Environment Protection Authority v Forestry Corporation of New South Wales - [2022] NSWLEC 70 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Forestry Corporation of New South Wales

[2022] NSWLEC 70

Land and Environment Court (NSW)|2022-04-06|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-04-06

Before

Robson J

Catchwords

(2019) 242 LGERA 241 Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205
(2006) 148 LGERA 299 Harris v Harrison (2014) 86 NSWLR 422
[2005] HCA 25 Plath v Rawson [2009] NSWLEC 178
(2009) 170 LGERA 253 R v De Simoni [1981] HCA 31

Source

Original judgment source is linked above.

Catchwords

(2019) 242 LGERA 241 Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205(2006) 148 LGERA 299 Harris v Harrison (2014) 86 NSWLR 422[2005] HCA 25 Plath v Rawson [2009] NSWLEC 178(2009) 170 LGERA 253 R v De Simoni [1981] HCA 31(1981) 147 CLR 383 R v DP [2019] NSWCCA 55 R v Hraichie (No 3) [2019] NSWSC 973 R v Kilic (2016) 259 CLR 256[2016] HCA 48 R v Olbrich (1999) 199 CLR 270[1999] HCA 54 Taysavang v RLee v R [2017] NSWCCA 146 Veen v The Queen (1979) 143 CLR 458[1979] HCA 7 Water NSW v Barlow [2019] NSWLEC 30

Judgment (37 paragraphs)

[1]

Background

An understanding of the background facts (particularly the nature and manner of the forestry operations undertaken by Forestry Corporation and its contractors) provides context to consider a number of issues that arise in this sentence hearing. The factual narrative in this section is mostly undisputed and is contained in a statement of agreed facts on sentence ('SOAF') prepared by the parties and filed 1 April 2021. Further salient factual matters are recorded in my consideration of the extensive expert evidence and the parties' submissions later in this judgment.

For present purposes, the relationship between Forestry Corporation and each contractor is summarised as follows: 1. Forestry Corporation agreed to grant each contractor access to the area of supply, and each contractor agreed to carry out "harvesting operations", defined to include "the selection and felling of trees". 2. Each contractor was required to only harvest "Log Products" within areas specified in "Harvesting Plans" prepared by Forestry Corporation. A "Harvesting Plan" is defined to mean "a plan prepared by Forestry Corporation which contains site specific information to be used, harvest plan maps and instructions to be followed when carrying out Harvesting Operations". 3. The contract with Greensill required it to provide and install Apple iPads in machinery for monitoring harvest area boundary locations and install on each iPad any software specified by Forestry Corporation. The contract with Cover It required it to cooperate with Forestry Corporation in the installation, use, management and maintenance of Global Positioning System ('GPS') software; and Forestry Corporation was to supply and meet hardware, software and installation costs associated with the use of GPS. 4. During "Harvesting Operations" and at the request of Forestry Corporation, each contractor was required to locate some, or all of the harvest boundaries referred to in the Harvesting Plan using GPS equipment, including handheld GPS devices for manual harvesting operations. 5. Forestry Corporation was required to provide Harvesting Plans in an electronic form depicting the harvesting boundaries, which would allow each contractor to locate the harvest boundaries. 6. Each contractor was required to select "the trees to fell and/or to retain in the course of the Harvesting Operations in accordance with the conditions specified in the relevant Harvesting Plan or as otherwise directed by Forestry Corporation". 7. It was each contractor's responsibility to ensure personnel were properly trained; with Forestry Corporation providing training in relation to matters including "Harvest Boundary location using GPS".

[2]

Koala offence

The Koala offence involves the felling of four trees and the construction or operation of two snig tracks, in the KEZ.
On 19 February 2018, David McLaughlin, an employee of Forestry Corporation was tasked with searching for and identifying koala high use areas while preparing for "harvesting operations" within several areas of the Forest. While undertaking this inspection he found koala scats of two different sizes under a Tallowwood tree within an area of the Forest (which were subsequently recorded in the NSW "BioNet Atlas" database by Matt Dobson, an ecologist with Forestry Corporation). Forestry Corporation then identified a koala high use area by conducting a koala "star search" which found five other trees with koala scats beneath them. This triggered the implementation of a 20m exclusion zone around the identified koala high use area and an "additional protection" area to the required KEZ to improve "connectivity to adjacent excluded areas" in the Forest. Forestry Corporation established a KEZ in the Forest prior to the offence and recorded this in 'version 3' of its HPOM ('HPOM v3').
Between about 12 and 19 April 2018 (but in any event before 4 October 2018) an employee of Greensill, constructed or operated two snig tracks within the KEZ. On or about 23 to 24 April 2018 (but in any event before 4 October 2018), another employee of Greensill felled four trees in the KEZ being located 1.1m, 1.6m, 10.9m and 13.2m respectively within the boundary of the KEZ. The diameters of the four remaining cut stumps were 940mm, 650mm, 760mm and 550mm respectively.
In summary, the Koala offence breaches resulted from the following circumstances: first, Forestry Corporation drafted a version of the HPOM, being HPOM v3, which identified the KEZ; second, an email notifying Forestry Corporation's Harvesting Supervisor and Harvesting Coordinator of HPOM v3 did not send - such that it remained in an "outbox"; third, the email was then deleted by Microsoft Outlook; fourth, having not received notification of HPOM v3, Forestry Corporation's Harvesting Supervisor and Harvesting Coordinator did not inform each contractor about the existence of HPOM v3; and fifth, each contractor continued to rely on a previous version of the HPOM, which did not show the KEZ.

[7]

Sentencing principles

In my consideration of the sentencing principles to follow, I am conscious that although the sentencing hearing in relation to all offences proceeded concurrently, Forestry Corporation is to be sentenced for four separate offences.
Forestry Corporation is to be sentenced in accordance with Div 1 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'). In fixing the appropriate penalty for the offences, s 3A of the Sentencing Act relevantly states: 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, … (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.
It is accepted that the purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is the need for the Court, through the sentence it imposes, to denounce the conduct, to hold the offender accountable for its actions, and to ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291 at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [168].
Section 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offender, including factors in aggravation under s 21A(2) and factors in mitigation under s 21A(3). Relevant to the present offences are: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, … (g) the offender is unlikely to re-offend, … (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), … …
As each of the offences is created by the BC Act, the Court is also required to consider the matters set out in s 13.12 of the BC Act which relevantly provides: 13.12 Sentencing for offence - matters to be considered (1) In imposing a penalty for an offence against this Act or the regulations (or a native vegetation offence), the court is to take into consideration the following (so far as they are relevant) - (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, … …
Pursuant to s 13.12(2) of the BC Act, the Court may also take into consideration any other matters it considers relevant.
Despite the pleas of guilty to each offence, the prosecutor still carries the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing; and for mitigating factors, the onus lies upon the offender on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
An instinctive synthesis method is to be applied, requiring the Court to identify the facts relevant to the sentences and to weigh their significance to arrive at each of the appropriate sentences: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ('Markarian').
The sentences that are to be imposed must be proportionate to both the objective seriousness or gravity of each of the offences committed by Forestry Corporation and the subjective circumstances of Forestry Corporation as the offender: Veen v The Queen (1979) 143 CLR 458 at 490; [1979] HCA 7.

[9]

