Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd - [2020] NSWLEC 47 - NSWLEC 2020 case summary — Zoe

NSWNSWLEC

Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd

[2020] NSWLEC 47

Land and Environment Court (NSW)|2020-04-30|Before: Moore J, Ms J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-04-30

Before

Moore J, Ms J

Catchwords

[2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236
(2006) 145 LGERA 189 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen [1989] HCA 33
(1989) 167 CLR 348 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Plath v Rawson (2009) 170 LGERA 253

Source

Original judgment source is linked above.

Catchwords

[2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236(2006) 145 LGERA 189 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen [1989] HCA 33(1989) 167 CLR 348 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Plath v Rawson (2009) 170 LGERA 253[2009] NSWLEC 178 R v Doan [2000] NSWCCA 317(2000) 50 NSWLR 115 R v Olbrich (1999) 199 CLR 270[1999] HCA 54 R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 383 Scott v R [2020] NSWCCA 81 Secretary, Department of Planning and Environment v AGL Energy Limited[1979] HCA 7 Veen v R (No 2) (1988) 164 CLR 465[1988] HCA 14 Walden v Hensler [1987] HCA 54

Judgment (49 paragraphs)

[1]

[6]

The Statement of Agreed Facts

The Statement of Agreed Facts is a comparatively concise document, one to which several images were appended. It is appropriate to reproduce now the terms of the text of this document, whilst relevant images enabling an understanding of the matters referred to in it are reproduced as annexures to this decision. The Statement of Agreed Facts is in the following terms: THE PROPERTY 1 1405 Burragorang Road, Oakdale NSW (the Property), also known as Lot 5 in Deposited Plan 734561 is located within the Wollondilly Shire local government area (LGA). 2 An aerial image of the Property is Annexure 1 to these facts. 3 Mr Benjamin Styles and Ms Rebecca Louise Styles purchased the Property in about August 2016 and hold the Property as joint tenants. THE DEFENDANT 4 Parrish & Son Pty Ltd (Parrish & Son) (ACN 57 079 930 028) is an Australian proprietary company that carries out land clearing services. Attached as Annexure 2 is a company search for Parrish & Son Pty Ltd. THE CLEARING 5 From about 29 January 2017 until 11 March 2017, native vegetation was partially cleared from a total about 10 hectares of land on the Property (the Clearing). The Clearing occurred in the Area of Interest (AOI) depicted in Annexure 1. 6 Mr Styles engaged the Defendant to conduct the Clearing. 7 Mr Saul Hargreaves and Mr Ryan Stewart were employees of the Defendant who carried out works involved in the Clearing. The AOI had been the subject of extensive clearing from 25 September 2016 to 21 November 2016. When Mr Stewart and Mr Hargreaves commenced work for the defendant on the AOI they saw large numbers of trees that had been felled and were lying on the ground in clumps towards the rear of the Property. These fallen trees included some which were so large you couldn't put your arms around them. There was a lot of mulch already on the ground, two to three feet thick above the ground in some places. It was hard to walk through because it was so thick. Other contractors who worked at the Property saw that there were trees pushed over everywhere. There were still leaves on the trees which had been pushed over but they were not green. 8 The images at Annexure 3 depict the Property before and after the Clearing (the before image being on the left and the after image being on the right). 9 The defendant commenced the Clearing on 29 January 2017. Initially the work was to mulch the trees which had been felled on the AOI and this took about two weeks Work conducted by Mr Stewart 10 Between about 29 January 2017 and 11 March 2017, Mr Stewart on behalf of the Defendant conducted unlawful works on the Property, including: a. knocking over and killing live vegetation on the Property including hundreds of trees; b. using a chain saw to fell between approximately 60 to 120 trees; 11 Mr Stewart also mulched vegetation that had previously been felled on the Property and mulched the trees that he had knocked over or felled with a chainsaw. 12 During the period that Mr Stewart worked on the Property he felled vegetation by: a. using a machine identified as a 'Fecon', which was a 600-horse power machine that had a mulcher attached to its front to knock trees over; and b. using a chain saw, to cut trees down during periods of wet weather. Work conducted by Mr Hargreaves 13 Between about 30 January 2017 and 11 March 2017, Mr Hargreaves on behalf of the Defendant conducted unlawful work on the Property including: a. knocking over and killing live vegetation on the Property including hundreds of trees; b. using a chain saw to fell between 50 and 100 trees on the Property; and 14 Mr Hargreaves also mulched vegetation that had previously been felled on the Property. 15 The trees that Mr Hargreaves felled on the Property ranged in size up to eight metres in height and some of the trees were large enough that Mr Hargreaves could not put his arms around them. 16 Mr Hargreaves describes the trees that he felled on the Property as species of Gum trees, Ironbarks and other native trees. During the period that Mr Hargreaves worked on the Property he felled vegetation by: a. using a forestry mulcher; and b. using a chain saw during periods of wet weather. THE SPECIES OF NATIVE VEGETATION CLEARED 17 Ecologist Mr Greg Steenbeeke performed an assessment of available aerial imagery on the Property and then conducted a site inspection of the Property on 30 May 2017. During that site inspection Mr Steenbeeke saw large areas of exposed bare ground that were evident and much ground disturbance that was indicative of a wheeled heavy vehicle having been used extensively on the site. 18 At the site inspection on 30 May 2017 Mr Steenbeeke undertook four vegetation survey plots of 400 square metres each, using a recognised means of assessment in accordance with the Native Vegetation Interim Type Standard, which is consistent with the current process used in NSW for the assessment of vegetation communities and diversity using the Biodiversity Assessment Method. 19 Seventy Eight native vascular plant species were found on the Property. Those species included: Acacia ulicifolia Acianthus pusilus Adiantum aethiopicum Allocasuarina torulosa Angophora bakeri Angophora costata Aristida vagans Austrostipa setacea Billardiera scandens Brachyscome graminea Brunoniella pumilio Bursaria spinosa Caladenia sp Cheilanthes sieberi subsp. sieberi Chiloglottis sp Clematis glycinoides var. glycinoides Coronidium scorpioides Corybas aconitiflorus Corymbia gummifera Cyathochaeta diandra Dampiera purpurea Desmodium varians Dianella caerulea Dianella revoluta Dichelachne rara Echinopogon ovatus Entolasia marginata Entolasia stricta Eragrostis brownii Eucalyptus fibrosa Eucalyptus globoidea Eucalyptus punctata Eucalyptus sparsifolia Fimbristylis dichotoma Gahnia aspera Glycine clandestina Glycine microphylla Gonocarpus teucrioides Goodenia hederacea subsp. hederacea Hardenbergia violacea Hibbertia aspera Hibbertia diffusa Hydrocotyle laxiflora Kennedia rubicunda Kunzea ambigua Lagenifera gracilis Lepidosperma laterale Lepidosperma urophorum Lindsaea microphylla Lomandra confertifolia subsp. rubiginosa Lomandra cylindrica Lomandra filiformis subsp. filiformis Lomandra longifolia Lomandra multiflora Lomandra obliqua Microlaena stipoides Opercularia diphylla Oxalis perennans Pandorea pandorana subsp. pandorana Panicum effusum Panicum simile Persoonia pinifolia Phyllanthus hirtellus Phyllanthus virgatus Pimelea linifolia subsp. linifolia Pittosporum undulatum Podolepis jaceoides Pomax umbellata Poranthera microphylla Pratia purpurascens Pterostylis acuminata Pterostylis grandiflora Pterostylis longifolia Pterostylis nutans Pultenaea villosa Solanum prinophyllum Thelymitra sp 20 It was likely that the Sydney Hinterland Transition Woodland community, which is not a threatened community, was present in the vegetation that had been cleared from the Property. 21 There was very little weed growth on the Property before the Clearing. EXTENT OF CLEARING 22 Remote Sensing Scientist Ms Ashlee Wakefield identified the extent of vegetation that had been present on the Property from 1990 by examining a series of aerial images of the Property between 27 October 1983 and 8 February 2018. 23 All vegetation cleared in the AOI had existed on the Property since at least 1 January 1990. 24 A change in vegetation class was recorded if there was change in crown cover class, as set out in the classification system in the Australian Soil and Land Survey Field Handbook - Third Edition by National Committee on Soil and Terrain shown below: Description Crown Separation Ratio % Crown Cover Closed or dense 80% Mid Dense 0 to 0.25 50 to 80% Sparse or open 0.25 to 1 20 to 50% Very sparse 1 to 20 0.25 to 20% Isolated plants >20 <0.25%

