Department of Environment & Climate Change v Sommerville; Department of Environment & Climate Change v Ianna - [2009] NSWLEC 194 - NSWLEC 2009 case summary — Zoe

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Department of Environment & Climate Change v Sommerville; Department of Environment & Climate Change v Ianna

[2009] NSWLEC 194

Land and Environment Court (NSW)|2009-07-01|Before: Pain J, Mr P

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2009-07-01

Before

Pain J, Mr P

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Background 8. Mr Somerville owns two adjoining rural properties at Lot 180, DP755699 and Lot B, DP445426 on Swan Bay Road, Woodburn (the property). He manages and controls the property. He runs approximately 100 head of cattle on the property. The prior use of the property has been the running of livestock, primarily cattle. 9. Mr Somerville purchased the property for $270,000 from the previous owner, Mr Grant Bulmer on 30 June 2006. 10. A set of photographs which show the property at various dates before and after the clearing: · 2004 Lismore Council photo - taken June 2004 · 2005 SPOT 5 photo - taken 16 June 2005 · Air photo taken in March 2008, commissioned by DECC

[2]

Prior to June 2007, the property contained vegetation part of the Swamp Sclerophyll Forest Endangered Ecological Community (hereafter referred to as the EEC) including numerous old growth paperbark trees (Melaleuca quinquinervia). The vegetation on the property has been present since at least 20 years prior to the earliest air photo, which was taken in 1953, making the minimum age of the dominant trees in the stand 74 years at the time of clearing. It comprised a stand of remnant vegetation on a large floodplain landscape mainly cleared and dominated by drained cane paddocks and cleared grazing land. The only clearing done since the beginning of 2004, other than the present charges, was that carried out by or on behalf of Mr Bulmer which is described in the next paragraph.

[3]

Around June 2007 Mr Somerville engaged Mr Ross Anthony Ianna to undertake clearing works on the property, through the latter's earthmoving company, Ronsso Pty Ltd. The reason Mr Somerville wanted to carry out the clearing was to facilitate cattle mustering, and to potentially carry out cropping activities in the near future. Mr Somerville did not seek any type of consent for the work, nor did he carry out any environmental impact assessment. Mr Ianna had previously done clearing and some drainage works for Mr Somerville on another property owned by him.
Mr Ianna carried out the clearing works on the property over an approximate period of fourteen days during June 2007. Mr Somerville showed him the area and vegetation to be cleared, and gave him verbal instructions. He asked him to clear small camphor laurels and paperbark trees. There was no written contract, only an oral agreement. Throughout the period of clearing, Mr Somerville came down to the property several times to inspect the work undertaken by Mr Ianna and to give him further instructions as to the vegetation and area to be cleared. Mr Somerville was happy with the job that was being done by Mr Ianna.
During the period of clearing, Mr Ianna cleared an area of the property to bare earth, using a 25-tonne D65 Komatsu bulldozer. The cleared area is adjacent to Crown Road and occupies approximately equal areas of each Lot on the property.
Mr Ianna cleared about 150 large paper barks (Melaleuca quinquinervia) of about 45 feet in height. A further 20 or 30 paperbarks of this size were already laying on the ground. Mr Ianna also cleared swamp oaks (Causurina glauca), and weed species privet, lantana and camphor laurel.
Mr Ianna carried out the clearing using a dozer. He '[knocked] out' the trees using a 'tree pusher'. A tree pusher is an attachment on the dozer blade that reaches out over the top of the blade to make it easier to push trees out. The tree pusher has teeth so it can grip the trees. Mr Ianna then stacked the trees and went back over the land with a stick rake attachment. All the trees cleared by Mr Ianna were stacked in windrows. There were already about 4 or 5 older stacks of vegetation from previous clearing activities which had been well burnt with only a few remains of logs evident. Mr Ianna added to these older stacks.
Mr Ianna invoiced Mr Somerville for 105.5 hours of work for the clearing he carried out on the property.
Two photographs which are consistent with what the property appeared after Mr Ianna completed the clearing.

