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

13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. Mr Ianna invoiced Mr Somerville for 105.5 hours of work for the clearing he carried out on the property.
19. Two photographs which are consistent with what the property appeared after Mr Ianna completed the clearing.

10 July 2007 - Department of Environment and Climate Change (DECC) inspection of the property

20. 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.
21. 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.
22. 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.
23. Ms Roche and Mr Waern took photographs of the property during their inspection.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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
30. 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.
31. 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.
32. There were a number of woodland native bird species on the property.
33. 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.

34. Ms Roche and Mr Scott Beaumont of DECC conducted interviews with Mr Somerville and Mr Ianna.
35. During the interview with Mr Somerville on 31 August 2007 he stated: · He employed and instructed Mr Ianna and his dozer to do the clearing at the property. There was a lot of small camphor laurels Mr Ianna was asked to remove and Mr Somerville also asked him to remove paperbarks. · The reason Mr Somerville did the clearing was because it was hard to muster his cattle as there was a lot of privet and 'regrowth' in the area. However it wasn't difficult to move through the vegetation, just the cattle would go into the area and hide. Mr Somerville also wanted to do some cropping there after the clearing. · Mr Somerville drew on a map where the clearing had taken place. He also depicted on that map where previous clearing had occurred with red markings. In those areas there were at the time of the clearing lots of little camphor laurel trees but not the large paperbark trees. · Mr Somerville did not know that the vegetation on the property at the time of picking was protected as a threatened species or was within an endangered ecological community.
36. During the interview with Mr Ianna on 17 January 2008, he stated: · At the property he cleared paperbarks, swamp oaks, privet, lantana and camphor laurel under instruction from Mr Somerville. · Mr Ianna drew on a map where he had cleared. The largest paper barks he cleared were about 45 feet high. He cleared about 150 trees of this height. There were about 20 - 30 paperbarks already laying on the ground. · Mr Ianna had not heard of threatened plant species and was unfamiliar with legislation that exists to protect certain tees at the time of picking.

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:

Environmental Harm 37. After the clearing, expert botanist Ms Annette McKinley was retained by DECC. Ms McKinley undertook to reconstruct the vegetation that would have been present at the site, by: · Examining and interpreting pre-clearing air photos · Analysing soil and landform present on the site · Examining the composition of the vegetation piles, identifying the plant species contained within and assessing tree trunk sizes Ms McKinley then compared the reconstructed vegetation with the characteristics of EECs known to occur on floodplains of the NSW North Coast bioregion. She determined the vegetation was part of the Swamp Sclerophyll Forest EEC applying the criteria for this EEC that has been set out by the NSW Scientific Committee Determination.

38. 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.
39. 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
40. 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.

41. 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.
42. 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.
43. 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).

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.

28 The Prosecutor submitted that the clearing was done for commercial gain by Mr Somerville to improve cattle mustering on the property and to potentially enable its use for cropping. Mr Ianna also carried out the work for financial gain as he was paid by Mr Somerville.

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.

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.

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.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. … Defendant's submissions 43 It is not necessary to establish all the matters in s 10(3) in order for an order under s 10 to be made. Mr Ianna is a very hardworking person who has driven bulldozers since he was 14 years old. He is 51 and has given written and oral evidence of the severe emotional impact of the consequences of the offence on him and for which he is taking medication. The proceedings were commenced relatively close to the end of the two year time limit for the commencement of proceedings. He has limited assets and means as is identified in the tax returns for 2006, 2007 and 2008 exhibited to his first affidavit.

44 His counsel submitted that Mr Ianna's personal circumstances suggest that a s 10 order ought be made. He undertook the work at the direction of Mr Somerville and it is not unreasonable that he should have a lesser penalty. He is not the ultimate beneficiary of the work which is relevant to the degree of criminality in committing the offence, per Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 301-302. Public policy considerations will be sufficiently met without him being convicted. There is no public expectation that Mr Ianna ought be convicted. Section 118(2) of the NPW Act does not require that all those involved in the picking of plants part of an EEC ought be convicted. His conviction would not promote general deterrence or change the "economic calculus" to be considered by a sentencing judge, per Preston J in Bentley v BGP Properties at [156]. He is of unblemished character and has worked hard all of his working life.

