is expected to persist at the [property] and, therefore, the clearing is unlikely to adversely affect the extent of the community." Secondly, the composition and structure of the SSTF was substantially modified reducing its "capability to recover pre-clearing species diversity and structural complexity. The original community has been replaced by an open and simplified environment with limited micro-climate and niche availability of plant and animal species. Resilient woody shrubs frequent at the [property] prior to clearing ... are likely to return at even greater intensities. Condition of the vegetation prior to clearing has been assessed as moderate to good ... Although SSTF at the [property] has been substantially and adversely modified, the local occurrence is unlikely to have been placed at risk of extinction." 22Thirdly, "[a]lthough regeneration is occurring it will be several years before reasonable structure and complexity is re-established and some permanent damage is likely. High intensity clearing is known to result in reduced diversity as sensitive species are lost and the more resilient increase in frequency and cover ... Such loss of habitat is likely to be permanent unless a good tree canopy is allowed to re-establish ... SSTF at the [property] pre-clearing provided habitat for many plant and animal species including habitat for threatened species ..." Fourthly, "[t]he 2009 clearing has slightly increased fragmentation of SSTF in the north-east of the [property] with greater disconnection now between the main remnant (on the [property]) and similar vegetation on the adjoining block. This is of particular concern as the area is part of an important biodiversity corridor linking the Georges and Nepean Rivers ..." 23Fifthly, "SSTF present at the [property] is one of the largest and most intact remnants in the local area and within a key biodiversity corridor linking the Georges and Nepean Rivers. It is critical to the long-term survival of the ecological community within this biodiversity corridor as well as to the corridor itself ... SSTF at the property provides potential habitat for several threatened flora and fauna." Sixthly, the offence comprises a key threatening process. Other threatening processes that are likely to have increased as a result of the offence include, among others: invasion by exotic perennial grasses, invasion and establishment of exotic vines and scramblers, loss of hollow trees, and removal of dead wood and dead trees.

[8]

Mr Tulau 24Mr Tulau holds a Bachelor of Science majoring in soils and geomorphology and is currently a PhD candidate. His expert report (exhibit A) dated June 2011 arose from instructions provided by the Legal Services Branch on 11 November and 9 December 2010. Mr Tulau was asked to provide an expert opinion as to whether soils and landforms located at the property were consistent with those described in the Final Determination and the extent and area of soils and landforms present. On his inspection of the property on 15 December 2010 in the company of officers from the Department of Environment, Climate Change and Water (DECCW) (as it was then known), the Commonwealth Department of Sustainability, Environment, Water, Population and Communities and Ms James, Mr Tulau conducted a soil inspection of the six sites located by Ms James using GPS, photographed the soil, took basic field measurements and collected samples. He made observations concerning the extent of harm/damage caused or likely to be caused to soil and the property caused by the offence. 25Mr Tulau requested particle size analyses for 14 samples submitted to the Department's Yanco Natural Resources Laboratory from the six sites using the methodology of B Craze et al, Soil testing procedures Department of Conservation and Land Management. Aerial photograph interpretation was carried out using photographs taken after the clearing and dated 21 August 2009 and 6 September 2009 to estimate the approximate boundaries of the different soil types taking into account the soil types at known sites, the occurrence of visually identifiable sandstone rock outcrop and the topography and elevation of the property. In relation to site 4 (located on a south west facing slope in the north-eastern part of the study area and on the northern side of the drainage line that runs through the study area) Mr Tulau concluded, "the soils at this site were largely derived from shale. However, it appears to be close to a sandstone source, and could also be characterised as a transitional soil." In relation to site 8 (located on a north-facing slope, and on the southern side of the drainage line) Mr Tulau concluded, "the soils at this site were largely derived from sandstone but are partly transitional to shale materials." 26Mr Tulau compared the particle size analyses from the six sites to published results on particle size analyses from soils of known derivation and from similar landscapes from elsewhere in the Sydney Basin. Mr Tulau states that the results from Fig 9 (triangular particle size fraction diagram) and table 7 (summarising the type and abundance of coarse fragments identified using a hand lens) together with other field indicators indicate that the soils at site 4 are largely derived from shale but could also be characterised as transitional and those at site 8 are largely derived from sandstone but are partly transitional to shale. Figure 10 is an aerial photograph indicating the transitional area by showing the approximate boundaries of shale transitional (yellow dotted line) and sandstone transitional (orange dotted line) soils. The approximate boundary of cleared area is also demarcated by a thick green line. Mr Tulau estimated that the spatial extent of the areas of the property consistent with soils and landforms described in the Final Determination as an EEC is approximately 5 ha. 27In cross-examination, Mr Tulau clarified that soil at site 4 is largely derived from shale, "but could perhaps better be characterised as transitional" as "it included sandstone gravels". The Defendant's counsel asked whether the qualification expressed about site 4 (of "perhaps" and "could be") also applied to site 8 and Mr Tulau replied, "Yes". Prior to being asked that question he said that soils at both sites were transitional, meaning they are "partly derived from one material, and partly derived from another material" and added, "it's very difficult to draw accurate boundaries, and there comes a time when you need to make a decision as to what the major constituent of the soils is".

[9]

Ms Byrne 28In her affidavit dated 20 December 2011, Ms Byrne states that she has been employed as a regional operations officer by the OEH since 1 May 2008. On 26 August 2011 she drove along Leafs Gully Road, parked near the property, and took photographs from the property boundary. One of the photographs Ms Byrne took (exhibited to her affidavit in JRB-50) shows six cattle grazing vegetation on the property.

[10]

Mr Winch 29The affidavit of Mr Winch dated 25 November 2011 states he has been employed as a tree management officer by Campbelltown City Council since June 1987. He is a certificate IV arborist and holds a certificate in horticulture and claims expertise in horticulture and in the identification and cultivation of native plants. In response to an email received on 11 August 2009 from the DECCW (as it was then known) regarding clearing, Mr Winch carried out an inspection of the property with another Council officer, on 12 August 2009. During the inspection Mr Winch observed that there had been complete devastation of the vegetation, there were cleared trees, undergrowth and debris in piles and windrows across large sections of the property, and there were felled trees and debris in the creek. Based on these observations, Mr Winch concluded that large scale clearing works had recently taken place on the property. He estimated that approximately six acres had been cleared. By making a rough estimation of the number of tree trunks in each windrow and of the number of windrows, Mr Winch estimated that between 5,000 and 7,000 medium to large trees had been removed. He identified specific trees in the windrows by examining the leaves and bark of the felled trees. He conducted a further inspection on 23 November 2011 with another Council officer to observe the regeneration on the property. He noted that the cleared areas had been recolonised by invasive weed species and that there were sapling eucalypt species.

[11]

Records of interview 30The Prosecutor also tendered Mr Steven Cenatiempo's records of interview (ROIs) with officers of the OEH dated 27 January 2011 and 31 May 2011 (exhibit E). Mr Cenatiempo's ROI dated 27 January 2011 records that he was cautioned and that he objected to answering any questions on the ground that it might incriminate him. Mr Cenatiempo said he attended the interview as the nominated representative of the Defendant and that he has been a director for 15 to 20 years. He said if the role of day-to-day management of the property "had to fall on somebody" it would be him but he did not manage it on a daily basis. Mr Cenatiempo said he had responsibility for authorising work to be done on the property but if other directors wanted work done on the property, they would not have to ask him. He became aware of the clearing after receiving a telephone call from the Council. Afterward he inspected the property and observed that some (approximately 6 to 20) trees had been "pushed over". He did not authorise anyone to "push over" vegetation on the property and was not aware of anyone else in the company who would have authorised such action. Mr Cenatiempo said anything the Defendant did has always been done with development consent and they contacted "council to try to rectify the problem" and spent over "$20,000 on reports on how to fix the problem". Mr Cenatiempo knew the Defendant needed development consent to remove a tree in the way on a construction site which is what they did before touching trees on the Blaxland Road site where there were trees that were "in a pretty dangerous situation". 31In his ROI dated 31 May 2011 Mr Cenatiempo stated he was unaware of clearing taking place before receiving the telephone call from Council. He denied that the clearing had been undertaken for grazing purposes, as stated in the report by Anderson Environmental Consultants dated January 2010.

[12]

Evidence of Defendant 32The Defendant read the affidavit of Mr McGirr, solicitor, filed in Court on 22 February 2012 which includes a schedule summarising the costs incurred by the Defendant of carrying out mitigation works (including consultants' fees and the costs of mulching as advised by Anderson Environmental Consultants) pursuant to a notice issued by Campbelltown City Council. Copies of invoices were exhibited to his affidavit. These total $127,975.54.

[13]

Prosecutor's submissions 33The nature of the offence should be considered in light of the objects in the statutory scheme, here the NPW Act and the TSC Act. The objects of the NPW Act in s 2A(1), s 2A(2) refer to the principles of ecologically sustainable development and are described in s 6(2) of the Protection of the Environment Administration Act 1991. Part 8A of the NPW Act creating a range of offences relating to threatened species, populations and ecological communities, and their habitats, was introduced by the TSC Act. The objectives of the TSC Act are set out in s 3. The nature of this statutory scheme under the NPW Act and TSC Act has been discussed in a number of cases (see for example Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51] - [71]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] - [55]).

[14]

Objective seriousness and aggravating factors 34In determining the objective seriousness of an offence, it is relevant to consider the degree to which an offence undermines the legislative objectives. The offence should be treated as objectively serious because the Defendant's actions in picking plants that formed part of the SSTF: (a)undermined the objects of the NPW Act and TSC Act, which aim to conserve nature (which includes habitat, ecosystems, ecosystem processes, biological diversity at the community, species and genetic levels). (b)undermined the statutory scheme that provides for the conservation of EECs. In this regard, the courts have stated that offences of this type, which by their nature undermine the integrity of the regulatory system, have been treated by sentencing courts as objectively serious (see Rawson at [55]). (c)runs contrary to the principles of ecologically sustainable development underpinning the statutory scheme, which place an emphasis on the need to assess the environmental impacts and risks associated with proposed activities and for prior environmental assessment (see Bentley at [65] - [71], [168] - [169]).

