Environment Protection Authority v Forestry Corporation of New South Wales

File Number(s): 2022/00198791
2022/00198793
2022/00198795
2022/00198798

Publication restriction: No

JUDGMENT

1. The Defendant the Forestry Corporation of New South Wales has pleaded guilty to four offences under s 69SA of the Forestry Act 2012 (NSW). A hearing on sentence for these offences will take place on 17-19 June 2025. The offences arise from contraventions of the Coastal Integrated Forestry Operations Approval Conditions (2018) (CIFOA) for Wild Cattle Creek State Forest in northern NSW. The single giant tree offence concerns 6 trees which were cut down in breach of a condition of the CIFOA. The three hollow bearing tree offences each concern one tree which was cut down in breach of a condition of the CIFOA. In Environment Protection Authority v Forestry Corporation of NSW [2024] NSWLEC 84 (EPA v Forestry (amicus)) I held that the Bellingen Environment Centre Incorporated (BECI) could appear as an amicus curiae subject to a further ruling by the trial judge of whether three reports could be provided to the Court. This judgment is ruling on the admissibility of three reports which the BECI seeks to place before the Court.

2. The offences committed by the Defendant are “native vegetation offences” as defined in s 1.6 of the Biodiversity Conservation Act 2016 (NSW) (BC Act). That is because Part 5B of the Forestry Act 2012 (NSW), dealing with the Coastal Integrated Forestry Operations Approvals, falls within the definition of “native vegetation legislation” in s 1.6 of the BC Act.

3. The BC Act governs the considerations that the Court is permitted to take into account in sentencing an offender for a native vegetation offence. Section 13.12 of the BC Act headed, “Sentencing for offence – matters to be considered” provides a non-exhaustive list of considerations that must be taken into account in so far as they are relevant in an individual case as follows:

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,

(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(f) whether the offence was committed for commercial gain.

(2) The court may take into consideration other matters that it considers relevant.

4. Aggravating matters on sentence are specified in s 21A(3) of the Crimes Sentencing Procedure Act 199**9 (NSW) and include in subs (g) whether damage caused by the offence was substantial.

5. The BECI has filed a bundle of documents titled Amicus Brief which includes seven items being:

6. Amicus curiae Brief of advice: title page +3 = 4pp

7. Attachment A David Scotts, ‘Conserving Koala Populations’ (2013) 64pp

8. Attachment B Ashley Love and Oisin Sweeney, ‘A Blueprint (NPA 2015) 64pp

9. Attachment C newsclip Sydney Morning Herald 19 January 2015, p1, 1pp

10. Attachment D Labor commits to a Koala National Park, 19 January 2023 1pp

11. Attachment E The Great Koala National Park (NSW NPA 2023) 12pp

12. Attachment F Map: location of offence within the Great Koala National Park 1pp

13. The material in issue primarily consists of three documents included in the Amicus Brief as follows:

(1) National Parks Association of NSW, The Great Koala National Park – Let’s make it happen, 2023 (Document 6 in the Amicus Brief)

(2) D Scotts, Conserving Koala Populations of the NSW Upper Mid-north Coast, for the North Coast Environment Centre, Bellingen Environment Centre, Clarence Environment Centre, Nambucca Valley Conservation Association and NSW National Parks Association, January 2013 (Document 2 in the Amicus Brief)

(3) A Love and O Sweeney, A Blueprint for a Comprehensive Reserve System for Koalas (Phascolarctos cinereus) on the North Coast of NSW, National Parks Association of NSW, April 2015 (Document 3 in the Amicus Brief).

7. Reliance on the documents by the BECI is opposed by the Prosecutor and the Defendant.

8. The Prosecutor’s summons and statement of agreed facts identifies the factual circumstances giving rise to the giant tree offence which arises from a breach of condition 64.2(a) of the CIFOA. Condition 64.2(a) requires that all giant trees, which are defined, must be permanently retained.

9. The three hollow bearing tree offences arise from a breach of condition 64.2(c)(i) which requires the retention of ‘all hollow-bearing trees’ in the net harvest area in the intensive harvesting zone, defined terms in the CIFOA conditions.

10. The Prosecutor also referred to condition 75 of the CIFOA which provides expressly for the protection of koala browse trees. Condition 75 is not the subject of these charges.

11. The Prosecutor has identified in submissions that two of the giant trees felled are koala feed trees. Since my earlier judgment the Prosecutor has provided the report of Dr Kooyman ecologist to be called by the Prosecutor to the BECI which covers environmental impacts arising from the loss of koala feed trees inter alia. The BECI tendered an extract of that report of Dr Kooyman giving his opinion that the felling of the trees the subject of the offences included the loss of critical habitat and feed trees for wildlife such as Koalas and Greater Gliders.

