Chief Executive, Office of Environment and Heritage v Rummery

ment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gosford City Council v Forrester [2010] NSWLEC 49; (2010) 172 LGERA 400 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Ngo v Fairfield City Council [2009] NSWCCA 241; (2009) 169 LGERA 56 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Reisner v Bratt [2004] NSWCA 22 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walker v Director-General, Department of Environment and Climate Change [2012] NSWCCA 210 Texts Cited: Macquarie Dictionary (online edition)

Oxford English Dictionary (online edition) Category: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Thomas Bede Rummery (Defendant) Representation: Ms S Callan (Prosecutor) Mr T B Rummery, in person (Defendant) Office of Environment and Heritage (Prosecutor) N/A (Defendant) File Number(s): 51021 of 2011

Mr Rummery Unlawfully Clears Native Vegetation 1The defendant, Mr Thomas Rummery, has pleaded guilty to an offence against s 12 of the Native Vegetation Act 2003 ("the NVA") in that between 13 August 2008 and 17 August 2010, he cleared 248ha of native vegetation on his rural property without development consent and without a property vegetation plan ("PVP"). 2Mr Rummery is now before the Court for sentencing. 3Section 12 of the NVA states: 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. 4Having regard to the objective circumstances of the commission of the offence and the subjective circumstances of Mr Rummery, I have determined that a monetary penalty of $80,040 is appropriate.

History of the Property 5The property the subject of the charge is known as "Yarragool" and is located at Airlie Road, Bendemeer, in the Tamworth Regional Council local government area. It is approximately 2,000ha in size and is comprised of Lot 6 in DP 251611, Lot 13 in DP 251614, Lot 4 in DP 737106 and Lots 3, 24, 25, 28, 57, 85, 86, 91, 104, 105, 109, 110, 111 and 122 in DP 753850. 6The history of Yarragool was contained in two statements of agreed facts and an affidavit affirmed by Mr Rummery on 17 August 2012. 7Yarragool is located in the Namoi Catchment Management Area in the Bendemeer district of New South Wales, which is a renowned sheep and cattle grazing area. 8Between 1974 and 2002, the property was owned and operated by Mr Rummery's father, Mr Ray Rummery. Farm management was based around three management zones. Management Zone One, referred to as 'Foxtor End', was located at the northern end of the property and consisted of sheep yards. Management Zone Two, or 'the Hub', was the central area of the property with generally open grazing country for livestock. Management Zone Three, or 'the Back Paddocks', comprised rougher terrain at the southern end of the property. 9Mr Ray Rummery purchased Yarragool when Mr Rummery was 11 years old. There was evidence that the property had been extensively cleared of trees during the 1930s by ring barking and again in the 1950s. Logging also occurred in the late 1970s. 10In 1984, Mr Ray Rummery logged areas on the property that had previously been logged in the 1950s and areas that had not been logged before in the southern area of the property. In 1989 he re-logged areas that had been cut in the late 1970s. 11The logging undertaken by Mr Ray Rummery was selective with only large, more mature trees with diameter at breast height ("DBH") of 50 to 80cm removed from the property. Large trees with hollows were left as habitat and smaller trees were left to mature as part of a sustainable rotational harvesting cycle. The majority of timber logged was Red Stringybark and some low value New England Blackbutt and Peppermint. 12From 1988 to 1991, Mr Ray Rummery employed a team of men to poison timber on certain areas of the property, including most of Management Zone One and parts of Management Zone Three. This was undertaken for a few months each year. Clearing was less selective in 1988 and 1989, when ten to eleven men were employed to conduct poisoning. In 1990 and 1991 regrowth reduction was undertaken by a two-man team. Areas of vegetation were retained where instructed. Selective hardwood sawlogging also occurred across the property in 1989. 13In late 1990, following the wool price crash, Mr Rummery and his father removed approximately 1,500 sheep from the property. 14Mr Rummery left Yarragool in 1991 to buy his own farm. 15From 1996 Mr Ray Rummery leased the property out to various people to run livestock. 16Between 1996 and 2002, the overall condition of the property declined due to a lack of active management. The fences were not maintained and eucalypt and shrub regrowth, particularly in Management Zones One and Three, became endemic. The regrowth was most prevalent in areas of the property that had been cleared by poison teams from 1988 to 1991. 17In 2002 the property was leased to Mr Rummery and his wife, and in 2004 the couple purchased the property. 18At the time of purchase, the vegetation in most areas of Yarragool consisted of trees, including some dead trees, and a thick shrubby understorey. The understorey was thickest in Management Zones One and Three, especially in those areas that had been cleared by poison teams from 1988 to 1991 and the areas from which sheep had been removed in 1990. 19Since purchasing the property, Mr Rummery and his wife have managed it, including the carrying out of clearing, in accordance with a plan referred to as the "Yarragool Farm Management Plan". Farming activities involve the grazing of approximately 1,000 head of cattle, in addition to some sheep and goats. The livestock are run in large mobs and are regularly rotated between paddocks. Rotational grazing has been successful in enabling effective internal parasite control, increasing ground cover and soil carbon levels, improving weed control, reducing runoff during rainfall and maintaining healthy soil ecosystems. 20The gathering and movement of livestock is undertaken by the process of mustering. Mustering activities conducted at Yarragool typically involve one, two or three people on motorbikes, working dogs and a single utility vehicle traversing a paddock to gather small groups of livestock to a common area of congregation. The mob of livestock is then held together and controlled before it is moved to a new paddock through gates and along laneways.

Circumstances Giving Rise to the Unlawful Clearing of the Vegetation 21The clearing the subject of the charge was undertaken by Mr Rummery using a single bulldozer. Mr Rummery estimated that he cleared vegetation approximately three days per week over the charge period (13 August 2008 to 17 August 2010), at a rate of approximately 1ha per day. 22Mr Rummery cleared vegetation along fencelines, tracks and dams to the extent permitted under the NVA. He also cleared an additional 30m along fences and tracks to provide mustering routes. The remainder of the land the subject of the offence was "thinned" or partially cleared, with rough or rocky areas generally conserved. Paddock trees were retained in most areas, with greater numbers of trees retained in the northern section of the property. 23The predominant cleared species comprised native trees, namely Angophora floribunda (or Rough-barked Apple) and seven species of eucalypts (namely, Western New England Blackbutt, Tenterfield Wooly-Butt, Blakely's Red Gum, Apple Box, Silver Topped Stringybark, Red Stringybark and Yellow Box). The majority of trees were alive when they were cleared, although some were dead. Cleared trees were stacked in piles and were not removed or burnt. 24Native groundcover, mid-storey shrubs and juvenile eucalypts were also cleared to varying extents depending on the location. This vegetation was disturbed as the bulldozer was used to push the cleared trees into piles. 25Expert ecological evidence given by Dr Christopher Nadolny (ecologist) and Dr Todd Soderquist (fauna ecologist), for the prosecutor, and Mr Travis Peake (ecologist), for Mr Rummery, suggested that the cleared area may also have comprised species of the White Box Yellow Box Blakely's Red Gum Woodland ("Box Gum Woodland") - an Endangered Ecological Community ("EEC") listed under the Threatened Species Conservation Act 1995 (Cth). This was a matter of controversy.

Sentencing Principles 26The sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). 27The purposes of imposing a sentence on an offender are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"). 28Section 21A of the CSPA identifies matters that the Court must take into account when determining an appropriate sentence, including factors in aggravation (s 21A(2)) and factors in mitigation (s 21A(3)). 29The correct method of sentencing is the instinctive synthesis method, where the Court identifies all the relevant factors and weighs their significance in determining an appropriate sentence (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26], Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 30In doing so, the Court must not take facts into account in a manner that is adverse to Mr Rummery unless those facts have been established beyond reasonable doubt. But if there are circumstances that the Court proposes to take into account in favour of Mr Rummery, it is enough that these are proved on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

31In determining an appropriate sentence, the primary factor the Court must have regard to is the objective gravity or seriousness of the offence. In determining the objective seriousness of the offence, the circumstances to which the Court may have regard include (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163], Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]): (a)the nature of the offence; (b)the maximum penalty for the offence; (c)the extent of harm caused to the environment by the commission of the offence; (d)Mr Rummery's state of mind in committing the offence; (e)Mr Rummery's reasons for committing the offence; (f)the foreseeability of the risk of harm to the environment; (g)the practical measures available to Mr Rummery to avoid harm to the environment; (h)Mr Rummery's control over the causes of harm to the environment; and (i)Mr Rummery's capacity to pay any monetary penalty imposed on him.