The nature of the offences

The objective seriousness of an environmental offence is informed by the nature of the statutory provision (contravention of which constitutes the offence), the purpose of the statutory provision (understood according to consideration of the statute's objects), and the provision's place in the statutory scheme. Offences that undermine the integrity of a regulatory system are objectively serious.
Section 1.3 of the BC Act provides as follows: 1.3 Purpose of Act The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular - (a) to conserve biodiversity at bioregional and State scales, and (b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and … (d) to support biodiversity conservation in the context of a changing climate, and … (g) to regulate human interactions with wildlife by applying a risk-based approach, and (h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and …
The prosecutor submits, and I accept, that ss 10 and 69L of the Forestry Act form part of the relevant statutory scheme because the BC Act creates an offence for a contravention of a licence condition, or a BCL itself; the BCL forms part of each IFOA; and each IFOA is regulated by the Forestry Act. The prosecutor submits that Forestry Corporation is required to give equal importance to its principal objective under the Forestry Act; and that the principles of ecologically sustainable development and forest management are relevant to the extent that the science is not absolute in relation to environmental impacts. Those provisions are as follows: 10 Objectives of Forestry Corporation (1) The principal objectives of the Corporation are as follows - (a) to be a successful business and, to this end - (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, (b) to have regard to the interests of the community in which it operates, (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991, (d) to contribute towards regional development and decentralisation, (e) to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it or otherwise under its control or management. (2) Each of the principal objectives of the Corporation is of equal importance. … 69L Purpose of integrated forestry operations approvals (1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies - (a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and (b) that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994. (2) In this section - principles of ecologically sustainable forest management means the following - (a) maintaining forest values for future and present generations, including - (i) forest biological diversity, and (ii) the productive capacity and sustainability of forest ecosystems, and (iii) the health and vitality of native forest ecosystems, and (iv) soil and water quality, and (v) the contribution of native forests to global geochemical cycles, and (vi) the long term social and economic benefits of native forests, and (vii) natural heritage values, (b) ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations, (c) providing incentives for voluntary compliance, capacity building and adoption of best-practice standards, (d) applying best-available knowledge and adaptive management processes to deliver best-practice forest management, (e) applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.
The prosecutor submits that by conducting prohibited activities within exclusion zones, other than in accordance with the conditions to which each TSL was subject, Forestry Corporation undermined the statutory scheme. The prosecutor submits, first, that TSLs set out the minimum measures to protect threatened species and their habitat from timber harvesting activities; second, that condition 5.1(a)(i) is important in that it prohibits intrusion upon and disturbance of protected habitat, and relies upon conditions 5.1(f) and (h) (noted at [13] above) which address the marking of boundaries to ensure those responsible for timber harvesting are best able to comply with the prohibition; and third, that Forestry Corporation had reason to foresee the potential consequences of relying on the GPS rather than physical markings in the field and to prepare a system for dealing with the identification and marking of exclusion zone boundaries where conditions 5.1(f) and (h) foreshadow the possibility of harm or likely harm caused by the inaccurate identification of boundaries.
Forestry Corporation submits that Appendix B to each of the UNE IFOA and the LNE IFOA authorises the conduct of forestry operations in the region that are likely to result in harm to a threatened species of protected fauna, the picking of a threatened species or protected plant, or damage to the habitat of a threatened species; and that licences, subject to conditions, provide a defence to offences under the BC Act.
Forestry Corporation further submits that the statutory scheme under the BC Act contains three types of offences. Namely, s 2.1 provides for an offence by persons who harm or attempt to harm a threatened species which is confined (pursuant to s 1.6) to "harm to animal" itself rather than harm by changing the animal's habitat; s 2.4 is a different category of offence which (where "damage" is defined in s 1.6 as "damage habitat") concerns harm to habitat in the course of unlawful activity; s 2.10 of the BC Act provides a defence to causing harm to an animal or its habitat if conduct is in accordance with a BCL; and each of those offences is a Div 1 breach of the BC Act. In contrast, it submits that s 2.14 (relevant to each of the four offences), as a Div 3 breach, is merely an offence for contravening a BCL condition and does not contain an element of harm; and the effect of subss 2.14(5) and (6) is that an offender can only be convicted of either a Div 1 or a Div 3 charge.
These provisions referred to by Forestry Corporation are as follows (noting s 2.14 is extracted at [5] above): 2.1 Harming animals (1) A person who harms or attempts to harm - (a) an animal that is of a threatened species, or (b) an animal that is part of a threatened ecological community, or (c) a protected animal, is guilty of an offence. … … 2.4 Damaging habitat of threatened species or ecological community (1) A person - (a) who damages any habitat of a threatened species or threatened ecological community, and (b) who knows that it is the habitat of any such species or community, is guilty of an offence. Maximum penalty - Tier 1 monetary penalty or imprisonment for 2 years, or both. (2) A person who damages habitat of a threatened species or threatened ecological community in the course of carrying out any unlawful activity is taken to know that it was habitat of that kind unless the person establishes that the person did not know that it was habitat of that kind. 2.10 Acts authorised by biodiversity conservation licence It is a defence to a prosecution for an offence under Division 1 if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a biodiversity conservation licence under Division 3.
I consider that the offence created by s 2.14 of the BC Act has an important role in the overall statutory scheme of the BC Act in preventing contravention of that Act and its objectives. As noted earlier (at [51]), I accept the prosecutor's submission that ss 10 and 69L of the Forestry Act also form part of the relevant statutory scheme because the BC Act creates an offence for a contravention of a condition of a BCL made under the Forestry Act.
I find that Forestry Corporation's conduct in relation to each of the offences which amounted to undertaking prohibited activities within exclusion zones other than in accordance with the conditions pursuant to which it was subject has undermined the statutory scheme. It is clear that TSLs and/or BCLs provide measures to protect threatened species and their habitat from timber harvesting activities, in particular, condition 5.1(a)(i) (in relation the Koala offence) - which prohibits all forestry activities in the exclusion zone and foreshadows through conditions 5.1(f) and (h) (as submitted by the prosecutor) the possibility of harm or likely harm to be caused by the inaccurate identification of boundaries.
While I note Forestry Corporation's submission that the statutory scheme contains three "types" of offences (as noted at [54] above), and that the offence created by s 2.14 of the BC Act does not have, as an element, the requirement for harm (a matter I consider later in this judgment), this does not detract from my finding that the offence created by s 2.14 has an important role in the overall statutory scheme and any breach of conditions undermines the protective regulatory scheme contained in the BC Act and the Forestry Act. Moreover, licences permitting harmful conduct, issued subject to conditions, viewed within a broader scheme of offences prohibiting harmful conduct, play an important role in regulating harmful conduct while giving effect to the objectives of the BC Act: Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 at [60].

[12]

Prosecutor's evidence

Dr Crowther, an associate professor in wildlife ecology and koala management, gave evidence of harm in relation to the Koala offence having reviewed maps of the KEZ; geographical locations and dimensions of the felled trees; photos of the remaining cut stumps; a video taken of the KEZ by EPA officers on 22 October 2020; and a review of the BioNet records for koalas in the mid North Coast of NSW (and particularly the Forest).
In relation to the koala population in mid-northeast NSW, Dr Crowther states that there are few reliable estimates of koala distribution and abundance; that the mid North Coast of NSW is the area with the highest (although declining - particularly after the 2019/2020 bushfires) koala populations in NSW; and that there are extensive BioNet records of koalas and koala scats observations on the mid North Coast of NSW, including within the Forest, from the past 10 years, especially in 2017 (when 20 live observations and 67 scat records were made) prior to the Koala offence. On that basis, he opines that the area has relatively high koala abundance compared to other parts of NSW particularly during 2018, the period relevant to the Koala offence.
In relation to the significance of exclusions zones, Dr Crowther opines that their purpose is to protect areas that contain feed trees or breeding sites from forestry operations and prevent short-term harm to individuals and the habitat of the local koala population; that the KEZ was certainly used by koalas, as indicated by the BioNet records and Forestry Corporation's surveys (which found the scats of a mother koala and joey, indicating that the area was koala breeding habitat); and, noting that female koalas have small home ranges with a limited number of trees for food and shelter, the Koala offence affected individual koalas within the KEZ and is likely to affect the broader koala population.
In relation to the extent of harm caused or likely to be caused by the Koala offence, Dr Crowther opines that there was "more than likely" impact to the koala population as a whole in circumstances where scats indicated the presence of a mother koala and joey within the KEZ, first, because reproductive females are the most important contributor to koala population growth; second, because the reduction of habitat size and quality was highly likely to have had an adverse impact on the breeding female and offspring; third, because it is very likely that the trees (being large trees) felled were used for shelter; fourth, because the four felled trees were close together they were likely to be within a single home range and their loss would have a larger negative impact on individual koalas (and would reduce the koala carrying capacity of the area) than the loss of an individual tree where koalas generally stick to their own limited home range; and fifth, because the construction or operation of the two snig tracks would have created further disturbance to the habitat and could have made the koalas more susceptible to predators when moving along the ground.
