Director-General, Dept of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t-as Jerilderie Earthmoving

Land and Environment Court (NSW)|2009-07-01|Before: Pain J, Ms P, Mr P

CITATION : Director-General, Dept 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

PROSECUTOR Director-General, Department of Environment and Climate Change PARTIES : DEFENDANT Calman Australia Pty Ltd (50015 of 2009) Iroch Pty Ltd (50016 of 2009) GD & JA Williams Pty Ltd t/as Jerilderie Earthmoving (50019 of 2009)

FILE NUMBER(S) : 50015 of 2009; 50016 of 2009; 50019 of 2009

KEY ISSUES: ENVIRONMENTAL OFFENCES :- sentence - clearing native vegetation by landowners and contractor - offences committed without knowledge of illegality - not committed deliberately, recklessly or negligently - clearing undertaken for commercial gain - environmental harm foreseeable and preventable - mitigating factors - lack of prior criminality - prior good character - plea of guilty - delay in plea reduced its utilitarian value - remorse - offer to carry out remedial work under statutory direction - assistance to authorities - parity in sentencing three defendants

Crimes (Sentencing Procedure) Act 1999 s 3A, 17, 21A Environmental Planning and Assessment Act 1979 s 126 Environment Protection And Biodiversity Conservation Act 1999 (Cth) LEGISLATION CITED: Native Vegetation Act 2003 s 3, 12, Native Vegetation and Conservation Act 1997 s 17, 21 (repealed) National Parks and Wildlife Act 1974 Protection of the Environment Operations Act 1997 Threatened Species Conservation Act 1995

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 35 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Director-General of the Department of Environment and Climate Change v Taylor [2007] Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 EPA v Barnes [2006] NSWCCA 246 Environment Protection Authority v Capdate Pty Ltd (1992) 78 LGERA 349 Environment Protection Authority v Robinson [2004] NSWLEC 629 CASES CITED: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Hoare v R (1989) 167 CLR 348 Lowe v The Queen (1984) 154 CLR 606 Minister for the Environment and Heritage v Greentree (No. 3) (2004) 136 LGERA 89 Newcastle City Council v Pepperwood Ridge (2004) 132 LGERA 388 R v Borkowski, [2009] NSWCCA 102 R v Canino [2002] NSWCCA 76 R v Olbrich (2000) 117 A Crim R 326 R v Sharma (2002) 54 NSWLR 300 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v The Queen [No. 2] (1988) 164 CLR 465

TEXTS CITED: Judicial Commission of New South Wales, Sentencing Bench Book (10th edition, October 2008)

PROSECUTOR Ms P Lenehan (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Department of Environment, Climate Change and Water DEFENDANT Mr P Clay SOLICITORS Mr A Bisits

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50015 of 2009 Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd

50016 of 2009 Director-General, Department of Environment and Climate Change v Iroch Pty Ltd

50019 of 2009 Director-General, Department of Environment and Climate Change v GD & JA Williams Pty Ltd t/as Jerilderie Earthmoving

JUDGMENT 1 Her Honour: The Defendants have all pleaded guilty to the offence of clearing native vegetation contrary to s 12(1) of the Native Vegetation Act 2003 (the NV Act). The offences occurred from 27 September 2006 to 24 May 2007 on Lot 136 in Deposited Plan 803593 and Lot 5 in Deposited Plan 1000390 at Tocumwal (the property). The directors of Calman Australia Pty Ltd (Calman) and Iroch Pty Ltd (Iroch), registered proprietors of Lot 136, contracted with the director of GD & JA Williams Pty Ltd trading as Jerilderie Earthmoving to undertake the clearing that gave rise to the offences. The native vegetation which was cleared was River Red Gum (Eucalyptus camaldulensis). The clearing was to take place on Lot 136. A small area of the neighbouring Lot 5 was also cleared inadvertently, there being no fence to delineate Lot 136 from Lot 5. That land is also owned by the directors of Iroch and Calman. The Defendants have to be sentenced. Statutory scheme 2 Section 3 of the NV Act sets out the objects of the 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. 3 Section 12 of the NV Act provides the offence of clearing: (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 Section 126 of the Environmental Planning and Assessment Act 1979, (the EP&A Act) referred to in s 12(2) of the NV Act in relation to the maximum penalty, provides: (1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units. … (3) Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person: (a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and (b) to provide security for the performance of any obligation imposed under paragraph (a). 5 One penalty unit is $110 pursuant to s 17 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). The maximum penalty for each Defendant is $1.1 million with a maximum daily penalty of $110,000. The Prosecutor considers that a daily penalty ought not be imposed. 6 The NV Act, introduced into Parliament in 2003, came into force on 1 December 2005. Prior to this Act a similar offence and penalty provision was provided by s 17 and s 21 of the Native Vegetation Conservation Act 1997 (the NVC Act) (in force from 1 January 1998, now repealed). The maximum penalty for an offence against that section was also provided in s 126 of the EP&A Act, being $1.1 million.

7 As the Defendants have pleaded guilty to this strict liability offence it can be assumed that all the elements of the offence are admitted. 8 In relation to the two Defendant landholders, Calman and Iroch, the essential elements of the offence which are assumed to be admitted are: (a) clearing occurred on the landholders' property between 27 September 2006 and 24 May 2007; (b) the clearing was of "native vegetation" as defined in the NV Act; (c) there was no development consent granted under the NV Act for the clearing; (d) there was no property vegetation plan authorising the clearing; and (e) the landholders authorised and/or carried out the clearing. 9 In relation to the Defendant contractor, Jerilderie Earthmoving, the essential elements of the offence which are assumed to be admitted are: (a) clearing occurred on two lots of land between 27 September 2006 and 24 May 2007; (b) the clearing was of " native vegetation " as defined in the NV Act; (c) there was no development consent granted under the NV Act for the clearing; (d) there was no property vegetation plan authorising the clearing; and (e) the contractor authorised and/or carried out the clearing