[15]

Environmental harm (NPW Act s 194(1)(a), CSP Act s 21A(2)(g)) 35The concept of "harm" has been considered in a number of environmental cases, which indicate that the concept is broad. It is not confined to actual harm. The potential risk of harm should also be taken into account: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. Harm is not confined to measurable harm, but can include a broader notion of harm to quality of life: see Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]. It can include harm to the environment and its ecology as harm to an animal or plant not only adversely affects that animal or plant but also affects biota that have ecological relationships to that animal or plant: see Bentley at [174]. In Environment Protection Authority v Waste Recycling and Processing Corporation at [147] Preston J stated: Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 36Harm needs to be considered in both its spatial and temporal ambit: see R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13; [2002] Env LR 18 at [17]. The longer the harm continues the more serious it should be considered to be. The term "likely harm" means "a real or not remote chance or possibility regardless of whether it is less or more than a fifty percent chance" (see Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 at [44]). 37The Prosecutor submits that the actual, likely and potential harm caused as a result of this offence indicates that the matter should be treated as objectively serious. The Prosecutor submits that in this case the environmental harm was so substantial as to amount to an aggravating factor for the purposes of s 21A(2)(g) of the CSP Act. 38The evidence is that the incident caused actual harm in that there was clearing, damage and modification to trees, shrubs, grasses, groundcovers, herbs and soil forming part of the SSTF at the property (see par 18 and par 20 of the Statement of Facts and section 7.3 at p 21 in TAJ-5). The exact number of whole plants affected by or concerned in the offence is unknown, however, it is estimated that between 5,000 - 7,000 medium to large trees were affected by or concerned in the offence (see exhibit C, affidavit of Mr Winch at par 17). The harm in this respect is substantial, given that the area and number of plants affected by the commission of the offence is large (see section 7.2 at p 21 in TAJ-5, see section 3.2 at p 6 in TAJ-5, see section iv at p 21 in TAJ-7). The picking has resulted in loss to the structure and ecological function of the SSTF at the property (see section 7.5 at p 21 in TAJ-5). The harm in this respect is substantial (see section iv at p 21 in TAJ-7, see section 7.5 at p 21 in TAJ-5) given that it is likely to take up to 20 years for the SSTF at the property to restore complex ecological function (see section 7.5 at p 21 in TAJ-5). The picking has resulted in an increase in weed species at the property and within the area forming part of the SSTF at the property (see section 5.3.3 at p 17 in TAJ-5, see section 4.2.2 at p 12 in TAJ-7, see section 4.2.3 at p 13 in TAJ-7). The picking has reduced the potential habitat of flora and fauna in the Gilead area (see section 5.3.2 at page 16 in TAJ-5, see table 3 at p 16 in TAJ-5). The picking has modified the hydrology and drainage along the creek-line located within the SSTF at the property (see section 5.3.4 at p 17 in TAJ-5). The picking of SSTF on the property has led to greater fragmentation of the SSTF (see section iv of p 22 in TAJ-7). 39The incident also caused potential harm in that the picking had the potential to cause indirect harm to the flora and fauna species that have ecological relationships with SSTF (see section v of p 22 in TAJ-7, see section 7.4 at p 21 in TAJ-5). The picking resulted in large areas of soil and land being exposed, including soil and land in the area of the creek-line. In the absence of the mulching works undertaken by the Defendant in response to the prevention notice issued by Campbelltown City Council under the Protection of the Environment Operations Act 1997, this may have caused soil erosion on the cleared/disturbed land left exposed by the picking and works on the property (see attachments 25 and 26 of the Statement of Facts). 40There are a number of cases heard after the insertion of s 194 of the NPW Act where this Court has applied the mandatory considerations (both aggravating and mitigating factors) set out in s 21A of the CSP Act in addition to the mandatory factors in s 194(1) of the NPW Act. See for example, Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 at [14] - [18] (where the Court also considered that harm to the environment could be an aggravating factor for the purposes of s 21A(2)(g)); Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 at [48] - [52]; Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [60] - [61]; Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 at [78] - [81] and Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [54] - [55].

[16]

Significance of EEC harmed (s 194(1)(b)) 41The evidence also indicates that the SSTF that was harmed was a significant stand of EEC due to: (a)The size of the SSTF at the property, being 12.54 ha. The SSTF at the property is one of the largest and most intact remnants of SSTF in the local area and is part of a local occurrence of SSTF (see section v of p 22 in TAJ-7). In total, only 9,642 ha of SSTC remains in intact condition, comprising 21 per cent of pre-1750 extent. Only 420 ha or 4 per cent of remaining SSTF is protected on OEH estate (see section 4.1 at p 11 in TAJ-5, see section v of p 22 in TAJ-7). (b)The condition of the SSTF at the property, which was assessed as moderate to good (see section iv at p 21 in TAJ-7, see section 4.2.2 at p 11 in TAJ-7, see section 4.2.3 at p 12 in TAJ-7). (c)The connectivity provided by the SSTF at the property, resulting from the fact that the SSTF was located in a key biodiversity corridor linking the Georges and Nepean Rivers and its position between other stands of SSTF on adjoining properties (see section iv at p 22 in TAJ-7, see section v at p 22 in TAJ-7, see section 4.9 at p 13 in TAJ-5). (d)The SSTF at the property provides potential habitat for threatened flora and fauna (see section v of p 22 in TAJ-7, see section 7.4 at p 21 in TAJ-5, see section 7.7 at p 22 in TAJ-5, see section 4.5 at p 12 in TAJ-5). The SSTF has been identified as having significant conservation value in that it contains "Core Habitat" and "Support to Core Habitat"; contains "Preferred Koala Habitat"; has been assessed as having a "high" and "medium" biodiversity assessment; contains priority habitat for Grassy Box Woodland; contains the Cumberland Koala linkage (see section 4.3 at p 12 in TAJ-5, see section 4.9 at p 14 in TAJ-5, see section 7.7 at p 22 in TAJ-5, see section v of p 22 in TAJ-7).

[17]

The practical measures available to prevent, control, abate or mitigate the harm (s 194(1)(c)) 42There were a number of practical measures that could have been taken to avoid the harm that occurred. The Defendant could have made inquiries with Campbelltown City Council or the OEH regarding the need to obtain approval and then obtained that approval before clearing vegetation on the land, or made inquiries of a consultant on the lawfulness of clearing vegetation or whether approval was required. Mr Cenatiempo knew that the removal of trees required council approval (see par 51c of the Statement of Facts). If the Defendant had made such inquiries, the legitimate inference given that previous studies had identified SSTF being present on the property is that it would have been aware that SSTF was present on the property.

[18]

Foreseeability of risk of harm (s 194(1)(d)) 43The Prosecutor submits that the risk that the offence could have occurred was clearly foreseeable in that a number of previous studies have identified SSTF as occurring either on, or in the location near, the property. Having regard to this, it was reasonably foreseeable that if the Defendant carried out extensive clearing works on the land that it was likely that this would result in harm to SSTF. The Prosecutor submits that a reasonable person's response to these foreseeable risks would be to take precautions (such as carrying out an environmental impact assessment) to ensure that any clearing works did not affect SSTF on the property.

[19]

The extent of control over the causes of the offence (s 194(1)(e)) 44The Prosecutor submits that the Defendant had complete control over the causes of the offence, over the activities carried out on the property and of the measures that could have been implemented to avoid the offence. The evidence indicates that: the Defendant is the registered proprietor of the property (see par 6 of the Statement of Facts); Mr Cenatiempo is a company director and is responsible for managing the property (see par 4 of the Statement of Facts; as the owner and manager of the property the Defendant had complete control over who entered the property, the activities carried out there, and over the practical measures that could have been taken to avoid the offence; and by its plea of guilty the Defendant has admitted that it caused the picking of SSTF.

[20]

Reasons for committing the offence and whether for commercial gain (s 194(1)(h)) 45The Prosecutor submits that reasons for the offence, which were commercially motivated, make this matter objectively very serious. The Defendant has not given any evidence in the proceedings and has denied having any information in relation to the clearing to the Prosecutor. However, the evidence indicates that the clearing was intended to enable the Defendant to carry out grazing at the property. In discussions with a Campbelltown City Council officer, Mr Cenatiempo indicated that: "It was cleared because cows are going to be placed on the land and the main reason for clearing the land was for fire hazard reduction" (see par 22 of the Statement of Facts). Paragraph 1.1 of the report from Anderson Environmental Consultants in attachment 27 to the Statement of Facts, states the property is private land zoned rural. Page 1 of the report states, "Discussions with the client indicate that he would like to achieve some cleared area for grazing purposes, as this was the original purpose of the clearing". The Defendant uses the property for grazing cattle and has continued to place cattle on the property at various times since 2009 (see par 5 and par 59 of the Statement of Facts). Ms Byrne's affidavit states she saw cattle on the property. The Prosecutor submits that in this sense, the offence was commercially motivated. See Preston J in Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [11] - [12].

[21]

State of mind 46The Prosecutor submits that the Defendant was reckless, or at the very least negligent, in the manner in which it proceeded to cause and/or permit the clearing of vegetation at the property. The Prosecutor relies on Mr Cenatiempo's knowledge that the removal of trees required council approval before the works were undertaken to remove the trees (see par 51c of the Statement of Facts). Evidence that Mr Cenatiempo had, at any particular time, knowledge of a particular matter is evidence that the corporation had the same state of mind (see s 175B(4) of the NPW Act). Notwithstanding this neither the Defendant, Mr Cenatiempo, nor any other person made any inquiries in relation to whether it was lawful, or approval was required, to clear the vegetation and proceeded to clear the vegetation.

[22]

Conduct after the offence (NPW Act s 194(2) additional matters) 47The Prosecutor submits that the Defendant's conduct after the offence is relevant to the objective seriousness of the offence and can be taken into account under s 194(2). The evidence indicates that the Defendant hindered the investigation and provided misleading information to the Prosecutor during its investigation of the offence. The Defendant denied that it had any knowledge of any clearing occurring at the property on four separate occasions: twice in responses to statutory notices for information, and twice during interviews with Mr Cenatiempo, the nominated representative to speak on behalf of the Defendant (see par 48, 51, 52, and 56 of the Statement of Facts). The Defendant failed to comply with a requirement to provide information and records by a specified time on one occasion (see par 54 of the Statement of Facts). The Defendant sought extensions of time to respond to requests to provide information or records on four occasions (see par 50, 52 - 54 of the Statement of Facts). 48The conduct of a defendant in hindering and positively misleading an investigation has been considered to be a matter relevant to sentence in a number of other environmental prosecutions (see for example Garrett v Williams [2007] NSWLEC 56). The Prosecutor submits that the Defendant's actions in misleading the Prosecutor and attempting to conceal its involvement in the offences increases the objective seriousness of the matter.

[23]

Subjective circumstances 49The Prosecutor referred to s 21A(3)(e), (i), (k) and s 22 of the CSP Act. The Defendant does not have any prior convictions for environmental offences. 50The Defendant should receive a discount reflecting the limited utilitarian value of its plea of guilty. Firstly, the plea of guilty was entered at a very late stage, shortly after the commencement of the defended hearing in the matter. Secondly, it was only entered after the Prosecutor had filed and served all its evidence and had prepared for a defended hearing in the matter. Thirdly, the plea of guilty was followed by a contested sentence hearing in which the Defendant challenged the admissibility of expert reports sought to be relied on by the Prosecutor. 51The Prosecutor submits that in this case, there is no evidence of contrition or remorse in relation to the matter. A plea of guilty alone will rarely be sufficient to establish that an offender is remorseful of their actions: see Director-General Department of Environment, Climate Change and Water v Forestry Commission of NSW at [109] - [112]. The Defendant has not through any of its actions after the offence indicated that it is remorseful or contrite. If anything, the evidence indicates the contrary. For example, the Defendant has not undertaken any restoration or remediation works to ameliorate harm to the SSTF at the property (see par 58 of the Statement of Facts).

