Director General, Department of Environment, Climate Change and Water v Linklater

Land and Environment Court (NSW)|2011-02-23|Before: Preston CJ

Native vegetation is cleared illegally 1Mr Ian Linklater and his wife are joint tenants under a lease under the Western Lands Act 1901 (Western Lands Lease 6173) of land known as 'Trentham Cliffs Station', a rural property located near Gol Gol in the local government area of Wentworth Shire Council in south-western NSW. The property is in Lot 6819 in DP 46877. It has a total area of 12,740 hectares. About 30 per cent of the property has been cleared and is used for wheat growing. The remainder is retained in a natural state. Although the property has been used for grazing in the past, no grazing has occurred since about 1985. 2In March 2001, Mr Linklater applied to the then named Department of Land and Water Conservation for consent under the Native Vegetation Conservation Act 1997 ("the Act") to clear native vegetation on the property. On 25 January 2002, the Department granted consent under the Act ("the Consent") to clear native vegetation in two areas of the property. The total extent of native vegetation authorised to be cleared in these areas was less than the extent that Mr Linklater had sought permission to clear. One area authorised to be cleared was in the north-eastern corner of the property. This totalled about 495 hectares. Mr Linklater wished to use this cleared area for cropping. The other area authorised to be cleared was in the south-western corner of the property. This comprised about 386 hectares. Mr Linklater wished to use this cleared area for horticulture, such as grapes, olives and citrus. 3The two areas authorised to be cleared were outlined on an aerial photograph with overlaid cadastral property boundaries, which was attached to the Consent. No GPS co-ordinates of the areas were provided in the Consent or on the attached diagram. 4The Consent authorised the clearing of native vegetation only from the areas shown in the attached diagram. There were numerous conditions of consent. One of the special conditions set a precondition that Mr Linklater had to satisfy before he could commence any clearing of native vegetation in the area in the south-western corner of the property approved by the Consent. This was special condition 7. It provided: "7. Development of the area hatched (clearing subject to conditions) will not commence until the following conditions have been met: A change of lease conditions has been completed over the area of the proposed development ie from grazing to cultivation and irrigation. The lessees must complete, submit and have approved by DLWC a Drainage Irrigation Management Plan ("DIMP"). The DIMP must meet DLWC specifications and requirements." 5Over three days, sometime between 13 April and 26 November 2005, Mr Linklater and one of his sons cleared native vegetation on the property. The native vegetation was cleared by means of a chain dragged between two mobile machines, one of which was a Caterpillar 988B front-end loader. The chain dragged down trees and shrubs in its path. The front-end loader was owned by Mr Linklater. Mr Linklater made all relevant decisions as to where clearing was to take place. 6The pushed over trees and shrubs were left in situ. The area has not been stick-raked to remove the root material. No further work has occurred since the clearing took place in 2005. 7Of relevance to this prosecution, Mr Linklater cleared not only the area in the south-western corner of the property authorised to be cleared (the 386 hectare area) but also a strip of land around three of the sides of that area. The additional cleared area comprised about 166 hectares. The clearing of this additional area was not authorised by the Consent. 8Mr Linklater also did not comply with special condition 7 of the Consent before he commenced any of the clearing. 9The clearing of native vegetation outside the areas authorised by the Consent and also without first complying with special condition 7 of the Consent constituted an offence contrary to s 21(2) of the Act (the current Native Vegetation Act 2003 did not apply to Mr Linklater's clearing). 10Mr Linklater has pleaded guilty to this offence. A sentence hearing has been held. Mr Linklater is now to be sentenced for the offence. 11Determining an appropriate sentence involves considering and instinctively synthesising the objective circumstances of the offence and the offender and the subjective circumstances of the offender.

Nature of the offence 12The objects and the statutory scheme of the native vegetation legislation have been described in Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15]-[20]. I adopt that analysis. 13Mr Linklater's actions in clearing native vegetation not in accordance with the terms and conditions of the Consent that he had obtained undermines the legislative objectives of the offence against s 21(2) of the Act and the regulatory scheme.