In cross-examination, Dr Crowther accepted that he had no evidence that koalas used any of the four trees felled and that his opinion was based on data collected elsewhere that koalas tend to use most trees for feed or shelter; and that none of the literature or data identifies the consequence of the loss of a tree frequented by a koala.
In response to Ms Ashby's expert evidence (noted at [86]-[89] below), Dr Crowther opines, first, that although no koalas were spotted in the felled trees at the time of the Koala offence, this does not mean no koalas (either in or nearby the trees) were harmed or could have been harmed, because koalas are difficult to observe; second, whilst the four trees across 0.3ha do not represent a large area of an individual's home range, they do represent large shelter and feed trees that would be used by koalas, and if the trees were Sydney Blue Gums, although they are not preferred feed trees (as Ms Ashby opines), they were most certainly used, and are reported as species of significant use by koalas in northern NSW by the NSW Office of Environment and Heritage ('OEH'); and fourth, Ms Ashby's assumption that the habitat available and the number of koalas it can support was "in the mid-range of the data available for other north coast populations" is not reliable, useful or helpful where (as Ms Ashby notes) no koala population data is presented.
In response to Mr Peake's evidence that the harm caused by the Koala offence is of minor significance because the combined area of the Forest's compartments is 921ha, Dr Crowther opines that the total area of forestry activities is not in issue, it is the size of the removed trees, their significance for food and shelter, and the fact that koalas often revisit trees within their home range, that are relevant.
In cross-examination, Dr Crowther accepted that the Tallowwood and a further five trees (noted at [30] above) under which scats were also found, had not been logged; that there is no evidence of the finding of scats under any of the four trees felled; and that the four trees felled were secondary browse trees.
In relation to a koala's home range, Dr Crowther accepted that a home range able to sustain the needs of a koala may vary from as little as 5ha up to 23ha (as opined by Ms Ashby) depending on the quality of its trees and habitat; and opined that his evidence of home range size (and that koalas generally stick to their own limited home range) was based upon his experience and an application of literature to the specific circumstances and he could not (and did not) opine what the exact home range was at the KEZ without it being measured, but considered that home ranges (particularly of females) in areas such as the subject forest type, tend to be smaller.
Dr Crowther maintained that the felling of four trees could have an impact on the sufficiency of food and shelter for koalas (especially breeding animals in the KEZ) because koalas are limited in their diet; however, he accepted that koalas, due to their complex microbiomes, do not use the same tree all the time because they must use mixed species of eucalypt (which have different concentrations of toxins), and that there may be some (up to 18%) overlap of trees along the edges of the home ranges of different koala individuals (however opined that as koalas are not social animals they would not be in the same place at the same time). Dr Crowther nonetheless opined that he could express a pattern as to the impact of the loss of four trees based on an extrapolation of information regarding populations of koalas in other home ranges in NSW.
Dr Crowther concluded that the area represented koala breeding habitat based on the two different sizes of the scats found below the Tallowwood tree, and the fact that koalas are not social, and that koalas are not selective in their breeding habitat (in comparison to owls which return to the same tree), rather they select where they stay and raise their young based on whether the habitat can sustain a joey. He opined that simply because there were no scats discovered under the four trees felled does not mean that koalas had not used those trees as breeding habitat.
In re-examination, Dr Crowther confirmed that he and others had collected data about home ranges; that his evidence contained a table of data which informed his opinion that the mid North Coast of NSW is an area of relatively high koala abundance for NSW, particularly during the period relevant to these proceedings; and that he had formed his opinion that the felling of the four trees likely had an adverse impact on the local koala population based on the tabulated data.
Dr Kooyman, a plant ecologist gave evidence in relation to the ecology at the sites of the Rainforest offences and the WTRF offence, and the harm caused or likely to be caused by those offences; and practical measures that could have been taken to prevent, control, abate or mitigate harm.
To determine the impacts of the offences, Dr Kooyman established a 30m x 20m plot-based sample that included the location of felled trees at the site of each of the RA1 offence, the RA2 offence, and the WTRF offence, which enabled him to characterise the vegetation, species diversity and abundance - a process he described as "an abundance - weighted plot-based methodology". To establish the impact of logging and fire on species present and the forest types more generally, and to differentiate between causal factors, he "inventoried" tree species and vegetation at the sites based on his plot sample and allocated an "abundance weighting" (based on a modified measure called "Braun-Blanquet", which he opines is more useful for characterising forests than a list of species which measures species diversity) to represent the frequency of occurrence relative to the size class of each species. By identifying species from bark, residual material or cut stems, and recording physical and photographic details, he identifies post-logging (pre-fire) vegetation structure and composition, present vegetation, and determines pre-disturbance vegetation.
In relation to RA1, Dr Kooyman found first, that RA1 is less well-developed and less complex than RA2 and the warm temperate rainforest exclusion zone and should be described as redeveloping rainforest which he nonetheless considers to be rainforest; second, that the two Tallowwood trees felled and removed had produced a canopy gap; and third, that there were signs of regeneration (including of weeds). He opines that the area he was instructed had been disturbed by the RA1 offence, being 630m², was an underestimate; and that there was a minor change evident in plant species composition as a result of the RA1 offence.
In relation to RA2, Dr Kooyman found first, that a large Brush Box had been felled into, and its main stem removed from, the mapped rainforest area; second, that there was evidence of relatively hot fire and regeneration of orthodox and rainforest seeds and sprouting of mature rainforest trees; and third, that RA2 contained well-developed warm temperate rainforest.
In relation to the warm temperate rainforest exclusion zone, Dr Kooyman found first, that the area was dominated by rainforest; second, that there was evidence of very hot fire impacts; third, that pre-fire and pre-logging, the area would have been dominated by warm temperate rainforest; and fourth, that several trees had been felled into, and removed from, the warm temperate rainforest buffer exclusion zone (which although he agreed in cross-examination was not in the rainforest, he maintained that the buffer included rainforest).
Dr Kooyman opines that the areas that he was instructed had been disturbed by the RA2 offence and the WTRF offence, being 930m² and 120m² respectively, were, again, underestimates; and that his abundance data indicates that there was a detectable change in the forest structure, particularly canopy cover, as a result of the felling and removal of large trees, but that the species diversity did not change. He opines that the RA2 offence and the WTRF offence each had a substantial impact because they removed large trees which were key elements of what made the area rainforest, opened the canopy, facilitated the invasion of weeds and fire-prone vegetation, and degraded the quality of habitat. In cross-examination, Dr Kooyman agreed (noting that the size of each sample plot was 600m²) that the plot within the warm temperate rainforest exclusion zone was bigger than the area disturbed by the WTRF offence; and that the RA2 plot was only a subset of the area disturbed by the RA2 offence.
In relation to each of the RA1 offence, the RA2 offence and the WTRF offence, Dr Kooyman opines that the felling of trees and reduction in rainforest area resulted in ecological impacts including loss of critical habitat and feed trees for wildlife (including the koala and greater glider); the creation of gaps in the forest canopy, with the potential for continuing rainforest die-back as a result; and the removal of tree seedling banks (which protect regenerative capacity) due to soil disturbance as trees hit the ground and due to machinery used in each area.
In terms of regenerative trajectory, Dr Kooyman opines that the felling of trees in the warm temperate rainforest exclusion zone would certainly have a deleterious effect on the rainforest in that it causes disruption and opens the edges of the rainforest, modifies micro-climates and causes drying, which exacerbates the potential for fire penetration into the warm temperate rainforest. He makes similar comments in relation to RA2 and RA1.
In response to Mr Peake's evidence, that RA1 did not contain rainforest, and that the warm temperate rainforest exclusion zone was not dominated by warm temperate rainforest, Dr Kooyman opines first, that Mr Peake's methodology does not provide an adequate ecological basis for interpretation compared to his own abundance-weighted plot-based methodology, which provides a detailed analysis of vegetation at all sites; second, that Mr Peake did not undertake detailed floristic sampling, provide an indication of species abundance, undertake any analysis, or provide data-informed sampling which could be replicated, compared to his own floristic data which provides clear support for the definition of the areas as rainforest; and third, that Mr Peake's use of the word "ecotone" is "redundant".
In relation to harm, Dr Kooyman disagrees with Mr Peake's characterisation that each of the Koala offence, the Rainforest offences and the WTRF offence caused minimal harm in the context of harm to the larger area of forestry activities, and considers that the harm is in addition to those activities and further reduces the ecological value of what should have been retained habitat; and, further, that harm must be assessed in relation to the disturbance within the protected exclusion zone (and that the same disagreement applies to Ms Ashby's opinion). Contrary to Mr Peake, Dr Kooyman also opines that the locations of the Rainforest offences and the WTRF offence will take centuries rather than decades to recover; and that the removal of tree seedling banks has a significant deleterious effect on the redevelopment of the forest at each site.
In response to Ms Ashby's evidence, Dr Kooyman opines that the provisions within the BC Act and Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') for assessing harm do not apply as a measure or basis for evaluating harm, and that Ms Ashby has conflated the assessment process and definition of harm within those statutes with the present circumstances, where a different scale and definition of harm is applicable (where the issue is harm to areas of habitat allocated for protection, not harm to threatened species and ecological communities regionally).

