(2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2001) 115 LGERA 304
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47(2010) 172 LGERA 52
Christodoulou v R [2008] NSWCCA 102
Connell v Santos NSW Pty Ltd [2014] NSWLEC 1(2014) 199 LGERA 84
Corbyn v Walker Corporation [2012] NSWLEC 75(2012) 186 LGERA 442
D'Anastai v Environment Protection Authority [2010] NSWLEC 260(2010) 179 LGERA 386
Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4Kariotoglou(2014) 206 LGERA 239
Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220(2012) 225 A Crim R 113
Environment Protection Authority v M A Roche Group Pty LtdEnvironment Protection Authority v Roche [2013] NSWLEC 191
Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264(2006) 148 LGERA 299
Garrett v Williams [2006] NSWLEC 785(2006) 160 LGERA 115
Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189
Gore v The QueenHunter v The Queen [2010] NSWCCA(2010) 208 A Crim R 353
Harris v Harrison [2014] NSWCCA 84
(2014) 86 NSWLR 422
Hili v The Queen
Jones v The Queen [2010] HCA 45
(2010) 242 CLR 520
Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92
(2012) 187 LGERA 207
Latoudis v Casey [1990] HCA 59
(1990) 170 CLR 534
Lee v Office of Environment and Heritage [2012] NSWLEC 9
Markarian v The Queen [2005] HCA 25
(2005) 228 CLR 357
Muldrock v R [2011] HCA 39
(1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178
(2009) 170 LGERA 253
R v Morgan (1993) 70 A Crim R 368
R v Olbrich [1999] HCA 54
(1999) 199 CLR 270
R v Storey [1998] 1 VR 359
(1996) 89 A Crim R 519
R v Thomson
R v Houlton [2000] NSWCCA 309
(2000) 49 NSWLR 383
Regina v Daetz
Regina v Wilson [2003] NSWCCA 216
(2003) 139 A Crim R 398
Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106
(2014) 201 LGERA 428
Silvano v R [2008] NSWCCA 118
(2008) 184 A Crim R 593
Veen v The Queen [1979] HCA 7
(1979) 143 CLR 458 at 490
Veen v The Queen (No 2) [1988] HCA 14
Judgment (8 paragraphs)
[1]
The Application of the Totality Principle
It is the Court's role to impose a sentence that reflects the overall criminality of the offender (Orica at [246]; Lee v Office of Environment and Heritage [2012] NSWLEC 9 at [67] and Gittany at [196] and [199]-[200]). The operation of the totality principle was explained recently in Orica as follows (at [224]-[228]):
224 The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences. In R v Holder; R v Johnston [1983] 3 NSWLR 245, Street CJ explained the application and policy underpinnings of the totality principle as follows (at 260B-E):
"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
225 The High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 relied on the following passage from DA Thomas, Principles of Sentencing (2nd ed) (1979) at pp 56-57 (at 62 to 63 of Mill):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
226 This was echoed by the High Court in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 (at [18]) and the Court of Criminal Appeal in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 (at [11] and [13]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
227 The principle will most often be invoked when an offender is being sentenced at the one time for multiple offences arising out of common or related criminal acts. However, the principle may still be applied when sentences are imposed at different times and even by different judges (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [99] and Mill at 64).
228 Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Plath at [222]). The identified risk is that, if "sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences" (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46] and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v MSK at [18]).
In the present proceedings, the commission of the notice offence was, in my opinion, although temporally separate, nevertheless part of a continuous course of conduct insofar as the Notice was issued to Mr Hudson in order to investigate the unlawful clearing of Yarrol. This justifies the application of the totality principle (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]) and I am satisfied that it should apply to the determination of the appropriate penalty to be imposed for the commission of the two offences.
[2]
Conclusion on Appropriate Penalty
Synthesising the objective circumstances of the two offences as mitigated by the subjective circumstances of Mr Hudson, and having regard to the existing pattern of sentencing, I consider that the appropriate penalty for the commission of each offences is a monetary penalty.
The appropriate penalty for the clearing offence contrary to s 12 of the NVA is $375,000, discounted by 15% to $318,750.
The appropriate penalty for the failure to comply with notice offence contrary to s 36(4) of the NVA is $2,000, discounted by 15% to $1,700.
Applying the totality principle to that the total monetary penalty reflects Mr Hudson's overall criminality with respect to both breaches of the NVA, I consider it appropriate to reduce the penalty imposed for the notice offence by 25% to $1,275. This produces a total monetary penalty of $320,025.
[3]
Capacity to Pay Fines Imposed
Having assessed the amount of each fine that would otherwise be appropriate for these offences, it is necessary to determine whether Mr Hudson has the financial capacity to pay the fines (s 6 of the Fines Act).
Although one of the complaints raised by Mr Hudson in respect of the trial before Lloyd J was that he was not permitted to give evidence of his capacity to pay any fine imposed upon him by the Court, he did not avail himself of the opportunity to present any evidence in these proceedings that he would be unable to pay the fines proposed above.
In the absence of any financial records or other material that would support a finding that a substantial fine could impose a hardship on Mr Hudson, I am unable to adjust the amount of the fines that I have determined are otherwise appropriate. Although in his second affidavit Mr Hudson deposed to a considerable sum of money being paid to remediate the land, it is not known what, if any, impact the payment of this sum (assuming for present purposes I were to accept that this amount had in fact been paid) has had on his financial situation. I therefore do not take it into account for the purposes of determining Mr Hudson's capacity to pay the fines imposed.
[4]
Costs
Section 257B of the CPA provides that:
257B When costs may be awarded to prosecutor
A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if:
(a) the court convicts the accused person of an offence, or
(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.
If no agreement can be reached between the prosecutor and the defendant on the quantum of costs, the costs may be assessed pursuant to s 257G of the CPA:
257G Calculation of costs
The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined:
(a) by agreement between the prosecutor and accused person, or
(b) if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004 (with or without modifications prescribed by the regulations).
[5]
Costs of These Sentence Proceedings
I know of no reason why the prosecutor should not be entitled, pursuant to s 257B of CPA, to its costs of the sentence hearing before me. I therefore propose to order that Mr Hudson pay these costs as agreed or as determined under s 257G of that Act.
[6]
Costs of Proceedings Before Lloyd J
In the primary judgment, Lloyd J made the following costs order:
The defendant must pay the prosecutor's costs in accordance with s 257B of the Criminal Procedure Act 1986.
The Court of Criminal Appeal determined to remit the "the question of sentence" to this Court for redetermination (at [102]).
Section 12(2) of the CAA provides that:
12 Supplemental powers of the court
(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.
In remitting the "question of sentence" to this Court, the Court of Criminal Appeal "dismissed the appeal so far as it relates to conviction" in order 3, and, critically, in order 4, determined to "quash the penalties imposed by Lloyd J on 11 February 2009" (emphasis added). Order 5 formally remitted the proceedings to this Court "for the purpose of determining the appropriate penalty to be imposed on the appellant" (emphasis added).
The question, therefore, that arises in these proceedings, is whether the order by the Court of Criminal Appeal quashing "the penalties" included the costs order made by Lloyd J in the primary judgment.
The prosecutor submitted, that Mr Hudson should be ordered to pay the costs not only of these proceedings, but also the entirety of the proceedings before Lloyd J, including that portion of the proceedings before his Honour that concerned the determination of sentence.
