Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods

Land and Environment Court (NSW)|2019-04-23|Before: Preston CJ

Solicitors: NSW Department of Planning and Environment (Prosecutor) Webb & Boland Lawyers (Defendants) File Number(s): 2018/48020; 2018/42126 Publication restriction: Nil

Judgment

Traikaero Pty Ltd ("Traikaero") owns a rural property at Boggabilla in western New South Wales. The property is formally described as Lot 2 in DP 1198364. The property is approximately 747ha in size. Mr Anthony Woods is the sole director of Traikaero. Traikaero is his family company through which he runs his agricultural business on the property.
In the period 29 November 2015 to 6 April 2016, Traikaero and Mr Woods authorised a contractor to clear native vegetation on the property. Approximately 264ha of the property were cleared of native vegetation and an additional 218 paddock trees were cleared elsewhere on the property.
The clearing was done by contractors using bulldozers to pull down trees by using chains suspended between bulldozers, and then raking the fallen timber. Vegetation piles were burnt and cleaned up.
The trees cleared included River Red Gum, Coolibah, Bimble Box, Weeping Myall and Western Rosewood. Vegetation cleared included a variety of grasses, herbs, sedges, ground covers and shrubs. The cleared trees and vegetation comprised different plant communities, including Coolibah Woodland, Weeping Myall Woodland, Poplar Box/Coolibah Floodplain Woodland and Carbeen +/- Coolibah Grassy Woodland.
The trees and vegetation cleared were classified as "native vegetation" within the meaning of that term in s 6 of the Native Vegetation Act 2003 ("NV Act"). The native vegetation cleared was not regrowth under s 9(2) of the NV Act, as it was not vegetation that had regrown on the property since 1 January 1990.
The clearing of the native vegetation was not authorised under the NV Act. The clearing was not carried out in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan approved under Part 4 of the NV Act. The clearing was not for routine agricultural management activities (under s 22 of the NV Act), a continuation of existing cultivation, grazing or rotational farming practices (under s 23 of the NV Act), sustainable grazing (under s 24 of the NV Act) or excluded from the operation of the NV Act (under s 25 of the NV Act). As a consequence, the clearing of the native vegetation was in breach of s 12 of the NV Act.
Traikaero was charged on 8 February 2018 with committing an offence against s 12 of the NV Act. Traikaero was charged with either carrying out and/or authorising the clearing of the native vegetation itself or, by reason of Traikaero being the landholder of the land on which native vegetation was cleared, being taken to have carried out the clearing under s 44 of the NV Act. Mr Woods was charged on 8 February 2018 with committing an offence under s 12 of the NV Act by carrying out and/or authorising the clearing of the native vegetation himself or an executive liability offence against s 45(2) of the NV Act by being a director of Traikaero who committed an offence against s 12 of the NV Act in circumstances where Mr Woods knew or ought reasonably to have known that the offence would be or was being committed by Traikaero and failing to take all reasonable steps to prevent or stop the commission of that offence.
Both Traikaero and Mr Woods have pleaded guilty to the charges. They indicated to the prosecutor, through their solicitor, their intention to plead guilty on 29 August 2018 and entered pleas of guilty on 26 October 2018. A sentence hearing was held on 23 April 2019. Traikaero and Mr Woods are now to be sentenced for the offences.

The objective circumstances of the offences

In determining the objective gravity of the offences committed by Traikaero and Mr Woods, the Court may consider: the nature of the offence; the maximum penalty for the offence; the harm caused to the environment by commission of the offence; the state of mind of the offender in committing the offence; the offender's reason 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.

Nature of the offence

The objective seriousness of the offences committed by Traikaero and Mr Woods is informed by the nature of the contravened statutory provision and its position in the statutory scheme. Regard should be had to the objects of the Act and of the contravened statutory provision, and the degree to which the offending conduct contravenes these objects: Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140 at [22] and Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15].
The objects of the NV Act are stated in s 3 to be: "(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."
The principles of ecologically sustainable development are described in s 6(2) of the Protection of the Environment Administration Act 1991 to involve the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation pricing and incentive mechanisms, including the polluter pays principle. The principle of conservation of biological diversity and ecological integrity is a fundamental consideration in the administration of the NV Act. For an explanation of the principles of ecologically sustainable development and the principle of conservation of biological diversity and ecological integrity in particular, see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [56]-[63].
One of the principal means by which these objects are achieved is by the NV Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining approval for clearing of native vegetation, either in the form of a development consent or a property vegetation plan that permits the clearing of native vegetation. The application for and the grant of either form of authority involves undertaking a type of environmental impact assessment of the proposed clearing and the environmental outcomes that are likely to be achieved if this clearing takes place. The statutory provisions requiring prior environmental impact assessment and approval for the clearing of native vegetation are linchpins of the NV Act. An offence against such provisions thwarts the attainment of the objects of the NV Act, including achieving the principles of ecologically sustainable development.
There is a need for the upholding of the regulatory scheme under the NV Act. The scheme depends on persons, first, taking steps to ascertain when authority is required to clear native vegetation, secondly, making an application in the appropriate form and manner and obtaining the requisite authority before undertaking the clearing of native vegetation and, thirdly, complying with the terms and conditions of any authority (whether a development consent or a property vegetation plan) in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory scheme relating to native vegetation and fauna: Director General, Department of Environment and Climate Change v Rae at [18].
Offences which undermine the integrity of the regulatory scheme are objectively serious. The use of the criminal law ensures the credibility of the regulatory scheme.
The actions of Traikaero and Mr Woods in clearing native vegetation on the property without the authority of either a development consent or a property vegetation plan offended against the legislative objective expressed in the statutory offence (s 12 of the NV Act) and thwarted the attainment of the objects in s 3 of the NV Act. As found below, the native vegetation cleared had high conservation value and contributed to biodiversity, the effects were similar to broadscale clearing in the parts of the property that were cleared and did not improve or maintain environmental outcomes, and the commission of the offence caused actual environmental harm of medium significance. The actions of Traikaero and Mr Woods in clearing native vegetation on the property, and the consequences of their actions, ran counter to the objects of the NV Act and were not in accordance with the principles of ecologically sustainable development, for reasons analogous to those given in Bentley v BGP Properties Pty Ltd at [65]-[71], [169]-[171].