10 The Defendant landholders, Calman and Iroch, by the Defendant contractor, Jerilderie Earthmoving, cleared native vegetation by means of machinery including a chain saw, bulldozer and a loader with a stick rake. No issue of lack of authorisation was raised about the clearing on Lot 5 by the Defendant contractor although this is not owned by the two corporate defendants. 11 The parties usefully provided a Statement of Agreed Facts (the SOAF). The essential elements of this are as follows: … 10. The Defendant, Jerilderie Earthmoving, and its employee, Gordon Stacpoole, cleared native vegetation on Lot 136 and Lot 5 in Deposited Plan 1000390, Parish of Tocumwal, County of Denison, local government area of Berrigan (Lot 5). 11. At all relevant times Gary Williams was a director of Jerilderie Earthmoving. … 16. Lot 136 and Lot 5 are used as a single parcel of land with other land those two lots have a total area of 191.79 hectares. Each of the lots is zoned 1A General Rural pursuant to Berrigan Local Environmental Plan 1992. Agriculture is permissible without development consent in the zone. The other lots in the parcel are Lot 138 and Lot 4. The total area of the parcel which is used as one unit is about 450 hectares 17. The Murray River is the southern boundary of Lot 136 and Lot 5. 18. The Property is immediately adjacent to a 200 acre vineyard to the north of Lot 136 and Lot 5. The vineyard is owned and operated by Calman and Iroch. 19. At all relevant times Lot 136 was jointly owned by Calman and Iroch: · Calman has two directors: Michael Calman and Mary Calman. · Damian Ireland was the sole director of Iroch. 20. At all relevant times Lot 5 was jointly owned by two individuals: · Mary Calman (also a director of Calman); and · Damian Ireland (the sole director of Iroch).

… 25. Calman and Iroch purchased the Lots 136 and Lot 5 in 1999 and clearing commenced sometime in September 2004. [Note: The parties agree this statement is strictly incorrect as Lot 5 is not owned by Calman and Iroch but nothing turns on this.] A bulldozer (Komatsu D85) … and a loader (CAT960) with a stick rake were used to up root the trees which were then cut into logs and stockpiled in eight woodpiles. … 26. Development consent was obtained to build a residence on Lot 5 where the Landholders and their families stay when visiting the vineyard. The general conditions to Development Determination No. 17/05/DA/DN for Lot 5 are contained in Annexure 'B2'. [not attached] 27. The clearing was done to diversify the use of the Property to include dry land grazing. 28. The landholders felt a responsibility to remove the vegetation "to enable larger red gum trees to thrive and to maximise the aesethic beauty of the property." The clearing was done "to enhance and protect the property from risks such as bushfires and to assist in the financial sustainability of the property." 29. "Gary Williams agists cattle on another section of the property well to the east of Lot 136 and the vineyard. In return Gary has agreed to maintain the roads on and around the vineyard which requires periodic grading and maintenance of the dam which he constructed for" the Landholders in 2000. 30. … 31. The stumps of the trees were then burnt. Some areas were levelled after clearing operations and in most areas the original leaf litter, branch debris and native ground cover were removed and burnt.

THE AGREEMENT TO CLEAR 32. Sometime in 2004 an informal agreement was made between the landholders, Calman and Iroch and the Contractor to clear native vegetation on Lot 136. 33. Clearing on Lot 136 was commenced by the Contractor, Jerilderie Earthmoving, in September 2004. 34. The Landholders wanted vegetation removed on a gradual basis over a period of time. 35. Although Jerilderie Earthmoving did not receive payment for the clearing on Lot 136 and Lot 5 it was to receive an ongoing benefit by agisting cattle on the Lots once cleared. 36. The Landholder left it to the Contractor's discretion to determine which areas of vegetation were to be cleared. 37. Under the agreement the landholders, Calman and Iroch, would receive road grading and the removal of vegetation to allow better access generally. 38. The Contractor was permitted to agist cattle on Lot 136 and to make improvements to the land to enable grazing and the sowing of pasture. 39. Gary Williams was running cattle on another property owned by Calman and Iroch and wanted additional land to run cattle on. 40. The Defendants planned to burn the cleared trees.

THE CLEARING OF VEGETATION 41. The native vegetation cleared was River Red Gum Eucalyptus Camaldulensis. This species is "native vegetation" within the meaning of the NV Act. 42. Most of the 21 hectares cleared occurred on Lot 136. A small amount of clearing also occurred in the south-west corner of Lot 5. The clearing on Lot 5 is estimated at half a hectare. 43. Native vegetation not stacked in woodpiles was burnt by Gary Williams. 44. Jerilderie Earthmoving also employed Gordon Stacpoole to clear native vegetation using a dozer (Komatsu D85) and a loader (CAT 960) with a stick rake to push over the trees from 27 September 2006 until 24 May 2007. The contractor instructed Mr Stacpoole to "flatten it all" as it was to be cleared for cattle feed. The clearing was in a line, averaging about 3 chains wide - a chain is a term of measurement and it equates to 22 feet. 45. Native vegetation was cleared so that the land could be used for grazing cattle. 46. Native vegetation was cleared across four separate areas. 47. Unsuitable Red Gums were stacked and burnt. 48. No threatened plant species were recorded in the cleared areas. 49. The clearing the subject of these proceedings commenced on 27 September 2006 as detailed in the following five (5) invoices issued by Jerilderie Earthmoving to Gordon Stacpoole: · 8 October 2006 (38hours from 27 Sept. 2006 to 7 Oct 2006); · 26 October 2006 (17hours over 3 days); · 24 March 2007 (15.5 hours from 3 March 2007 to 14 March 2007); · 29 April 2007 (32.5hours); and · 18 May 2007 (73hours).