The unfairness of this position is immediately apparent. Mr Hudson, having been successful in the Court of Criminal Appeal in overturning the sentence imposed by Lloyd J should not, in my opinion, be ordered to pay for that part of the hearing before his Honour, however minor it may have been.
An appeal from this Court to the Court of Criminal Appeal is brought under s 5AB of the CAA. Section 5AA prescribes the parameters of the appeal. Relevantly, it provides that:
5AA Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction
A person:
(a) convicted of an offence, or
(b) against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or
(c) in whose favour an order for costs is made,
by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.
[7]
Orders
For the reasons provided above, the Court orders that:
50014 of 2008
1. the defendant is fined the amount of $318,750;
50035 of 2008
1. the defendant is fined the amount of $1,275;
50014 and 50035 of 2008
1. pursuant to s 257B of the Criminal Procedure Act 1986 the defendant is to pay the prosecutor's costs of the proceedings before me as agreed or as determined under s 257G of that Act;
2. the costs order made by Lloyd J on 11 February 2009 is vacated;
3. pursuant to s 257B of the Criminal Procedure Act the defendant is to pay half of the prosecutor's costs of the proceedings before Lloyd J as agreed or as determined under s 257G of that Act; and
4. the exhibits are to be returned.
[8]
Amendments
17 July 2015 - reformatted table of contents
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 July 2015
Parties
Applicant/Plaintiff:
Director-General, Department of Environment and Climate Change
Respondent/Defendant:
Hudson
Cases Cited (114)
Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200
Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19
Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Gardner [1997] NSWLEC 169
Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65
Environment Protection Authority v Orica Australia Pty Ltd (the Hexavalent Chromium Incident) [2014] NSWLEC 106
Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239
Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 225 A Crim R 113
Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche [2013] NSWLEC 191
Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273
Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Gore v The Queen; Hunter v The Queen [2010] NSWCCA; (2010) 208 A Crim R 353
Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lee v Office of Environment and Heritage [2012] NSWLEC 9
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213
Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159
Chief Executive, Office of Environment and Heritage v Kyluck Pty Ltd (No 4) [2014] NSWLEC 74
Chief Executive of Office of Environment and Heritage v Newbigging [2013] NSWLEC 144
Chief Executive of the Office of Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115
Chief-Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271
Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Morgan (1993) 70 A Crim R 368
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428
Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Sentence
Parties: Director-General, Department of Environment and Climate Change (Prosecutor)
John Ross Hudson (Defendant)
Representation: Counsel:
Mr E Muston and Mr C Brown (Prosecutor)
Mr P King (Defendant)
Decision at First Instance Before Lloyd J
On 11 February 2009, Lloyd J convicted Mr Hudson in respect of each offence. His Honour fined him $400,000 for the unlawful clearing offence and $8,000 for the notice offence (Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256) ("the primary proceedings").
Relevantly for the purpose of this appeal, his Honour made the following findings of fact in respect of Mr Hudson's liability for the unlawful clearing offence:
1. that clearing had occurred on the subject land ("Yarrol") during the charge period (at [16]);
2. that the vegetation cleared was "native vegetation" within the meaning of the NVA (at [24]);
3. that no development consent or PVP was granted to Mr Hudson to undertake the clearing of native vegetation (at [28]);
4. that Mr Hudson authorised the carrying out of the clearing insofar as he personally instructed the earthmoving contractors as to which areas to clear on Yarrol (at [29]). But, that he sought to justify this clearing "on the basis that it was approved by Ms Elizabeth Savage and otherwise undertaken to control the noxious weed Lippia" (at [31]);
5. that the clearing was not permitted under any of the exceptions contained in Div 2 of the NVA. That is to say, it was neither groundcover (s 20) nor regrowth (s 19) (at [34] and [35] respectively);
6. that 14 ha of the clearing was for a routine agricultural management activity ("RAMA"), namely, the construction, operation and maintenance of rural infrastructure (ss 11(1) and 22 of the NVA) (at [46]);
7. that at the time of the clearing, Lippia was a locally controlled weed and was subject to a weed control order (at [53]);
8. that Mr Hudson's clearing did not constitute, however, the removal of a noxious weed as required under a weed control order, and therefore, the removal of the Lippia was not a RAMA (at [55]):
9. that, in any event, the clearing exceeded the minimum extent necessary for the carrying out of the activity (s 22(2)(a) of the NVA) (at [56]); and
10. that Ms Savage had not authorised the clearing (at [58]). In this regard, Lloyd J stated that (at [58]):
58 Ms Savage accepts that she and Mr Hudson had a number of discussions about whether and to what extent Mr Hudson could clear vegetation on Yarrol. Ms Savage contemporaneously recorded the advice she gave on the subject in correspondence sent by her to Mr Hudson. Ms Savage's letter of 9 December 2004 to Mr Hudson included the following statement: "However, native trees and shrubs of greater than ten years of age must be retained on the land". In her letter to Mr and Mrs Hudson of 13 February 2006 regarding routine agricultural management activities on Yarrol, Ms Savage states (inter alia): "On all areas, remnant trees ie, trees that have grown prior to 1/1/1990 must be retained". I reject the submission that Ms Savage authorised the clearing that occurred. The evidence is to the contrary.
Proceeding Before the Court of Criminal Appeal
On 3 March 2009, Mr Hudson filed a notice of appeal against the conviction and sentence in the Court of Criminal Appeal pursuant to s 5AB of the Criminal Appeal Act 1912 ("the CAA").
The first ground of appeal advanced by Mr Hudson was that a miscarriage of justice had occurred in the primary proceedings as a result of the Court's acquiescence to Mr Hudson's application that he be represented by a legally unqualified person, namely, Mr Walters. Mr Hudson argued that the right of appearance of a non-qualified agent provided for by s 63(1) of the Land and Environment Court Act 1979 ("the LEC Act") did not extend to proceedings in Class 5 of the Court's jurisdiction, and that the Court had no residual discretion to allow Mr Walters to appear.
The second ground of appeal was that a miscarriage of justice had occurred because Mr Walters had failed to mount a coherent legal defence on behalf of Mr Hudson, namely, that of honest and reasonable mistake of fact. That is to say, that Mr Hudson had honestly and reasonably believed, on the basis of advice from a catchment officer at the Border Rivers-Gwydir Catchment Management Authority ("the CMA"), Ms Elizabeth Savage, that he had been authorised by the CMA to clear the land in the manner in which he did.
On 11 May 2012, the Court of Criminal Appeal dismissed the appeal insofar as it related to Mr Hudson's conviction for both offences (Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207).
In response to the first ground of appeal, the Court found, however, that the primary judge had not erred by permitting Mr Walters to appear in circumstances where no objection had been taken by either party (at [68]). The Court of Criminal Appeal also held that, properly construed, s 63 of the LEC Act did not prohibit the Court granting leave for an agent to appear in Class 5 proceedings. That section's purpose was not to impose a limitation on the power of the Court to regulate its own proceedings (at [65]).
In relation to the second ground of appeal, the Court of Criminal Appeal found that to the extent there was a mistake on the part of Mr Hudson in relation to what he believed he was allowed to clear, it was a mistake of law, and not fact (at [76]).
