Director-General, Department of Environment and Climate Change v Mario Mura

Land and Environment Court (NSW)|2009-12-14|Before: Biscoe J

CITATION : Director-General, Department of Environment and Climate Change v Mario Mura [2009] NSWLEC 233

PROSECUTOR: Director-General, Department of Environment and Climate Change PARTIES : DEFENDANT: Mario Mura

KEY ISSUES: ENVIRONMENTAL OFFENCES :- sentence for clearing of native vegetation contrary to s 12(1) Native Vegetation Act 2003

Blue Mountains City Council v Carlon [2008] NSWLEC 296 Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4, (2009) 165 LGERA 256 CASES CITED: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137, (2009) 168 LGERA 121 Director-General, Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 Environmental Protection Authority v Buchanan (No 2) [2009] NSWLEC 31, (2009) 165 LGERA 383 R v Thomson [2000] NSWCCA 309, (2000) 49 NSWLR 383

PROSECUTOR: Mr T Howard SOLICITORS Department of Environment, Climate Change and Water LEGAL REPRESENTATIVES: DEFENDANT: Mr M Mura, in person SOLICITORS n/a

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE v MARIO MURA

EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant Mr Mario Mura is before the Court for sentencing, having pleaded guilty to an offence against s 12(1) of the Native Vegetation Act 2003 of unlawful clearing of native vegetation. 2 The unlawful clearing occurred on a parcel of rural land approximately 40 hectares in size comprising Lot 31 in DP 1096632, known as No 106, Q7 Lane, Quorrobolong, near Cessnock (the Land). The Land and its approximate boundaries are depicted in an overlaid satellite image in evidence. During the period from about 1 April 2007 to about 24 May 2007, clearing of native vegetation was carried out on the Land without development consent having been granted in accordance with the Native Vegetation Act, in contravention of s 12. The charge is, and Mr Mura admits, that Jack & Bill Issa Pty Ltd carried out the clearing through its contractor, Mr Glen Jones, and that Jack & Bill Issa Pty Ltd authorised that clearing to be carried out. It is alleged that Mr Mura committed the same offence as that corporation pursuant to s 45 by reason of the fact that he was, at the time the offence was committed by the corporation, a director of the corporation.

NATIVE VEGETATION ACT 2003 3 Section 12 of the Native Vegetation Act 2003 provides: " 12 Clearing requiring approval

(1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4." 4 No defence under s 12(3) is raised. 5 "Native vegetation" is defined to include trees (including any sapling or shrub, or any scrub), understorey plants and groundcover: s 6(1).

6 Section 45 provides: " 45 Offences by corporations

(1) If a corporation contravenes, whether by act or omission, any provision of this Act, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) the corporation contravened the provision without the knowledge of the person, or (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations." AGREED FACTS 7 There is an agreed statement of facts which includes the facts set out at [8] - [63] below.

8 During the period from about 10 November 2005 until about June 2008, Mr Mura was a director and secretary of Jack & Bill Issa Pty Ltd. He was also during that period one of two shareholders in the company, owning two of the four issued shares. During that period, Jack Issa was the other director and secretary of that company. Jack Issa was also the other shareholder in the company, owning the other two of the four issued shares.

9 Jack & Bill Issa Pty Ltd purchased the Land sometime in late 2005.

10 In the period before Mr Mura was appointed as a director, Jack & Bill Issa Pty Ltd was a company used by Jack Issa and his brother Bill Issa as a vehicle for carrying out a business of a fruit market. Before Mr Mura was appointed as a director of that company, Jack Issa and Bill Issa had decided to cease carrying out their fruit market business and they intended to wind up the company. 11 At that time, Mr Mura was Jack Issa's accountant. Upon becoming aware that Jack Issa and Bill Issa intended to wind up the company, Mr Mura proposed to Jack Issa that the company be retained as an investment vehicle for Jack Issa and Mr Mura to purchase some land. Mr Mura proposed that he be appointed as a director of the company for that purpose.