[24]

General and specific deterrence 52There is a strong need for general deterrence to ensure that landholders such as the Defendant do not pick plants forming part of an EEC. The clearing of vegetation from land is invariably undertaken for the purpose of commercial gain. As a result, the penalties imposed by sentencing courts for offences of clearing vegetation need to be of such magnitude so that owners, occupiers and developers of land on which protected vegetation occurs are not tempted to clear illegally by the prospect that only light punishment will be imposed by the courts: see Rae at [9] - [13]. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and important components of it such as EECs, must be complied with: see Bentley at [139] - [141]. 53There is also a strong need for specific deterrence to ensure that the Defendant does not pick plants forming part of an EEC. The need for specific deterrence is greater given that the Defendant has not shown any remorse or contrition in relation to the commission of the offence, it continues to own the property and is involved in purchasing and managing commercial and rural properties (see par 4 of the Statement of Facts). Additionally, notwithstanding that Mr Cenatiempo knew that the Defendant was required to obtain approval in order to remove trees from the property, neither the Defendant, Mr Cenatiempo, nor any other person, made any inquiries in relation to whether it was lawful to clear the vegetation on the property or whether approval was required (see par 51c and par 61 of the Statement of Facts).

[25]

Even-handedness 54The Prosecutor submits that this case is more serious than any of the previous cases involving the picking of plants forming part of an EEC, and that any penalty imposed by the Court should reflect this. For example, the Prosecutor notes that the largest penalty imposed was in Garrett v Dennis Charles Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 where 45 mature trees were felled. In the present case, the number of trees cleared is estimated to be between 5,000 - 7,000 and thus the Prosecutor submits that the present case is significantly more serious than Garrett v Williams. However, the Prosecutor acknowledges that the evidence does not reveal the number or proportion of the felled trees which formed part of the SSTF.

[26]

Penalty, costs and additional orders 55The Prosecutor seeks its legal costs. The Prosecutor also seeks its investigation costs under s 203 of the NPW Act. 56The Prosecutor seeks an order under s 200 of the NPW Act that the Defendant carry out restoration works at the property in accordance with Attachment B to its submissions. The proposed order requires restoration over an area greater than the approximately 12.54 ha cleared, including the removal of stock from the area specified and requires these measures to continue for 20 years consistently with Ms James' evidence. The Prosecutor submits that any restoration order should relate to those areas of the property damaged or affected by the commission of the offence, as well as areas of vegetation adjoining the cleared area. In the circumstances, the Prosecutor considers it is not unreasonable to expand the targeted area of the remediation works to cover land immediately adjoining the area damaged by the commission of the offence, given that the objective of the remediation order is to maintain the survival and connectivity of the SSTF on the property: see Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; (2003) 132 LGERA 1 at [86]. 57The Prosecutor submits that a restoration order should be made in addition to any other penalty that the Court considers appropriate. The costs required to restore or remediate the property are not relevant to the determination of the appropriate penalty. This is because the remediation works only arise due to the actions of the Defendant in picking plants that form part of the SSTF at the property: see for example Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [58]. This approach is consistent with the principles of ecologically sustainable development referred to in the objects of the NPW Act, which include the polluter pays principle. 58The Prosecutor considers that a significant penalty is warranted in this case. It is also appropriate for the Court to consider making an order for the Defendant to pay a specified amount to a specified organisation for the purposes of a specified project for the restoration or enhancement of the environment under s 205(1)(d) of the NPW Act instead of imposing a penalty. The Prosecutor's proposed environmental services project (Attachment C to the written submissions) is for a lump sum payment to be made to Campbelltown City Council to contribute towards the implementation of the five year restoration plan for the Noorumba Reserve at Gilead given the proximity of the reserve to the site of the offence and its similar biodiversity values. Native vegetation on the reserve includes SSTF. The Council owns and manages the reserve for conservation and passive recreation purposes. The restoration plan is part of the plan of management for the reserve as well as a larger bushland restoration program. The key project outcomes are restoration of habitat for threatened species and EECs, improved biodiversity values and ecosystem resilience, restoration of wildlife corridor, and control of weeds. 59The Prosecutor also submits that that it is appropriate for the Court to make orders for the Defendant to publicise details of the offence. The Prosecutor proposed a publication order (Attachment D to the written submissions).

[27]

Area of SSTF cleared not established 60The Prosecutor has not established to the necessary criminal standard the area of SSTF cleared because the Prosecutor's witnesses tendered conflicting estimates of area. Mr Winch says the area cleared was 6 acres (less than 3 ha) not solely SSTF, Mr Tulau says it was 5 ha and Ms James adopts Ms Byrne's estimate of 12.54 ha. 61Further Mr Tulau's opinion is too qualified to prove to the criminal standard any particular area of soil as identified in the Final Determination par 1. Only two sites had soil testing which might meet the relevant definition (sites 4 and 8) and his opinion was too qualified in relation to these. 62The Prosecutor relies on Ms James' interpretation of the Final Determination that the floristic component is the primary determining factor in characterising SSTF. The construction of the Final Determination is a question of law. Paragraph one of the Final Determination states that there is no SSTF unless specified vegetation is located in SSTF soil. Without both the specified soil and vegetation, there can be no SSTF within the definition in the Final Determination. The approach in Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 should be adopted here. The defining paragraphs of the Final Determination are par 1, 4 and 10. The rest of the document provides locative, descriptive and other information. The maximum area of SSTF cleared if Mr Tulau's evidence is accepted is 5 ha. 63The Defendant's counsel submitted formally that Fig 1 and 2 in Ms James' report TAJ-5 should not be admitted because they were drawn from the TAJ-4 report which the Prosecutor withdrew. This submission should have been canvassed during the voir dire on the admission of Ms James' report TAJ-5, at the conclusion of which I held the entirety of the report TAJ-5 could be admitted into evidence. I also identified that Fig 1 and 2 were not otherwise disputed as that reflected the case then before me. This submission is made too late. In any event Fig 1 and 2 are specifically referred to in the methods, results, impacts and conclusion sections of TAJ-5 and do not rely for their genesis on TAJ-4. Moreover Fig 1 and 2 in TAJ-5 contain additional information to similar figures in TAJ-4; figure 1 in TAJ-5 indicates in green boxes the areas resurveyed in 2010 and location of soil pit reference sites and Fig 2 shows the location of soil pit sites.

[28]

Environmental harm (s 194(1)(a) NPW Act) 64The NPW Act does not include potential harm in s 194(1)(a), only harm and likely harm. The Prosecutor cannot rely on potential harm as it impermissibly seeks to do. The Prosecutor is unable to prove the exact number of plants cleared and cannot seek to magnify the severity of the offence based on the imprecise evidence of Mr Winch. 65The SSTF picked was not of the highest quality: Ms James, on the basis of her 2011 inspection of uncleared vegetation on an adjoining property, opined that the vegetation on the land was likely, in 2009, to have been no better than "good to moderate" (TAJ-7 at p 12). The Prosecutor unfairly fails to refer to the evidence of the ability of the site to regenerate as identified by Ms James in TAJ-5 of sites 4 and 10 in 2010 and TAJ-7 following her 2011 inspection of uncleared vegetation on an adjoining property. Ms James (TAJ-7 at p 15.5) opines that "SSTF is inherently resilient and has potential to return to a condition similar to that of pre-clearing." 66The aerial photographs at tab 3 of the Statement of Facts commence in 1956 and show regeneration following significant clearing in 1965 and 1992 of the western part, clearing on adjoining property in 1998, and clearing on adjoining and subject property in 2000. The April 2003 photograph shows good cover with the April 2008 photograph being the closest to Ms James' assessment of the 2009 growth as medium to good.

[29]

Aggravating factors CSP Act s 21A(2) do not apply 67Before the 2010 amendments to the NPW Act, the CSP Act had to be used for environmental offences under that Act. The 2010 amendments added in the more detailed sentencing provisions in s 194 specifying criteria the Court must consider on sentence. Consequently the aggravating provisions in s 21A(2) do not apply. This is particularly relevant to subsection (2)(o), financial gain, as it is repeated in s 194(1)(h) NPW Act. While relevant to consideration of the objective seriousness of the offence it cannot also be an aggravating factor under s 21A(2). The Court should be cautious before adopting the comments in Rae. The facts of this case bear no comparison to Director-General Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 which had a far greater objective seriousness. 68Further s 21A(2) CSP Act concerns circumstances pertaining to victims of crime none of which apply to environmental offences of this nature, as is clear from the context. This applies also to s 21A(2)(g) regarding loss, damage or harm. Loss or damage is about personal loss or damage to a victim of crime, not environmental loss or damage. That is an element of the offence in any event and therefore harm cannot be taken into account as an aggravating factor. The correlative aggravating factor in s 194(1)(a) is about "harm caused or likely to be caused". 69In further written submissions provided after the hearing on sentence the Defendant agreed that the five cases set out in par 2 of the Prosecutor's additional notes on sentence (see par 40 above) considered s 194 of the NPW Act and the aggravating factors set out in s 21A(2) and confirmed that the submission put in the present proceedings had not been argued in those cases. The Defendant relies on two principles of statutory interpretation. Firstly, the principle of that which is express causes to cease that which is implied (expressum facit cessare tacitum) citing DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths at [4.34] - [4.37] and cases cited therein, especially Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566, [54] - [59] (note [59]) (Gummow and Hayne JJ); Kelly v Saadat-Talab [2008] NSWCA 213; (2008) 72 NSWLR 305, [12] -[19] (Allsop P); [46] - [48] (Handley AJA). Secondly, the principle of statutory interpretation of implied repeal citing Pearce and Geddes at [7.9] - [7.14], and [7.21] and the cases cited therein, especially Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, [4] (Gleeson CJ), [47] - [57] Gummow and Hayne JJ and Nystrom, [47] - [48] (Gummow and Hayne JJ). 70The Prosecutor tried to import a reasonable person standard into s 194(1)(d) of the NPW Act. This is a criminal matter so that the foreseeability of the risk of harm must be proven beyond reasonable doubt. 71Section 194(1)(e) can only apply as a mitigating factor because there was a plea of guilty so the Defendant must have had control over the causes of the harm.