[5]

On 6 July 2007, DECC received an Environment Line report regarding clearing of vegetation on the property. A second complaint was later received. The matter was referred to Ms Kelly Roche, a Regional Biodiversity Conservation Officer employed by DECC who is based in Grafton.
Ms Roche and Mr Krister Waern, also employed by DECC as a Regional Biodiversity Conservation Officer at the time, conducted an inspection of the property on 10 July 2007.
Ms Roche put together a map of the property and surrounding area using ARCview. This map has cadastral information and road names on it. It also has an inset showing the surrounding area of cane paddocks.
Ms Roche and Mr Waern took photographs of the property during their inspection.
They saw approximately 13 ha had been cleared on the property ('the Core cleared area'). Both Ms Roche and Mr Waern concluded it had been Swamp Sclerophyll Forest EEC in old growth condition.
There were 15 piles, or windrows, of cleared vegetation from 3 - 6m high, 30 - 60m long and 14 to 20m wide. The windrows were located across the Core cleared area of the property. The windrows contained predominantly native vegetation species. Species in the windrows included: Melaleuca quinquinervia, Ficus macrophylla, Ficus obliqua, Ficus fraseri, Alphitonia excelsa, Jagera pseudorhus, Acacia melanoxylon, Mistletoe, Cockspur.
A total of 103 trees were recorded with diameters of more than 80cm at breast height, which were very large examples of these particular species. Of the 103 trees, 96 trees were Paperbarks (Melaleuca quinquinervia), 3 were camphor laurel and 4 were rainforest trees. They contained tree hollows which are consistent with mature and old growth vegetation. Much of the felled vegetation had greenish leaves that were beginning to brown as they were drying out. Epiphytes were also observed within the windrows.
Some felled trees had substantial amounts of soil attached to the root ball and some of these trees still had green leaves on them. The trees were dead or dying as a result of being felled and did not appear to be diseased or in any other way ill. Approximately 500 trees in excess of 500 mm in diameter at breast height were removed.
There was a large area of disturbed soil around the piled vegetation in the Core cleared area. There were numerous heavy vehicle track marks, cattle footprints and droppings in the disturbed soil areas.
There were few weed species or individual weeds on the property within the cleared vegetation. In the Core cleared area and eastern sections of the property, there were relatively few weeds in the piled vegetation. Several felled camphor laurel trees were present on the western boundary of the cleared area, but overall there were few camphor laurel trees amongst the cleared vegetation
A fringe of predominantly M. quinquinervia trees in healthy condition had been retained along the western edge of the site. Damage to these trees done during the clearing was evident, with underlying bark exposed and one tree being snapped off at approximately 1.5 metres in height. Several trees remained standing within the core cleared area, but exposure to prevailing winds, particularly after flood events, as well as damage to roots from topsoil compaction and disturbance would limit the likelihood of these trees surviving in the medium to long term.
Sedge grasses and reeds that are adapted to waterlogged conditions were present on the property, indicative of prevalent wet soil conditions common on floodplain paddocks.
There were a number of woodland native bird species on the property.
In October 2007 the ground cover on the property was dominated by pasture grass, sedges (Juncus spp.) and scattered weeds. By February 2008 there had been substantial growth of weed species, particularly in disturbed soil areas around the piles.

[7]

