Chief Executive, Office of Environment and Heritage v Merriman

Statement of Agreed Facts

1. The parties usefully agreed a Statement of Agreed Facts (SOAF) (Exhibit A). It provided (attachments omitted) as follows: BACKGROUND The Defendant 1 The Defendant has, at all times since at least 21 February 1992 been the registered proprietor of the property known as "Bournbank" (Bournbank). 2 The Defendant had management and control of Bournbank at all times from at least 21 February 1992 to 26 July 2017 in terms of being in charge of what occurs on the property. The Property 3 Bournbank includes Lots 9, 10, 14, 16, 43 and 46 in Deposited Plan 756066 and is located on the Midwestern Highway at Goolgowi, NSW in the Carrathool local government area. 4 Bournbank is approximately 1900 hectares in size, and is made up of cultivated land and areas of uncleared native vegetation. The clearing the subject of the charge occurred on Lot 10 in Deposited Plan 756066 of Bournbank. 5 Attachment 1 is a map showing the location of Bournbank in relation to Griffith and a map of Lot 10 in Deposited Plan 756066 within Bournbank. BOURNBANK PVP APPLICATION 6 In late June 2014, the Defendant contacted Officers of the Riverina Local Land Services (LLS) to enquire about clearing on Bournbank. 7 On 1 July 2014, the Defendant submitted a "Clearing Native Vegetation PVP Application and Enquiry Form" to the LLS (the PVP application). A copy of the PVP application is Attachment 2. 8 The LLS assessment of the PVP application included: a. site inspections on 29 July 2014 and 1 April 2015 by LLS officers Alexandra Hendy, William Auldist, and Julie Busuttil to inspect the property; identify the areas on the property proposed to be cleared and offset areas; carry out plot assessments in both the clearing and nominated offset areas; b. meeting with the Defendant at the Riverina office of the LLS on 13 March 2015 to discuss the clearing proposal and alternative clearing options; c. completing assessments under the following NSW Environmental Outcomes Assessment Methodology tools: i. BioMetric assessment; ii. Threatened species assessment; iii. Salt mobilisation assessment; and iv. Land and Soil Capability assessment. d. preparing a PVP clearing proposal summary; and e. determination of the PVP application. 9 Attached are: a. a copy of a map prepared by Alexandra Hendy of the LLS on 29 July 2014 showing the area indicated by the Defendant as the proposed clearing area on Bournbank (Attachment 3); b. a map of the photo points and compilation of the photographs taken by Ms Hendy on 29 July 2014 (Attachment 4); c. 27 October 2014 letter from LLS to the Defendant seeking further information about his clearing proposal (Attachment 5); d. a revised map of the property prepared by LLS on 19 February 2015 for the purpose of providing alternative clearing options to Mr Merriman's clearing enquiry (Attachment 6). e. copy of the LLS clearing proposal summary prepared by LLS (Attachment 7); and f. 14 April 2015 letter to the Defendant from LLS advising refusal of his clearing proposal (Attachment 8). 10 The PVP application was not approved because of environmental impacts of the proposed clearing. 2015 CLEARING OF NATIVE VEGETATION ON BOURNBANK 11 Between about 1 April 2015 and 15 November 2015, clearing of native vegetation occurred on Bournbank (the 2015 clearing). This clearing is the subject of the charge in these proceedings. 12 The 2015 clearing occurred in the area of the property for which the Defendant's PVP application had been refused. 13 The Defendant cleared an area of 12.6 hectares of native vegetation in the 2015 clearing. The clearing removed some 750 trees such that no live standing woody vegetation remains in the cleared area. Native ground cover was also removed in this area. 14 The native vegetation that was removed in the 2015 clearing has been continually present on Bournbank prior to 1 January 1990. 15 The 2015 clearing was done to prepare the cleared land for cropping and/or broad-scale cultivation. The 2015 clearing was carried out by the Defendant and a contractor engaged by him. The decision to carry out the 2015 clearing was made by the Defendant. 16 The 2015 clearing involved pushing over of trees and other woody plants using earthmoving equipment hired by the Defendant, burning of larger trees, raking the debris into heaps, burning the heaps. The Defendant directed and/or participated personally in each of these activities. 17 The 2015 clearing came to the attention of William Auldist of the LLS on 30 July 2015 when he drove past Bournbank while working on an unrelated matter. At that time, he saw that trees had been cleared in the area that LLS had assessed and determined not to approve for clearing. 18 Officers in the Compliance and Regulatory section, South West, of the Office of Environment and Heritage (OEH) were advised of the clearing by the LLS on 31 July 2015. 19 On 13 August 2015 Adam Vey and William Sewell of OEH met with the Defendant at Bournbank. They observed: a. a large number of recently felled trees; b. fresh upturned soil from the wheels of the tractor; c. a number of piles of burning vegetation, with significant amount of smoke coming from the burning leaves, as happens when green vegetation is burnt; and d. that the trees that had been recently felled were native vegetation, consisting of mostly native species of pine, casuarina and eucalyptus box trees. 