Maximum penalty for the offence

The maximum penalty for the offence against s 12 of the NV Act is a public expression by Parliament of the seriousness of the offence and provides a sentencing yardstick for determining the appropriate sentence for the offence committed by Traikaero and Mr Woods.
At the time of commission of the offences, the maximum penalty prescribed was $1,100,000 for both Traikaero and Mr Woods: s 12(2) of the NV Act which referred to s 126(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act").

Harm to the environment

The clearing of the native vegetation on the property caused actual environmental harm. The areas cleared of native vegetation comprised approximately 264ha and a further 218 paddock trees were cleared from other areas on the property. The native vegetation that was cleared was in moderate to good condition. The density of the native vegetation in the areas cleared varied, some areas were close or dense (7.5ha) and mid dense (39.2ha), but most areas were sparse or open (120.4ha), very sparse (18.7ha), isolated plants (68.3ha) and grassland/shrub land (4.5ha).
There was a diverse range of native vegetation in the areas cleared, including ground cover, shrub and canopy species. The cleared areas comprised four plant community types, being Coolibah Woodland, Weeping Myall Woodland, Poplar Box-Coolibah Floodplain Woodland and Carbeen +/- Coolibah Grassy Woodland. Some of these plant communities fell within the descriptions of four endangered ecological communities, being: Aquatic ecological community in the natural drainage system of the lowland catchment of the Darling River; Carbeen Open Forest Community in the Darling Riverine Plains and Brigalow Belt South Bioregions; Coolibah-Black Box Woodland in the Darling Riverine Plains, Brigalow Belt South, Cobar Peneplain and Mulga Lands Bioregions; and Myall Woodland in the Darling Riverine Plains, Brigalow Belt South, Cobar Peneplain, Murray-Darling Depression, Riverina and NSW South Western Slopes Bioregions.
The clearing of the native vegetation was agreed to have had a detrimental impact on these endangered ecological communities by: "a. Reducing the available genetic resources of important functional species within the ecological community; b. Removing important fauna habitat features (including canopy cover, shrub cover, tree hollows and/or fallen timber); c. Increasing fragmentation of these ecological communities; and/or d. Increasing the likely degradation of remaining patches of these communities as a result of the adjoining land use (such as fertiliser and herbicide drift and increased weed/feral predator invasion)."
The native vegetation in the areas cleared provided resources and ecological functions which helped maintain the health and regenerative capacity of vegetation communities in the locality and the region.
The areas in which native vegetation was cleared were likely to have provided habitat for 44 species of fauna listed as threatened and 5 species of flora listed as threatened, having regard to known distributions and habitat preferences which reasonably match the location and habitats of the areas cleared.
For the threatened fauna species, the clearing removed an area of habitat and resources that are essential for the continued survival of local populations, including food (flowers, nectar, seed, and prey species), shelter and nesting, breeding and/or roosting sites. The clearing removed hollow-bearing trees, which take approximately 100-140 years to develop. It is likely that up to 10 fauna species were impacted by the removal of hollow bearing trees, including the koala, brown tree creeper and grey-crowned babbler. The clearing may have reduced the ability of the threatened flora species to persist within the smaller areas of native vegetation that remain on the property and in the locality due to the loss of the soil seed bank and genetic diversity within the population.
The large and diverse patches of native vegetation that were removed as part of the clearing would have provided an area of habitat and acted as a buffer against the risk of local extinction in the surrounding fragmented landscape. As a result of the clearing, there is: "a. Less area for species to live; b. Less resources available for flora and fauna survival (food, breeding, resting, growing and pollination); c. Decreased ability for flora and fauna to move between patches of native vegetation to access what resources remained (food, breeding, growing areas); d. Increased competition within each species' population (intra-specific) and between species (inter-specific) for the reduced pool of resources that remain; e. Greater risk of fauna predation from introduced predators (cats and foxes); and/or f. Increased risk of disease and death resulting from higher levels of competition and predation."
The impacts of the clearing will place the populations of threatened flora and fauna species at risk of local and/or regional extinction.
The environmental harm caused by the clearing of the native vegetation is intended to be mitigated by a remediation order issued by the prosecutor on 12 April 2019 under s 11.15 of the Biodiversity Conservation At 2016 (the replacement to s 38 of the NV Act). The remediation order covers approximately 550ha of the property, but excludes the cleared areas. The remediation area represents an offset area that cannot be cleared for the next 20 years. Traikaero and Mr Woods have agreed to register the terms of the remediation order on the title of the property as a positive covenant.
The prosecutor submitted that these environmental impacts of the clearing are serious and their combined effect is "substantial" for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Act").
Traikaero and Mr Woods submitted that, although the clearing caused actual environmental harm and that that harm could be considered to be "substantial" for the purposes of s 21A(2)(g) of the Sentencing Act, nevertheless, the degree of harm should be assessed as low to moderate. This assessment of the degree of harm takes into account a number of factors. The precise extent of the harm is not, and cannot, be quantified in this case. Threatened fauna species are demonstrably affected but to an uncertain degree. At best, their ability to persist within remaining areas of native vegetation on the property and in the locality "may" have been reduced. No population of threatened fauna species was identified as being directly affected. The effect on the endangered ecological communities is difficult to assess, as the extent of the communities present on the property prior to clearing had not been assessed or quantified. The medium to long term impact of the clearing is difficult to assess given that it is likely that natural regeneration of the vegetation communities will occur, particularly in areas subject to the remediation order.
Traikaero and Mr Woods noted that there had been no assessment of the conservation value of the native vegetation on the property before clearing. It was agreed that the pre-clearing condition of the native vegetation was moderate to good. However, the land had already been partially cleared. Most of the vegetation in the areas cleared was of low density. The property was infested with noxious weeds, particularly lippia.
Traikaero and Mr Woods submitted that the unknown conservation value of the native vegetation on the property that was cleared but the known disturbed condition of the property prior to clearing means that the degree of environmental harm caused by the clearing cannot be evaluated more precisely than to say that "some harm may occur".
I find that the clearing has caused actual environmental harm. Most obviously, the clearing removed the particular native vegetation that was cleared. This native vegetation was of value in itself but it also provided habitat for other species of fauna and flora, some of which are threatened species. The removal of hollow bearing trees, which provided habitat for up to 10 threatened fauna species, is an obvious example. The removal of habitat of numerous species of fauna and flora has caused the impacts agreed of reducing the area for species to live, reducing resources available for species' survival, decreasing the ability of species to move between patches of native vegetation, increasing competition for resources within species and between species, increasing the risk of fauna predation and increasing the risk of disease and death from increased competition and predation.
The native vegetation formed part of four endangered ecological communities that extended over the property. Those four endangered ecological communities have thereby been reduced in geographical extent. This in turn detrimentally impacts the endangered ecological communities in the ways agreed, including reducing resources for functional species within the community, removing fauna habitat, increasing fragmentation of the communities, and increasing degradation of remaining areas of the communities.
I find beyond reasonable doubt that the clearing has caused environmental harm in these ways. Although, as Traikaero and Mr Woods submitted, there is some uncertainty in predicting the precise ongoing environmental harm that is likely to be caused in the future, nevertheless the environmental harm that has already been caused and that the parties have agreed is likely to be caused by the clearing is sufficient to find that the harm caused by the offence is of medium significance, and "substantial" for the purposes of s 21A(2)(g) of the Sentencing Act and hence an aggravating factor.