45 The Prosecutor submitted that a s 10 order was not appropriate for either of the Defendants for the following reasons: a) The offences could not be characterised as being of a trivial nature. The offences resulted in the picking of a substantial number of plants that were part of an EEC. b) The actions giving rise to the offences were planned and committed deliberately. This is not a situation such as in Thornloe v Filipowski (2001) 52 NSWLR 60 where there was little if anything the defendant could have done to prevent the offence. c) There are no extenuating circumstances. d) There is a strong need for general deterrence in matters of this kind. Finding on s 10 46 There are several decisions which emphasise that a grant of a s 10 order under the CSP Act in environmental offences is not lightly given. As I stated in Newcastle City Council v Pace Farm Egg Products Pty Limited (No 3) [2005] NSWLEC 423 at [24]: Several cases have made it clear that s 10 of the Crimes (Sentencing Procedure) Act (and its predecessor s 556A of the Crimes Act 1900 ) is rarely applied in pollution cases. In Environment Protection Authority v Attard [2000] NSWCCA 242, Sperling J (with whom Mason P and Smart AJ agreed) stated at [5] that s 556A would only be applied in exceptional circumstances. In Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22, Stein J at 23 said: This Court has not infrequently stated that it will be a rare case when a dismissal under s556A is seen as appropriate for an environmental offence, especially a breach of the Clean Waters Act

47 As submitted by the Defendants, not all matters specified in s 10(3) must be established in order to found a s 10 order: see R v Paris [2001] NSWCCA 83 per Simpson J at [42] and Ipp AJA at [48]. In relation to the matters identified in s 10(3), this is not a trivial offence given the objects of the NPW Act under which the charge has been laid and the objects of the TSC, under which the EEC is listed for protection. The environmental harm is significant given the number, size and age of the trees destroyed on Mr Somerville's property. However, as submitted by the Defendant's counsel a, s 10 order can be made if an offence is not trivial: see Filipowski v Fratelli D'Amato (2000) 108 LGERA 88. 48 There is no extenuating circumstance in relation to the commission of the offence per s 10(3)(c) which I can take into account. The offence resulted directly from Mr Ianna's own actions carrying out the usual business activities in which he engages. It could have been prevented by him. In relation to s 10(3)(a), Mr Ianna has given evidence of the substantial negative effect the charge has had on his emotional well being.

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.

55 The Prosecutor argued that deterrence was an important consideration in light of s 3A(b) of the CSP Act. Nominal fines will not deter the commission of environmental offences, Environment Protection Authority v Capdate Pty Ltd (1992) 78 LGERA 349. Specific deterrence 56 Neither Defendant has any prior criminal convictions, which is relevant to consideration of specific deterrence. In the majority judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477, past criminal behaviour indicates: …whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.

57 The Prosecutor submitted that as Mr Somerville will continue to farm the penalty must be sufficient to ensure that he does not reoffend. Mr Ianna as a bulldozer operator who will continue to clear land also requires a penalty sufficient to deter such behaviour in the future. I consider it is highly unlikely that either Defendant will reoffend so that any penalty imposed need not take into account specific deterrence. Evenhandedness 58 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court.

59 No case referred to by the parties was similar. Bentley v BGP Properties was a far more serious breach of s 118(2)(b) of the NPW Act by the picking of vulnerable species. A corporate defendant, through a person appointed as project manager to prepare land for a planned development, cleared approximately 19.05 hectares of native vegetation which included a vulnerable species. The defendant knew as a result of detailed reports made available to him that the land contained a number of different species of flora and fauna including the relevant threatened species and it was aware that the threatened species was likely to occur in the areas which were cleared. The clearing was deliberate and intentional and undertaken in preparation for the lodgement of a rezoning application and development application. The offence was committed for the purpose of commercial gain. Relevant mitigating factors were that there were no prior convictions and the early plea of guilty. The maximum penalty for an offence against s 118(2)(a) of the NPW Act, which deals with threatened species, is and was at the time of the offence $55,000 or imprisonment for one year, or both. Additional penalties for each whole plant picked were not in force at the time the offence was committed. The defendant was fined $40,000.