20 A map and photographs taken of the 2015 clearing by Adam Vey while inspecting the site on 13 August 2015 are Attachment 9. 21 Mr Sewell also took photographs at the inspection. He recalls areas where the photographs were taken were heavily treed when he conducted an inspection of the property on 7 October 2014. 22 On 14 August 2015, Adam Vey sent a letter to the Defendant informing him of the investigation into the 2015 clearing that is the subject of this charge. A copy of that letter is at Attachment 10. 23 On 11 September 2015, Adam Vey sent the Defendant a letter and draft remedial direction. A copy of that correspondence is at Attachment 11. 24 On 21 September 2015, during a telephone conversation between Adam Vey and the Defendant, the Defendant said words to the effect of "I'm not going to comply with the remedial direction or any requests until you tell me who made the complaint". 25 On 7 October 2015, Adam Vey attended the property with Mr Jol Taber, Team Leader Compliance and Regulation of the OEH to meet with the Defendant and his daughter. Adam Vey gave the Defendant a printed copy of the draft remedial direction that was sent by post on 11 September 2015. The Defendant asked for an extension of time to comment on the draft remedial direction. 26 On 14 October 2015, Adam Vey sent a letter to the Defendant confirming an extension of time for the Defendant to respond to the draft remedial direction sent by letter on 11 September 2015. A copy of that correspondence is Attachment 12. 27 The Defendant did not respond to the draft remedial direction. 28 The Defendant was charged on 26 July 2017 with one offence against section 12 of the Act in relation to the 2015 clearing. The Defendant pleaded guilty to this charge on 15 September 2017. NO PROPERTY VEGETATION PLAN, DEVELOPMENT CONSENT OR APPROVAL 29 No PVP or other consent has been issued to permit clearing of any native vegetation on Bournbank. The 2015 clearing was not in accordance with a PVP. As indicated below, the 2015 clearing was carried out after the Defendant's PVP application was formally refused. 30 The 2015 clearing was not authorised by a development consent issued in accordance with the Act. No such development consent had or has been issued in relation to Bournbank. 31 The 2015 clearing was not clearing for routine agricultural management activities in accordance with section 22 of the Act. 32 The 2015 clearing was not a continuation of existing cultivation, grazing or rotational farming practices in accordance with section 23 of the Act. 33 The 2015 clearing was not clearing that was excluded from the operation of the Act in accordance with section 25 of the Act. ENVIRONMENTAL HARM 34 The Defendant's clearing had environmental impact in terms of loss of native vegetation and impact on threatened species. 35 The remnant vegetation type cleared was within the over cleared Hillston Sandplains Mitchell landscape classification. 36 The vegetation that was cleared in the 2015 clearing varied in structure from woodland or open forest to scattered trees with a predominantly native understorey. The main species of vegetation cleared were: a. Bimble Box (Eucalyptus populnea); b. Kurrajong (Brachychiton populneus); c. Casuarina (Allocasuarina sp.); d. White Cypress Pine (Callitris glaucophylla); e. Red Gum (Eucalyptus intertexta); f. Curly Windmill grass (Enteropogon acicularis); g. White Top (Austrodanthonia caespitosa); h. Spear grass (Austrostipa sp.); i. 3 awned spear grass (Aristida sp.); j. Grey Sunray (Helipterum corymbiflorum); k. Corrugated Sida (Sida corrugata); I. Stone Crop (Crassula colorata); m. Rock fern (Cheilanthes tenuifolia); n. Spurge (Phyllanthus sp.) o. Copperburr (Bassia sp.); and p. Buckbush (Salsola kalt). 37 These species are all native vegetation for the purpose of the Act. 38 Trees with large healthy intact crowns provide important nectar resources within the landscape for a wide variety of nectar feeding fauna, including threatened species. 39 The majority of trees cleared had intact crowns, which would have provided foraging and nesting resources for a wide variety of fauna known to occur in the area, including threatened species. Potential threatened species impacted upon include the Dusky Woodswallow (Artamus cyanopterus) and Grey-crowned Babbler (Pomatostomus temporalis), both listed as threatened under the Biodiversity Conservation Act 2017. 40 A number of the trees cleared in the 2015 clearing on Bournbank contained hollows. The loss of hollow-bearing trees is listed as a Key Threatening Process under the Threatened Species Conservation Act. The loss of hollow bearing trees directly impacts on the availability of breeding and roosting habitat for vertebrate fauna, including threatened species such as the Glossy Black-Cockatoo (Calyptorhynchus lathami), Pink Cockatoo (Lophochroa leadbeateri) and White-browed Treecreeper (Climacteris affinis). 