Corbyn v Walker Corporation Pty Ltd

A sentence hearing is held 12The parties have principally relied for the purpose of sentencing on the findings of fact I made in the penal liability judgment which are relevant to sentencing for the offence I found proven. I will refer to the relevant findings as I deal with each sentencing consideration. 13Walker also called evidence from an ecologist, Dr David Robertson, concerning the environmental impact of the clearing. The prosecutor called evidence in reply to Dr Robertson, from Mr Tim Hager, a biodiversity survey and assessment officer at the Office of Environment and Heritage, who had given evidence at the trial. These two experts gave both affidavit and oral evidence at the sentence hearing. I will address their evidence when I deal with the sentencing consideration of the harm to the environment caused by the commission of the offence.

The applicable purposes of sentencing for this offence 14In sentencing Walker for the offence I have found proven, I have taken into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Procedure Act"). The sentence of the Court needs to publicly denounce the conduct of Walker (para (f)), make Walker accountable for its actions (para (e)) and ensure Walker is adequately punished for the offence committed (para (a)). The sentence needs to recognise the harm done to the environment and the community for which the environment holds value (para (g)). 15The sentence also needs to act as a deterrent. For reasons I will explain, I do not consider that any particular weight needs to be given in the sentence to the need to deter Walker specifically from committing similar offences in the future, as I find that Walker has learnt from and changed its behaviour in response to the commission of the offence in this case. However, I do consider that the sentence needs to deter generally other persons from committing similar offences. Courts have repeatedly drawn attention to the need for general deterrence when imposing sentences for offences of clearing native vegetation contrary to law: see Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; 197 A Crim R 31 at [9]-[13] and cases therein cited and Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 at [9]-[12].

The objective gravity of the offence 16The sentence of the Court must reflect both the objective gravity or seriousness of the offence as well as the personal subjective circumstances of the defendant. The objective circumstances of the offence of relevance in this case are: the nature of the offence; the maximum penalty for the offence; the harm caused to the environment by the commission of the offence; the state of mind of the offender in committing the offence; the offender's reasons for committing the offence; the foreseeable risk of harm to the environment by commission of the offence; the practical measures to avoid harm to the environment; and the offender's control over the causes of harm to the environment.

Nature of the offence 17I have discussed the nature of the offence against s 12 of the NV Act in Rae at [15]-[19]. I adopt that discussion. 18Walker's conduct of engaging the clearing contractor, Environmental Land Clearing Pty Ltd ("ELC"), without first having applied for and obtained development consent under the NV Act or expressly requiring ELC to apply for and obtain such consent, before undertaking the clearing, offended the legislative objective expressed in the statutory offence and hindered the attainment of the objects of the NV Act. The native vegetation cleared included vegetation of significant vegetation status and contributed to biodiversity. The action of clearing such vegetation and its consequences ran counter to the objects of the NV Act.

Maximum penalty 19At the time of commission of the offence, the maximum penalty prescribed by Parliament for the offence was 10,000 penalty units or $1,100,000 and a further daily penalty of 1,000 penalty units or $110,000. 20These high maximum penalties reflect the seriousness with which Parliament views the offence of clearing native vegetation in contravention of s 12 of the NV Act.