SITE INSPECTION 50. On 9 August 2007 DECCW officers, Sewell and Whitehouse conducted a field investigation at the Property and recorded the content of woodpiles 1 and 2. … 51. Eight (8) woodpiles of felled trees were observed on the Property. All woodpiles were surveyed and felled trees counted and collated in Table 1 below. Table 1: Contents and Descriptions of Tree Piles Pile No. Tree species Approx. number of stems >15 cm Sample diameters of stems (cm) 1 Eucalyptus camaldulensis 248 29.7, 36.3, 41.0, 48.5, 18.7, 36.8 2 Eucalyptus camaldulensis 175 46.0, 51.0, 37.5, 41.2, 65.2, 65.4, 59.5, 72.3 3 Eucalyptus camaldulensis 143 37.3, 60.4, 45.0, 37.6, 34.0, 51.7, 29.5 3 Eucalyptus camaldulensis 46 (includes one stem with hollows) 26.7, 33.4, 28.2, 41.0 4 Eucalyptus camaldulensis 186 67.8, 61.3, 45.5, 60.2, 33.6, 28.9, 45.2 5 Eucalyptus camaldulensis 33 55.0, 24.4, 33.0, 41.8 6 Eucalyptus camaldulensis 573 54.7, 48.5, 69.9, 43.4, 32.1, 36.8 7 Eucalyptus camaldulensis 865 56.0, 58.0, 59.5, 47.0, 31.8, 38.0 8 Eucalyptus camaldulensis 114 100, 98.2, 49.0, 46.8, 66.0

Remote Sensing Interpretation 52. Annexure 'E' [not attached] contains aerial photographs and spot images between 1969 and 2008 of Lot 136 and Lot 5. Mr Stuart Lucas, a Natural Resources Project Officer (Resource Mapping) with DECCW in the Remote Sensing Section at Albury is an expert in the interpretation of land cover in aerial photographs and satellite images and has examined and interpreted the data in Annexure 'E'. Mr Lucas found the following: · Areas 4b, 3, 2 and 1 were cleared of almost all trees/scrubs prior to 16 February 1969. Area 4a had the understorey removed and maybe some thinning of larger trees. The vegetation structure is woodland, with part being open woodland. · In the 21 December 1976 aerial photograph a thick cover of woody vegetation occurs on Areas 4a, 4b, 2 and 1. The structural form is open woodland. · The thick cover of woody vegetation observed in the 1976 aerial photograph have now developed into small to medium sized trees in the April/June 1991 orthophoto and 20 February 1991 aerial photograph and there is no evidence of any deliberate clearing or thinning activities to vegetation within the defined areas. The vegetation structure is woodland, with part the area being open woodland. · The 14 February 1996 aerial photograph and orthophoto show re established vegetation cover observed on 1976 and 1991 aerial photographs is intact and trees have grown larger. There is no evidence of any management activity to change or disturb vegetation within the defined areas. The structural form of the native vegetation is open woodland/forest. · The 4 May 2003 aerial photograph illustrates re established vegetation cover observed on the 1976 aerial photographs, and later images, is intact and trees have grown larger. No evidence of any management activity to change or disturb vegetation within the defined areas. The vegetation structure is woodland to open woodland/forest. · No changes are observed between 2003 aerial photographs and the 26 December 2004 Spot image. The 2004 spot imagery shows re established vegetation cover observed on the 1976 aerial photographs, and later images is intact. There is no evidence of any management activity to change or disturb vegetation within the defined areas · The 2008 spot imagery identifies tree clearing by mechanical disturbance between 2004 and 2008 within each of areas 1 to 4. 53. None of the Defendants made any inquiries as to whether the vegetation to be cleared was regrowth as defined in the NV Act. 54. The Defendants failed to make any inquiries as to whether approval would be required for the clearing. They made no inquiries as to what requirements were necessary prior to clearing vegetation on the Property. In particular, they did not contact either the Council or the Catchment Management Authority. 55. On 24 May 2007 clearing ceased on Lot 136 and Lot 5 at the request of Department of Environment, Climate Change and Water ("DECCW") (formerly the Department of Environment and Climate Change ("DECC") ). 56. Some areas were mechanically levelled after the clearing operations and in most areas the original leaf litter, branch debris and native groundcover was removed or burnt;

Iroch Record of Interview 57. On 10 June 2008, during a voluntary interview under caution, the Defendant, Iroch, through its director, Mr Damian Ireland, made the following admissions: (i) The clearing on Lot 136 and Lot 5 was authorised by Iroch and Calman over the previous three or four years; (ii) Trees larger than suckers were cleared on the Property; (iii) He thought he could clear 30 acres a year and that the clearing undertaken was within those limits. (iv) He thought you were allowed to remove anything up to 20cm in diameter; (v) He attended the Property about three times a year; (vi) He allowed the Contractor to clear the areas that had the most potential for what the Contractor needed and in return the landholders got cleared access tracks and road maintenance on the Property; (vii) He just wanted to thin the vegetation to run cattle.

Calman Record of Interview 58. On 10 June 2008, during a voluntary interview under caution, the Defendant, Calman, through its director, Mr Michael Calman, made the following admissions: (i) He was at the Property on 20 October 2006, 22/23 January 2007, 9 to 12 March 2007 and 13 April 2007; (ii) The Landholders gave the Contractor permission to clear Lot 136; (iii) He was present on 'one weekend' when Gary was clearing with the bulldozer. He can't remember when it was exactly. 'I saw him knocking over these suckers and pushing them to one side.' This was in 'Area 4'; (iv) He was happy with the work that had been done by the Contractor and thought the property looked a lot better cleared. (v) He did not want to remediate as it would defeat the purpose of the clearing; (vi) He was present when some of the clearing was being done. (vii) The landholders did not really have any plans for the timber. They were going to just burn it or use it for firewood. The instructions to the Contractor were to get rid of it as quickly as possible. 59. The Landholders viewed the work progressively as it was carried out by the Contractor. Jerilderie Earthmoving Record of Interview 60. On 14 March 2008, during a voluntary interview under caution,, the Defendant, Jerilderie Earthmoving, through its director, Gary Williams, made the following admissions: (i) He supervised all the clearing on Lot 136 and Lot 5; (ii) Calman, Iroch and the Contractor decided to clear land for grazing cattle; (iii) He did not receive payment for the clearing; it was to receive an ongoing benefit of agisting cattle on Lot 136 once cleared. (iv) He employed, supervised and instructed Gordon Stacpoole to carry out the clearing. (v) He owns the machinery used to carry out the clearing. (vi) The eight woodpiles of felled trees still remain on the Property. (vii) He made no inquiries regarding the law relating to the clearing of native vegetation. He thought that private land could be cleared except within 50m of the Murray River and that no approvals for clearing were needed. (viii) He did not contact the Council, CMA, DECC, Fire Brigade or anyone to inquire if approval was needed to clear native vegetation. 61. On 2 June 2008, during a voluntary interview under caution,, the Defendant, Jerilderie Earthmoving, through its director, Gary Williams, made the following admissions: (i) He had recently cleared vegetation in parts of Areas 1 to 4.[A51 and 52]. (ii) The areas he cleared were "all good soil, good clearing." so he could plant crops for grazing. (iii) He used the chainsaw to tidy up the felled trees and then stacked them and Mr Stacpoole used the dozer. (iv) He and the Landholders intended to use the felled trees for firewood as "it was too good to burn" and "its getting hard to find too, because you are not allowed to touch wood anywhere."