41 The Defendant's PVP application to clear was rejected, in large part, because of the potential harm (loss of breeding habitat) to fauna arising from the clearing of hollow bearing trees. The Defendant was informed about the LLS concern regarding the clearing of hollow bearing trees and an alternative clearing proposal was suggested that did not include the clearing of such trees. 42 It has been shown that different trees form hollows at different ages and sizes. Hollows suitable for occupancy by vertebrate fauna generally do not occur in eucalypts that are less than 120-180 years with large hollows remaining rare in eucalypts less than 220 years old. In the absence of remediation, the loss of the hollow resource will never be replaced, however even with remediation, the loss of this areas of woodland will significantly impact on the availability of hollows for the many decades. 43 The area cleared had not been previously cultivated and the groundcover present was dominated by native species. The impact of the alleged clearing, has resulted in compaction of the ground and the removal of native cover. Ground layer species tend to be very difficult to restore to their former complexity. 44 The 2015 clearing is likely to have impact on other threatened bird species including, Gilbert's Whistler (Pachycephala inornata), Hooded Robin (Melanodryas cucullata), and Speckled Warbler (Pyrrholaemus sagittatus). 45 The 2015 clearing had other potential adverse effects on the environment, namely greenhouse gas emissions and increased soil salinity. DEFENDANT'S ACTIONS 46 The Defendant had the following conversations with officers: a. On 6 August 2014, in a telephone conversation between the Defendant and Alexandra Hendy, the Defendant said to Ms Hendy words to the effect of "I've created a problem by contacting you [to make the PVP application]...I shouldn't have, I should have just cleared". Ms Hendy responded to the Defendant saying "you could face consequences if you do that. You're better off going through us to get approval and to do it legally". b. On 27 October 2014, in a telephone conversation between the Defendant and Alexandra Hendy, the Defendant said to Ms Hendy words to the effect of "If this [the PVP application process] isn't done quick smart I will get the dozers in to clear and deal with the consequences" and "I'm going to clear it if this [the PVP application process] isn't done soon". c. On 11 December 2014, Julie-Ann Busuttil received a telephone call from the Defendant. The Defendant conveyed to Ms Busuttil that he was going to clear 60-70 acres with or without approval but he wanted to try and do the right thing first. d. On 13 March 2015, the Defendant attended the Riverina LLS office and met with Julie Busutill and Rodney Sewell. After indicating some options that may allow the Defendant to do some of the clearing he proposed, the Defendant said "Those options aren't options at all. They don't help me do what I want to do on my property. I am going to clear it." After the Defendant said that, Ms Busuttil warned the Defendant of the illegality and consequences of clearing without approval. e. On 1 April 2015, officers of the LLS, Julie Busuttil and William Auldist attended the Defendant's property to conduct a site assessment for the PVP application. Mr Auldist said to the Defendant "There are other options instead of clearing. It is a good little conservation area. There's funding for maintaining the native vegetation". The Defendant said in response to that "I'm going to clear" and "I do plan to clear it". The Defendant also said to Ms Busuttil "I'm going to clear with or without your approval". f. On 9 April 2015, Julie-Ann Busuttil telephoned the Defendant to inform him of the outcome of the PVP application. Ms Busuttil informed the Defendant that steps could be taken to fix his application "so that the offsets meet the proper requirements", but the Defendant said "I'm not interested". g. On 13 August 2015, when Adam Vey attended the property to investigate the 2015 clearing that is the subject of this charge, the Defendant told him that the clearing had started "Last week, the week before last" and that he undertook the clearing because "I want to put cereal crops in here and tidy up the place.... It's the best part of the farm. I had of cleared it without asking I would have to be worried about you turning up". The Defendant also said to Adam Vey words to the effect of: "I will continue to clear. I have 29 trees here still standing that will be cleared as soon as it dries out". h. On 21 September 2015, during a telephone conversation between Adam Vey and the Defendant, the Defendant said words to the effect of "I'm not going to comply with the remedial direction or any requests until you tell me who made the complaint". 47 The 2015 clearing was deliberate. The Defendant was aware of the need to obtain approval for clearing on the property and cleared the native vegetation with knowledge that his actions were unlawful. PREVIOUS WARNING 48 On 8 October 2014 the Defendant received a formal warning from OEH for an offence against s12 of the Act in relation to clearing on the property in an area of land different to the 2015 clearing the subject of the charge in these proceedings. A copy of the warning letter is Attachment 13.

