Environment Protection Authority v Forestry Corporation of New South Wales (No 3)

Medium Neutral Citation: Environment Protection Authority v Forestry Corporation of New South Wales (No 3) [2026] NSWLEC 25

Hearing dates: 17-20 June 2025; 22 September 2025; 15 October 2025; 18 December 2025

Date of orders: 13 March 2026

Decision date: 13 March 2026

Jurisdiction: Class 5

Before: Pain J

Decision: See [262]

Catchwords: ENVIRONMENTAL OFFENCES — sentencing — offence of cutting down six giant trees in state forest in breach of conditions of integrated forestry operations approval — whether defendant’s state of mind aggravating — extent of environmental harm — cultural harm to first nations community considered — amicus curiae submission that state forest of high conservation value to local community accepted — medium level of objective seriousness — restorative justice process undertaken relevant to remorse and contrition — early plea of guilty — publication order made — additional orders made requiring audit — restorative justice activity order made
ENVIRONMENTAL OFFENCES — sentencing — hollow-bearing trees offences — three offences of cutting down hollow-bearing tree in breach of conditions of integrated forestry operations approval — extent of environmental harm — cultural harm to first nations community — restorative justice process relevant to contrition and remorse — delayed pleas of guilty reduces discount — publication order made — additional orders made requiring audit — restorative justice activity order made

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 1.3, 1.6, 2.14, 13.12, 13.19, 13.20, 13.25, Sch 1 Pt 2
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Criminal Procedure Act 1986 (NSW), ss 257B, 257G
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 178
Evidence Act 1995 (NSW), ss 4, 141
Forestry Act 2012 (NSW), ss 5, 10, 69L, 69SA
Protection of the Environment Operations Act 1997 (NSW), s 6(2)

Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; [2001] NSWCCA 280
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Environmental Regulator of the Environment Protection Authority v Forestry Corporation of New South Wales [2017] NSWLEC 132
Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114
Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205
Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) [2014] NSWLEC 74
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102
Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Central Coast Council [2024] NSWLEC 141
Environment Protection Authority 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 Forestry Corporation of New South Wales [2022] NSWLEC 70
Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 75
Environment Protection Authority v Forestry Corporation of NSW [2024] NSWLEC 84
Environment Protection Authority v Forestry Corporation of NSW (Local Court (NSW), 23 December 2023, unrep)
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Whites Timber Products Pty Ltd [2024] NSWLEC 135
Environmental Protection Authority v Crown in Right of New South Wales [2019] NSWLEC 178
Filippou v R (2015) 256 CLR 47; [2015] HCA 29
Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 148 LGERA 189; [2006] NSWLEC 242
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215
Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
Johnston v R [2017] NSWCCA 53
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Mill v R (1988) 166 CLR 59; [1988] HCA 70
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69
Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144
R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Oliver (1980) 7 A Crim R 174
R v Ruha (2010) 198 A Crim R 430; [2010] QCA 10
R v Rushby [1977] 1 NSWLR 594
R v Storey (1996) 89 A Crim R 519; [1998] 1 VR 359
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti (1981) 5 Crim LJ 307; [1982] 2 NSWLR 104
Veen v R (1979) 143 CLR 458; [1979] HCA 7
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited: Sentencing Bench Book (Judicial Commission of NSW)
United Nations Office on Drugs and Crime Handbook on Restorative Justice Programmes (United Nations, New York, 2006)

Category: Sentence

Parties: Environment Protection Authority (Prosecutor)
Forestry Corporation of NSW (Defendant)
Bellingen Environment Centre Incorporated (Amicus Curiae)

Representation: Counsel:
G Craddock SC with C Brain (Prosecutor)
I Hemmings SC with R Coffey (Defendant)
J Corkill (Amicus Curiae)
Solicitors:
Environment Protection Authority (Prosecutor)
Forestry Corporation of New South Wales (Defendant)