But the Court of Criminal Appeal quashed the penalties imposed by Lloyd J. The Court held that the primary judge had erred in failing to ensure that the part of the proceedings that had dealt with the question of sentence had been conducted fairly by Mr Walters, and that as a result Mr Hudson had lost the opportunity to put before the Court matters which could have mitigated the penalty imposed (at [98]). That is to say, in circumstances where Mr Walters' submissions on sentence were "plainly inept" and should have "confirmed to the trial judge…that Mr Walters was quite incapable of representing the appellant", the judge should have "ensured that the appellant knew that he was exposed to significant pecuniary penalties, and of his right to make submissions and to adduce evidence in mitigation of the penalty" (at [94]-[95]). The Court of Criminal Appeal held that there was a real prospect that this error had resulted in a miscarriage of justice.
Sentencing Principles
The purposes of sentencing an offender are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"). Relevant sub-sections of that Act include:
(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.
The sentence imposed by the Court must reflect, and be proportionate to, both the objective elements of the offence and the subjective factors relating to Mr Hudson and his conduct (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 ("Orica") at [80]; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 at [21]; Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).
The instinctive synthesis method is the appropriate approach to sentencing. That is, a weighing up of all of the relevant factors of the offence which act to aggravate and mitigate the sentence imposed (Orica at [81]; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
Section 21A of the CSPA lists relevant subjective factors that may be taken into account on sentencing, including aggravating factors at s 21A(2) and mitigating factors at s 21A(3). Factors potentially applicable to these proceedings include ss 21A(2)(g) and (o) and 21A(3)(e), (f), (g), (h) and (i).
In sentencing proceedings, a Court may not take into account any factor that is adverse to the defendant unless it have been proven beyond reasonable doubt. By contrast, factors in the defendant's favour may be taken into account if they can be proven on the balance of probabilities (R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]; Gore v The Queen; Hunter v The Queen [2010] NSWCCA; (2010) 208 A Crim R 353 at [27] and [105]).
When assessing the objective gravity of an offence, the Court establishes the upper limit of the appropriate penalty but also the lower limit beneath which the penalty should not go. Mitigating factors should not produce a sentence that fails to reflect the gravity of the offending incident or the objectives of punishment, which include both retribution and deterrence (Orica at [87], Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [44] and Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140]).
Objective Circumstances of the Offences
The principal factor to which the Court must have regard is the objective gravity of the offence. This involves a consideration of the following factors: the nature of the offences; the maximum penalty for the offences; the environmental harm caused by the commission of the offences; Mr Hudson's state of mind in committing the offences; Mr Hudson's reasons for committing the offences; the foreseeability of the risk of harm to the environment by the commission of the offences; the practical measures available to Mr Hudson to avoid harm to the environment; and Mr Hudson's control over the causes of harm (Orica at [93]; Bentley at [163]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]).
Nature of the Offences
Objective and subjective factors must be considered in the context of the legislative framework which establishes the offences (Orica at [88]; Bentley at [169] and Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19 at [53]). A consideration of the objects of that statute helps to elucidate the reasons for enacting the offence (Orica at [89]; Rae at [15]; Connell v Santos NSW Pty Ltd [2014] NSWLEC 1; (2014) 199 LGERA 84 at [59]).
The extent to which the incident offends against the objectives enshrined in the Act, having regard to the offence's maximum penalty, is a major consideration in assessing the objective seriousness of an offence (Rae at [15] and Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89]).
The objects in s 3 of the NVA are:
(a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and
(b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and
(c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and
(d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and
(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,
in accordance with the principles of ecologically sustainable development.
Unlawful Clearing Offence
In Rae, Preston J explained how the clearing of native vegetation without consent is contrary to the objectives of the NVA (at [17]-[19]):
17 One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining consent from the regulatory authority. The application for consent involves undertaking an environmental impact assessment of the clearing for which consent is sought. The statutory provisions requiring prior environmental impact assessment and consent are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including ecologically sustainable development. The discussion in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [65]-[71], [168], [169], although concerning the regulatory scheme under the Threatened Species Conservation Act 1995 and the National Parks and Wildlife Act 1974, is equally apposite to the Native Vegetation Act 2003.
18 There is a need for the upholding of the regulatory system under the Act. The system depends on persons, first, taking steps to ascertain when consent is required to clear native vegetation, secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna: see Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349, 355-356 at [72]-[77]; Garrett v Freeman (No. 5) [2009] NSWLEC 1 at [68]; (2009) 164 LGERA 287; Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [76]; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at 299 [46].
19 Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.
In short, the central mischief that the NVA seeks to avoid is the clearing of native vegetation without the permission of the relevant authority in order to preserve and protect it (see also Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 at [14]).
The actions of Mr Hudson in directing his contractors to clear native vegetation on Yarrol without first applying for, and obtaining, development consent, or a PVP, offends against, and erodes the attainment of, the legislative objectives expressed in s 3 of the NVA (Humphries at [16]). The actions of Mr Hudson are, for example, plainly inconsistent with the principles of ecologically sustainable development (Rae at [20], Bentley at [67] - [71], [169] - [171] and Humphries at [19]).
Notice Offence
The offence created by s 36(4) of the NVA serves the important purpose of aiding regulatory authorities with their investigations into potential and actual offences against the Act. The section requires the timely provision of information to authorities so that they are best able to manage and ameliorate the harm caused by the commission of the offence, prevent the commission of further harm, and investigate and prosecute breaches of the NVA. Failing to provide this information is an impediment to the efficient and effective operation of the NVA and is incompatible with the statutory scheme and the objects of the Act.
As was stated by the Court in Cessnock City Council v Quintaz Pty Ltd ([2010] NSWLEC 3; (2010) 172 LGERA 52 at [66], quoted with approval in D'Anastai v Environment Protection Authority [2010] NSWLEC 260; (2010) 181 LGERA 412 at [45]):
66 …The purpose of provisions of the character of s 193 is to enable an authorised regulatory officer to carry out an investigation in the nature of an inquiry in connection with any matter within the responsibility of the authority that appointed the officer (Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373 at [30]-[39].
Unlawful Clearing Offence
The environmental harm caused by the commission of an environmental offence is a fundamental consideration when determining the objective seriousness of that offence.
The concept of harm is broad and includes the potential or risk of harm, and not just actual harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [175]). Harm can be direct, indirect, or cumulative, and "activities that contribute incrementally to the gradual deterioration of the environment… should also be treated seriously" (Waste Recycling at [147]).
Harm can include harm to the environment and its ecology. Harm to fauna and flora not only adversely affects that specific animal or plant, it also affects other biota that have ecological relationships to that animal or plant (Waste Recycling at [146] and Bentley at [174]). If the environmental harm is severe, this can be an aggravating factor under s 21A(2)(g) of the CSPA, which increases the objective seriousness of the offence.
The prosecutor relied on a report produced by Dr Nadolny dated 5 June 2008, who gave evidence as to the environmental harm caused by the clearing. Most of the content of this report was not disputed by Mr Hudson, who did not require him for cross-examination.