[30]

State of mind 72Mr Cenatiempo's knowledge is about tree preservation orders and the requirement to obtain council approval prior to removing "a tree in the way" on a construction site. It is not open to the Prosecutor to equate knowledge of tree preservation orders with knowledge of an EEC being present on the property. The fact that studies on the EEC have been conducted does not mean that the Defendant knew about the existence of those studies beyond reasonable doubt. In Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 at [38] it was held that there was no evidence the Defendant was aware of clearing EEC or of the existence of the EEC. 73There is no evidence that the Defendant engaged in untruthful conduct after the offences in his responses to the Prosecutor that he was unaware of any clearing. Seeking extensions of time to answer requests to provide information cannot be a basis for a submission that he misled the Prosecutor. There is no evidence to support a finding that the Defendant's director hindered the investigation.

[31]

Subjective factors 74Section 21A(3) applies to environmental offences. The offence was not part of a planned or organised criminal activity (s 21A(3)(c)). The Defendant has an unblemished record (s 21A(3)(e)). The Defendant's counsel submitted from the bar table that the Defendant is unlikely to reoffend (s 21A(3)(g). The Defendant expresses contrition through its counsel (s 21A(3)(i)). The Defendant has demonstrated acceptance of responsibility by complying with a statutory notice and carrying out what the nominated consultant suggested in terms of mulching and at considerable cost. Invoices totalling $127,975.54 are attached to the affidavit of Mr McGirr.

[32]

Early plea of guilty entered (s 21A(3)(k), s 22 CSP Act) 75A guilty plea was entered at the earliest opportunity following discussion with the Prosecutor on 10 February 2012. The matter was set down for hearing by the list judge on 7 October 2011 without any plea being entered before all the Prosecutor's evidence was served and before the Defendant could consider a plea. On 21 December 2011 the Defendant received a letter enclosing further evidence of Ms James attaching report TAJ-7, and of Ms Byrne including exhibits. The Prosecutor wrote that it would be reserving the opportunity to serve more evidence. Gathering expert evidence is not related to delay of a plea: Rawson at [153]. The Defendant was not in a position to assess the plea without the whole of the evidence and should not be punished for not entering a plea before receiving and having the time to consider the evidence. The plea was entered on 14 February 2012 after the parties sought further time at the commencement of the hearing on 13 February 2012 to consider their positions. The Prosecutor was not put to any further trouble. That was the earliest reasonable opportunity for the Defendant to plead in these circumstances and consequently, the Defendant should receive a 25 per cent discount for utilitarian value. See Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 per Lloyd J (2009) on earliest reasonable opportunity to plead.

[33]

Penalty and additional orders 76The Court must place priority on encouraging and achieving remediation of the affected EEC rather than the imposition of a monetary penalty, which cannot affect the recovery of the land, and does not achieve any of the objects of the NPW Act. 77The Court has no power to order remediation outside the proven area of picking. The order can relate only to the damage, not to the overall improvement of the SSTF. Section 200(1)(c) only permits an order for restoration for the damage already done and "resulting" from the offence; that is, the cleared area. A restoration order is unnecessary if the area can regenerate. The ability to regenerate is also relevant to objective seriousness because the harm is not as severe as the Prosecutor contends. The Court must be satisfied there is resulting damage and any restoration order can only relate to the damaged area from which SSTF was cleared. Section 200(1)(a) is prospective only and not applicable to found this restoration order.

[34]

Consideration 78The High Court in Muldrock v R [2011] HCA 39 at [26] (unanimous) confirmed the finding of McHugh J in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 378 [51] that "[T]he 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 (emphasis added)." This is known as the instinctive synthesis approach.

[35]

Objective circumstances 79The sentence must reflect both the objective circumstances of the offence and the subjective circumstances of the Defendant: Markarian at [73]. An appropriate sentence is to be determined mindful that: ... a basic principle of sentencing law is that a sentence...imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496). per Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). 80The Court may take facts into account in a way that is adverse to the Defendant's interest if they have been proved beyond reasonable doubt. It may take facts into account in a way that is favourable to the Defendant if they have been proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. 81The Court must consider the objective gravity of the offence when determining sentence. As stated by Pepper J in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 at [25] "This is determined by consideration of the upper most limit of a sentence that is justified as appropriate or proportionate to the gravity of the crime in light of its objective circumstances (Veen v R (No 2) at 472, 485-486, 490-491 and 496; Hoare v R [1989] HCA 33 ; (1989) 167 CLR 348 at 354), and the lower limit of the offence by allowing for consideration of the subjective factors of the matter to produce a proportionate range that reflects the objective gravity of the offence (Pittwater Council v Scahill [2009] NSWLEC 12 ; (2009) 165 LGERA 289 at [50] and Plath v Rawson [2009] NSWLEC 178 ; (2009) 170 LGERA 253 at [46])." The purposes of sentencing are set out in s 3A CSP Act and include adequate punishment for an offence, deterrence, accountability for an offence, and denunciation of conduct, inter alia. 82The statutory scheme giving rise to the offences should be considered in light of the objects of the NPW Act and the TSC Act given the link between the two schemes with the listing process for EECs in the TSC Act and the offences for harming these specified in the NPW Act. The Prosecutor's submissions at par 31(a) - (c) supported by the authorities cited therein are accepted.

[36]

Maximum penalty 83In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at [698] and [701]: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided... ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 84The maximum penalty is $220,000 (2,000 penalty units) or imprisonment for two years or both, and an additional $11,000 (100 penalty units) for each plant picked. As submitted by the Prosecutor, this maximum penalty demonstrates the seriousness with which Parliament views such an offence and by prescribing an additional penalty for each individual plant harmed, Parliament has indicated that the objective gravity of the offence increases with the number of whole plants affected by or concerned in the action constituting the offence (Garrett v Williams (2006) at [91] - [96]). I note that the Prosecutor has not adduced evidence establishing beyond reasonable doubt the number of trees of SSTF knocked down, relying on the general estimate of 5,000 to 7,000 unidentified trees seen by Mr Winch to submit that clearly a large number of SSTF trees were knocked down. 85Offences must be assessed as to their level of criminality so that the relative seriousness is determined in relation to the worst case for which the maximum penalty is provided, see Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312.

[37]

Section 194(1)(a) extent of harm or likely harm 86The Prosecutor has submitted there is extensive actual likely and potential harm as a result of the extent of SSTF cleared. The level of actual and likely harm is disputed by the Defendant. Further the Defendant submitted that potential harm is not referred to in s 194(1)(a) and therefore cannot be relied on by the Prosecutor.

[38]

Area of SSTF cleared 87The area of SSTF cleared was not particularised in the charge and is not admitted by the Defendant. It is first necessary to identify how the Final Determination should be applied to the identification of SSTF in order to determine whether Ms James' report TAJ-5 and/or Mr Tulau's report identify an area of SSTF cleared as result of this offence. It is necessary to consider the terms of the Final Determination in some detail, the relevant parts of which are set out above in par 9. The Defendant relies on the description in par 1 of the Final Determination as the sole determinant of SSTF, the balance of the paragraphs being descriptive or locational only. The Defendant submits that par 1 requires that only where specified vegetation is located on specified soil can SSTF be found to occur. In Kyluk (No 1) at [30] the Defendant accepted that par 1, 4 and 10 were definitive. If both specified soil and vegetation together are required in order to meet the definition of SSTF contended for by the Defendant the maximum area of SSTF cleared is 5 ha as identified by Mr Tulau, soil expert (assuming the challenge to his evidence considered below is not successful). The area of flora identified by Ms James extends over and beyond the 5 ha Mr Tulau identified. 88In Venn, a civil enforcement case relied on by the Defendant concerning a different EEC and hence definition in a Final Determination of the Scientific Committee, the relevant experts referred to both soil and vegetation as defining the relevant EEC. Venn is of limited relevance here as the Final Determination is necessarily different because it defines a different EEC defined by different natural qualities. 89In my view the Final Determination should not be read with the precision expected of a document drafted by Parliamentary counsel (as it was not so drafted) and must be considered in light of the subject matter it is considering, namely ecological communities which do not have precise boundaries. In VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631, a civil enforcement case, at [232] - [234] Hodgson JA stated the following in relation to uncertainty in a definition of an ecological community and interpretation of a final determination: ... this question must be addressed having regard to the approach taken by the legislature in the Act, and in particular to the definition of "ecological community" as "an assemblage of species occupying a particular area". Although this definition refers to a particular area, plainly the terms of the definition are such that the area in question will generally be impossible of definition by precise boundaries: the very nature of "occupation" of an area by an "assemblage" of species (of plants and/or animals) in the wild is such that such an area cannot possibly be given precise boundaries. Furthermore, what is contemplated is plainly a number of species, and specification of the species will not in most cases identify with precision either the extent of the assemblage or the area occupied. When one looks at any particular location, plainly one will not find all species at that particular location. It will often be the case that the species in question include many species which are commonplace. Thus there are questions inevitably raised asto whether a group of species at or near a particular location, some or all of which may be commonplace, do or do not form part of the assemblage of species, which assemblage of species includes but is not exhausted by the species at or near this particular area. There will often be cases where there areareas of transition between one ecological community, broadly considered, and another ecological community, where species which are part of each ecological community occur. Precise determination of whether those species in the transitional area are to be regarded as part of one ecological community or ofthe other, or of neither, will be incapable of precise and definite determination. It is plain therefore that a certain amount of vagueness and uncertainty in the determination of boundaries of ecological communities is an inevitable result of the formulations chosen by the legislature. It must follow, in my opinion, that a certain amount of vagueness and imprecision will not necessarily cause adetermination that a named ecological community is an endangered ecological community to be regarded as void or invalid because of uncertainty or lack of definition. 90The observations of Hodgson J in VAW are directed to the identification of an EEC based on its definition as an assemblage of species and there is no reference to soil, but I have extracted the passage above as the recognition of the lack of precision which arises from the legislative scheme defining EEC applies in this case also. That recognition should inform the consideration of this Final Determination, mindful however that this is a criminal matter. 91Paragraph 1 of the Final Determination states that SSTF is a species assemblage which occurs on areas transitional between different soil types. It is not the only paragraph defining SSTF and the document must be read as a whole. Paragraphs 3 - 8 deal with flora and refer to "characterised by" in par 3, 4 and 5. Variation in composition across sites is recognised. Which plant species can be part of a SSTF stand are identified (par 4), which tree species are characteristic of the SSTF are identified (par 5) and which plant species of SSTF provide habitat for protected species are identified (par 8). Paragraph 7 identifies that species composition will vary between sites depending on geographical location. 92Paragraphs 9, 10 and 12 refer to soil. Paragraph 9 should be read as part of the locational definition of SSTF. It includes the words "generally occurs on soils". Paragraph 10 refers to SSTF occurring at the margins of shale cappings over sandstone, language which does not suggest a precisely defined boundary. In Kyluk (No 1) I also considered the application of the Final Determination, concluding that the locational characteristics identified in par 9 are relevant to the identification of the EEC according to the expert Mr Tulau. I incorrectly stated in Kyluk (No 1) at [30] that par 10 referred to "generally". Rather par 12 refers to "generally" twice in the context of identifying adjacent vegetation communities. The imprecise language in par 9, 10 and 12 further supports a finding that the Final Determination recognises that the SSTF will not have precisely defined boundaries in terms of both soil and vegetation. A reading of the Final Determination as a whole does not require that flora which meets the description of the Final Determination must be located precisely on the specified soil type in order to meet the definition of SSTF in the Final Determination in par 1 and beyond. 93The Defendant also submitted that Mr Tulau's report should be given no probative weight as it was too qualified in the language used. The same argument was heard on the voir dire on the issue of whether the report could be admitted at all and rejected (Kyluk (No 1) at [30]). I repeat my reasoning and finding to that effect here. Mr Tulau's use of language is consistent with the language of the Final Determination. 94Mr Tulau's oral evidence was further criticised by the Defendant as too vague to satisfy the necessary burden of proof on the basis that he stated that perhaps site 4 was transitional soil and also site 8. As summarised above at par 25 - 26, in his report Mr Tulau concluded that the soils in site 4 were largely derived from shale but could also be characterised as a transitional soil because the site appeared to be close to a sandstone source. In relation to site 8, he concluded that the soils were largely derived from sandstone but are partly transitional to shale materials. In oral evidence, as summarised at par 27 above, Mr Tulau stated that soil at site 4 contained sandstone gravels and therefore "could perhaps better be described as transitional" and the soil at site 8 was also transitional although it was largely derived from sandstone. He confirmed that soil at both sites was transitional because they are "partly derived from one material, and partly derived from another material" and that it was difficult to draw accurate boundaries. He stated that he had to "make a decision as to what the major constituent of the soils is". In my opinion his oral evidence and use of the words "could perhaps better be described" as transitional only confirms the views expressed in his report that because the soils in both sites are influenced by two different sources, sandstone and shale, they are transitional. In his view, the fact that the soil at the sites are influenced to a greater degree by one source than another does not mean that they are not transitional soils. It is a question of degree. 95Unlike VAW this is a criminal case where the Prosecutor must prove disputed facts beyond reasonable doubt. Flexibility in the application of the Final Determination reflecting the necessarily imprecise words used by the Scientific Committee must be considered in the context of the more onerous burden of proof required of the Prosecutor. Proof of the existence of SSTF in a criminal matter is likely to be through the application of expert opinion. I do not consider in this case that based on Ms James' evidence there is uncertainty about whether a particular area of flora is caught by the definition in view of my conclusion about the application of the Final Determination in the previous paragraph. There is no competing expert opinion challenging her conclusion about the identification of particular species, the Defendant's challenge focussed on the interpretation of the Final Determination. In this case the Prosecutor has established the area of SSTF cleared beyond reasonable doubt in the evidence of Ms James, described as approximately 12.54 ha, reflecting the difficulty of having precisely defined boundaries. 96Ms James referred to the floristic character of SSTF as being the dominant characteristic rather than soil type. The emphasis in the Final Determination to assemblage of plant species in relation to composition of the SSTF reflects that emphasis when read as a whole. Accordingly, her expert opinion on the location of SSTF is accepted. This is confirmed by Mr Tulau's opinion of soil type meeting the SSTF in the general location of the vegetation consistent with the descriptions of SSTF in the Final Determination. I consider that the reports of Mr Tulau and Ms James establish that SSTF was cleared by the Defendant and that the area cleared is approximately 12.54 ha.