12 Jack Issa accepted Mr Mura's proposal.· Consequently, in the period leading up to and including 10 November 2005: + Bill Issa ceased to be a director or office holder of the company and relinquished his shares in the company - effectively terminating his involvement with the company; + Jack Issa remained a director and secretary of the company and retained two of the four issued shares· in the company; and + Mario Mura was appointed as a director and secretary of the company and purchased (or was allocated) two of the four issued shares in the company. 13 The Land previously formed part of a larger landholding which, originally, in around 1850, was the subject of a land grant from the Governor of New South Wales to Duncan Forbes. The Forbes family owned the Land throughout the period from around 1850 until about 2003. 14 Les Forbes and Jennifer Forbes owned the Land in the period from around 1973 to 2003. At that time, the Land formed part of a larger parcel of land which was used by the Forbes for the purpose of grazing cattle (the Forbes Property).

15 During the period from around 1973 to 2003 the Land was not cleared in any substantial way. However, there was selective logging of the Land over that period principally for the purpose of cutting pit props, and in the period from about 1994 to about 1999 some of the timber on the Land was selectively logged both for pit props and to fill part of a timber order for the construction of the Sydney Olympic Games Equestrian Centre. The selective logging of the Forbes Property ceased just before the 2000 Sydney Olympics.

16 In about 2003, Les and Jennifer Forbes sold the Land to the Sternbeck's. About a year prior to that sale, in about 2002, the Forbes had also sold the lot of land immediately to the north of the Land to Sternbeck's.

17 In 2005, David Sternbeck sold the Land to Jack and Bill Issa Pty Ltd. The sale of the land from Mr Sternbeck to Jack and Bill Issa Pty Ltd was negotiated between Mr Sternbeck and Mario Mura. Contracts were exchanged on 15 November 2005 and the sale was settled in July 2006. Mr Sternbeck retained ownership of the adjoining lot to the north of the Land.

18 On 3 November 2005, Mr Mura wrote to Cessnock City Council (the CounciI) in relation to his intention to carry out some clearing works on the Land, as follows: "I have recently inspected the above mentioned property with intention to purchase.

The property consists of a total of 40 ha. Approximately 25 ha cleared and posture [sic] improved. The remaining 15 ha are bush with nice growing trees, but there are a lot of fallen old trees and scrubs which I intend to clear all the old trees and other rubbish regrowth and hereby seek your comment.

The purpose to clean the property is firstly to avoid an excessive burn in case of fire; secondly, once the property has been cleaned, it will of course help to carry out cattle grazing.

It is to be clearly understood that I do not intent [sic] to fall any life existing trees." 19 On 1 December 2005 Cessnock City Council replied to Mr Mura, stating: "Under Clause 20 of the Cessnock Local Environmental Plan 1989, rural land clearing for the purpose of agriculture and bushfire hazard reduction does not require the consent of Council. Please be advised, however, that approval from the local Catchment Management Authority may be required under the Native Vegetation act 2003. The Hunter-Central Rivers Catchment Management Authority should be contacted on [phone number inserted] for further advice prior to any clearing being undertaken." 20 Subsequently, on or around 9 March 2006 Mr Mura contacted the Hunter Central Rivers Catchment Authority and spoke with David Alan Russell, a Catchment Officer employed by the Authority. Mr Mura told Mr Russell "l want to clean up the rubbish". Mr Russell understood Mr Mura to mean that he wanted to clear understorey vegetation and proceeded to explain to Mr Mura the biodiversity value of understorey vegetation. Mr Russell and Mr Mura then had a discussion about the meaning of "regrowth" and Mr Russell advised Mr Mura that whether particular vegetation is regrowth or not needs to be determined by the owner of the land or the person carrying out the clearing and he sent Mr Mura a native vegetation kit (i.e. an information package about the regulatory obligations in respect of proposed clearing under the Native Vegetation Act). 21 At some time before March 2006, Mr Mura asked Mr Sternbeck if he would carry out some works to clear dead timber on the Land to reduce the fire hazard. Mr Sternbeck asked Mr Mura if he had permission for the works in response to which Mr Mura told Mr Sternbeck that he had written to Cessnock City Council and the Council had given him permission to clean up the dead timber to reduce the fire hazard. Mr Sternbeck agreed to carry out the works.