Defendant's affidavits

1. Mr Merriman swore an affidavit on 22 December 2017. Bournbank is approximately 45 kilometres north-west of Griffith and consists of 11 paddocks, totalling approximately 1,900 hectares. Approximately 1,700 hectares are used for cropping. Mr Merriman has run Bournbank since he was 23 years old. Mr Merriman was involved in a share farming agreement with Mr Bartter of Bartter Enterprises from 1998-2005. The share farming agreement involved Mr Merriman growing and harvesting grain crops on neighbouring properties. In 2014 Mr Merriman leased a farm 20 kilometres from Bournbank where he grew approximately 1,620 hectares of wheat and barley. Between 1998 and 2005 grain prices fell while fuel costs were high. From 2002-2004 and 2006-2010 there was a drought. Mr Merriman has debts of approximately $1.5 million as identified in his financial statements (Exhibit 5). Mr Merriman provided his notice of assessment, tax return and financial report for Merriman Farming Operations for the financial year 2016/2017. Mr Merriman's taxable income for the financial year 2016/2017 was $0.
2. The clearing the subject of these proceedings took place in a paddock referred to as the "Over the Hill" paddock (the Paddock), which contains the best soil on the farm. The Paddock is approximately 405 hectares and was originally a soldiers settlement allotment before it was incorporated into Bournbank. Mr Merriman had sown wheat and barley in the Paddock since 1964. The area that was cleared was originally the site of a homestead, which has since been demolished. A tree-lined gully which feeds into a dam and a concrete water tank is adjacent to the homestead area. Photographs of the gully and nearby sheep yards were annexed to Mr Merriman's affidavit.
3. A ridge forming part of the Lachlan Range runs east-west along the side of the Paddock and is covered in native vegetation. The area cleared was in the south-east corner of the Paddock and was adjacent to the Lachlan Range ridge. Photos of the Lachlan Range ridge were annexed to Mr Merriman's affidavit.
4. The trees removed were regrowth from clearing by the original owners of Bournbank. The area produced significant amounts of weeds which contaminated Mr Merriman's crops. The weed seeds were in and on the ground around the area now cleared. Mr Merriman believed that removing the trees would stop the spread of weeds as he would be able to cultivate the cleared area. Mr Merriman also removed the trees to "square-up" the Paddock, making it easier to manage the crops with large modern machinery which require significant space to turn. He did not think there would be any impact on native fauna due to the significant areas of remaining native vegetation along the Lachlan Range ridge.
5. In 2014, Mr Merriman had discussions with a number of Land Services officers about removing the trees. He could not recall the officers' names. Mr Merriman was told by a Land Services officer he would have to submit an application to remove the trees. Mr Merriman did not recall receiving the letter from Land Services dated 27 October 2014 which sought further information about his clearing proposal. The area of trees removed was approximately 12.6 hectares.
6. Mr Merriman received a letter dated 11 September 2015 from Land Services enclosing a draft remediation plan (Exhibit B).
7. Mr Merriman has hearing loss, poor short-term memory and can become confused when he is anxious or busy. He did not understand what the remediation plan was about or what he was supposed to do with it. Mr Merriman forgot about the remediation plan. He could not recall requesting an extension of time to respond to the remediation plan.
8. Mr Merriman was remorseful for committing the offence. He did not clear for financial gain. Mr Merriman has implemented various farming practices at Bournbank to care for the environment such as controlling noxious weeds and feral animals, cropping areas for fire breaks and encouraging the growth of Kurrajong trees.
9. Mr Merriman swore a further affidavit on 19 March 2018 stating that he consented to and would cooperate in implementing the remediation plan proposed by the Prosecutor. He had instructed his solicitor to register a positive covenant on the certificate of title for Bournbank over the 84 hectares addressed in the remediation plan.
10. Mr Merriman stated he would commence the remediation plan during winter after there was sufficient rain. He has entered into a contract with Ms Kelly of Coleambally Saltbush Native Nursery to implement the remediation plan. Annexed to his affidavit was an invoice for $13,530 from Ms Kelly to complete the necessary work. Mr Merriman has filled in rabbit burrows as required by the remediation plan and annexed photographs of enclosed burrows to his affidavit. Mr Merriman also agreed to pay the Prosecutor's costs in the amount of $60,000.