Harm to the environment 21In the penal liability judgment, I found that: (a)ELC cleared native vegetation using mulching equipment on parts of each of the three lots (Lot 1 in DP 816861, Lot 2 in DP 239247 and Lot 62 in DP 1064019): at [59], [76], [78] and [79]; (b)the areas of the parts of the three lots in which native vegetation was cleared totalled 2.4 ha in the western area (Lots 2 and 62) and 4.9 ha in the eastern area (Lot 1): at [79]; (c)the native vegetation cleared comprised groundcovers, understorey plants, shrubs, saplings and trees up to 20-30 cm in diameter as well as larger trees (42 in number): at [84], [171], [172], [174] and [175]; (d)the native vegetation cleared included vegetation comprising two endangered ecological communities, Shale Sandstone Transition Forest and Cumberland Plain Woodland: at [86] and [93]; and (e)there had been previous clearing and other disturbances of vegetation on the three lots, for which Walker was not responsible: at [77] and [78]. 22Dr Robertson, the ecologist called by Walker for the sentence hearing, visited the site and examined the vegetation on two occasions, 3 and 9 February 2012. Dr Robertson gave affidavit and oral evidence that: (a)the cleared areas have suffered relatively small tree losses as trees remain abundant; (b)the remaining trees are tall, mature, native trees, often with interlocking canopies; (c)the native vegetation is in a healthy regenerating state, with mature trees above a regenerating layer of shrubs, native grasses and herbs; (d)the native vegetation in the cleared areas includes the majority of species found in flora surveys conducted before the clearing by Anne Clements & Associates; (e)the clearing has not had a significant detrimental impact on the faunal habitat values of the land. While the clearing has had a short term impact on the diversity and height of shrubs in the understorey, it has not significantly diminished tree numbers or densities on the overall site as the majority of mature trees remain and belts of forest land that are well connected link around the periphery of the site and connect to adjacent lands. The forest habitats of the overall site still appear to provide suitable habitat for many threatened species of fauna; (f)relative to the overall quantum of native vegetation on the overall site, the two cleared areas are small, and there remains a large, well connected area of forest around the periphery of the cleared area that connects to forest and woodland on adjacent land; (g)the cleared areas actually seem to contain a richer diversity of plants than the uncleared area that has a dense, shrubby understorey. In particular, there are more native grasses and herbs in the cleared areas than the uncleared area; (h)the cleared area contains few weeds and there has been little weed invasion; (i)extensive natural regeneration has occurred unaided and should be permitted to continue; and (j)if regeneration continues, the vegetation will return to its former condition prior to clearing. 23Mr Hager, the biologist called at the trial by the prosecutor, responded in writing and orally at the sentence hearing to Dr Robertson's evidence. Mr Hager gave evidence that: (a)re-establishment of trees to the size of the 42 larger trees removed (with diameters of 20-30 cms) would take some 10 to 20 years; (b)larger trees provide habitat and food sources for various threatened fauna. Hence, it will take time to replace the ecological functions of the larger trees that were removed; (c)clearing by use of the mulching equipment removed the majority of the shrub layer and groundcover to 20 to 50 mm above the ground. Thus, the habitat for those species using the shrubs and the taller components of the ground layer was essentially fully removed within the cleared areas; (d)the fauna using the shrub and groundcover layers comprised more abundant species and not threatened species; (e)the amount of habitat for the fauna that inhabited the shrub layer will be reduced until the shrub layer re-establishes within the cleared area. This will be in a shorter time frame than for the tree canopy. The ground layer was regenerating well in 2010; (f)although the two areas cleared are relatively small compared to the overall area of native vegetation on the overall site, they comprised endangered ecological communities that have been identified as over cleared and unable to withstand further loss. Hence, the clearing of relatively small areas is significant; (g)there is a low level of weeds; and (h)the level of environmental harm caused by the clearing is moderate. The regeneration of the vegetation suggests environmental harm should not be permanent. 24The evidence of Dr Robertson and Mr Hager, it can be seen, is essentially in agreement. I accept, and make findings in accordance with, the evidence of both Dr Robertson and Mr Hager as I have summarised above. 25In conclusion, I find that the clearing has caused moderate environmental harm, which will enure but decrease in severity for one to two decades. Such harm can be considered to be substantial in the sense used in s 21A(2)(g) of the Sentencing Procedure Act.

State of mind of the offender 26The prosecutor submitted that the offence was committed intentionally or recklessly. Walker submitted the Court could not so find beyond reasonable doubt. I agree with Walker's submission. 27I summarised and made findings from the evidence about Walker's engagement of, and instructions to, ELC to undertake clearing of the land in the penal liability judgment: at [61]-[63], [84], [110] and [117]-[122]. I found that Walker instructed ELC to clear the land but did not expressly or impliedly require ELC to obtain development consent for the clearing. Nevertheless, the evidence and findings do not establish that Walker intentionally committed the offence, in the sense that Walker had as its purpose in engaging and instructing ELC to clear the land causing the proscribed consequence of clearing native vegetation without development consent contrary to s 12 of the NV Act. The evidence and findings also do not establish that Walker was reckless in the sense that it realised or suspected that the proscribed consequence of clearing native vegetation without consent was a possible or probable result of engaging ELC to clear the land, but did so nevertheless. The findings I made as to Walker's liability for the clearing by ELC (at [119]-[121] of the penal liability judgment) do not establish such intention or recklessness. 28The evidence also does not establish that the offence was part of a planned or organised criminal activity (see s 21A(2)(n) of the Sentencing Procedure Act.

Reasons for committing the offence 29The prosecutor submitted that Walker committed the offence for financial gain: see s 21A(2)(o) of the Sentencing Procedure Act. The prosecutor submitted such an inference could be drawn from the findings I made concerning Walker's engagement of, and instructions to, ELC and the fact that the land was held by Walker as part of a land bank for future development. Walker submitted that I could not be satisfied, beyond reasonable doubt, that the offence was done for financial gain. I agree with Walker's submission. The evidence and the findings I made in the penal liability judgment do not support drawing the inference that the offence was committed by Walker for financial gain.