[13]

Forestry Corporation's evidence

In relation to harm resulting from the Koala offence, Ms Ashby gave evidence that the four trees felled were unlikely to have been used for foraging, although they may have been used for shelter, and that their removal had the potential to cause harm by removing forage and shelter habitat where the four trees were Sydney Blue Gum, which (although not a primary browse tree) is a species recorded by the OEH as having "documented significant use" by koalas.
In relation to the degree of harm, applying the impact assessment procedures within the BC Act and EPBC Act, Ms Ashby opines that it is unlikely that the Koala offence would result in a significant adverse impact to the local koala population.
Ms Ashby opines that the Koala offence is small in scale and unlikely to impact resident koalas in such a way as to adversely impact their life cycle to the point of threatening the viability of the local population. Ms Ashby opines that the additional fragmentation arising from the breach would not impede the local movement of koalas or effectively divide the population where only four canopy trees over 0.3ha were lost, creating a small and potentially navigable gap; and the larger additional exclusion zone is contiguous with an approximately 104ha compartment-wide exclusion zone (containing suitable habitat and koala high use areas) which is in turn connected to other compartments within the Forest. Although the four trees were important as a foraging source and as shelter, and the presence of scats indicates there was likely to have been a mother koala and joey in the KEZ in what can be defined as a breeding habitat, and that the trees were relatively large, Ms Ashby notes the following - the trees were not primary browse trees; no scats were observed beneath them; 17 other primary browse trees were recorded in the KEZ; koalas do not use their habitat in any identifiably special way while breeding; the felled trees represented a small part of the KEZ area of habitat valuable to a small number of resident koalas in the context of the Forest; and there are hundreds (if not thousands) of hectares of well-connected and suitable habitat available to the 140 individuals recorded within the local population. Additionally, although the Koala offence contributes to the "key threatening process" of "clearing native vegetation", she concludes that the scale of impact is little more than might be expected to occur with natural treefall.
Ms Ashby further opines that the local koala population is unlikely to represent an "important population" and the Koala offence is unlikely to reduce the size of the population, the area of occupancy, or cause fragmentation. She opines that the offence was small in scale and occurred in habitat features that are not high value and are commonly available across the Forest; the offence is unlikely to disrupt any important stages of the breeding cycle of koalas to an appreciable degree; the temporary snig tracks of <100m do not provide additional access to predators (notably dogs) in circumstances where roads are already well-developed; the scale of the loss is insufficient to cause species decline by increasing the risk of koalas expressing the "Chlamydia pathogen"; and the area adjacent to the KEZ has been logged since the 1970s, yet koalas persist in the Forest and its surrounds.
In cross-examination, Ms Ashby accepted that she could not dispute Dr Crowther's observations that koalas tend to stay in their home range; the home ranges of females are generally smaller than males; the trees felled were within the home range of a mother koala and joey whose scats were found beneath a Tallowwood tree (noting that the mother and joey would have been in the home range at all times); the trees may have been used for shelter; the home range within the subject forested area would tend to be smaller than an unforested area; the home range would have been of better quality and smaller prior to the offence compared to the post-logging of the four trees, and it is therefore possible that koalas would stray less far; the area was breeding habitat; female koalas probably choose areas to rear their young that fulfil their nutritional needs; and that the loss of four trees close together would have a larger negative impact on an individual koala than the loss of a single tree.
In relation to the construction of snig tracks, Ms Ashby accepted that the forest floor would have been opened up to some degree; there would be potential for an increased risk to, and predation of, koalas when moving between trees along the ground; and opined that the loss of the trees is of small impact in the overall context.
Mr Peake, a flora and fauna ecologist, gave evidence in relation to the whether the forest at the location of each offence was rainforest or warm temperate rainforest and the nature and extent of any harm caused.
In relation to the Koala offence, Mr Peake opines that the four trees felled were likely Sydney Blue Gum within a broadly occurring vegetation type of Tallowwood - Sydney Blue Gum (with ecotones on the borders of the KEZ); and states that within the KEZ he also recorded five Tallowwood (primary browse) trees, four Sydney Blue Gum (secondary browse) trees, and eight Forest Oak (secondary browse) trees. In relation to the area and nature of impact, Mr Peake opines that there are likely to have been later compounding effects from bushfire; while the habitat affected is of a general nature that supports koalas, the specific trees removed were secondary browse trees; while the Koala offence has caused harm to the environment, and likely to koala habitat, the loss of four trees and associated habitat is of minor consequence; and that the extent of harm caused by the offence is likely to be minimal because it took place during the implementation of a harvesting operation across a 921ha area of the Forest.
Mr Peake opines that the Rainforest offences and the WTRF offence took place within areas mapped as Viney Scrub, Sydney Blue Gum forest, and Eucalypt forest in RA1; Yellow Carabeen forest and Crabapple - Sassafras - Corkwood - Silver Sycamore forest in RA2; and Eucalypt forest in the warm temperate rainforest exclusion zone. He accepts and adopts Mr Henderson's (an officer of the EPA) calculations of the area impacted by each offence being, 630m² for the RA1 offence, 930m² for the RA2 offence, and 120m² for the WTRF offence.
In relation to the RA1 offence, Mr Peake opines that the trees felled were likely Tallowwood species on or close to an ecotone between eucalypt-dominated forest and rainforest, although considers the overriding vegetation type to be Tallowwood - Sydney Blue Gum; and that it is more likely that the felled trees occurred within tall wet sclerophyll forest with a rainforest understorey, rather than in a rainforest, despite its occurrence within a mapped rainforest management zone.
In relation to the RA2 offence, Mr Peake opines that the tree felled was likely Brush Box species on or close to an ecotone between eucalypt-dominated forest and rainforest, although opines that it was more likely to be rainforest prior to the offence albeit heavily dominated by eucalypts - particularly Brush Box, Coachwood - Crabapple, or Tallowwood - Sydney Blue Gum. He accepts that the removal of a large Brush Box at RA2 occurred possibly on the margin or slightly within the boundary of warm temperate rainforest.
In relation to the WTRF offence, Mr Peake opines that the two felled trees were likely Sydney Blue Gum species; while they occur on, or close to, an ecotone between eucalypt-dominated forest and rainforest, it is more likely that the felled trees occurred within tall wet sclerophyll (eucalypt-dominated) forest with a rainforest understorey than within rainforest, despite their occurrence within a mapped warm temperate rainforest management zone; and that the overriding vegetation type prior to the offence was likely Tallowwood - Sydney Blue Gum.
While he agrees with Dr Kooyman's opinion that the Rainforest offences and the WTRF offence caused ecological impacts, he opines that the extent of harm to the environment is minor because the 0.168ha area of impact is barely noticeable on the scale of the 921ha forestry compartments; the impacts (including creation of forest canopy gaps and deletion effects) are not dissimilar to the natural felling of trees due to storm activity or wood decay (although he clarified in cross-examination that his opinion did not take into account the removal of trees, and that this opinion did not assist with assessing harm and could be removed from his evidence without changing his findings); the canopy gaps created at the sites of the RA1 offence and the WTRF offence are likely to be minor given that the trees were felled within an area concurrently subject to logging; the koala and greater glider habitat at the site of the Rainforest offences and the WTRF offence is not listed as critical, and the loss of two trees likely to be Tallowwood being primary koala feed trees is very minor in impact considering the size of the Forest; and the loss of each tree seedling bank is likely to be minor even when harm is measured on a local scale.
Mr Peake further opines that the impacts are likely to be impermanent due to the limited extent of harm, the abundance of adjoining healthy vegetation, at least reasonable natural recovery over a period of 5 to 10 years, and the substantial replacement of the felled trees over several decades (although, in cross-examination he agreed this would be closer to a century), and in the context of likely historic, current and future repeated disturbances (including weeds and fire).
In cross-examination, Mr Peake agreed that RA1 did have characteristics of rainforest (if not pristine) and, therefore, that RA1 could be regarded as redeveloping rainforest as Dr Kooyman opines and he accepted that the warm temperate rainforest exclusion zone could be characterised as warm temperate rainforest (as opined by Dr Kooyman) and that it could have been potential koala habitat prior to logging.
In terms of his methodology, he accepted that his process was different to Dr Kooyman's in that he had not undertaken a quantitative or semiquantitative assessment and did not use plots; and that he did not undertake measurements or observations of control plots. He did not agree that Dr Kooyman's methodology was robust and more soundly based than his own, stating that Dr Kooyman had not laid out his assumptions clearly and had to conject what was possibly present pre-disturbance, and that Dr Kooyman's approach, where he was comparing plots to each other, required "control" plots. Ultimately, Mr Peake agreed that he is not averse to the approach taken by Dr Kooyman, and that the difference between them is really the degree of harm they opine.
Mr Peake conceded that his opinion that the area of impact within RA1, RA2 and the warm temperate rainforest exclusion zone is barely noticeable in the context of the forestry compartment's size is of no ecological relevance in itself, although he maintained that the extent of harm is still of minor consequence. Similarly, although agreeing that the KEZ was koala breeding habitat, he opined that the Koala offence was likely to have caused minimal harm because harvesting occurred across four compartments of the Forest which he opines has more ecological relevance because the compartments (being dominated by Eucalypts) could have provided habitat.
Although he agreed that the RA1, RA2 and the warm temperate rainforest exclusion zones serve an important purpose in diminishing harm to the environment; that harm should involve an assessment of damage to the exclusion zone areas, although he opined that the adjoining logging operations are relevant; and that the harm to the surrounding areas possibly both magnifies the harm to the exclusion zones and increases their value.

[14]

Prosecutor's position

In relation to the Koala offence, the prosecutor emphasises Dr Crowther's evidence that the felling of the large Eucalyptus trees and the construction or operation of snig tracks were highly likely to have had an adverse impact on koalas by reducing the size and quality of habitat, which may have forced koalas to move into other areas, or impacted the sufficiency of food and shelter thereby leading to lower body condition; that because the felled trees were close together and therefore likely to be within a single home range, their loss would have an impact on home ranges of individual koalas (especially considering the evidence of breeding habitat and that female koalas tend to have a small home range), and would reduce the carrying capacity for koalas in the area; that trees of the diameter felled take many years to grow and their loss cannot be mitigated with short-term planting or natural regrowth; and that the construction or operation of snig tracks would have created further disturbance to the habitat and may have made koalas more susceptible to predators when moving along the ground.
In light of Dr Crowther's evidence, the prosecutor submits that the Court would find that the Koala offence caused substantial environmental harm (including reducing koala habitat) and that it is open for the Court to find actual or likely harm to the environment; and that the Court would accept Dr Crowther's "highly relevant" evidence that the four trees were secondary browse trees (used for shelter or food) within the home range of, and used by, a mother koala and joey (and therefore koala habitat), and that their felling would have a major impact on breeding animals because of their limited diet.
Particularly in relation to the Koala offence, but also in relation to the Rainforest offences and the WTRF offence, the prosecutor submits that "harm" for the purposes of s 13.12(1)(a)-(c) of the BC Act and s 21A(2)(g) of the Sentencing Act, refers to harm to the environment generally, including to habitat, compared to s 1.6 of the BC Act which defines "harm an animal" and is a separate discrete issue when considering harm to an animal itself. The prosecutor, therefore, rebuts Forestry Corporation's submission that the Court is constrained by the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 ('De Simoni') in its interpretation of harm and any consideration of harm to koala habitat as an aggravating factor to increase the objective seriousness of the Koala offence, and submits that the principle merely prevents the Court from punishing an offender for any additional or separate charge.
In relation to the RA1 offence, the prosecutor relies upon Dr Kooyman's evidence that a 630m² area of RA1 was affected by logging; that RA1 contained rainforest that was less well-developed and less complex than the site of the RA2 offence and the WTRF offence; that RA1 is characterised as redeveloping rainforest in the process of long-term regeneration following earlier disturbance; and that the logging in RA1 had only a minor influence on plant species composition with little change in less diverse vegetation present, but that significant shifts in species composition (diversity) and abundance was caused following logging and bushfire. The prosecutor also submits that where one of the trees felled was 8.5m within the boundary of the exclusion zone, while the Court cannot determine whether the contractor did not properly check the boundary shown on the HPOM, it is doubtful that its felling was caused by a GPS issue.
In relation to the RA2 offence and the WTRF offence, the prosecutor relies upon Dr Kooyman's evidence that areas of at least 930m² of RA2 and 120m² of the warm temperate rainforest exclusion zone were affected by felling; that each were dominated by rainforest with wet sclerophyll forest in upslope areas; and that there was a detectable change in forest structure following the felling and removal of trees, in particular the loss of canopy cover. The prosecutor also submits that where the tree felled within RA2 was a significant distance of 20m within the rainforest boundary, it is doubtful that its felling was caused by a GPS issue.
In relation to each of the RA1 offence, the RA2 offence and the WTRF offence, the prosecutor relies upon Dr Kooyman's evidence that ecological impacts included: the loss of critical habitat and feed trees for wildlife including the koala and greater glider; the disturbance caused by a loss of continuous rainforest canopy induced rainforest dieback, which may lead to further tree death from continuing decline of the canopy and degradation of rainforest habitat quality and micro-climate features; and removal of each tree seedling bank (especially shade tolerant seedlings) which protect the regenerative capacity and survival of warm temperate rainforest and other rainforest types.
The prosecutor submits that Mr Peake conceded that the area of RA1 was arguably rainforest and that the exclusion zone around the warm temperate rainforest (including the buffer exclusion zone) is arguably warm temperate rainforest, and that the Court would make a finding beyond reasonable doubt that RA2 is rainforest where Mr Peake conceded that it "probably" was rainforest; the Court would not find on the balance of probabilities that the area mapped as rainforest was not actually rainforest; that Mr Peake agreed that there was harm to the environment; that the proper assessment of harm caused by the offences is to determine harm to the exclusion zones because of the prohibition in the BCL rather than (as Ms Ashby and Mr Peake did) in relation to the overall context of the considerable impacts of logging in the surrounding areas of the Forest.
The prosecutor submits that it is open to the Court to take into account opinions about the increased risk from fire due to the logging which would have increased woody debris on the forest floor (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 ('Bentley') at [175]), and therefore relies upon Dr Kooyman's evidence that: the post-fire regeneration within RA1 includes more dryer sclerophyllous elements which will persist and increase the risk of more frequent and intense fires and delay redevelopment of rainforest; the felling in RA2 disturbed adjacent areas of transition to wet sclerophyll forest and increased the likelihood of micro-climate changes, removed understorey components by machinery working inside the rainforest edges, delayed regeneration and increased the potential for fire to move into the rainforest; and the felling in warm temperate rainforest by the WTRF offence disturbed forest edges, opening the forest, modifying micro-climates and causing drying, exacerbated the potential for fire penetration, and blocked rainforest redevelopment.