References

1. Mr Merriman provided a number of personal references (Exhibit 3). A reference from the Lachlan Fold Wildlife Action Group (LFWAG) stated that Mr Merriman had given them unfettered access to his property to monitor Glossy Black Cockatoos. He also allowed the LFWAG to install 11 artificial nesting boxes and had helped to control feral goats and pigs on his property. The reference did not state whether the LFWAG was aware that Mr Merriman had been charged.
2. Mr Hill an agronomist with the Yenda Producers Cooperative also provided a reference. He knew that Mr Merriman had been charged with clearing native vegetation and said that Mr Merriman's farming practices had always reflected the principles of sustainable farming and a respect for the environment. Mr Merriman had extensive knowledge of dry land farming and was well respected in the Rankin Springs area.
3. Mr Taprell branch manager of the Yenda Producers Cooperative said that Mr Merriman had extensive knowledge of dry land farming and that his farming practices were "measured", showing great respect for the environment. Mr Taprell knew that Mr Merriman had been charged with clearing native vegetation.
4. Ms Ryan who lives in the Griffith area had known Mr Merriman for 43 years. In that time he had assisted neighbouring farms with their water supply and had helped her sons get ready for sowing after her husband had died. Mr Merriman had acquired a brain injury from an accident in a silo and had also suffered Anthrax poisoning. Ms Ryan was aware of the charge and described Mr Merriman as honest and respected within the community.
5. Mr Gerarde-Smith a rural counsellor and property specialist had known Mr Merriman for 28 years. He described Mr Merriman as having a caring nature, integrity and being a "go-to" person for farming advice. Mr Gerarde-Smith was aware of the charge.
6. Mr Merriman also provided a letter dated 29 November 2017 from the Rural Fire Service (Exhibit 4), nominating him for a long service medal for his 55 years of service.
7. A letter dated 30 November 2017 from Dr Thompson-Seagrave of Kookora Surgery (Exhibit 2) stated that Mr Merriman was 76 years old and had a history of two prior surgeries from benign brain tumours. He has a severe hearing impairment. After conducting two short-term memory tests Dr Thompson-Seagrave stated that Mr Merriman had significantly impaired short-term memory. It is highly likely that any written or verbal instructions given to Mr Merriman would be forgotten in a matter of minutes.

Positive Covenant registered

1. I made an order under s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) standing the sentencing hearing over to enable Mr Merriman's positive covenant underpinning the remediation plan to be registered on title. On 17 April 2018 the Prosecutor emailed a copy of the title search and registered dealing showing that the positive covenant had been registered. The positive covenant was Exhibit 1. This can be taken into account as a mitigating circumstance.

Objective circumstances

1. The objective seriousness of an offence is determined by considering the following factors: the nature of the offence, the maximum penalty for the offence, the environmental harm caused by the offence, the defendant's state of mind, the defendant's reasons for committing the offence, the foreseeability of the risk of harm to the environment, the practical measures available to the defendant to avoid harm to the environment and the defendant's control over the causes of the harm (Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 (Turnbull) at [16]).

Nature of the offence

1. A fundamental consideration for environmental offences is the extent to which the defendant's conduct offends against the legislative objectives expressed in the offence (R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15]).
2. The objects of the NV Act are set out above in [4]. One of the principal ways in which the objects of the NV Act are achieved is through prohibiting the clearing of native vegetation but permitting a person to overcome this prohibition by obtaining permission to clear by virtue of a development application or a property vegetation plan (PVP), Turnbull at [20]). The integrity of the regulatory system depends upon persons determining when permission is required to clear native vegetation, applying for such permission before clearing and complying with any conditions of the permission, Turnbull at [21]; Rae at [18]).

Maximum penalty

1. The maximum penalty at the time of the offence was $1,100,000 (s 126(1) Environmental Planning and Assessment Act 1979). The substantial penalty was an expression by Parliament of the seriousness of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri's Stock Feeds) at 698 (Kirby P, Campbell and James JJ agreeing)).