It was agreed that:
1. an examination of aerial photographs of Yarrol taken between 1967 and 2007 revealed that between 1967 and 2005 (and with the exception of a small area which would appear to have been cleared between 1977 and 1985), no clearing was observed to have occurred on the portion of Yarrol that was cleared by Mr Hudson in late 2006 and/or early 2007;
2. scientific investigations of the cleared area undertaken by Dr Nadolny and Mr Todd Soderquist (an ecologist employed by DECC) revealed that the vegetation cleared from Yarrol consisted of native woody vegetation and native trees of various sizes and ages. The main species of fallen trees on the cleared area were Coolabah, Acacia stenophylla ("River Cooba") and Belah;
3. the threatened species recorded on the property during a visit on 29-31 May 2008 that were dependent on hollow-bearing trees (generally eucalypts), included the Glossy Black Cockatoo, Barking Owl, Turquoise Parrot, Brown Treecreeper and Little Pied Bat. However, several other hollow-dependent threatened species could also have been present at the site, as well as many taxa that were not currently listed as threatened;
4. the loss of hollow-bearing trees causes damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to inhabit, with prominent hollows mainly confined to trees over a hundred years old. The Glossy Black Cockatoo, in particular, requires very large hollows that will only be present in very old large trees, generally over 60 cm diameter of breast height;
5. the loss of food resources included the loss of specific resources required by individual species, such as the loss of casuarina seeds, which are a major food source of Glossy Black Cockatoos, caused by partial clearing of the stands of Belah, and the loss of small arboreal mammals, which are eaten by the Barking Owl. In addition, there was also a loss of more general resources, including a large diversity of insects dependent on the cleared eucalypts, acacias and Belahs;
6. small trees such as River Coobas, produce protection for small woodland birds;
7. parts of the cleared area were also used as rookery for several important species of waterfowl including the:
1. Straw-necked Ibis;
2. Sacred Ibis;
3. Glossy Ibis;
4. Intermediate Egret; and
5. Nankeen Night Heron;
1. the Straw-necked Ibis, while breeding in restricted areas of wetlands, such as those present on Yarrol, range widely and are prominent birds on the tablelands and slopes of New South Wales;
2. a significant proportion of the cleared area contained vegetation that fitted the description of an endangered ecological community ("EEC"), namely, the Coolabah-Black Box Woodland of the northern riverine plains of the Darling Riverine Plains and Brigalow Belt South bioregions; and
3. while the under-storey in the EEC had been degraded by an infestation of Lippia, the over-storey vegetation had been in relatively good condition prior to the clearing. In particular, the over-storey Coolabah trees were generally healthy and had comprised a fair proportion of large old trees with hollows.
Notice Offence
While the failure to comply with a notice offence did not cause any actual environmental harm, it nonetheless served to undermine the efficacy of the regulatory system enshrined in the NVA (Environment Protection Authority v Orica Australia Pty Ltd (the Hexavalent Chromium Incident) [2014] NSWLEC 106 at [166]).
However, on the evidence before me I find that the commission of this offence caused environmental harm at the lower end of the spectrum.
Unlawful Clearing Offence
The issue of whether the principle in De Simoni was applicable was again agitated by the prosecutor. At the risk of repetition, s 118D of the NPWA creates an offence if a person knowingly damages habitat of a threatened species, endangered population or EEC. Given the potential term of imprisonment for a contravention of s 118D of the NPWA (one year), the offence is plainly more serious than breaching s 12 of the NVA.
However, because, as the prosecutor conceded, and as the evidence discloses, Mr Hudson did not intentionally, or knowingly, engage in the unlawful clearing of native vegetation on Yarrol, the principle has, in my view, no application in the present case.
Rather, the prosecutor submitted, Mr Hudson committed the offence negligently or recklessly.
Negligence in a criminal context means more than a breach of duty of care. To amount to criminal negligence (Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81]):
81 …the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).
And an offender's conduct will be classified as reckless if he or she is put on notice, in the sense that he or she believes or suspects, that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSLEC 150 at [141]).
Mr Hudson submitted that he had cleared the land under the mistaken belief that he had permission from the CMA and/or Ms Savage to do so for the purposes of removing the Lippia infestation, that is to say, innocently. This belief was primarily based on discussions between himself and Ms Savage about the proposed clearing prior to it taking place, her inspection of Yarrol, and the documents she provided to him on 9 January and 13 February 2006, which he believed constituted authorisation from her to clear the land in the manner in which he did. The evidence of Mr Hudson's clearing contractor, Mr Keenan, was said to corroborate his version of events and his mental state. The management agreement between Mr Hudson and Mr Sattler was also submitted to be consistent with his belief in Ms Savage's authority to allow clearing of native vegetation.
Control Over the Causes of the Harm
In sentencing, the Court must take into account the extent to which Mr Hudson had control over the causes of the commission of the offences (Rae at [53]; Humphries [12] and [48]; Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 at [41] and [79] and Corbyn at [16] and [37]).
In respect of both offences, at all times Mr Hudson had control over acts that gave rise to the contraventions of the NVA.
In respect of the breach of s 12 of the NVA, at all times it was Mr Hudson who instructed the contractors where to clear. At all times it was Mr Hudson who was responsible for their supervision. While clearing may have occurred that was "a bit heavy", this does not detract from a finding that Mr Hudson had control over the acts that gave rise to the commission of the offence. The evidence does not disclose, for example, that Mr Hudson has been prosecuted in respect of areas that he did not instruct his contractors to clear or expressly prohibited them from clearing.
In respect of the offence against s 36(4) of the NVA, despite Mr Hudson acting on the advice of Mr Walters, it was nevertheless Mr Hudson's decision not to comply with the Notice.
Subjective Considerations
As stated above, the Court must take into account those factors particular to Mr Hudson that act to either mitigate or aggravate the sentence imposed (s 21A of the CSPA).
There no subjective aggravating factors present.
The relevant subjective mitigating factors to be considered within the limits set by the objective gravity of the offence are (s 21A(3) of the CSPA):
1. whether Mr Hudson has a prior criminal record (s 21A(3)(e) of the CSPA);
2. whether Mr Hudson is of good character (s 21A(3)(f) of the CSPA);
3. whether Mr Hudson is unlikely to re-offend (s 21A(3)(g) of the CSPA);
4. whether Mr Hudson has demonstrated remorse for the commission of the offences (s 21A(3)(i) of the CSPA);
5. whether, and when, Mr Hudson entered guilty pleas (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]);
6. whether Mr Hudson provided assistance to DECC in its investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA);
7. whether Mr Hudson has agreed to pay the prosecutor's legal and investigation costs; and
8. the capacity of Mr Hudson to pay the monetary penalty imposed on him having regard to s 6 of the Fines Act 1996.
Agreement to Pay the Prosecutor's Costs
The Court is empowered to order an offender to pay the prosecutor's legal costs of the proceedings pursuant to ss 257B and 257G of the CPA.
The payment of the prosecutor's costs is viewed as an aspect of punishment and should be considered in the determination of the appropriate penalty as a factor that acts to reduce the penalty (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]; Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 225 A Crim R 113 at [248] and Rae at [68]).
Mr Hudson has not, in respect of these remitted sentencing proceedings, agreed to pay the prosecutor's costs.
The question of which party should be liable to pay for the costs attributable to the successful appeal on sentence in the Court of Criminal Appeal is discussed in further detail below.