[7]

25 The change in remnant vegetation on the Property during the charge period is summarised as follows: a. From 29 January 2017 to 10 February 2017, the removal of a clump of trees (approximately 0.1 hectares) in the southern section of that Area of Interest. b. From 16 February 2017 to 11 March 2017, further thinning of the entire area identified as the Area of Interest on the map at Annexure 1, as well as the removal of a linear clump of trees in the far north of that Area of Interest (approximately 0.7 hectares) and a large clump of trees in the centre of the southern section of the Area of Interest (approximately 0.3ha). NO APPROVAL TO CLEAR 26 The Clearing was not carried out in accordance with a development consent. 27 The clearing was not carried out in accordance with a property vegetation plan. 28 There was no authority or approval to clear under any other Act. ENVIRONMENTAL HARM 27 The Clearing resulted in potential harm to animals that may have been either resident on the Property or transient and used resources available in the Area of Interest before the clearing, including: a. The loss of feed resource; b. The loss of shelter and roost; and c. The creation of a more hostile environment for those animals. 28 The Clearing caused harm to native vegetation by: a. Affecting the microclimate - in particular humidity and exposure to sun - with a resultant negative impact on the ability of native vegetation to grow from seeds to adulthood; b. Increasing the amount of air movement around smaller plants, stripping away moisture and decreasing the local humidity, making plants more susceptible to desiccation and dying in periods of reduced rainfall and low available soil moisture; and c. Ultimately leading to altering the diversity and abundance of native vegetation within the Area of Interest. 29 The Clearing also had potential impacts on the aquatic environment. This includes changes to the chemistry, turbidity and other water quality factors in the waters that are discharged from the Property, with a resulting potential negative impact on any aquatic organisms and any users that might draw on or use that water downstream.

Annexure A to this decision is Annexure 1 to the Statement of Agreed Facts (at [2]) and Annexure B is the left-hand (pre-clearing) image, with Annexure C being the right-hand (post-clearing) image, in Annexure 3 to the Statement of Agreed Facts (at [8]). Colour A3 versions of these images became Exhibit B.

[10]

The EP&A Act

As can be seen above, s 12 of the Native Vegetation Act refers to s 126 of the EP&A Act. As at the date range of the Company's offending conduct, s 126 of the EP&A Act was not in a form that permitted imposition of any penalty. It is not necessary to reproduce the terms of the provision as it existed during the date range as the applicability of an earlier version imposing the applicable penalties had been preserved.
This was effected by cl 44 of Pt 8 Provisions consequent on enactment of the Environmental Planning and Assessment Amendment Act 2014 of Sch 4 Transferred savings, transitional and other provisions - former provisions of Environmental Planning and Assessment Regulation 2000 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017. This clause is in the following terms: 44 Construction of reference to maximum penalty relating to native vegetation The reference to section 126 of the Environmental Planning and Assessment Act 1979 in section 12(2) of the Native Vegetation Act 2003 is to be read as a reference to section 126(1) of the Environmental Planning and Assessment Act 1979 as in force immediately before its repeal by the amending Act.
The terms of repealed of s 126(1) preserved by the above clause are: 126 Penalties (1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.
First, it is to be observed that one penalty unit is $110 (s 17 of the Sentencing Procedure Act). Second, the daily penalty element of the above provision plays no role in these proceedings.
As it was raised in the submissions on behalf of the Company, it is also appropriate to reproduce the then applicable terms of s 127 of the EP&A Act, a provision in the following terms: 127 Proceedings for offences (1) Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction. (2) … (3) If proceedings in respect of an offence against this Act are brought in the Local Court, the maximum monetary penalty that the court may impose in respect of the offence is, notwithstanding any other provisions of this Act, 1,000 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, whichever is the lesser. (4) If proceedings in respect of an offence against this Act are brought in the Court in its summary jurisdiction, the Court may impose a penalty not exceeding the maximum penalty provided by this Act in respect of the offence.