9 The Prosecutor relied on the SOAF as evidence. Defendants' evidence 10 Jasen Somerville, the Defendant landowner, swore an affidavit on 20 August 2009. Mr Somerville is 33 years old and works as a stock and station agent. He attests to having cardiac health problems and sleep apnoea. He states that his total net worth is over $2 million and he has an annual net cash flow of approximately $20,000. He purchased the property in 2006. Annexed to his affidavit was an invoice dated 15 July 2004 for clearing works undertaken by Steve Runciman of Greensill Bros Pty Ltd at the property under the previous owners. At the time of these works, Mr Somerville was in partnership with the owners. The clearing works referred to in the invoice were paid for by the partnership. Mr Somerville states that he otherwise had no involvement or input in those clearing works. Mr Somerville states that he broke the law whilst being unaware the he was in breach. He expresses contrition and remorse in his affidavit. 11 Mr Somerville gave oral evidence. He stated he had been charged with a driving offence over ten years ago but no conviction was recorded by the court. He stated that the clearing work the subject of this offence was carried out to allow for grazing and cropping on that site. He estimated five to 6 acres was cleared which potentially created enough space for an extra two beasts on the property. This could provide added income of approximately $400 per year. Cleared land in the area has a value of approximately $3,000 per acre. The additional income if the area was used for cropping is dependent on the crop planted and seasonal factors. Mr Somerville stated that on the advice of his lawyer he sought information from an ecologically qualified consultant about rehabilitation of the site. Mr Somerville plans to plant the area which was cleared in order for new swamp sclerophyll rainforest to develop. He was not given any further guidance from the Prosecutor, the Department of Environment and Climate Change (DECC), as to what remediation works should be carried out. 12 Ross Ianna, the Defendant contractor, swore two affidavits on 10 August 2009 and 11 September 2009, respectively. Mr Ianna is 51 years old and an earthmoving contractor. He has worked in bulldozing since he was 14 and since 2004 has run his own company providing bulldozing services in the local area. Clearing work is the mainstay of this business. Mr Ianna has three children, for one of whom he pays child support. He lives with his second wife in a renovated shed, renting the house on his property in order to generate income. Mr Ianna's company recorded a loss in 2007 and he and his wife rely on an overdraft for income. He is required to make repayments of around $80,000 per year on the bulldozer which is under lease. Mr Ianna states that he suffers depression and has chronic neck and upper back pain caused by bulldozing. 13 Mr Ianna estimates that he cleared about eight or nine acres of land at the property. He attests that at the time he believed that a landowner could clear five acres each year or ten acres over a two year period. Mr Ianna stated that he stick raked both the areas he had cleared as well as the area that had been previously cleared in 2004 by Mr Runciman. When clearing vegetation he pushed it into the adjoining cleared areas to make windrows where possible. He states that he had no reason to think the paperbarks or tea trees, which he often sees in his work, were protected or endangered. He was unaware of the threatened species legislation or EECs until his dealings with DECC in the course of this prosecution. 14 In his affidavit of 11 September 2009, Mr Ianna states that the area of land where trees were felled was between five and six acres (a smaller area than his first affidavit). The trees which were felled ranged in size from approximately 600mm in diameter to small plants like privet. He estimates he removed approximately 500 trees which where in excess of 500mm in diameter at breast height. Considering the invoice of clearing work undertaken by Greensill Bros Pty Ltd for work in 2004, Mr Ianna notes that the work was carried out with a dozer and an excavator which Mr Ianna states increases efficiency by approximately 15 per cent. One hundred and fifty-two and a half hours of work was invoiced by Greensill's. Mr Ianna invoiced Mr Somerville for 105.5 hours of work. Mr Ianna confirms that the area considered by Anthony Denny, a surveyor, as being the area cleared by the Defendants in 2007 is accurate (see par 18). 15 Exhibited to Mr Ianna's affidavit of 10 August 2009 were company tax returns for the years 2006 to 2008, and financial reports for the years 2007 and 2008 for Ronsso Pty Ltd, and Mr Ianna's individual tax return for the years 2006 to 2008. These records confirm Mr Ianna's difficult financial position. Also exhibited was an aerial photograph of the property marked up by Mr Ianna to show the areas that had been cleared prior to his work at the property, four photographs of the property taken by Mr Ianna before he started work at the property and a marked up aerial photograph showing the positions from where these photographs were taken. 16 Mr Ianna gave oral evidence. He stated he had no prior criminal convictions. He described how the proceedings had affected him including that he was ashamed of what had happened, had become depressed since the investigation commenced and that he was very sorry for breaking the law. He stated that he was unaware at the time that the work was carried out that it was not within the law and will ensure in his work in the future that landowners know the significance of native species. He has not done any similar work since the prosecution commenced. Under cross-examination Mr Ianna stated that he had not made any inquiries as to the restrictions on tree clearing before commencing work on Mr Somerville's property. 17 Richard Gollan, a farmer on property adjoining the subject property, swore an affidavit on 5 August 2009. Mr Gollan has owned that adjoining property for four years and share farmed it for over 20 years. He states that he goes onto the subject property on average once a year. Mr Gollan states that a former owner of the subject property, Jeff Pye, cleared tracks in the paperbark area in order to allow horses access for cattle mustering. This occurred approximately two years before Mr Pye sold the property to the owner before Mr Somerville. Mr Gollan states that the owner before Mr Somerville cleared areas on the property shortly after he purchased it. These works occurred over a period of about two or three weeks. 18 Anthony Denny, a registered surveyor, swore an affidavit dated 10 September 2009. Mr Denny drew plans of the area of land cleared in June 2007 after meeting the Defendants on 9 September 2009 at the property. The Defendants marked pegs on the land to indicate where the clearing had occurred which Mr Denny later estimated was an area of 2.3 hectares (approximately 5.7 acres). He was also shown the area cleared previously in 2004 (before Mr Somerville owned the property) which Mr Denny estimated was an area of 8.2 hectares (20.26 acres). 19 The Defendants' counsel tendered three exhibits, being the record of interview between a DECC officer and Steve Runciman who undertook clearing at the property in 2004, a record of interview between a DECC officer and Mr Ianna and a letter from Mr Somerville to DECC dated 31 July 2007 which states, inter alia, that Mr Somerville is prepared to rectify the clearing by replacing trees and plants that were removed. Environmental Harm 20 The parties agreed the environmental harm caused by commission of the offences in the SOAF:

