Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited

Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited - [2010] NSWLEC 200 - NSWLEC 2010 case summary — Zoe

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Vin Heffernan Pty Limited relied on the assurances made by Mr Alexander and did not make any inquiries with the Southern Rivers Catchment Management Authority, the Council or the Rural Fire Service prior to providing its machines and operators to undertake vegetation clearing works on the Land. 36. In determining what trees could be cleared as non-protected regrowth, that is being under 17 years old, Mr Geraets relied on the instructions of Mr Alexander and his own assessment of the size of the trees, notwithstanding that he was aware that without professional analysis, he was not going to know for sure how old a certain tree was. ENVIRONMENTAL HARM 37. The Subject Areas on the Land contained native vegetation to NSW including: Scientific name of species Common name or names of species Acacia subporosa River Wattle Acacia mearnsii Black Wattle Allocasuarina littoralis Black She-Oak Acacia terminalis Sunshine Wattle Acrotriche serrulata Honeypots Caustis flexuosa Curly Wig Corymbia gummifera Red Bloodwood Eucalyptus agglomerata Blue-leaved Stringybark Eycalyptus cypellocarpa Monkey Gum Eycalyptus globoidea White Stringybark Eucalyptus muelleriana Yellow Stringybark Eucalyptus pilularis Blackbutt Eycalyptus sieberi Silvertop Ash Exocarpos cupressiformis Cherry Ballart Kunzea ambigua Tick Bush Leptospermum trinervium Slender Tea-tree Persoonia linearis Narrow-leaved Geebung Podolobium illicifolium Prickly Shaggy Pea 38. A comparison of aerial photographs and SPOT5 Images dated between 1962 and 2008 states, in summary, as follows: The native vegetation in the Subject Areas showed little change between 13 November 1989 and 11 April 2007. Between 1962 and the commencement of vegetation clearing works by Vin Heffernan Pty Limited of the Subject Areas on the Land the structure of the vegetation was predominantly Open Forest. Location 39. The Land adjoins cleared agricultural land to the west, the Princes Highway and other cleared agricultural land to the east and fragmented areas of native vegetation to the north, associated with rural lands. 40. The vegetation at the northern tip of the Land has been extensively cleared in the past and has been used as a quarry.

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(c) the global financial crisis. 8 As a consequence, Vin Heffernan's involvement in earthmoving has "practically ceased". 9 The affidavit stated that in or about October 2007, Mr Heffernan received a telephone call from Mr Kel Alexander who, Mr Heffernan knows, is a director of Source & Resource Pty Limited ("S&R"). 10 Mr Heffernan stated that around 20 to 30 years ago Vin Heffernan undertook earth works and clearing works at a residential subdivision for Mr Alexander in Wallagoot. Mr Heffernan has known Mr Alexander in a professional capacity since that time. Mr Heffernan believed that Mr Alexander was a reputable developer whose word he could rely on. 11 Mr Heffernan stated that he had met Mr Alexander at the Land the subject of the offence and that Mr Alexander drove him around the Land to demonstrate the areas where the removal of vegetation was to take place. These areas included locations where some clearing had taken place already as well as locations where no clearing had taken place. 12 Mr Alexander said to Mr Heffernan that "the clearing is taking place for the purposes of the development consent and for bushfire hazard reduction purposes". Mr Heffernan recalls Mr Alexander saying to him the words "I have approval for the clearing works that I want you to carry out". 13 Mr Heffernan stated that he relied on the assurances of Mr Alexander and as a result arranged for men and machines to assist Mr Alexander in the removal of vegetation on the land. 14 Mr Heffernan stated that prior to commencing any clearing work he has always sought assurances from the client that the clearing work that Vin Heffernan was engaged to perform was authorised by development consent or some other lawful means. 15 However, as a consequence of Mr Heffernan's past dealings with Mr Alexander, Vin Heffernan did not undertake its own examination of the purported authorisation or seek confirmation as to whether or not the clearing works were lawful. Mr Heffernan readily concedes that Vin Heffernan should have done so. 16 On 16 October 2007, Mr Heffernan allocated the work to be performed at the Land to Mr Lou Geraets and Mr Michael Stove, two employees of Vin Heffernan. Mr Heffernan did not provide supervision to his employees and there was no designated site manager. Any instructions and supervision was provided by Mr Alexander. As far as Mr Heffernan was aware, the instructions given to his employees were verbal only. While Mr Heffernan did not question any of the instructions given by Mr Alexander, he did recall Mr Geraets approaching him at one stage and voicing concerns over the extent of clearing that Mr Alexander was requesting Mr Geraets to perform. 