File Number(s): 2022/198791, 2022/198793, 2022/198795, 2022/198798

INDEX

INDEX

JUDGMENT on sentencing

Statement of agreed facts

Purposes of sentencing

Objective circumstances

The nature of the offences

Maximum penalty

State of mind/reasons for the offences

Giant trees offence – FCNSW not criminally negligent

Protocol 39 terms/training of forest technicians (matters 1, 2)

Evidence relevant to interpretation of CIFOA and training of forest technicians

Evidence of the FCNSW Practices Manager

Cross-examination of FCNSW Practices Manager

Evidence of former FCNSW Planning Manager

Cross-examination of former FCNSW Planning Manager

Interviews of forest technicians

EPA submissions

FCNSW submissions

Finding on interpretation of Protocol 39/training for CIFOA requirements (matters 1 and 2)

Suitably qualified person (matter 3)

FCNSW submissions

Finding on suitably qualified person

Use of stringlines (vs diameter tape) (matter 4)

No criminal negligence in relation to giant trees offence

Hollow-bearing tree offences

Evidence relied on by the EPA relevant to state of mind/reason for HBT offences

Evidence relied on by the FCNSW

EPA submissions

FCNSW submissions

Conclusion on HBT offences - state of mind / reasons

Biodiversity Conservation Act factors s 13.12

Extent of harm caused or likely to be caused by the commission of the offence s 13.12(1)(a)

Cross-examination of Dr Kooyman

Cross-examination of Ms Ashby

Submissions on harm

Finding on environmental harm arising from ecological evidence

Amicus curiae presentation on environmental harm

Practical measures that may be taken to prevent, control, abate or mitigate harm caused or likely to be caused by the commission of the offence s 13.12(1)(b)

Extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the offence s 13.12(1)(c)

Extent to which the person who committed the offence had control over the causes that gave rise to the offence s 13.12(1)(d)

Whether the offence was committed for commercial gain s 13.12(1)(f)

Other relevant matters s 13.12(2)

Cultural harm - Negative impact on Gumbaynggirr Nation

Finding on objective seriousness

Subjective factors

Aggravating factor, prior conviction s 21A(2)(d)

Discount for early guilty plea ss 21A(3)(k), 22

Cooperation with Prosecutor ss 21A(3)(m), 23

Likelihood of re-offending and prospects of rehabilitation s 21A(3)(g)

Good character of defendant s 21A(3)(f)

Remorse and contrition s 21A(3)(i)

Restorative justice process

FCNSW response to restorative justice process

Other sentencing considerations

Deterrence s 3A(b)

Specific deterrence

Retribution and denunciation s 3A(a), (f)

Even-handedness in sentencing

Totality

Proceedings could have been commenced in the Local Court

Appropriate penalty

Additional orders under BC Act

Publication order

Finding on publication order extent

Proposed orders 9 and 10

Evidence relevant to additional orders 9 and 10

EPA submissions

FCNSW submissions

No basis for additional orders 9 and 10 established

Costs

Court Orders

ANNEXURE A

ANNEXURE B

JUDGMENT on sentencing

1. The Forestry Corporation of New South Wales the Defendant (FCNSW) carries out forestry operations across NSW, including the harvesting of native timber in State forests. The FCNSW is a State­ owned corporation constituted under s 5 of the Forestry Act 2012 (NSW) (Forestry Act). The FCNSW has a harvesting operation in Wild Cattle Creek State Forest (WCCSF) in northern NSW.

2. The FCNSW is charged with four offences under s 69SA(1) of the Forestry Act by the Prosecutor the Environment Protection Authority (EPA) relating to failures to carry out the harvesting operation in WCCSF in accordance with the Integrated Forestry Operations Approval for the Coastal Region granted on 16 November 2018 (CIFOA). One offence relates to the cutting down of six giant trees in mid-2020 (giant trees offence). Three offences concern the cutting down of one hollow-bearing tree each in mid-2020 (HBT offences). The FCNSW pleaded guilty to the offences at different times. The offences are strict liability and consequently no element of the offences includes a mental element.