22 Mr Sternbeck had an excavator. When asked by Mr Mura to clean up the dead vegetation, Mr Sternbeck explained that it's pretty hard to clean it up without knocking some green vegetation down using a machine that's 3 metres wide.

23 Mr Sternbeck carried out only a small amount of clearing work near the gates at the north eastern boundary to the Land on Q7 lane. After this small amount of work had been carried out near the gate, Mr Mura asked Mr Sternbeck how long the job would take. Mr Sternbeck told Mr Mura the job would take him (Sternbeck) months to complete. Mr Sternbeck also indicated that due to personal circumstances he could no longer carry out the job. Mr Sternbeck told Mr Mura that Mr Glen Jones, the owner of the property adjoining the Land to the south, might be able to carry out the works.

24 Mr Sternbeck then contacted Mr Jones by phone and informed him that Mr Mura wanted some clearing work carried out on the Land and that Mr Mura had a letter from the Council giving permission to do so. Mr Sternbeck asked whether Mr Jones would be interested in doing the job and Mr Jones indicated that he would be interested. 25 Subsequently, sometime in early 2007, Mr Mura phoned Mr Jones and told Mr Jones that he (Mura) had a letter from the Council saying that he could carry out some clearing works to reduce fire risk. Mr Jones confirmed that he knew the block and they then arranged to meet on the Land.

26 In about March 2007 Mr Mura met with Mr Jones on the Land to discuss the works to be carried out by Mr Jones. Mr Mura said that he didn't want too many trees to be knocked down, he wanted all the dead wood and rubbish cleared because it was a fire hazard.

27 Mr Mura asked Mr Jones how he would carry out the job. Mr Jones said he had a bulldozer which he would use. Mr Mura said: "I only want it tidied up so it is not a risk". Mr Jones said "Well, I'll do my best to save what trees I can". Mr Jones told Mr Mura that there would be trees that would have to be cleared, because there is no other way around it.

28 Mr Mura and Mr Jones then agreed that Mr Jones would carry out the works on the Land using his bulldozer for an hourly rate of $110.

29 Mr Mura was aware when it was agreed that these clearing works be carried out that Mr Jones would be using a bulldozer. Mr Mura was aware that the works would involve the removal of some live trees as well as understorey vegetation, groundcover and removal of dead timber.

30 The clearing works which Mr Mura instructed Mr Jones to carry out with his bulldozer comprised: * clearing dead timber and leaf litter over the timbered areas of the Land; * under-scrubbing and clearing over the timbered areas of the Land, leaving large trees; * clearing to allow for the grazing of cattle on the Land; * completely clearing an area of about 80 metres by 100 metres, proposed to form the site of a dwelling house which Mr Mura intended to have built on the Land; and * stacking and burning the cleared timber and vegetation. 31 In instructing Mr Jones to carry out the clearing works on the Land (other than for the proposed site of the dwelling), Mr Mura's intention was to change the nature and structure of the vegetation assemblage on the Land which, prior to the clearing comprised canopy trees, thick scrub including understorey trees and shrubs and ground cover, into a vegetation assemblage comprising canopy trees, but with all the scrub/shrub understorey and ground cover removed with the intention it be replaced by pasture grass which Mr Mura considered to be suitable for the grazing of cattle. The clearing works were carried out for that purpose (ie. for the purpose of making the Land suitable for grazing. The clearing was not carried out for the purpose of internal fencing or roads).

32 Intermittently, during the period between about 1 April 2007 and 24 May 2007, Mr Jones operated a TD15 D6 Bulldozer with a blade 10 foot 3 inches or so wide to carry out these works. He spent about 107 hours carrying out these works. The works were ceased following an inspection of the Land by officers of Cessnock City Council on 25 May 2007.

33 Mr Jones' father in law, Keith O'Hearn, helped Mr Jones carry out the works by pushing up the felled trees, understorey and ground cover into stacks and burning them.