Foreseeability of risk of harm to the environment 30The prosecutor submitted that, having regard to the nature and extent of the clearing, and the native vegetation cleared, a reasonable person in the position of Walker would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. The prosecutor submitted that the greater the foreseeability, the more objectively serious the offence, citing Rae at [50]. 31Walker submitted the extent of foreseeability of harm in this case was not great. The facts of this case are clearly distinguishable from those in Rae. The instructions Walker gave to ELC to undertake the clearing do not support a finding of foreseeability of significant harm to the environment. Walker instructed ELC to leave all the large trees and, in general terms, clear the small undergrowth. Compliance with such instructions ought not have resulted in significant environmental harm. Furthermore, Walker submitted it would have been possible for ELC to carry out its instructions within the bounds of the NV Act. Walker also submitted that there is no evidence that at the time Walker instructed ELC to undertake the clearing, Walker knew or ought reasonably to have known that the vegetation to be cleared comprised endangered ecological communities. 32Having regard to the general nature of the instructions, the manner and extent of the clearing to be carried out, and the native vegetation to be cleared, I find that a reasonable person would have foreseen the risk of harm to the environment of the type and extent caused by the commission of the offence. This foreseeable risk of environmental harm included the removal of some larger trees, most of the shrub layer, and the groundcover to near ground level, with adverse consequences for fauna. However, it does not include foreseeing that the vegetation was part of endangered ecological communities, which at the time of engagement of ELC was not yet known by Walker or ELC. The Anne Clements & Associates report identifying the endangered ecological communities of Shale Sandstone Transition Forest and Cumberland Plain Woodland was not completed until 31 May 2006, two months after Walker instructed ELC to clear the land. There is no evidence of when Walker received that report or even if the Walker employee who engaged and instructed ELC to clear the land, Mr Fife, became aware of the contents of the report.

Practical measures to prevent risk of harm 33The prosecutor submitted that Walker could and should have refrained from instructing ELC to clear native vegetation on the land unless and until development consent had been obtained authorising the clearing. Walker could have approached either Wollondilly Shire Council or the Hawkesbury Nepean Catchment Management Authority for authorisation or advice on what vegetation could be cleared. For other parcels of land, Walker had made such approaches. 34Walker accepted that it could have made such approaches to regulatory agencies for authorisation or advice on what vegetation could be cleared. However, Walker submitted that its employee, Mr Fife, believed (incorrectly) that consent was not necessary. Hence, the failure to take the practical step of obtaining consent was explicable. 35Walker further submitted that, when assessing the practical measures available to avoid harm to the environment, the Court should take account of the fact that Walker did not know that ELC would remove the larger trees. Walker's employee, Mr Fife, had in fact instructed ELC to leave all the larger trees. 36I find that Walker could and should have sought advice from the regulatory agencies on what native vegetation could lawfully be cleared from the land and applied for and obtained the necessary development consent before instructing ELC to clear the land. The taking of these practical steps would have avoided the commission of the offence and the foreseeable risk of harm to the environment.

Control over causes 37The prosecutor submitted that Walker caused ELC to undertake the clearing and hence had control over the causes of the harm to the environment. 38Walker noted that the Court found, in the penal liability judgment, that Walker caused ELC to undertake the clearing (at [110], [111]) but not that Walker exercised sufficient control to give rise to vicarious liability (at [124]). Walker submitted that it did not exercise a high degree of control over ELC such as would cause the Court to conclude that the offence was of an objectively serious nature. 39I accept Walker's submissions. Walker had control over the causes of the harm to the environment in that it engaged ELC to undertake the clearing that caused the environmental harm. However, it did not exercise control and direction over ELC in undertaking the actual clearing of native vegetation on the land.

Period of time over which offence committed 40The prosecutor submitted that the offence involved a series of criminal acts over a long period of time (beginning in April 2006 and continuing intermittently until October 2006). This means that the offence cannot be viewed as an uncharacteristic aberration. 41Walker submitted that the offence with which Walker was charged and which the Court has found proven is one offence, not multiple offences. It involved one activity of clearing at one site. It is not transformed into a series of criminal acts because it took place over a period of months albeit interrupted by other work elsewhere. 42I accept Walker's submission that the offence should be considered to be one criminal activity, not a series of criminal acts. However, I also accept the prosecutor's submission that the fact that the offence continued over many days over an extended period of time makes it more serious than if it had occurred once only. The extent of the clearing of the land meant that the offence, and the harm to the environment caused by commission of the offence, continued over an extended period of time. The legislature has recognised that an offence that continues over a period of time is more serious than one that does not by providing for a daily penalty in addition to a primary penalty. I note, however, that the prosecutor does not seek a daily penalty in this case.