State of mind in committing the offence

Although the offence against s 12(1) of the NV Act is a strict liability offence, the state of mind of the offender in committing the offence can increase the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Director General, Department of Environment and Climate Change v Rae at [42].
In this case, Mr Woods gave evidence that he believed he was "doing the right thing to clear" the areas he did clear in order "to deal with noxious weeds", particularly lippia. He said that he had a duty under the former Noxious Weeds Act 1993 to control noxious weeds on the property. He said one of the best ways to control lippia is to cultivate the land, as it is almost impossible to spray lippia in timbered country. The only way is to clear the land and cultivate it.
Mr Woods said he now knows that he should have asked for permission to clear the land but he didn't ask at the time because he "overestimated the power of the Noxious Weeds Act". Mr Woods believed that the Noxious Weeds Act authorised him to clear the land in order to control the noxious weed lippia.
The prosecutor submitted that Traikaero and Mr Woods cleared the native vegetation intentionally or at least recklessly in disregard of the NV Act and the other possible illegalities of their actions. The prosecutor referred to the explanation of recklessness in Director General, Department of Environment and Climate Change v Rummery [2012] NSWLEC 271 at [126]: "An 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."
Traikaero and Mr Woods submitted that they "do not deny the imprudence of their reliance on his [Mr Woods'] belief alone and failing to ensure that the clearing would be lawful, and accept that a finding of recklessness may be made on that basis."
I find beyond reasonable doubt that the prosecutor has not established that Traikaero or Mr Woods cleared the native vegetation, in breach of s 12 of the NV Act, intentionally or negligently, but that they did do so recklessly. Traikaero and Mr Woods believed or suspected that the clearing of the native vegetation on the property may be unlawful under the NV Act, but believed in the power of the Noxious Weeds Act to override the NV Act and authorise the clearing in order to control the noxious weed lippia. They knew they could have made enquiries to check whether this belief was correct but chose not to do so. In these circumstances, their conduct in clearing the native vegetation was reckless.

