Director General of National Parks and Wildlife v Wilkinson & Anor; Director General of the Department of Land and Water Conservation v Wilkinson & Anor

The application of sentencing principles Mitigating factors 71. In considering the question of penalty, it is relevant that although the defendants are charged with offences against two different statutory provisions, the offences all arose out of the one course of conduct. Both Wilkinson and Hockitt are each charged with identical sets of offences, three each against s 118D(1) of the NP&W Act and one each against s 21(2) of the NVC Act, in circumstances in which Wilkinson is the sole shareholder, director and secretary of Hockitt. In this respect it is relevant that the actual clearing was carried out by Wilkinson and by two other people acting on his instructions. Finally it is relevant that the three offences against each defendant under s 118D(1) of the NP&W Act relate to three separate threatened species, although arising out of a single course of conduct. 72. In these circumstances it is accepted that the principle of totality applies. The principle was explained by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order. 73. The statement of Street CJ in Holder was quoted with approval by Kirby P in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703-4 (Campbell and James JJ agreeing). Kirby P went on to state that the principle of totality is applicable when the penalty imposed is by way of fine. In that case the defendant had been charged with three offences that were seen as being connected. It was held that in applying the principle of totality, the penalties should reflect the total criminality of the defendant. 74. In Mill v The Queen (1988) 166 CLR 59, the High Court adopted (at 63) the following statement of the principle in Thomas, Principles of Sentencing, 2nd ed. (1979) pp 56-7 (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. 75. The High Court went on to say that the principle may be achieved "by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed". 76. In Pearce v The Queen (1998) 194 CLR 610, Mill was followed and the manner of its application was explained by Gaudron J (at 623-624). Gaudron J held that an approach which has regard only to the total effective sentence is likely to mask error. Her Honour continued: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. Gaudron J went on to observe that the defendant in that case should not be doubly punished under separate counts for a single act. 77. In applying the principles explained in Mill and Pearce, as I understand them, I must not fix an appropriate total penalty for all the offences and then apportion that total. The sentencing court is required to fix an appropriate penalty for each offence and then, applying the principle of totality, ask whether the aggregate penalty is just and appropriate, that is, whether the penalties properly reflect the total criminality of the defendant and then make an adjustment accordingly. 78. The correct approach to the application of the totality principle is further explained by the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing) in R v Place (2002) 189 ALR 431 at 456-457: The [totality] principle was again considered by the High Court in Postiglione v R ( 1997) 189 CLR 295; 145 ALR 408. McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence "is a just and appropriate measure of the total criminality involved": at CLR 308. Kirby J described the principles of "parity" and "totality" as "in the nature of checks" to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was "then" that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality: at CLR 340-1. In our opinion the sentencing judge erred in applying the principle of totality to the provisional sentence at which he had arrived before taking into account circumstances of mitigation, including the plea of guilty. Whether the error had any significant effect upon the ultimate sentence imposed is difficult to ascertain, but his Honour adopted a process which increases the risk of error. 79. In adopting this approach I also have regard to the fact that Wilkinson is the sole shareholder and director of Hockitt. Any penalty imposed on Hockitt would thus fall on Wilkinson. He would be doubly penalised for the same act. 80. The defendants have pleaded guilty. I accept the submission of Mr D P Wilson, who appears for the defendants, that there was no real delay in entering their pleas. Hockitt has entered pleas of guilty at the earliest opportunity. The delay in the cases against Wilkinson was a consequence of representations on his behalf for the prosecution to proceed only against Hockitt; there were discussions in relation to rehabilitation of the land; there was never any intention to plead not guilty; and as soon as the discussions were concluded (and which resulted in the Property Agreement noted above) pleas of guilty were then entered on behalf of Wilkinson. In these circumstances I would accept that the defendants are entitled to a generous discount on the penalties which would otherwise be imposed. I also accept the defendants' expression of contrition and regret which the pleas of guilty entail, which is further evidenced by the defendant's act of entering into the Property Agreement with the Director General of the Department and the willingness of the defendants to consent to orders under s 118E of the NP&W Act. 81. In Wong v The Queen (2001) 76 ALJR 79 it was held that it was wrong in principle to adopt a two-stage approach to sentencing, by which a preliminary sentence is determined and thereafter adjusted by some mathematical value given one or more features of the case, such as a plea of guilty or assistance with the authorities. In Cameron v The Queen (2002) 76 ALJR 382 it was held that the utilitarian component of the plea should not be expressed on the basis that the plea has saved the community the expense of a contested hearing, but rather in terms of a subjective willingness on the part of the offender to facilitate the course of justice. In R v Sharma [2002] NSWCCA 142 the Court of Criminal Appeal regarded these two decisions of the High Court as distinguishable because they were made in relation to different sentencing regimes to that which applies in New South Wales. Accordingly, the utilitarian component of avoiding the necessity for a trial may be taken into account and the discount range described by the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383 continues to apply. It was further held in Sharma that the criticism in Wong of the two-stage approach to sentencing did not require the court to overrule Thomson. Sentencing judges are still bound by Thomson and should continue to quantify the percentage discount for a plea of guilty. 82. In Thomson it was held (at 419) that the utilitarian value of a plea of guilty in the criminal justice system should generally be assessed in the range of ten to fifteen per cent discount on sentence. It was also held that the existing sentencing practice to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, remains appropriate. 83. In the present case, however, I do not regard the utilitarian value of the pleas as at the upper end of the range. It might be thought that proof of knowledge in the charge under s 118D(1) of the NP&W Act meant that there was considerable utilitarian value in the pleas in this case. In my opinion, however, the element of knowledge would be readily inferred from the fact that the defendant (Wilkinson) had previously commissioned a species impact statement to support his applications to both the council and to the Department of Land and Water Conservation. The species impact statement in turn clearly identifies the land as a habitat of the three threatened species to which the charges under s 118D(1) relate. 