Nature of the Offence 32A fundamental consideration of relevance to the objective seriousness of the offence is the degree to which Mr Rummery's conduct offends against the legislative objects of the NVA (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]). These objects are set out in s 3 of the Act: 3 Objects of Act The objects of this Act are: (a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and (b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and (c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and (d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development. 33The unlawful clearing of native vegetation is plainly incompatible with the objects of the NVA. The conservation of native vegetation, impacting, as it usually does, on other dependent species and ecological communities, is critical to the conservation of biological diversity and ecological integrity at both a State and national level. The statutory scheme introduced by the NVA is therefore designed to ensure the protection of native vegetation (Bentley v BGP Properties at [147]). 34As Preston J observed in Rae (at [17]-[18], applied in Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 at [42] and Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119): 17 One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining consent from the regulatory authority. The application for consent involves undertaking an environmental impact assessment of the clearing for which consent is sought. The statutory provisions requiring prior environmental impact assessment and consent are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including ecologically sustainable development. The discussion in Bentley v BGP Properties Pty Ltd at [65]-[71], [168], [169], although concerning the regulatory scheme under the Threatened Species Conservation Act 1995 (NSW) and the National Parks and Wildlife Act 1974 (NSW), is equally apposite to the Native Vegetation Act 2003. 18 There is a need for the upholding of the regulatory system under the Act. The system depends on persons, first, taking steps to ascertain when consent is required to clear native vegetation, secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna: see Cameron v Eurobodalla Shire Council at [72]-[77]; Garrett v Freeman (No 5) at [68]; Director-General, Department of Environment and Climate Change v Wilton at [77]; Director-General, Department of Environment and Climate Change v Hudson at [76]; Pittwater Council v Scahill at [46]. 35In the absence of Mr Rummery having applied for and obtained permission to clear his property under the NVA, he not only offended against s 12(1) of the NVA, he also subverted the objects of the Act.

Maximum Penalty 36The maximum penalty for this offence is 10,000 penalty units, or $1,100,000, as prescribed by s 126 of the Environmental Planning and Assessment Act 1979 (s 12(2) of the NVA). The maximum magnitude of the penalty reflects the seriousness with which Parliament views the offence of unlawfully clearing native vegetation (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rae at [22]).

Total Area Cleared 37The total area cleared during the charge period was 286ha. As will become immediately apparent this did not, however, equate to the total area of unlawfully cleared native vegetation. 38The prosecutor alleged that native vegetation was unlawfully cleared over an area of 248ha. Notwithstanding his guilty plea, Mr Rummery only accepted that he illegally cleared 48ha of the 248ha. He contended that the remaining 200ha were cleared subject to two exemptions contained in s 11(1) of the NVA.

RAMA Exemptions 39Sections 21 and 22 of Div 3 of the NVA permit the clearing of native vegetation for, amongst other things, routine agricultural management activities ("RAMA"). These provisions state: 21 Application (1) This Division sets out the activities that do not constitute the clearing of native vegetation for the purposes of this Part and, accordingly, are permitted to be carried out without the authority conferred by a development consent or property vegetation plan. (2) This Division does not permit an activity without an approval or other authority required by another Act or in contravention of another Act. 22 Routine agriculture management activities (1) Clearing for routine agricultural management activities is permitted. (2) This section does not authorise any clearing of native vegetation: (a) if it exceeds the minimum extent necessary for carrying out the activity, or (b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure. 40Section 11 of the NVA relevantly provides: 11 Meaning of routine agricultural management activities (1) For the purposes of this Act, routine agricultural management activities mean any of the following activities on land carried out by or on behalf of the landholder: (a) the construction, operation and maintenance of rural infrastructure: (i) including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but (ii) not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations), ... (i) any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property. (2) The regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) is to be construed accordingly.

The Rural Infrastructure RAMA Exemption 41The parties agreed that the exemption to the offence created by s 12(1) contained in s 11(1)(a) of the NVA applied to Mr Rummery's clearing activities ("the rural infrastructure RAMA"). 42Subclause 20(3) of the Native Vegetation Regulation 2005 ("the Regulations") provides limits on the extent of permissible clearing for rural infrastructure activities conducted in the Namoi Catchment Management Area for the purposes of a rural infrastructure RAMA. These are: 10m either side of a permanent boundary fence; 10m total width for a permanent internal fence; 3m total width for a temporary fence; and 6m total width for a road or track. No clearing width is stipulated for other s 11(1)(a) activities, including, relevantly, dams. 43Applying these clearing allowances, and adopting a buffer of 15m for dams, Ms Susan Rea, the Manager of Spatial Products Unit at the OEH, estimated, in her affidavit affirmed 19 October 2012, the total area that could be lawfully cleared under the rural infrastructure RAMA to be 38ha. By contrast Mr Paul McMahon, an agricultural consultant engaged by Mr Rummery, estimated in an affidavit affirmed 24 July 2012, that approximately 47ha of land had been cleared pursuant to the rural infrastructure RAMA. 44I accept that the area lawfully cleared pursuant to the rural infrastructure RAMA was, on the balance of probabilites, 47ha. My reasons for doing so are as follows. Although the prosecutor argued that Ms Rea undertook a more scientifically exacting process in mapping the RAMA using geographical information systems (or "GIS") software, this was not necessarily the case. Unlike Ms Rea, Mr McMahon ground-truthed his estimate by conducting a site visit to Yarragool. Moreover, both estimates were based on a diagram hand-drawn by Mr Rummery that identified existing fence lines, tracks and dams. The accuracy of this diagram was, by its very nature, limited and any calculations made pursuant to it were necessarily imprecise. Finally, both experts were in agreement as to the appropriate clearing distances to be applied, including the adoption of a 15m buffer for allowable clearing around dams. 45This distance was adopted notwithstanding that the Regulations did not specify an additional buffer for dams in the Namoi Catchment Management Area. This may be contrasted with cl 20(1)(f) and (2)(i) of the Regulations, which expressly specified buffer distances for dams in the Western Division and the Southern Rivers, Hawkesbury-Nepean, Hunter-Central Rivers and Northern Rivers Catchment Management Areas. However, the prosecutor did not suggest that the buffer should be reduced or excluded altogether and I accept that the application of a 15m buffer was reasonable in the circumstances. 46Therefore, allowing for the area of land cleared under the rural infrastructure RAMA exception, the total area of the unlawfully cleared land must be reduced by 47ha to 239ha. And because Mr Rummery has agreed that he unlawfully cleared 48ha of native vegetation, this leaves an area of 191ha in dispute.