[11]

The Sentencing Procedure Act

There are three relevant provisions of the Sentencing Procedure Act that are relevant. The first of them, s 3A, explains the purposes for which sentencing pursuant to this legislation is undertaken. That provision is in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The second provision, s 21A, sets out, first, in s 21A(2) matters potentially requiring consideration to establish whether or not any factors of aggravation arise for consideration in this sentencing context. The second relevant element of this provision are the matters set out in s 21A(3) where a list of potentially engaged factors subjective to the offender, in this case the Company, require to be considered. The relevant elements of s 21A(2) and (3) requiring consideration in these proceedings are: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows- ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain, The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) …, (d) …, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) …, (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (j) …, (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), …
In his written submissions for the Company, at [4], Mr Johnson proposed that a more limited range of matters from s 21A(3) required consideration. I have addressed those raised by him but added those which I also consider relevant.
The final provision in the Sentencing Procedure Act that requires consideration is s 22, a provision dealing with the sentencing matters arising from the entry of a guilty plea to the charge which has engaged the undertaking of this sentencing process. It is not necessary to set out the terms of this provision.

[18]

Environmental harm Introduction

I turn, first, to consider the extent to which the Company's vegetation clearing at the site caused, or was likely to cause, environmental harm. Relevant elements from the Statement of Agreed Facts
There are four relevant portions in the Statement of Agreed Facts engaged in any consideration of where the extent of the environmental harm warrants the conclusion that it is a factor of aggravation for the purposes of s 21A(2)(g) of the Sentencing Procedure Act. The first is: 7 Mr Saul Hargreaves and Mr Ryan Stewart were employees of the Defendant who carried out works involved in the Clearing. The AOI had been the subject of extensive clearing from 25 September 2016 to 21 November 2016. When Mr Stewart and Mr Hargreaves commenced work for the defendant on the AOI they saw large numbers of trees that had been felled and were lying on the ground in clumps towards the rear of the Property. These fallen trees included some which were so large you couldn't put your arms around them. There was a lot of mulch already on the ground, two to three feet thick above the ground in some places. It was hard to walk through because it was so thick. Other contractors who worked at the Property saw that there were trees pushed over everywhere. There were still leaves on the trees which had been pushed over but they were not green.
The second element is the section describing the work done by the Company's employees on the site: Work conducted by Mr Stewart 10 Between about 29 January 2017 and 11 March 2017, Mr Stewart on behalf of the Defendant conducted unlawful works on the Property, including: a. knocking over and killing live vegetation on the Property including hundreds of trees; b. using a chain saw to fell between approximately 60 to 120 trees; 11 Mr Stewart also mulched vegetation that had previously been felled on the Property and mulched the trees that he had knocked over or felled with a chainsaw. 12 During the period that Mr Stewart worked on the Property he felled vegetation by: a. using a machine identified as a 'Fecon', which was a 600-horse power machine that had a mulcher attached to its front to knock trees over; and b. using a chain saw, to cut trees down during periods of wet weather. Work conducted by Mr Hargreaves 13 Between about 30 January 2017 and 11 March 2017, Mr Hargreaves on behalf of the Defendant conducted unlawful work on the Property including: a. knocking over and killing live vegetation on the Property including hundreds of trees; b. using a chain saw to fell between 50 and 100 trees on the Property; and 14 Mr Hargreaves also mulched vegetation that had previously been felled on the Property. 15 The trees that Mr Hargreaves felled on the Property ranged in size up to eight metres in height and some of the trees were large enough that Mr Hargreaves could not put his arms around them. 16 Mr Hargreaves describes the trees that he felled on the Property as species of Gum trees, Ironbarks and other native trees. During the period that Mr Hargreaves worked on the Property he felled vegetation by: a. using a forestry mulcher; and b. using a chain saw during periods of wet weather.
The third element is the agreed position concerning the change in the vegetation on the site as a consequence of the Company's offending conduct. This is set out at [25] of the Statement of Agreed Facts. This is in the following terms: 25 The change in remnant vegetation on the Property during the charge period is summarised as follows: a. From 29 January 2017 to 10 February 2017, the removal of a clump of trees (approximately 0.1 hectares) in the southern section of that Area of Interest. b. From 16 February 2017 to 11 March 2017, further thinning of the entire area identified as the Area of Interest on the map at Annexure 1, as well as the removal of a linear clump of trees in the far north of that Area of Interest (approximately 0.7 hectares) and a large clump of trees in the centre of the southern section of the Area of Interest (approximately 0.3ha).
The final element is the section of the Statement of Agreed Facts specifically setting out the agreed position under the heading "Environmental Harm". This is in the following terms: 27 The Clearing resulted in potential harm to animals that may have been either resident on the Property or transient and used resources available in the Area of Interest before the clearing, including: a. The loss of feed resource; b. The loss of shelter and roost; and c. The creation of a more hostile environment for those animals. 28 The Clearing caused harm to native vegetation by: a. Affecting the microclimate - in particular humidity and exposure to sun - with a resultant negative impact on the ability of native vegetation to grow from seeds to adulthood; b. Increasing the amount of air movement around smaller plants, stripping away moisture and decreasing the local humidity, making plants more susceptible to desiccation and dying in periods of reduced rainfall and low available soil moisture; and c. Ultimately leading to altering the diversity and abundance of native vegetation within the Area of Interest. 29 The Clearing also had potential impacts on the aquatic environment. This includes changes to the chemistry, turbidity and other water quality factors in the waters that are discharged from the Property, with a resulting potential negative impact on any aquatic organisms and any users that might draw on or use that water downstream.