Reasons for committing the offence

The carrying out of an offence to make a profit or to save incurring an expense, or to avoid the costs of obtaining and implementing a statutory permission, such as a development consent or a property vegetation plan, increases the objective seriousness of the offence: s 21A(2)(o) of the Sentencing Act and Director General, Department of Environment and Climate Change v Rae at [47], [48].
In this case, it is agreed that the clearing of the native vegetation on the property was carried out for the purpose of cropping. Mr Woods said in oral evidence that the clearing was done to make the property more productive: "anything that makes the land better gives financial benefit". However, Mr Woods maintained that his major motivation was to control the noxious weed lippia. He believed he was under a duty to control lippia on the property, but he accepted that if he did clear and cultivate the land to control lippia, this would make the land more productive. Mr Woods accepted that if he didn't try to make the property more productive, he wouldn't be in business for very long.
The prosecutor submitted that the land was cleared in order to use it for cropping. This would improve the agricultural productivity and profits from the property and improve the capital value, citing Director General, Department of Environment and Climate Change v Rae at [11]-[13]. The prosecutor submitted that the offence of clearing the native vegetation on the property was motivated by financial gain, an aggravating factor under s 21A(2)(o) of the Sentencing Act.
Traikaero and Mr Woods accepted that clearing of native vegetation "is impliedly and normally done to improve the commercially productive prospects of agricultural land, even if motivated by improving the land for other, eg environmental, reasons", also citing Director General, Department of Environment and Climate Change v Rae at [11]-[13]. Traikaero and Mr Woods contended that financial gain was an inherent characteristic of the offence of clearing native vegetation and therefore should not be treated as an aggravating factor "unless the financial gain was significant and above that expected in the lowest level of offending for that type of offence", citing Lee v R [2019] NSWCCA 15 at [55].
I find, beyond reasonable doubt, that Traikaero and Mr Woods committed the offence of clearing native vegetation on the property for financial gain. The agreed fact is that the clearing was carried out for the purpose of cropping. The areas selected for clearing might well have been areas that were infested by lippia and the most effective way to control lippia might be to cultivate the land for crop. Controlling the lippia enables cropping of the land. Cropping of the land improves the productivity of the land. Increased productivity manifests itself in increased profits from the agricultural use of the property and an increased capital value of the property.
I do not consider that financial gain is an inherent characteristic of the offence against s 12 of the NV Act of clearing native vegetation except in accordance with a development consent or property vegetation plan. Whilst the motive for clearing native vegetation might often be financial gain, that does not make financial gain an inherent characteristic of the offence against s 12 of the NV Act. Financial gain is neither an element of the offence against s 12 of the NV Act nor an inherent characteristic of that kind of offence. For something to be an inherent characteristic of an offence, it needs to be "always present as a permanent and essential attribute of the thing under consideration": Couloumbis v R [2012] NSWCCA 264 at [31] cited in Lee v R at [56].
In Couloumbis v R, the offence charged was conspiracy to commit aggravated armed robbery. The Court of Criminal Appeal rejected the appellant's argument that financial gain was an inherent characteristic of the offence charged. The Court held that "examples of the subject offence in which financial gain was wholly absent could readily be identified. It follows that financial gain is no more an inherent characteristic of the offence than it is an element of the offence": at [31].
Similarly, in Lee v R, the Court of Criminal Appeal found that financial gain was not an inherent characteristic of the offence charged in that case of identity fraud, contrary to s 192J of the Crimes Act 1900. The Court identified examples of offences under s 192J of the Crimes Act from which financial gain was absent and noted that it is not uncommon for false identity documents to be created for purposes unrelated to financial gain: at [61].
For the offence against s 12 of the NV Act, it is important to note at the outset that the offence is not simply clearing native vegetation, it is doing so without the authority of a development consent granted in accordance with the NV Act or a property vegetation plan approved under the NV Act. Whilst the motive for clearing native vegetation may often be financial gain, that motive does not drive committing the offence of clearing native vegetation without first obtaining the authority of a development consent or property vegetation plan for the clearing. Financial gain is, therefore, not an inherent characteristic of the offence of clearing native vegetation without or not in accordance with the authority of a development consent or property vegetation plan.
Furthermore, examples can readily be identified where native vegetation is cleared for purposes unrelated to financial gain. Not all clearing of native vegetation from land yields a financial benefit, such as an increase in the profits to be derived from using the land or an increase in the capital value of the land. It depends on the use of the land and the user of the land. To give but one example, trees and other native vegetation may be disliked by a land owner for a variety of reasons, including the land owner's perception that the trees and native vegetation are a nuisance or affect the land owner's amenity and enjoyment of the property. The owner may wish to rid him or herself of the nuisance or otherwise improve the amenity or enjoyment of the property. The clearing of the native vegetation for these reasons may have no quantifiable financial benefit, yielding neither an increase in the profits to be derived from the use of the land nor an increase in the capital value of the land.
It matters not that in this case the motive of Traikaero and Mr Woods for committing the offence of clearing native vegetation on the property was financial gain. As noted in Lee v R, "whether financial gain is an inherent characteristic of the offence charged is not determined by an offender's motive for committing the offence": at [56].
In these circumstances, I find that an aggravating factor was that Traikaero and Mr Woods committed the offence of clearing native vegetation on the property for financial gain under s 21A(2)(o) of the Sentencing Act.

Foreseeability of risk of harm

Having regard to the nature and extent of the clearing, and the native vegetation cleared, a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. The extent of foreseeability of harm is a relevant objective circumstance of the offence.
The environmental harm caused, that I have found above, could reasonably have been foreseen as a consequence of the nature and extent of the clearing undertaken by Traikaero and Mr Woods. Traikaero and Mr Woods did not contest that harm to the environment was not foreseeable in this case.

Practical measures to prevent risk of harm

Traikaero and Mr Woods could and should have refrained from clearing the native vegetation on the property unless and until authority in the form of a development consent or approved property vegetation plan had been obtained authorising the clearing.
Mr Woods accepted that he could have made enquiries of the Local Land Services office, the local council or the Office of Environment and Heritage as to whether he could lawfully clear native vegetation to control lippia without obtaining a development consent or approved property vegetation plan authorising the clearing. If he had made such enquiries, he would have been told that he needed such authority to clear the native vegetation.

Control over the causes of the offence

Traikaero and Mr Woods decided to clear the native vegetation on the property and directed contractors to carry out the clearing of native vegetation. They therefore had control over the causes that gave rise to the offence and the harm to the environment.

Conclusion on objective seriousness

Having regard to the nature of the offence, the high maximum penalty, the moderate level of actual harm to the environment (which is nevertheless substantial), the commission of the offence recklessly, the commission of the offence for financial gain, the foreseeability of risk of harm to the environment by reason of the commission of the offence, the existence of practical measures to avoid that risk of harm and the control over the causes that give rise to the offence and the harm to the environment, each offence should be considered to be in the low to middle range of objective seriousness.