The Imminent Risk RAMA Exemption 47Mr Rummery submitted that the remainder of the clearing was undertaken for "safety reasons" pursuant to the exception contained in s 11(1)(i) of the NVA ("the imminent risk RAMA"). 48He submitted that while native vegetation ordinarily poses no risk of personal injury, "imminent risks" arise when mustering is undertaken in an environment where the presence of vegetation limits visibility and manoeuvrability, thereby increasing the likelihood of injury. This is because vegetation makes it difficult for workers to "make first contact" with livestock and to move out of the way of any distressed, and therefore potentially unpredictable, livestock. 49Having regard to his obligation to provide a safe working environment pursuant to the then Occupational Health and Safety Act 2000, Mr Rummery identified mustering as a major hazard in his business as a grazier and farmer. 50Mr Rummery deposed to the fact that the growth of vegetation on the property between 1996 and 2004 was having a "negative impact on the ability to safely undertake grazing operations due to a lack of visibility and manoeuvrability while undertaking mustering, and while undertaking other farm management activities." His strategy to address these risks was to eliminate mustering from the roughest country on the property and to clear small trees and shrubby understorey from other areas, as well as implementing a number of other safety measures (removing quad bikes, wearing personal protective equipment, training livestock to respond to dogs and motorbikes, increasing the number and quality of fences, pre-planning mustering operations and training and briefing of team members). 51Mr Rummery's evidence was that he undertook the clearing to provide mustering routes parallel with and adjacent to fence lines and tracks to allow stock to be moved between paddocks; to provide cleared areas around dams and gateways to allow livestock to be collected together safely; and to generally improve visibility and manoeuvrability in other areas by thinning or partially removing vegetation. It was his belief that the clearing undertaken by him was reasonably necessary to remove or reduce the imminent risk of serious personal injury that arose during the mustering process. 52In support, Mr Rummery relied on the opinion of Mr McMahon, who concluded that mustering was a "major hazard" on the property based on maps indicating the location of the cleared areas and on a site visit to the property on 11 June 2012. Mr McMahon stated that the clearing engaged in by Mr Rummery was an important control measure to improve visibility thereby minimising this "major hazard". 53In a report dated June 2012, Mr McMahon provided statistical evidence of the dangers of mustering, including the risk of death. He concluded, based on a report prepared by the Australian Centre for Agricultural Health and Safety in 2005 entitled Occupational Health and Safety Risk in the Beef Cattle Industry, that between 1989 to 1992 a significant number of deaths (in excess of 100) had occurred on rural properties with cattle or sheep, and that mustering accounted for a third of all deaths. 54I found Mr McMahon's evidence to be unpersuasive. First, Mr McMahon had not visited Yarragool prior to the clearing. Second, it was entirely equivocal whether all of the deaths were properly attributable to mustering activities, most simply describing the cause of death as "motorcycle" or "cattle". Third, Mr McMahon was unable to identify whether vegetation had in fact played any role in the deaths. 55I do not accept, as Mr Rummery contended, that the remaining 191ha was lawfully cleared pursuant to the imminent risk RAMA exemption contained in s 11(1)(i) of the NVA. This is because, first, as a matter of law, while mustering is undeniably an inherently dangerous activity involving, as it does, moving vehicles, unpredictable animals, and irregular terrain, it does not follow that mustering of itself involves an "imminent risk" for the purposes of s 11(1)(i), once that term is properly construed having regard to the scope, context and purpose of the provision and the NVA as a whole. 56While there appear to be no authorities directly on point, the phrase "serious and imminent risk" has been considered by the Federal Court in the context of civil aviation law. Thus in Civil Aviation Safety Authority v Alligator Airways Pty Ltd (No 3) [2012] FCA 601, Murphy J construed the term "imminent" as meaning, in relation to danger or disaster, something which is impending, or soon to happen (at [40]). In Gosford City Council v Forrester [2010] NSWLEC 49; (2010) 172 LGERA 400, a case concerning a tree preservation order, Pain J expressed a similar sentiment stating that, in relation to whether a tree "had become dangerous", the "temporal aspect of a tree becoming dangerous must be longer than in an emergency which suggests imminent likelihood or harm to persons or property" (at [34]). 57Caution must be exercised in applying these authorities to s 11(1)(i) of the NVA given their different statutory language and context. But by analogy, what is apparent is, in my opinion, that the phrase "imminent risk" involves a temporal nexus insofar as the risk must be assessed against the likelihood of the serious personal injury occurring relatively soon and not at some incohate point in time. 58This construction is consistent with the definition contained in the Macquarie Dictionary (online edition), of "imminent" as "likely to occur at any moment; impending" or "projecting or leaning forward; overhanging". "Imminent" is likewise defined in the Oxford English Dictionary (online edition) as "about to happen" or "overhanging". "Risk" is defined in both as, "a situation involving exposure to danger" or "exposure to the chance of injury or loss". An "imminent risk" is therefore a situation involving exposure to a danger that is impending, in that it may eventuate at any moment. 59When construed in the broader context of the NVA, the phrase "imminent risk" in s 11(1)(i) is plainly directed towards the risk posed by native vegetation and not the activity per se. That is to say, clearing is permitted where native vegetation creates an immediate danger, and not some indeterminate danger at large derived from mustering. Accordingly, where a hanging branch may, at any moment, fall and injure a person, clearing would be permitted under the RAMA. 60Such a construction also conforms with the objects contained in s 3 of the NVA because it envisages the clearing of only select trees or shrubs (or select areas of vegetation, for example, fire breaks) without consent, justifiable on the basis that there is a likely probability that an identifiable risk will soon eventuate, or at the very least, will eventuate within the time necessary to complete routine approval processes. Were it otherwise, clearing to remove or reduce the risks of mustering would facilitate the clearing of native vegetation on a broad scale, thereby defeating the objects of the statutory scheme (see specifically s 3(b) of the NVA). 61Second, as a matter of fact, none of the native vegetation cleared in this case posed an "imminent" risk as that term is properly understood. Rather, at its highest, the risks posed by vegetation in the mustering undertaken by Mr Rummery are better classified as 'potential' or 'latent' risks. 62Mr Martin Tennant, the prosecutor's Occupational Health and Safety expert, expressed the view that the risks associated with mustering on Yarragool were "inherent" and that the vegetation posed a "potential", rather than "imminent" risk of personal injury. This opinion was consistent with Mr Rummery's concession that no amount of clearing could totally remove the risks associated with mustering because those risks existed independent of the extent of vegetation. 63Mr Rummery argued that because the exception contained in s 11(1)(i), permits clearing only to the extent "reasonably considered necessary", and because he cleared vegetation only to this extent, namely, 30m for mustering routes and 5ha around dams and gateways, he could therefore avail himself of the exception. 64Clearing to 30m and 5ha was based on Mr Rummery's subjective assessment of the skill of his mustering team and a comparison between his "need to be able to move stock safely" and the maximum permitted distances for similar activities allowed in the Western Division of New South Wales "where the topography is flatter and the density of trees is lower" (cl 20(1)(b) of the Regulations). 65But the express provision of permissible clearing distances for mustering routes as part of the imminent risk RAMA within the Regulations for Divisions other than the Namoi Catchment Management Area strongly suggests that clearing for mustering routes is - quite deliberately -impermissible absent approval in that Catchment Management Area. And in any event, clearing allowances for "stock movement" in the Western Division contained in cl 20(1)(b) of the Regulations are referable to the rural infrastructure RAMA, and not the imminent risk RAMA. 66In addition, the notion that permissible clearing is based on a grazier's subjective opinion of his or her mustering skills and the skills of his or her team must be rejected. It does not place any real limit on the extent of clearing that may be undertaken by landholders engaged in inherently dangerous farming activities and is contrary to the express words of s 11(1)(i) which imposes an objective assessment of vegetation that can be lawfully removed, an assessment that is consistent with that contained in s 22(2)(a) of the NVA. 67Mr Rummery further submitted that the imminent risk RAMA had to apply to mustering on Yarragool because there was no other RAMA available to cover such activities under the NVA. 68But this submission misconceives the objects of the NVA. The NVA was enacted primarily to ensure the conservation of native vegetation and not as a vehicle to facilitate agricultural activity. In any event, it was always open to Mr Rummery to obtain a PVP or development consent to clear native vegetation on his property. This he did not do. 69Finally, even if the vegetation on his property constituted an imminent risk during mustering, I am nevertheless not convinced as a matter of fact that the risk was one of, as required under the statute, "serious personal injury". 70Mr Rummery provided evidence that he and his son had sustained injuries requiring hospitalisation while mustering on only three occasions, one of which occurred when Mr Rummery was 14 years old. There was no evidence that vegetation played any role in these injuries. Indeed, the injury sustained by Mr Rummery's son occurred in a relatively cleared area of the property.