34 Mr Jones has marked with blue diagonal lines on an aerial photograph of the Land the area over which he carried out the clearing works in the period from 1 April 2007 to 24 May 2007. The aerial photograph is in evidence.

35 In carrying out the clearing works with his bulldozer, Mr Jones removed dead timber, understorey vegetation and groundcover. Additionally, although Mr Jones attempted to minimise clearing of, and damage to live canopy trees, the process of using the D6 bulldozer with a blade caused some canopy trees to be pushed over and removed. The cleared vegetation was pushed into stacks roughly about 2.5 metres high and six metres long using a bulldozer and then burned.

36 Mr Jones also carried out clearing works to clear a proposed site for a dwelling which Mr Mura had intended to build on the Land. The way in which Mr Jones cleared this area was different to the way in which he cleared the other timbered areas on the Land. In respect of the proposed dwelling site, and in accordance with Mr Mura's instructions, Mr Jones completely cleared that area, including by removing about half a dozen spotted gums of approximately two foot in girth. 37 In his recorded interview with department investigators on 2 June 2008, Mr Jones identified the area he cleared for the purpose of a house site by a solid square on an aerial photograph which is in evidence.

38 During an interview with Department investigators on 2 June 2008, Mr Jones was shown certain photographs which are in evidence of the area cleared on the Land which he respectively identified as: o indicative of the type of clearing he carried out; o indicative of the stacks he has pushed up using the bulldozer. 39 Mr Jones issued three invoices to Mr Mura for the carrying out of the clearing works on the Land: o an invoice dated 6 April 2007 for $4,000; o an invoice dated 25 April 2007 for a further $5,680 indicating a total fee to that date of $9,680 for 88 hours of bulldozer hire (including Mr Jones' and Mr O'Hearn's labour); and o an invoice dated 27 May 2007 for an additional $2,090 for a further 19 hours of bulldozer hire (including Mr Jones' and Mr O'Hearn's labour). 40 On behalf of Jack & Bill Issa Pty Ltd, Mr Mura paid Mr Jones a total of $8,610 for the work by way of three cheques. Each cheque was paid from the account of Mr Mura's service company Mario Mura Service Pty Ltd: [cheque numbers 1561, 1562 and 1564]. In each case, the cheque butt nominates the payment as being for "land clearing". On cheque butt No 1561 Mr Mura wrote the words, "This is a loan to Jack and Bill Issa to clear land Q7 Private Road, Quarrabolong NSW". 41 Mr Mura paid Mr Jones on behalf of Jack & Bill Issa Pty Ltd.

42 In addition to the initial meeting between Mr Mura and Mr Jones on the Land prior to the works commencing, Mr Mura also met Mr Jones on three separate occasions during the period the clearing works were being carried out: o The first meeting on the Land during the period the works were being carried out was on 8 April 2007. This meeting occurred after Mr Jones had issued his first invoice (dated 6 April 2007). Mr Mura looked at the works which Mr Jones had carried out and instructed Mr Jones to "do a bit more". o The second meeting on the Land during the period the works were being carried out was on 29 April 2007. This meeting occurred after Mr Jones had issued his second invoice (dated 25 April 2007). Mr Mura instructed Mr Jones on this occasion to continue with the works. o The third meeting on the Land during the period the clearing works were being carried out was on 20 May 2007.

43 On 23 May 2007 a neighbour complained to Cessnock City Council about the clearing. 44 On 24 May 2007 Council Officer Christopher Lear attended the north eastern entrance gate to the Land at the private access road Q7 lane. He did not go onto the Land because of the unsuitability of his Ford sedan for the terrain. From the private road entry Mr Lear saw a large amount of selected clearing and approximately six piles of simmering stock piles of knocked down trees.

45 On 25 May 2007 Mr Lear returned to the Land with the Council's "Development Surveillance Officer", Stephen Ryan. Both Mr Lear and Mr Ryan saw selected clearing throughout the property and knocked down trees in several piles. Mr Ryan observed clearing being carried out on the Land. He also saw that some of the cleared trees had been stacked in several piles and were still on fire, a bulldozer was working on the smouldering trees on the property.