Subjective circumstances of the offenders

Within the limits set by the objective seriousness of the offences, the Court may take into account the favourable factors personal to the offenders.

Lack of prior criminality

Neither Traikaero nor Mr Woods have any prior convictions for any environmental or other offence: s 21A(3)(e) of the Sentencing Act.

Prior good character

There is evidence that Mr Woods has otherwise been a person of good character: s 21A(3)(f) of the Sentencing Act.
Mr Woods gave evidence of his long history of community service, including being Captain of the Whalan Creek Rural Bushfire Service since 1966, being President, Ring Master, Chair of the Finance Committee and member of the Goondiwindi Pastoral and Agricultural Show Society for over 50 years, and being chair of the National Lippia Working Group for 7 years.
Various character references were tendered in evidence, from Dr R D B Whalley, Mr Peter Cory, Mr Ian Schwartz, Mr John Duggin, Mr Robert Mailler, Mr Richard Doyle, Mr Malcolm Gollan, Mr Tony Hall and Mr Michael Julien. These people spoke of Mr Woods' community service, including his long standing efforts to control lippia, Harrisia cactus and other noxious weeds, his service with the Rural Fire Service, the Goondiwindi Pastoral and Agricultural Society, Goondiwindi Polocrosse Club and the local pony club and as a trustee of the Currumbah Artesian water supply district. Many spoke of his integrity and good character.
Understandably, there was no evidence as to the character of the corporate defendant, Traikaero.

Plea of guilty

Traikaero and Mr Woods have pleaded guilty to the offence, a fact the Court is required to take into account: s 21A(3)(k) and 22(1)(a) of the Sentencing Act.
Traikaero and Mr Woods are entitled to a discount for the utilitarian value of their pleas of guilty to the criminal justice system. In assessing utilitarian value, the Court is required to consider when they pleaded guilty or indicated an intention to plead guilty: s 22(1)(b) of the Sentencing Act. In short, the earlier the plea of guilty or the indication of an intention to plead guilty, the greater the utilitarian value and the greater the discount.
The proceedings were commenced on 8 February 2018 and Traikaero and Mr Woods were ordered, under s 246(1)(a) of the Criminal Procedure Act 1986, to first appear before the Court on 23 March 2018 to answer to the offence charged. Traikaero and Mr Woods did not enter a plea on that occasion. The proceedings were adjourned to various directions hearings over the next six months. There were six attendances before the list judge in this period. On the sixth attendance, on 26 October 2018, pleas of guilty were entered. However, the solicitor for Traikaero and Mr Woods had earlier indicated to the prosecutor, on 29 August 2018, the intention of Traikaero and Mr Woods to enter pleas of guilty. There was, therefore, a delay of around five months in indicating an intention to plead guilty. This reduces the utilitarian benefit of a plea of guilty, although not by much.
Traikaero and Mr Woods submitted that the delay was explicable and of benefit. In the five month period, the prosecutor and defendants agreed on the area of land cleared, which was of a substantial benefit to the prosecutor having regard to the costs and time involved in proving to the criminal standard the area cleared. The proceedings were adjourned by consent without the need for appearances while the negotiations occurred. This reduced the costs.
Whilst the negotiations might have been productive in the end, the reason for a delay in entering a plea of guilty is generally not relevant as any delay generally reduces the utilitarian value of a plea of guilty: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(a)] and Morton v R [2014] NSWCCA 8 at [32], [33]. In this case, however, it appears that the delay of five months before indicating an intention to plead guilty and seven months before pleading guilty has not reduced the utilitarian value of the pleas of guilty by much.
In the circumstances, I consider the discount to be afforded for the utilitarian value of the plea of guilty should be slightly reduced from the maximum of 25% to 22.5%.

Remorse

Apart from the utilitarian value of a plea of guilty, genuine remorse is a further mitigating factor. However, s 21A(3)(i) of the Sentencing Act, states that remorse shown by the offender for the offence will only be a mitigating factor if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)".
In this case, Traikaero and Mr Woods have shown remorse for the offence. Mr Woods, in his affidavit and oral evidence, has accepted responsibility for the clearing and offered a sincere apology to the community for committing the offence and for the damage caused to the environment by the commission of the offence. Mr Woods said that he was saddened that he had made such a poor decision to clear native vegetation unlawfully. In a statement read out in evidence, Mr Woods said: "I would like to make a sincere apology to the community over the damage that the illegal land clearing that I conducted has caused to the environment. I have spent many years working for improved environmental outcomes with Lippia and Harrisia cactus, only to find after the experts' opinion on the illegal land clearing the negative outcomes it has caused. I have worked along side some of the best environmental and weeds focused minds in my time on the Lippia working group. Looking back I had access to more environmental information than most would dream of and I am saddened that I made such a poor decision. There is simply no excuse and at the age of 74 it shows the very bad judgment by myself to do damage to the environment the very thing I have been working against. The charge of the illegal land clearing is shameful to myself; however that is not the major concern which is the damage to the environment caused. I am forever sorry for my actions on this matter. I instructed my solicitor to finalise the agreed 550 hectares of remediation, to register a positive covenant on the title to the property; and I have completed and submitted the initial works report. I hope these actions goes some way to amend the damage to the environment that I caused. As a custodian for the smallest tick of time I love the land and the environment that surrounds it. I will continue to do what it takes to repay the damage that I have caused over the remainder of my time."
Traikaero and Mr Woods are endeavouring to make reparation for the environmental harm caused by the clearing. They had been served with a remediation order on 12 April 2019 and agreed with the prosecutor the appropriate remediation measures, which involve providing other land as an offset area which has the characteristics of the cleared vegetation. The elements of the remediation order, as summarised by Traikaero and Mr Woods, include that: "(a) The area to be remediated is about 550ha; (b) The order will be in force for 20 years; (c) The Company is not to cultivate any crops on the remediation areas and is to plough in any crops that exist there; (d) The Company must exclude stock from part of the remediation area (Area A), if necessary by fencing it, and it must monitor regenerating vegetation; (e) The Company must care for the regenerating vegetation and report to the Department on its actions and on the progress of the regeneration; (f) The Company must not disturb vegetation or the soil without the consent of the Department; (g) The Company must manage exotic flora to a coverage of less than 5%, but not by cultivation; and (h) The Company must exclude stock completely from part of the remediation area, and must fence that area in order to graze any stock on the balance of the paddock."
These actions will result in significant expense to Traikaero and Mr Woods over and above any penalty and costs imposed by the Court and in respect of one remediation area (Remediation Area A) will require the exclusion of stock by fencing or giving up part of the grazing land of the property.
Traikaero has further offered to register the terms of the remediation order on the title of the property as a positive covenant. Traikaero and Mr Woods have complied with the remediation order to date. The remediation order was issued on 12 April 2019. One of the requirements was for Traikaero to provide an initial works report within 6 weeks after the date of issue of the order. Traikaero prepared and sent to the prosecutor the initial works report on 20 April 2019, some 5 weeks early.
I find that Traikaero and Mr Woods have shown remorse for their actions. They have accepted responsibility for their actions. They have endeavoured to make reparation for the harm caused by the offences they committed.