17 Mr Heffernan stated that clearing work occurred at the Land from 17 October 2007 until 20 March 2008. On this date, Vin Heffernan was directed by Mr Alexander to cease clearing because a Stop Work Order had been issued by the Department of Environment Climate Change and Water ("DECCW"). 18 Mr Heffernan stated that Vin Heffernan undertook no further vegetation clearing works on the site following the issue of the Stop Work Notice. This was the first time that Vin Heffernan became aware that there was a problem with the clearing works being undertaken by it. 19 Mr Heffernan stated in the affidavit that during his 51 years experience in the earthmoving industry on the south coast of New South Wales, Vin Heffernan has undertaken a range of vegetative clearing works on behalf of government and private clients. These clients included the Roads Traffic Authority, State Forest NSW and other state government departments. 20 Mr Heffernan stated that in the 51 years that Vin Heffernan has been involved in earth works and vegetation clearing works, neither the company nor its directors have ever been prosecuted for a breach of any environmental law. He stated that the company is "not only embarrassed by the offence but also extremely remorseful that this offence has occurred". 21 Mr Heffernan further said that he now ensures, whenever Vin Heffernan is involved in any future clearing activity, confirmation of the lawfulness of the clearing by viewing the actual approval documents and will not undertake works where there is any doubt about their lawfulness. Mr Heffernan gave an example of the implementation of this risk management regime with respect to clearing works it undertook for the development of the Woolworths complex at Tura Beach in late 2009 and early 2010. 22 Mr Heffernan described the support that Vin Heffernan had provided to the local community in terms of the assistance given in the construction of two sporting complexes and the construction of two local churches. The company has also provided machines and operators for wildlife suppression works for the Rural Fire Service. 23 Mr Heffernan was cross examined by the prosecution. The cross examination revealed the following evidence: (a) that the only system that Mr Heffernan had in place prior to the commission of the offence to ensure that any clearing of vegetation undertaken by him was lawful, was to ask the client whether or not all approvals had been given; (b) that although it had become apparent to him when Mr Alexander was indicating the locations of the areas to be cleared on the Land that there was an inconsistency between the map provided to him by Mr Alexander showing the areas where approval had been given by the Council to clear and the additional locations that Mr Alexander had requested to be cleared, Mr Heffernan did not say anything to Mr Alexander. This was because, first, he had been told that all of the necessary approvals to clear the Land had been given, and second, Mr Heffernan had assumed that the additional areas to be cleared were part of a fire protection system to protect the subdivision which was in a bushfire prone area. This appeared "logical" to Mr Heffernan; (c) that to the extent that Mr Heffernan refused to answer some of the questions during his interview by DECCW, this was on the advice of a lawyer which he had seen prior to the interview, but who was not present during the interview; (d) that subsequent to the commission of the offence, Mr Heffernan now demands to see all approvals authorising any clearing the company is engaged to undertake, and moreover, that if in Mr Heffernan's opinion no approval is likely to be forthcoming, he will not undertake the work; and (e) that due to a downsizing of Vin Heffernan's activities and business, the company would not be likely to undertake any further vegetation clearing work. 24 Vin Heffernan also relied on an affidavit of Mr Lou Geraets sworn 3 September 2010. This affidavit primarily concerned the instructions given to Mr Geraets by Mr Alexander in respect of the clearing works performed on the Land. In particular, Mr Geraets deposed that: (a) he had asked Mr Alexander whether or not he had approval for the clearing works and Mr Alexander responded that he did;