Conclusion on the Unlawfully Cleared Area 71While it is clear that mustering is an inherently dangerous activity involving risk of personal injury, as the discussion above demonstrates, it does not follow, and I do not find, that the native vegetation on Mr Rummery's property presents an "imminent risk of serious personal injury" to enliven the exemption contained in s 11(1)(i) of the NVA. 72Because I have found that Mr Rummery misapplied the imminent risk RAMA exemption contained in s 11(1)(i) of the NVA, it follows that the total area the subject of the unlawful clearing was 239ha (191ha + 48ha).

Environmental Harm Caused by the Unlawful Clearing 73While the considerable size of the unlawfully cleared area is of significance, it is not wholly determinative of the objective seriousness of the offence. The environmental harm caused by the commission of the offence must also be considered (Kennedy at [47] and Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 at [125]). 74The environmental harm caused by the commission of the offence is a central consideration in determining the objective gravity of the offence. The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]): 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd at [174]. 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 75In the present case, the harm caused to the environment encompassed not only the immediate and direct impact of the clearing of the species of native vegetation identified in the summons, but also the indirect and potential impact of the clearing on other species of flora and fauna. 76The assessment of the extent of the environmental harm caused by the clearing in the present case immediately gave rise to an issue concerning the calculation of the number of trees felled by Mr Rummery.

Number of Trees Felled 77Based on his evidence that during the charge period he cleared 75-90 trees per hectare, at a rate of 1ha per day for three days per week, Mr Rummery submitted that he cleared approximately 11,250 to 13,500 trees in total. 78On behalf of the prosecutor, Dr Nadolny estimated "very roughly" that 30,000 to 50,000 trees were cleared. 79But this estimate, in addition to being 'very rough', failed to take into account the 47ha of land permissibly cleared pursuant to the rural infrastructure RAMA. 80I therefore cannot find that the prosecutor has demonstrated beyond reasonable doubt that Dr Nadolny's figures should be accepted. 81Mr Rummery's calculation was, however, based on a total cleared area that excluded the area he erroneously believed could be lawfully cleared pursuant to the imminent risk RAMA. Because I have found that the total area that was unlawfully cleared was 239ha, based on Mr Rummery's rate of clearance, the total number of trees cleared by him was between 17,925 and 21,510. 82Mr Rummery argued that not all of the trees cleared were alive, particularly in Management Zone One where growth had previously been controlled through poisoning. 83All dead vegetation must be excluded from the assessment of environmental harm (Walker v Director-General, Department of Environment and Climate Change [2012] NSWCCA 210 at [62]). 84Ultimately, however, Mr Rummery conceded that the majority of trees cleared were alive. This was confirmed through the interpretation of aerial photographs of the property by Mr Paul Spiers, an employee of the OEH with expertise in digital aerial photography. 85Taking into account the possibility that some of the vegetation cleared comprised dead wood, and giving Mr Rummery the benefit of any doubt, I find that between approximately 18,000 to 20,000 trees were cleared by him during the charge period. 86While the number of trees felled per hectare of land is an important factor to be considered in the overall assessment of the environmental harm caused by the commission of the offence, the extent and impact of this harm is not dependent on this total alone. As Preston J stated in Rae (at [37]-[38]): 37The significance of the number of trees removed needs to be evaluated in the context of the vegetation type in which the trees occur. The vegetation types of woodland and open woodland, by definition, have lower average densities (numbers) of trees per hectare than forest vegetation types, and hence will have greater space between trees. Hence, removal of a particular number of trees over a given area will have materially different effects if the vegetation type is woodland or open woodland than a forest; it may result in the total or almost total clearance of the land in a woodland or open woodland but only partial clearance in a forest. 38The significance of the number of trees needs also to be evaluated by reference to the trees involved - their species, nature, age, ecological attributes, biological interactions and contribution to ecosystem functioning amongst other features - and the consequences caused by their removal.

Nature of the Clearing 87In the present case, the unlawful clearing resulted in the near total removal (apart from the retention of isolated patches of vegetation and larger trees) of forest and woodland vegetation, and the degradation of native groundcover, from an area covering 239ha of the 2,000ha property. Within the cleared area, only a small percentage of the trees that were formerly in existence remained. Although Mr Rummery did not engage in broadscale clearing of native vegetation, on any view, the clearing can only be classified as extensive.

Age of Felled Trees 88The age of the cleared trees is relevant to the assessment of environmental harm, with the removal of older trees, providing greater opportunities for habitat for fauna, being objectively more serious than the removal of younger trees. 89I accept that Mr Rummery sought to minimise the environmental impact of the clearing by only removing trees on the property that he identified as "regrowth" and would therefore have limited value as habitat for native fauna due to their small size and absence of hollows. 90The reference to "regrowth" contained in Mr Rummery's evidence and submissions was not relied on for the purpose of the defence contained in s 9(2) of the NVA, but was relied upon as a mitigating factor to be considered when assessing the level of environmental harm caused by the clearing. 91In this context, Mr Rummery's description of "regrowth" meant younger trees that he believed had regrown following prior clearing incidents. As the history of the property outlined above demonstrates, Yarragool had been subject to various disturbances dating back to the 1930s. 92But the fact that there were prior disturbances to the existing native vegetation on the property is not a matter that exculpates Mr Rummery (Waste Recycling and Processing Corp at [149]). 93In identifying which trees were suitable for clearing on the basis that they constituted regrowth, Mr Rummery determined the size of timber prior to clearing by measuring the DBH of trees of known age on three dam walls that were rebuilt in 1985. These growth rates indicated that the maximum tree growth, averaged over the three sites, was up to 2.1cm per year. Thus Mr Rummery considered trees with a diameter of up to 39cm DBH in August 2008 and up to 43cm DBH by August 2010 had regrown since 1990 and were suitable for clearing. 94Mr Rummery's expert ecologist, Mr Travis Peake, adopted measurements taken by Ms Jessica Creed, a Regional Operations Officer at the OEH, on 11 and 12 May 2010, where the DBH of 70 trees was recorded. Ms Creed identified 55 of those 70 trees as having a DBH of less than 41cm, with only 16 greater than 41cm DBH. Based on these measurements, Mr Peake estimated that "a not insignificant proportion of the overstorey that was cleared was established since 1970", or put another way, was approximately 40 years old. 95In the opinion of Dr Nadolny, however, the growth rates for trees growing on dam walls were not representative of the growth rates of trees located elsewhere on the property, with the former able to grow at a faster rate due to the ready availability of water and the absence of competitors. Dr Nadolny instead assumed a growth rate of 1cm per year based on his experience and observations in the region, specifically, on trees sampled by him earlier on a property located to the north of Yarragool. Based on this growth rate, he estimated that any trees greater than 25cm DBH were at least 20 years old. 96During site inspections undertaken on 13 October 2010, 3 May and 29 June 2011, Dr Nadolny recorded the majority of felled trees having a stem size of 25-45cm DBH, with some larger trees having a stem size of 70-80cm DBH. He therefore concluded that the cleared vegetation was comprised mainly of trees that were 80 years old. 97The evidence of neither expert in determining the age of felled trees was satisfactory. Having said this, I do not consider that the prosecutor has proved beyond reasonable doubt that the majority of felled trees comprised older trees of approximately 80 years in age. 98The growth rate relied upon by Mr Rummery was unrepresentative of trees located on Yarragool. I accept Dr Nadolny's criticism in this regard. The conclusions arrived at by Mr Peake based on the growth rate provided by Mr Rummery therefore had a tendency to underestimate the age of cleared trees. 99Dr Nadolny's evidence suffered from the fact that he did not sample any of the trees located at Yarragool for the purpose of determining their age. Rather, he made assumptions based on measurements taken by him earlier of four trees located at a property nearby. Further, he did not provide any cogent reasoning for concluding that the majority of felled trees were 80 years old. On the contrary, measurements taken by Dr Nadolny indicating that the majority of felled trees had a stem size of 25-45cm DBH, with only some of the larger trees having a DBH of 70-80cm, meant that he had overestimated the age of the removed trees. 100And Dr Nadolny and Mr Peake agreed that trees develop at different rates based on a variety of factors, and that growth rates could not be precisely determined in the absence of comprehensive quantitative analysis. No such analysis had been undertaken in these proceedings. 101At its highest, therefore, the evidence revealed that the majority of trees the subject of clearing were between 40 and 80 years old, with only a small proportion comprising more mature trees. That is to say, the majority of the trees were at the lower end of the age spectrum. This correlates with evidence of Dr Soderquist and Ms Rebecca Vere (a fauna ecologist), which was to the effect that there were low numbers of mature trees with hollows on the property. 102But having found that the majority of the trees that were cleared were not as mature as that contended for by the prosecutor, and although the clearing of more mature trees is generally considered to be of greater objective seriousness (as stated by Dr Nadolny), the retention of younger trees is nevertheless necessary. Accordingly, the fact that most of the trees that were unlawfully removed were not as mature as submitted by the prosecutor diminishes the objective seriousness of the offence only marginally.