[9]

The dominant vegetation on the land prior to clearing was at least 74 years old and was thus remnant vegetation as opposed to regrowth, as defined under the Native Vegetation Act 2003. It consisted predominantly of Paperbark (Melaleuca quinquinervia), and included rainforest species, Swamp Oak (Causurina glauca) and Camphor Laurel. The vegetation was not mostly Camphor Laurel; this species constituted only a small proportion of the vegetation. The presence of Camphor Laurel and other weed species does not detract in any way from consistency of the vegetation with the EEC definition.
The vegetation on the site prior to clearing was part of the Swamp Sclerophyll Forest EEC, having the factors of landform, soils, flood regime and canopy dominants that are definitive field characteristics that are sufficient to identify the EEC. The following characteristics of the vegetation on the site prior to clearing all matched the Swamp Sclerophyll Forest EEC criteria: · dominant presence of Paperbark in the canopy · soils, landform, and flood regime are each consistent with the Scientific Committee Determination description of soils within the EEC, ie "humic clay loams and sandy loams" on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains". Soils are classified texturally as being between silty loams and silty clays, with the site occurring on flat land of low elevation (<5m AHD) adjacent to the Richmond River and subject to inundation. · vegetation structure, general floristic composition, floristics of the upper storey vegetation and weed species · location of the vegetation within the Lismore Local Government Area in the North Coast Bioregion
The environmental harm caused by clearing the site is significant. In general terms, this harm includes: · Permanent removal of a large area of an EEC · Severing of connectivity between remnant vegetation and increasing the level of habitat fragmentation · Removal of threatened fauna and flora habitat, including features that are limiting factors affecting distribution and abundance of fauna, for example tree hollows · Loss of biodiversity values · Loss of ecosystem services, including soil stabilisation, wind protection, carbon storage and fixation, sediment trapping and nutrient filtration, slowing and detention of floodwaters and groundwater recharge. · Loss of regeneration potential for a high conservation value vegetation community through loss of above ground reproductive function as well as loss of soil seed-bank. · Increased prevalence of introduced species including environmental weeds · Soil compaction · Reduced resilience of ecosystem to withstand and adapt to impacts of climate change · Reduced capacity to maintain genetic diversity of component species, including a reduced opportunity for genetic exchange and reduction in gene pool.

[10]