[19]

The Prosecutor's position

As I have earlier noted, the Prosecutor provided written submissions on sentencing. These dealt with the issue of environmental harm at [40] to [45] and [49] to [54]. These submissions were in the following terms: Environmental harm 40. The parties have agreed that the Clearing caused harm (as well as potential harm) to the environment. In particular: a. The potential harm to animals resident on the Property or who otherwise used resources on the Property prior to the clearing, such as food or shelter; b. The harm caused to native vegetation by affecting the microclimate, increasing the movement of air around smaller plants and altering the diversity and abundance of native vegetation on the Property; and c. The potential harm to the immediate and downstream aquatic environment by the changes to the chemistry, turbidity and other water quality factors in waters discharged from the Property. 41. The harm (and potential harm) caused to a contiguous, interconnected ecological community is, consequently, not localised. Any analysis of the extent of environmental harm must take into account the high likelihood of adverse environmental outcomes in an area greater than that which has been unlawfully cleared. 42. On the above basis, the Prosecutor submits that the harm caused to the environment is significant. Defendant's state of mind 43. Notwithstanding that the Defendant has admitted to the essential elements of the offence, as it is one of strict liability there is no evidence before the Court as to the Defendant's state of mind at the time of the commission of the offence. 44. In Camilleri at 700, Kirby P (as his Honour then was) accepted that it is open to a sentencing court to infer from the circumstances surrounding the offence that the defendant could have foreseen the risk of harm flowing from the offending conduct. 45. On this basis, the Prosecutor submits that the Court is entitled to infer that the Defendant was aware that there was a risk of environmental harm in conducting clearing without legal authority to do so. Accordingly, the objective seriousness of the offence is heightened. … Foreseeable risk of environmental harm 49. The scale and nature of the Clearing conducted by the Defendant are such that the likelihood of environmental harm would be foreseeable, if not obvious. Further, the Defendant's longstanding experience in the land clearing industry would indicate that the likelihood of environmental harm must have been foreseeable. 50. The clear foreseeability of environmental harm elevates the objective criminality of the offence. Practical measures to avoid harm 51. There is no evidence before the Court as to steps taken by the Defendant to ameliorate or otherwise account for the risk of harm caused by the clearing of native vegetation on the Property. 52. However and as discussed above, there is not a total prohibition on the clearing of native vegetation. Rather, statutory consent to this clearing may be granted, or clearing may be conducted in accordance with a property vegetation plan. 53. The failure of the Defendant to enquire as to the existence of such consent, or to take any positive steps in obtaining such consent, elevates the objective criminality of the offence. Defendant's control over the causes of harm to the environment 54. The Defendant had total control over the cause of the offence. Mr Stewart and Mr Hargreaves, the employees of the Defendant who carried out the work involved in the Clearing, were acting within the course of their employment when the unlawful works were carried out. 55. Further, the Court should not accept any argument in mitigation that, had the Defendant not undertaken the Clearing, the landowner, Mr Styles, would have engaged another contractor. In addition, during the course of the hearing, the Prosecutor also addressed this topic.
The Prosecutor's oral submissions expanded on those matters in the Prosecutor's written submissions set out above.

[20]

The Company's position

Mr Johnson took the same approach for the Company. His written submissions were in the following terms: Harm to the Environment Native Vegetation 8. The defendant accepts that there was harm to native vegetation from the clearing of the vegetation. However, contrary to the submissions of the prosecutor at PS [41]-[42], there is insufficient evidence for the Court to be satisfied that the harm was "substantial" within the meaning of s.21A(2)(g) of the CSP Act. 9. It is agreed that there would have been changes to humidity and exposure to sun, altering the make-up of the vegetation, but the Court has no sufficient evidence to find, in light of the significantly degraded state of the AOI before clearing, that such changes would have been significant. 10. The defendant says that there is no evidence to support the submissions at: (a) PS [41] that the AOI was part of a "contiguous, interconnected ecological community"; and at (b) PS [56] that any evidence as to harm is the subject of uncontested evidence of Mr Steenbeeke. So far as the defendant is aware, this telephone sentence hearing is being conducted on the basis that there are only agreed facts being led and no evidence is being given by any witness and the submissions should be withdrawn. Fauna 11. As to fauna, SOAF [27] states: The Clearing resulted in potential harm to animals that may have been either resident on the Property or transient and used resources available in the Area of Interest before the clearing, including: a. The loss of feed resource; b. The loss of shelter and roost; and c. The creation of a more hostile environment for those animals. 12. The prosecutor at PS 40 suggests, with respect in error, that it is agreed that there was potential harm to animals resident on the Property, when the agreed fact related to animals which "may have been either resident on the Property or transient". There was no agreement as to the actual presence of animals at the time of the offence. 13. It is almost impossible to argue against the potential for harm to fauna to take place when clearing takes place. The loss of trees may have resulted in the loss of some feed resource to transient birds, for example. However, here the harm agreed is potential harm to animals which might potentially be present or transient. No particular species has been hypothesised as being present, let alone identified. There is no evidence of the surrounding local environment as context to gauge the significance of the AOI for any species. There is no evidence of the significance to any species of the loss of potential feed resource or shelter. The Court could not be satisfied beyond reasonable doubt that the potential harm was substantial within the meaning of s.21A(2)(g) of the CSP Act. 14. Further, against the background of the significant clearing which had already taken place on the AOI before the time of the offence, with mulch two to three feet thick above the ground in places and piles of large trees, the Court could not be satisfied beyond reasonable doubt that any animals had either remained resident or were making significant transient use of the AOI at the time of the offence, or that the potential impact on them was significant. The environment had already been significantly degraded. 15. In relation to paragraph 14 above, it is important to clarify that the defendant does not argue that the fact that the environment harmed by the defendant's conduct was already disturbed or modified is a mitigating factor. Rather the defendant says that the significantly disturbed state of the vegetation is the starting point against which to measure the aggravating factor of harm to the environment caused by the defendant's actions: see Environment Protection Authority v Ecolab Pty Ltd at [14], cited with approval by Pepper J in Environment Protection Authority v John Michelin & Son Pty Ltd at [160], where the Court held that it was important to determine the condition of the existing environment in order to assess the extent of the environmental harm caused by the offence. Aquatic Environment 16. As to the aquatic environment, at SOAF [29] it is agreed that there was a potential negative impact on waters downstream. This potential is not quantified and the nature of the impact is described in the broadest terms on "any aquatic organisms and any users that might draw on or use that water downstream". Neither the existing background water quality nor the degree of any potential change to water quality is known. It is speculation built on speculation. 17. The Court should not be persuaded beyond reasonable doubt on the evidence before it that the potential harm to the environment was significant within the meaning of s.21A(2) of the CSP Act.
Mr Johnson's oral submissions expanded on those matters in his written submissions set out above.

[21]

Consideration

In Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178, Preston CJ set out, at [48], a list of matters potentially to be taken into account when assessing the objective gravity of an environmental offence. This list was not expressed as exhaustive. The matters listed by his Honour requiring consideration when making an assessment of the extent of environmental harm, were:

the harm caused to the environment by commission of the offence;
the offender's reasons for committing the offence;
the foreseeable risk of harm to the environment by commission of the offence;
the practical measures to avoid harm to the environment; and
the offender's control over the causes of harm to the environment.