Prosecutor’s submissions

12. While the rules of evidence do not apply unless an order under s 4 of the Evidence Act 1995 (NSW) is made, evidence must be relevant to the sentencing exercise of determining penalties for these offences. Documents 2 and 3 are out of date in that they were prepared in January 2013 and April 2015. Given events since then such as the 2019-20 bushfires the general position of koalas is accepted to be worse in terms of threats to their survival, reflected in their inclusion in 2022 on the List of Threatened Fauna under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

13. The matters relevant to sentence are identified in s 13.12 of the BC Act. An offender against a statutory offence is entitled to have their sentence determined solely by reference to relevant considerations and is entitled to appeal against the sentence imposed if the consideration of the sentence by the sentencing judge has taken into account a matter that is not relevant to sentencing of that offender for that offence. The evidence must inform the Court of something about the commission of those offences or about the offender in relation to the commission of the offences. To the extent that environmental harm is a relevant consideration, including harm to animal species, that is properly dealt with by way of evidence addressing the specific areas of forest in which the offending occurred, rather than a broader area which may have been designated for the Great Koala National Park (GKNP). As the GKNP has yet to be put into effect its possible creation has no bearing on the sentencing for these offences or any remediation measures the Court may require as part of sentencing. The Defendant must be sentenced on the facts as they existed at the time of the offences in 2020.

14. While damage to species habitat will fall within relevant considerations in s 13.12 of the BC Act as a form of harm to the environment, such evidence must focus on the specific areas of the forest relevant to the charges. The documents sought to be relied on addressing the plight of the koala population in NSW do not provide evidence that is relevant to the Defendant’s contravention of condition 64.2 of the CIFOA. Document 2 addresses a wide geographic area well beyond the location of these offences.

15. It is accepted that intact trees are needed for animals such as the koala to move around the forest and escape predation. The Defendant is not charged with a breach of condition 75 of the CIFOA which concerns prevention of koala habitat destruction. The offences do not relate to damage to habitat as defined in the BC Act. Facts which would result in contravention of a condition of the CIFOA with which the Defendant is not charged cannot be relevant. The documents are not relevant to the sentencing for these offences.

16. That a proposed GKNP may arise in the future and have beneficial environmental impacts does not assist in this sentencing exercise, responding to paragraphs 10, 11, 12 and 13 of the BECI’s submissions. Harm caused by the offences committed in 2020 must be considered. Dr Kooyman ecologist identifies a long list of threatened species which are the subject of his evidence. The BECI’s material does not add to that evidence.

Defendant’s submissions

17. If a matter is to be relied on by the Prosecutor or an amicus such as causation of environmental harm by the offences, an aggravating factor on sentence, that matter must be proved beyond reasonable doubt. The Defendant anticipates seeking an order that s 4 of the Evidence Act 1995 (NSW) applies. The focus of evidence must be matters arising from these specific offences. It is unclear that the reports can be relevant to this sentencing process.

18. The reports were not prepared with the Expert Witness Code of Conduct, see Uniform Civil Procedure Rules 2005 (NSW) Sch 7, in mind and are directed to advocacy for the GKNP. Much of the reports are irrelevant, for example voicing opposition to native forest logging. The Defendant would need to test that opinion and whether it should be given weight if the reports were admitted. Native forest logging is legal.

19. A De Simoni risk may arise if the reports are admitted given the existence of condition 75 in the CIFOA which is not the subject of the charges, see R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389 (Gibbs CJ). Harm to the koala is not part of the particulars of the offences and not part of the elements of the offences charged.

20. Admission of these documents will extend well beyond what the interests of justice require. The reports are very high level documents that can provide limited assistance in any event. The BECI has not identified what parts are relevant to these particular offences. The Scotts report dated January 2013 (Document 2) contains koala population sampling from a wide range of areas conducted in about 2013 created for a purpose other than this sentencing exercise. Its relevance is unclear and no additional sampling which is more recent is sought to be provided by the BECI. The Love and Sweeney report (Document 3) is wide-ranging in geographical scope, contains advocacy for a proposed reserve system which is irrelevant to this sentencing process. Its relevance as a whole or in part to the offences has not been demonstrated. The NPA document (Document 6) appears to be directed to an economic analysis of the GKNP Proposal and can be of no assistance in this sentencing exercise. If this evidence is admitted the Defendant ought to be allowed to cross-examine the authors of the documents, which would extend the time of the sentencing hearing well beyond what the interests of justice require.

21. The material from the amicus need only assist the Court in matters that the Prosecutor cannot otherwise assist in. The Prosecutor will be relying on evidence of environmental harm arising from the offences.

BECI’s submissions

22. The BECI is seeking to provide assistance to the Court by demonstrating the environmental significance of Wild Cattle Creek State Forest underpinned by the three scientific reports. The reports demonstrate that the BECI’s opinion is informed and based in valid science. The dates of the reports reflect the long lead up to the proposal for the GKNP. In the meantime koalas have fared badly, underpinning the great need for the proposed GKNP for which the BECI has advocated. There is a strong scientific foundation for the opinions expressed about the environmental significance of the Wild Cattle Creek State Forest, and therefore the significance of the environmental harm caused by the offences.

23. The BECI wishes to bring forward other issues not raised by Dr Kooyman such as water quality being impacted beyond the site (submission paragraph 10), provide opinion of other species likely to be harmed (submission paragraph 11), additional frog species that may be impacted (submission paragraph 12), and species in in-stream environments within the proposed GKNP (submission paragraph 13).