Extra-Curial Punishment
The Court may take into account extra-curial punishment suffered as a result of the commission of an offence (Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at [62]-[63]; Alameddine v The Queen [2006] NSWCCA 317 at [25]-[27] and Cessnock City Council v Quintaz at [115]).
As James J explained in Daetz (at [62]):
62 … while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.
It was Mr Hudson's submission that he had suffered negative publicity and economic loss as a result of the commission of the offences that should be taken into account in mitigation of his sentence.
Mr Hudson submitted that as a result of the "damaging" publicity that occurred after the commission of the offences he had suffered "a great deal of emotional anxiety and anguish". He was, for example, first made aware of the charges against him from the local radio. Examples of the negative publicity included 18 news articles and press releases. For example, one report by the ABC suggested that by his actions he had maligned the reputation of all farmers and their willingness to care for the environment. In his second affidavit, Mr Hudson attested to the receipt of approximately 300 pieces of "hate mail".
Negative publicity was considered to be a factor in mitigation in Garrett On Behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492. In that decision, Pain J took into account (together with other factors) negative publicity in affording a defendant a substantial discount in respect of the fine that she intended to impose (at [60]). Her Honour accepted that the publicity had negatively affected his business and personal life.
Consistency in Sentencing
Another relevant consideration is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offences in question in these proceedings (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence having regard to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that forms part of that range (Gittany at [182] quoting R v Morgan (1993) 70 A Crim R 368 at 371).
Of course care must be taken because each case is different and a sentence imposed in one case does not demonstrate the limits of a sentencing judge's discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365; Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).
The pattern of sentencing against which the present case falls to be determined is established through an examination of the recent sentencing cases dealing with breaches of ss 12 and 36(4) of the NVA, or, where appropriate, analogous offences.
Sentencing Trends for Native Vegetation Clearing Offences
A survey of some of the more recent decisions of this Court for the commission of the unlawful clearing offence include the following cases:
1. in Turnbull, the defendant was fined $140,000 for the unlawful clearing of eight species of native vegetation, one of which was an EEC, over an area of 38.7ha. The clearing also involved the removal of trees which provided habitat for koala colonies. The environmental harm was deemed to be significant, the offence was committed recklessly, the clearing was motivated by profit, the defendant demonstrated no remorse and the utilitarian value of the plea of guilty was reduced by his conduct during the sentence hearing;
2. in Humphries, a monetary penalty of $67,500 was imposed, together with an order for costs, on the defendant. Mr Humphries had deliberately unlawfully cleared nearly all of the native vegetation within 89 ha, including an EEC, in order to increase the profitability of his land. The commission of the offence caused actual environmental harm of medium seriousness. Mr Humphries pleaded guilty to the offence and expressed genuine remorse for his actions. He cooperated fully with the prosecuting authorities;
3. Chief Executive of Office of Environment and Heritage v Newbigging [2013] NSWLEC 144 concerned the unlawful clearing of at least 60.06 ha, including 834 trees. The environmental harm was substantial. The defendant pleaded guilty but his cooperation with the authorities was equivocal and there was little demonstration of remorse. The defendant was order to pay of $112,000 plus costs;
4. in Chief-Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129, 65ha of native vegetation, which provided habitat for a range of fauna, was cleared for commercial gain and the offence was found to be of moderate objective gravity. The defendant entered an early guilty plea, but did not show any remorse or make any attempt to remediate the land. The defendant was penalised $120,000;
5. Kennedy involved the clearing of 32 ha, resulting in moderate environmental harm. The clearing was carried out intentionally and for the purposes of commercial gain, but was later remediated. The defendant expressed very little remorse, did not co-operate with authorities, and was penalised $40,000;
6. in Corbyn the unlawful clearing of 7.1 ha caused moderate environmental harm. The offence was innocently committed. Most of the relevant subjective factors in mitigation were present, although the defendant did not express remorse. A fine of $80,000 was imposed;
7. in Rummery, the clearing of 289 ha caused moderate to substantial environmental harm because of the extensive tree removal and the adverse impact on an EEC. The clearing was not for commercial gain. The defendant expressed genuine remorse, co-operated with authorities, had no prior convictions, was of good character, was unlikely to re-offend and pleaded guilty at the second mention of the matter. He was penalised $80,040, which was reduced on appeal to $66,000 in Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428;
8. in Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149, the defendant company cleared 38 ha of mature to late mature vegetation, of which 2 ha was listed as an EEC and in which there were likely to be threatened species of fauna. The area was deliberately cleared for commercial gain. There was no evidence of any contrition or remorse. The defendant entered no plea, did not appear in Court, but had no prior convictions. The offence was found to be of high objective gravity. The defendant was fined $200,000;
9. in Walker Corporation (No 4) [2011] NSWLEC 119, the defendant was fined $200,000 for clearing of 23 ha, in which there were seven species of indigenous vegetation and two EECs. The environmental harm was of moderate seriousness. The defendant had no prior convictions, did not plead guilty, expressed no contrition or remorse, and provided no assistance to the authorities;
10. Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 involved the unlawful clearing of 166 ha, in which there were two vegetation communities present and the habitat of threatened species. The vegetation cleared was of high ecological value. Mr Linklater expressed considerable remorse for the clearing, was of good character, pleaded guilty, did not commit the offence for commercial gain, provided assistance to the authorities and was found to be unlikely to re-offend. He was ordered to pay a fine of $82,000;
11. in Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200, the clearing of 22 ha was found to be selective in nature and of low to moderate objective gravity. The vegetation was of high conservation value at a local scale, but of low conservation value at a landscape scale. The corporate defendant pleaded guilty, co-operated with authorities, was of good character, and expressed remorse. A penalty of $30,150 was imposed;
12. the clearing offence was deemed to be of low objective gravity in Director-General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102. In that case 29 ha were cleared, and while there was a substantial environmental impact caused by the commission of the offence, the long-term impact was mitigated by the presence of similar vegetation nearby. The defendant's culpability was reduced because its instructions had not been followed in carrying out the clearing. It also had very limited capacity to pay a fine. It was fined $5,000;
13. in Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100; (2010) 173 LGERA 366, a $100,000 penalty was imposed for a clearing offence classified as low to moderate objective gravity. An area of 10 ha was cleared. The defendant acted recklessly, did not plead guilty, but had no prior convictions and expressed some remorse;
14. the decision of Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 concerned the clearing of 12 ha of native vegetation, which caused substantial environmental harm, but was mitigated by the retention of canopy trees. The defendant was a bankrupt, spoke limited English, was elderly, and had a very limited capacity to pay a substantial penalty. He had no prior convictions, pleaded guilty, and was otherwise of good character. He was fined $5,000;
15. in Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 a single species of vegetation was cleared resulting in reasonably substantial levels of environmental harm. The clearing was undertaken for commercial gain, but the defendants' subjective circumstances were in the defendants' favour. The culpability was low became the defendants did not know that the clearing required development consent. The two defendant landholders and the one defendant clearing contractor were fined $22,000 each; and
16. in Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 the defendant deliberately cleared 215 ha for commercial gain. There was a high degree of environmental harm, the harm was foreseeable and the defendant had control over it. However, the defendant pleaded guilty, had no prior convictions, expressed remorse and assisted the authorities wherever possible. A fine of $160,000 was imposed.