[15]

Forestry Corporation's position

Forestry Corporation submits that the Court would not find that the Koala offence caused "substantial" harm as provided for in s 21A of the Sentencing Act. Forestry Corporation submits that although the Koala offence is a Tier 3 offence because the condition the subject of the charge relates to koalas (in that the offence occurred in a KEZ or within koala habitat), it has not been charged with a "harm" offence in relation to koalas (under s 2.1 of the BC Act) or for the unlawful picking of plants forming part of the koala habitat (under s 2.2 of the BC Act). Forestry Corporation again points to the three "types" of offences (noted at [54] above), and submits that the De Simoni principle, that an offender cannot be convicted of an offence with which it is not charged, applies.
As I understand it, Forestry Corporation submits, first, that the "harm" referred to in s 13.12(1)(a) of the BC Act is only "harm to animal", being the koala, as defined in s 1.6, and not harm to the koala caused by damage to its habitat, and that the Court would not be able to find beyond reasonable doubt that the Koala offence caused, or was likely to cause, harm to koalas where Dr Crowther opines that there was a possibility that a koala was in the tree or in the area of felling at the time of the offence; and second, that pursuant to the De Simoni principle, the Court cannot consider damage to habitat because damage to habitat is an element relevant to a Tier 1 offence under s 2.4 of the BC Act which is more serious in penalty and subject.
Forestry Corporation submits that the Court cannot find beyond reasonable doubt that the Koala offence had a measurable, material, or quantifiable impact on koala health (and therefore harm) where there is no understanding of the abundance of koalas or the quantity and quality of feed trees available to comprehend any increased competition for feed in the home range, where there is no specific significance of the loss of the four trees because koalas are not selective breeders (in terms of the landscape they breed in), and where the KEZ itself is not triggered because of an abundance of primary or secondary browse trees, but because the koala scats were found under secondary browse trees.
Forestry Corporation further submits that Dr Crowther's evidence (that there was the possibility of harm to a koala if one was in the tree or in the area) cannot satisfy the Court beyond reasonable doubt that the Koala offence caused actual or likely harm to koalas where Dr Crowther gave the impression of small home ranges (especially for females) without attempting to identify what he meant, which makes it difficult to understand the significance of the loss of the four trees in a home range of unknown size; where the Court must consider the loss of the four trees in the context that koalas use almost every tree in their home range and that the four trees were secondary browse trees; and the prosecutor has failed to adduce evidence of koala scats beneath the felled trees.
In relation to the WTRF offence, Forestry Corporation accepts that the logging of two trees results in harm, however, submits that it occurred within the buffer exclusion zone around the warm temperate rainforest; the buffer is not rainforest; and the purpose of the buffer is to protect the warm temperate rainforest not the buffer itself. Furthermore, the Court cannot be satisfied beyond reasonable doubt that warm temperate rainforest was harmed where Dr Kooyman was not instructed to assess whether the protected warm temperate rainforest was impacted; he was unable to identify where his survey plots (in relation to the Rainforest offences and the WTRF offence) were; his dendrogram simply compared plots within RA1, RA2 and the warm temperate rainforest exclusion zone; and his plots do not assist the Court in determining whether harm has been caused to rainforest because each focused upon the logged area without drawing comparison with other parts of the Forest.
In relation to the WTRF offence, Forestry Corporation submits that the evidence is incapable of supporting a finding beyond reasonable doubt that felling in the buffer to the warm temperate rainforest (which it says is not rainforest) and consequent opening of the canopy and removal of tree seedling banks, has had a measurable and material impact on the rainforest; and submits that the offence is at the low end of the scale of objective seriousness.
In relation to the RA2 offence, Forestry Corporation submits that although the area was mapped as rainforest, and it strayed into this protection zone and logged a tree, the Court could not find harm to the rainforest from Dr Kooyman's evidence because of the limitations of his plot methodology and that he had not considered the importance of Brush Box species to the rainforest.
In relation to the RA1 offence, Forestry Corporation submits that while it is the most serious of the Rainforest offences and the WTRF offence because it is mapped rainforest and two trees were removed, the Court (although it could find harm per se) is not able to find beyond reasonable doubt that the felling of the two trees caused harm to the rainforest itself.
In relation to the Rainforest offences and the WTRF offence, Forestry Corporation submits that the offences merely relate to protected "landscape" features (rather than threatened species); and that the Court cannot take into account as an aggravating factor Dr Kooyman's evidence of any loss of critical habitat and feed trees for species such as the koala and greater glider, because that would be an offence of picking habitat and would suggest that trees removed were threatened rainforest trees (which they were not), thus the De Simoni principle applies.

[16]

Finding on extent of harm

The concept of harm in the context of environmental offences is broad and includes both actual harm and potential harm. I note the comments of Preston CJ of LEC in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling'), at [145]-[148] where his Honour stated: "[145] Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. [146] Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. [147] Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. [148] The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999."
As noted at [61] above, the word "likely" in s 13.12(1)(a) of the BC Act means "a real and not remote chance, rather than more probable than not (in the sense of being more than a 50% chance)": Perdikaris at [68].
While the Sentencing Act creates a dichotomy whereby harm that is substantial is an aggravating factor and harm that is not substantial is a mitigating factor under ss 21A(2)(g) and 21A(3)(a) respectively (Chemaissem v R [2021] NSWCCA 66 ('Chemaissem') at [63] (Bellew and Campbell JJ agreeing)), it does not mean that the absence of an aggravating factor translates a matter into a mitigating factor: AB v R [2013] NSWCCA 273 at [92] (Johnson J, Hoeben CJ at CL and Bellew J agreeing); Taysavang v R; Lee v R [2017] NSWCCA 146 at [52] (Simpson JA, McCallum and Fagan JJ).
In determining whether each of the offences caused "substantial" harm, I am conscious that in Chemaissem, Bellew J at [64]-[65] (with whom Campbell J agreed), having considered dictionary meanings as follows: "[64] The Oxford English Dictionary (2nd Edition) defines the term 'substantial' as including the following: Of ample or considerable amount, quantity, or dimensions. [65] The term 'substantial' is a wide one, and its meaning will be determined from the context in which it is used. …", commented (at [66]), that "[t]he fact that an injury does not constitute grievous bodily harm does not, of itself, mean that it is not substantial."
Turning to my consideration of harm in the circumstances of the Koala offence, I remain conscious that it would offend against the principle in De Simoni to have regard to criminality involved in crimes with which Forestry Corporation has not been charged. I accept Dr Crowther's evidence and I find beyond reasonable doubt that the felling of the large Eucalyptus trees and the construction or operation of snig tracks were highly likely to have had an adverse impact by reducing the size and the quality of the habitat available to the breeding female and offspring. As such, I accept the position adopted by the prosecutor and find that there has been actual harm.
Accepting that the real dispute was the extent of the harm, I find that for the purpose of s 13.12(1)(a)-(c) of the BC Act, the harm relates to the environment generally (which I find includes habitat). I am not persuaded by Forestry Corporation's submission that a concern in relation to the De Simoni principle arises in considering the objective seriousness of the Koala offence by virtue of the fact that the charge relates to koala habitat in circumstances where Forestry Corporation has not been charged with a "harm offence" (or for the unlawful picking of plants forming part of the habitat) and the raising of the three "types" of offences (as noted at [54] above).
My findings (consistent with the prosecutor's submission at [106] above) can be shortly stated: that s 13.12 of the BC Act relates to the environment "simpliciter"; that s 13.12 is not constrained by the definition of "harm to animal" in s 1.6; that s 1.6's constraint that the Court cannot consider harm to any koala caused by changing koala habitat would only apply when "harm to animal" is a discrete element of an offence (I take, for example, an offence under s 2.1); s 21A(2)(g) of the Sentencing Act is similarly broad in that it refers to damage or injury; and there is no De Simoni issue raised between the Koala offence under s 2.14 compared to an offence under s 2.4, because the prosecutor does not allege that Forestry Corporation committed harm with knowledge that the trees felled were koala habitat. Therefore, as the prosecutor submits, it is plainly the fact that the Koala offence is significantly more objectively serious because it harmed koala habitat than if the four trees felled were not within koala habitat.
Therefore, in accepting Dr Crowther's evidence, I find that the area of the Koala offence is an area of relatively high koala abundance for NSW; that, taking into account the accepted conduct of reproductive females and the importance of that conduct to koala population growth, the scats indicated the presence of a mother koala and joey within the KEZ; that the four trees felled were secondary browse trees within the home range used by a mother koala and joey; that the trees felled therefore constituted koala habitat; and that the Koala offence would have had some effect on breeding animals (for the reasons stated by Dr Crowther), which I find amounts to environmental harm for the purpose of s 13.12(1)(a)-(c) of the BC Act.
I also accept Dr Kooyman's criticism of Ms Ashby's evidence, that the provisions within the BC Act and the EPBC Act for assessing harm are not strictly applicable as a measure or basis for evaluating harm in the present circumstances, and I do not accept Ms Ashby's evidence in that regard. Nevertheless, I note Ms Ashby's evidence, in particular that she did not dispute Dr Crowther's observations that koalas tend to stay in their home range and that the home ranges of females are generally smaller than males.
Accepting the evidence of Dr Crowther (and the submissions of the prosecutor), I am satisfied beyond reasonable doubt that the harm caused to the environment (including habitat, but not koala itself) by the Koala offence was substantial such to be an aggravating factor.
In making my findings in relation to the Koala offence, while I note Mr Peake's evidence that there may have been "compounding" effects from later bushfire (noting that he accepts that the Koala offence has caused harm to the environment and likely koala habitat), I do not consider the loss of the four trees and associated habitat (and the consequence of the snig tracks) is "minimal" (as he opines) because it took place during the implementation of a harvesting operation across Forest compartments of an area of 921ha. Although I accept that the harm can be seen to be in context of the extent of other forestry operations, I do not accept that this lessens the harm otherwise caused and as such I accept Dr Crowther's evidence that the harm is related to the size of the removed trees, their significance for food and shelter, and the fact that koalas often revisit trees within their home range.
Turning to my consideration of harm in the circumstances of the RA1 offence, again accepting the prosecutor's submission that the extent of "harm" includes harm to the environment generally, I find that the methodology adopted by Dr Kooyman was appropriate and provides a better basis for interpretation than Mr Peake's methodology. Although Dr Kooyman could not indicate with precision the exact location of his sample plots, his descriptions were consistent with placing the plots within the relevant exclusion zones whilst cognizant that there were adjacent logged areas outside the exclusion zone. I therefore find that Dr Kooyman's evidence provides a reliable analysis of each of the subject areas.
I find beyond reasonable doubt that a 630m² area of RA1 was affected by the felling in an area properly characterised as redeveloping rainforest which was in the process of long-term regeneration following earlier disturbance. I accept Dr Kooyman's evidence that the loss of the two Tallowwood trees produced canopy gap which resulted in a change in the composition of plant species and continuing rainforest die-back; ecological impacts (which I also find in relation to the RA2 offence and WTRF offence) including loss of habitat including feed trees for wildlife, canopy gaps, and the removal of tree seedling banks; increased risk of bushfire (as I find at [136] below); and that the large trees felled by the RA1 offence (and the RA2 offence and the WTRF offence) will take at least a century to recover.
Although there was dispute between Dr Kooyman and Mr Peake in relation to whether the felled trees in RA1 may have occurred within tall wet sclerophyll forest (with a rainforest understory) rather than in a rainforest, it is clear that the conduct occurred within a mapped rainforest management zone. I note that Mr Peake accepted that RA1 did have "characteristics" of rainforest and that it could be regarded as redeveloping rainforest. I also note that Mr Peake had not undertaken a quantitative or semiquantitative assessment and did not use plots. I find beyond reasonable doubt that harm was caused by the RA1 offence and that the harm was substantial such as to be an aggravating factor.
In relation to the RA2 offence, I find that the area was likely rainforest (as conceded by Mr Peake) and repeat my findings in relation to the RA1 offence (particularly in relation to ecological impacts, recovery time, and the context of forestry activities) and note that the loss of the large Brush Box within the disturbed area being 930m² had the effect of providing a detectable change in the forest structure and in particular, as opined by Dr Kooyman, the canopy cover; increased risk of bushfire (as I find at [136] below); and although accepting that there had been little change in species diversity, I find that more than immaterial harm has been caused by the RA2 offence. I find beyond reasonable doubt that the harm is substantial such as to be an aggravating factor.
In relation to the WTRF offence, I find in accordance with Dr Kooyman's evidence that the exclusion zone was dominated by warm temperate rainforest (as Mr Peake conceded), and I consider that the removal of the two trees and the disturbance of an area at least of 120m² resulted in ecological impacts and environmental harm. I accept Dr Kooyman's evidence that this would have a deleterious effect on the rainforest in that it causes disruption, opens the edges of the forest, causes changes in microclimates and causes drying, which exacerbates the potential for bushfire penetration into the warm temperate rainforest (Bentley at [174]-[175]). I also accept similar evidence given by Dr Kooyman in relation to both the RA2 offence and the RA1 offence.
I do not find Forestry Corporation's submission, that the harm caused by the WTRF offence would be considered less significant because the purpose of the buffer exclusion zone is to protect the warm temperate rainforest and not the buffer itself, persuasive - the fact remains that the buffer is an exclusion zone which should not have been impacted by forestry activities under the terms of Forestry Corporation's BCL and Mr Peake conceded that the buffer was dominated by rainforest which could be characterised as warm temperate rainforest. However, given the size of the area of disturbance caused by the commission of the WTRF offence, I do not find beyond reasonable doubt that the harm is substantial such to be an aggravating factor.
In summary, for the reasons above, I accept the evidence of Dr Kooyman and I find beyond reasonable doubt that RA1 did contain rainforest and that the warm temperate rainforest exclusion zone was dominated by warm temperate rainforest. I make this finding on the basis of the methodology adopted by Dr Kooyman which contained a detailed analysis of vegetation and the fact that Mr Peake did not undertake a detailed floristic sampling or undertake analysis or provide data-informed sampling. It follows from the above, that in relation to harm, I accept the evidence of Dr Kooyman and I do not accept the evidence of Mr Peake's characterisation that each of the Koala offence, the Rainforest offences and the WTRF offence caused minimal harm in the context of harm to the larger area of forestry operations and, as noted above, although the harm caused may be in addition to forestry activities, this is not a determinative matter in the present circumstances.