3. A plea of guilty is an admission of the essential elements of an offence by a defendant. The EPA must establish beyond reasonable doubt any fact not otherwise agreed for the purpose of sentencing; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 271 (Gleeson CJ, Gaudron, Hayne and Callinan JJ) (Olbrich) citing R v Storey [1998] 1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA). A defendant must establish matters of fact on which it relies on the balance of probabilities; Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at 70, 71; Olbrich at 281.

4. An order was made at the request of the FCNSW pursuant to s 4(2)(b) of the Evidence Act 1995 (NSW) (Evidence Act) that the Evidence Act apply at the sentencing hearing to the expert evidence of Dr Kooyman and Ms Ashby.

5. As the offences are ‘native vegetation offences’ as defined in s 1.6 of the Biodiversity Conservation Act 2016 (NSW) (BC Act), s 13.12 of the BC Act applies.

Statement of agreed facts

6. The parties agreed the following statement of agreed facts (SOAF) (minor amendments made attachments not included):

…

GIANT TREES OFFENCE – 2022/198791

3 On 7 July 2022, the prosecutor filed a summons and order charging the defendant with one offence under section 69SA(1)(b) of the Forestry Act for contravening a requirement imposed by the Integrated Forestry Operations Approval for the Coastal Region (CIFOA) in that, between about 24 June 2020 and about 24 July 2020 at or near Compartments 33 and 34 of Wild Cattle Creek State Forest (the Forest), FCNSW contravened Condition 64.2 of the CIFOA in that, when carrying out a forestry operation, it failed to permanently retain the following six "giant trees" as defined under the CIFOA (the Giant Trees offence):

| EPA Ref | Diameter at stump height over bark (DSHOB) | Tree location | Tree species and status | | 3 | 145 cm | Compartment 33, Patch 8B | Live Blue gum (eucalyptus saligna) | | 4 | 183 cm | Compartment 33, Patch 7A | Live Brush box (lophostemon confertus) | | 5 | 163 cm | Compartment 33, Patch 7A | Live Brush box (lophostemon confertus) | | 8 | 143 cm | Compartment 34, unnamed Patch 40218 | Live Brush box (lophostemon confertus) | | 9 | 150 cm | Compartment 33, Patch 6B | Live Brush box (lophostemon confertus) | | 71 | 148 cm | Compartment 33, Patch 8A | Live Blue gum (eucalyptus saligna) |

4 The plea of guilty was entered to the Giant Trees offence by FCNSW on 9 September 2022.

5 The maximum penalty for a contravention of section 69SA(1)(b) of the Forestry Act by a corporation is $2 million.

HOLLOW-BEARING TREES OFFENCES – 2022/198793; 2022/198795 AND 2022/198798

6 On 7 July 2022, the prosecutor filed summonses and orders charging the defendant with three offences under section 69SA(1) of the Forestry Act relating to its failure to retain three "hollow-bearing trees" (HBTs) in the Forest, in contravention of the requirement in Condition 64.2 of the CIFOA to retain "all" HBTs in the net harvest area of an intensive harvesting zone (the HBTs offences)****.

7 The HBTs offences relate to three different trees identified as follows:

| | EPA Ref | EPA Initial Ref | Location in the Forest | | 198793 | 16 | 7 | Patch 7A, Compartment 33 | | 198795 | 18 | 44 | Patch 1A, Compartment 32 | | 198798 | 21 | 26/Placemark 31 | “Unnamed Patch”, Compartment 34 |

8 On 28 April 2023, the defendant entered pleas of not guilty to the HBTs offences.

9 On 21 July 2023, the HBTs offences were set down for trial commencing on 6 May 2024 with an estimate of 10 days.

10 Since 21 July 2023, the parties have filed and served notices under ss 247J, 247K and 247L of the Criminal Procedure Act 1986.