[39]

Environmental harm in s 194(1)(a) includes potential for harm 97Given the similarity in wording between s 194(1)(a) and s 241(1)(a) of the Protection of the Environment Operations Act 1997 (the PEO Act) with the former introduced as part of Part 15 to make offences under the NPW Act "broadly consistent" with Part 8 of the PEO Act (according to the explanatory notes for the NPW Amendment Bill 2010), I consider the interpretation of "harm" in PEO Act prosecutions should apply to NPW Act prosecutions. As submitted by the Prosecutor, "harm" has been considered in a number of cases indicating that the concept is broad and not confined to actual harm but includes the potential risk of harm. In Axer at 366 Badgery-Parker J (Mahoney JA and Finley J agreeing) stated, "Seriousness lies not only in the actual death of fish but in the potential for harm which the introduction of such powerful poisons into the river system entailed." 98Preston J in Environment Protection Authority v Waste Recycling and Processing Corporation stated at [145] - [147]: Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 99Actual, potential, and likely harm can be considered under s 194(1)(a). Likely harm was identified in Newcastle City Council v Pace at [44] by Lloyd J who stated: In considering the harm likely to be caused to the environment, the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported); "only a real chance or possibility, and not more probably than not" (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and "does not mean 'probable'. It means 'a real possibility'" (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320). 100The Prosecutor's submissions at par 38 - 39 on the significance of the actual, potential, and likely harm caused are accepted as these are supported by the expert evidence of Ms James which I also accept. One issue raised by the evidence is that while Mr Winch identified that a large number of trees were picked he was not able to identify which of these were SSTF species. While the penalty for individual trees provided for in NPW Act s 118A(2)(a) cannot be applied, the evidence nevertheless establishes that a large area was cleared of SSTF and that is a matter to which I will have regard in sentencing. Findings to similar effect were made in Garrett v Williams (2007) at [51].

[40]

Section 194(1)(b) significance of EEC cleared 101The Scientific Committee's Final Determination to list the SSTF as an EEC in 1998 states in par 15 that the small size of the remaining remnants and the threat of further clearing and other threatening processes mean that this EEC is likely to become extinct unless these threatening processes cease. The listing of SSTF as an EEC alone confirms its significance generally (see also Garrett v Williams (2007) at [26]). It was listed as endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in 2001. 102Further the affidavit evidence of Ms James attests at par 16 - 17 to the significance of the SSTF, its extent in the Sydney basin and places the area cleared in this context. Only four per cent of SSTF is protected on the OEH's estate. Her evidence also confirms the loss in this locality is significant (at par 22 - 23). She states that the SSTF at the property was "one of the largest and most intact remnants in the local area", that it is "significant within a key biodiversity corridor linking the Georges and Nepean Rivers", and that "it is critical to the long-term survival of the ecological community within this biodiversity corridor as well as to the corridor itself". Ms James states that the clearing increased fragmentation of SSTF and disconnection between the main remnant of SSTF on the property and vegetation on adjoining land. The SSTF also "provided habitat for many plant and animal species including habitat for threatened species".

[41]

Section 194(1)(c) practical measures that may be taken to prevent harm 103The Prosecutor submitted that there were clearly practical measures which could and should have been taken. If inquiries had been made of relevant authorities before clearing was undertaken this harm could have been averted. In Ianna I held that a failure to make inquiries in that case did not give rise to a finding of negligence or recklessness on the part of the defendants, a different issue to whether practical measures to avoid harm were available. Section 194 has been introduced into the NPW Act since that case. I consider it could require the failure to make inquiries to be considered in the context of picking of EEC, because clearly the practical measures that could have been taken commence with making an inquiry about whether any permission is required before land clearing is undertaken. However in this case I know nothing about the circumstances of the picking of EEC beyond the Statement of Facts. Paragraph 56 of the Statement of Facts records that Mr Cenatiempo stated he had no knowledge of the clearing taking place on the property and did not know why clearing had occurred. In these circumstances the Prosecutor bears the onus of proof on the criminal standard of facts which would support the submission that this Defendant failed to make inquiries. A general submission does not suffice. 104Following the clearing, the Defendant undertook steps such as spreading mulch to reduce possible erosion as identified in the Anderson Environmental Consultants' reports (Statement of Facts par 57 - 58, attachments 25 - 28). These reports and actions were prepared and taken in response to a statutory notice issued by Campbelltown City Council to the Defendant.

[42]

Section 194(1)(d) extent to which harm foreseeable 105The extent of harm arising from the clearing undertaken was foreseeable. The photographs taken after the clearing and presented by the Prosecutor identify the extensive clearing of all storeys of vegetation with lengthy windrows created with the fallen trees. As summarised at par 13 - 23 above, the resulting harm identified by Ms James includes erosion, weed invasion, loss of diversity of species, inter alia. Mr Winch's evidence at par 29 above is that he identified weeds on the cleared land. The Defendant criticised the Prosecutor for relying on a reasonable person test in relation to foreseeability of harm submitting that did not satisfy the proof beyond reasonable doubt required in a criminal case. I am not sure how foreseeability of harm which is inherently a future possibility rather than a certainty at the time the offence is committed, which the statute requires to be considered in sentencing, can be proved beyond reasonable doubt in a literal sense. Common sense which can be another way of considering what a reasonable person would consider foreseeable suggests that clearing all vegetation on a sloping site (par 25 above) will lead to environmental harm such as erosion and weed invasion in the absence of adequate remedial measures. Ms James' evidence is that actual harm has eventuated. The proof of foreseeability of harm in these criminal proceedings can be met by the application of both common sense it is reasonable to expect of a landholder and the expert opinion of Ms James to the facts of this case.

[43]

Section 194(1)(e) extent of control of Defendant 106The Defendant company is the owner of the land and its director Mr Cenatiempo was responsible for managing the property. It had control over the activities on the property which gave rise to the offence.

[44]

Section 194(1)(h) offence committed for commercial gain 107The Prosecutor emphasised that the offence was committed for commercial gain being to enhance the grazing use of the land and relied on Rae at [11] - [12] per Preston J: The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits, with the expectation of a concomitant increase in the capital value of the land. Examples where sentencing courts have noted that clearing was undertaken for commercial gain include: Director General of National Parks and Wildlife v Wilkinson Director General of Dept of Land and Water Conservation v Wilkinson [2002] NSWLEC 171 at [92]; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [70]; Gittany v Sutherland Shire Council [2006] NSWLEC 242 ; (2006) 145 LGERA 189 at [141] Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 ; (2006) 145 LGERA 234 at [246], [247]. On land used or proposed to be used for purposes of agriculture, clearing of native vegetation might be intended to increase the grazing productivity (such as increasing pasture and stocking rate), change from a financially lower yielding to a financially higher yielding agricultural use (such as from grazing to cropping) or facilitate more practical and cost effective operations, including of machinery and equipment, also with the expectation of an increase in the capital value of the land. Sentencing courts have repeatedly noted that offenders have cleared native vegetation for commercial gain: see, as examples, Piva v Brinkworth (1992) 59 SASR 92 at 96; Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 ; (2004) 136 LGERA 89 at [65] and see also [47], [48], [59] and [61]; Director-General Dept of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [51], [76]; Director-General of the Dept of Environment and Climate Change v Hudson [2009] NSWLEC 4 ; (2009) 165 LGERA 256 at [78]; Lamattina v Gould [2009] SASC 130 at [3], [17] and [19]; Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 at [39] and [68]. 108The Defendant submitted the evidence was that the commercial gain was small with Mr Cenatiempo stating in his ROI that about 20 steers were grazed on the property at any one time. This was submitted not to be substantial commercial gain.