[17]

Practical measures to prevent, control, abate or mitigate the harm

The availability of practical measures that may be taken to prevent, control or mitigate the harm caused to the environment by the commission of each of the offences is relevant to the objective seriousness of each offence: BC Act 13.12(1)(b). I am conscious that the "harm" referred to in s 13.12(1)(b) is "the extent of the harm caused or likely to be caused by the commission of the offence": s 13.12(1)(a); cf. Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [45].
In relation to mitigating the harm caused by the Koala offence, Dr Crowther opines that practical action would have been not to fell trees or create snig tracks within the KEZ; and that whilst tree planting can assist koalas for feeding, their loss cannot be mitigated within the short-term through tree plantings or natural growth because trees of the size felled take many years to grow. In relation to the Rainforest offences and the WTRF offence, Dr Kooyman opines that the harm may have been mitigated by avoiding the logging and the use of machinery within exclusion zones and buffer areas and by employing directional felling away from rainforest edges.
Relying on that evidence, the prosecutor submits that it would have been a simple matter for Forestry Corporation to ensure that all exclusion zone boundaries required (under each TSL) to be marked in the field were so marked or, that adequate instructions were given as to boundary management or, in relation to the Koala offence, to ensure a system to check that the most up-to-date harvesting plan was being used by contractors; and that Forestry Corporation could have periodically monitored or interrogated the recorded tracklog data for contractors operating near exclusion zones to inform itself of the risk of encroachments into exclusion zones. The prosecutor further submits that the need for effective mitigation for the protection of threatened species in exclusion zones underscores the particular importance of strict compliance with the conditions of a TSL.
Forestry Corporation submits in relation to the Koala offence, that it endeavoured to comply with the conditions of its BCL to protect koalas and avoid the impact where it conducted a koala survey and star search; it mapped the KEZ on the updated HPOM, including with areas of connectivity; the contractors used the required equipment and HPOM when carrying out logging activities; and the HPOM was sent, but did not send due to a computer error.
Forestry Corporation submits in relation to the Rainforest offences and the WTRF offence, that it did take practical measures to avoid the risk of foreseeable harm including, that Forestry Corporation, via the SOP, acknowledged the limitations with the GPS technology; and contractors took steps to overcome the limitations by, for example, waiting for the GPS to settle, and double checking the GPS before felling a tree. Forestry Corporation further submits that any suggestion that the lack of physical marking-up of the Forest led to the offences should not be accepted as such mark-up is also completed by reference to GPS; Forestry Corporation has not been charged with failing to mark-up the Forest; and the effect of a potential breach of something different cannot be factored into sentencing.
I find that there were practical measures available to prevent, control, abate or mitigate the harm caused or likely to be caused by the commission of each of the offences. Effective mitigation would involve the avoidance of entering and disturbing exclusion zones and, as submitted by the prosecutor, the loss of trees felled by each of the offences cannot be mitigated by planting or natural regrowth due to their size and the many years it takes to replicate that which is lost. I further find that Forestry Corporation could have ensured that exclusion zones were marked. And, in relation to the Koala offence, that there was a system to check that the most up-to-date HPOM was being used by contractors.

[21]

Conclusion on objective seriousness

The prosecutor submits in relation to the Koala offence that it is open for the Court to find that the offence is in the "upper medium (rather than the low or moderate) range of objective seriousness", having regard to the nature of the breach which, as noted above, affected four large shelter and feed trees commonly used by koalas in a koala high use area; that two of the four trees felled were a significant distance from the boundary of the KEZ; that each act of felling and constructing/using the snig tracks constitutes a separate offence and, although "rolled-up" as one charge, the more contraventions or episodes of criminality that form part of a rolled-up charge, the more objectively serious the offence is likely to be; Forestry Corporation's failure to implement an adequate process or "fail safe" system to ensure the contractor had the updated HPOM as required by its own SOP; and the harm caused.
In relation to each of the Rainforest offences and the WTRF offence, the prosecutor submits that it is open for the Court to find that each is in the moderate range of objective seriousness, having regard to the nature of the breaches; the number of trees affected; and the fact that the accuracy level of the GPS devices was known to Forestry Corporation and it was responsible for the provision of that equipment (although noting that these offences are less serious than the Koala offence because they appear to have been caused by GPS reliability issues).
Forestry Corporation submits that the Koala offence is the more serious offence and that in relation to the Rainforest offences and the WTRF offence, which it submits relate to "landscape features" which are not part of a threatened ecological community, the Court would conclude that the WTRF offence is the least serious, the RA2 offence is the next most serious, and the RA1 offence is the most serious.
Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it "…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender", it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42]; Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [279]. I also take into account that a breach of s 2.14(4) of the BC Act may be committed in a range of circumstances with a corresponding breadth in the range of offending.
In considering the objective seriousness of the Koala offence, I take into account all of the above matters, and that the Koala offence is a "rolled-up" offence in that there are a number of incidences of criminality (being four felled trees and the construction or operation of two snig tracks as identified at [1(1)] and [31] above: Johnston v R [2017] NSWCCA 53 at [68]-[70] (Bathurst CJ, Johnson and Fagan JJ agreeing). I find that the Koala offence is in the medium range of objective seriousness.
In relation to each of the RA1 offence, the RA2 offence, and the WTRF offence, while I consider that the WTRF offence is of less objective seriousness than the Rainforest offences, I find that each offence falls within the low to moderate range of objective seriousness.

