(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.
73 The primary consideration in sentencing is the objective gravity or seriousness of the offence, and matters subjective to the offender must not interfere with the imposition of a penalty that adequately reflects the seriousness of the offence: see authorities cited in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at 215-216, [108]-[109] per Preston J.
74 The objective gravity or seriousness of the offence is reflected in the maximum penalty. In the present case the maximum penalty is the penalty provided for under s 126 of the Environmental Planning and Assessment Act 1979: sub-s 12(2) Native Vegetation Act. At present, the maximum penalty thus provided is $1.1 million. That applies of course, to a wide range of offences of varying degrees of seriousness. Nevertheless, the fact that such a high penalty is adopted by s 12(2) of the Native Vegetation Act shows the seriousness with which the legislature views offences against that section.
75 The seriousness of an offence is also affected by the extent to which it may have been done deliberately. Offences that are committed deliberately are more serious than offences committed due to inadvertence or error: Bentley v Gordon [2005] NSWLEC 695 at [125]-[126] per Preston J. In the present case the offence is at the upper range of seriousness since it was done deliberately and after the defendant had been expressly told by Ms Savage that native trees must be retained on the land.
76 There is a need in sentencing in cases involving clearing or damage to native vegetation to uphold the system of development control: Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349, 355-356 at [72]-[77]. The system of development control would become somewhat ineffective if persons were to carry out development, including the clearing of native vegetation, without ensuring that a necessary consent had first been obtained: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at 97 [35].
77 It must also be borne in mind that an offence against s 12 is one of strict liability. There is thus an onus on those who propose to clear native vegetation to ensure that any necessary development consent has been obtained.
78 The reasons for committing an offence can be taken into account in measuring its objective seriousness: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, 366. In the present case Mr Hudson did not give evidence, but it was submitted by Mr Walter on his behalf that the clearing was done to remove the noxious weed, lippia. I do not accept the submission. The evidence, which I have summarised at pars [47]-[56] above, demonstrates that the clearing of the mature trees was not necessary for the removal of lippia. The clearing of some 486 hectares was self-evidently done for the purpose of making more land available for agriculture.
79 It follows that this offence would be regarded as falling within the upper range of seriousness. Moreover, the very extent of the clearing means that the harm caused by the offence was substantial. In particular, it defeats the objectives in pars (a) and (b) of the objects of the Act, noted in par [72] above. Recognition of the harm done, in this case to the community, is one of the purposes of sentencing: s 3A(g) of the Sentencing Procedure Act. Where the harm, loss or damage, caused by an offence is substantial, as is the case here, it is an aggravating factor to be taken into account in determining the appropriate sentence: s 21A(2)(g) of the Sentencing Procedure Act.
80 Individual deterrence is another purpose of sentencing: s 3A(b) of the Sentencing Procedure Act. I am satisfied, since Mr Hudson ignored the advice of Ms Savage and proceeded to do precisely what he was told not to do, that unless he is deterred by a substantial fine then he is likely to re-offend. According to Mr Walter, Mr Hudson believes that, as the owner of the land, he is entitled to put it to use for agricultural purposes, the State has no interest in it, and he has done nothing wrong.
81 General deterrence is also an important consideration: s 3A(b) of the Sentencing Procedure Act. The court should be seen to send a message that provisions designed to further environmental interests of the State will be fully enforced.
82 Apart from the fact that Mr Hudson is not known to have any record of previous convictions, there are no mitigating factors. Nothing is known of Mr Hudson's personal circumstances. He provided no assistance to the prosecutor in the investigation of the offence. He has not provided any expression of contrition or remorse.
83 The principle of even-handedness requires the court to have regard to the general pattern of sentencing in cases which can be regarded as judicially relevant to the case at hand, recognising of course that each case is determined upon its own necessarily peculiar facts: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701-703.
84 The court's attention was not drawn to any case involving a penalty for an offence against s 12 of the Native Vegetation Act. In Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530, I imposed a fine of $30,000 following a plea of guilty to a charge of unlawfully clearing some 30 hectares of native vegetation, contrary to the then s 21(2) of the Native Vegetation Act. In Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297, Biscoe J imposed a total penalty of $40,000 following a plea of guilty to two charges of unlawfully clearing about 13 hectares of native vegetation, contrary to the same provision.