Maximum penalty 14At the time of commencement of the offence, the maximum penalty prescribed by Parliament was 10,000 penalty units or $1,100,000 and a further daily penalty of 1,000 penalty units or $110,000: see s 17(2) of the Act which refers to s 126(1) of the Environmental Planning and Assessment Act 1979. 15These high maximum penalties reflect the seriousness with which Parliament views the offence of clearing native vegetation contrary to s 21(2) of the Act.

Harm to the environment 16In the south-western corner, Mr Linklater cleared not only the 386 hectares he was authorised to clear under the Consent but also the additional 166 hectares around three sides of the authorised area. The clearing of the 386 hectares constituted an offence because of the timing of the clearing: Mr Linklater was required by special condition 7 to change the lease conditions and have a DIMP approved before commencing the clearing, but he failed to do so. However, the prosecutor does not suggest that Mr Linklater's failure to comply with special condition 7 itself caused harm to the environment. That is to say, even if Mr Linklater had complied with special condition 7 before he commenced clearing native vegetation in the 386 hectares area authorised to be cleared, there would have been the same environmental impact as in fact resulted from Mr Linklater's clearing that constituted the offence. 17Accordingly, the real environmental harm that resulted from Mr Linklater's conduct flows from Mr Linklater's clearing of native vegetation in the additional 166 hectares outside the area authorised by the Consent to be cleared. 18The statement of agreed facts tendered describes the environmental impact of this clearing. In summary, the vegetation on the property is of high ecological value. The vegetation comprised two vegetation communities: Dune Mallee Woodland and Belah-Rosewood Woodland. Prior to the clearing, the condition of the vegetation would likely have been as follows: (a) the Dune Mallee Woodland would have been in good condition; (b) the Belah-Rosewood Woodland would have been in moderate to good condition; and (c) no areas would have been of low condition. 19The two vegetation communities present in the cleared area, Dune Mallee Woodland and Belah-Rosewood Woodland, are known to be habitat for a wide range of fauna and flora species. Dune Spinifex Mallee is known to be important for a wide variety of reptiles (including Butler's Legless Lizard Delma butleri , Mallee Dragon Ctenophorus fordi and Jewelled Gecko Diplodactylus elderi ) and small mammals (such as Southern Ningaui Ningaui yvonneae and Common Dunnart Sminthopsis murina ), with the Spinifex understorey providing an important refuge from native and introduced predators. Mallee vegetation also has a bird community in which many of the species do not use other vegetation communities. Examples include Yellow-plumed Honeyeater Lichenostomus ornatus , Chestnut Quail-thrush Cinclosoma castanotus and Striated Grasswren Amytornis striatus . 20A number of threatened species are known or are predicted to occur in the locality of the property and are likely to have occurred in the areas cleared. A departmental field officer, Mr Ewin, observed on the property, some three years after the clearing, a threatened species of bird, the Hooded Robin (southern-eastern form), and a threatened species of plant, the Bitter Quandong, which was regenerating from roots of a large tree knocked over during the clearing operations. 21Because of the likely moderate to high condition of the vegetation present and due to such factors as loss of habitat for threatened and other species, fragmentation of habitat and the invasion of weeds, the removal of vegetation from the cleared area has had an adverse impact on the ecological value of the property. 22The environmental impact, however, is being mitigated over time by subsequent remediation and revegetation of the cleared area. 23On 9 April 2010, the now named Department of Environment, Climate Change and Water served a direction for remedial work, under s 38 of the Native Vegetation Act 2003, on Mr Linklater. The direction requires remediation of an area of approximately 161 hectares which generally corresponds to the area cleared without authorisation but also includes about 7.5 hectares of uncleared vegetation adjoining that area. The direction requires that for a period of 15 years (ending in April 2025): (a) the remediation area be fenced; (b) stock are to be removed and kept out of the remediation area; (c) weeds are to be controlled within the remediation area; and (d) the defendant is to provide records of inspections of and works carried out within the remediation area. 24Prior to serving the final direction, the Department provided a draft direction to Mr Linklater. The Department negotiated with Mr Linklater and another of his sons, the content of the draft direction. A number of drafts were provided and modified before the final direction was issued. Both Mr Linklater and his son co-operated fully with the Department during these negotiations. 