[22]

Prior convictions

Forestry Corporation has been convicted of the following environmental offences in the Land and Environment Court: 1. On 14 August 1998, Forestry Corporation was convicted of three offences of breach of licence arising from logging operations in Colymea State Forest: Environment Protection Authority v Forestry Commission of New South Wales [1998] NSWLEC 149. 2. On 6 December 2004, Forestry Corporation was convicted of one offence of polluting waters in Chichester State Forest: Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751. 3. On 8 June 2011, Forestry Corporation was convicted of one offence of breach of licence arising from bush fire hazard reduction burning in an exclusion zone of Nullica State Forest: Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102. 4. On 10 July 2013, Forestry Corporation was convicted for one offence of polluting waters and one offence of breach of licence, arising from hazard reduction burns in Mogo State Forest: Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101. 5. On 5 October 2017, Forestry Corporation was convicted of one offence of breach of licence arising from its failure to conduct a thorough search for rocky outcrops in Glenbog State Forest: Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132.
The SOAF provides that in the past five years, the EPA has issued Forestry Corporation with twenty-four official cautions and thirteen penalty notices.
The prosecutor submits that Forestry Corporation's record of prior convictions includes convictions for breaches of TSLs and should be taken into account as an aggravating factor. It points to the Court's decision in Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 at [113]-[118], where the Court took into account Forestry Corporation's prior convictions as an aggravating factor and noted that an exact conformity between the nature of the prior convictions and the present offences was not required; and notes that the present offences were approximately five years after the breach of a TSL the subject of Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132.
Forestry Corporation submits that three of the five convictions noted at [161] above, each related to a breach of a TSL but arise in different circumstances to those currently before the Court; and that the existence of penalty notices and convictions ought to be given diminished weight given the circumstances, locations and timings of the other offences; and the prior offences should be considered in the context of Forestry Corporation managing approximately 2,000,000ha of State Forests across NSW.
I note that penalty notices are not a record of prior conviction but that they may be taken into account where they are related to the offence before the Court: Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132.
I find that Forestry Corporation does have a record of prior offences that should be taken into account. Whilst this is an aggravating factor, I do not find that, considering each of the decisions (noted at [161] above), this necessarily manifests a reckless attitude towards compliance with environmental obligations such as to be a significant aggravating factor.

[25]

Character and likelihood of reoffending

Notwithstanding its prior convictions, Forestry Corporation submits that the Court would find that it is of good character having regard to all the circumstances, particularly the evidence of Mr Chaudhary where he deposes that he sees Forestry Corporation as the steward of extensive land (being almost 2,000,000ha of native forest and almost 200,000ha of softwood plantations) and resources under its control and management in NSW; that the commercial aspects of Forestry Corporation's functions are only a small part of its overall responsibilities; that Forestry Corporation employees have regard to forest health, fire management, and forest monitoring against biological incursions, and community access to recreation and tourism; and that Forestry Corporation staff endeavour to meet the requirements contained within the conditions of Forestry Corporation's BCL.
Forestry Corporation further submits that it is unlikely to breach the relevant BCL conditions again as it has taken substantial steps to avoid future breaches of exclusion zones, including (pursuant to a substantial investigation following the KEZ incursion) changes to the MapApp such that it now automatically updates and does not rely on updates via email; enhancements to the MapApp in that it now tracks harvesting vehicles to ensure and monitor compliance; the addition of physical mark-up areas in accordance with the TSL; and the addition of a further 5m buffer around exclusion zones to correct for any potential GPS inaccuracies.
Forestry Corporation relies upon Mr Chaudhary's further evidence that Forestry Corporation is committed to complying with the successor to the IFOAs, the Coastal Integrated Forestry Operations Approval ('CIFOA'), and avoiding a recurrence of the kinds of offences presently before the Court; since 2012, Forestry Corporation has invested approximately $2,100,000 in developing the MapApp software which is embedded in all field-based work; Forestry Corporation has been investigating ways to improve the spatial accuracy of the GPS signal, with testing indicating improved accuracy of around 1m (compared to 5 to 10m currently), and intends to invest approximately $500,000 in this technology if it is shown to be operationally effective; and, Forestry Corporation is committed to continually improving its environmental compliance to ensure positive environmental outcomes and the minimisation of harm.
I also note Mr Jaggers' evidence in relation to the Koala offence that the primary cause of the offence was a failure in the document distribution system of which the "Harvest Planner" was unaware of the updated HPOM; Forestry Corporation has invested in the development of a new operational plan distribution system called the "Plan Portal", which eliminates the use of email, allows harvest planners to load plans directly into the MapApp, and interfaces with the MapApp to ensure the latest HPOM is always available to contractors; temporary MapApp exclusion areas are implemented after site-based exclusion features are identified, until the latest version of the HPOM is updated; Forestry Corporation has mandated infield marking of koala high use areas; contractors are instructed not to operate within "the outer part of the [location] accuracy bubble" on the MapApp; and Forestry Corporation has developed a precautionary approach to the MapApp to record harvesting machine tracklogs and real time GPS locations of each machine to improve compliance and monitoring despite this not being required by the IFOA or BCL.
In relation to the Rainforest offences and the WTRF offence, Mr Jaggers deposes that since the commencement of the IFOAs, Forestry Corporation: has sought to improve compliance with exclusion zone boundaries by investing in the development of the MapApp and iPad equipment to collect harvesting machine tracklogs and provide real time data to the EPA for compliance transparency; in line with its consistent review of new technologies, is trialling the use of drones to assist in reviewing boundary compliance; has moved to mechanical harvesting on the North Coast of NSW (except for two crews) which provides superior directional telling capabilities, improved visibility, and improved GPS reception for those machines; has, since its restructure in 2014, a new position allocated to compliance mark-up infield and on the MapApp, exceeding that which is required by the IFOA; and, has developed a quality assurance auditing procedure to check compliance quarterly.
Given the evidence, I find the likelihood that Forestry Corporation will reoffend to be low. This is a further mitigating factor. Further, I find that Forestry Corporation, notwithstanding its prior convictions, has demonstrated good character, and has put measures in place in a genuine attempt to prevent similar future offending in relation to each of the offences.

[27]

General deterrence

General deterrence is a principal consideration in the imposition of penalties for environmental offences: Bentley at [139]; Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 at [134].
In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278, Preston J considered general deterrence in the context of environmental crime as follows: "[65] The sentence of the Court is an important denunciation of the conduct of the defendant. [66] The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. [67] This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director General National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. [68] The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts."
I consider that, especially in relation to offences against s 2.14(4) of the BC Act which forms a critical aspect of the regulatory framework for environmental protection, there must be an element of general deterrence, and therefore more than nominal fine (Bentley at [140]), embedded in the determination of the appropriate sentences to be imposed on Forestry Corporation for each offence to ensure that those conducting forestry activities operate in a manner that is compliant with licence conditions and which does not harm the environment.

[29]

Consistency in sentencing

186 While the ascertainment of a general pattern of sentences for similar offences assists in fair and reasonable sentencing, reference to penalties in previous cases comes with difficulty because of the wide divergence of facts and circumstances (Axer v Environment Protection Authority (1993) 113 LGERA 357 at 365) and because each decision turns upon the facts unique to that case. The Court should nonetheless seek to impose sentences which are consistent with any patterns of sentencing for like offences.
The prosecutor, while noting that there are no strictly comparable sentencing decisions, referred the Court to three cases which "may provide some assistance" being, Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132; Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101; and Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102.
In Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132, the Court was concerned with a breach of a condition of a TSL contrary to s 133(4) of the National Parks and Wildlife Act 1974 (NSW) ('NPW Act') and the Court found that Forestry Corporation had failed to conduct a thorough search for "rocky outcrops" as required by its TSL which, as a result, caused a rocky outcrop not to be identified and protected as required by an exclusion zone. The Court found that the offence was not committed intentionally, recklessly, or negligently and that there were no further practical steps that could have been taken to avoid the breach. In the circumstances, the Court found that the offence fell within the middle range of objective seriousness and, having provided a 20% discount for an early plea of guilty, imposed a fine of $8,000 (in circumstances where the maximum penalty was $22,000). The Court noted that although there had been no actual harm, Forestry Corporation's failure to research, record, and mark-up areas in accordance with the TSL, undermined the protective regulatory scheme contained in the relevant statutory scheme.
In Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101, the Court was concerned with two offences, a breach of a condition of a TSL contrary to s 133(4) of the NPW Act as well as pollution of waters under s 120 of the Protection of the Environment Operations Act 1997 (NSW) in circumstances where the Forestry Commission of NSW (as Forestry Corporation was then known) had carried out a bushfire hazard reduction burn within protection zones in Mogo State Forest and as a result, ash and other prescribed pollutants affected waters. The Court found that the Forestry Commission of NSW's state of mind was "negligent", that the harm was "foreseeable", and that there were practical measures available to avoid the harm. Both offences were found to be of low to moderate objective gravity and the Court, having provided a 25% discount for early pleas of guilty, imposed a penalty in the sum of $7,000 in relation to the first offence (which at that time had a maximum penalty of $22,000); and the sum of $28,000 in relation to the pollution of waters offence (which at that time had a maximum penalty of $1,000,000).
In Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102, the Court was concerned with a breach of a condition of a TSL again, contrary to s 133(4) of the NPW Act, where the Forestry Commission of NSW had carried out a specified forestry activity, being bushfire hazard reduction burning in an exclusion zone in the Nullica State Forest. Having regard to the nature of the offence, the lower maximum penalty of $22,000, the extent of likely harm to the environment, the practical measures able to be undertaken to prevent the harm, the reasonable foreseeability of harm likely to be caused by the commission of the offence, and the extent to which the Forestry Commission of NSW had control of the causes, the Court found that the offence committed was of low to moderate objective gravity and, having provided a 25% discount for an early guilty plea, imposed a fine of $5,600. The Court found that while the evidence did not disclose any long-term harm to the environment, the potential for a short-term adverse impact on the Smoky Mouse habitat was very real and the environmental harm was found to be in the low to moderate range.
I do not consider that the above three cases are comparable due to the different circumstances and, more relevantly, the different maximum penalties and the fact that the Koala offence is a rolled-up offence which includes more than one episode of criminal conduct (R v Hraichie (No 3) [2019] NSWSC 973 at [222]). Moreover, I consider that the maximum penalty set by Parliament for each of the present offences is a more appropriate yardstick against which the sentences should be measured, compared to the fines imposed in past cases: Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 ('Brummell') at [100].