Presence and Extent of the EEC 103Another factor to be determined in the assessment of any environmental harm is the extent to which any EEC listed under the Threatened Species Conservation Act 1995 (Cth) was disturbed by the clearing. These communities have a high ecological value because, amongst other things, they offer potential habitat for a wide range of native animals, including threatened species (Director-General, Department of Environment Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 at [13]). 104Dr Nadolny and Mr Peake agreed that the Box Gum Woodland EEC was potentially present in the cleared area, and therefore, likely to have been disturbed by the clearing. 105Although Mr Rummery submitted that there was no direct evidence that the EEC had been affected, based on the expert evidence I am nevertheless prepared to find beyond reasonable doubt that the EEC was present on the property and was adversely impacted by the commission of the offence. 106No evidence was before the Court, however, demonstrating the extent of the existence of the EEC or the extent to which it was cleared. The experts agreed that this could not be determined with any degree of certainty. It follows that I am unable to make a finding as to the extent of the impact of the unlawful clearing on the EEC.

Impact of the Clearing on Fauna 107The impact of the unlawful clearing on fauna is also relevant to the overall assessment of the environmental harm caused by Mr Rummery. 108Dr Nadolny, Dr Soderquist and Ms Vere each gave evidence regarding the impacts of the clearing on fauna. But the majority of this evidence was highly speculative, premised, as it was, on secondary sources and extrapolations from the quality of habitat present at Yarragool, and not on actual observation or sampling. Dr Soderquist, for example, provided a list of "potentially" impacted threatened fauna species prepared using the Atlas of NSW Wildlife, a database of flora and fauna records compiled by the OEH, and his knowledge of fauna species that commonly frequent the type of woodland habitat on the property. Evidence provided by Dr Nadolny as to the impact of the clearing on particular species of fauna was based on a number of indirect sources providing estimates of population densities for species "likely to inhabit" areas of similar habitat to that found on Yarragool. I found the evidence of the experts on this matter to be of limited utility. 109Both Dr Nadolny and Dr Soderquist gave evidence that widespread clearing led to fragmentation of habitat for a number of species, including woodland birds, reptiles, and hollow-dependent mammals such as squirrel-gliders and bats. By contrast, Ms Vere and Mr Peake indicated that patches of retained vegetation on the property would act as stepping stones for fauna to move between conservation zones and that therefore the adverse effects of fragmentation were mitigated. 110Ms Vere and Dr Soderquist agreed that there were low numbers of trees with hollows present on the property and it was therefore possible that the remaining vegetation was incapable of supporting high densities of hollow-dependent species. However, these experts also opined that the retention of felled trees in stacks within cleared areas, without being removed or burnt, would provide habitat for native fauna. 111Having regard to the expert evidence on this topic, I find that while there was no direct evidence of actual harm to any particular species of fauna, there was a real likelihood that fauna dependent on the type of woodland habitat that was cleared was present and that the potential adverse impacts of the unlawful clearing on this fauna should be taken into account in assessing the environmental harm caused by the offence.

Evidence of Regeneration 112Dr Nadolny and Mr Peake agreed that in the long term the deleterious environmental consequences of the clearing could be alleviated, and in fact, eventual ecological recovery could be achieved through good stewardship of the property. 113During his site inspections on 12 and 13 April 2012, Mr Peake observed few weed problems in the cleared area, except for those occurring around the piles of stacked timber. The vast majority of the groundcover in the cleared area had in fact recovered and was "healthy, diverse, dominated by native forbs, grasses, sedges and ferns". Mr Peake also observed that the regeneration potential of the eucalypt overstorey was likely to be good, noting both Eucalyptus and Acacia regeneration. 114Finally, the experts agreed that the Box-Gum Woodland EEC could still be present in "low condition", or even in "moderate" form in the cleared area, and could recover through appropriate management and monitoring to a "moderate/good" condition.

Conclusion on Environmental Harm 115The experts did not agree on the overall assessment of the environmental harm caused by the unlawful clearing. 116Dr Nadolny's conclusion was that the clearing had resulted in "significant" or "substantial" harm. The prosecutor therefore submitted that because the harm caused to the environment could be characterised as substantial it should be taken into account as a factor in aggravation pursuant to s 21A(2)(g) of the CSPA. But Dr Nadolny's assessment was erroneously based on his estimate of 30,000 to 50,000 trees having been cleared; on his opinion that the clearing resulted in a significant loss of woodland vegetation including the Box Gum Woodland EEC; and that there had been major loss of habitat for fauna. The assessment also did not take into account the 47ha of permissible clearing pursuant to the rural infrastructure RAMA. 117Mr Rummery submitted that the overall harm was "low", however, this was based on a cleared area that excluded the land that he believed could be cleared pursuant to the imminent risk RAMA. It was also inconsistent with the evidence of Mr Peake, who opined that overall the harm was "reasonable" or "moderate". 118The unlawful clearing resulted in the near total removal of native vegetation, including approximately 18,000 to 20,000 trees aged 40 years or more and some portion of an EEC, over an area covering 239ha that previously had the density of woodland. The clearing increased fragmentation of habitat and removed native vegetation important for the maintenance of fauna habitat. 119Against this, it should be noted that the environmental impact of the clearing was not as severe as it would have been if some of the larger trees and the stacks of felled timber had not been retained and significant sections of intact native vegetation had not been left untouched. Furthermore, the long term prospects for the recovery of the property appear to be good. 120Taking all of these factors into account, I find the commission of the offence caused moderate to substantial environmental harm, although not as substantial as the prosecutor posited. I accept, therefore, that in these circumstances the harm is to be considered as an aggravating factor in terms of s 21A(2)(g) of the CSPA.