85 In Minister for Environment and Heritage v Greentree (No. 3) (2004) 136 LGERA 89, Sackville J imposed a penalty of $150,000 on an individual offender and $300,000 on a corporate offender for the unlawful clearing of about 100 hectares within a property in northern New South Wales contrary to s 16(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The area cleared had a significant impact on a declared Ramsar wetland. A declared Ramsar wetland is defined to refer to wetlands designated by the Commonwealth under Art 2 of the Convention on Wetlands of International Importance as Waterfowl Habitat 1971, concluded 2 February 1971, 996 UNTS 245, entered into force 21 December 1975, also known as the Ramsar Convention. The maximum penalty in that case was $550,000 in the case of an individual and $5.5 million in the case of a corporation. The judgment of Sackville J was subsequently affirmed on appeal: Greentree v Minister for the Environment and Heritage (2005) 143 LGERA 1.
86 Although the land cleared by Mr Hudson was not of the same environmental significance as that in the Greentree case, it was precisely the kind of native vegetation that s 12 of the Native Vegetation Act is designed to protect. The extent of the clearing - 486 hectares - is substantial. The penalty should properly reflect the deliberate nature of the offence which was committed despite the express instructions given to Mr Hudson that native trees were not to be cleared. The clearing was carried out as part of the agricultural activities on the land and in that sense the offence was part of a commercial operation - that is, it was motivated by commercial considerations.
87 Mr Hudson no doubt feels a sense of injustice in being unable to use this land as he sees fit. However, the fact that he knew that the native trees were protected but nevertheless proceeded to clear them, means that any sense of injustice is outweighed in the sentencing exercise.
88 The fact that the Parliament has specified a very high maximum penalty for a contravention of s 12, the large area of native vegetation that was cleared, the deliberate nature of the offence, the absence of any contrition or remorse and the need for a penalty to act as both a general deterrent and a specific deterrent, all call for a substantial penalty. I acknowledge, however, that Mr Hudson is a first offender, and I can only hope that he remains a first offender.
89 Mr Hudson must also pay the prosecutor's costs. An order for costs is made not to punish the offender, but to indemnify the successful party for the expense to which he has been put by reason of the legal proceedings - its function is compensatory: Latoudis v Casey (1990) 170 CLR 534 at 543, 563, 566-567. The amount of the costs is not at present known but is likely to be substantial. The amount of costs can be taken into account as part of the consideration of penalty, and I do so: Environment Protection Authority v Barnes [2006] NSWCCA 246. Nevertheless, the purposes of costs and sentencing should not be confused. The prosecutor should be compensated for the costs to which he or she has been put. It is the penalty that serves as a deterrent to others - not the costs order.
90 In exercising the discretion to fix the amount of any fine, the court is required to consider such information regarding the means of the defendant as is reasonably and practically available to the court for consideration: s 6(a) of the Fines Act 1996. Mr Walter did not put such information before the court, so I assume that Mr Hudson has the capacity to pay any fine. The court is also required to consider such other matters as, in the opinion of the court, are relevant to fixing that amount: s 6(b) of the Fines Act. I have set in pars [70] to [88] above those relevant matters.
91 The maximum penalty of $1.1 million fixed by the legislature applies, of course to the worst case. Although this could not be described as the worst case, it is within the upper range of seriousness. I feel, however, that Mr Hudson has been somewhat misguided as to what he is able to do on his land, and I am prepared to give him the benefit of doubt in that sense and ameliorate the penalty accordingly. I assume that he has now learnt his lesson. Having regard to all of the above factors, a penalty of $400,000 should be imposed for the offence against s 12 of the Act.
92 I now turn to the offence against s 36(4) of the Native Vegetation Act. The maximum penalty for an offence against s 36(4) is $11,000. In the absence of any excuse as to why Mr Hudson did not comply with the notice, I cannot see any mitigating circumstances. The appropriate fine is $8,000 together with an order that Mr Hudson pay the prosecutor's costs of that proceeding.