[30]

Publication orders

The publication of information relating to environmental offences and their repercussions is relevant to sentencing as it enhances public perception and the deterrent effect of the sentence imposed, particularly applicable to corporate offenders: Waste Recycling at [242]; Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 at [58]-[59].
The prosecutor seeks publication orders pursuant to subss 13.25(1)(a) and (b) of the BC Act that Forestry Corporation publishes, a notice in the form detailed in the prosecutor's submissions (which includes a specific photograph of the site of one of the offences contained in the SOAF), in the Sydney Morning Herald ('SMH'), because it has state-wide distribution; in the Coffs Coast News of the Area; on Forestry Corporation's social media pages, given its educative and deterrent role, and in Forestry Corporation's annual report.
While Forestry Corporation agrees to the prosecutor's proposed publication orders, except for the prosecutor's proposed reference to specific harm caused by the offences, it submits first, that the notice should be published in the Australian Financial Review rather than the SMH because the SMH does not have direct coverage to the area where the offences occurred; second, that it would be inappropriate to use Forestry Corporation's social media pages where those pages are recreational and not relevant to Forestry Corporation's activities, and where the EPA is certain to post the publication on their Facebook page; and third, that the proposed photograph of the site of one of the offences is inappropriate because it depicts the "worst" felling and does not demonstrate the context in which the felling occurred.
I consider it appropriate that publication orders sought by the prosecutor, which I consider have a significant educative and deterrent function, be made, and that the publications be in the form of Annexure "A" to this judgment which generally reflects the wording suggested by the prosecutor, with the deletion of the discrete references to specific harm and the proposed photograph, and the Court's findings and the sentences imposed.

[32]

Payment to the Biodiversity Conservation Fund

The prosecutor seeks, in addition to the imposition of fines, an order pursuant to s 13.25(1)(e) of the BC Act for payment of a discrete specified amount into the Biodiversity Conservation Fund ('Fund') to support the Biodiversity Conservation Trust's biodiversity conservation objectives, as a remedial rather than punitive or deterrent order, and which would not significantly mitigate the sentences imposed by the Court.
Section 13.25(1)(e) of the BC Act provides: (1) Orders The court may do any one or more of the following - … (e) order the offender to pay a specified amount to a specified organisation (including into the Biodiversity Conservation Fund), for the purposes of a specified project for the restoration or enhancement of the terrestrial environment, … …
An order for such a payment may be made in lieu of the imposition of a fine: Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 ('Queanbeyan (No 3)') at [282]; Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 ('Tea Garden Farms') at [148].
Forestry Corporation does not in principle oppose a payment into the Fund, however, submits that the Court would need to know the amount sought to be paid into the Fund and the specific project to which the payment would contribute.
In circumstances where the prosecutor has specified the Fund, to which an amount may be paid, but where it has not provided details of any "specified project" as required by the BC Act, I am unable to review the details of any project as has been common practice of this Court when making such orders under the largely similar s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW) (Queanbeyan (No 3) at [281]-[284]; Tea Garden Farms at [148]-[152]; Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 at [170]-[172]) and, therefore, I am unable to find that it is appropriate for such an order to be made.

[34]

Totality

When considering a number of offences which arise out of similar or related conduct, or the same incident, the principle of totality requires the Court, when passing a series of sentences that have each been properly calculated in relation to the offence for which each has been imposed, to review the aggregate sentence and consider whether, having regard to the totality of the criminal behaviour, the aggregate sentence imposed is just and appropriate.
The prosecutor accepts that the Rainforest offences and WTRF offence involve criminality which arose from the same set of causative circumstances and failures by Forestry Corporation, although arising in different areas requiring protection under the BCL. In relation to the Koala offence, the prosecutor submits that any reduction for totality should be less because the Koala offence involved breaches of a different kind, in a separate exclusion zone with distinct protective purposes; the Koala offence arose from a different type of failure (to implement an adequate "process to ensure" the contractors had the most current approved HPOM available); the Koala offence is a "rolled-up" charge involving more than one episode of criminality; and each act of constructing or operating snig tracks and each act of felling are separate contraventions.
Forestry Corporation submits that while the circumstances that led to the Koala offence are different to those which led to the Rainforest offences and the WTRF offence, each offence involves the breach of a condition which has the same protective purpose and therefore the Koala offence cannot be weighted differently when considering the totality of the penalty.
I consider that the totality principle does require there to be an adjustment in relation to the Rainforest offences and the WTRF offence of the monetary penalty where they arise out of the same originating cause involving the inaccuracies in GPS technology and the adequacy of instructions or compliance therewith of contractors, compared to the Koala offence, which arose out of a different type of failure on Forestry Corporation's part.
As the Rainforest offences and the WTRF offence constitute related criminal behaviour that is causally, temporally, and spatially linked, I consider the aggregate amount of those fines of $84,000 exceeds what is just and appropriate in the circumstances and the total criminality involved. As such, I consider that the appropriate adjustment to be made to reflect the total criminality is to reduce each of those three fines by 10%. This results in the appropriate fine to be imposed for the RA1 offence to be $27,000; the RA2 offence to be $27,000; and the WTRF offence to be $21,600.

[36]

Orders

The orders of the Court are: In proceedings 2020/00284082 1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged. 2. Forestry Corporation of NSW is fined $60,000 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284082. In proceedings 2020/00284084 1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged. 2. Forestry Corporation of NSW is fined $27,000 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284084. In proceedings 2020/00284085 1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged. 2. Forestry Corporation of NSW is fined $27,000 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284085. In proceedings 2020/00284086 1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged. 2. Forestry Corporation of NSW is fined $21,600 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284086. In proceedings 2020/00284082; 2020/00284084; 2020/00284085; 2020/00284086 1. Pursuant to s 122 of the Fines Act 1996 (NSW) a moiety of 50% of each fine be paid to the Environment Protection Authority. 2. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Forestry Corporation of NSW is to pay the Environment Protection Authority's costs in the sum of $150,000. 3. Pursuant to s 13.25(1)(a) of the Biodiversity Conservation Act 2016 (NSW), Forestry Corporation of NSW, at its expense, is to: 1. Within 28 days of the date of this order, cause a notice of a minimum size as close as practicable to 180cm² to be published within the first 12 pages of the Sydney Morning Herald and the Coffs Coast News of the Area, with the text of such notice to be as set out in Annexure "A" to these orders; and 2. Within 42 days of the date of this order, provide to the Environment Protection Authority, a copy of the entire page of each of the Sydney Morning Herald and the Coffs Coast News of the Area, on which the notice was published in accordance with paragraph 5(a) above. 1. Pursuant to s 13.25(1)(a) of the Biodiversity Conservation Act 2016 (NSW), Forestry Corporation of NSW is to: 1. Within 14 days of the date of this order, publicise the offences and the orders made against it by posting the text of Annexure "A" to these orders on its Facebook wall at https://www.facebook.com/VisitNSWForests/, and a hyperlink directly to the Court's judgment as published on the NSW Caselaw website and tagging the NSW Environment Protection Authority in the post. The post is to be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of the Forestry Corporation of NSW's Facebook page for a minimum of 7 days. 2. Within 14 days of the date of this order, publicise the offences and the orders made against it by causing a notice in the form of a digital image to be posted on its Instagram page at https://www.instagram.com/visitnswforests/, with the text of such notice to be as set out in Annexure "A", together with a caption containing a hyperlink directly to the Court's judgment as published on the NSW Caselaw website and tagging the NSW Environment Protection Authority at @NSW_EPA in the post. The post is to be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of one month. 1. Pursuant to s 13.25(1)(b) of the Biodiversity Conservation Act 2016 (NSW) Forestry Corporation of NSW is to publicise the offences and the orders made against it by posting the text of Annexure "A" to these orders with a minimum size as close as practicable to 180cm² in its annual report.

Parties

Applicant/Plaintiff:

Environment Protection Authority

Respondent/Defendant:

Forestry Corporation of New South Wales

Legislation Cited (13)

Civil Procedure Act 1986(NSW)

Forestry and National Park Estate Act 1998(NSW)

Environment Operations Act 1997(NSW)

Threatened Species Conservation Act 1995(NSW)

repealed) Threatened Species Conservation Act 1995(NSW)

Biodiversity Conservation Act 2016(NSW)

Biodiversity Conservation (Savings and Transitional) Regulation 2017(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Criminal Procedure Act 1986(NSW)

Environment Protection and Biodiversity Conservation Act 1999(Cth)

Fines Act 1996(NSW)

Forestry Act 2012(NSW)

National Parks and Wildlife Act 1974(NSW)

Cases Cited (49)

hority v Forestry Commission of New South Wales [2004] NSWLEC 751 Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Johnston v R [2017] NSWCCA 53 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v DP [2019] NSWCCA 55 R v Hraichie (No 3) [2019] NSWSC 973 R v Kilic (2016) 259 CLR 256; [2016] HCA 48 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Taysavang v R; Lee v R [2017] NSWCCA 146 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Texts Cited: Forestry Corporation, Standard Operating Procedure: Exclusion Zone Boundary Management - SOP 2N, (September 2017) Category: Sentence Parties: Environment Protection Authority (Prosecutor) Forestry Corporation of New South Wales (Defendant) Representation: Counsel: G Wright SC with C Brain (Prosecutor) I J Hemmings SC with J McKelvey (Defendant)

[2005] HCA 25

(1993) 113 LGERA 357

Cited By (4)

Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd

Environment Protection Authority v Forestry Corporation of New South Wales

Environment Protection Authority v Forestry Corporation of NSW

Environment Protection Authority v Mouawad