Mr Rummery's State of Mind 121The offence is one of strict liability, which means that mens rea is not an element of the offence. Nevertheless Mr Rummery's state of mind is relevant to the determination of the objective seriousness of the offence. 122A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Kennedy at [69], Rae at [42]-[43], Gittany at [123], Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and [356]). 123The prosecutor submitted that the offence was committed negligently, if not recklessly, by Mr Rummery. This was because, at the time Mr Rummery commenced the clearing he was aware of the provisions of the NVA, and neither sought consent to undertake the clearing nor obtained any advice in relation to the applicability of the imminent risk RAMA (or more generally in relation to the lawfulness of his actions). The prosecutor relied on the decision of Biscoe J in Kennedy, where the defendant's conduct was classified as negligent, rather than reckless, because he genuinely believed that the clearing came within the ambit of various statutory defences and exceptions (at [72]). 124Mr Rummery submitted that the offence was committed inadvertently. Although he was aware of the provisions of the NVA and the likely environmental impact of the clearing, he believed that he was entitled to undertake clearing to the minimum extent necessary to reduce the imminent risk of serious personal injury to people involved in mustering activities pursuant to the imminent risk RAMA. In addition, he took positive steps to identify trees of lower ecological value for removal and planned to set aside an additional 700ha of the property for conservation in accordance with the Yarragool Farm Management Plan. The clearing was undertaken without concealment, insofar as no stacks of timber were burnt or removed from the property. 125A landowner undertaking the removal of native vegetation will be negligent if he or she fails to make proper inquiries about whether the proposed clearing is permissible and it transpires that it is not (Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 3) [2012] NSWLEC 56 at [120] and Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200 at [44]). 126An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]) 127In his affidavit Mr Rummery acknowledged that, at the time he conducted the clearing he was aware: (a)of the provisions of the NVA; (b)that clearing remnant native vegetation was prohibited under the NVA; and (c)that there were exemptions for clearing for RAMAs. 128Mr Rummery further conceded (contained in the statements of agreed facts) that, prior to carrying out the clearing he: (a)did not approach the Namoi Catchment Management Authority for advice about the meaning of provisions of the NVA; (b)did not approach the Namoi Catchment Management Authority for a PVP to permit the clearing; (c)did not approach the Soil Conservation Service to verify what approvals had been previously obtained, if any, to clear the property; and (d)attended three to four "farm field days" run by various government agencies where presentations on the regulation of native vegetation were given. 129In light of this evidence, I have no doubt that Mr Rummery's actions in clearing native vegetation were undertaken negligently. This is because, first, Mr Rummery erroneously relied upon the imminent risk RAMA exception to undertake clearing over a wide area, and second, Mr Rummery did not seek any advice as to the lawfulness of the clearing. 130In so finding, it follows that I do not accept that his actions were undertaken in reckless disregard of the provisions of the NVA. Rather Mr Rummery undertook the clearing based on a genuine misunderstanding that the activity came within a statutory exception and a failure to make inquiries as to the correctness of this understanding (Kennedy at [72]).

Reasons for Committing the Offence 131The objective seriousness of an offence may also be measured by reference to the reasons for its commission (Rae at [47], Gittany at [140] and Garrett at [120]). 132Mr Rummery contended that the provision of a safe working environment was the primary reason for undertaking the clearing. 133The prosecutor accepted that safety was a partial basis for the commission of the offence, but submitted it was not Mr Rummery's primary motivation. Rather, it contended, the clearing was undertaken for financial gain (Rae at [11]-[12]), insofar as it permitted mustering activities to be undertaken more expeditiously and efficiently, thereby providing a commercial benefit to Mr Rummery. 134That the provision of a safe working environment was not the sole reason for Mr Rummery's actions is, in my view, apparent from critical omissions made by him during an interview conducted by the OEH on 22 June 2010 and in answers he gave to written questions supplied to the OEH prior to this interview. 135For example, in a covering letter sent to the OEH on 19 June 2010 (in anticipation of the 22 June 2010 interview), Mr Rummery gave the following explanation for the clearing: It is our aim to run an economically viable grazing business while maintaining a property with 35% (approximately 700 Hectares) green timber in healthy continuous bands. Overall we feel that we operate a well planned, environmentally sustainable property that has greater ecological diversity than 35 years ago and significantly more timber on it than the 1950s. 136Tellingly, no mention was made in the letter of any desire to maintain a safe working environment or of the imminent risk RAMA. Even more tellingly, this information was not conveyed to the OEH during the 22 June 2010 interview. 137The first reference to the concept of "safety" as a reason for committing the offence was given by Mr Rummery on 19 July 2011, in answer to further written questions served by the OEH on 12 July 2011. That is to say, nearly 11 months after the commission of the offence. 138In answer to the question: "Why was the vegetation clearing undertaken on Yarragool?", Mr Rummery replied (emphasis added): Regrowth on "Yarragool" has been cleared to improve the management of grazing livestock on the farm... There are also issues of safety that need to be addressed when handling livestock in the paddock which require good visibility and space to be able to control livestock in large mobs. 139Had the clearing been genuinely and exclusively undertaken in order to promote safety, then, in my view, it is highly likely that Mr Rummery would have expressly and more emphatically stated this earlier. 140I therefore find that Mr Rummery had several reasons for clearing, only one of which was the provision of a safe working environment. In truth, the clearing was generally effected in order to develop the property in accordance with the Yarragool Farm Management Plan, one aspect of which was to ensure a safe working environment. 141However, while there was undoubtedly a commercial advantage derived from clearing the areas he did, this was incidental. It did not provide the motivation for the clearing. I therefore do not find that the clearing was undertaken for commercial gain sufficient to engage s 21A(o) of the CSPA.

The Environmental Harm was Foreseeable 142The extent of the foreseeability of the environmental harm caused by the commission of the offence is a relevant objective circumstance of the offence (Camilleri's Stock Feeds at 700). Mr Rummery acknowledged that the risk of harm to the environment from the unlawful clearing was, at all times, reasonably foreseeable.

There Were Practicable Measures Available to Prevent the Risk of Harm 143Mr Rummery, as the owner and manager of Yarragool, could and should have refrained from undertaking the clearing in the absence of applying for and obtaining development consent or a PVP authorising the clearing. Further, he could and should have sought advice in relation to the applicability of the imminent risk RAMA exception. He did neither.

Mr Rummery had Control Over the Causes of the Offence 144Mr Rummery had full control over the causes of the offence. The evidence disclosed that he undertook the clearing himself using a bulldozer.

Conclusion on Objective Circumstances 145Having regard to the factors discussed, I find that the offence committed is one of moderate to serious objective gravity.

The Subjective Circumstances of Mr Rummery 146In addition to the objective seriousness of the offence, the Court is required to consider any personal or mitigating factors present in determining an appropriate sentence (Rae at [55], Gittany at [144], s 21A(3) of the CSPA). The subjective circumstances relevant to Mr Rummery are those contained in ss 21A(3)(e), (f), (g), (i), (k) and (m) of the CSPA. These are discussed in further detail below. 147In addition, s 6 of Fines Act 1996 requires the Court to consider the financial means of Mr Rummery to pay any fine imposed.

Lack of Prior Criminality 148Mr Rummery does not have any prior convictions for any environmental offences (s 21A(3)(e) of the CSPA).

Mr Rummery is of Good Character 149Mr Rummery has presented a number of affidavits from witnesses attesting to his good character and contribution to the local community (from Mr Ken Donaldson, Ms Maree Buckley, Ms Debra Tanner, Mr Gordon Williams, Mr Michael Lollback, Mr Michael Duncan, Mr Ray Quihampton and Mr Gary John Porter). Based on this material, and in the absence of any evidence demonstrating the contrary, I find Mr Rummery to be a person of good character (s 21A(3)(f) of the CSPA).

Plea of Guilty 150Mr Rummery entered a plea of guilty at the second mention of the matter. 151The prosecutor submitted, however, that the utilitarian value of the plea was reduced by the extent to which Mr Rummery contested a number of issues regarding the applicability of various exemptions contained in the NVA (R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 at [2] and [27]-[28]). 152I do not agree. First, there was substantial agreement on matters material to the commission of the offence and the appropriate sentence to be imposed, as reflected in the provision of two statements of agreed facts. That some of this agreement was arrived at during the hearing is immaterial. Second, R v AB is factually distinguishable, involving, as it did, an unreasonable protraction of the sentence hearing in that case (at [26]-[28]). In the present case, the hearing was conducted in an orderly and economical manner by Mr Rummery and hence concluded early. Third, Mr Rummery was unrepresented during the hearing (but not when the plea of guilty was entered). It has been recognised that unrepresented litigants should generally be afforded greater latitude in the conduct of proceedings (Reisner v Bratt [2004] NSWCA 22 at [3]-[5] and Leybourne v Permanent Custodians Ltd [2010] NSWCA 78). Fourth, Mr Rummery cannot be penalised for reasonably putting the prosecutor to proof on the specific matters that he properly and rightly contested (R v AB at [30]). 153I therefore find that Mr Rummery is entitled to the full 25% discount (see ss 21A(3)(k) and 22 of the CSPA).