Each of these five potential factors requires to be considered as part of my analysis for determining whether I am satisfied, beyond reasonable doubt, that "the (environmental) damage caused by the offence was substantial".
First, I note that the Prosecutor's written submissions proposed that I should find that the environmental harm caused by the Company's offending conduct should be categorised as "significant" (written submissions at [42]) rather than "substantial". The Prosecutor did not propose that I find a factor of aggravation pursuant to s 21A(2)(g) (a necessary inference to be drawn from the Prosecutor's written submissions at [59]).
For the purposes of concluding that the environmental harm, in all its aspects requiring assessment, was a factor of aggravation for sentencing purposes, I must be satisfied that this harm was substantial (s 21A(2)(g)). As earlier explained, such satisfaction would need to be demonstrated by the evidence establishing beyond reasonable doubt that I should so conclude.
I am unable so to conclude. My reasons for doing so can be explained shortly. Although there were many trees cut down and other vegetation removed, the impacts arising from this are couched, in the Statement of Agreed Facts, in conditional terms as can be seen from [27] to [29] of that document. To the extent that specific environmental consequences are agreed, they are unquantified and unable to be quantified.
Finally, it has been agreed that there was extensive clearing that had taken place on the site prior to the unlawful land-clearing activities carried out by the Company. Although the Statement of Agreed Facts confirms that this clearing had not been in the very immediate past (as the leaves on this fallen vegetation were brown, nonetheless, the continuing attachment of those leaves inevitably leads to the conclusion that that clearing was not ancient (Statement of Agreed Facts at [7]). As a consequence, I am satisfied that it is not open to me to utilise the images, at Annexures B and C to this judgment, to draw any fine-grained conclusion as to the extent of the illegal land clearing undertaken by the Company during the charge period.
For these reasons, I am unable to conclude, beyond reasonable doubt, that the environmental harm caused by the Company's unlawful land clearing was "substantial". The further consequence is that this potential factor of aggravation is not established.

[22]

Financial gain

The Prosecutor submitted that I should find that the Company's offending conduct was carried out for financial gain. If so, this would constitute a factor of aggravation weighing more heavily against the Company in the sentencing process than if it were not. The Prosecutor's written submissions on this point were in the following terms: 46 There is no particular evidence before the Court as to the Defendant's reason for committing the offence. 47 However, given that the Defendant was engaged by Mr Styles on a commercial basis to undertake the Clearing, it is reasonable to infer that a significant degree of motivation was financial gain.
During the course of the hearing, the Prosecutor submitted that the available indicia sufficiently supported the conclusion that the clearing was carried out for financial gain.
Mr Johnson submitted for the Company that I could not be satisfied beyond reasonable doubt that this was the position. In his written submissions, he said: 21. The criminality involved in the commission of the offence by a defendant is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer at [366] and Bentley at [237]). An offence is aggravated if committed for financial gain within the meaning of s.21(2)(o) of the CSP Act. 22. The prosecutor acknowledges at [46] that there is no evidence as to the defendant's reason for committing the offence, but despite this proper concession suggests at [47], on the sole basis of the contract for services with the landowner, that the defendant was significantly motivated by financial gain. 23. Most land clearing prosecutions have been prosecuted against the land owner. In those cases, evidence of the significant increase in land value and the capacity to crop or graze that land at vastly greater financial return has formed the basis of findings that financial gain was a reason for commission of the offence. 24. However the defendant in this case was a contractor. It is not the law that every person who commits an offence in the course of carrying out a contract for service or in the course of employment commits the offence "for financial gain". 25. In Environment Protection Authority v John Michelin & Son Pty Ltd the defendant had entered a plea of guilty to polluting waters while carrying out a contract to clean out a detention dam. As Pepper J observed at [170], "it is not the case that every act committed during the course of operating a business is committed for financial gain (Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Ltd [2017] NSWLEC 89 at [74])". 26. In this case there is no evidence that the offence was committed for financial gain in the sense contemplated to constitute an aggravating factor under the CSP Act.
During the course of the hearing, he addressed the propositions put by the Prosecutor in its written submissions and during the course of the hearing. The position advanced by Mr Johnson relied upon a proposition put by Pepper J in Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88 (John Michelin & Son) at [170] where her Honour said: 170 There is no evidence that the offence was committed for financial gain. As Michelin correctly observed, it is not the case that every act committed during the course of operating a business is committed for financial gain (Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Ltd [2017] NSWLEC 89 at [74]).
Mr Johnson put the proposition that there was no evidentiary basis upon which I could conclude that the land clearing was carried out for financial gain. Consideration
The first relevant matter is that the Statement of Agreed Facts contains the following: 7 Mr Styles engaged the Defendant to conduct the Clearing.
It is not in contest that the Company is an enterprise which has been in business for over two decades (Statement of Agreed Facts at [4] and the ASIC records in Annexure 2 to that document). It is also not in contest that the Company's business is land clearing, that is, the clearing of vegetation pursuant to contracts entered into with property owners.
There is no evidence of the quantum of the contract between the Company and Mr and Ms Styles, the owners of the site (unlike the position in Ku‑ring‑gai Council v Edgar [2017] NSWLEC 49, where such information was in evidence before me).
To understand why Mr Johnson is completely off the mark in his reliance on the passage in John Michelin & Son, it is necessary to go to the passage, at [74], in Robson J's decision in Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Ltd [2017] NSWLEC 89 cited by Pepper J. The cited passage makes it clear that there was an alternative, equally potentially valid reason why the offending conduct being dealt with by Robson J had occurred. Here, there is not only no alternative explanation - there is no explanation at all beyond what is set out in [7] of the Statement of Agreed Facts
The combination of the reference to the Company being "engaged" "to conduct the Clearing" in the Statement of Agreed Facts; the fact that the vegetation clearing was undertaken by two employees of the Company; that a range of mechanical vegetation clearing plant together with chainsaws was used for this purpose; that the clearing was extensive and carried out over a period of some six weeks are all uncontroverted pieces of circumstantial evidence.
These factors, taken together and in the absence of any rational alternative explanation, inevitably lead me to the conclusion that I can be satisfied, beyond reasonable doubt, that the Company's offending conduct was carried out for financial gain.
This, therefore, constitutes a factor of aggravation for these sentencing purposes.