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(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. 28 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purpose of imposing a sentence on the offender includes: 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. 29 In Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 Preston J identified a number of purposes of sentencing in the context of an offence of clearing native vegetation, to which I have had regard, in light of the objects of the NVA (at [9]-[12]). 30 Regard must also be had to s 21A of the CSPA which applies in respect of the aggravating and mitigating factors that the Court must take into account in determining an appropriate sentence. 31 In particular, s 23 of the CSPA relevantly states: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, 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 concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: … (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, … (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence… (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. Objective Gravity 32 The primary factor to consider in determining an appropriate sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (Pittwater Council v Scahill (2009) 165 LGERA 289 at [50]). 33 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard relevantly include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]): (a) the maximum penalty for the offence;

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(g) Vin Heffernan's control over the causes of harm to the environment. Maximum Penalty 34 The maximum penalty for an offence by a corporation in breach of s 12 is a fine of $1,100,000 (10,000 penalty units). 35 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). In Markarian v The Queen (2005) 228 CLR 357 (at [31]) the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the Court. 36 The imposition of a monetary penalty of this order of magnitude demonstrates the seriousness with which offences against the NVA are viewed by the legislature. Objective Harmfulness of Vin Heffernan's Actions 37 Vin Heffernan's unlawful clearing of a substantial number of species of native vegetation plainly contravened the objects of the NVA. These are stated in s 3 of that Act as: 3 Objects of Act The objects of this Act 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. 38 There can also be no doubt that Vin Heffernan's actions caused harm to the environment. But having made this finding, it cannot be said, given the facts agreed to by the parties, that the overall harm to the environment is anything other than low to moderate. 39 This conclusion is reached because: (a) the conservation value of the native vegetation at the local scale was high and the clearing caused a significant impact on vegetation and fauna at this scale; (b) the native vegetation cleared from the Land was in good condition as: (i) it contained a diversity of native plant species in four strata;

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(iv) did not contain exotic plants (weeds); (c) the clearing of the vegetation resulted in the loss of foraging resources and breeding habitats for the fauna that occurred on the Land; (d) the conservation value of the native vegetation on the Land at the landscape level was low and was unlikely to have caused a significant impact on the vegetation, fauna habitats or habitat connectivity at that scale; and (e) the clearing of 22 ha was not broadscale clearing but was selective in nature, comprising trees, understory shrubs and ground cover, but leaving large canopy trees undisturbed. 40 Moreover, while remediation of the areas cleared is required to restore the ecological values and improve their integrity, the remaining vegetation had moderate to good potential to recover in the medium to long term. 41 For the sake of completeness, it is noted that the Land has been subjected to previous disturbance as a result of selective logging and hazard reduction burns. Vin Heffernan's State of Mind and Reasons for Committing the Offence 42 The offence is one of strict liability so that mens rea is not an element of the offence. But the state of mind of the offender is relevant to assess the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed (Rae at [42], Gittany at [123], Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [68] and [356], Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 at [75], Hardt v Environment Protection Authority (2007) 156 LGERA 337 at 348 and Scahill at [69]). 