[45]

Whether aggravating circumstances under CSP Act s 21A(2) applicable to NPW Act offences 109The Prosecutor relies on subsections (g) "damage" and (o) "financial gain" in s 21A(2) CSP Act to argue there are aggravating circumstances in this matter. The Defendant submitted that s 21A(2) is only applicable to offences against a person because that is obvious from the wording of the section. For example, the words "injury" and "emotional harm" in subsection (g) are applicable only to offences against a person. 110In relation to the argument that s 21A(2) applies only to matters relevant to individuals who are victims of crime, I note that the CSP Act is the principal sentencing statute in NSW and applies in all NSW courts undertaking sentencing. A reasonably uniform approach to sentencing across all NSW courts where feasible is encouraged by the application of the CSP Act in all sentencing courts. Section 21A(1) preserves a well-established body of principles that have been developed by the courts: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56] - [57], [103] - [106]; Muldrock at [18]. Section 21A requires a court to take into account aggravating factors referred to in subsection (2) which are relevant and known to the court (s 21A(1)(a)) and provides similarly in relation to mitigating factors (s 21A(1)(b)). This applies unless having regard to such factors would be contrary to any Act or rule of law (s 21A(4)). Basten JA in Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402 at [9] identifies that s 21A identifies factors which may arise across the full range of criminal offences. The Court has taken into consideration some of the aggravating factors in s 21A(2) of the CSP Act in numerous cases involving environmental offences, including under the NPW Act. The CSP Act is not confined in its application. There is no constructive reason why the application of that Act should be limited so as not to apply to environmental offences. This conclusion can be made while accepting that it is likely that most of the matters in s 21A(2) will not be relevant to environmental offences. 111Further, the Defendant (summarised at par 67) has relied on the principle expressum facit cessare tacitum cited in Pearce and Geddes at [4.34] -[4.37] meaning where a particular procedure is designated to achieve something, other procedures are excluded. According to the Defendant, the CSP Act s 21A(2) was excluded with the introduction of s 194 of the NPW Act. Pearce and Geddes at [4.34] refers to Kelly v Saadat-Talab [2008] NSWCA 213; (2008) 72 NSWLR 305 and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566. In Nystrom in the joint judgment of Gummow and Hayne JJ the maxim was described in the same terms as the expressio unius est exclusio alterius principle, that where there is express mention of certain things then anything not mentioned is excluded. Pearce and Geddes identifies that at [59] of the judgment their Honours observed that the maxim applies if a statute confers only one power to take action which requires the confinement of another general, apparently applicable, power to the restrictions in the former power. In Kelly Allsop P observed in obiter at [16] (in a separate judgment concurring with Handley JA, Ipp J concurring with both) that the maxim is most understandable in the context of general and specific provisions in one Act. He considered it was less clear how it operated in relation to two Acts passed by the same Parliament each of which deals in a particular way with the same subject matter. The discussion in Pearce and Geddes at [4.35] identifies limits on the application of the maxim where powers are conferred in separate enactments expressed in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511. The maxim has no work to do in this case in relation to the separate general powers of a court sentencing under the CSP Act with specific factors the Court must consider under s 194 of the NPW Act when sentencing. This is not the circumstance referred to in Nystrom. 112The second principle relied on is that an express specific provision in a later Act, here the NPW Act s 194, will impliedly repeal an earlier inconsistent Act. As noted in Pearce and Geddes at [7.11] the courts do not readily accept a repeal of an earlier Act by implication. Pearce and Geddes cites several authorities which reflect that statement at [7.11] including Butler v Attorney-General (Vic) (1961) 106 CLR 268. At 276 Fullagher J stated that there is a strong presumption that the legislature does not intend to contradict itself but intends that both Acts continue to operate within their given spheres. Given the significance and widespread application of the CSP Act to all sentencing courts in NSW this principle does not apply to impliedly repeal the CSP Act by virtue of the introduction of s 194 of the NPW Act. 113Another way to consider the matter is to ask whether the two Acts are inconsistent, or are not capable of sensible operation if both stand (per Nystrom at 566 Gummow and Hayne JJ). In Butler Fullagher J considered that the assumption in relation to potentially competing state laws (as opposed to inconsistent Commonwealth and state laws) was that a state government would not intend to contradict itself (Pearce and Geddes at [7.12]). The operation of the two Acts is not inconsistent. In Pearce and Geddes at [7.9] various tests enunciated by courts are identified, such as whether there was an intention for one Act to stand in place of another (there is no such intention evident) and whether effect can be given to both Acts at the same time. They can, given that s 21A(1) refers to the matters in s 21A(1)(a), (b) and (c) as additional to any other matters required to be taken into account such as s 194 NPW Act. Further, s 21A(5) distinguishes between determining the seriousness of the offence and the sentence for the offence in stating that the fact that an aggravating or mitigating factor is known to a court does not mean that a court has to increase or decrease the sentence. Criminal Practice & Procedure NSW, LexisNexis Australia (electronic resource at Service 103, March 2012) states at [5-21A.1], "It will be a matter for the sentencing court to attach such weight to the factors as seems appropriate in determining sentence in a particular case." 114While the two principles identified by the Defendant do not apply to exclude or impliedly repeal the CSP Act with the introduction of s 194 of the NPW Act, a sentencing principle discussed in the Court of Criminal Appeal is relevant to consider in the application of both s 194 of the NPW Act and s 21A of the CSP Act. 115Double counting of a matter in sentencing can impermissibly occur when an aggravating factor is taken into account although it is not an element of the offence but is an inherent characteristic of the offence or the particular class of offence: Criminal Practice & Procedure NSW at [5-21A.1]; R v Koloamatangi [2011] NSWCCA 288 at [25] per Basten JA (Johnson and Adams JJ agreeing); Elyard v R at [11], [14] - [15], [17] per Basten JA and at [40] per Howie J; and R v Way at [172]. That is not the circumstance here where there are potentially overlapping sections in two different Acts. That reasoning suggests however that a court is not to have repeated regard to aggravating factors in s 21A(2) if these are an element of the offence or an inherent characteristic of an offence or, by analogy, other identical sentence provisions exist. 116Factors relevant to determining the seriousness of the offence include those in the NPW Act s 194 and the factors in CSP Act s 21A(2) and (3). The latter are expressly stated as additional to any other matters that are required to be taken into account (last paragraph s 21A(1)). The factors in s 194 are to be considered first and can aggravate or mitigate the relative seriousness of the offence. Those in s 21A are specifically categorised in s 21A(2) and (3) as aggravating or mitigating. Section 21A(2) or (3) does not use the terms "objective" or "subjective" but s 21A(1)(c) permits a court to take into account "any other objective or subjective factor" implying that subsections (2) and (3) includes both kinds of considerations: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [32] per Spigelman CJ. Having considered the s 194 factors on sentencing, the Court will consider if there are additional matters under s 21A it should consider. If there are any overlapping factors in NPW Act s 194 and CSP Act s 21A, the Court must be aware of the risk of double counting by giving effect to the same factors as aggravating (or mitigating) factors under s 21A in determining the seriousness of an offence in relation to the factors in s 194 of the NPW Act. Consequently, if the Court considers there is evidence of substantial environmental harm under s 194(1)(a), it must not give effect to that as a factor which further aggravates the seriousness of the offence under CSP Act s 21A(2)(g) because that has effectively occurred under s 194(1)(a). The same finding applies to commercial gain under s 194(1)(h) and CSP Act 21A(2)(o). By extension of the above reasoning in the Court of Criminal Appeal, the Court may risk doubly aggravating or mitigating factors relevant to the seriousness of an offence where there is overlap between the factors under s 194 and under s 21A. 117The Court can take into account the nature and extent of harm as a matter of aggravation arising from an element of the offence or an inherent characteristic of the offence; see Criminal Practice & Procedure NSW at [5-21A.1] referring to R v Way at [106]; R v Pearson [2005] NSWCCA 116. As stated by Howie J in Elyard at [42] with regard to harm being an aggravating factor in s 21A(2)(g), "there must be some harm proved that is more severe than that which is usually presumed to arise in the commission of ... an offence before the aggravating factor could be applied". Here that consideration will be under s 194(1)(a) NPW Act which requires the Court to consider the extent of harm caused or likely to be caused by the offence. Picking could mean one plant but the evidence in this case shows a much greater extent of picking so that the extent of harm was substantial and therefore can be taken into account as a factor aggravating the seriousness of the offence. 118In relation to commercial gain, this is a relevant factor under s 194(1)(h) of the NPW Act as well as an aggravating factor under s 21A(2)(o). A commercial motive for the picking the subject of the offence has been established, given the use of the property for grazing purposes. I take that matter into account under s 194(1)(h) of the NPW Act.

[46]

State of mind 119The offence is one of strict liability. As submitted by the Prosecutor, the Defendant's state of mind is relevant to assessing the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed (Rae at [42]; Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and [356]; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [75]; Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 at [53] and Scahill at [69]). The circumstances surrounding the offence are unknown. The person who undertook the clearing on behalf of the Defendant is not known nor how the clearing came about. The Prosecutor submitted that inquiries should have been made before clearing was commenced by someone on the Defendant's behalf and the failure to do so was negligent (inadvertent) or possibly reckless (advertent). Reliance was placed on Mr Cenatiempo's statement in an ROI that he was aware that council permission was required for the removal of trees because of a tree preservation order in a development consent context. His counsel submitted this could not be relied on to infer that he was aware that tree clearing on a rural property required consent. 120In Ianna I held that the failure to make inquiries absent any evidence from the Prosecutor establishing that the landholder not making inquiries was taking the risk of committing an offence inadvertently, was not negligent. I held similarly in Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 at [39] - [42]. Having given this matter further consideration, I consider that in theory landholders of rural property undertaking land clearing of native vegetation are negligent if they fail to make proper inquiries about whether proposed clearing is permissible. The Acts in question here have been in operation since 1974 (NPW Act) and 1996 (TSC Act). This SSTF has been listed as an EEC under the TSC Act since 1998 and picking prohibited since then. Section 12(1) of the Native Vegetation Act 2003 which came into force in December 2005 prohibits clearing native vegetation and a similar offence existed since January 1998 in the Native Vegetation Conservation Act 1997 (repealed). There have been a number of prosecutions and publication orders made by this Court in land clearing offences under these Acts and native vegetation protection legislation. In order to make a finding of negligence or recklessness however there must be some awareness of the fact of clearing on the part of the person charged to underpin a finding of failure to make inquiries. There is none identified in this case. Knowledge of tree preservation orders by Mr Cenatiempo does not fill in that gap for the Prosecutor. The evidence does not establish negligence or recklessness in this case.