11 On 18 April 2024, the HBTs offences were listed for directions when further case management orders were made by Justice Pain and the trial was confirmed to commence on 9 May 2024 with an estimate of four days.

12 On 6 May 2024, the defendant entered pleas of guilty to the HBTs offences and the trial listed on 9 May 2024 was vacated.

FORESTRY OPERATIONS

13 The Forest has a total area of 13,613.49 ha and is located west of the Mid North Coast of New South Wales, about 30 km north-west of Coffs Harbour. (The southernmost point of Compartment 33 and northernmost point of Compartment 34 of the Forest is about 30km north-west of Coffs Harbour.)

14 Commencing on 24 June 2020, the defendant carried out forestry operations in Compartments 32, 33 and 34 of the Forest, including harvesting trees in the Forest.

15 The CIFOA was granted under Part 5B of the Forestry Act by the Minister for Environment and Minister for Lands and Forestry and commenced on 16 November 2018.

16 At all relevant times, the CIFOA permitted FCNSW to carry out forestry operations, including the forestry operation that led to the commission of the Giant Trees and HBTs offences, in the Forest in accordance with the Conditions of the approval and the Protocols to the CIFOA; (Condition 13, Condition 7.1 and Condition 5.3).

17 For the purposes of the CIFOA, the entirety of Compartments 32, 33 and 34 of the Forest were within the "intensive harvesting zone".

18 A map titled Map 1 depicting the locations of the six giant trees and a map titled Map 2 depicting the locations of the three HBTs felled by FCNSW in the Forest are at Tab 1 of the Tender Bundle to these Facts (the Tender Bundle).

Key C****onditions and Protocols applicable to the offences

19 The CIFOA comprises "Conditions" and "Protocols". Relevant sections of the Conditions, published in November 2018, are at Tab 2 of the Tender Bundle, and include:

(a) Front page;

(b) p. iii – Reference to Act and making of the Approval;

(c) pp. iv – viii contents;

(d) pp 1 – 10 – Chapter 1 whole;

(e) pp. 16 – 18 – Chapter 3, cls 43 – 45.7;

(f) pp. 24 – 30 –Chapter 4, Divs 1 –3;

(g) pp. 52 –54 –Chapter 6; and

(h) p. 57 –Schedule 1.

20 Relevant sections of the Protocols, published in March 2020, are at Tab 3 of the Tender Bundle, and include:

(a) Front page;

(b) Contents pages;

(c) Chapter 1 – Scope and interpretation;

(d) Protocol 6: Suitably qualified persons –training and experience;

21 Protocol 20: Pre-operational surveys:

(e) Protocol 22: Wildlife habitat and tree retention clumps;

(f) Protocol 23: Tree retention;

(g) Chapter 6: Mapping and Spatial Dataset Protocols; and

22 Chapter 9, Protocol 39: Definitions.

Definition of giant trees and associated measurements

23 Protocol 39 to the CIFOA, titled 'Definitions' defines:

(a) 'Giant tree' as follows:

‘In relation to Blackbutt or Alpine Ash trees, means any live tree of these species with a diameter at stump height over bark (DSHOB) of 160 centimetres or greater.

In relation to all other tree species, means a live tree with a diameter at stump height over bark (DSHOB) of 140 centimetres or greater.’

(b) ‘Diameter at stump height over bark (DSHOB)' as follows:

‘The diameter of a tree (including its bark) measured, using a diameter tape, at right angles to the axis of the tree at stump height.’

(c) 'Stump height' as:

The point of a tree or a tree stump, measured at 30 centimetres above the ground (on the upslope of the tree, if the tree is on a slope) or, where the tree stump is less than 30 centimetres, the highest point of the tree stump.’