60 Garrett v Williams (2007) was also a more serious breach of s 118A(2)(a) than the present matter. The defendant was the director of a corporation which was charged with three offences under s 118(2)(a) relating to the picking of three different EECs. The clearing was carried out by a contractor. The total area cleared was not more than 2.9 hectares and involved the destruction of many hundreds of trees. There was evidence that the defendant was aware from what he had been told by an environmental consultant that the areas contained protected vegetation. During the course of the investigation by the Department of Conservation, the defendant failed to supply relevant information and supplied misleading information as to who was responsible for the work. He denied in an interview that he had any responsibility for the clearing and Lloyd J held that the defendant had acted in a way that hampered and hindered the investigation. Lloyd J concluded that a significant area of EEC was cleared and there was large-scale damage. Lloyd J did not consider that the early pleas of guilty indicated an expression of contrition of remorse but a discount for the utilitarian value of the plea was given. His Honour considered the totality principle in sentencing for the three charges which arose out of a single course of conduct by the defendant. The defendant was fined $110,000 for each of the three offences (of a maximum penalty available of $220,000), was required to pay the prosecutor's costs of $85,000 and was sentenced to 400 hours of community service. No penalty for each individual plant picked was imposed.

61 In Plath v Fletcher the defendant was convicted of an offence under s 118A(2)(a) for clearing about 32 trees forming part of an EEC. A development application for residential subdivision had been lodged by the previous owners of the subject property and a flora and fauna report identifying the EEC was prepared for that application. The defendant purchased the property from the previous owners on condition that the development consent was granted. Before the application was approved and while negotiations continued about what trees would be required to remain if consent were granted, the defendant began clearing trees on the property. The defendant stated that he was unaware that approval was needed for the clearing which he engaged a contractor to undertake. Lloyd J held that he committed the offences deliberately, in full knowledge that his actions were unlawful and with the knowledge that the vegetation was protected. In sentencing, Lloyd J considered the efforts the defendant had made on his own initiative to replant the cleared area, his contrition and remorse, early guilty plea and assistance to the authorities. His intention was to make a profit by building a house on the site and for the purposes of a subdivision however no profit had at the time of sentence been made and consent for the subdivision had not at the time of sentence been granted. The defendant was fined $46,000 of a maximum $220,000. No penalty for each individual plant was imposed.

62 Since the hearing, Plath v Rawson [2009] NSWLEC 178 was handed down by Preston J. This case was a far more serious breach of s 118(2)(a) and also involved breaches of s 118(2)(b). There was a high degree of environmental harm because of the significant extent of the clearing, the defendant had acted in reckless disregard of advice that endangered and threatened species were present and could not be lawfully cleared without consent. The defendant also failed to express any contrition or remorse for carrying out the offence. An aggregate amount of fines of $135,000 was imposed and the defendant was required to pay the prosecutor's costs totalling $300,000. That case does not provide assistance in determining the appropriate penalty in this matter. 63 The Defendants' counsel referred to Byron Shire Council v Fletcher [2008] NSWLEC 296, a charge of clearing trees and vegetation without development consent pursuant to s 125(1) of the EP&A Act. Nine species of native trees were removed, totalling 50 trees each approximately 12m to 20m in height. All the trees were the subject of a tree preservation order. Preston J held that the environmental harm was low as the trees were likely to have been regrowth from earlier clearing episodes. Preston J also accepted that the defendant did not deliberately breach the law as he was unaware that development consent was required. His Honour held that the defendant should have made inquiries before carrying out the clearing. Mitigating factors included the early plea of guilty, cooperation with the investigation and absence of prior convictions. There was no evidence of contrition and remorse including the absence of any remediation plan. The defendant was fined $20,000 and ordered to pay the prosecutor's costs of $13,000. The maximum penalty for a breach of the EP&A Act is $1.1 million (and was at the time of the offence was committed).