46 Mr Lear then contacted Mr Mura on 25 May 2007 and was told that the works were authorised by the Council and the Catchment Management Authority. On 25 May 2007 the alleged breach was reported to the Department of Natural Resources Hunter Region.

47 On 12 July 2007 DECCW investigator Ms Leah Gaye Kelly and Natural Resource Project Officer Mr Robert Gibson inspected the Land. They observed that the Land had been recently cleared. Ms Kelly used a handheld Magellan GPS device to determine the boundaries of the cleared areas by reference to easting and northing grid reference points (GPS waypoints). Ms Kelly also took 53 photographs of the Land which are in evidence.

48 While on the Land on 12 July 2007, Mr Gibson identified and marked out two quadrats each being 20 metres by 20 metres which he has identified respectively as Quadrat 1 and Quadrat 2. The location of each quadrat was identified by Ms Kelly by GPS waypoints using her hand-held Magellan GPS device.

49 The clearing works undertaken by Mr Jones on the Land were carried out over an area of about 12 hectares.

50 Quadrat 1 was located on the Land within part of the area which had been the subject of the clearing works carried out by Mr Jones. Quadrat 2 was located in an area in the near vicinity of Quadrat 1, but in an area of remnant native vegetation which had not been the subject of clearing works carried out by Mr Jones. 51 In relation to each of Quadrat 1 and Quadrat 2 Mr Gibson entered data by hand on a DECC Vegetation Field Survey Recording Form. In evidence is a copy of each of the DECC Vegetation Field Survey Recording Form filled out by Mr Gibson on 12 July 2007.

52 Subsequently, the vegetation samples taken by Mr Gibson, respectively in Quadrat 1 and Quadrat 2 were analysed for the purpose of genus and species identification both by Mr Gibson and also by botanists employed within the Plant Identification Service of the National Herbarium of the Royal Botanic Gardens.

53 Later in time, on 8 July 2008, Mr Gibson again attended the land and collected vegetation samples and data from a third Quadrat, which he identified as Quadrat 3. In evidence is a copy of each of the DECG Vegetation Field Survey Recording Form filled out by Mr Gibson on 8 July 2008.

54 Seventy species of plants were recorded from the three Quadrats, of which 49 species were identified to species level and were native plants to New South Wales. A further 13 samples were identified to genus level only and were identified to be in genera that include native species. Eight species from the three quadrats were exotic species. These were seen in low abundance and were comprised primarily of short-lived herbs with wind-dispersed seeds.

55 In carrying out the clearing works on the Land, Mr Jones cleared native vegetation as defined in section 6 of the Native Vegetation Act 2003. 56 No development consent has been granted in accordance with the Native Vegetation Act 2003 permitting the clearing of native vegetation on the Land.

57 No development application has been made seeking consent to clear native vegetation on the Land.

58 At the time the clearing was carried out there was no property vegetation plan in existence relating to the Land.

59 Prior to the clearing works being carried out, the Land formed part of an area which was the subject of a vegetation classification survey and mapping for the Cessnock-Kurri region carried out by Stephen Bell and Colin Driscoll, botanists, of Eastcoast Flora Survey pursuant to a retainer from the Department of Environment and Climate Change.

60 The Land was one of the many properties attended by Mr Bell and Mr Driscoll for the purpose of carrying out the vegetation survey. Mr Bell and Mr Driscoll attended the Land in 2006 (before it was cleared) with the consent of the previous owners (the Sternbecks) and surveyed the vegetation on parts of the Land for the purpose of completing their survey of vegetation in the Cessnock-Kurri region. In evidence are photos taken of the Land in 2006 prior to the clearing being carried out, including areas of the Land which were the subject of the clearing works. 61 According to the vegetation mapping of the area carried out by Mr Bell and Mr Driscoll, the vegetation in the area of the Land the subject of the clearing works carried out by Mr Jones included vegetation forming part of the following three endangered ecological communities: o The Quorrobolong Scribbly Gum Forest (Ellalong variant); and o The Lower Hunter Grey Box Grassy Forest; and o The Lower Hunter Spotted Gum - Red Ironbark Forest (main variant).