43 I find that the unlawful clearing was not deliberate inasmuch as it was not known by Vin Heffernan to be unlawful at the time. 44 The prosecutor submitted that the state of mind of Vin Heffernan was one of reckless indifference as to whether or not the clearing was authorised. But because, as was revealed in Mr Heffernan's cross examination, at no point did Vin Heffernan ever turn its mind to whether or not the clearing was lawful but wholly accepted Mr Alexander's assurances that all necessary approvals had been obtained, I cannot accept this submission. Rather, in performing the acts constituting the commission of the offence Vin Heffernan's state of mind ought properly be described as negligent. This was agreed to by Vin Heffernan. That is to say, Vin Heffernan ought to have checked, but did not do so, that the clearing it was instructed to perform had been sanctioned (Director-General, Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 at [403]). 45 A further consideration in an examination of Vin Heffernan's state of mind is the fact that although, as it acknowledged, it should have verified the assurances given by Mr Alexander, I accept that its failure to do so was the result of the trust that had developed between Mr Heffernan and Mr Alexander as a consequence of their prior professional relationship. I have no hesitation in inferring that had Mr Heffernan known that the clearing works were unlawful that Vin Heffernan would not have performed the clearing. 46 I find that the unlawful clearance of the vegetation was for financial gain inasmuch as Vin Heffernan was engaged, for remuneration as the invoices demonstrate, to clear the Land of vegetation which included native vegetation (Rae at [11]-[13]). This is not to say that Vin Heffernan committed the offence in order to enhance the commercial value of the Land (as was the case in Rae). It is in this regard the fact that the clearing of native vegetation was for financial reward ought not be considered an aggravating factor similar to that in Rae. 47 These considerations render the objective circumstances of the offence less serious than that suggested by the prosecutor. Practical Measures and Vin Heffernan's Control Over the Activities Giving Rise to the Commission of the Offence 48 Although Vin Heffernan submitted that the agreement between it and Mr Alexander was merely for the provision of machinery and operators to conduct the clearing under the direction and supervision of Mr Alexander, it was not seriously suggested by it that it did not have control over the unlawful clearing and thus could not have taken practical measures to avoid the harm. This submission was undeniably correct. 49 At all times it did. And, as was suggested by Mr Heffernan in his affidavit, Vin Heffernan could have easily sought confirmation of the assurances that Mr Alexander had given Mr Heffernan that the clearing of the vegetation was authorised. Furthermore, as the affidavit evidence of Mr Geraets demonstrates, it was open to Vin Heffernan and its employees to challenge, question and refuse to clear vegetation if there was any belief that it was not lawful to do so. This is because at all times Vin Heffernan was an independent contractor engaged by S&R to perform the clearing. Its position can be contrasted with, for example, an employee who is directed to do an unlawful act by his or her employer where a refusal to do so may result in, for example, termination. Forseeability of Risk of Harm to the Environment 50 I also find that it was reasonably foreseeable that absent ensuring that the clearing of the native vegetation was authorised, that native vegetation would be unlawfully cleared resulting in harm to the environment (Rae at [50]). Conclusion on Objective Circumstances 51 In my view, the commission of the offence is of low to moderate objective gravity. Although a substantial number of native plant species and high value native vegetation was cleared, Vin Heffernan's conduct was not known at the time to be unlawful because it believed the clearing was authorised. These factors diminish the objective seriousness of the offence. The Subjective Circumstances of Vin Heffernan 52 A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat and Rae at [55]. See also s 21A(3) of the CSPA). 53 The subjective circumstances of Vin Heffernan to be considered relevantly include:

