Director-General of the Department of Environment and Climate Change v Taylor

Land and Environment Court (NSW)|1998-08-06|Before: Lloyd J, Bignold J

Introduction 1 HIS HONOUR: The defendant, Mr Colin Alfred Taylor, has pleaded guilty to an offence against s 21 of the Native Vegetation Conservation Act 1997 ("the NVC Act").

2 The question for determination is the appropriate penalty which should now be imposed. 3 The charge alleges that between about 28 October 2003 and 22 February 2004, the defendant cleared native vegetation on land near Frederickton, in New South Wales, not in accordance with a development consent that was in force or a native vegetation code of practice and contrary to s 21 of the Act.

4 Section 21(2) of the NVC Act states: A person must not clear native vegetation on any land except in accordance with: (a) a development consent that is in force, or

5 The maximum penalty for an offence against Pt 2 of the NVC Act is a fine of 10,000 penalty units ($1,100,000) and a further daily penalty not exceeding 1,000 penalty units ($110,000): s 17 (2) of the NVC Act and s 126(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The NCV Act was repealed and replaced by the Native Vegetation Act 2003. Liability to conviction and penalty for offences against the repealed NVC Act is unaffected by the repeal: s 30, Interpretation 1987.

6 I should also note that at the outset of these proceeding the prosecutor applied by way of notice of motion to amend the title of these proceedings. By consent I granted leave to amend the title of the proceedings to delete "Director-General Department of Natural Resources" and replace them with "Director-General, Department of Environment and Climate Change".

The relevant facts 7 The prosecutor prepared a statement of facts. The statement of facts was tendered as an exhibit in the proceedings.

8 The land upon which the offences took place is known as lots 81, 123 and 176 in deposited plan 752437 ("the subject land"). The vegetation cleared was particularised as including Malaleuca species, Eucalyptus species and Casuarina glauca. The area of land particularised as having been cleared comprised approximately 30.5 hectares. 9 The defendant is, and was at all material times the registered owner of Lots 81, 123 and 176 in deposited plan 752437. The subject land is at Kemps Access, near Frederickton - in the Kempsey local government area. The total area of the defendant's holding is approximately 800 acres.

10 Officers of the Department of Natural Resources conducted a review of satellite image data relating to the North Coast Region of New South Wales. Areas of apparent change in vegetation cover on the subject land were identified on one of the satellite images. Departmental officers carried out a site inspection of the subject land in April 2005. 11 An independent expert in satellite imagery analysis, Mr K Walter, examined images prior to and after the period the subject of the charge to assess the extent to which there had been changes in vegetation cover on the subject land. Mr Walter concluded that there had been significant vegetation cover change consistent with vegetation removal activity such as clearing at a date between 30 October 2002 and 29 January 2004.

12 An expert in the interpretation of land cover in aerial photographs, natural resources project officer, Mr G Short, examined and interpreted aerial photographs of the subject land taken in 1967, 1980, 1991, 1997, 2000 and 2003. Mr Short found that the areas of vegetation the subject of the charge dated from at least 1991 and that most of the cleared area had been covered by trees dated to pre-1967 or pre-1980.

13 Using the information provided by Mr Short and data gathered during field visits to the subject land, the area of clearing on the subject land which was in breach of the NVC Act was calculated to be approximately 30.5 hectares.

14 On 22 July 2006, the defendant was served with a notice containing a remediation direction issued under s 38 Native Vegetation Act 2003 in relation to the clearing carried out in breach of the NVC Act. The defendant lodged an appeal to this Court against the issuing of that direction. That appeal was subsequently discontinued after negotiations between the parties reached a compromise agreement as to the area of land to be the subject of remedial action.

15 As noted in par [5] above the maximum penalty fixed by the Parliament in this case is $1,100,000 and a further daily penalty not exceeding $110,000. The prosecutor does not claim a daily penalty in this case.

