Director-General, Department of Environment and Climate Change v Hudson

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.

[1997] NSWLEC 169

[2005] HCA 25

[1998] HCA 57

[2009] SASC 130

[1988] HCA 70

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2001) 115 LGERA 304

(2006) 146 LGERA 349

(1993) 32 NSWLR 683

(2010) 172 LGERA 52

(2014) 199 LGERA 84