Assistance to authorities

Traikaero and Mr Woods have provided assistance to the prosecutor, a law enforcement authority: see s 21A(3)(m) and s 23 of the Sentencing Act. Although the remediation order was imposed on Traikaero and Mr Woods under statutory authority, Traikaero and Mr Woods negotiated the terms of the remediation order to ensure its efficacy. The final form of remediation order was settled between the parties on 10 April 2019, and was issued on 12 April 2019. Traikaero and Mr Woods offered a positive covenant to be registered on the title of the property voluntarily to ensure the terms of the remediation order are implemented. Their solicitor offered on 29 August 2018 a plea agreement, which on 24 September 2018 was accepted in principle by the prosecutor. The proceedings were adjourned to permit negotiations. The pleas of guilty were entered on 26 October 2018. The parties agreed a statement of agreed facts, which reduced the extent of factual contest for the sentencing hearing. Traikaero and Mr Woods have offered to pay the prosecutor's costs of the proceedings in the amount of $42,000. These actions would have assisted the prosecutor.

The appropriate penalty for each offence

I take into account the objective circumstances of the offences and the subjective circumstances of Traikaero and Mr Woods as the offenders, as I have discussed above.
I take into account the purposes of sentencing in s 3A of the Sentencing Act. The purposes of punishment, retribution and denunciation are relevant. There is the need for the Court, through the sentences it imposes, to ensure that Traikaero and Mr Woods are adequately punished for the offences, to hold them accountable for their actions, and to denounce the conduct of Traikaero and Mr Woods in proportion to the seriousness of the offences.
There is a need for the Court to recognise the harm done to the environment, and to the community, by reason of Traikaero's and Mr Woods' offending conduct. Their conduct caused actual environmental harm of medium significance to native vegetation and vegetation communities of high conservation value. The sentence of the Court needs to reflect this environmental harm and the purpose of restoration and reparation.
The sentence needs to act as a deterrent. The purpose of general deterrence is relevant to ensure that persons do not clear native vegetation without first obtaining authority to do so in the form of a development consent or an approved property vegetation plan. The purpose of general deterrence is particularly relevant when imposing sentences for offences of clearing of native vegetation: Director General, Department of Environment and Climate Change v Rae at [9]-[13].
In the circumstances of this case, having regard to Traikaero's and Mr Woods' lack of prior convictions, their remorse for committing the offences, Mr Woods' prior good character, the actions taken at the time of and following commission of the offences to address the causes giving rise to the offences and to prevent reoccurrence of the offences, and the unlikelihood of their reoffending, there is no particular need for individual deterrence of Traikaero and Mr Woods.
In determining the appropriate penalty, the Court should be consistent with a pattern of sentencing for like offences. I have had regard to the sentences imposed by this Court and the Court of Criminal Appeal in other cases involving the offence of clearing of native vegetation to which the parties have drawn my attention. I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders involved that led the sentencing court to impose those sentences. The cases include the cases to which I have earlier referred of Director General, Department of Environment and Climate Change v Rae; Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull; and Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54, as well as Director General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119; Director General, Department of Environment and Climate Change v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149; Chief Executive, Office of Environment and Heritage v Powell [2012] NSWLEC 129; Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; Chief Executive, Office of Environment and Heritage v Ian Robert Turnbull [2014] NSWLEC 150; Director General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110; Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141, appeal dismissed in Turnbull v Chief Executive, Office of Environment and Heritage [2018] NSWCCA 229; and Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54.
The sentence that I consider to be appropriate to be imposed for each offence committed by Traikaero and Mr Woods is not inconsistent with the sentences imposed in these cases that provide a check or yardstick. The amounts of the fines imposed in those cases vary considerably, depending on the particular facts found about the objective and subjective circumstances of the offence and the offender involved and any other component of the sentence (such as the amount of costs ordered). It is not a useful exercise to compare only the amount of the fine imposed in each of these cases with the amount of the fine I consider to be appropriate in the present case. They are different but that is because the circumstances are different. Furthermore, the more appropriate yardstick against which the sentence in this case should be compared is the maximum penalty set by Parliament for the offence ($1,100,000), rather than the amounts of fines imposed in past cases.
Synthesising all of the relevant objective and subjective circumstances of each offence and of Traikaero and Mr Woods as the offenders, and considering the relevant purposes of sentencing, I consider that the appropriate monetary penalty for each offence is $300,000. These amounts should be discounted by 22.5% for the utilitarian value of the pleas of guilty. This makes each amount $232,500.