Contrition and Remorse 154The contrition or remorse of an offender must be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). 155In Waste Recycling and Processing Corp Preston J stated that contrition and remorse is more readily demonstrated by an offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four forms of actions that would demonstrate genuine contrition and remorse (at [204])-[214], applied in Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [223], Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80). These are: (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 (at [204]); (b)second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities (at [210]); (c)third, taking action to address the cause of the offence (at [212]); and (d)fourth, the appearance of the defendant in court and evidence of the defendant's regret with a plan of action to avoid repetition of the offence (at [214]). 156Applying these factors, Mr Rummery expressed contrition and remorse both in his affidavit and at the hearing. He repeatedly stated that he was sincerely sorry for breaching the NVA and he accepted full responsibility for having carried out the unlawful clearing. In addition, Mr Rummery has commenced discussions with OEH officers on the terms of a Remediation Direction for the property to mitigate the impacts of the unlawful clearing, and has indicated his intention to continue with these negotiations. 157I find that Mr Rummery has demonstrated genuine contrition and remorse for his actions and I take this factor into account in mitigation of the penalty.

Mr Rummery Cooperated with Authorities 158At no point did Mr Rummery attempt to conceal his offending by burning or removing any evidence of clearing from the property. 159Moreover, Mr Rummery cooperated with OEH officers during the course of the investigation. He permitted them to enter Yarragool on three occasions; assisted OEH officers with site investigations; participated in voluntary interviews; and voluntarily provided written information to the OEH. He also cooperated during proceedings by participating in the preparation of statements of agreed facts. 160I find, therefore, that Mr Rummery's actions in cooperating with and providing assistance to authorities is a factor to be considered in mitigation of the penalty (s 21A(3)(m) of the CSPA).

Mr Rummery is Unlikely to Re-offend 161I find, particularly in light of Mr Rummery's willingness to cooperate with the authorities and given his genuine expressions of contrition and remorse, that he is unlikely to re-offend (s 21A(3)(g) of the CSPA).

The Impact of Any Fine on Mr Rummery's Financial Circumstances 162As stated above, s 6 of the Fines Act requires the Court to consider the financial means of Mr Rummery to pay any fine imposed. 163Mr Rummery gave evidence that the financial consequences of this prosecution will be severe. He stated that his pecuniary position was so dire that he could no longer afford legal representation and hence he was compelled to appear for himself at the hearing. Mr Rummery submitted that the imposition of even a modest financial penalty would have implications for himself and his family, and in particular his ability to retain Yarragool. 164In support, Mr Rummery relied upon evidence from his accountant, Mr Grahame Sharpe, his bank manager, Mr Peter Haynes, and his father-in-law, Mr Harold Beardsell, all of which was to similar effect. 165None of this evidence was challenged by the prosecutor. 166The amount of the fine may be reduced if it causes serious hardship to a defendant, especially where it may force the defendant to sell his or her home). In Ngo v Fairfield City Council (2009) 169 LGERA 56; [2009] NSWCCA 241 the Court of Criminal Appeal stated (at [28]): 28 In my view, fines should be imposed but they should be set at a level which should not result in the drastic consequence of a forced sale of the applicant's home. In making an assessment, the capacity of the applicant to have time to pay a fine and/or to make payments by instalments pursuant to an application under the Fines Act 1996 is noted. 167In the present case, the evidence did not unequivocally disclose whether Mr Rummery's primary place of residence was Yarragool. The evidence of Mr Haynes, Mr Rummery's Agribusiness Manager at the National Australia Bank Ltd, did reveal, however, that Mr Rummery owns at least two properties: Yarragool and Wandinja, the value of either is unknown. 168On the basis of the material before me, I am unable to determine with any confidence what the actual impact of the imposition of more than a nominal fine will be on Mr Rummery, other than to accept that it will cause him a degree of financial distress. I am certainly unable to find that it would result in the forced sale of his primary residence, or even, if they are separate, of Yarragool.

Conclusion on Subjective Considerations 169The subjective circumstances of Mr Rummery operate to mitigate to a considerable degree the penalty that would otherwise be imposed by the Court.

The Appropriate Sentence to be Imposed 170The imposition of a sentence serves a number of purposes. As s 3A of the CSPA sets out, these purposes include retribution and denunciation, as well as deterrence, both specific and general.

Deterrence 171General deterrence is a highly relevant consideration in sentencing for offences committed against s 12 of the NVA (Rae at [9]-[10], Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [81], Department of the Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 at [52], s 3A(b) of the CSPA). In Rae, Preston J stated the following (at [9]-[10]): 9 Most importantly, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. The purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law: see Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 ; (2006) 145 LGERA 189 at [103]-[106]; Director-General, Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 at [31]-[33]; Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77]; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 ; (2009) 165 LGERA 256 at [81]-[88]; and Pittwater Council v Scahill [2009] NSWLEC 12 ; (2009) 165 LGERA 289 at [45]; Lamattina v Gould (2009) 103 SASR 587 at [73] and Minister for Environment, Heritage and the Arts v Rocky Lamattina & Sons Pty Ltd (2009) 167 LGERA 219 (17 July 2009) at [47]. 10 In the last mentioned case, Mansfield J stated at [47]: It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation. The amount of the pecuniary penalty needs to demonstrate that such conduct will not be tolerated by the court. 172To achieve general deterrence, a penalty must be imposed that not only acts as a warning to others but also makes the cost of taking precautions to avoid committing the offence worthwhile (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Bentley v BGP Properties at [139]-[141] and [148]-[157]). 173In the present case, I do not consider that there is more than a marginal need for specific deterrence. As stated above, it is highly unlikely that Mr Rummery will re-offend. 174There is, however, as indicated above, a strong need to ensure general deterrence in relation to other persons, particularly rural landowners, who may be tempted to clear native vegetation without the necessary approval, to ensure that they do not engage in this activity.