REMEDIATION ORDER 62. Calman and Iroch have agreed to complete remediation work on Lot 136. Remediation work has not been required on Lot 5. 63. The agreed Remedial Work includes: · the setting aside of 47 hectares to be preserved and enhanced as native vegetation; · the area to be fenced with an electric fence; · the area is adjacent to the Murray River and well forested with River Red Gum, · the area is not to be farmed in any way including that there be no grazing; · reporting and monitoring requirements (for ten years). 64. Remedial work has begun and is to be completed by 30 September 2009. Environmental harm 12 The parties also reached agreement in the SOAF concerning the level of environmental harm caused by the offences. A total of 21 hectares of native vegetation as defined in the NV Act was cleared on Lot 136 and Lot 5. The understorey associated with red gum is largely herbaceous; shrubs are usually scarce. Among the most important families are the grasses, daisies and sedges (Murray-Darling Basin Commission 2006). Much of the original leaf litter, debris and groundcover plants were removed during the clearing. The groundcover plants probably included native grasses, sedges, rushes and forbs similar to the suite of groundcover species which occur in the remaining stands on the property. No threatened plant species were recorded on Lot 136 or Lot 5. Joint experts conference 13 On Thursday, 17 September 2009 the experts conferred and agreed to the following: (i) That native vegetation was cleared from the property within the meaning of the NV Act; (ii) That clearing was of River Red Gum open forest. (iii) That at least eight woodpiles exist on the property and the logs in the woodpiles are older than 15 years. (iv) Currently live trees exist on the property which are over 100 years old; (v) The cleared area provided potential habitat for the Superb Parrot and the Grey-crowned Babbler; (vi) The cleared vegetation created potential for erosion; (vii) That there was no evidence of smaller trees in the woodpiles as they were probably mulched and/or burnt. In most areas the original leaf litter, branch debris and native groundcover was apparently removed or burnt; (viii) No endangered ecological communities (EEC) were cleared on the property. Prosecutor's evidence 14 The Prosecutor relied on the SOAF. Defendants' evidence 15 Michael Calman swore an affidavit on 21 September 2009 which was read in part. Mr Calman is, along with his wife, a director of Calman. Calman has co-owned the property with Iroch since it was purchased in 1999. In 2001 to 2002 Mr Calman considered the area, which was subsequently cleared, to be unproductive thick growth which was difficult or impossible to drive through. There were signs of past clearing including stumps and felled wood. Cattle were difficult to manage in the absence of cleared tracks through the area. In 2004 Mr Calman retained Mr Williams to clear thick growth on the property. Mr Calman was aware that cattle had grazed in the area in the past and he believed the clearing would allow for past agricultural activity to resume. It did not occur to Mr Calman that any permission or consent was required. No clearing occurred and none was requested to occur within 50m of the Murray River. An existing track in that area was made passable again by grading. Mr Calman states that Calman has not previously been convicted of any offence. He is sorry that the offence was committed and it was not committed deliberately. He understands that the Department of Environment and Climate Change (DECC) is required to decide whether native vegetation should be cleared. Mr Calman says that it is his intention to remediate the cleared land. He states that he would have sought to obtain the required permission if he had been aware that it was required. He would also have offered to keep areas protected from clearing as the company has always intended to maintain a substantial part of the property as native vegetation. 16 Damian Ireland, sole director of Iroch, swore an affidavit on 19 September 2009. Mr Ireland states that he, with Mr Calman, engaged Gary Williams to carry out clearing work in 2004. He did not believe that the clearing required permission or consent because he believed a certain amount of clearing each year was permissible on a rural property. He states that the aim of the clearing was to improve that land by cultivating and sowing pasture for cropping and/or grazing, to remove dead and dying regrowth suckers to minimise fire hazards and to gain access to the property boundaries for fencing and fire protection. Mr Ireland states that he has since come to understand the importance of the protection of native vegetation and obtaining consents for clearing. He believes that the harm done has been well and truly compensated for by the setting aside of 47 hectares of land for remediation. He states that had consent been sought for the clearing he and Mr Calman would have offered to set aside areas of the property they owned to be maintained as native vegetation. They did not have the intention to remove all native vegetation on the property. Mr Ireland is sorry that the company breached the law and assures the Court that proper enquiries will be made in the future where consent is required. Iroch has not previously been convicted of any offence. Mr Ireland is a part time member of the Victorian Civil and Administrative Tribunal and a consultant hand surgeon who runs goodwill teaching excursions to the Pacific Rim and South East Asia. 17 Gary Williams, sole director of Jerilderie Earthmoving, swore an affidavit in September 2009 which was read in part. Mr Williams began Jerliderie Earthmoving twenty years ago. Its business is earthmoving and land clearing. Mr Williams manages the business and has done earthmoving and land clearing for more than twenty years. He has never before been prosecuted for a clearing offence. He states that at the time of the offence he was unaware of the NV Act including the offence provisions and that he was unlikely to have found out about the changes to the legality of land clearing without it having been specifically brought to his attention. Mr Williams attests to having carried out various works for Mr Calman in 2002, 2003, 2004, and 2005. In 2004 Mr Williams had a conversation with Mr Calman and Mr Ireland about clearing some areas on the property. An agreement was reached whereby Mr Williams would clear the area without charge in return for being able to graze some of his cattle on the property. Mr Williams estimated that proper commercial rates for the clearing undertaken in 2006 and 2007 was approximately $55,000 to $60,000. He did not discuss with Mr Calman or Mr Ireland whether permission was required and he believed that no permission was required. He believed he was not permitted to clear within 50m of the Murray River and he did not clear any trees next to the river. He intended to sow native grasses on the cleared areas. Mr Williams states that he always intended to cooperate with the DECC investigation and that he answered questions in his interview with a DECC officer honestly. Mr Williams expresses regret on behalf of his company and is sorry for carrying out the clearing without the necessary permission. He realises now that he was foolish not to make enquiries as to whether permission was required. He states that in the future he will seek permission for clearing where required. Mr Williams attests to his company having made annual donations to local community organisations. 18 Character references for each of the directors of the Defendants who gave evidence, namely Mr Williams, Mr Calman and Mr Ireland, were tendered. Each character reference acknowledged that the clearing offence had been committed by the Defendants and attested to the excellent character of each of the directors. Purposes of sentencing 19 Section 3A of the CSP Act identifies the purposes of sentencing as follows: 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.