The CAA does not define the term "penalty". It does, however, defines the term "sentence" in s 2 as including (emphasis added):
Sentence means:
(a) any order made by the court of trial on convicting a person of an offence, including:
(i) any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order or home detention order and any sentence of imprisonment whose execution is suspended), and
(ii) any community service order, and
(iii) any good behaviour bond, and
(iv) any fine,
imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999…
…
(h) any order for the payment of costs made by the court of trial in respect of the person under Division 3 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986…
In respect of s 2(1)(h) of the CAA, the costs order in the primary proceedings was made pursuant to s 257B of CPA, which is contained in Div 4 of Pt 5 of Ch 4 of that Act, and not Div 3, the latter of which is concerned with "Trial procedure". Cost can be ordered by a Court under Div 3 in circumstances where a prosecutor does not appear but the accused does. There appears to be no provision to order costs against an accused under Div 3.
The CSPA does not define what a "penalty" is. Rather, it equates the meaning of "sentence" with that of "penalty" in s 3 of that Act (emphasis added):
sentence means:
(a) when used as a noun, the penalty imposed for an offence, and
(b) when used as a verb, to impose a penalty for an offence.
In Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422, the Court of Criminal Appeal was required to determine whether a publication order was included within the definition of "sentence" in s 5AA of the CAA, and therefore, amenable to appeal under that provision. Relevantly, for present purposes, the Court of Criminal Appeal, first, drew a distinction between a "sentence", which included a publication order, but not a costs order (as specified in s 5AA(1)(b) and (c) of the CAA) (at [112]). And second, held that, as defined, a "sentence" included any order, including a publication order, made by a court upon conviction (at [112]):
112 The first, and most simply exposed, flaw lies in overlooking the opening words of the definition of "sentence". A "sentence" is "any order made by the court of trial on convicting a person of an offence". The definition could stop there. The detailed individual subparagraphs that follow are illustrative of the kinds of orders that are included. They do not mark out the boundaries of the definition. The publication order was "an order made by the court of trial on convicting [the appellant] of the offence". It is therefore a "sentence" (or a component of a sentence) within s 5AA.
Applying this logic, a "sentence" would include any costs order made by the court appealed from.
In Harris, the costs order made by this Court at first instance was expressly set aside by the Court of Criminal Appeal because the appellant enjoyed a "very significant" measure of success in his appeal but by virtue of s 17(1) of the CAA he was not entitled to recover any costs of the appeal (at [103]).
In this instance, however, the Court of Criminal Appeal neither set aside the "sentence" of Lloyd J, nor the separate costs order made by him. Instead, as noted above, it set aside the "penalties" ordered by his Honour. Does, therefore, this encompass the costs order made his Honour?
Mindful of the admonishment of using definitions in one statute (that of "sentence" in the CSPA) as aids in the interpretation of another statute (viz, the term "sentence" in the CPA) to, in turn, assist in the proper construction of the scope of remitter orders of an appellate court, in my opinion, the better view is that by quashing the "penalties" ordered by Lloyd J, the Court of Appeal intended to include the costs order made by his Honour. This is because the costs were part of the "question of sentence" remitted to this Court for determination. The "sentence" included the costs and, consistently with the statutory definitions given to that word in the CAA and the CPA, the penalties imposed by Lloyd J.
My conclusion is reinforced by the proposition that although costs are ordered not to punish, but to compensate (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534), in criminal proceedings the payment of a prosecutor's costs may nevertheless be seen as an aspect of the punishment or penalty imposed by a Court.
Thus in Barnes at issue was whether the penalty imposed by the court below was manifestly inadequate. The Court of Criminal Appeal held that the amount of costs payable by the defendant could be taken into account as part of the penalty imposed (at [88], emphasis added):
As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher.
The case stands for the principle that the payment of costs by a defendant is an aspect of punishment and can be considered by a court when fixing a monetary penalty (Harris at [100] and Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche [2013] NSWLEC 191 at [63]).
For these reasons, I am of the opinion that the Court of Criminal Appeal set aside the costs order made by Lloyd J when it quashed the "penalties" imposed by him.
However, if I am wrong, and it did not set aside this order, there is nothing preventing this Court, on the sentence remitter, vacating the costs order made by Lloyd J and remaking it. Therefore, in case the analysis above is incorrect, and as a matter of prudence, this is what I propose to do.
In terms of an appropriate costs order in respect of the proceedings before Lloyd J, the prosecutor is correct in its observation that very little of the time spent in those proceedings was occupied by the question of sentence. But having noted this, the Court is equally mindful of the fact that Mr Hudson enjoyed a measure of success before the Court of Criminal Appeal on the question of sentence, for which, by reason of s 17(1) of the CAA, no costs order in his favour could be made.
Therefore, doing the best that I can, I consider it to be just and fair that Mr Hudson pay only half of the prosecutor's costs of the proceedings before Lloyd J. In my view, the Court has the power to apportion costs in this manner under s 257B of the CPA, but not under s 215(1) of that Act, which does not apply to summary proceedings before this Court (see s 170(1) of the CPA. Cf Chief Executive, Office of Environment and Heritage v Kyluck Pty Ltd (No 4) [2014] NSWLEC 74 at [105] which, in my respectful opinion, is in error in this regard).
In respect of the notice offence, Lloyd J found that the Notice was personally served on Mr Hudson; that none of the information and documents sought in the Notice had been provided by Mr Hudson; and that Mr Hudson did not give any reasonable excuse as to why he had not complied with the notice (at [68]).
Finally, his Honour made a costs order in favour of the prosecutor, the Director-General of the (then) Department of Environment and Climate Change ("DECC"), pursuant to s 257B of the Criminal Procedure Act 1986 ("the CPA").
Because a preponderance of the evidence sought to be tendered on appeal was inadmissible, the Court of Criminal Appeal was unable to determine an alternative sentence (at [100]-[102]). Therefore, the Court remitted the proceedings to this Court pursuant to s 12(2) of the CAA for the purpose of determining the appropriate penalty to be imposed upon Mr Hudson.
Mr Hudson applied for special leave in the High Court of Australia but the High Court refused to grant such leave, holding that there was no reason to doubt the conclusion of the Court of Criminal Appeal that there had been no miscarriage of justice with respect to conviction because Mr Hudson could not have succeeded in his defence even if he had been competently represented (Hudson v Director-General, Department of Environment and Climate Change and Water [2012] HCA Trans 364).
Importantly, the sentence imposed must also deter both the specific offender and the general community from committing similar environmental offences (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [9] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[141] and [153]-[155]).
Dr Nadolny further stated that while the control of noxious weeds may constitute a RAMA, the damage Mr Hudson had caused to the existing woody vegetation on Yarrol exceeded the requirements of managing Lippia pursuant to that RAMA.
Further, Dr Nadolny opined that most of the Coolabah and Belah felled on the property had grown well before 1990, with many of the Coolabah trees being more than 100 years old.
Overall, Dr Nadolny described the clearing as "extensive" and "broadscale".
Mr Beaman's evidence (at paragraph 56 of his affidavit sworn 25 February 2006) was that "the clearing appeared to be comprehensive with only a handful of trees remaining upright within the cleared landscape." He supported this evidence with a number of photographs taken on 17 May 2007, showing the great majority of the taller woody vegetation having been felled by the clearing, with the exception of a clump of Belah at Billy's Paddock and some trees along the eastern fence line.