64 The Defendants' counsel also referred to Blue Mountains Council v Tzannes. This was a prosecution under the EP&A Act of the owner of the property which was the subject of the proceedings in Carlon. When the defendant purchased the property it contained a cleared area of approximately one hectare (of a total four hectares). The cleared area contained felled dead timber which the defendant sought to remove in order to allow the area to regenerate. On the advice of council to implement bushfire hazard reduction and clean up the cleared area by retaining a contractor, the defendant engaged a contractor (the defendant in Carlon) with the instructions to cause as minimal disturbance as possible by limiting work to the previously cleared area and to removing the old and felled timber on the ground. The council had told the defendant that she was not required to obtain written consent from the council. While the defendant was overseas, the contractor had piled up the felled timber into windrows and had also pushed over recent regrowth and cleared a further quarter of an acre of vegetation beyond the area originally cleared. Lloyd J held that the defendant had no intention to commit any offence, that the offence was trivial in nature and that she was of excellent character. His Honour also considered the defendant's offer to pay the prosecutor's costs of $30,000 and implement a remediation plan of the cleared area. The offence with which the defendant was charged was held to be proved but no conviction was recorded and the proceedings were dismissed pursuant to s 10(1) of the CSP Act. Mitigating factors/subjective factors 65 There are a number of mitigating factors that should be taken into account to reduce that penalty as referred to in s 21A(3) of the CSP Act.

No prior convictions - s 21A(3)(e) CSP Act 66 Neither of the Defendants have any prior criminal convictions. Good character - s 21A(3)(f) CSP Act 67 I accept that both Defendants are of good character.

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.

Cooperation with law enforcement authorities - s 21A(3)(m), s 23 CSP Act 72 The Defendants have cooperated with the Prosecutor at all times. Means of the Defendants to pay 73 Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused to pay such fine as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount.

74 Counsel for Mr Ianna submitted that the Court should consider his limited means to pay a penalty if imposed. His limited means and those of his company are identified in his evidence and demonstrate that he would have great difficulty paying a substantial fine. I will take into account his limited means in setting a level of penalty. I see no need to do so in relation to Mr Somerville.

Whether should be parity in penalty 75 The two Defendants are essentially co-defendants. The parity principle as between co-offenders was considered by the High Court in Lowe v The Queen (1984) 154 CLR 606. Gibbs CJ stated the principle at 609 as follows: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are no[t] always equal, such matters as the age, background, criminal history and general character of the offender and the part which he or she played in the commission of the offence have to be taken into account. This statement was cited in R v Canino [2002] NSWCCA 76 and is referred to in the Judicial Commission of New South Wales, Sentencing Bench Book (10th edition, October 2008).

76 Taking into account the different personal and financial circumstances of the two Defendants, I consider that the Defendants' penalties should be different.

Costs 77 The Defendants have agreed to pay the Prosecutor's costs which are collectively $30,000 for both matters. Section 257B of the Criminal Procedure Act 1986 provides that the Court may make an order that the Defendants pay the Prosecutor's costs in these circumstances. Conclusion on penalty 78 In all the circumstances I think that Mr Somerville's penalty should be a fine of $30,000. 79 In relation to Mr Ianna, a conviction under s 10A(1) of the CSP Act is appropriate. No penalty will be imposed. In addition to his personal circumstances, I have taken into account his limited ability to pay any penalty and that he is liable for half of the Prosecutor's costs in the sum of $15,000, a very significant sum for someone in his financial position (a relevant consideration, per EPA v Barnes [2006] NSWCCA 246). Orders 80 In matter 50028 of 2009 relating to Mr Somerville the Court orders that:

1. The Defendant is convicted of the offence with which he is charged.
2. The Defendant is fined the sum of $30,000 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor's costs of the proceedings of $15,000.
4. The exhibits may be returned. 81 In matter 50029 of 2009 relating to Mr Ianna the Court orders that:
5. The Defendant is convicted of the offence with which he is charged.
6. The Defendant must pay the Prosecutor's costs of the proceedings of $15,000.
7. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.