20 In Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Preston J identified a number of purposes of sentencing in the context of the same type of offence at [9]-[12] in light of the objects of the NV Act. These included the need for general deterrence for offences of clearing native vegetation, particularly as this is highly likely to be carried out for commercial gain. His Honour considered commercial gain for agricultural purposes at [12], referring to Minister for the Environment and Heritage v Greentree (No. 3) (2004) 136 LGERA 89 (Greentree (No 3)). Objective circumstances of the offence 21 An appropriate sentence is to be determined after consideration of the objective and subjective circumstances of an offence given that: …a basic principle of sentencing law is that a sentence…imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).

per Hoare v R (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

22 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 concerned an offence under the Threatened Species Conservation Act 1995 and the National Parks and Wildlife Act 1974. The matters relevant to sentencing discussed by Preston J at [134]-[158] apply to environmental offences such as these matters. In Bentley Preston J held at [163] that: Amongst the objective circumstances that the Court may consider are: (a) the maximum penalty for the offence; (b) the objective seriousness of the offence having regard to its peace [sic - place] in the statutory scheme; (c) the harm caused to the environment, and particularly the components of the environment harmed in the short and long term by the commission of the offence; (d) the state of mind of the offender in committing the offence; (e) the foreseeability of the risk of harm; (f) the practical measures to avoid foreseeable risk of harm; and (g) the reasons for commission of the offence. Prosecutor's submissions 23 The Prosecutor submits that factors (a), (b), (e), (f) and (g) listed in s 3A of the CSP Act are most relevant to each of the Defendants.

24 The Prosecutor states that it is important to have regard to the objects of the NV Act, set out in s 3 of that Act, to give context to the offending conduct. A principal means by which these objects are achieved is by the prohibition on clearing of native vegetation unless consent is applied for and obtained, which process requires an environmental impact assessment to be undertaken. Clearing without consent undermines the environmental impact assessment process and the purposes of ecologically sustainable development including intergenerational equity and biological diversity, see Bentley at [65]-[71], [168] and [169], Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 at [76] and Rae at [18]-[19].

25 As there is no statutorily prescribed criteria for assessing the objective seriousness of the offence, those criteria identified in Bentley at [163] are appropriate. The high maximum penalty of $1.1 million for the offence reflects the seriousness with which Parliament views the offence of clearing of native vegetation contrary to s 12(1) of the NV Act, see Rae at [13], Bentley at [145].

26 There was considerable environmental harm. Approximately 21 hectares of land were cleared and most of the trees cleared were mature, see SOAF at par 52 and 65-71. The report of Mr Lucas, natural resources project officer with DECC, states that the vegetation generally dated from re-establishment in the early 1970s, see SOAF par 52.

27 The harm of clearing 21 hectares of native vegetation was foreseeable and could have been avoided by the compliance with the legislative scheme. Had the Defendants made a request to the relevant regulatory authority, an appropriate evaluation would have occurred. The Defendants chose to ignore this process. 28 In terms of the Defendants' state of mind, the SOAF makes it plain that the Defendants should have known that the NV Act applied to freehold land, knew that the trees were native, knew that clearing could require consent and carried out the clearing for financial gain. Mr Williams, director of Jerilderie Earthmoving, is in the business of land clearing and as a responsible contractor should have made inquiries of relevant authorities such as the local council, catchment management authority or DECC. Such a person in business should ensure they are aware of the law.

29 In terms of general deterrence, the Prosecutor submits that a significant fine is required in order for there to be a true deterrent effect on landholders. The decision to illegally clear land is generally taken in a context where the risk of detection is low and the potential financial gain is high. In terms of specific deterrence, the three Defendants continue to farm (and the contractor Defendant continues to run an earthmoving and land clearing business) and a penalty needs to be imposed to ensure that each Defendant does not reoffend.

30 The Prosecutor submits that the objective circumstances of the offence place it in the upper range of seriousness. Defendants' submissions 31 The harm to the environment is that set out in the SOAF. It should be noted that it is not alleged by the Prosecutor that the vegetation was of high conservation value, that there was any damage to any endangered ecological community, that there was any impact upon threatened species or that there were serious consequences of the type identified in Rae at [38] including an impact on biodiversity in the region. The environmental harm should be characterised as low to moderate as it is limited to the loss of vegetation in respect of which permission may have been given to clear either by a development consent or a property vegetation plan. Remediation of this harm will be achieved by remediation and the plan to exclude 47 hectares of the property from agricultural activities, which is double the cleared area. Although the harm was foreseeable, the risk of the harm is reduced by the potential for remediation.