Parity between offenders

I consider it is appropriate to impose the same monetary penalty on Traikaero and Mr Woods because both their criminal responsibility and their culpability are the same. Traikaero and Mr Woods are equally criminally responsible, and hence liable for punishment, for committing an offence against s 12 of the NV Act by clearing native vegetation on the property.
They are also equally culpable. Culpability "is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment": KR v R [2012] NSWCCA 32 at [22].
In this case, because of the relationship between Traikaero and Mr Woods, where Mr Woods is the sole director and the directing mind and will of Traikaero, and runs the agricultural business on the property through Traikaero, the conduct of Traikaero and Mr Woods in each committing the offence of clearing native vegetation on the property, and the subjective circumstances of each of them, are not relevantly distinguishable. There is no basis in the evidence to distinguish the moral culpability of Traikaero and Mr Woods in committing the offence of clearing native vegetation on the property.
As these offenders, who committed the same offence, are alike in terms of criminal responsibility and culpability, "equal justice requires that like should be treated alike": Postiglione v The Queen (1997) 189 CLR 295 at 301, 309, 325-326, 335, 338 and see Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 at [21]-[24].

Allowance for relationship between offenders

This relationship between Mr Woods and Traikaero does, however, call for a review and, if appropriate, an adjustment of the monetary penalty that would otherwise be appropriate to impose on each of Mr Woods and Traikaero to take account of the effect that the total penalties might have on Mr Woods. Where the offenders to be sentenced are an individual and a company that the individual owns, the total penalties may affect the individual, first, by the penalty imposed for the offence committed by the individual, and secondly, by the penalty imposed for the offence committed by the company that will, in reality, come from the individual's pocket: Keir v Sutherland Shire Council [2004] NSWLEC 754 at [17].
Justice may require, in such a case, that the penalties be reduced below what otherwise would be appropriate in recognition of the circumstance that "a multiplicity of offenders is accidental and quite unrelated to the merits of the case": Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 722 and see Keir v Sutherland Shire Council at [16] and Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council (2018) 232 LGERA 304; [2018] NSWCCA 56 at [130].
In the circumstances of this case, I consider that it is just and appropriate to reduce the aggregate of the fines that otherwise would be appropriate for the offences committed by Traikaero and Mr Woods. I have found that the appropriate individual fine to be imposed on each of Traikaero and Mr Woods is $232,500, giving an aggregate of $465,000.
This aggregate should be reduced to lessen, but not eliminate, the effect on Mr Woods by him having to pay the fine imposed on him as well as the fine imposed on Traikaero. I do not consider it would be just and appropriate to, in effect, eliminate one fine for one offence committed by either offender. To lessen the fine imposed on each of Traikaero and Mr Woods, but not eliminate one fine, does not amount to Mr Woods being punished twice for the same conduct.
The Court needs to recognise, by the sentences it imposes, that each of Traikaero and Mr Woods committed an offence against s 12 of the NV Act. The criminality involved in the commission of an offence against s 12 of the NV Act by a corporation and by a director or manager of that corporation is not coterminous.
First, the corporation and the director or manager of the corporation have different legal personality. There is nothing conceptually wrong in prosecuting both the corporation and a director or manager of the corporation for the same conduct: Hamilton v Whitehead (1988) 166 CLR 121 at 128 and Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2007) 275 IR 148; [2017] FCA 1301 at [154]. The corporation is a separate entity and has its own liability for its deliberate conduct in committing the offence. The director or manager of the corporation has his/her own liability for directing the actions of the corporation: see Greentree v Minister for Environment and Heritage (2005) 144 FCR 388; [2005] FCAFC 128 at [54].
Secondly, this distinction in liability between the corporation and the director or manager of the corporation is evidenced by the NV Act creating an executive liability offence (in s 45), which makes a director of a corporation or an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation liable for an offence if the corporation commits an executive liability offence, such as the offence against s 12 of the NV Act. The penalty for the offence is the same as the penalty for the executive liability offence committed by the corporation. These provisions evince a legislative intention to impose an obligation on directors and managers of corporations to use their position of influence to ensure that the corporation complies with the NV Act before and in clearing native vegetation, and to criminalise any failure by the director or manager of the corporation to do so. This liability of the director or manager is distinct from the liability of the corporation. The provisions operate to make each entity or person who is responsible for the unlawful conduct of clearing native vegetation criminally liable for their conduct and separately penalised: Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown at [154].
In this case, each of Traikaero and Mr Woods committed an offence against s 12 of the NV Act, but for different reasons. Traikaero's criminal responsibility derived from it carrying out or authorising the carrying out of the clearing of native vegetation on the property or being the landholder of the land on which native vegetation was cleared. Mr Woods' criminal responsibility derived from carrying out or authorising the carrying out of the clearing of native vegetation on the property or being the director of Traikaero which carried out or authorised the carrying out of the clearing of native vegetation on the property. The penalties to be imposed for each offence committed by Traikaero and Mr Woods need to reflect the different criminality involved. It would not be appropriate to impose only a nominal penalty on one or the other of the corporation, Traikaero, or the director of the corporation, Mr Woods: see similarly in Greentree v Minister for Environment and Heritage at [54] and Minister for Sustainability, Environment, Water, Population and Communities v Woodley (2012) 194 LGERA 290; [2012] FCA 957 at [66]. That would not reflect the total criminality before the Court.
I consider that appropriate allowance can be made for the effect the total penalties will have on Mr Woods, while still reflecting the total criminality before the Court, by reducing the aggregate of $465,000 to $340,000.
This reduced aggregate needs to be apportioned between the company, Traikaero, and the director, Mr Woods. In Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 at [54]-[63], Biscoe J reviewed the authorities on adjusting the penalties to be imposed on an individual and a company which is the business alter ego of the individual. Different ratios of fines have been imposed by courts in different circumstances, and no clear pattern emerges. It seems to depend on factors such as whether there are different maximum statutory penalties for companies and individuals for the offences concerned, the financial positions of the company and the individual, and their respective capacities to pay fines, and the purposes for which the sentences should be imposed, amongst other factors.
Biscoe J suggested at [63] that: "On one view, a logical way to avoid double penalty in a case such as the present, where the individual is the sole shareholder and alter ego of his company (at least where the maximum statutory penalty for each is the same), is to impose a fine on the individual and only a nominal (or no) fine on his company."
Nevertheless, Biscoe J considered that other considerations, such as the sentencing objectives of deterrence, denunciation and punishment, required that more than a nominal fine be imposed on the one man company. Biscoe J imposed the heaviest fine on the individual who was the guiding mind of the company but also a fine that was not nominal on the company, in a ratio of 3:1.
Biscoe J's review of the authorities was referred to by Pain J in Environment Protection Authority v Alcobell Pty Ltd; EPA v Campbell [2015] NSWLEC 123 and Sheahan J in Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Bay Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) [2016] NSWLEC 120, although different ratios for apportionment of the fines were used in those cases.
In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown, Bromwich J referred to Biscoe J's review of the authorities but declined to follow his suggestion of imposing a fine on the individual and only a nominal fine on the corporation. Bromwich J referred to the recent decision in Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312; [2017] FCAFC 159 at [365] noting that an individual who chooses to conduct his/her business through the separate legal entity of a corporation must take both the benefits and burdens that come with separate legal personality. Bromwich J considered that, in the circumstances of the case, the weight that should be attached to the relationship between the corporation (New Shanghai Charlestown) and the individual (Mr Chen) should be limited (at [160]): "If persons like Mr Chen choose to avail themselves of the advantages of a corporate structure, which includes such things as limited liability, asset protection and tax advantages, there is a limit to which they can then seek to rely upon the disadvantages of that structure, in circumstances where it has been the primary vehicle by which they have engaged in serious contraventions of workplace laws. In all the circumstances, the appropriate course is therefore to take into account the relationship between Mr Chen and New Shanghai Charlestown, but for it to have a limited effect on the ultimate penalty to be imposed."
Traikaero and Mr Woods submitted that this Court should apply a ratio of 3:1 as between the individual, Mr Woods, and the company, Traikaero, based not on any difference in the relative culpability of each offender or the subjective circumstances of each offender, such as their respective financial positions or capacities to pay fines, but simply because this was the ratio that had been applied by Sheahan J in Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd at [96]. This submitted ratio for apportionment of the fines was made, however, in the belief that the Court would in effect only impose one penalty for one offence. For reasons I have given, I do not consider that is the appropriate sentencing approach.
In the circumstances of this case, where no particular reason has been advanced to justify any particular apportionment between Mr Woods and Traikaero, I will apportion the adjusted aggregate fine of $340,000 for the two offences equally between Mr Woods and Traikaero. This reflects their equal criminal responsibility and culpability, and their like subjective circumstances. This results in a fine of $170,000 each for Mr Woods and Traikaero.