62 Subsequent to the cessation of clearing on the land Mr Mura has permitted Mr Jones and his brother (a cattle farmer in the local area) to continuously graze cattle on the land. 63 Mr. John Palmer, a Resources information Officer with DECCW in the Scientific Services Section at Newcastle, has provided a report on the historical management of vegetation on the land with reference to six aerial photographs and three spot images of the land between 1984 and 2008. The report is in evidence. FURTHER FACTS 64 The defendant gave evidence as to his conversation with the officer of the Hunter Central Rivers Catchment Authority referred to in the agreed statement of facts (see [20] above), which I accept. He said that he told that officer that he was buying some land at Quorrobolong and that the council had replied to him saying that he might have to get the Authority's approval to do some clearing; and that the officer asked him what he wanted to do. The conversation continued as follows: Defendant: "I want to clear up all the rubbish laying down, all the fallen trees to make less of a fire hazard and to be able to graze some cattle."

Officer: "If that's all you want to do you don't need a permit."

Defendant "I have spoken to a man who will do the clearing with a bulldozer. I am concerned that while doing the clearing he might hit some tree and I will not be there to watch him."

Officer: "Well I won't be there either". 65 Given the agreed chronology the "man who will do the clearing with a bulldozer" to which he referred must have been Mr Sternbeck.

66 Mr Mura says, and I accept, that he did not receive the native vegetation kit referred to at [20] above. 67 The defendant says that he subsequently told Mr Jones of his conversation with the officer of the Authority; that he told Mr Jones that he did not want to get into any trouble; that Mr Jones replied, "Okay, I will do the best I can. I will try and not hit any trees and I will just get rid of the rubbish"; and that he told Mr Jones to go ahead. I accept that conversation as supplementing the agreed facts. According to the statement of agreed facts, the defendant also told Mr Jones that he didn't want too many trees to be knocked down and wanted all the dead wood and rubbish cleared because it was a fire hazard; that Mr Jones said, "Well I will do my best to save what trees I can" and that there would be trees that would go because there was no other way around it; and that the defendant was aware that the works would involve the removal of some live trees as well as understorey vegetation.

SENTENCING PRINCIPLES 68 The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999: " 3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 69 In determining the appropriate sentence, s 21A requires the Court to consider specified aggravating and mitigating circumstances that are relevant and known to the Court as well as any other objective and subjective factor that affects the seriousness of the offence. The Court must take into account a guilty plea and the timing of the plea and accordingly may impose a lower sentence that it would otherwise have imposed: s 23. The Court may impose a lower penalty than it would otherwise impose having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence: s 23.

70 The utilitarian value of a plea of guilty should generally be assessed in the range of 10 to 25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea: R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160].

71 The relevant sentencing principles as they apply to offences under the Native Vegetation Act 2003 have been identified in a number of recent decisions of this Court: Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4,165 LGERA 256; Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137, 168 LGERA 121; and Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182. Sentencing considerations under the now repealed Native Vegetation Conservation Act 1997 were considered in Director-General, Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 and Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297. Relevant sentencing considerations applicable under the framework of the Crimes (Sentencing Procedure) Act 1999 were considered in Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [35] - [42]. OBJECTIVE SERIOUSNESS OF THE OFFENCE 72 The primary sentencing consideration is the objective seriousness of the offence, which fixes the upper and lower limits of proportionate punishment. Having regard to the evidence and the matters considered below, I consider that it lies towards the lower end of the scale. Maximum Penalty 73 Pursuant to s 12(2) of the Native Vegetation Act and s 136 of the Environmental Planning and Assessment Act 1979, the maximum penalty for the commission of the offence is $1.1 million. The maximum penalty is an expression by the legislature of the seriousness of the offence. Although the offence was committed intermittently over the charge period, the prosecutor does not allege a continuing offence and does not call for a daily penalty. Environmental Harm 74 About twelve hectares of native vegetation was the subject of a form of mechanical clearing employing the use of a bulldozer which predominantly left the canopy trees intact with a small number of exceptions, but which involved the removal of a high proportion of understorey and groundcover vegetation. The defendant's purpose was to retain the landscape featuring canopy trees but to replace the scrub and groundcover with grasses to facilitate pasture improvement for the purpose of grazing cattle on that part of the land. It is common ground that more than half of the forty hectare property was already suitable for grazing. Although it was the defendant's intention to retain as many canopy trees as possible, he was made aware by the contractor that some canopy trees would inevitably be removed having regard to the size of the bulldozer and the nature of the process. 75 The retention of the majority of canopy trees in the cleared area, which was itself relatively small, weighs materially in favour of mitigation of penalty. So too does the fact that the Land was not virgin land and had been the subject of selective logging over a period of many years and as recently as the late 1990s.