[24]

Harm

The first relevant factor, in s 21A(3)(a) of the Sentencing Procedure Act, is as to whether the damage caused by the offence was not substantial.
For this mitigating factor to be engaged, the Company must establish a proper basis for it on the balance of probabilities (R v Olbrich).
I have earlier explained why I am not satisfied, beyond reasonable doubt, that the environmental harm caused by the Company's illegal land clearing at the site was to be regarded as "substantial" for the purposes of establishing a factor of aggravation to be taken into account in this sentencing process. To have so concluded, what was required to be proved beyond reasonable doubt as establishing, positively, was that that threshold had been crossed.
The conclusion that the mitigating factor, potentially available via s 21A(3)(a), is merely the flipside of that which earlier required consideration pursuant to s 21A(2)(g) is fallacious.
For the reasons earlier explained, to establish a factor of aggravation that factor must be proved, in a positive sense, beyond reasonable doubt. For the purposes of establishing that a mitigating factor is available to a defendant, not only does the standard of proof shift from "beyond reasonable doubt" to the "balance of probabilities", the burden of proof shifts from the prosecutor to the defendant.
In this specific instance, what is also required is that the Company prove a negative (namely, that the environmental harm was "not substantial") on the balance of probabilities.
I have earlier, at [40], set out Mr Johnson's submissions on this point. I also set out, at [34] to [37], the four elements from the Statement of Agreed Facts that describe the extent of, and consequences or potential consequences arising from, the Company's unlawful land clearing.
Although I have also earlier set out, at [46] and [47], the matters that caused me to conclude that a factor of aggravation had not been established, those matters are insufficient to cause me to conclude that, for the purposes of this aspect of the sentencing process, the Company has established, on the balance of probabilities, the negative proposition that the environmental harm was "not substantial".
The analysis I have applied concerning the tension in the approaches to be taken to consideration of s 21A(2)(g), as a first step, and the subsequent consideration of s 21A(3)(a), is consistent with the findings of Preston CJ in Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [50].
As consequence, this potential mitigating factor is not available to weigh in the Company's favour.

[29]

Contrition and remorse Introduction

The final relevant factor is whether, in s 21A(3)(i) of the Sentencing Procedure Act, the Company "has shown remorse for the offence". This engages consideration of two elements contained in the provision that are both required to be satisfied. These, relevantly adapted, are: (i) Whether the Company has provided evidence that it has accepted responsibility for its actions, and (ii) Whether the Company has acknowledged any loss caused by its actions and has made reparation for such loss.
Pepper J set out, in Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 at [80] - an approach endorsed in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 by Robson J - the four types of action which may demonstrate genuine contrition and remorse in satisfaction of these requirements: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence … (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities … (c) third, taking action to address the cause of the offence … and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence [references excluded]
It is to be observed that there are only minor indicia of what might be regarded as contrition and remorse in these proceedings. Of the above matters, only the fourth of them is here engaged and then confined only to the extent of attendance during this hearing.
Those factors are, first, that the director and guiding mind of the Company, Mr Bradley Parrish, attended the telephone sentencing hearing by dialling in to the conference call. This was drawn to my attention by Mr Johnson and I confirmed that this was the position - with Mr Parrish acknowledging his presence in response to a question from me. Second, the fact that the Company has pleaded guilty can also be regarded as an (albeit minor) indicator of some regret on the Company's behalf for its offending conduct.
However, as was submitted by the Prosecutor during the course of the hearing, there is no apology or expression of regret. There is no suggestion that the Company has contemplated what remedial activities might have been appropriate to be pursued. There is no evidence as to any steps taken by the Company to ensure that, in its future business activities of land clearing, circumstances such as these will not recur.
As a consequence, to the extent that this factor is engaged, it is, at best, a featherweight on the scales of justice in favour of the Company, and certainly does not provide any basis for any significant mitigation of the penalty that is otherwise appropriate.

[31]

The Prosecutor's submissions

Annexure A to the Prosecutor's written submissions was headed "Table of comparative cases". It comprised a list of some 17 cases where there had been a successful prosecution of a breach of s 12 of the Native Vegetation Act. It is unnecessary to consider, in any detail, the vast majority of these cases - noting, however, that the Prosecutor described the material in this table as being a comprehensive table of cases dealt with for breaches of the statutory provision here engaged.
However, the Prosecutor specifically drew attention to two cases, Chief Executive, Office of Environment and Heritage v Merriman [2018] NSWLEC 96 (Merriman) and Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75 (Walker Corporation), in the Prosecutor's written submissions at [67] and [68], with these paragraphs being in the following terms (footnotes omitted): The scale of clearing in Chief Executive, Office of Environment and Heritage v Merriman makes it a comparative scenario to the scale of clearing in the present case, but the penalty in that case reflected significant mitigating circumstances on behalf of that defendant (including the registration on title of a positive covenant reflecting a remediation plan). Corbyn v Walker Corporation Pty Ltd is also a useful comparative case based on the scale of clearing.
In the table of cases provided by the Prosecutor, the notes concerning Merriman record the extent of the clearing as being 12.6 hectares and that the vegetation cleared varied in structure from woodland or open forest to scattered trees with a predominantly native understorey. The Prosecutor's table then listed 16 types of vegetation said to be the main species cleared. The table then noted that the penalty which had been imposed was a bond and the requirement that the defendant pay the Prosecutor's costs of $60,000.
The Prosecutor's table similarly set out detail with respect to Walker Corporation. The table noted that the clearing was 7.3 hectares over three allotments. The native vegetation cleared included 71 species of native plants. These plant species included eight tree types and 63 shrubs, understorey plants and ground covers. The table noted that the defendant had been fined $80,000 and ordered to pay the Prosecutor's costs.