Mr Beaman was cross-examined extensively, during which he relevantly stated that:
1. he was not aware that Lippia infested the majority of the land. He was aware, however, of a prevalence of the weed at certain locations an Yarrol, particularly closer to the Gingham Channel but that the Lippia was, at the time that he observed it, "fairly intermittent" (T42.20);
2. Lippia was a noxious weed that was vigorous in the right conditions. Its eradication would be "nice" (T44.36);
3. the management agreement between Mr Hudson and the CMA was never a consent for broad-scale clearing, it was to protect the natural integrity of Yarrol. It was not a PVP, rather its purpose was to implement specific activities that might trial and show positive results in the management of Lippia within sites where it was present (T57.40); and
4. the management agreement was not an offset (T58.01).
The following non-contentious evidence was put before the Court on the characteristics and control of Lippia:
1. that the use of herbicides was not generally recommended to control it because of the undesirable effect it had on other vegetation and because Lippia usually grew near waterways;
2. the recommended control method was the cultivation and planting of crops over two or more years;
3. that it was an aggressive species which could invade intact ungrazed native vegetation. It was an effective competitor for moisture;
4. its impact on the rejuvenation of over-storey native vegetation was not well understood, however, it would be severely slowed or prevented by competition for moisture in dry conditions;
5. the recommended method of management of extensive under-storey of Lippia in land where cultivation was not permitted was cell grazing, but the impact of this method on native vegetation had not been studied. However, trials had shown that native pasture grasses and herbs could respond well to this type of management; and
6. thus the use of cell grazing on Yarrol to reduce the impact of Lippia would also promote the rejuvenation of native vegetation as well as pasture species in the portions infested by the weed.
The prosecutor tendered a number of 'before' (taken on 16 August 2006) and 'after' (taken on 16 May 2007) aerial photographs of the area cleared on Yarrol showing the scale and magnitude of the clearing. The contrast was as stark as it was shocking.
The prosecutor contended that the environmental harm occasioned by the unlawful clearing was very significant because the vegetation cleared possessed unique and rare environmental qualities and provided habitat for a number of important species. In summary, the prosecutor submitted that the extent of actual and potential environmental harm arising from the commission of the offence should be characterised as serious because:
1. the clearing was extensive;
2. the resultant destruction of wildlife habitat included the loss of hollow-bearing trees, which were required for nesting or shelter by many wildlife species, the loss of actual food resources, and the loss of shelter and nesting sites afforded by the trees themselves; and
3. the clearing was likely to have had a severe impact on local populations of many species of wildlife because territorial animals that are displaced by clearing have little prospect of establishing territories in adjacent areas, which are generally already fully occupied. The prosecutor contended that there was substantial scientific evidence to suggest that displaced animals generally did not survive for very long following a clearing event.
By contrast Mr Hudson submitted that:
1. the amount of native vegetation cleared on Yarrol was not 486 ha, rather, when regard was had to various maps and aerial photographs and the space between the trees, was only between 4 to 14 ha. This was because, first, the Lippia had infested most of the land (particularly the area between the trees), which fell within the exemption for groundcover under the NVA, and second, because the wooded vegetation comprised 96% of Black Wattle regrowth and not pre-1990 vegetation;
2. the clearing did not cause much environmental harm because Lippia, a "horrible South American garden weed," had infested the majority of the land, and that his actions were the first steps in an accepted method of remediation; and
3. there was an offset arrangement in the form of the management agreement which involved substantial restoration works to be carried out by Mr Hudson on the land. A total area of 323 ha was restored.
There are substantial difficulties in accepting the submissions of Mr Hudson having regard to the agreed facts. First, there is Mr Beaman's unchallenged evidence that 486 ha of native vegetation was cleared by Mr Hudson on Yarrol. This fact was the subject of agreement by Mr Hudson. It also was agreed by the parties, and found by Lloyd J (at [46]), that of this 486 ha only 14 ha was lawfully cleared pursuant to a RAMA. This leaves, in the absence of any reliable evidence to the contrary presented by Mr Hudson, 472 ha of land that was unlawfully cleared. While there is no doubt that some of the groundcover comprising the 472 ha that was cleared was infested with Lippia (see Lloyd J at [55]), the clearing of this land was found by Lloyd J not to constitute a RAMA because it did not constitute the removal of a noxious weed under the Noxious Weeds Act 1993 (at [55]), and, in any event, exceeded the minimum extent necessary to the carrying out of any RAMA contrary to s 22(2)(a) of the NVA (Lloyd J at [56]). On any view, therefore, and even if the ecological value of the land cleared were disregarded, the unlawful clearing of an area of this size can only be characterised as significant.
Second, there are the opinions expressed by Dr Nadolny's in his report as to the magnitude of the environmental harm caused by the clearing. This evidence was unchallenged by Mr Hudson and was also the subject of agreement. While the eradication of the Lippia was undoubtedly ecologically beneficial, the fact remains that its removal could neither account for, nor justify, the expansive and broad-scale nature of the clearing of native vegetation that was carried out by Mr Hudson. Both Dr Nadolny and Mr Beaman's evidence was consistent in this respect.
Third, the purported offset management agreement relied upon by Mr Hudson was, according to the evidence of Mr Beaman, which I accept, in fact no such thing, and in any event, did not authorise the clearing of native vegetation on Yarrol, irrespective of the extent. That Mr Hudson agreed to undertake restoration works on the land is laudable, but there is no cogent evidence that 323 ha was in fact restored, despite this figure being referred to in the management agreement as the area cleared of Lippia. The works, in effect, comprised no more than the construction of a fence, the clearing of a track (Birdy Rd), the removal of Lippia and the undertaking of other restoration works, for which Mr Hudson was only paid between $11,000 and $3,000. Even on the balance of probabilities, I therefore do not accept that 323 ha was restored.
Fourth, although the recommended control method for Lippia (where feasible) is the cultivation and planting of crops over two or more years, this did not justify the extensive nature of the clearing undertaken on Yarrol, including the clearing of an EEC, large old hollow-bearing trees, smaller trees of varying sizes and ages, and other pre-1990 over-storey vegetation. This conclusion is reinforced by the great number of photographs that were before the Court depicting the felled trees and the barren landscape that was left after the clearing.
Fifth, the evidence relied upon by Mr Hudson to claim that the native vegetation had been so overtaken by Lippia that the majority of the area cleared was not native, or that the majority of the vegetation removed was post-1990 Black Wattle, was unconvincing and did not withstand scrutiny when compared to Dr Nadolny's evidence. In his report, Dr Nadolny gave extensive evidence as to the age and structure of the vegetation that was cleared, which was predominantly pre-1990. He also makes it tolerably clear that the vegetation that was removed was much more than, as Mr Hudson claimed, post-1990 Black Wattle and Lippia, but also comprised native woody groundcover that was native vegetation for the purpose of the Act.
In summary, I have no doubt whatsoever that the extent of the environmental harm caused by the unlawful clearing was severe. Moreover, I have no hesitation in finding that the commission of the offence caused environmental harm at the higher end of the spectrum and, to use the language of 21A(2)(g) of the CSPA, may be characterised as "substantial" and therefore constitutes an aggravating factor pursuant to that provision (Humphries at [30] and Corbyn v Walker Corporation [2012] NSWLEC 75; (2012) 186 LGERA 442 at [25]).