32 The Defendants' state of mind at the time of the offence was that they did not know consent was required or that consent may have been required so as to consider making enquiries or seeking advice. The offence was carried out deliberately but without knowledge of its illegality. The failure by any of the Defendants to make inquiries was not negligent. The Prosecutor's submission that the Defendants, particularly Jerliderie Earthmoving, ought to have known that development consent was required does not establish negligence. The arrangement between the directors of Iroch and Calman with Mr Williams commenced in 2004, the NV Act commenced in December 2005 and the clearing commenced in September 2006. The failure to make inquiries was not negligent, particularly where there is no evidence that information was provided by the Prosecutor or anyone else which would prompt an inquiry. 33 As a matter of objective fact it is accepted that a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the clearing of vegetation. What should be factored in is the potential for remediation and therefore the risk of harm is less. 34 In terms of mitigating the harm, the Defendants could have refrained from the clearing although they were not aware that there was a need for development consent or the approval of a property vegetation plan.

35 In terms of the reasons for committing the offence, it is accepted that Calman and Iroch carried out the clearing in order to improve the agricultural output of the property. The scope of the clearing in relation to the overall operations of the two companies at the property meant it was a very modest improvement. Jerilderie Earthmoving gained no financial advantage from any improvement on the land.

36 The Defendants submit that due to the low degree of harm to the environment, the unintentional commission of the offence without knowledge of its illegality and the modest potential increase in the value of the land, the offence should be considered to be of a low objective gravity. Finding on objective circumstances 37 The nature of an offence under s 12 of the NV Act is discussed in Rae at [15] - [19]. This must be assessed in light of the objects of the legislation which are aimed at the prevention of broad scale clearing and the promotion of the management of native vegetation, inter alia. Clearing of native vegetation cannot be carried out without consent which in turn requires environmental impact assessment. The need to uphold the regulatory system is recognised in various authorities identified in Rae at [18]. 38 The offences are strict liability so that mens rea is not an element of the offence. Whether the offences were carried out recklessly, intentionally or negligently is relevant to assess the objective circumstances of the offences (Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [123], Hudson at [75]). 39 While aspects of the SOAF were relied on by the Prosecutor as demonstrating that the Defendants should have known the NV Act applied and that the clearing of native vegetation required development consent, there is no evidence to support such a submission beyond the usual principle that ignorance of the law is no excuse. The Prosecutor submitted (par 28) that the SOAF makes plain that the Defendants should have known that the clearing would require consent. The SOAF highlights a different circumstance which is that the Defendants failed to make inquiries of relevant authorities as to whether consent was required for the clearing (SOAF par 57-60). Their evidence is that they were unaware of any requirement such as the NV Act and therefore the need to make inquiries. The issue therefore is whether that failure to make inquiries was negligent, as submitted in oral submission by the Prosecutor. 40 The Prosecutor's reliance on the condition of development consent granted on 21 September 2004 for the construction of a house on part of the property by Davis Saunders Homes Pty Ltd on behalf of the landholders which refers to restrictions under the NV Act (SOAF par 26) is not relevant. There is no evidence, such as in a record of interview, that the Defendants were aware of this development consent condition. 41 The Prosecutor submitted that the facts in Rae were relevant. The facts of that matter are different to the facts in this matter. In Rae the defendant was aware of possibly needing consent to clear native vegetation on the land which was cleared and made a deliberate decision to clear the native vegetation, without applying for and obtaining consent, in the knowledge that to do so was illegal. Apart from the passage of the NV Act and its coming into force on 1 December 2005, about ten months before the commencement of the offence period, there is no evidence in this matter from the Prosecutor about how the Defendants would be aware of the NV Act such as, for example, whether there was any publicity about the legislation when it was passed. 42 The Prosecutor submits that the Defendants should all have known about the NV Act requirements particularly Mr Williams, given his business of twenty years is land clearing. While that is true and ignorance of the law is no excuse, asserting that fact alone does not give rise to a finding that the Defendants acted negligently. They acted in ignorance and are guilty of a strict liability offence. There was no prior warning about, or knowledge of, the NV Act. There is no evidence of what publicity was provided to the public about the NV Act which came into force in December 2005. This must be weighed up with the fact that a similar offence for land clearing of native vegetation existed since January 1998 in the NVC Act. The Prosecutor has the onus of establishing such matters beyond reasonable doubt in sentencing (R v Olbrich (2000) 117 A Crim R 326). It has not established negligence in the commission of the offence in relation to the failure of the Defendants to make inquiries.

Environmental harm caused by the offence 43 The agreed position on environmental harm is set out above at par 12-13. The table of tree piles observed at the property by DECC officers, which is set out at par 51 of the SOAF, shows that a total of 2383 stems with a diameter greater than 15cm were observed. A sample of diameters in the table demonstrates a number of these stems were mature. This is confirmed by the agreement of the experts as set out in par 13 which refers to the maturity of trees cleared and that smaller trees were probably mulched or burnt as there were none in the woodpiles. The environmental harm caused was significant given the age of the trees cleared and the size of the area cleared being 21 hectares. 44 A relevant consideration in relation to environmental harm is that the NV Act is seeking to address the cumulative effect of clearing native vegetation without adequate environmental assessment on individual properties. The Act is regulating the clearing of native vegetation regardless of whether it is an endangered ecological community or is identified as having other special qualities. Continuing incremental and unchecked loss of native vegetation is also a relevant environmental harm to consider. Loss of mature vegetation removes habitat for native animals and reduces biodiversity in the immediate area. The level of environmental harm was foreseeable and preventable, as the Defendants' counsel correctly accepted. 45 The level of environmental harm should not be reduced as the Defendants' counsel submitted because remediation has been and is to be undertaken. Given the scale of clearing, adequate remediation will take many years to achieve. Nor can its success be guaranteed. That is a matter relevant to consider in relation to matters in mitigation. Reasons for committing the offence 46 The reasons for committing the offence can be taken into account in measuring its objective seriousness, per Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 35 at 366. The reasons for the offence are referred to in the record of interview summarised in par 57-59 of the SOAF and in the Defendant directors' affidavits. 47 It is relevant that the clearing was undertaken for commercial gain, in the case of the landowners in pursuit of agricultural activities on the land. Consistent with this use, vegetation was thinned to enable cattle to run, to enable cultivation for cropping and/or grazing, to remove dead suckers to minimise fire hazard and to gain better access, as parts of the property were impassable. There was no plan to use the timber other than for firewood. Jerilderie Earthmoving also gained a benefit by gaining an opportunity to graze cattle on the cleared land, albeit in lieu of being paid for the clearing work. In these circumstances a nominal fine will not provide an economic disincentive for clearing of native vegetation. Maximum penalty 48 The Court is to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. The maximum fine is $1.1 million. The offence period is from 27 September 2006 to 24 May 2007, a period of approximately seven months. A daily penalty of up to $110,000 per day can also be imposed but that is not sought by the Prosecutor. These are substantial maximum penalties. 49 In relation to the objective circumstances the Defendants' culpability is low, however the environmental harm is reasonably substantial. General deterrence 50 Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence, see Axer per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