[32]

The Company's response

Mr Johnson acknowledged, in his written submissions, that Merriman and Walker Corporation were capable of providing assistance in arriving at an appropriate penalty, subject to examination of any differences in other relevant sentencing considerations (written submissions at [38]).
He dealt with each of the cases in the following terms written submissions at [39] to [46] (footnotes omitted): Corbyn v Walker Corporation 39 In Corbyn the Court accepted the evidence of the two ecologists who were called to give evidence. Importantly, this included evidence that although the two areas cleared were relatively small compared to the overall area of native vegetation on the overall site, they comprised endangered ecological communities that had been identified as over-cleared and unable to withstand further loss. Hence, the clearing of relatively small areas was significant. 40 There was no harm to any EEC in this case and there is no evidence of the precise nature or duration of any harm caused by the defendant. 41 Further, when considering the harm caused by the offence in this case, it is of fundamental importance that the land the subject of the offence in this case had already been cleared immediately before the defendant commenced work. 42 A further important difference from the facts in Corbyn is that far from being an early plea of guilty with an accompanying reduction in sentence, in Corbyn there was a contested hearing running over 16 hearing days. Chief Executive, Office of Environment and Heritage v Merriman 43 In Merriman, the defendant had cleared 12.6ha of native vegetation, removing some 750 trees such that no live standing woody vegetation remained in the cleared area. Native ground cover was also removed in this area. The clearing was done to prepare the cleared land for cropping and/or broad-scale cultivation. The following relevant facts were agreed, demonstrating that there was evidence before the Court of far greater environmental harm in that case: 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 Whitebrowed 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. 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. 44 It is said by the prosecutor at [67] that the penalty in that case, a bond and payment of the prosecutor's costs, reflected significant mitigating circumstances (hearing difficulties, impaired short term memory and that he had instructed his solicitor to register a positive covenant on the certificate of title over the 84 hectares addressed in a remediation plan for the land cleared). 45 However as Preston CJ observed in Environment Protection Authority v Waste Recycling and Processing Corporation at [140]: The objective gravity or seriousness of the crime fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: …. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354; R v Nicols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997) at pp 6-7 per Barr J with whom Newman J agreed; and R v Scott [2005] NSWCCA 152 (18 April 2005) at [15]), or the objectives of punishment such as retribution and general and individual deterrence (R v McGourty [2002] NSWCCA 335 (13 August 2002) at [34] and [35]). 46 The penalty imposed in Merriman was accordingly within the range which was reasonable based on the objective seriousness of the offence in that case.
During his oral submissions, he further addressed those aspects of Walker Corporation which he submitted rendered it an inappropriate comparator.

[33]

Consideration

First, it is to be noted that Mr Johnson said, at [37] of his written submissions, that: 37 Most of the cases cited in Annexure A to the prosecutor's submissions are of no assistance for the task which the Court must carry out in this case. The areas of land cleared are generally vastly in excess of the area the subject of the present charge. Many of the cases involved significant environmental harm, such as the clearing of land which constituted an endangered ecological community or proven habit of threatened species.
An examination of the cases in the Prosecutor's table clearly demonstrates that this submission is correct. I did not understand the Prosecutor to cavil with this proposition. As was earlier noted, the Prosecutor provided the material in Annexure A to the Prosecutor's written submissions purely as a comprehensive list of cases where breaches of s 12 of the Native Vegetation Act had been successfully prosecuted. The Prosecutor's written submissions expressly confined any comparative submission for these sentencing purposes to the cases of Merriman and Walker Corporation.
Although the area cleared in Merriman might be regarded as generally comparable in scale with that which is here involved, the nature of the clearing and, particularly, the environmental outcomes sought to be achieved as a consequence of the remedial measures agreed to in a remediation plan to be implemented over 84 hectares of the property and recorded on Mr Merriman's property's title by way of public positive covenant (at [14] and [23] of Pain J's decision) are distinctly different from the present circumstances.
In addition, her Honour's judgment sets out the idiosyncratic personal health and financial circumstances of the defendant in those proceedings. Those personal circumstances are distinctly different from those which apply in these circumstances where the land clearing was carried out by a corporate entity; a corporate entity in the business of land clearing; and in circumstances where no issues of remediation arise. Because of these differences, I find the decision of Merriman of no assistance in these proceedings.
I now turn to consider the extent to which the decision in Walker Corporation may here have relevance. I have earlier recounted what the Prosecutor recorded concerning this case in the annexure to the Prosecutor's written submissions.
The nature of the clearing activities was summarised by Preston CJ at [21] of his Honour's sentencing decision (being the sentencing decision following on from his earlier determination in the contested liability decision (Director‑General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229)). His summary of the facts concerning the vegetation clearing was set out at [21] of his sentencing decision. It is appropriate to note, for present purposes, that 42 trees were cleared; elements of two endangered ecological communities (Shale Sandstone Transition Forest and Cumberland Plain Woodland) were included in the vegetation removed; and that there had been previous clearing and other vegetation disturbances for which Walker Corporation had not been responsible.
With the land clearing for which the Company is guilty, it is to be observed that there has been no impact on any endangered ecological community or threatened species. However, it is to be observed that the number of trees cut as part of the Company's land clearing on the site was a minimum of 110 trees to a maximum of 220 trees being cut down by chainsaw and the knocking over and killing of multiple hundreds of trees using heavy mechanical equipment (see [10] and [13] of the Statement of Agreed Facts).
It is also to be acknowledged that there had been earlier clearing of vegetation on the site carried out by persons unrelated to the Company (see [7] of the Statement of Agreed Facts).
In Walker Corporation, there was no question of any discount for a guilty plea, as the sentencing followed from a contested hearing as to whether the offence had been proved.
I find Walker Corporation to be of some general assistance. However, the circumstances are sufficiently different that I have concluded that the penalty there imposed (of $80,000) provides a somewhat useful benchmark, but a benchmark to be viewed in the context where, as his Honour observed, at [64], that: 64 I also take into account that Walker will be ordered to pay the prosecutor's costs, which are likely to be substantial. Payment of the prosecutor's costs is an aspect of the financial burden that will be suffered by Walker as a result of the offence.
This is not a relevant matter in these proceedings as the Prosecutor's costs are in the agreed amount of $5,400 and it could not be suggested that this constitutes a financial burden in the sense dealt with in the passage quoted immediately above.
However, I do have regard to the fact that the penalty which I have concluded is appropriate in the circumstances will, after discount for the Company's guilty plea, be generally comparable with that imposed in Walker Corporation.