16 The evidence of the environmental harm resulting from the offence is in the evidence of an environmental scientist, Dr A P Smith. The clearing the subject of the charge has had a significant effect on the ecological communities on the defendant's property. I accept the evidence of Dr Smith on the environmental harm that was caused by the clearing:

(a) Clearing on the property has removed about 40 hectares of Swamp Sclerophyll Forest and replaced it with a pasture/grassland with occasional scattered retained trees; (b) Removing an area of native vegetation which was in good condition, is likely to have had high diversity of native fauna, and which is important for conservation in a local and regional context; (c) Removing about 40 hectares of native vegetation which comprises a mosaic of listed Endangered Ecological Communities (Swamp Sclerophyll Forest on Coastal Floodplain, Sub-tropical Coastal Floodplain Forest, and Swamp Oak Forest) contributing to the cumulative loss of these communities in the locality and the region; (d) Removing about 40 hectares of habitat of 5 forest dependent threatened fauna species (Koala, Squirrel Glider, Square-tailed Kite, Grey-headed Flying Fox, Little Bent-wing Bat) and contributing to the cumulative loss of habitat for these species in the locality and the surrounding region; (e) Reducing fauna biodiversity in the locality by removing the habitat of forest dependent fauna species including habitat for an estimated population of about 1200 forest birds; (f) Causing fragmentation of remnant vegetation and isolating remnant vegetation to the north west of the property from the main body of vegetation (in the locality) to the south and south west of the property; (g) Removing an area of forest habitat adjacent to a watercourse and wetlands which provides potential shelter and perching sites for wetland birds, a buffer against wetland degradation from erosion, trampling and weed invasion; (h) Increasing the risk of dieback in isolated scattered Red Gum trees retained in the Cleared Area and elsewhere on the property.

17 In his reports, Dr Smith observes that in relation to the area of unlawfully cleared land:

· 37 per cent of the vegetation cleared was of a minimum age of 36 years old; · 1 per cent of the vegetation cleared was between 23 to 36 years old; · 21 per cent of the vegetation cleared was between 12 and 23 years old; and · 41 per cent of the vegetation cleared was between 3 and 12 years old. 18 Dr Smith concludes in his report that the oldest trees cleared on the property were about 72 years. Dr Smith expresses the opinion that the time taken for remediation of vegetation to a level that restores ecological function is likely to be in excess of 70 to 120 years.

19 The actual harm caused in the present case had been noted in pars [8], and [16] - [18] above. The total area which was cleared of endangered ecological community was significant. The very fact that the particular ecological communities are listed as endangered is sufficient to regard any large-scale damage or destruction of them to be properly regarded as significant.

Reasons for committing the offences 20 The defendant himself gave oral evidence. The defendant initially stated that the clearing of vegetation on the land was undertaken to allow better movement of cattle, although he later came to acknowledge that in hindsight, he did not clear the vegetation for such a purpose. The vegetation cleared was said to be "rubbish", "small spindly regrowth" and "paperbark scrub". The defendant denied in cross-examination that the land was cleared to create pasture for cattle, to carry more cattle or to improve the value of the property. The defendant admits telling lies to Mr Wood, who investigated the offence, about the property being fire affected. 21 I reject the assertion made by the defendant that his motivation was simply to allow for the better movement of cattle across the property. If that was his motivation then the area required for such a purpose was only a small proportion of the area that was cleared.

Sentencing considerations 22 Any sentencing exercise requires consideration of the purposes of sentencing. These purposes are set out in the Crimes (Sentencing Procedure) Act 1999, s 3A: (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,

(e) to make the offender accountable for his or her actions,

(g) to recognise the harm done to the victim of the crime and the community.

These purposes overlap. 23 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-87, Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474-475. The primary indicator of the objective gravity or seriousness of the offence is the maximum penalty prescribed by the legislature. A number of other factors highlight the objective gravity or seriousness of the offence in this instance.