51 The Prosecutor argued that general deterrence is an important consideration in light of s 3A(b) of the CSP Act which provides that one of the purposes of sentencing is to "prevent crime by deterring the offender and other persons from committing similar offences". As stated in Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77], there is a need to uphold the integrity of the system of protecting and preserving native vegetation and a strong warning should be sent that offences will result in significant consequences. Offences under the Protection of the Environment Operations Act 1997, which has the same general aim as the NV Act being protection of the environment, have also emphasised the need for general deterrence in environmental cases, see Camilleri's Stock Feeds at 701 and Environment Protection Authority v Robinson [2004] NSWLEC 629. Nominal fines will not deter the commission of environmental offences, per Environment Protection Authority v Capdate Pty Ltd (1992) 78 LGERA 349 at 354 and Bentley at [149]. 52 General deterrence is important in light of the aim of the NV Act to prevent clearing of native vegetation without consent; see Rae at [9], Hudson at [81]-[88]. That is important as I agree with the Prosecutor that I can take judicial notice of long standing difficulties for government in managing uncontrolled native vegetation clearances in NSW. Specific deterrence 53 None of the Defendants has any prior criminal convictions, which is relevant to specific deterrence. As identified in the majority judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477, past criminal behaviour indicates: …whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.

54 The Prosecutor submitted that as the Defendants will continue to farm, the penalty must be sufficient to ensure that they do not reoffend. The contractor Defendant, as an earthmoving and land clearing business, will also continue to clear land. The Defendants submitted that this was their first offence. Each of the directors of the Defendants has expressed remorse and regret on behalf of the company by swearing an affidavit (see Newcastle City Council v Pepperwood Ridge (2004) 132 LGERA 388 at [29]). Each has recognised the mistake, and understands the importance of complying with the Act. They are unlikely to reoffend. I agree. Mitigating factors/subjective factors 55 There are a number of mitigating factors that should be taken into account to reduce any penalty, as referred to in s 21A(3) of the CSP Act. No prior convictions - s 21A(3)(e) CSP Act 56 The Defendants have no prior convictions. Good character - s 21A(3)(f) CSP Act 57 The excellent character of each of the directors of the respective Defendants was evidenced by the character references tendered. I accept that the Defendants are of good character.

Contrition and remorse - s 21A(3)(i) CSP Act 58 All the Defendants, through the affidavits of their respective directors and in character references, have expressed contrition and remorse. The Defendants have accepted responsibility for the offence and have acknowledged the environmental harm caused. They seek to rectify the harm by remediation works, SOAF par 62. It was also submitted that this shows that the Defendants are unlikely to re-offend in the future (s 21A(3)(g)). I accept these submissions.

Guilty plea - s 21A(3)(k), s 22 CSP Act 59 The Defendants pleaded guilty. A plea of guilty entitles a defendant to a discount in penalty under s 22 of the CSP Act 1999 in the range of 10-25 per cent; see R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. The plea of guilty was at the fourth directions hearing and the discount should not be the maximum of 25 per cent, see R v Borkowski, [2009] NSWCCA 102 referred to in Rae at [63. The Prosecutor and the Defendants agree that a discount of 20 per cent is appropriate.

Cooperation with law enforcement authorities - s 21A(3)(m), s 23 CSP Act 60 The Defendants have cooperated with the Prosecutor at all stages of the investigation of the offences. Evenhandedness 61 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court; see Axer at 365. There have been two prosecutions under s 12(1) of the NV Act to date, being Hudson and Rae. Relevant cases under the previous NVC Act (now repealed) are Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 and Wilton (2008). These and earlier cases such as Wilkinson were considered in Rae also and I refer for completeness to [79] - [83] of that judgment. For the reasons identified by Preston J these cases are not comparable. Native Vegetation Conservation Act 1997 (repealed) 62 Taylor was a prosecution under s 21(2) of the NVC Act. Approximately 30.5 hectares of native vegetation was cleared. The actual harm to the environment was held by Lloyd J to be significant, including clearing vegetation comprising an endangered ecological community. The defendant knew that there was legislation regulating land clearing but denied knowledge of the precise legislation or the department responsible for administering legislation regulating the clearing of vegetation. The objective circumstances of the crime were considered by his Honour to be of moderate seriousness. Mitigating factors considered were the absence of prior convictions and the early plea of guilty. There was some evidence of contrition and remorse including in the offer to remediate the land although the extent of the contrition was tempered by untruthful and misleading statements made by the defendant in the investigation phase to the prosecutor. Lloyd J considered that the appropriate penalty was a fine of $30,000, discounted by 33 per cent for all mitigating factors, resulting in a fine of $20,000 of a maximum $1.1 million.