An area was cleared on the property, causing the loss of vegetation of conservation significance and biodiversity value. Prior to clearing, the site was vegetated by open forest to open woodland with a canopy height of approximately 20m. Paperbarks were the predominant canopy species, while the sub-canopy species included rainforest trees and a small component of weed species including Camphor Laurel, Small-leaved Privet and Indian Coral Tree.
There are very few remnant patches of vegetation in the Swan Bay area of a similar size to that of the site. Together with the adjacent Lot 147 DP755699, the site formed a connected patch of remnant vegetation in a large area of cleared land. Prior to clearing, the site would have been a 'stepping stone' for fauna moving between existing large patches of vegetation approximately 7km away and Richmond River riparian and other remnant habitats. The clearing has reduced the overall size of this area of vegetation, thereby reducing the biodiversity values of the remnant vegetation located on the adjacent Lot. Vegetation fragmentation is known to commonly result in losses of species diversity.
The Swamp Sclerophyll Forest EEC would have provided important habitat and food resources for numerous species, including some threatened species. The vegetation that existed on the site prior to the clearing has been mapped as providing Key Habitats for fauna. Paperbark is an important nectar source for threatened species such as the Grey-headed and the Eastern Blossom-bat. Figs provide food resources for Flying-foxes and threatened rainforest pigeons. The site may also have provided foraging habitat for the White-eared Monarch, as well as roosting and foraging habitat for threatened micro chiropteran bats such as the Eastern Long-eared Bat and the Greater Broad-nosed Bat. Purposes of sentencing for environmental offences 21 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) identifies the purposes of sentencing as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 22 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 was a similar but not identical offence under s 118A(2)(b), relating to the picking of vulnerable species. These offences concern picking of EEC plants under s 118A(2)(a). Preston J discussed the purposes of sentencing for environmental offences at [134]-[158]. General deterrence was stated to be particularly relevant to environmental offences in order to send the important message that laws requiring the conservation of the environment must be complied with. The Court must show denunciation of the defendant's conduct because of the seriousness with which the informed and responsible public views protection of the environment. Specifically in relation to the NPW Act and the TSC Act, the conservation of threatened species, populations and ecological communities is considered critical to the conservation of biological diversity and ecological integrity. In imposing a fine, Preston J stated that the Court must consider a sentence which changes the economic calculus for those contemplating development contrary to the provisions of any environmental protection legislation. Objective circumstances of the offence 23 The Court must consider the objective circumstances of the offence in order to assess the appropriate penalty. A basic principle of sentencing law was stated in Hoare v The Queen (1989) 167 CLR 348 at 354 per Mason CJ, Deane, Dawson, Toohey and McHugh JJ: …a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).

[11]

24 In Bentley v BGP Properties Preston J held at [163]: Amongst the objective circumstances that the Court may consider are: (a) the maximum penalty for the offence; (b) the objective seriousness of the offence having regard to its place in the statutory scheme; (c) the harm caused to the environment, and particularly the components of the environment harmed in the short and long term by the commission of the offence; (d) the state of mind of the offender in committing the offence; (e) the foreseeability of the risk of harm; (f) the practical measures to avoid foreseeable risk of harm; and (g) the reasons for commission of the offence. Prosecutor's submissions 25 The Prosecutor submitted that the offence created by s 118A(2) of the NPW Act has an important function in the statutory framework of that Act and the TSC Act. The objects of the TSC Act include the conservation of biological diversity, the prevention of extinction of threatened ecological communities and the elimination of processes which threaten their survival. The objects of the NPW Act include the conservation of nature such as the biological diversity of community. The offences of clearing 150 large paperbark trees of about 45 feet in height and an unknown number of swampy oaks undermines the objects of both Acts. In Bentley v BGP Properties, Preston J referred at [65] to the importance of statutory requirements for prior environmental impact assessment and approval before action is taken which is likely to damage threatened species. 26 The actions of the Defendants have caused immediate harm to the environment given the loss of the large number of trees on the property. No more EEC remains on the property as a result of the offence. The SOAF states that the environmental harm is significant. The dominant trees were 74 years old. The vegetation had conservation significance and biodiversity value. It was a corridor for fauna moving between existing large patches of vegetation approximately 7 km away, the Richmond River and other remnant habitats. Damage has also occurred to trees on the western edge of the property. 27 The harm caused was reasonably foreseeable given the large number of trees cleared. There were practical measures that could have been taken given that the offences were within the Defendant's control. Had proper inquiries been made of DECC, the local council or the relevant catchment management authority for permission to do the clearing, information would have been supplied.

[13]