Consistency in Sentencing 175A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that merely forms part of that range (Gittany at [182]). 176Of course, care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]). 177The pattern of sentencing against which the present case falls to be determined is through an examination of the relevant sentencing cases dealing with offences against s 12(1) of the NVA. There have been a number of decisions dealing with this provision since the current Act replaced the Native Vegetation Conservation Act 1997. 178In Hudson, the defendant was fined $400,000 and ordered to pay the prosecutor's costs. The objective gravity of the offence was high: the area of land cleared of native vegetation was large, 486ha; the offence was committed deliberately and after the defendant had been told expressly by an officer of the relevant regulatory authority that native trees must be retained on the land; the offence was committed to make the land more available for agriculture and hence for commercial gain; the harm to the environment caused by the offence was substantial; and there was a need for both individual deterrence and general deterrence. There was no plea of guilty; no assistance to the investigating or prosecuting authorities; no expression of contrition or remorse; and there was no remediation or offer to remediate the environment harmed by the commission of the offence. The defendant was, however, a first offender. 179In Rae the defendant pleaded guilty to an offence under s 12(1) of the NVA. An area of 215ha was partially cleared including an area of 155ha, which was cleared of 95% of all trees. Most of the trees cleared were mature, with some in excess of 17m in height. In that case the defendant knew that he needed consent to clear but proceeded without it. The clearing was premeditated and intentionally carried out with the knowledge of its seriousness. The trees were cleared to improve the property by making it more viable for agricultural purposes and to increase its capital value. The native vegetation that was cleared had significant conservation status and contributed to biodiversity. The Court held that there was a high degree of environmental harm and the seriousness of this harm was considered an aggravating factor in sentencing. The defendant agreed to an order to remediate the site. Overall, the offence was considered to be of medium objective gravity. Mitigating factors considered included the absence of prior offences, the defendant's good character, the defendant's early guilty plea (although not at the earliest opportunity), and the defendant's expression of contrition and remorse and the defendant's assistance in the investigation. A fine of $160,000 was imposed. 180In Olmwood (No 2) the defendant was found guilty of clearing nine species of native vegetation across a 10.1ha property. While there was no specific level of environmental harm found by the Court, the Court nevertheless noted the loss of habitat for species reliant on the cleared vegetation and the fact that the clearing occurred in a coastal zone where the clearing of vegetation was of particular concern. The defendant was held to have acted recklessly but did not commit the offence for financial gain; had control over the causes of the environmental harm; the defendant expressed some remorse for its actions; and had no prior convictions. In the circumstances a fine of $100,000 was imposed. 181In Calman the Court fined three defendants (two landowners and a contractor) the sum of $22,000 each for the unlawful clearing of 21ha of land, that included mature trees, contrary to s 12(1) of the NVA. In committing the offence the defendants acted neither deliberately nor recklessly, and moreover, were not negligent. Rather, the offences were committed without any knowledge that the clearing was illegal under any law. The defendants' culpability was assessed as low, however, the environmental harm caused was reasonably substantial. The defendants pleaded guilty, had no prior convictions, had expressed contrition and remorse and had agreed to a remediation order. The prosecutor's costs of $73,000 were significant and each defendant was ordered to pay a third of them. 182In Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 the Court fined Mr Mura $20,000, but reduced it to $5,000 because of his poor financial circumstances, which most likely meant that he would be unable to pay the fine. In that case, approximately 12ha of native vegetation were cleared by use of a bulldozer that predominantly left the canopy trees intact. The purpose of the clearing was to retain the landscape featuring canopy trees and replace scrub and groundcover with grasses to facilitate pasture improvement for the purpose of grazing cattle, thereby increasing its grazing yield and improving its value. Whilst the defendant was conscious of the possibility that consent might be required, the defendant's state of mind was that he had formed the impression that the authorities did not have any objection to the work about which he had informed them earlier. 183In Ian Colley Earthmoving the defendant was fined $5,000 for the removal of 128 trees and the thinning of approximately 29ha of woodland vegetation. The tree species had a high ecological value and their removal adversely impacted upon the habitat for bird and bat species, as well as a substantial number of individual reptiles and frogs. The clearing also negatively impacted on the condition of the native vegetation remaining on the property. The commission of the offence was not intentional and the culpability of the defendant was not assessed as high. The defendant pleaded guilty at the earliest available opportunity, voluntarily participated in an interview with the investigating authorities and expressed contrition and remorse. In addition, the defendant had very limited means to pay a substantial fine. As a consequence the defendant was fined only a nominal sum. 184In Vin Heffernan, the Court fined the defendant $30,150 for the negligent clearing of 22ha of native vegetation which was held to be of high conservation value at a local scale, but of low conservation at a landscape scale. The defendant had cleared the land largely at the direction of a third party; had pleaded guilty; had provided assistance to the authorities both in terms of its cooperation in respect of the prosecution against it and in respect of a related prosecution arising out of the same facts; was of good character and had expressed contrition and remorse. 185In Linklater, the defendant pleaded guilty to an offence against s 12(1) of the NVA for conducting unauthorised clearing over approximately 166ha on his property, which caused environmental harm of medium seriousness. This was in addition to clearing undertaken over two areas of the property for which the defendant had obtained development consent. Mr Linklater's conduct in not having familiarised himself with the terms of his development consent, and in not making further inquiries to ascertain the area authorised to be cleared, was classified as reckless. These were practical measures that Mr Linklater could and should have taken to prevent the harm to the environment. The offence was not committed for financial gain. Mr Linklater was otherwise of good character and provided assistance to authorities in the investigation of the offence. A fine of $82,500 was imposed following a 25% discount for the plea of guilty and Mr Linklater was ordered to pay the prosecutor's costs. 186In Walker (No 4) (upheld on appeal in Walker v Director-General, Department of Environment and Climate Change [2012] NSWCCA 210) the defendant was fined $200,000 for having engaged and instructed a specialist land clearing company to clear seven species of native vegetation contrary to s 12(1) of the NVA. In giving instructions to clear the property, the defendant acted in reckless disregard of whether or not native vegetation would be removed. The clearing resulted in actual environmental harm of medium or moderate seriousness. The defendant was in control over the causes of the harm, the harm was reasonably foreseeable and could have been avoided. The offence was classified as one of moderate objective gravity. Although the defendant had no prior convictions and was of good character, it did not plead guilty to the offence, expressed no contrition or remorse, and gave no cooperation or assistance in the investigation of the offence. 187In Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75, the defendant was convicted of an offence against s 12(1) of the NVA, fined $80,000 and ordered to pay the prosecutor's costs. Again, the defendant had instructed a specialist land clearing company to clear land using mulching equipment over an area of 7.3ha across three allotments. Native vegetation was cleared, comprising groundcover, understorey plants, shrubs, saplings and trees, and included two endangered ecological communities. There had been prior clearing undertaken for which the defendant was not responsible over one allotment. The environmental harm caused was moderate. The evidence did not establish beyond reasonable doubt that the offence was committed intentionally, recklessly or for financial gain. The foreseeable risk of environmental harm included the removal of some larger trees, most of the shrub layer and the groundcover, with adverse consequences for fauna, but not the endangered ecological communities. The defendant had control over the causes of the harm done to these species, and could and should have sought advice from regulatory authorities and obtained the necessary development consent before giving instructions to clear the land. The defendant had not pleaded guilty, but did provide assistance to the relevant regulatory agency. And although the defendant did not express contrition or remorse, it had taken steps to ensure necessary consents for clearing under the NVA were obtained. 188In Kennedy, the defendant was fined $40,000 and ordered to pay the prosecutor's costs. The area of the property unlawfully cleared was 32.48ha, which comprised native vegetation in the form of 600 mature trees and regrowth. The trees were felled to construct rural infrastructure and buffers, which the defendant mistakenly believed were permissible RAMAs, to improve the stock management of the property. The extent of the environmental harm caused by the clearing was moderate. The defendant's conduct was classified as negligent, rather than reckless, because he genuinely believed that the clearing came within statutory defences or exceptions and was partly correct. The reasons for clearing included the commercial object of the improvement of stock management, which was taken into account as an aggravating factor. The harm was foreseeable and could have been avoided. The offence was classified as one of moderate objective seriousness. The defendant had entered a plea of guilty but put the prosecutor to proof on a number of factual issues, on which he was largely successful, entitling him to a 20% discount for the utilitarian value of the plea. He had achieved partial compliance with a remedial direction, but this was not regarded as significant because an amended remedial direction had since been issued. 189The prosecutor submitted the circumstances of this case were closely aligned to those in Vin Heffernan and Kennedy, but that the extent of environmental harm was greater in this case due the large area cleared. I agree.

Costs 190The prosecutor seeks, as is usual in this Court in sentencing for environmental offices, its costs. The Court is empowered to make such an order pursuant to s 257B of the Criminal Procedure Act 1986. Mr Rummery submitted that each party should bear their own costs. 191There has been no disentitling conduct by the prosecutor, despite some faint suggestions to this effect by Mr Rummery, that would justify the costs order he seeks. Mr Rummery's criticisms were, in truth, directed to the likely quantum of the prosecutor's costs and not to the making of a costs order by the Court in the prosecutor's favour. 192Payment of the prosecutor's costs is an aspect of punishment and should be considered in the determination of the appropriate penalty as a factor that acts to reduce the penalty (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78], Rae at [68]). The costs in this case, although not quantified, are likely to be considerable. I take the payment of these costs into account in setting an appropriate fine.

Conclusion on Penalty 193Synthesising both the objective circumstances of the offence as mitigated by the subjective circumstances of Mr Rummery, and having regard to the existing pattern of sentencing, I consider that the appropriate penalty to be imposed is a fine in the sum of $120,000, discounted by 33% to $80,040. Had it not been for the financial circumstances of Mr Rummery, the fine would have been considerably higher given the objective gravity of the offence.

Orders 194The orders of the Court are that: (1)the defendant is convicted of the offence as charged pursuant to s 12(1) of the Native Vegetation Act 2003; (2)the defendant is fined the sum of $80,040; (3)pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 the defendant is to pay the prosecutor's costs as agreed or assessed; and (4)the exhibits are to 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: 21 December 2012