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(f) the financial means of Vin Heffernan. 54 Having regard to these subjective circumstances I find that the evidence reveals: (a) Vin Heffernan does not have any prior conviction for any environmental offences (s 21A(3)(e) of the CSPA); (b) Vin Heffernan pleaded guilty at a very early stage in the proceedings, however, it did not plead guilty, despite its submission to the contrary, at the first available opportunity. Vin Heffernan pleaded guilty on the third occasion the matter was before the Court. While Vin Heffernan argued that the delay was caused by an insufficiency of particulars to the charge, I do not, on the evidence before me, accept this contention. Having said this, the utilitarian value of the very early plea of guilty nevertheless remains high. On this basis a discount of 24% is warranted ( R v Thomson; R v Houlton (2000) 49 NSWLR 383, R v Borkowski (2009) 195 A Crim R 1, Rae at [63] and see also ss 21A(3)(k) and 22(1)(a) of the CSPA); (c) Vin Heffernan has expressed, through its managing director, Mr Heffernan, contrition and remorse for its breach of the NVA. I accept this expression as genuine. While the prosecutor submitted that the expression was late insofar as it came after the record of interview where Mr Heffernan refused to answer some of the questions put to him, and therefore, it should be attributed less weight, I reject this suggestion. The contrition and remorse expressed by Vin Heffernan is legitimate and was not undermined, despite an attempt to do so by the prosecutor, by the cross examination of Mr Heffernan. I therefore accord this factor full weight (s 21A(3)(i) of the CSPA). Vin Heffernan also submitted that the entry of the plea of guilty was an aspect of its contrition and remorse. This is not so. There are many reasons why a defendant may plead guilty to an offence. Remorse need not be one of them. The same comment may be made with respect to the assistance Vin Heffernan gave to the prosecuting authorities (see below); (d) as the testimonial evidence and affidavit evidence of Mr Heffernan revealed, Vin Heffernan may be described as being of good character (this was accepted by the prosecutor) (see s 21A(3)(f) of the CSPA); (e) there being no evidence that Vin Heffernan would be unable to pay any monetary penalty imposed by the Court, this factor is irrelevant (s 6 of the Fines Act 1996); and (f) it is clear that Vin Heffernan has provided assistance to the regulatory authorities. This factor is discussed in further detail immediately below. Assistance to Regulatory Authorities 55 Vin Heffernan provided assistance to the prosecuting authorities insofar as it attended an interview and answered some, but not all, of the questions asked of it. It also assisted in the preparation of an agreed statement of facts and through its managing director, Mr Heffernan, it has provided evidence to the prosecutor in the prosecution of Mr Alexander and S&R in related criminal proceedings arising from the clearing of native vegetation from the Land. This latter assistance has culminated in the swearing of affidavits by Mr Heffernan and Mr Geraets in the other proceedings. 56 Vin Heffernan therefore submitted that it should receive an additional and separate discount for the assistance it had provided in the related criminal proceedings. 57 The prosecution, by contrast, submitted that absent a complete understanding of the details of the prosecution case against Mr Alexander and S&R, the true value of Vin Heffernan's assistance in those proceedings was difficult, if not impossible, to quantify. Moreover, because Mr Alexander had voluntarily participated in a record of interview in those prosecutions, the assistance given by Vin Heffernan, through its managing director and employee, could not be viewed as significant. As a consequence, the prosecution submitted that nowhere near the 30-50 per cent total discount suggested by Vin Heffernan ought to be given consequent upon this assistance, although it properly acknowledged that it was a subjective factor that the Court should take into account in determining the appropriate penalty in these proceedings (ss 21A(3)(m) and 23 of the CSPA). 58 I agree with the submissions of the prosecution. Nowhere near the totality of the material in the related criminal prosecutions has been put before the Court. For example, the Court has not been furnished the summonses. It is therefore impossible to assess the true value of Vin Heffernan's assistance to those related criminal proceedings. I am therefore disinclined to give a separate, specific and quantifiable discount to Vin Heffernan on the basis of this assistance (R v Gallagher (1991) 23 NSWLR 220 at 228-230). 