State of mind of Mr Merriman

1. The offence against s 12(1) of the NV Act is one of strict liability and therefore mens rea is not an element of the offence. Mr Merriman's state of mind at the time of the offence may increase 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 (Turnbull at [127]; Rae at [42]).
2. It is an agreed fact in the SOAF at par 47 that the clearing was deliberate. The Prosecutor submitted that Mr Merriman was aware of the need to obtain approval for clearing on the property and cleared with knowledge that his actions were unlawful. This was particularly so where a reasonable person in the position of Mr Merriman would foresee the risk of harm caused or likely to be caused by the clearing (Camilleri's Stock Feeds at 700 (Kirby P, Campbell and James JJ agreeing)).
3. Mr Merriman identified s 21A(3)(j) of the CSP Act as a mitigating factor, as Mr Merriman was not fully aware of the consequences of his actions owing to his age and physical and mental state of health. The 2017 letter from Dr Thompson-Seagrave referred to at [22] above identified that Mr Merriman then 76 years old has a history of major surgery associated with the existence of benign brain tumours. He also has a severe hearing impairment. He has impaired short-term memory meaning written or verbal instructions could be forgotten quickly. In his affidavit sworn 22 December 2017 Mr Merriman deposed to the fact he can become "muddled" when stressed or overly busy.
4. Mr Merriman's counsel submitted that these matters may have contributed to his inability to comprehend the warnings given to him by Land Services officers and his failure to understand the need to obtain a PVP. His memory and hearing problems may also have contributed to his reaction to the Land Services officers (identified in par 24 of the SOAF).
5. The numerous interactions with Land Services officers and Mr Merriman before the clearing are identified in the SOAF at par 46(a)-(h) consisting of three telephone calls in August, October and December 2014, a meeting at the Department's Riverina office on 13 March 2015, a site inspection by officers attended by Mr Merriman on 1 April 2015 and a further telephone conversation on 9 April 2015 when Mr Merriman was advised that the PVP application had been refused. During the site inspection by an officer on 13 August 2015 following the clearing and in a later telephone call the tenor of which is set out in the SOAF par 46(g)-(h) suggests Mr Merriman's defiance of the legal requirements of the NV Act.
6. That the clearing was deliberate, a factor which generally increases the objective seriousness of an offence must be tempered in this case with understanding of Mr Merriman's age, impaired mental capacity and physical limitations in terms of his hearing. Mr Merriman's treating doctor referred to short-term memory loss and that written or verbal instructions are likely to be forgotten in a matter of minutes. Mr Merriman attested in his affidavit that while Mr Merriman was advised by a number of Land Services officers that he required a PVP to clear native vegetation, he did not comprehend the significance or ramifications of not obtaining one. He also attested to not understanding the purpose of the draft remediation plan when he received it. This evidence is consistent with the advice of his treating doctor. It provides some explanation for his deliberate actions despite many interactions with Land Services officers. I consider below Mr Merriman's extensive steps to mitigate the environmental impact of his actions since the offence. Once he had, I surmise, a greater understanding of the nature and consequences of the offence his actions have been exemplary. I take into account this mitigating evidence in considering Mr Merriman's state of mind leading up, during and after the offence.

Reasons for committing the offence

1. A defendant's reasons for committing the offence can be relevant in determining the appropriate penalty, Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. Commission of an offence for financial gain is also an aggravating factor under s 21A(2)(o) of the CSP Act.
2. Mr Merriman stated to Land Services officers that he cleared vegetation to make it available for cereal crops and to tidy up the place. He described it as "the best part of the farm" (SOAF par 46(g)).
3. Mr Merriman deposed in his affidavit sworn 22 December 2017 that clearing the vegetation would enable him to control weed infestation in his cereal crops which he grew in and around the cleared area. Mr Merriman stated that clearing the vegetation would "square up" the Paddock, making it easier to crop with large modern machinery. He did not believe there would be any impact on native fauna due to the amount of bush in the Ridge area of the property. The clearing was not done for financial gain. Any gain would have been minimal taking into account the amount of additional crop which he could grow. In any event Mr Merriman did not plough the cleared area.
4. Mr Merriman's counsel further submitted that the cost to Mr Merriman of addressing and maintaining weed infestations was substantial. Clearing of native vegetation was usually done for financial gain obtained through increasing the cropping area of a property and therefore its value. In this instance, 12.6 hectares of the approximately 1,700 hectares cropping area was cleared. This amounted to only 0.72 percent of the cropping area.
5. I accept Mr Merriman's submission that the clearing was not intended to gain financial benefit in terms of enlarging the area of cropping land. The area was small given that Mr Merriman farmed some 1,700 hectares of 1,900 in total on Bournbank. The clearing was intended to facilitate the use of machinery in the Paddock and thereby provide an overall improvement to the cropping business of Mr Merriman in this area of the farm so that it did have an indirect financial benefit. As the clearing was unlikely to result in greatly enhanced financial benefit to Mr Merriman I do not find that aggravation as identified in s 21A(2)(o) arises on these particular facts.