25The departmental field officer, Mr Ewin, on his various visits to the property, observed no stock and no evidence of feral goats. He observed that areas of native vegetation including Dune Mallee Woodland and Belah-Rosewood Woodland are in good condition compared to other properties in the adjoining areas, particularly given the drought conditions of the previous years. 26Within the areas of Dune Mallee Woodland, there is regeneration of mallee from the lignotubers that were retained in the ground. The lignotubers were still present because, although the vegetation had been chained, the area had not been stick-raked to remove the root material. The resultant mallee "shrubs" are currently between 1.0 metres and 1.5 metres in height. Mallee species have evolved to survive disturbance, particularly that caused by fire, and so this community is relatively resilient to disturbance as long as the lignotubers are retained in the ground. 27Some of the species present in the Dune Mallee Woodland would be considered "disturbance" species that are present because of the disturbance caused by the clearing. As time passes, these species are likely to disappear from the remediation area. However, a number of the species present are typical of Dune Mallee Woodland and are likely to persist within the area as it regenerates. There are increased weed species within the remediation area. Some of these species may persist as the community regenerates but potentially some of these may also disappear as time passes. 28The areas of Dune Mallee Woodland are regenerating as well as can be expected given the recent weather conditions. At the end of the period of the remediation direction, that is April 2025, excluding a fire or other disturbance event, the areas of Dune Mallee Woodland will be progressing well to be in similar condition to the vegetation prior to clearing. 29Belah-Rosewood Woodland is far less adapted to disturbance as compared to Dune Mallee Woodland. The main overstorey species, Belah, reproduces from seed only infrequently, although it does sometimes regenerate from root suckers. Although regenerating suckers can be subject to grazing pressure from stock and introduced herbivores, this is not a concern for this area as the property has been destocked and the area is fenced in compliance with the direction for remedial work for the 15 year period. There is some evidence of rabbits within the remediation area, which is likely to impact on regeneration. This community is also subject to weed invasion, with high levels of Ward's Weed being present within the remediation area. It is unclear what impact this weed will have on the long-term regeneration of the area. 30The Belah-Rosewood Woodland area is likely to regenerate at a much slower rate than the Dune Mallee Woodland and some overstorey species are yet to return within the remediation area. At the end of the period of the remediation direction, that is, April 2025, the Belah-Rosewood Woodland may have had some regeneration and major overstorey species but may require further remediation, particularly continued exclusion of grazing and weed removal, for an extended period, to develop vegetation of similar condition to that which occurred prior to the vegetation being removed. 31In conclusion, having regard to the area cleared (166 hectares), the high ecological value of the native vegetation cleared, the moderate to good condition of the two woodland communities prior to the clearing and the vegetation being habitat of threatened species, I find the commission of the offence has caused actual environmental harm of medium seriousness. Such harm can be considered to be substantial and an aggravating factor in terms of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). However, the environmental harm is, over time, being mitigated by reason of the remediation and revegetation required to be undertaken under the direction issued under the Act.