Finding

24. In EPA v Forestry (amicus) at [17]-[31] I accepted the BECI’s application to be an amicus in providing the local social context of these offences ‘given the significance of the area damaged by the offences to the local community and the community’s views of the seriousness of the offences’ at [17]. Section 13.12 of the BC Act identifies matters relevant to sentencing including the extent of the harm caused or likely to be caused by the commission of the offence. The BECI’s written submissions (Document 1 in the Amicus Brief) address what it says are the nature and extent of the impacts of the offences on members of the BECI and the community concerned with conserving the endangered koala species through their advocacy for the GKNP. The three reports in issue are referred to in footnotes in the BECI’s submissions (Document 1) generally by reference to individual pages. The BECI wishes to place the whole of the reports before the Court. Whether they are admissible in whole or part in these sentencing proceedings arises.

25. Because the charges are not alleging a breach of condition 75 of the CIFOA the Defendant appeared to submit that the impact of the offences on koalas was not a matter in issue. Although the significance of the impact of the offences on koalas if any is a matter to be determined at the sentencing hearing, the Prosecutor has advised that two of the giant trees felled are koala feed trees. Since my earlier judgment the Prosecutor has provided the report of ecologist Dr Kooyman to the BECI which covers environmental impacts arising from the loss of koala feed trees inter alia.

26. The Prosecutor and the Defendant both submit that the reports are irrelevant to the sentencing exercise being undertaken as they do not address the specific offences and therefore cannot assist, so that their admission is problematic. Further the Defendant considers it may be prejudiced as outlined in [18]-[20] above. Whether the extent of environmental harm caused by the offences is aggravating because it is substantial will not be determined until the sentence hearing and that issue can be considered then rather than finally determined now in the context of this application.

27. A key matter of significance to the BECI and its members is that Wild Cattle Creek State Forest is within the area of the proposed GKNP which it has argued politically should be established. The BECI is concerned that the offences impact the conservation values of the larger area of the GKNP and impact the long-term survival of the koala which the BECI has sought to protect through its advocacy in favour of the GKNP. The three reports are submitted to be the scientific basis for the BECI’s advice to the Court.

28. Essentially the proposal for the GKNP is a means of emphasising the environmental qualities of that area including Wild Cattle Creek State Forest for the protection of koalas. The BECI wishes to emphasise the length of time over which the community has worked to develop the proposal based on what it submits are sound environmental values. While the Prosecutor identifies that there is presently no political decision made to establish the GKNP the underlying environmental issue is the importance of the preservation of trees for the koala in the area within the proposed GKNP for feed and to provide continuity of canopy cover inter alia.

29. The report titled ‘the Great Koala National Park’ prepared by the NPA (Document 6) is not presented as a scientific report. It provides an economic case for the establishment of the proposed GKNP. Its authors are unidentified and its contents are not directed to establishing environmental harm at any point in time. It is essentially an advocacy document promoting the establishment of the GKNP. Its contents cannot assist in the sentencing process and it cannot be relied on by the BECI at the sentencing hearing.

30. The 2013 Scott report (Document 2) provides preliminary mapping of the koala populations based on data collection as a basis for further survey, research and planning across seven nominated koala regional population areas. These areas are located across the north coast of NSW. The report has far greater geographical breadth than the area the subject of the offences. Its purpose in the BECI’s submissions is essentially to demonstrate that scientific work underpinning the GKNP proposal commenced many years ago. The only specific pages referred to in the BECI’s submissions (Document 1) are pp 20-24, which identify the seven areas the subject of study, in footnote 1 and pp 59 and 60 in footnotes 2 and 3. I consider these pages can be provided as context for the BECI’s submissions to the Court in Document 1. The cover page will also be permitted. No basis is otherwise established by the BECI for the balance of the lengthy report to assist in this sentencing process.

31. The Love and Sweeney report (Document 3) is dated April 2015. It considers the 2013 Scott report data about koala numbers in various areas. As the Defendant submitted its intention as expressed in the title is to propose a reserve system for koalas on the north coast of NSW with 10 new conservation reserves proposed, one of which is the GKNP. The authors are described as the President, National Parks Association Coffs Harbour Branch and the science officer National Parks Association NSW. To the extent the document is advocating for the koala reserve system such as by criticism of native forest logging as it does on page 16, it cannot be relevant to sentencing for these offences. Mindful of the limited use that can be made of this information in sentencing for these specific offences, only those parts of the document which refer to the GKNP as referred to in footnotes in the BECI’s submissions (Document 1) can be provided to the Court. These are pp 23, 24, 25, 28 and 29. The cover page will also be permitted. No basis is otherwise established by the BECI for the balance of the lengthy report to assist in this sentencing process.

32. To the limited extent identified in this judgment the BECI can provide its submissions and supporting information in items (1), (2) as limited, (3) as limited, (4), (5) and (7) in [5] above to the Court at the sentencing hearing on 17-19 June 2025.

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