24 A factor that highlights the objective gravity or seriousness of the offence in this instance is the extent to which the defendant could reasonably have foreseen the harm caused by the commission of the offence. In the present case the defendant acknowledged in oral testimony that he knew in a "roundabout way" that there was legislation regulating land clearing. The defendant denied having knowledge about the precise legislation or department responsible for administering legislation regulating the clearing of vegetation.

25 The court may take into account favourable and unfavourable factors personal to the offender: Veen v The Queen (No.2) (1988) 164 CLR 465 at 491. Prior criminality

26 The defendant has no criminal convictions: s 21A(3)(e) Sentencing Procedure Act. The prosecutor submits that it is not uncommon for this type of offence to be committed by persons who are otherwise of good character and that the defendant's lack of prior convictions is of less weight in this type of offence. Plea of guilty

27 The defendant has pleaded guilty to the offence: s 21A(3)(k) and s 22 Sentencing Procedure Act. In entering a plea of guilty at the earliest opportunity the defendant is entitled to a discount to reflect its utilitarian value. The utilitarian value of a plea of guilty merits a discount in the penalty in the range of 10 to 25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160]. In the present case the defendant pleaded guilty at the earliest opportunity and is thus entitled to a full discount on penalty of 25 per cent. Contrition and remorse

28 Evidence of contrition, repentance and remorse after the offence are relevant mitigating factors. The prosecutor submits that the defendant made assertions as to the vegetation cleared being regrowth and having been badly affected by bushfire, which were not true. I accept that this fact lends some doubt as to the extent of genuine contrition, repentance and remorse. Assistance to authorities

29 After misleading the investigator, the prosecutor submits, and I agree, that the defendant cannot expect great leniency for co-operating with the investigation. Capacity to pay fines

30 In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider the defendant's means to pay: s 6, Fines Act 1996. In the present case, no information or evidence was given as to the defendant's means to pay and no submission was made that he would be unable to pay whatever fine the court may impose.

31 In considering the question of penalty generally and for environmental offences such as this in particular, general deterrence is a major consideration: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, Carlino v Leichhardt Council (2005) 144 LGERA 235. 32 Persons will not be deterred from committing environmental offences by nominal fines. There is a need to uphold the integrity of the system of protecting and preserving endangered ecological communities. There is a need to send a strong warning to others who may be minded to breach the law that such actions will be visited with significant consequences.

33 The prosecutor submits that general deterrence should be given additional weight in this matter by reason of the prevalence of this type of offence in the Frederickton area. The prosecutor submits, and I agree, that this Court should take the same approach to evidence as to the prevalence of this offence in the locality where it was committed as Preston J did in Cameron v Eurobodalla Shire Council (2006) LGERA 349 at [82]-[84], in considering the value of general deterrence.

34 The principle of even-handedness requires the Court to have regard to the pattern of sentences currently being imposed in like case: Camilleri's Stock Feeds at 701-702. The obvious difficulty with this is that no two cases are truly alike - one is presented with a range.

35 Thus, in Director-General of the Department of Land and Water Conservation v Leverton Pastoral Company Pty Limited [2002] NSWLEC 212, the defendant company failed to comply with the provisions of Pt 2 of the NVC Act. The defendant entered a plea of guilty to contravening s 21(2) of the Act, which carried a maximum penalty of $110,000 at the time of the offence. The defendant cleared a total area of approximately 325 hectares. The defendant was co-operative with the prosecutor, had no prior relevant convictions and had agreed to pay the prosecutor's costs in the sum of $31,000. The principals of the company attended Court and expressed contrition on behalf of the defendant. Talbot J regarded the offence as a "one-off" and his Honour took into account the agreement by the defendant company to accept a direction to carry out remedial work, the mitigating circumstances, the extent of clearing that was contrary to law, the economic loss that the defendant will ultimately suffer, the defendant's antecedents and the significant impost of paying the prosecutor's costs. The defendant was fined $5,000.