State of mind of the offender 32Although the offence committed by Mr Linklater is one of strict liability, the commission of such offence intentionally, recklessly or negligently will be objectively more serious than if it were not committed with such states of mind. Mr Linklater accepts that he was negligent in carrying out the clearing. The prosecutor submits that the state of mind is higher, being recklessness. Mr Linklater contests that he was reckless. 33For reasons I give below, I find that Mr Linklater was indeed reckless in clearing the additional 166 hectares not authorised by the Consent. 34Mr Linklater said in oral evidence given at the sentence hearing that he did not read the Consent before undertaking the clearing. He did not have the Consent available in the field and did not use the Consent or the attached diagram showing the areas authorised to be cleared when he and his son undertook the clearing of the native vegetation on the property in 2005. Rather, he used, where he could find them, pink markers which he and a departmental field officer, Mr Kelly, had placed on selected trees at corners of the area authorised to be cleared, as well as Mr Linklater's memory of the area. For example, Mr Linklater recalled that the south-eastern side of the area authorised to be cleared ran parallel to the property boundary of the neighbour to the south, 'Bowen Park'. 35The Consent had been sent to Mr Linklater under the cover of a letter from the Department dated 25 January 2002. The letter expressly alerted Mr Linklater to the need to read and to fully understand the Consent, its conditions and the attached diagram. The letter said in part: "Your application for development consent to clear native vegetation, Registered Number BU0111 lodged under the Native Vegetation Conservation Act 1997 has been approved. The application is approved with conditions of consent. All details are explained in the attached notice. Please ensure that you fully understand all the conditions of consent of this determination prior to commencing any work. Please advise the DLWC Officer at Buronga if you do not understand any of the conditions attached to this determination and/or, when you are ready to commence work and again two weeks prior to stopping clearing operations. Areas of land identified under this determination as land 'that must not be cleared' must not be cleared under any exemptions that may apply under the NVC Act. ... For any enquires about this determination and the associated assessment please contact Faith Deans, SM Implementation Officer (Buronga), on telephone [number given]." 36Attached to the letter was the notice of determination of Mr Linklater's application, which stated again that consent had been granted subject to the conditions described below. The conditions fell into two categories, general conditions of consent and special conditions for Southern Mallee Land Use Agreements. Attachment No 1 set out the general conditions of consent. Consent was stated to be granted subject to the conditions described below. Of particular relevance to this prosecution are conditions 2, 3 and 8 which provided: "2. Native vegetation including understorey, shrubs and groundcover (including grasses) can only be cleared from the areas authorised on the attached diagram. 3. Every contractor, supervisor or other responsible person engaged in clearing authorised by this consent shall be familiar with and have ready access to this consent, or a copy of this consent and shall be able to produce the consent within 24 hours when requested to do so by an authorised officer. 8. The area that may be cleared is shown on the attached diagram. It shall be managed according to the cultivation consent conditions attached to that area and the Southern Mallee Guidelines for the development of Land Use Agreements (Southern Mallee Regional Planning Committee 1999 as amended)." 37The Consent was also subject to special conditions for Southern Mallee Land Use Agreements. One of the special conditions is special condition 7 which has already been set out. Another was special condition 5 which provided: "5. The area that may be cleared is shown marked on the attached diagram. It shall be managed according to the cultivation permit conditions attached to that area and the Southern Mallee Guidelines for the development of Land Use Agreements (Southern Mallee Regional Planning Committee 1999 as amended)." 38The attached diagram referred to in the conditions was Diagram 1. This depicted the areas authorised cleared in accordance with the conditions of consent. One of the areas authorised to be cleared was the area in the south-western corner of the property. 39The Consent and the letter providing the consent to Mr Linklater, therefore, made it abundantly clear that Mr Linklater needed to read and fully understand the Consent, all of its conditions and the attached diagram, to be familiar with and to have ready access to the Consent when undertaking the clearing, and to clear only those areas shown on the attached diagram and no other areas. 40For Mr Linklater not to have read or been familiar with and not to have had available in the field the Consent when undertaking the clearing of native vegetation on the property was not merely negligent, but was reckless. 41Mr Linklater's reliance on the pink markers to guide where he should clear, was also reckless in the circumstances. The placing of pink markers was undertaken somewhere in late 2002 or early 2003. Mr Linklater says in his affidavit that, after receiving the Consent, he requested Mr Ian Kelly of the Department to attend the property and mark out the area approved in the Consent. This indicates that at least at that time Mr Kelly had looked at the Consent and formed the opinion that it would be beneficial to mark out in the field the area depicted in the diagram attached to the Consent. Mr Kelly agreed to do so. Mr Linklater describes the process of marking out the area. Mr Kelly and Mr Linklater would drive to a point where Mr Kelly would stop the vehicle, he would point to a tree and tell Mr Linklater to put a pink tape (which Mr Kelly supplied) on that tree. Mr Linklater observed that Mr Kelly used a GPS to locate each point that he asked Mr Linklater to mark. Mr Linklater put a tape on each tree in accordance with Mr Kelly's instructions. The process of marking out continued until all points around the area had been marked. 