[47]

Conduct after the offence 121The Prosecutor submitted the Defendant was unco-operative and misleading after the offence. Such matters must be proved beyond reasonable doubt if these are to be found against the Defendant. Requests for extensions of time to provide information to the Prosecutor were relied on but do not alone establish misleading behaviour. In the absence of evidence establishing how the clearing came to take place the Prosecutor has not proved that Mr Cenatiempo lied in the ROIs when he said he did not know how the clearing took place. The Prosecutor has not established conduct adverse to the Defendant's interests after the offence.

[48]

Conclusion on objective seriousness 122The objective seriousness of this matter in light of the significant environmental harm caused to the SSTF, the foreseeability of harm, the exercise of control by the Defendant as owner, and that the clearing was for commercial gain suggest this matter is of moderate to severe objective seriousness.

[49]

Subjective circumstances 123Section 21A(3) of the CSP Act specifies mitigating factors that are to be taken into account pursuant to s 21A(1)(b) where these are relevant and known to a court.

[50]

Guilty plea CSP Act s 21A(3)(k), s 22 124An early plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10 - 25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. 125The Defendant submitted a plea of guilty was entered at the earliest opportunity suggesting the maximum discount in penalty should be considered. The plea of guilty at that stage did not necessitate the preparation of more evidence by the Prosecutor as that had to be prepared in any event. The Prosecutor pointed to the plea of guilty being entered at the hearing as suggesting that an early plea was not entered and the maximum discount was not therefore warranted. 126The history of the proceedings must be considered. These commenced on 15 July 2011, were listed for first mention on 26 August 2011 and stood over to 16 September for a plea or mention. On that date the matter was again stood over to 30 September 2011. On that date it was further stood over to 7 October 2011 for a plea or mention and the Court noted that if a plea was not entered on the next occasion the matter would be set down for a defended hearing. On 7 October 2011 for the Court set down the matter on the assumption of a defended hearing of ten days commencing on 13 February 2012. The Prosecutor was ordered to file and serve all of its evidence on liability by 25 November 2011. On 25 November 2011, the Prosecutor sent a letter to the Defendant's solicitors enclosing copies of seven affidavits and advising that additional evidence relating to sentence would be served as soon as it had been finalised. On 21 December 2011, the Prosecutor sent a letter to the Defendant's solicitors enclosing copies of two affidavits, one of Ms James affirmed 16 December 2011 together with exhibit TAJ-7 (being evidence on sentence) and one of Ms Byrne affirmed 19 December 2011 (noting that this affidavit was identical to an affidavit previously served with the exception of par 41 - 50 of the affidavit). The Defendant entered a plea of guilty on 14 February 2012 after the parties sought an adjournment of the matter on the first day of hearing (13 February 2012). 127The Defendant argued that the first reasonable opportunity to plead was on 14 February 2012 after the plea bargain was offered by the Prosecutor on 10 February 2012 and cited Holley in support. In Holley the defendants sought a 25 per cent discount for pleading guilty at the third mention of the summons because it was the first reasonable opportunity to plead. The parties agreed that there was no loss of utility in the plea of guilty being entered on the third occasion because an affidavit which was filed between the first and second mentions (but which only one of the defendants had received) needed to be filed in any event and dealt with issues of sentencing, not liability. Lloyd J was referred to Cameron v R [2002] HCA 6; (2002) 209 CLR 339; R v Borkowski [2009] NSWCCA 102; (2006) 225 CLR 130, Sullivan v R; Skillin v R [2008] NSWCCA 296; (2008) 51 MVR 572 and Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77. Lloyd J concluded at [89] that the defendants should receive the benefit of a 20 per cent discount because the affidavit in question pertained to sentencing, not liability, the evidence on which had been filed and served. 128In Cameron v R at [19] - [20] the joint judgment of Gummow, Gaudron and Callinan JJ (Kirby J agreeing in a separate judgment, McHugh J dissenting) after referring to the common law requirement that an offender must not be penalised for pleading not guilty, stated: ... a plea of guilty may be taken into account in mitigation for the reason that a plea evidences a willingness to facilitate the course of justice ... the relevant question is not simply when the plea was entered but ... whether it was possible to enter a plea at an earlier time ... the question is when it would first have been reasonable for a plea to be entered. 129Kirby J agreed with the majority and said at [75] The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly. 130In Sullivan at [16] - [17], Howie J (McClellan CJ at CL and Grove JJ agreeing) said: ... Clearly the applicant could have indicated a willingness to plead guilty to some charges early in the proceedings. He did not have to wait until the Crown was in a position to go to trial in order to enter into negotiations. If he chooses to wait to see what the Crown is going to do at trial then clearly the utilitarian value of the pleas is less. He knew what offences he had committed even if the Crown was not in a position to prosecute him for those matters. If the accused waits as a matter of tactics before entering negotiations with the Crown then so be it, but he does not obtain the advantage of the full utilitarian value of an early plea. At the hearing of the application, counsel for the applicant submitted that the Judge should have taken into account that whole history of the matter including the various charges that the Crown laid at different times during the period of the prosecution that did not find their way on to the final indictment. In my opinion none of this history changes the situation that the applicant knew what offences he had committed and what he was prepared to acknowledge whether the Crown had chosen to charge him with those offences or not. It is not unusual for persons to acknowledge to the authorities guilt of offences uncharged against them in an effort to clear the record and, as a result, be rewarded with what is known as an Ellis discount. A discount of 15 per cent was more than appropriate to meet the situation in this case. 131In Borkowski at [32] Howie J (McClellan CJ at CL and Simpson J agreeing) set out the following principles in applying the discount for the utilitarian value of a guilty plea:

[51]

Not a planned activity CSP Act s 21A(3)(b) 136The Defendant submitted that the offence was not a planned or organised activity, a mitigating factor referred to in s 21A(3) of the CSP Act.

[52]

No prior convictions CSP Act s 21A(3)(e) 137The Defendant submitted that it had no prior convictions and this is not disputed by the Prosecutor.

[53]

Unlikely to re-offend CSP Act s 21A(3)(g) 138The Defendant's counsel submitted from the bar table that the Defendant is unlikely to re-offend (s 21A(3)(g)). There is no evidence from the Defendant to support such a finding on the balance of probabilities and I do not assume this matter in favour of the Defendant.

[54]

Remorse not demonstrated CSP Act s 21A(3)(i) 139The Defendant's counsel expressed contrition from the bar table and also said it accepted responsibility by paying for works in accordance with the Anderson Environmental Consulting's reports. Section 21A(3)(i) states that remorse shown by the offender can lessen the relative seriousness of the sentence only if the "offender has provided evidence that he or she has accepted responsibility for his or her actions". In Newcastle City Council v Pepperwood Ridge Pty Limited [2004] NSWLEC 218 at [29] I stated, "It is desirable in my view that a director swear an affidavit for a corporate defendant if an expression of contrition is to be given serious weight by this Court. Accordingly I do not give the submission from the bar table by the Defendant's counsel much weight; see also Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [116] to similar effect. In relation to the works undertaken in response to a statutory notice, the measures were not voluntary. There is no evidence the Defendant has undertaken any remediation of the SSTF since the clearing/picking. There is no evidentiary basis for finding that remorse has been shown by this Defendant.

[55]

General deterrence 140Section 3A(b) of the CSP Act states that one of the purposes for a court in imposing a sentence is to prevent crime by deterring offenders. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 141This has been identified as an important consideration in offences of this kind. See Bentley at [139] - [144]; Rae at [9] - [13]; Calman at [51] - [52]; Rawson at [173].

[56]

Specific deterrence 142Another purpose of sentencing is to deter the offender from committing similar offences (s 3A(b)). The objective circumstances of this case are serious in light of the environmental harm caused, the significance of the extent of SSTF cleared, and that the harm was foreseeable and measures could have been taken to avoid it. The Defendant is a company, has shown no remorse, has provided no evidence that it is unlikely to re-offend and undertook the clearing for commercial gain. Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, 'Principled Sentencing for Environmental Offences', a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006.) Specific deterrence should be reflected in the penalty for this Defendant.

[57]

Even-handedness 143The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court. The Prosecutor provided a table of cases which referred to Ianna (13 ha of selective logging of EEC by individual, penalty $30,000, large legal costs, no knowledge of EEC listing), Garrett v Williams (2006) (45 trees on the first charge and 3 trees on the second charge, both deliberately committed knowingly and with premeditation, $150,000 fine for the first and $30,000 fine for the second charge), Plath v Fletcher [2007] NSWLEC 596 (33 trees, committed deliberately with knowledge that the vegetation was protected, $46,000 fine) and Garrett v Williams (2007) (2.9ha cleared knowingly and intentionally, $110,000 fine and 400 hours community service). I note that the amendments to the NPW Act allowing for the making of additional orders sought in this case (which came into effect in 2010) were not available in these cases. 144In relation to the need for care in considering sentencing patterns, if any, I adopt the following reference to Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434 at [54] cited in Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 at [118]: In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence " (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".

[58]