36 The case of Director-General of the Department of Land and Water Conservation v Robson [1998] NSWLEC 174, 6 August 1998, unreported, involved three charges of an offence against the EP&A Act against three separate defendants in respect of the activity of clearing native vegetation at Evans Head. The defendants included the owner of the subject land, the director and manager of a company and the company itself. The owner of the land that was cleared was convicted of the offence as charged and in substitution for any pecuniary penalty Bignold J gave a direction that the defendant undertake works in the proposed vegetation management plan pursuant to s 126(3) of the EP&A Act and ordered that the defendant pay the prosecutor's costs. In the proceedings against the second and third defendant, the summonses were dismissed pursuant to s 556A of the Crimes Act 1900.

37 An area of 240 hectares of land was cleared contrary to the provisions of State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation (SEPP No. 46, now repealed) in the case of Director-General Land & Water Conservation v Rial & Ors (1998) 99 LGERA 130. Each of the defendants entered a plea of not guilty. The maximum penalty was then $100,000. Each of the defendants were convicted of the offence as charged and ordered to pay a fine, ranging from $2,000 to $10,000 and were also ordered to pay costs of the prosecutor.

38 In Director-General of the Department of Land and Water Conservation v Warroo (Lands) Pty Ltd [2002] NSWLEC 10, the defendant was convicted of an offence under s 125(1) of the EP&A Act for carrying out clearing contrary to s 76(2) of the EP&A Act without development consent. The defendant company initially entered a plea of not guilty, which was changed to a plea of guilty at the commencement of the hearing. The total area cleared was about 329 hectares. The defendant was fined $2,500 and ordered to pay the costs of the prosecutor.

39 The defendant in Director-General of the Department of Land & Water Conservation v Nunkeri Pastoral Pty Limited (1998) 98 LGERA 139 pleaded guilty to a charge of an offence against the EP&A Act relating to the clearing of some 189 hectares of open woodland without obtaining the required development consent. In addition to changing its plea to a plea of guilty, the defendant also entered into an agreement with the prosecutor in respect of the setting aside and maintenance of wildlife corridor/refuge on the property in respect of the area of land in totality two or three times more extensive than the 189 hectares cleared. The maximum penalty for the offence was then $100,000. The Court imposed a penalty of $10,000.

40 The case of Cameron v Eurobodalla Shire Council (2006) LGERA 349 involved an appeal from the Local Court to this Court. The appellant arranged for the removal of a dead tree and branches of live gum trees situated in a public reserve at the rear of the appellant's property. The appellant did not have consent to remove the trees. The appellant was issued with a penalty notice under s 127A of the EP&A Act for an offence of carrying out development without consent pursuant to s 125(1) and s 76A of the EP&A Act. The appellant elected to have the matter determined by a court rather than pay the amount of the penalty specified in the penalty notice. The appellant was convicted and sentenced in the Local Court, where he was ordered to pay a fine of $10,000, court costs and the prosecutor's costs. The maximum penalty for an offence against the EP&A Act is $1,100,000. Preston J found that while the appellant had no prior convictions, pleaded guilty and was entitled to a 25 per cent discount for that plea, there were no other subjective circumstances of the appellant that warranted a reduction in sentence. The appellant showed no contrition or remorse and did no co-operate with authorities. Preston J dismissed the appeal and confirmed the penalty imposed by the Local Court of the fine of $10,000. The appellant was also ordered to pay the respondent's costs of the appeal.