Subjective circumstances of offender and mitigating factors 43Within the limits set by reference to the objective gravity of the offence, the Court may take into account mitigating factors personal to the offender. The subjective circumstances of the offender of relevance in this case are: the offence was not part of a planned or organised criminal activity; Walker's prior good character and relative lack of prior criminality; the unlikelihood of Walker reoffending; and Walker's provision of assistance to the regulatory authority.

44As I have found earlier, the offence committed by Walker was not part of a planned or organised criminal activity, which is a mitigating factor under s 21A(3)(b) of the Sentencing Procedure Act.

Prior good character and lack of prior criminality 45Prior good character is a mitigating factor. It has both a negative and positive aspect. The negative aspect of good character refers to the absence of a record or significant record of previous convictions: s 21A(3)(e) of the Sentencing Procedure Act. The positive aspect of good character includes a history of prior good works and contribution to the community: see generally s 21A(3)(f) of the Sentencing Procedure Act. 46Walker relied on the negative aspect of good character, that it has no significant record of previous convictions for environmental offences. Walker submitted that it was incorporated on 14 November 1973 and in the subsequent period of almost 40 years of trading, it has been convicted only once of unlawful clearing of native vegetation. This was in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 on 11 July 2011. 47The conviction and sentence of the Court in that case is under appeal to the Court of Criminal Appeal which has reserved judgment. The offence in that case was committed later in time to the present offence. It also involved Walker instructing ELC to clear native vegetation although on other land owned by Walker at Wilton. 48The prosecutor submitted that if this prior conviction for an offence committed after the date of commission of the present offence is to be taken into account, the Court may do so not for the purpose of imposing a heavier sentence but rather for the purpose of deciding whether Walker is deserving of leniency. 49I do not consider that this prior conviction in all the circumstances should detract from the Court concluding that Walker does not have any significant record of previous convictions, which is a mitigating factor under s 21A(3)(e) of the Sentencing Procedure Act. 50Walker did not adduce evidence relating to any positive aspect of good character, from which I am able to make a finding that Walker was otherwise of good character under s 21A(3)(f) of the Sentencing Procedure Act.

Unlikelihood of reoffending 51Walker submitted that it is unlikely to reoffend. Walker read affidavit evidence of Mr Beasley, a town planner employed by Walker. Mr Beasley began working for Walker in December 2007, a year or so after the offence was committed in this case. One of Mr Beasley's responsibilities is to provide planning advice in relation to Walker's landholdings in southwestern Sydney, including the land at Appin. This includes providing advice concerning compliance with the NV Act. Mr Beasley said that, since he commenced employment with Walker, the practice of Walker has been that if any land clearing is required on its holdings in southwestern Sydney, the proposal is referred to him to ensure that the proper steps are taken. Mr Beasley said he prepares a written submission to the relevant catchment management authority ("CMA") identifying the proposed area for clearing and arranges a visual inspection and meeting with representatives of the CMA. No clearing is undertaken unless and until written approval is received from the CMA for the clearing. Mr Beasley then arranges a pre-commencement inspection with, until about 2011, officers of the CMA, and then after 2011, an external arborist, to confirm the land delineated for clearing accords with the area identified in the approval and identify any protected vegetation that cannot be removed within the work area. Thereafter, clearing is undertaken in accordance with the approval. 52Mr Beasley also stated that since the two offences, the subject of these proceedings and the other proceedings, Walker has not been charged with any other offences under the NV Act. 53Walker submitted that the taking of this action addresses the causes of the offence in this case and reduces the likelihood of Walker reoffending by clearing native vegetation without, and not in accordance with, development consent under the NV Act. 54The prosecutor did not contest this submission but did note that Walker has not shown remorse. When cross-examined, Mr Beasley said he was not authorised by Walker to say that Walker had accepted responsibility for its actions, acknowledged any harm to the environment caused by commission of the offence or offered to make reparation for any environmental harm. The prosecutor submitted that, absent such evidence, the Court cannot make a finding of remorse as a mitigating factor under s 21A(3)(i) of the Sentencing Procedure Act. 55I agree with the prosecutor's submissions that I cannot, on the evidence before the Court, find that Walker has shown remorse as required by s 21A(3)(i) of the Sentencing Procedure Act. However, I accept Walker's submissions that the action it has taken after commission of the offence to ensure that it applies for and obtains any necessary development consent under the NV Act for clearing of native vegetation on its land, and its absence of a significant record of offences under the NV Act, support the Court making a finding that Walker is unlikely to reoffend, which is a mitigating factor under s 21A(3)(g) of the Sentencing Procedure Act.