Definition of hollow-bearing trees

24 Protocol 39 to the CIFOA defines a "hollow-bearing tree" as:

‘A tree that is alive and has:

1. visible hollows, holes or cavities that have likely formed because of decay, injury or other damage as the tree has aged; or

2. clearly inferred holls as it is an older growth stage tree (in particular a senescent tree) with one of more obvious deformities such as a burl, large protuberance or broken limb.

Note: Guidance will support the application of this definition.

Retention of trees

25 “Retained tree” is defined in Protocol 39 as follows:

1. A hollow-bearing tree, nectar tree, giant tree, dead standing tree, Glossy Black­ cockatoo tree, Glider sap feed tree or Koala browse tree retained for the purpose of conditions 63 and 64; or

2. A tree mapped on the:

a. Retained_Trees' spatial dataset;

b. Accessed_Retained_trees' spatial dataset or

c. a FCNSW field dataset.

26 Condition 64.1 provided that:

‘Retained trees must be selected and protected in accordance with Protocol 23: Tree retention.’

27 Condition 64.2 provided that:

‘The following retained trees must be permanently retained:

(a) all giant trees ...

(b) …

(c) the following numbers of hollow-bearing trees:

(i) all hollow-bearing trees in the net harvest area in the intensive harvesting zone; or

(ii) a minimum of eight hollow-bearing trees per hectare of net harvest area in accordance with Protocol 23: Tree retention in all areas not described in (i) above; and

(iii) where the density specified in condition 64.2(c)(ii) is not available, all hollow-bearing trees

28 Protocol 20.2(1) relevantly provides that a broad area habitat search must:

(a) cover the base net area of each patch;

(b) cover areas 100m outside the base net area where habitat suitable for a subject species, or a habitat feature listed in Table 2 of the approval, is known or likely to exist;

(c) cover tracks or roads where habitat suitable for a subject species, or a habitat feature listed in Table 2 of the approval, is known or likely to occur adjacent to tracks and roads; and

(d) record all habitat features and subject species listed in Table 2 of the approval.

29 Protocol 23.2 relevantly provides:

1. At least 100 metres in advance of any forestry operation occurring in any part of the operational area, the base net area must be broken up into patches that are no more than 10 hectares in size.

2 In advance of any forestry operation occurring in any patch, FCNSW must search for and identify retained trees in that patch.

…

5. FCNSW must map the following in accordance with condition 117 of the approval:

(a) the boundary of patches; and

(b) the location of retained trees including identification of the purpose for which they have been retained.

30 Protocol 23.3 relevantly provides:

1. Retained trees must not be damaged during a forestry operation.

If a retained tree is damaged during forestry operations, FCNSW must replace it with a comparable tree.

Where a comparable tree is not available, FCNSW must retain a mature tree with a healthy crown that is not damaged.

…

Mappings

31 Condition 117 relevantly provides:

‘The boundary, point location or linear extent of the following must be mapped, or re­ mapped, in advance of and during a forestry operation in any part of an operational area:

…

(c) any features required to be mapped under:

(iii) Protocol 23: Tree Retention (i.e. retained trees, patches)’

EPA INVESTIGATION

32 As part of the EPA's investigation into the offending conduct, the EPA conducted inspections of Compartments 32, 33 and 34 on 9 July 2020, 21-24 July 2020, 24-26 August 2020 and 23 July 2021 (collectively, the Inspections).

33 The offending giving rise to all offences was detected during the Inspections.

Giant trees

34 During the Inspections, EPA Officers identified and recorded the locations and characteristics of six giant trees that had been felled by FCNSW in breach of Condition 64.2 of the CIFOA. The locations of these giant trees within Compartments 33 and 34 are mapped at Tab 1 - Map 1.