29 Regard must be had to the culpability of the Defendants and the individual circumstances which led to the commission of the offence. The Prosecutor submits that the culpability of each Defendant is increased as a result of their commercial motives for committing the offence and their failure to make any reasonable inquiries 30 General deterrence is an important consideration in the present matter given the difficulty in detecting offences of this kind and the significant impact that such offences can have on threatened species and EEC's. Specific deterrence is also relevant to both Defendants because Mr Somerville continues to farm and Mr Ianna continues to undertake clearing work. A penalty needs to be imposed to ensure they do not reoffend. 31 The Prosecutor submits that objective circumstances of offence place it in the medium range of seriousness and a penalty should be such as to ensure retribution and denunciation are properly addressed, see Bentley v BGP Properties at [143]-[145]. Defendants' submissions 32 The Defendants had no knowledge that the clearing constituted an offence under the NPW Act. Similar clearing activity took place on the property in July 2004 without complaint. (I note that Swamp Sclerophyll Forest on Coastal Floodplain was gazetted as an EEC under the TSC Act in December 2004, after that clearing occurred). Neither Defendant had knowledge that the legislation had declared swamp sclerophyll rainforest an EEC in December 2004. There is no evidence from the Prosecutor that anything more than the statutory notification process in the gazette had taken place. That is accepted as a fact by the Prosecutor and is not proffered by the Defendants as an excuse. 33 There is no evidence of what would have occurred had inquiries been made by the Defendants to the relevant authorities about the requisite consents for clearing. There is therefore no basis for the submission by the Prosecutor, in relation to the prevention of harm, that had inquiries been made such information would have been forthcoming. 34 The area cleared was not large, about 2.3 hectares (5.7 acres) based on the evidence of Mr Denny, the surveyor. The total area of the property is 300 acres. Mr Denny's affidavit indicates that the area cleared in 2004 by the previous owner of the property was substantially larger than the area cleared in 2007 by the Defendants. This earlier clearing is also referred to in the affidavit of Mr Gollan.

[14]

35 Mr Ianna undertook the work as part of his normal business and charged the usual rate. There was no windfall component. The evidence of Mr Somerville indicates that the clearing would not have provided him with a significant commercial gain. Finding on objective circumstances/environmental harm 36 The environmental harm caused was significant according to the evidence of Ms McKinley identified in the SOAF at par 37 and onwards. A large number of mature trees were removed as part of the clearing process, as set out at par 38 of the SOAF. The impact of clearing such a large number of trees is identified in par 40 of the SOAF and includes loss of important habitat and its connectivity with other such habitat in the area, biodiversity values and regeneration potential. The Defendant sought to emphasise that the area cleared was not large, relying on the evidence of its surveyor, Mr Denny in particular. The Prosecutor considered that the number of trees destroyed was relevant to harm and not necessarily the size of the area cleared. Given that a penalty for an individual tree is provided in s 118(2)(a), I agree. The number of trees forming part of the EEC that were destroyed is large and significant in the Swan Bay area where there are few remnant patches of that size remaining according to par 42 of the SOAF. The harm caused was foreseeable, arising directly from the destruction of the trees which were part of an EEC. 37 These are strict liability offences so that mens rea is not a relevant consideration in determining whether the offence was committed. The mental state of an offender is relevant in sentencing to determining the objective circumstances of an offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, per Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [123], Hardt v Environment Protection Authority (2007) 156 LGERA 337 at [53], Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [68] and [356] and Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [42] and [46]. Offences committed deliberately are more serious than offences committed due to inadvertence or error, per Garrett v Williams (2006) 145 LGERA 234 at [103] and Garrett v Freeman (No 5) at [68]. 38 In this case both Defendants state that they were unaware of any requirement under the NPW Act in relation to clearing of EEC and are unaware that the vegetation was EEC. There is no evidence to suggest that they were so aware or should have been aware because of particular circumstances surrounding the commission of the offence, contrary to cases such as Bentley (summarised at par 59), Garrett v Williams [2007] NSWLEC 56 (summarised at par 60) and Plath v Fletcher [2007] NSWLEC 596 (summarised at par 61). The property had been cleared previously in July 2004, before the EEC was gazetted, without incident. The Prosecutor submits that the Defendants should have been aware of the requirements in the NPW Act. These provisions have been in the NPW Act since the introduction of the TSC Act in 1995. While it is preferable and desirable that anybody wishing to remove trees and other plants that are part of an EEC inquire of the relevant authorities whether consent of any kind is required, there is no evidence presented by the Prosecutor to enable me to find that the Defendants acted intentionally, recklessly or negligently in failing to make those inquiries.