76 On the other hand, although the canopy trees were maintained, the understorey itself including groundcover was of high conservation value as is evident from the evidence of harm to three endangered ecological communities. There is also evidence that the nature of the clearing operation exposed the disturbed soils to the risk of erosion and brought about the invasion of certain introduced weeds. To that extent, I conclude that the environmental harm was substantial. State of Mind/Reasons for Commission of the Offence 77 The defendant is guilty of the offence by reason of his status as a director of the corporation which he admits committed the offence. However, it should be recognised that the defendant was the directing mind of the corporation so far as the offence was concerned. It was he who caused and permitted the contractor to carry out the clearing works. 78 The intention of the defendant in clearing the Land was to increase its grazing yield, which should thereby have improved its value.

79 The defendant was conscious of the possibility that consent might be required which is why he made enquiries: I have earlier referred to the evidence concerning his communications with the council and the Hunter Central Rivers Catchment Authority: see [20] - [22]; [64] - [67] above.

80 I am prepared to accept that the defendant formed the impression that the council and the Authority did not have any objection to the work about which he informed them. But even on his own account, he did not inform them that he proposed to entirely clear the house site nor that elsewhere the clearing of some trees and the understorey would occur.

81 I make some allowance for the fact of the defendant's imperfect English expression and comprehension when considering his communications with the council and the Authority, but, to say the least, he should have been more precise with them as to what was proposed if he was going to rely upon their responses when proceeding with the work. SUBJECTIVE CONSIDERATIONS 82 The defendant has no record of prior convictions. He guilty plea is indicative of contrition. He is of good character. 83 The utilitarian value of his plea of guilty has to be assessed. The plea was entered at a relatively late stage in the proceedings. The first return of the summons was 26 June 2009. It was then stood over for plea or mention to 10 July 2009, when it was likewise stood over to 24 July. On 24 July 2009 the defendant pleaded not guilty and directions were made for the filing of agreed facts and evidence. Following a callover on 16 September, the defendant changed his plea to guilty on 30 October. Notwithstanding the relatively late entry of the guilty plea there remains utilitarian value in the plea, and in accordance with the principles in R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 the defendant is entitled to a discount for the plea of guilty. The prosecutor submits that the discount might fall within the range of between ten per cent and fifteen per cent. I propose to adopt a discount of fifteen per cent. 84 The defendant has been required by subpoena to attend and give evidence in the proceedings against Jack and Bill Issa Pty Limited, which has pleaded not guilty to an equivalent charge. He has however declined to provide an affidavit to the prosecutor for the purpose of those proceedings, which are fixed to commence tomorrow. The defendant is entitled to a moderate discount for his co-operation with the prosecuting authority.

85 The prosecutor does not submit that the penalty needs to serve as a specific deterrent in the circumstances of the case. The defendant has accepted responsibility for his actions by pleading guilty to the offence, thus showing insight into his conduct and tending to suggest that he would be unlikely to choose to re-offend even if he had the opportunity to do so. Moreover, having regard to his age, the fact that he is no longer a director of the corporation and his financial position he is unlikely to have any real capacity to re-offend. The defendant is seventy-nine years of age and, as discussed below, his financial position is poor. 86 The prosecutor submits that the importance of general deterrence in sentencing for environmental offences is well established and applies here. I agree. However, as discussed below, there is a complicating factor by reason of the defendant's financial circumstances.