42Unfortunately, Mr Linklater did not immediately thereafter undertake clearing of the area so marked. Mr Linklater did not return to the area to undertake clearing of native vegetation until around 2 years later. By this time, many of the pink marker tapes had disappeared. Of importance to this prosecution, except for one pink marker on the eastern most corner of the area authorised to be cleared (described on a diagram attached to Mr Linklater's affidavit as point 4), there were no pink markers along the south-eastern side of the area, the southern most corner of the area, the south-western side of the area, the western corner of the area or the part of the north-western side of the area near the boundary of the neighbour's property to the north. These, of course, were the very areas which Mr Linklater cleared outside the area authorised to be cleared. 43Mr Linklater noted that he could not find the pink marker tapes in these areas. Nevertheless he elected to clear without requesting Mr Kelly to return to the property to remark the area authorised to be cleared. Mr Linklater said in an interview with the Department on 5 June 2009, that "it didn't enter my head" to ask Mr Kelly to remark the site. 44It was reckless for Mr Linklater to commence clearing native vegetation on the property in reliance upon pink marker tapes placed on trees 2 years beforehand where critical markers had disappeared and without requesting Mr Kelly to return to the property to remark the area authorised to be cleared. 45In relation to the south-eastern boundary of the area authorised to be cleared, Mr Linklater said, both in the interview on 5 June 2009 and to similar effect in oral evidence at the sentence hearing, that he could not find a pink marker tape attached to a tree. He went ahead regardless grubbing a line in the area of the south-eastern side. However, it was crooked, or "an odd shape", so he took a measurement from the southern boundary (of the neighbouring property 'Bowen Park') and then took compass bearings to make the line parallel to the property boundary. The fact that he recalled that the south-eastern side should be parallel to the 'Bowen Park' boundary reveals some knowledge of what the Consent and the area delineated on the attached diagram depicted. Mr Linklater said he then cleared native vegetation to straighten up the line and keep it parallel to the 'Bowen Park' boundary. This led to the additional area of clearing on the south-eastern side. 46In relation to the south-western side, Mr Linklater said, in the interview of 5 June 2009 and also to a similar effect in oral evidence at the sentence hearing, that he wanted to clear to a point that would be four kms from the river for a pipeline to pump water for irrigation purposes. This was the fact that determined how far to the south-west Mr Linklater cleared, not any pink markers (they were no longer on this south-western side) or the area authorised on the diagram attached to the Consent (which Mr Linklater did not have in the field). 47This conduct reveals recklessness in not ascertaining the precise location of the south-western side of the area authorised to be cleared. 48In relation to the north-western side, for the section of the area proximate to the neighbouring property to the north, Mr Linklater said that he cleared the additional strip because it was easier to go along the boundary with the neighbour to the north. 49In the course of the interview on 5 June 2009, the interviewing departmental officer, Mr Harvey, asked Mr Linklater: "At the time of clearing the land, were you aware it was an offence to clear native vegetation without appropriate approval or exemption in place?" Mr Linklater replied: "I didn't really give it much thought Denis ... I just wanted to do the job once and for all." The departmental officer then asked Mr Linklater: "Have you any further comment you want to make as to why you cleared native vegetation without the approval or an exemption in place?" Mr Linklater answered: "I don't think I will be able to come up with a plausible reason. I cleared it to my satisfaction as an area that needed to be a certain shape. As far as clearing up against the neighbour - well - vegetation was virtually non-existent." 50I find, therefore, that Mr Linklater undertook the clearing of native vegetation in the additional 166 hectare area recklessly. Mr Linklater realised or suspected that in clearing native vegetation on the property, first, without reading, being familiar with and having ready access to the Consent and the attached diagram showing the areas authorised to be cleared, secondly, in circumstances where the pink markers that he knew had been placed on trees for the purpose of delineating the area authorised to be cleared had disappeared along three of the sides of the area authorised to be cleared, and, thirdly, without requesting the Department to return to the property and remark the area authorised to be cleared, he might clear native vegetation outside the area authorised by the Consent to be cleared. Mr Linklater elected, however, not to make further inquiries or to take other steps to ascertain the area authorised to be cleared. He "just wanted to do the job once and for all." This state of mind of recklessness increases the blameworthiness of Mr Linklater's conduct.