[36]

General deterrence

Mr Johnson's written submissions acknowledged, at [35], that an element of general deterrence was appropriate.
However, Mr Johnson submitted during the hearing that, whilst I should have regard in my instinctive synthesis to determine what would be the appropriate starting penalty for the Company's offending conduct, I was required to take care that I would not be imposing an unfair community education burden on the Company by the penalty to be imposed. In this regard, he drew my attention to the oft-cited remarks of Brennan J in Walden v Hensler (for example, Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 - Pepper J and Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 - Robson J). Relevantly, his Honour said, at 570: But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose - that is, the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed - must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education.
General deterrence is of importance in relation to environmental offences (Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [71]-[81]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [103]-[104]).
As Preston CJ observed in Walker Corporation at [15]: 15 … Courts have repeatedly drawn attention to the need for general deterrence when imposing sentences for offences of clearing native vegetation contrary to law: see Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; 197 A Crim R 31 at [9]-[13] and cases therein cited and Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 at [9]-[12].
In this context, it is to be observed that matters of general deterrence are not, in circumstances such as these, directed solely at an amorphous and unconfined wide public audience. The need for a deterrent educational outcome in circumstances such as these, where a long-operating commercial land-clearing enterprise has carried out unlawful activities as part of its business activities, must also send a deterrent message of particularity to those others who are similarly commercially engaged. This is so in circumstances where I have held, for reasons earlier explained, that the Company's offending conduct was carried out for financial gain, a statutory factor of aggravation pursuant to s 21A(2)(o) of the Sentencing Procedure Act.
Whilst it is, clearly, not appropriate to impose a disproportionate penalty on the Company for its offending conduct, I am satisfied that it is appropriate to have regard to the need for an element of general deterrence in the penalty which I am to impose.

[38]

The option of prosecution in the Local Court

Mr Johnson submitted that I should have regard to the fact that the Prosecutor had had the option of having this matter dealt with summarily in the Local Court and that, as a consequence, I should have regard to the far lower jurisdictional limit of the Local Court as to the extent of penalty able to be imposed on the Company. In support of this proposition, he cited what had been said in Harris v Harrison [2014] NSWCCA 84, by Simpson J (as her Honour then was), at [92] and [93]: 92 A matter that was not drawn to her Honour's attention, and a significant matter, is that the offence could have been prosecuted in the Local Court, where the maximum applicable monetary penalty was $22,000. It is well established that that may be a relevant sentencing consideration: R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; 50 NSWLR 115. 93 In Doan, Grove J, with whom Spigelman CJ and Kirby J agreed, observed that the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstances to be taken into account; the significance of the circumstance varies from case to case (at [42]).
To the extent potentially relevant, it is clear that I am to do so. However, for a better understanding of the proposition which her Honour had derived from the decision in R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 (Doan), it is appropriate to turn to the relevant portion of that decision to obtain a more fine-grained understanding of the proposition providing the foundation for her Honour's observation. In Doan, Grove J (Spigelman CJ and Kirby J agreeing) said, at [42]: 42 It was submitted by the Crown that these cases do not expose any reasoning underlying a principle that the availability of summary jurisdiction and lower ceiling of penalty should be a matter of mitigation. The cases reveal that the circumstance can, rather than should, be a matter of mitigation. All offenders in the relevant situation would have lost the chance of being dealt with within the restrictions applicable in the summary court and for that reason that chance should not be ignored. The significance of the loss of that chance would undoubtedly vary from case to case and in some cases it would contribute to mitigation, in others, not. I see no reason to depart from the approach taken in those cases but they are authority for the proposition that it is a matter to be taken into account and not a universal factor for reduction of sentence. [emphasis added]
First, it is to be observed that all prosecutions for a breach of the statutory provision here engaged could be dealt with summarily in the Local Court. It is therefore self-evident that that position cannot be accepted as providing some universal factor of mitigation on the penalty that would otherwise be appropriate to be imposed. That is also clearly reflected in the above passage from Doan.
What is required is an examination of whether there is some basis to conclude that the particular circumstances of this prosecution are such that it might have been appropriate for the Prosecutor to contemplate commencing proceedings in the Local Court rather than in this Court.
Mr Johnson advanced no specific submission pointing to factors which could lead me to such a conclusion.
My own examination of all of the matters set out in the Statement of Agreed Facts lead me to the conclusion that there are no obvious circumstances warranting such a conclusion. The Company has been in business, as submitted by Mr Johnson and as disclosed in the ASIC records in evidence, for in excess of two decades. The business is that of land clearing. The appropriateness of prosecution in this Court for the purposes of sending a general deterrence message to others engaged in this industry is dealt with elsewhere in this decision and it is unnecessary to repeat it here.
However, I am satisfied that there are no circumstances concerning this Defendant and its offending conduct that would warrant me mitigating the penalty which I otherwise consider appropriate to impose because of the jurisdictional limit which would have applied had the Prosecutor considered it appropriate to have this offending conduct dealt with summarily in the Local Court. I therefore reject Mr Johnson's submission in this regard.

[44]

Consideration

It seems to me that the submission that I should conclude that the Company's offending conduct should be within the middle-to-high range of objective seriousness could only be based on the premise that I would find as established both substantial environmental harm and financial gain as aggravating factors pursuant to s 21A(2) of the Sentencing Procedure Act.
The position advanced by Mr Johnson, in counterpoint to that advanced for the Prosecutor, was that I would not find that the environmental harm caused by the Company's unlawful conduct was substantial and, therefore, was not a factor of aggravation.
Mr Johnson also dealt, elsewhere in his written submissions and in his oral submissions, as to why I should not conclude that the Company had carried out the unlawful clearing for financial gain.
As can be seen from my earlier analysis concerning each of these potential aggravating factors, I am not satisfied that the environmental harm of the offending conduct has been demonstrated as being substantial (therefore not engaging this factor of aggravation) but I am satisfied, beyond reasonable doubt, that the Company's offending conduct was committed for financial gain (this constituting a statutory factor of aggravation).
Under the circumstances, I am satisfied that the appropriate characterisation of the Company's offending conduct is that it is to be regarded as being at the top of the low range of offending conduct in circumstances. I so classify it where, as general descriptors, such offending conduct can be divided into high, middle and low ranges.
I have, I should acknowledge expressly, had regard to not only the nature of the unlawful clearing as set out in the Statement of Agreed Facts but also to the factor of aggravation in that the offending conduct was carried out for financial gain.
Undertaking the necessary process of instinctive synthesis of all of the relevant subjective and objective factors of the offence and the offender, I have concluded that the appropriate starting penalty should be $100,000.

Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd

At a glance

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Judgment (49 paragraphs)

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Cases Cited (49)

Cited By (6)