Assistance to authorities 56Although Walker pleaded not guilty, Walker nevertheless provided pre-trial disclosure and assistance to the relevant regulatory agency, which was then DECCW. Walker responded to statutory requirements to answer questions and to provide documents. The documents provided included the reports of Anne Clements & Associates, which assisted during the trial. Provision of assistance to law enforcement authorities is a mitigating factor under s 21A(3)(m) of the Sentencing Procedure Act.

Consistency in sentencing 57A relevant consideration in sentencing is ascertaining the general pattern of sentencing for offences such as the offence under consideration. In Rae, I discussed the various sentencing decisions for offences involving clearing of native vegetation: at [77]-[91]. I adopt that analysis of those cases as well as the analysis I made of the offence in Rae itself. 58Since then, there have been two more sentencing decisions involving clearing of native vegetation. The first is Walker (No 4), the decision that is under appeal. The Court imposed a fine of $200,000 and ordered the defendant to pay the prosecutor's costs. Amongst the relevant objective circumstances were that the area cleared was 23 ha; the clearing caused actual environmental harm of medium or moderate seriousness to the biodiversity of the area, including nine fauna species and two endangered ecological communities; the defendant's conduct in instructing a land clearing contractor to clear native vegetation on the land, after receipt of a report identifying the nature and significance of the native vegetation, was in reckless disregard of whether or not the native vegetation would be cleared unlawfully; the risk of harm to the environment was foreseeable; there were practical measures to prevent that risk; and the defendant had control over the causes of harm to the environment. The only subjective factors were Walker's lack of prior criminality and its being of prior good character. 59The second decision is Graymarshall (No 2). The Court convicted and sentenced the corporate defendant in its absence. The Court imposed a fine of $200,000 and ordered the defendant to pay the prosecutor's costs. Amongst the relevant objective circumstances were that the area cleared was 38 ha; the complete clearing of native vegetation on the land caused actual environmental harm of high significance; the native vegetation cleared was mature to late mature vegetation, comprising significant habitat components, including hollows for fauna, and 2 ha of an endangered ecological community; the clearing was done for financial gain; there was clear foreseeability of the risk of harm to the environment; there were practical measures to avoid that risk; and the defendant corporation had complete control over the causes of the risk of environmental harm. The only subjective factor was the lack of any prior conviction. 60Walker submitted that the offence in this case is substantially less objectively serious than Rae, Walker (No 4) and Graymarshall (No 2). In each of those cases, the area cleared was substantially larger and the environmental harm greater than in the present case. In Rae and Graymarshall (No 2), the clearing was deliberately committed for financial gain. In Rae and Walker (No 4), the offence was committed with a state of mind of intention and recklessness respectively. In this case, however, the Court would not find that the offence was committed for financial gain or with a state of mind of intention or recklessness. 61I agree with Walker's comparative analysis that the offence in the present case is of a lower objective seriousness than the offences in Rae, Walker (No 4) and Graymarshall (No 2). The present offence is also of significantly lower objective seriousness than the offence against s 12 of the NV Act in the other sentencing decision referred to in Rae of Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 where the defendant was fined $400,000 and ordered to pay the prosecutor's costs.

Synthesising the objective and subjective circumstances of the offence 62I take into account the objective circumstances of the offence, as mitigated by the subjective circumstances of Walker, which I have discussed. I take into account the existing pattern of sentencing for offences against s 12 of the NV Act, making allowances for the differences in the particular circumstances, both objective and subjective, between those cases and the present case. 63I take account of the need to impose a sentence that achieves the purposes of denouncing the conduct of Walker, ensuring Walker is adequately punished for the offence, making Walker accountable for its actions, recognising the harm done to the environment by commission of the offence and preventing crime by deterring other persons from committing similar offences. 64I also take into account that Walker will be ordered to pay the prosecutor's costs, which are likely to be substantial. Payment of the prosecutor's costs is an aspect of the financial burden that will be suffered by Walker as a result of the offence. 65Synthesising these factors, I consider that an appropriate penalty for the offence is a fine of $80,000. Walker should also be ordered under s 257B of the Criminal Procedure Act to pay the prosecutor's costs of the proceedings as agreed or assessed under s 257G of the Act.

Orders 66Accordingly, the Court orders: (1)The defendant is convicted of the offence as charged. (2)The defendant is fined the sum of $80,000. (3)The defendant is to pay the prosecutor's costs of the proceedings as may be determined under s 257G of the Criminal Procedure Act 1986. 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: 15 August 2012