Reasons for committing the offence 51Mr Linklater wished to clear the south-western corner of the property for the purposes of horticulture. However, the evidence does not establish that Mr Linklater cleared the additional area of 166 hectares around three of the sides of the 386 hectare area authorised by the Consent to be cleared, so as to increase the area available for horticulture. Rather, I find that Mr Linklater cleared on each of the three sides for the reasons I have earlier found. The south-eastern side was cleared further because of Mr Linklater's original incorrect and crooked line and then straightening of the line to make it parallel to the southern boundary; the south-western side was cleared further in order to bring the cleared area within four kms of the river for a pipeline for irrigation water; and the north-western side was cleared further because it was easier to go along the northern property boundary. I do not find that Mr Linklater cleared these further areas so as to make a profit or to save an expense or to avoid the costs of obtaining and implementing a development consent.

Foreseeability of risk of harm 52Having regard to the nature and extent of clearing, Mr Linklater could reasonably have foreseen the harm that would be caused or would likely to be caused to the environment by commission of the offence by clearing the additional area.

Practical measures to prevent harm 53Mr Linklater was required to have, and could readily have, read and implemented the Consent, its conditions and the attached diagram. Mr Linklater could have taken the diagram into the field whilst undertaking the clearing so as to identify the areas authorised to be cleared. If Mr Linklater did not understand the Consent, its conditions or the attached diagram, he could have discussed his concerns with the Department as invited by the Department in the covering letter. Indeed, Mr Linklater availed himself of the invitation to obtain assistance from the Department when he requested Mr Kelly to attend the property and mark out the area authorised to be cleared under the Consent. Mr Linklater could readily have asked Mr Kelly to return to the property and remark the area authorised to be cleared when he discovered that many of the pink maker tapes had disappeared. 54There were, therefore, practical measures that Mr Linklater could have taken to prevent the harm caused by commission of the offence in clearing the additional areas.

Control over causes 55Mr Linklater, in undertaking the clearing and directing his son, had control over the causes that gave rise to commission of the offence. Mr Linklater did not commit the offence under an order or a direction from anyone else.

Conclusion on objective circumstances 56The offence is of low to moderate objective gravity having regard to the objective circumstances.

Lack of prior criminality 57Mr Linklater does not have any prior convictions for any environmental offences: s 21A(3)(e) of the Sentencing Act.

Guilty plea 58Mr Linklater has pleaded guilty to the offence, a fact the Court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the Sentencing Act. However, in determining the extent of any discount that should be given for the utilitarian value of the plea of guilty, the Court is required to consider when the defendant pleaded guilty or indicated an intention to plead guilty: s 22(1)(b) of the Sentencing Act. 59In this case, the first return of the summons was on 25 June 2010. On that occasion the prosecutor mentioned the defendant's appearance. The prosecutor sought further time to complete its evidence. The prosecution had been commenced only a short time before the expiry of the limitation period for commencing the prosecution. As a consequence, the prosecutor had not been able to file all of its evidence when it commenced the prosecution. The proceedings were adjourned for further mention on 20 August 2010. The prosecutor again mentioned the defendant's appearance and sought further time to complete its evidence. The proceedings were again adjourned, to 1 October 2010. 60On 1 October 2010, the prosecutor mentioned the matter for the defendant and stated that the defendant had indicated he would enter a plea of guilty to the charge. The defendant subsequently did enter a plea of guilty as he had indicated. 61I was informed that during the period between the first return date on 25 June 2010 and the date on which the defendant indicated to the Court it would plead guilty, 1 October 2010, the prosecutor and the defendant had undertaken negotiations concerning a statement of agreed facts, a further indication of the defendant's intention to plead guilty. 62In the circumstances, the prosecutor and defendant submit, and I accept, Mr Linklater should be given credit for having indicated that he would plead guilty to the charge at the earliest opportunity and therefore should be afforded the full discount of 25 per cent for the utilitarian value of his plea of guilty.