84. Having discussed the totality principle, early pleas of guilty and the utilitarian value thereof, I now refer to the other mitigating factors. One of these factors is the requirement under s 6 of the Fines Act 1996 to consider the means of the offender. These have been set out (in pars [64] to [71]) above. Moreover, the obligations of Hockitt under the Property Agreement and the obligations of Wilkinson under the orders to be made under s 118E of the NP&W Act will involve an ongoing financial commitment. This fact is also a relevant consideration to the size of any fine that will be imposed (Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440). 85. The Property Agreement will also "sterilise" most of the land for future development. The purpose for which the land was purchased is unlikely to be achieved, at least to the extent of producing a return on the investment. A considerable sum has already been lost in holding charges. The defendants face significant legal costs of both prosecutors as well as their own costs. The whole exercise has resulted in almost financial ruin of the defendants, even in the absence of a fine. I accept the submission that there is no capacity on the part of either defendant to pay any substantial fine. I accept the submission that there is little need for any fine to include an element of specific deterrence: these defendants are most unlikely to re-offend. I accept the submission, in these circumstances, the fine which would be otherwise appropriate to be imposed should be reduced. A small nominal fine, however, would not satisfy the element of general deterrence (Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354). 86. I also take into consideration the fact that Wilkinson co-operated with the officers of both the prosecutors and made full admissions as noted in par [80] above. 87. It is submitted on behalf of the defendants that one could not find that this clearing would not have lawfully occurred if a development application had been made therefor. As I understand the submission, it is suggested that a development consent might have been granted, if sought, for the clearing. I cannot accept this submission. The development consent that was granted was, as noted above, subject to a condition that the area identified as a conservation area be not cleared. Moreover, the identification of that area in the species impact statement as a habitat for the three threatened species suggests that no such consent would have been likely. 88. It is also submitted on behalf of the defendants that the areas with greater concentration of the three threatened species were not cleared and the larger trees on the land were retained. I have some difficulty in accepting this submission. It seems to me that this simply means that the clearing and its impact could have been worse. It is like saying of a thief: "He has only snatched half the money from the safe." Aggravating factors 89. The offences with which the defendants are charged are serious. The most serious aspect of the offences is the impact upon the habitat of each of the three threatened species. It is self-evident that the area to be retained as a conservation area (by Condition 1 of the development consent of 17 July 1998) was an important habitat for those species. The impact on the threatened species is both significant and serious, as noted in pars [36] to [47] above. The impact will be ongoing until the habitat is fully re-established. As noted (in pars [41] to [45] above) it will be a long time before the damage will be redressed. The consequences are long-term. It does not take long to bulldoze vegetation down, but it takes many generations to undo the harm that is done. 90. Adding to the seriousness of the harm is the way in which the clearing was done. It was done by bulldozer. This resulted in a large change. For example, the level of bare soil after the clearing averaged 81.52 per cent compared with nil per cent before the clearing. The density of trees in the canopy layer was only 3.4 trees per 625 square metres, compared with 30.8 trees per 625 square metres before the clearing. The physical impact of the clearing is further noted in pars [32] to [33] above. 91. The area of land cleared was significant: 25.6 hectares of land that was to be retained in the conservation area, 6.9 hectares cleared outside the conservation area but contrary to consent conditions and 1.8 hectares cleared outside the area included in the development application. 92. The clearing was carried out wilfully, in the full knowledge that it was unlawful. It was motivated by a desire for commercial profit. 93. There is also, in my opinion, the need for a penalty which will be to act as a general deterrent. I accept the observation of Stein J in Environment Protection Authority v Capdate (at 354): "A small or nominal fine would not satisfy the element of deterrence, let alone punishment". The deterrent effect of a fine must send an important message that the conditions of a development consent requiring the preservation of ecologically important areas must be complied with. 94. I am of the view that the offences against s 118D(1) of the NP&W Act are more serious than the offences against s 21(2) of the NVC Act. This is reflected in the penalty, which includes, in addition to the fine, imprisonment for one year. It is also reflected by the fact that an element in those offences is the impact upon the threatened species. Having regard to all of the sentencing considerations described above, I am of the view, however, that a term of imprisonment is not called for. The appropriate monetary penalty is one which falls in the mid-range. 95. In accordance with the approach explained in Pearce (noted in par [77] above) I find that the appropriate penalty which should be imposed under s 118D(1), and which should be imposed in the first of the summonses, No. 50044 of 2001, is the mid-range. This should be discounted for the defendants' plea of guilty. In R v Thomson it is said that an allowance of up to 35 per cent for pleas, encompassing all relevant matters, remains appropriate. For the reasons described above, however, it is not appropriate in this case to allow a full discount for utilitarian value of the plea. An appropriate discount in the present case encompassing all relevant maters is 25 per cent. It is then necessary to consider the question of totality, recognising that all the offences arise out of a single course of conduct. Finally, I am prepared to effect a further reduction in the overall aggregate that takes account of the defendants' means (as required by the Fines Act, s 6) and the defendants' ongoing obligations under the Property Agreement and under the orders to be made under s 118E of the NP&W Act. 96. Although the offences against s 21(2) of the NVC Act arise under a different statute, they are of the same nature as those against s 118D(1) of the NP&W Act and arise out of the same course of conduct. They are thus seen to be related. The totality principle is to be applied to all the offences in this case. The resultant aggregate which I adopt, namely $43,500, is one which is appropriate for all the offences so as to reflect the total criminality of the defendants. The individual penalties are thus below what would otherwise be appropriate if each is considered in isolation. Orders 97. For the above-stated reasons I make the following orders: (1) No. 50044 of 2001