Moiety and costs orders

The prosecutor seeks an order pursuant to s 122(2) of the Fines Act 1996 directing the payment of one half of any fine imposed on the offenders to be paid to the prosecutor. This is not opposed by Traikaero and Mr Woods.
The prosecutor also seeks an order for costs. The prosecutor nominated s 215(1) of the Criminal Procedure Act 1986 as a source of power to order costs, but the usual source of power to order costs for criminal proceedings in this Court is s 257B of the Criminal Procedure Act 1986. The parties have agreed on the amount of the costs as $42,000. Traikaero and Mr Woods should pay half each.

Orders

The Court orders: In proceedings 2018/42080: (1) Traikaero Pty Ltd is convicted of the offence against s 12(1) of the Native Vegetation Act 2003 as charged. (2) Traikaero Pty Ltd is fined $170,000. (3) Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Chief Executive of the Office of Environment and Heritage (the prosecutor). In proceedings 2018/42126: (1) Anthony Norman Woods is convicted of the offence against s 12(1) of the Native Vegetation Act 2003 as charged. (2) Anthony Norman Woods is fined $170,000. (3) Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Chief Executive of the Office of Environment and Heritage (the prosecutor). In proceedings 2018/42080 and 2018/42126: (1) Traikaero Pty Ltd and Anthony Norman Woods are to pay $21,000 each to the Chief Executive of the Office of Environment and Heritage (the prosecutor) for the prosecutor's costs of the proceedings.

Amendments 25 June 2019 - Correction to typographical error at [104] 26 June 2019 - Correction to proceedings no. 05 July 2019 - Correction to typographical error at [83] 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: 05 July 2019

(2006) 145 LGERA 234

(2017) 227 LGERA 290

(2009) 168 LGERA 121

(2018) 232 LGERA 304

(2012) 194 LGERA 290

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (25 paragraphs)

Cases Cited (39)

Cited By (6)