Environmental harm

1. Paragraph 13 of the SOAF identifies that Mr Merriman cleared an area of 12.6 hectares of native vegetation which included some 750 trees. The area had not been cleared since 1 January 1990 (par 14 SOAF) and had not previously been cultivated (par 43 SOAF). No live standing woody vegetation remained in the cleared area. Native ground cover was also removed in this area. That the clearing had an environmental impact in terms of loss of native vegetation and impacted on threatened species is stated in par 34 of the SOAF. The harm is identified at pars 35-45 in the SOAF by referring to the types of trees cleared and identifying that the loss of hollow-bearing trees directly impacted on the availability of breeding and roosting habitat for vertebrate fauna for many decades as identified at pars 40-42 in the SOAF. The importance of hollows is identified at par 42 in the SOAF. The clearing caused compaction of the ground. It is likely to have an impact on several threatened bird species (par 44 SOAF). Exhibit C contained maps showing the change in woody vegetation at Bournbank between 2014 and 2015. There is no agreement on the significance of the environmental harm caused. It is not insignificant.

Environmental harm was foreseeable

1. Mr Merriman submitted that he was unable to foresee the environmental harm caused as a result of the clearing. He believed that the existence of substantial bushland in the Lachlan Range ridge adjoining the cleared area would offset any impact on native vegetation.
2. Whether the harm was foreseeable is to be determined objectively, rather than subjectively based on a defendant's erroneous belief that environmental harm would not occur because of remaining nearby areas of native vegetation. Whether a reasonable person would foresee environmental harm in these circumstances is relevant, see for example Rae at [50], Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 (Hudson (No 2)) at [156] and Turnbull at [150] citing R v Wickham [2004] NSWCCA 193 at [25]. The loss of vegetation was foreseeably likely to result in environmental harm due to loss of habitat and other impacts identified in the SOAF. A reasonable person advised of the obligation to obtain a PVP by Land Services officers who referred to the importance of retaining the cleared area as a conservation area as recorded in the SOAF at par 46(e) would reasonably foresee the environmental harm caused by the clearing.

Practical measures to prevent risk of harm

1. There were clear practical measures that Mr Merriman could have taken to prevent the risk of harm. Mr Merriman could have refrained from clearing native vegetation in the absence of a PVP or development consent.

Control over causes

1. Mr Merriman had complete control over the causes giving rise to the offence and environmental harm.

Conclusion on objective seriousness

1. The overall objective seriousness of the offence is at the high end of the low range given the relatively small area of vegetation cleared relative to the size of Bournbank, the offence had little to no benefit to Mr Merriman in terms of increasing the capital value of the land and taking into account the mitigating circumstances relevant to Mr Merriman's mental state at the time of the commission of the offence.

Subjective circumstances

1. The Summons was filed by the Prosecutor on 26 July 2017 and was returnable on 1 September 2017. Mr Merriman pleaded guilty on 15 September 2017. Mr Merriman pleaded guilty relatively early in the proceedings (s 22(1)(b) of the CSP Act). Mr Merriman submitted that this was the earliest possible opportunity to enter a plea and that this should be taken into account as a mitigating factor (s 21A(3)(k) of the CSP Act) and should be afforded the maximum discount on sentence.
2. Mr Merriman is of good character as demonstrated by the personal references summarised above in [16]-[21]. All references except that provided by the LFWAG acknowledged the offence. Mr Merriman submitted that the reference provided by the LFAWG shows that he has supported and promoted sustainable farming practices which are cognisant of environmental factors in the area. This is reinforced by the references from Mr Hill and Mr Taprell about Mr Merriman's respect for the environment and standing in the rural community. Mr Merriman also has no prior convictions. These are relevant factors in sentencing pursuant to s 21A(3)(e) and (f) of the CSP Act.
3. Genuine remorse shown by a defendant can be a mitigating factor in sentencing (s 21A(3)(i) CSP Act). Mr Merriman's affidavit expresses sorrow at his actions and he has taken action to back that up. Mr Merriman agreed a process with the Prosecutor resulting in an agreed remediation plan, acceptance of the liability to pay the Prosecutor's costs and registering a positive covenant on the land. Mr Merriman has also engaged Coleambally Saltbush Native Nursery to implement the remediation plan as soon as weather conditions permit. Under the remediation plan Mr Merriman was required to fence the cleared area. He agreed to do this work himself.
4. The level of contrition and remorse demonstrated by Mr Merriman is substantial.