It should be noted for the sake of completeness that the prosecutor submitted that the Court must be careful to avoid traversing the principle in De Simoni. That is to say, the Court must not sentence Mr Hudson for a more serious offence than that with which he has been charged (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389; Orica at [133]; Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273 at [147]; Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101] and Chief Executive of the Office of Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115 at [35]-[39]).
In this context, the prosecutor submitted that taking the clearing of an EEC into account could constitute a breach of the principle because damage to the habitat of threatened species, endangered populations, or EECs, in contravention of s 118D of the National Parks and Wildlife Act 1974 ("NPWA") is a more serious offence (involving, as it does, the possibility of imprisonment), with which Mr Hudson had not been charged.
But, in my opinion, the operation of that principle is not applicable to the determination of the environmental harm caused by the contravention of s 12 of the NVA. Rather, that principle will be relevantly engaged when examining the state of mind of Mr Hudson in the commission of the offences (see Orica at [131]-[138] and the discussion thereat). Thus, in Humphries, where the defendant had cleared native vegetation, including an EEC, contrary to the NVA, the harm to the EEC was a factor that was taken into account in determining the appropriate sentence to be imposed (at [23]-[26]).
Finally, it must be acknowledged that Mr Hudson has undertaken, albeit pursuant to an order to do so, remediation of the cleared land at considerable expense to himself. According to Mr Hudson much of the vegetation unlawfully cleared on Yarrol has regrown. As discussed above, he also entered into the management agreement. But laudable as these initiatives are, they cannot fully repair the damage caused by the clearing, particularly in respect of the pre-1990 over-storey vegetation and the damage to the EEC. For example, it is highly unlikely that these activities could wholly repair the ecological damage to the property caused by the removal of the old large hollow-bearing trees. The damage caused by the unlawful clearing event therefore, in large measure, remains.
Mr Hudson further submitted that he thought that the cleared vegetation was exempt from the operation of s 12(1) of the NVA because the clearing constituted a RAMA and "the subject of a permit" (although he was not able to identify which one).
Finally, Mr Hudson submitted that he believed that Ms Savage had given him permission to clear pre-1990 vegetation as long as he left vegetation corridors for wildlife. In this regard, he relied on the following conversation contained in his first affidavit:
Me: Now Liz, in relation to those areas covered in Lippia that we are going to clear, what about the big trees? There are some big trees in there?
Ms Savage: It's not like it used to be. Now we prefer that you take out the single big trees and leave a corridor of the old and young trees together instead to compensate for the older trees you take out.
Me: I agree to leave a corridor to compensate for the trees removed.
Ms Savage: That's fine, that's approved.
The prosecutor submitted that Mr Hudson's evidence with regard to his mental state should be treated with caution, based on "inconsistencies" (adverted to above) in his evidence.
Mr Hudson's evidence as to his state of mind at the time of the commission of the unlawful clearing offence should not be accepted. Although it has been Mr Hudson's consistent evidence that he believed that he was given permission to clear the land in the manner he did in order to eradicate the Lippia, this stated belief is wholly inconsistent with a considerable body of evidence before the Court, including the fact that Mr Hudson was repeatedly told that while he could clear the Lippia, he had to retain the pre-1990 native vegetation that was plainly present on his property.
First, there is ample evidence that Ms Savage repeatedly communicated to Mr Hudson that he was only permitted to clear regrowth, that is to say, post-1990 vegetation. This was done orally on many occasions (for example, conversations with him concerning the need to retain the Belah and Coolabah as they were all likely to be pre-1990 growth) and in writing (for example, the letters sent to Mr Hudson by Ms Savage on 13 February 2006, and the information sheets sent to Mr Hudson by her on 30 November 2006).
Second, there is no doubt that Mr Hudson was aware of the regrowth exemption under the NVA and the need to retain pre-1990 vegetation that was present on Yarrol. His explanation that he had taken appropriate precautions by asking "old hands", or by identifying himself which trees were to be retained, is fanciful and ought not, even on the balance of probabilities, be believed. His statement in cross-examination that Ms Savage had told him that the vegetation on his property was post-1990 is inconsistent with almost all other communications between himself and Ms Savage. I do not accept it.
Third, the conversation that Mr Hudson claims to have had with Ms Savage on 9 January 2006 where she gave him "permission" to clear remnant trees provided he left corridors of vegetation, is inconsistent with other statements made by her to him that he was specifically not to clear the pre-1990 trees. It is also inconsistent with Mr Hudson's oral evidence that there were no discussions between himself and Ms Savage about leaving vegetation corridors in January 2006. Again, on the balance of probabilities, I do not accept that it occurred.
Finally, I am of the opinion that the management agreement with Mr Sattler does not assist Mr Hudson. It does no more than confirm that Mr Hudson was in a mutual arrangement with Mr Sattler, a contractor for the CMA, to build fences, clear tracks, manage the Lippia, and to otherwise make improvements to the land in exchange for financial compensation. There is nothing about its terms or its context that demonstrates that Mr Hudson believed that he had permission to clear pre-1990 over-storey vegetation.
In my opinion, Mr Hudson either cleared the land recklessly insofar as he knew that the pre-1990 native growth could not to be cleared absent a consent, or PVP, but he nevertheless proceeded to bulldoze his property without undertaking the necessary precautions or enquiries to ensure that the vegetation he was removing was post-1990 regrowth as he asserted. Or, in the alternative, the evidence equally discloses that he cleared the land negligently, in that his degree of carelessness in removing the pre-1990 native vegetation at the same time as clearing the Lippia, demonstrated a complete indifference to the obvious risk that by engaging in broad scale clearing of the type and extent that he did, he would contravene s 12 of the NVA.
Either way, the objective seriousness of this offence is increased.
In the present case I find that the negative publicity and hate mail received by Mr Hudson is a form of extra-curial punishment that should be taken into account in mitigation of his sentence.
Mr Hudson also submitted that the economic "loss" that he has incurred as a result of his land being "locked up" while it was being remediated should also be taken into account in mitigation of his sentence, together with the cost of the remediation.
This argument should be rejected. Future profits lost as a result of the commission of an offence are generally not taken into account because offenders should not profit from the proceeds of their crimes (Garrett v Williams at [121]; Environment Protection Authority v Gardner [1997] NSWLEC 169 at 1; Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 at [97]-[99], [149] and [167]; Bentley at [238], [246] and [247]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [70] and Gittany at [141]). This is precisely what Mr Hudson is claiming here.
And in any event, as discussed above, given Mr Hudson's general unreliability as a witness, I do not accept, without objective corroboration, the amount of financial loss made by him. No underlying documents were provided by Mr Hudson to verify either the claims or their causal nexus to the commission of the offences (Christodoulou v R [2008] NSWCCA 102 and Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593). I therefore have not taken these asserted losses into account as a factor in mitigation.
In determining the appropriate sentence for the unlawful clearing offence, I have considered the sentences imposed by these decisions (and the decisions referred to and discussed within those cases) and had regard to the particular facts and circumstances of the offences and the offenders involved.