59 Furthermore, I certainly do not accept that any separate discount for the assistance given by Vin Heffernan and for its early plea of guilty would result in a total discount towards the higher end of "the normal range of 30-50 per cent", as was suggested by it (R v Stelfox (2002) 133 A Crim R 288 at [13]). Nevertheless, recognition must be given, and I do so, to the additional assistance Vin Heffernan has given the prosecutors in the related proceedings. Costs 60 Vin Heffernan has agreed to pay the prosecutor's costs in the amount of $30,000 to be paid within 28 days. I have taken this fact into account (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [66]-[70]). Conclusion on Subjective Considerations 61 The subjective considerations of Vin Heffernan operate to mitigate the penalty to be imposed to a reasonable degree. Deterrence 62 A significant component in the determination of any penalty for the commission of a criminal offence, particularly the unlawful clearing of native vegetation, is that of deterrence (Rae at [8]-[9]). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring both the offender and any other person from committing similar offences. 63 In Thomson v Hawkesbury City Council [2009] NSWLEC 151 I quoted Gittany in relation to the applicable principles with respect to deterrence as a component of an appropriate penalty for offences (Thomson at [114]). I adopt those principles for present purposes (and see Rae at [8]-[9]). 64 Vin Heffernan submitted that specific deterrence was not a relevant consideration. This was because, first, the offence was an isolated incident over its five decades of operation, second Mr Heffernan was downsizing the company due to a commensurate reduction in the activities of Vin Heffernan, and third, Mr Heffernan's advanced age. In addition, and as the evidence of Mr Heffernan demonstrated, a risk management system had now been implemented to ensure that prior to performing any clearing work all authorisations were examined by the company. 65 While I consider it highly unlikely that Vin Heffernan will reoffend (s 21A(3)(g) of the CSPA), given that Vin Heffernan continues to engage in clearing activities and cannot guarantee that it will no longer engage in vegetative clearing, in my view, a component of specific deterrence remains, albeit very small. 66 General deterrence is, however, highly relevant. It is important in light of the aims of the NVA to prevent clearing of native vegetation absent consent (Rae at [9] and Hudson at [81]-[88]). In Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t/as Jerilderie Earthmoving [2009] NSWLEC 182 Pain J (at [52]) took judicial notice of long standing difficulties for authorities in managing uncontrolled native vegetation clearances in the state. 67 It is also fundamentally important to ensure that other contractors engaged to perform clearing works do not simply rely on the verbal assurances of those engaging them that the clearing they are to perform has been authorised. Contractors must ensure for themselves that the work they are performing, even if at the direction of those hiring them, is at all times lawful. If there is any doubt, the work should not be performed. Consistency in Sentencing 68 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[183] 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 and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]). 69 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365 and Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312). 70 The pattern of sentencing against which the present case falls to be considered was examined by the Chief Judge of the Court in detail in Rae (at [77]-[91]). I repeat that useful analysis in full: 77 For the offence against s 12(1) of the Native Vegetation Act , the offence in the present case, there has been only one case to date, that of Director-General, Department of Environment and Climate Change v Hudson . The principal defendant was fined $400,000 and ordered to pay the prosecutor's costs. The objective gravity of the offence was high: the area of land cleared of native vegetation was large, some 486 hectares; the offence was committed deliberately and after the defendant had been told expressly by an officer of the relevant regulatory authority that native trees must be retained on the land; the offence was committed to make the land more available for agriculture and hence for commercial gain; the harm to the environment caused by the offence was substantial; and there was a need for both individual deterrence (to prevent the defendant from re-offending) and general deterrence (to send a message that provisions designed to further environmental interests of the State will be fully enforced). There were no mitigating factors: there was no plea of guilty; no assistance to the investigating or prosecuting regulatory authority; no expression of contrition or remorse; and there was no remediation or offer to remediate the environment harmed by commission of the offence. The defendant was, however, a first offender.