[15]

Reasons for commission of offences 39 The reasons for the commission of the offence are also relevant to consider. In this case Mr Somerville stated that he wanted to make the cleared area more accessible for cattle mustering. The additional cleared area will enable him to make a modest additional income based on slightly increased stocking rates and that is relevant matter to consider in determining the level of seriousness of the offence. 40 Mr Ianna performed a job for which he was paid and obtains no ongoing benefit from any improvement in the land. I do not consider this is a material matter in relation to his culpability. 41 The objective circumstances and other factors outlined above suggest that the Defendants' culpability is low but the environmental harm is reasonably significant. Whether order under s 10 of the CSP Act ought be made for Mr Ianna 42 Mr Ianna's counsel submitted that an order ought be made under s 10 of the CSP Act in relation to Mr Ianna. This states: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

[20]

49 A matter that is useful to consider by way of comparison is Blue Mountains City Council v Carlon [2008] NSWLEC 296 in which a contractor was prosecuted for clearing trees and vegetation without consent contrary to s 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The circumstances of the offence are set out at [62] in relation to the prosecution of the land owner in Blue Mountains City Council v Tzannes [2009] NSWLEC 19. Biscoe J held that the defendant contractor honestly believed that council approval had been given for the clearing work which he performed and that this belief was not unreasonably formed. The contractor did not however act prudently. The objective seriousness of the offence was considered to be at the very low end of the scale. Mitigating factors included the absence of prior convictions recorded against the defendant, his excellent character, assistance to the authorities, early guilty plea and expression of remorse and contrition. Biscoe J also considered the defendant's limited means to pay a fine. His Honour considered but ultimately declined to dismiss the charge pursuant to s 10(1) of the CSP Act. Instead the defendant was convicted of the offence without any penalty being imposed, pursuant to s 10A(1) of CSP Act. He was also ordered to pay the prosecutor's costs. 50 In this matter Mr Ianna was undertaking clearing in the normal course of his business. He did not hold any positive belief that the requisite consents had been obtained or make any inquiries, which suggests this matter is arguably more serious than Carlon. 51 For the reasons given by the Prosecutor at par 45 it is not appropriate that Mr Ianna receive the benefit of an order under s 10(1) of the CSP Act. Contrary to the submissions of his counsel that public policy considerations will be sufficiently met without him being convicted, he is engaged as part of his ongoing business in tree clearing and carried out the clearing in the normal course of his business. Those conducting such businesses need to be aware of the requirements under the NPW Act. I consider his conviction would promote general deterrence and that remains an important consideration. While I appreciate that Mr Ianna has faced and continues to face difficult personal circumstances as a result of the offence, an order under s 10(1) is not appropriate in my view. I will consider shortly whether an order under s 10A(1) (conviction with no penalty) of the CSP Act is appropriate. Penalty considerations 52 It is now necessary to consider what penalty ought be imposed on the respective Defendants. Maximum penalty 53 The Court is to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. In addition to a maximum financial penalty of $220,000, the maximum penalty for each individual tree, numbering 150, is $1.65 million. General deterrence 54 Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

[29]

Contrition and remorse - s 21A(3)(i) CSP Act 68 Both Defendants expressed contrition and remorse in oral evidence. Mr Somerville also expressed contrition in his affidavit and I accept these statements. Remediation plan proposal by Mr Somerville 69 In Plath v Fletcher the Court took into account the carrying out of remediation of the cleared area by a defendant which had occurred before the sentence hearing. Mr Somerville's solicitor sent a letter dated 31 July 2007 to the Prosecutor proposing remediation. No response was received. No remediation of the cleared land has been undertaken by Mr Sommerville. Following discussion at the hearing about whether Mr Somerville wished to undertake remediation of the land, Mr Somerville has had a remediation plan prepared by a consultant and has submitted this to the Court. The Prosecutor's consultant's advice about the remediation plan has not been entirely incorporated into the remediation plan submitted so that the Prosecutor does not support the plan. The Prosecutor considers that as no order for remediation of the cleared area can be made under s 118E (headed "Court may order offender to restore habitat and take other actions") of the NPW Act, any remediation plan proposed by Mr Somerville cannot be taken into account. 70 It is difficult at this stage to take into account to any great extent Mr Somerville's expressed intention to remediate the land in the absence of any ability of the Court to enforce such a plan and the lack of agreement about the content of the plan to be implemented. Had the Defendant taken steps to adequately remediate the land before the sentence hearing that would have been a relevant matter to take into account in mitigation. Guilty plea - s 21A(3)(k), s 22 CSP Act 71 The Defendants pleaded guilty at the earliest opportunity. A plea of guilty entitles the Defendants to a discount in penalty in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300.