Prior good character 63There is evidence that Mr Linklater has otherwise been of good character: s 21A(3)(f) of the Sentencing Act. Two character references were tendered, one by Mr Forrest MP, the Federal member for Mallee and the second by Mr Saunders, a Director of Sunraysia Petroleum in Mildura. Both Mr Forrest and Mr Saunders state that they are fully aware that Mr Linklater has been charged of the offence of illegally clearing native vegetation on his property. 64Mr Forrest said: "I have always known Ian Linklater as a man of integrity, a progressive farmer and a keen innovator. Mr Linklater and his family have made their 31,000 acre property a show-piece in regard to environmental off-sets, some 12,000 acres, and fostering native vegetation regeneration in general. Because no stock are run on the property, many rare and endangered plant species can now be found, both on the off-set country and on the remainder of the property not under cultivation including wildlife corridors designated for the passage of native animals and birds between conservation areas. As part of their environmental policy the Linklaters have also left corridors along the boundary of neighbouring Mallee Cliffs National Park, land they were permitted to clear. Mr Linklater has been an Australian pioneer in farm carbon capture and sequestration in grain production storing exhaust emissions in the soil and negating the need for fertilisers during the past three seasons. Another 20 Australian farmers have followed his example and since a recent carbon conference in Dubbo, more farmers have ordered the specialised intercoolers Mr Linklater now manufacturers and fits to broadacre farming equipment. I would describe Mr Linklater as a good man who has the environment and the community at heart." 65Mr Saunders says he has known Mr Linklater for 7 years and continues: "In all my dealings with Ian I have found him to be a person of great integrity that could always be relied upon to help a friend in need. He is an extremely well respected member of the local community of Gol Gol and is always contributing to local charities and events that directly benefit the surrounding district and its residents. I have also had the pleasure of touring Ian's Farm at Gol Gol on several occasions and was impressed by the innovative and environmentally friendly farming practices he has adopted. He has carefully maintained large tracks of natural bush land throughout his farm that makes his property feel more like a protected national park than a traditional wheat farm. He actively looks after this land by controlling pests such as rabbits and imported noxious weeds and plants. Ian is also pioneering the use of Carbon Capturing technology that uses or more accurately traps exhaust gases from his farm tractors in the soil. Once trapped a natural chemical reaction takes place that enables his crops to break these otherwise harmful chemicals down to release the soils natural and trapped nutrients to work as fertiliser to grow his crops. This new technology has huge implications for not only potential cost savings but will also dramatically reduce harmful pollution being released to the atmosphere and our River systems. I consider Ian Linklater to not only be a great friend but to also be one of the most genuinely sincere people I have ever met. He is extremely loyal and hardworking ... ."

Remorse 66Mr Linklater has voluntarily participated in two interviews with the Department and has given affidavit evidence and oral evidence at the sentence hearing. He has said he is "deeply sorry" for clearing the additional area and in not being more diligent in taking steps to ascertain the precise extent of the area authorised to be cleared. I find Mr Linklater's remorse to be genuine. 67Pursuant to the statutory remediation direction given to Mr Linklater, he is remediating and conserving native vegetation in the area he cleared illegally and thereby is making reparation for the harm caused by the commission of the offence: see s 21A(3)(i) of the Sentencing Act.

Assistance to authorities 68Mr Linklater has assisted the authorities in their investigation of the offence. Although the Department entered his property under written authorisations on 15 and 16 October 2008, Mr Linklater also permitted officers to enter on two other occasions on 30 May 2008 and 8 April 2009 when the departmental officers did not have written authorisation. Mr Linklater voluntarily participated in two interviews with departmental officers on 30 May 2008 and 5 June 2009, in which interviews he was frank and forthcoming with information about himself and the offence. Mr Linklater has co-operated fully in the development of the direction for the remediation of the area cleared without approval. He has complied with the terms of the final direction. 69Mr Linklater has also negotiated an agreed statement of facts. 70Collectively, this conduct has provided meaningful assistance to the regulatory authority: s 21A(3)(m). It is also a corroborative of his remorse for committing the offence.