Restoration order to be imposed 145Under s 199(1) one or more orders under Pt 15 Div 3 may be made against an offender. The Prosecutor seeks a restoration order as provided for under s 200(1) of the NPW Act in the terms identified in attachment B to its submissions. Required actions identified include fencing an area, the exclusion of stock, a plan identifying the restoration area which extends beyond the area identified by Ms James as cleared of SSTF and a reporting obligation in a designated format. The term of the proposed order is 20 years, relying on evidence of Ms James that such a period is required. 146The Defendant opposed such an order on several bases. Firstly, the harm caused was not so great as to warrant it. The Defendant argued that the SSTF is resilient and good at regenerating, based on Ms James' evidence and on the aerial photographs produced by the Prosecutor from 1956 to 2008. The photographs show two major clearing episodes before 1956 and between 1982 to 1992 and substantial regrowth thereafter. Secondly, the Defendant submitted that only subsection (c) "to make good any resulting damage" can apply as it operated retrospectively unlike subsection (a) which can only operate prospectively. The Defendant further argued that s 200(1)(c) "to make good any resulting damage" did not permit the making of a restoration order which resulted in improvement to the SSTF cleared. Only resulting damage can be the subject of a restoration order and the SSTF picked was of moderate quality only, according to Ms James' evidence. The Defendant cannot be required to restore the area to pristine condition. Thirdly, the order if made cannot apply to an area beyond that cleared which is the subject of the offence. To do so is not permitted by s 200. 147Firstly, s 200 provides that the Court may make a restoration and prevention order to prevent, control, abate or mitigate any harm caused by the commission of the offence (ss (a)) and, under ss (c), to make good any resulting damage. The Defendant submitted that ss (a) only applied prospectively, unlike ss (c), and could not therefore provide a statutory basis for this restoration order. This construction was said to arise from the terms of the section and was the foundation for the argument that a restoration order could be made only in reliance on ss (c). Given the broad scope of ss (a) which refers to the control and mitigation of harm inter alia, which can require prospective action, I do not see any constructive reason why ss (a) should be so confined. A restoration order in this matter can be directed to the achievement of matters identified in ss (a) and (c). This finding means that a restoration order can address more than resulting damage on the assumption that there is some limitation in the scope of damage able to be repaired under ss (c). 148Secondly, the Defendant's argument against the imposition of an order because the harm did not warrant it is based in large part on the natural ability of the SSTF to regenerate. In the context of damage to fish habitat offences under the Fisheries Management Act 1994 in Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227 the defendants argued that if any damage was caused by the removal of woody debris or snags from the Murray River, it would be ameliorated over time because the large river system is dynamic and the supply of snags would be replenished over time. I stated at [185] that if the "defendants' submissions were adopted it is unlikely that any prosecutions would be able to establish that damage had occurred as the dynamic nature of the River environment would always allow the submission to be made that natural processes will replenish and overcome any change of habitat so that damage would be temporary at most or that no damage over time would be caused. Such an interpretation does not give effect to the protective objectives of the FM Act which would be severely undermined by such an interpretation." A similar finding should be made in this case that the Defendant's approach will not achieve the objects of the TSC and NPW Acts which are aimed at the preservation of EEC, inter alia, as already identified above at par 4 and 6. 149There is expert evidence of harm caused to the environment as an immediate consequence of the clearing. Although Ms James observed that regeneration is occurring on the property and the local SSTF is unlikely to have been placed at risk of extinction, as summarised above at par 23, she identified invasion by weeds as a threatening process which is likely to have increased as a result of the offence and inhibit SSTF regeneration. Mr Winch also noted the presence of invasive weeds at par 29 above. While Ms James assessed the pre-clearing vegetation as "moderate to good", she notes it was of high conservation value (at par 17 above). She emphasises that the trees will take approximately 20 years to reach the size of the felled trees and "natural re-establishment of the pre-clearing tree cover will take significantly longer and it is not assured unless the property is protected and managed appropriately" (at par 17 and 19). She also states that neither SSTF form is likely to return to its pre-clearing condition, that the potential of SSTF to return to a condition similar to that of pre-clearing is likely to be limited by the lack of weed control during a critical period, among other things (at par 20), and that permanent damage to the SSTF stand is likely (at par 22). Ms James repeatedly highlights (at par 19 to 22) that the clearing affected the structure and composition of the EEC, that there is a loss of species diversity as the conditions are favourable to regeneration of resilient species while more sensitive species are at risk. I also refer to my comments above at par 101 - 102 in relation to the significance of the SSTF stand. The harm caused is substantial and Ms James expert evidence confirms the essentiality of positive restorative action to achieve some measure of regeneration. 150Clearing is identified as a threatening process in par 14 of the Final Determination and other identified threats include weed invasion and grazing. Paragraph 15 states, "In view of the small size of existing remnants the threat of further clearing and other threatening process, the Scientific Committee is of the opinion that SSTF in the Sydney Basin Bioregion is likely to become extinct in nature unless the circumstances and factors threatening its survival cease to operate and that listing as an endangered ecological community is warranted." Not imposing a restoration order is not consistent with par 14 and 15 of the Final Determination. 151Further, the argument that the SSTF was of medium quality only and the Defendant should not be required to restore the SSTF to a better condition than at the time of the offence is not consistent with the objective of the legislation being enforced. There is no guarantee that the restoration works will succeed in restoring the SSTF to any particular condition in any event. The argument is analogous to that made by some defendants in early water pollution cases to the effect that more pollution in an already polluted waterway does not result in as much harm to the environment: see for example Environment Protection Authority v Sydney Water Corp Ltd, NSWLEC, Talbot J, 18 December 1996, unreported; Environment Protection Authority v Bituminous Products Pty Ltd [1999] NSWLEC 247 at [15]). That argument was rejected in that context and should also be rejected here in relation to restoration requirements given the legislative objectives intended to be achieved. 152I consider the harm which has resulted from this offence is substantial and the terms of s 200(1)(a) and (c) justify the making of a restoration order in the terms sought by the Prosecutor, subject to amendment of the area covered by the order. I consider accountability for one's actions and adequate punishment, which are two purposes of sentencing (s 3A(a) and (e)), can be achieved through the imposition of a restoration order. 153In relation to whether the order can apply to a wider area than the area of SSTF cleared, the Prosecutor relied on Slack-Smith. The issue raised by the Defendant of whether a restoration order can apply to more than the cleared area the subject of the offence was not discussed in that case. The expert evidence in this case confirms that the boundaries of the SSTF are not precise and the evidence of Ms James (summarised at par 22 above) confirms the need for connectivity of the SSTF on the property with neighbouring lands. Some latitude in the boundaries of SSTF cleared and therefore requiring restoration is warranted given the necessary lack of precision. However the area of additional land beyond the area of SSTF cleared identified in the plan attached to the restoration order includes areas of Cumberland Plain Woodland allegedly cleared which were the subject of a separate charge which did not proceed. These should be excluded as there is no expert basis presented for why these areas should also be included in the restoration order. The plan attached to the restoration order otherwise attached as Annexure B to this judgment requires amendment before the order with the plan can be finally made.

[59]

Additional orders 154The Prosecutor also seeks three publication orders pursuant to s 205(1)(a). In submissions made subsequent to the main hearing the Prosecutor identified that the first order sought is an order requiring publication of the publication notice provided with its submissions in the Sydney Morning Herald (SMH) and the Campbelltown-Macarthur Advertiser of a specified size and location in the newspapers. The second order requires the Defendant to provide to the Prosecutor within 14 days of publication a complete copy of the pages showing the notices in the newspapers. 155The Defendant objected to that part of the first order which required it to publish in the SMH because this was not supported by any evidence of the Prosecutor justifying the necessity for such an order, was not the order made in proceedings of this kind to date, and the cost of publication was prohibitive. The Prosecutor relied on a similar order being made, with the consent of the defendant, in relation to a PEO Act offence in Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39. In five other prosecutions considered in the Court since the introduction of s 194 (identified above at par 40) the publication orders made required publication in local newspapers, see Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council and Plath v Hunter Valley Property Management Pty Limited. 156I do not consider the Prosecutor has adequately justified why the Court should require publication in the SMH in addition to the local newspaper. I also take into account the parties' advice of the substantial cost. I will otherwise make the first and second publication orders sought by the Prosecutor which are otherwise unopposed by the Defendant. Denunciation of the conduct of the offender (s 3A(f) CSP Act) can be achieved through the imposition of a publication order. 157An order under s 205(1)(d) to pay a specified amount to a specified organisation for a specified project for the restoration of the environment is also sought. Such an environmental services order can be made in addition to or instead of any penalty imposed (NPW Act s 199(2) or (3)). The Prosecutor submitted in this case no penalty could be imposed and instead an order should be made under s 205(1)(d) for the environmental services project identified in the Prosecutor's submissions. I consider an environmental services order under s 205(1)(d) in the terms proposed by the Prosecutor at attachment C to the written submissions ought be made instead of a fine being imposed. In light of the making of that order I consider I should make the third publication order sought that: Pursuant to s 205(1)(a) of the NPW Act, all future public references by the Defendant to the payment towards the "Restoration Works at Noorumba Reserve, Gilead Project" shall be accompanied by the following passage: Kyluk Pty Limited's contribution to the funding of the Campbelltown City Council's Restoration Works at Noorumba Reserve, Gilead Project is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of picking plants that formed part of an endangered ecological community, an offence against s 118A(2) of the National Parks and Wildlife Act 1974.' 158The Defendant does not object to the making of that third publication order. 159As submitted by the Prosecutor, the fact that the Defendant company incurred costs as a result of the offence in reducing the impact of clearing through the spreading of mulch in accordance with its consultant's reports is not relevant to my determination of the appropriate penalty: Sibelco at [101]. The Defendant incurred these costs in complying with a statutory notice issued by the Council. The invoices attached to Mr McGirr's affidavit relate to the work necessitated by the Council's statutory notices which related to mitigation of the effects of the clearing. 160Taking into account the objective factors outlined above including the substantial harm caused and that a large number of trees were picked within the area identified as SSTF by Ms James, the picking was undertaken for commercial gain, the lack of remorse and in light of few mitigating factors, the appropriate penalty is $150,000. This should be discounted by 15 per cent in light of the Defendant's plea of guilty to $127,500. The imposition of a restoration order requiring long term financial commitment by the Defendant is an additional impost necessitated by the need to correct the harm caused by the offence. Instead of imposing a penalty I will impose an order under s 205(1)(d) in the terms outlined in attachment C to the Prosecutor's submissions being Annexure A to this judgment.

[60]

Legal and investigation costs 161The Defendant should pay the Prosecutor's legal costs as agreed or assessed. While investigation costs were sought by the Prosecutor in brief written submissions, no evidence was presented to justify an order in the circumstances identified in s 203 of the NPW Act.

[61]

Orders 162The Court makes the following orders: 1.The Defendant is convicted of the offence charged. 2.Pursuant to s 205(1)(d) of the National Parks and Wildlife Act 1974 the Defendant is to pay $127,500 to the Campbelltown City Council for the purposes of the project "Restoration Works at Noorumba Reserve, Gilead Project" as detailed in Annexure A with the timetable for payment to be made within 14 days by agreement or order of the Court. 3.Pursuant to s 200 of the National Parks and Wildlife Act 1974 the Defendant must carry out restoration works at the property in accordance with Annexure B subject to the amendment of the plan identifying the area to be restored in accordance with par 153 of this judgment. 4.Pursuant to s 205(1)(a) of the National Parks and Wildlife Act 1974: (a)The Defendant, within 28 days of this order, is to place a notice in the Campbelltown-Macarthur Advertiser within the first six pages at a minimum size of 18cm x 12cm in the form of Annexure C. (b)The Defendant, within 14 days of this order, is to provide to the Prosecutor a complete copy of the page of the publication in which the notice appears. (c)All future public references by the Defendant to the payment towards the "Restoration Works at Noorumba Reserve, Gilead Project" referred to in order 2 shall be accompanied by the following passage: "Kyluk Pty Limited's contribution to the funding of the Campbelltown City Council's Restoration Works at Noorumba Reserve, Gilead Project is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of picking plants that formed part of an endangered ecological community, an offence against s 118A(2) of the National Parks and Wildlife Act 1974." 5.The Defendant must pay the Prosecutor's costs of the proceedings as agreed or assessed. 6.The exhibits are to be returned. Annexure A (PDF - 1.8MB) Annexure B (PDF - 3MB) Annexure C (PDF) 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: 26 March 2012

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