Application of s 10(1)(b) Crimes (Sentencing Procedure) Act 1999

1. Mr Merriman's counsel submitted that no conviction should be recorded and Mr Merriman be ordered to enter into a two year good behaviour bond under s 10(1)(b) of the CSP Act. Section 10 of the CSP Act provides: Part 2 Penalties that may be imposed … Division 3 Non-custodial alternatives … 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, … (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. ... (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
2. An order can be made under s 10(1)(b) if under subs 2(a) a court considers that it is inexpedient to impose any more than nominal punishment and that it is expedient to release a person on a good behaviour bond. Additionally the four matters in subs (3) must be considered. I do not need to be satisfied of every matter in s 10(3), they being disjunctive and non-exhaustive per R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing) cited by me in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [53].
3. Mr Merriman's antecedents are particularly important (s 10(3)(a)). Mr Merriman is elderly at 77 years of age and suffering from mental and physical health problems which affect his judgment and memory. He has farmed Bournbank since he was 23 years old. The property has large areas of uncleared land along the Lachlan Range ridge. He continues to be very hard-working given that he is cropping 1,700 hectares of land at Bournbank. He is clearly of good character given the content of the several personal references before the Court summarised above in [16]-[21], all of which but one were given in the knowledge of his charge.
4. Mr Merriman's submission that he is unlikely to reoffend and offered the assurance that he would implement the remediation plan and in the positive covenant is accepted.
5. The offence is not trivial (s 10(3)(b)) given that it was deliberate, a large number of trees and other vegetation in an area of 12.6 hectares was cleared and more than insignificant environmental harm was caused as a result.
6. Subsection (3)(c) refers to the extenuating circumstances in which the offence was committed. It is difficult to see that there are any. Mr Merriman's counsel essentially relied on Mr Merriman's personal circumstances being those matters already outlined above in [6], [12] and [22] such as his mental and physical problems. That he has demonstrated considerable remorse in person and through his actions is all after the event and not obviously therefore a matter that falls within subs (3). There are otherwise no extenuating circumstances which explain his actions.
7. As identified by the Court of Criminal Appeal, s 10(3) is not exhaustive of matters I can consider in relation to whether to apply s 10(1)(b). The mitigating and personal circumstances of Mr Merriman are particularly compelling in this matter. The extent of mitigation of the environmental harm by the positive covenant is substantial. The area to be restored is some 84 hectares. The area cleared was 12.6 hectares. There will be ongoing cost to Mr Merriman in restoring and maintaining the area until he ceases to farm at Bournbank. He has provided evidence of his limited financial means. Mr Merriman stated in his affidavit that he has debts of approximately $1.5 million incurred as a consequence of extended periods of drought. The debt had reduced slightly at the time of the sentencing hearing. Mr Merriman's financial report showed that although Mr Merriman's business had a not insubstantial income, its expenses were high. The business was running at a loss as at 30 June 2016. Mr Merriman submitted and I accept that his age would likely impair his ability to earn a substantial income. The Prosecutor's costs of $60,000 are substantial.
8. Had I determined to convict Mr Merriman and impose a penalty it would have been modest suggesting that it is inexpedient to inflict more than nominal punishment. In the particular personal circumstances of Mr Merriman it is expedient to release him on a two year good behaviour bond.
9. In all these circumstances I consider it is appropriate to make an order under s 10(1)(b) of the CSP Act. As Mr Merriman sought and was granted leave to be excused from delivery of sentence it will be necessary to finalise his entry into the necessary good behaviour bond before final orders are made.

Addendum made on 27 June 2018

1. Further to [57] of my judgment of 22 June 2018 I make orders as follows: 1. The Defendant is guilty of the charge in summons 2017/227482 but no conviction is recorded upon the Defendant entering into a good behaviour bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for a period of two years. 2. The Defendant is bound for the period in order 1 to comply with the conditions set out below: 1. To be of good behaviour. 2. To appear before the Court if called upon to do so at any time during the term of the bond. 1. The Defendant is to pay the Prosecutor's costs of $60,000. 2. The exhibits may be returned. 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: 28 June 2018