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91 In Lamattina , the area cleared was 73.4 hectares and had a significant effect on the habitat of the Red-tailed Black Cockatoo, a listed threatened species. Mansfield J imposed a civil pecuniary penalty of $220,000 on the corporation and made an order for costs. In Lamattina , the clearing of the native vegetation also constituted an offence against s 26 of the Native Vegetation Act 1991 (SA). Both the corporation and an individual were charged with offences against the South Australian Act for clearing not only the area of 73.4 hectares that was the subject of the federal prosecution but also a further area of 274.8 hectares. The corporate defendant was fined in total $68,000 for the offences and the individual was fined $51,000: see Lamattina v Gould . 71 In Rae the defendant pleaded guilty to an offence under s 12(1) of the NVA. An area of 215 ha was partially cleared including an area of 155 ha which was cleared of 95 per cent of all trees. Most of the trees cleared were mature, with some in excess of 17 m in height. In that case the defendant knew that he needed consent to clear but proceeded without it. The clearing was premeditated and intentionally carried out with the knowledge of its seriousness. The trees were cleared to improve the property by making it more viable for agricultural purposes and to increase its capital value. The native vegetation that was cleared had significant conservation status and contributed to biodiversity. The Court held that there was a high degree of environmental harm and the seriousness of this harm was considered an aggravating factor in sentencing. The defendant agreed to an order to remediate the site. Overall, the offence was considered to be of medium objective gravity. Mitigating factors considered included the absence of prior offences, the defendant's good character, the defendant's early guilty plea (although not at the earliest opportunity), and the defendant's expression of contrition of remorse and assistance in the investigation. A fine of $160,000 was imposed. 72 In Calman the Court fined three defendants (two landowners and a contractor) the sum of $22,000 each for the unlawful clearing of 21 ha of land which included mature trees contrary to s 12(1) of the NVA. In committing the offence the defendants acted neither deliberately nor recklessly, and moreover, were not negligent. Rather, the offences were committed without any knowledge that the clearing was illegal under any law. The defendants' culpability was assessed as low, however, the environmental harm caused was reasonably substantial. The defendants had no prior convictions, had expressed contrition and remorse and had agreed to a remediation order. The prosecutor's costs of $73,000 were significant and each defendant was ordered to pay a third of them. 73 In Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 the Court fined Mr Mura $20,000, but reduced it to $5,000 because of his poor financial circumstances, which most likely meant that he would be unable to pay the fine. In that case, approximately 12 ha of native vegetation were cleared by use of a bulldozer which predominantly left the canopy trees in tact. The purpose of the clearing was to retain the landscape featuring canopy trees and replace a scrub and groundcover with grasses to facilitate pasture improvement for the purpose of grazing cattle thereby increasing its grazing yield and improving its value. Whilst the defendant was conscious of the possibility that consent might be required, the defendant's state of mind was that he had formed the impression that the authorities did not have any objection to the work about which he had informed them earlier. 74 Finally, in Colley the defendant was fined $5,000 for the removal of 128 trees and the thinning of approximately 29 ha of woodland vegetation. The tree species had a high ecological value and adversely impacted upon the habitat for bird and bat species, as well as a substantial number of individual reptiles and frogs. The clearing also negatively impacted on the condition of the native vegetation remaining on the property. The commission of the offence was not intentional and the culpability of the defendant was not assessed as high. The defendant pleaded guilty at the earliest available opportunity, voluntarily participated in an interview with the investigating authorities and expressed contrition and remorse. In addition, the defendant had very limited means to pay a substantial fine. As a consequence the defendant was fined the nominal sum of $5,000. 75 Vin Heffernan submitted that the circumstances of this case were considerably more aligned to those in Calman than to those in Rae. Ultimately, the prosecution did not cavil with this proposition. I agree, and subject to the present defendant's state of mind increasing its culpability, I find the facts as found in the present case to be relevantly analogous to those in Calman. Appropriate Penalty to Be Imposed 76 In all the circumstances of this prosecution and synthesising both the objective gravity of the offence and the subject factors of Vin Heffernan, I consider that an appropriate penalty to be imposed is a fine in the sum of $45,000, discounted by 33%, which results in a monetary penalty of $30,150.00. This penalty is imposed having regard to the cases and factors discussed above and bearing in mind that Vin Heffernan has agreed to pay costs in the amount of $30,000. Orders 77 For the reasons articulated above, the Court makes the following orders: (1) the defendant is convicted of the offence as charged;

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Cases Cited (39)

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