63 Wilton was another prosecution under s 21(2) of the NVC Act. Biscoe J fined the defendant $30,000 on one charge and $10,000 on another charge for clearing native vegetation on the eastern and western parts of the defendant's property respectively. The maximum penalty was $1.1 million. His Honour also ordered the defendant to pay the prosecutor's costs of $30,000 in total. The land cleared in the eastern part was between 13.1 and 13.5 hectares and was 18.3 hectares in the western part. There was actual environmental harm caused by commission of the offence but his Honour held that it was relatively moderate as it had not adversely affected any threatened species, populations or ecological communities. The defendant cleared the land for the purpose of commercial planting and harvesting of trees for profit. The defendant believed that the clearing was exempted from a requirement for development consent under the Act. The Court found that the defendant made a serious and careless error in forming that belief. Mitigating factors considered were the absence of prior convictions, the defendant's good character, his full assistance to the prosecution, the plea of guilty at the earliest available time, his expression of remorse, acceptance of responsibility for his actions and acknowledgment of the damage caused, a donation by the defendant of the felled timber to charities and compliance with a remediation order. In respect of the charge for clearing the eastern area, Biscoe J added $10,000 to the fine that was considered to be otherwise appropriate with the object of negating the net financial advantage that the defendant would otherwise obtain. Offences under Native Vegetation Act 2003 64 Hudson, delivered in January 2009 and dealing with an offence committed between November 2007 and March 2007, was the first prosecution under s 12(1) of the NV Act and concerned the clearing of 486 hectares of native vegetation. The defendant pleaded not guilty. In finding the defendant guilty, Lloyd J held that 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 and the harm to the environment caused by the offence was substantial. Lloyd J stated that there was a need for both individual deterrence and general deterrence. The objective gravity of the offence was considered by his Honour to be high. There were few mitigating factors as 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 the offence. The defendant was, however, a first offender. The defendant was fined $400,000 of a maximum $1.1 million and ordered to pay the prosecutor's costs. The defendant was also fined $8,000 for failing to comply with a notice issued under s 36(2) of the NV Act. 65 In Rae the defendant pleaded guilty to an offence under s 12(1) of the NV Act. An area of 215 hectares was partially cleared, including an area of 155 hectares which was cleared of 95 per cent of all trees. Most of the trees cleared were mature and some were in excess of 17m in height. The defendant admitted to investigators that he knew that he needed consent for the clearing but went ahead without seeking consent. The clearing was held to be premeditated and intentionally carried out with 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 which was cleared had significant conservation status and contributed to biodiversity. Preston J 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 a direction by the prosecutor to carry out remediation of the site. Overall the offence was considered to be of medium objective gravity. Mitigating factors considered were the absence of prior offences, the defendant's good character, the defendant's guilty plea (though not at the earliest opportunity), his expression of contrition and remorse and his assistance in the investigation. A fine of $160,000 was imposed. Environment Protection And Biodiversity Conservation Act 1999 (Cth) 66 Greentree (No 3) was also referred to in Hudson and Rae. Sackville J imposed a fine of $300,000 on a corporate defendant (maximum penalty $5.5 million) and $150,000 for an individual defendant (maximum penalty $550,000) for clearing of 100 hectares on private land in breach of the Environment Protection And Biodiversity Conservation Act 1999 (Cth). The clearing impacted on a protected Ramsar wetland area. 67 The Prosecutor submitted that the most comparable case was Rae. The Prosecutor also submitted that Wilton was comparable to this matter as the area cleared was similar and the defendant in that case acted erroneously under a misapprehension about the age of some trees. The objective gravity of the offence in Wilton was said to be less than in the present cases. The contractor, Jerilderie Earthmoving, in particular made a serious and careless error given its business is land clearing.

68 The Defendants submit that this case is significantly less serious than Hudson and Rae and also less serious than Wilton and Taylor. I agree that in this matter the culpability of the Defendants is significantly less than in Rae and Hudson. It is less serious than in Taylor. The circumstances are most similar to Wilton although in that case the defendant was held to have made a significant error in undertaking the clearing. The environmental harm in this matter is similar in that the area of land cleared is similar. I otherwise refer to my findings on environmental harm in par 43-45. Costs 69 The Defendants have agreed to pay the Prosecutor's costs of $73,000. The Prosecutor accepts that if such an order is made, this may be considered in the setting of an appropriate penalty, see EPA v Barnes [2006] NSWCCA 246. Totality v parity 70 The Defendants submitted that a variation of the totality principle ought to apply so that a single penalty should be divided across the three Defendants. The totality principle in sentencing is a well-established principle of sentencing to be applied by the court when sentencing an offender for more than one offence. It requires a judge to determine an appropriate sentence for each offence, consider questions of cumulation or concurrence and then, when reviewing the aggregate sentence, consider whether it is "just and appropriate"; see Johnson v R (2004) 78 ALJR 616 at [18].

71 The three Defendants are essentially co-defendants. The parity principle as between co-offenders was considered by the High Court in Lowe v The Queen (1984) 154 CLR 606. Gibbs CJ stated the principle at 609 as follows: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are no[t] always equal, such matters as the age, background, criminal history and general character of the offender and the part which he or she played in the commission of the offence have to be taken into account. This statement was cited in R v Canino [2002] NSWCCA 76 and is referred to in the Judicial Commission of New South Wales, Sentencing Bench Book (10th edition, October 2008). This principle of parity is the appropriate sentencing principle rather than a variation of the totality principle as submitted by the Defendants' counsel. The totality principle operates where a single defendant is charged with multiple offences arising from the same circumstances so that the level of penalty for subsequent offences is adjusted downwards to reflect the totality of appropriate punishment for that individual.

72 In all the circumstances I think that the landholder Defendants' penalties should be the same. I consider that a fine of $22,000 is appropriate. 73 In relation to the Defendant contractor, while I accept the submission that it did not obtain a benefit from the improvement to the land in the same way as the landholders, general deterrence is an important factor in its case given that its business is land clearing. It should receive the same penalty of $22,000. Orders 74 The Court orders that in matter 50015 of 2009: 1. The Defendant Calman Australia Pty Ltd is convicted of the offence with which it is charged. 2. The Defendant is fined the sum of $22,000 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings against it of $24,333. 4. The exhibits may be returned. The Court orders that in matter 50016 of 2009: 1. The Defendant Iroch Pty Ltd is convicted of the offence with which it is charged. 2. The Defendant is fined the sum of $22,000 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings against it of $24,333. 4. The exhibits may be returned.

The Court orders that in matter 50019 of 2009: 1. The Defendant GD & JA Williams Pty Ltd t/as Jerilderie Earthmoving is convicted of the offence with which it is charged. 2. The Defendant is fined the sum of $22,000 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings against it of $24,333. 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.

(2006) 145 LGERA 234

(2009) 165 LGERA 256

(2006) 145 LGERA 189

(2004) 132 LGERA 388

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