41 In Director-General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171, there were nine summonses before the Court and the prosecutor proceeding with eight of those. Pleas of guilty were entered for all eight summonses, which included charges of knowingly causing damage to the habitat of threatened species contrary to s 118D(1) of the National Parks and Wildlife Act 1974 (the NPW Act") and of clearing native vegetation contrary to s 21(2) of the NVC Act. The maximum penalty for an offence under s 118D(1) of the NPW Act was $110,000 or imprisonment for one year, or both and under s 21(2) of the NVC Act was, at the time of the commission of the offences in that case, a fine of $110,000. Mr Wilkinson, prior to lodging a development application to council for, lodged an application with the Department of Land and Water Conservation under the SEPP No. 46 seeking consent to clear 58 hectares of native vegetation from land for the purpose of rural residential subdivision. Consent was granted to clear approximately 15 hectares of land for the purpose of rural residential subdivision. Mr Wilkinson with two other people acting on his instructions cleared native vegetation from approximately 34.3 hectares of the land. Of this area, 25.6 hectares was on land that was to be retained as conservation area required by the Department's consent and thus contrary to the consent. Whereas 6.9 hectares was cleared outside the conservation area but contrary to the conditions of the consent. Also 1.8 hectares was cleared outside the area which was included in the development application. Mr Wilkinson at all times provided full and frank co-operation with the prosecutors. A property agreement under Pt 5 of the NVC Act was also entered into between the landholder and the Director-General of the Department of Land and Water Conservation. I imposed a total penalty of $43,500 for the eight charges as well as ordering that the defendants pay the prosecutor's costs.

42 Most of the cases referred to above were committed against offences which, at the time, carried a maximum penalty which was considerably lower than the maximum penalty that applies in the present case. Having regard to the cases referred to above, but in particular to Wilkinson, I consider that an appropriate penalty for the offence warrants a fine of $30,000. This figure should be discounted by 33 per cent for all mitigating factors, including the utilitarian benefit of the plea, noting that the plea was entered at an early stage of the prosecution, as well as the fact that the defendant has entered into a remediation agreement with the prosecutor, which results in a total fine of $20,000.

Orders 43 I make the following order by consent: (1) Pursuant to s 68(1) of the Land and Environment Court Act 1979, and/or Pt 20, r 1 of the Supreme Court Rules 1970, as in force immediately before the commencement of the Supreme Court Rules (Amendment No. 405) 2005, and as applies by Pt 6, r 2(1) of the Land and Environment Court Rules 1996 and/or s 21 of the Criminal Procedure Act 1986, leave is granted to amend the title of the proceedings to delete the words "Director-General, Department of Natural Resources" and replace them with "Director-General, Department of Environment and Climate Change".

(2) The defendant is convicted of the offence as charged. (3) The defendant must pay a penalty in the sum of $20,000.

(4) The defendant must pay to the Registrar of the Court the prosecutor's costs as agreed or as determined under s 257G of the Criminal Procedure Act 1986.

(5) The exhibits, except for Exhibit "A", may be returned.

I hereby certify that the preceding 44 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Dated: 9 November 2007 *******************

02/04/2008 - Part 36, r 17 of the Uniform Civil Procedure Rules 2005 -Typographical error - - Paragraph(s) Paragraph [26] - second sentence - Insert "not" after the words "it is".

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.

CITATION : Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Cameron v Eurobodalla Shire Council (2006) LGERA 349; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Carlino v Leichhardt Council (2005) 144 LGERA 235; Director-General Land & Water Conservation v Rial [1998] NSWLEC 72; Director-General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171; CASES CITED: Director-General of the Department of Land & Water Conservation v Nunkeri Pastoral Pty Limited (1998) 98 LGERA 139; Director-General of the Department of Land and Water Conservation v Robson, [1998] NSWLEC 174, 6 August 1998, Bignold J, unreported; Director-General of the Department of Land and Water Conservation v Leverton Pastoral Company Pty Limited [2002] NSWLEC 212; Director-General of the Department of Land and Water Conservation v Warroo (Lands) Pty Ltd [2002] NSWLEC 10; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Veen v The Queen (No.2) (1988) 164 CLR 465

(1993) 113 LGERA 357

(2005) 144 LGERA 235

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