Payment of prosecutor's costs 71Mr Linklater has agreed to pay the prosecutor's costs in these proceedings in the agreed sum of $23,000.

Consistency in sentencing 72A relevant consideration in sentencing is the ascertainment of a general pattern of sentencing by criminal courts for offences such as the offence under consideration. The task of a sentencing court is to pursue the ideal of evenhandedness in the manner of sentencing. 73However, as I noted in Rae at [70]-[76], care needs to be taken in the task of achieving consistency. There is always difficulty in attempting to compare the penalty in one case with a penalty in another case because of the wide divergence of facts and circumstances. There is also a risk that earlier sentences may not be appropriate and therefore ought not to fix the figure or range in subsequent cases: see Rae at [75]. 74I have considered again the sentences imposed in the cases for offences of clearing native vegetation contrary to law discussed in Rae at [77]-[91], the sentence in Rae , and the subsequent sentences in Director-General, Dept of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182; Director General of the Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102; and Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200. 75I adopt the analysis of the pre Rae decisions and of the Rae case itself that I gave in Rae at [77]-[91] and the analysis of Pain J in Calman at [61]-[68] and by Pepper J in Vin Heffernan at [71]-[75] of the subsequent cases. 76I find the culpability of Mr Linklater to be less serious than that of the defendants in Director-General of the Department of Environment and Climate Change v Hudson [2004] NSWLEC 4; (2009) 165 LGERA 256 and Rae , but more serious than that of the defendants in Calman , Colley and Vin Heffernan . The area cleared illegally in this case and the environmental harm caused were less than in Hudson and Rae , but greater than in Calman , Colley and Vin Heffernan . Mr Linklater in this case, like the defendants in Hudson and Rae , was the owner of the land cleared, directed the clearing, and was in a position to know its lawfulness, whilst in Colley and Vin Heffernan , the defendant was a contractor who either made no inquiries of the owner or accepted the assurances of the owner that the clearing of vegetation was authorised. Here, I have found that Mr Linklater was reckless in carrying out the clearing, knowing that there was a risk that native vegetation may be cleared outside the areas authorised by the Consent to be cleared. This involved a higher degree of culpability than was involved by the defendants in Calman , Colley and Vin Heffernan . There are also other facts and circumstances that differentiate this case from the other cases.

Synthesis of objective and subjective circumstances 77The sentence of the Court is a public denunciation of the conduct of Mr Linklater. The sentence must ensure that Mr Linklater is held accountable for his actions and is adequately punished. 78There is a need for a sentence to act as a general deterrence to prevent other persons committing similar offences. This is particularly important for this type of offence of clearing native vegetation contrary to law: see comments in Rae at [9]-[13] and in the cases therein referred to. 79Specific deterrence of Mr Linklater, however, is not necessary having regard to Mr Linklater's remorse, his actions in complying with the remediation direction and in otherwise operating his property in an environmentally acceptable manner, his lack of prior convictions, his prior good character and the unlikeliness of his re-offending. 80The penalty prescribed for the offence is a fine. The amount of the fine should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstance of the offence and the offender: see Markarian v The Queen (2005) 228 CLR 357 at [37], [39], [66] and [73]. 81Accordingly, I have taken account of each of the objective circumstances of the offence and the offender, as mitigated by the subjective circumstances of Mr Linklater. 82I have determined that the appropriate amount of the fine is $110,000. This should be discounted by 25 per cent to take account of the utilitarian value of Mr Linklater's plea of guilty. This results in a fine of $82,500. 83Mr Linklater should also be ordered to pay the prosecutor's costs of the proceedings, as agreed. 84Accordingly, the Court orders:

The defendant is convicted of the offence as charged.
The defendant is fined the sum of $82,500.
The defendant is to pay the prosecutor's costs of the proceedings in the agreed sum of $23,000.

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: 16 March 2011

(2009) 165 LGERA 256

(2009) 168 LGERA 121

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Cases Cited (9)

Cited By (17)