CAPACITY TO PAY 87 The defendant is an undischarged bankrupt. He was declared bankrupt in May 2008. 88 He is seventy-nine years of age. He is married with seven children. He immigrated to this country from Italy some sixty years ago. At that time he was unable to speak English. He learnt English although my impression is that his English expression and comprehension is well short of perfect. Through hard work and study he qualified as an accountant and as a registered tax agent, in which capacities he worked until approximately three years ago.

89 Unfortunately, he then lost his life savings. I understood him to say that was due to the dishonesty of a person or persons unassociated with this case. In these circumstances he asked his client, Mr Jack Issa, for help because he did not want to go on Government assistance. He had grazing experience and thought that his retirement work could be on a grazing property. So it was, that he came to be involved with the company Jack & Bill Issa Pty Ltd and the Land the subject of these proceedings.

90 That involvement led to him borrowing $250,000 which went towards enabling the company to purchase the Land. He has an interest burden of some $2,500 per month. I understood him to say, without challenge, that he had no income. It appears, however, that he is continuing to work as an employee of the accounting business which he previously controlled, which is now controlled by his daughter. His health has declined. Some eight months ago he had a pacemaker inserted. He has received medical advice from a specialist that the stress from these proceedings and the events the subject of the proceedings may affect his life expectancy.

91 A fine imposed by this court for the commission of the offence is not provable in the bankruptcy, and if he were to be discharged from the bankruptcy he would be obliged to pay the fine: Environmental Protection Authority v Buchanan (No 2) [2009] NSWLEC 31, 165 LGERA 383.

92 The prosecutor says, and I accept, that having regard to his old age and circumstances it is unlikely that he will have the capacity to pay a large fine at any time in the future. That is a factor which the Court is required to consider under s 6 of the Fines Act 1996. In R v Rahme (1989) 43 A Crim R 81 at 86 Finlay J with whom Studdert J agreed, said: "The imposition of a large fine does involve a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution effect payment...It is clear I think that what is required where the court is contemplating the imposition of a financial penalty is a decision on whether or not the appellant has the means." 93 In that case the Court of Criminal Appeal allowed the appellant's appeal against a fine of $22,000 on the basis that it was excessive having regard to the appellant's disclosed capacity to pay. The court concluded that the fine should be reduced to $5,000, "even though by so doing the totality of the sentence will be more lenient than the appellant maybe thought entitled to expect": at 89. I shall return to the effect that I consider that the defendant's financial means have on the sentence that would otherwise be imposed. CONSISTENCY IN SENTENCING 94 The prosecutor submits and I accept that there is an insufficient number of cases to establish a pattern for sentencing for this type of offence and for the same reason it is not sensible for the prosecutor to say where this case would fall within the range because there is no established range. The prosecutor has, referred to the cases to which the Court may usefully have regard, referred to at [71] above. For the offence against s 12(1) of the Native Vegetation Act 2003 there have only been three cases to date: Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4, 165 LGERA 256; Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137, 168 LGERA 121; and Director-General, Department of Environment and Climate Change v Calman Australia Pty Limited [2009] NSWLEC 182. Rae and Calman analysed the earlier cases.

95 In the present case the area of the Land cleared and the number of trees cleared was very substantially less than in any of those cases.

CONCLUSION 96 The conclusion that I have reached is that after taking into account all the circumstances including a discount for the utilitarian value of the plea, but before taking into account the financial circumstances of the defendant, a fine of $20,000 is appropriate. 97 On the evidence, the defendant would most likely be unable to pay the fine that I would have otherwise imposed, at least when account is also taken of the costs order that I propose to make against him. I have therefore come to the view that I should substantially reduce the fine that would otherwise be imposed to $5,000.

98 The orders of the court are as follows: 1. The defendant is convicted of the offence with which he is charged. 2. The defendant is fined the sum of $5,000. 3. The defendant is to pay the prosecutor's costs of the proceedings. 4. The exhibits may be returned.

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

(2009) 165 LGERA 256

(2009) 168 LGERA 121

(2009) 165 LGERA 383

At a glance

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Judgment (78 paragraphs)

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Cases Cited (12)

Cited By (6)