35 The EPA officers recorded the following characteristics of each felled giant tree identified:

| EPA Ref | DSHOB July/Aug 2020 | DSHOB July 2021 | Tree location | Stump species | | 3 | 156 cm | 145 cm | Compartment 33, Patch 8B | Blue gum (eucalyptus saligna) | | 4 | 194 cm | 183 cm | Compartment 33, Patch 7A | Brush box (lophostemon confertus) | | 5 | 174 cm | 163 cm | Compartment 33, Patch 7A | Brush box (lophostemon confertus) | | 8 | 156 cm | 143 cm | Compartment 34, unnamed Patch 40218 | Brush box (lophostemon confertus) | | 9 | 150 cm | 150 cm | Compartment 33, Patch 6B | Brush box (lophostemon confertus) | | 71 | 153 cm | 148 cm | Compartment 33, Patch 8A | Blue gum (eucalyptus saligna) |

36 Photographs of the 6 cut giant tree stumps the subject of the Giant Trees offence are at Tab 4 of the Tender Bundle.

HBTs

37 During the Inspections, EPA officers identified and recorded the locations and characteristics of three HBTs that had been felled by FCNSW in breach of Condition 64.2 of the CIFOA as follows:

| Charge number | EPA Ref. | EPA Initial Ref. | Located on | Location | | 198793 | 16 | 7 | 21 July 2020 | Patch 7A, Compartment 33 | | 198795 | 18 | 44 | 22 July 2020 | Patch 1A, Compartment 32 | | 198798 | 21 | 26/Placemark 31 | 24 July 2020 | "Unnamed Patch", Compartment 34 |

38 During the defendant’s harvesting operation, each of the above trees was felled by Greensill Bros. Pty Ltd ACN 003 687 705 (Greensill), a logging contractor engaged by the defendant for the purposes of the harvesting operation.

39 The identifiers in the column above named “EPA Initial Ref.” were assigned by EPA Officers during their inspections of the Forest in July 2020 based on a GPS “waypoint” reference assigned to the individual tree. EPA Officers used GPS enabled iPads with an application called “Avenza Apps” containing digital maps created by the EPA based on the defendant’s digital maps which recorded data of trees to be retained amongst other data.

40 On 24-26 August 2020, EPA Officers returned to the Forest and used a differential GPS (DGPS) system, considered to be more accurate, to take further GPS co-ordinates of each of the above trees. After this date, the ‘EPA Ref’ number was assigned as an identifier for each tree in place of the ‘EPA Initial Ref’ number.

41 Each of the trees was of the species “Lophostemon confertus” also known as ‘Brush box’.

42 EPA Officers identified a single hollow in each tree. EPA Officers made contemporaneous field notes as to their observations.

43 In subsequent inspections, Dr Robert Kooyman identified each tree by a site Reference number.

44 Annexure A provides the initial and revised co-ordinates of each of the trees, the approximate measurements of the hollows identified by the EPA as taken by the EPA, initial observations made by EPA Officers and the site Reference number used by Dr Kooyman.

45 Photographs of the three HBTs are at Tab 5 of the Tender Bundle.

OPERATIONAL PLANS AND MAPS

46 The defendant was required under the CIFOA to have in place an “Operational Plan”. “Harvest and Haul Plans” satisfy [sic] the requirements of an Operational Plan. On 15 June 2020, a Harvest and Haul Plan for the Forest was approved internally by the defendant (the Initial Harvest and Haul Plan).

47 The Initial Harvest and Haul Plan confirmed that selective harvesting was to be carried out in parts to Compartments 32, 33 and 34 in the Forest and that the harvesting zone was ‘intensive’.

48 The Initial Harvest and Haul Plan stated that the “Standard Operating Procedures” applied.

49 Under “Harvesting Objectives and Condition for each stand condition”, the Initial Harvest and Haul Plan read:

The objective is to harvest the merchantable component of the mature aged crop and retain the vigorous younger age class trees for the future.

Crew to harvest all merchantable high quality large and salvage quality stems. Crew is responsible for identifying and retaining growers and patches of quality advanced regeneration. Forest Technicians may mark growers in some areas to provide Crew/HC with example of trees which must be retained throughout the harvest area.

Despite this silvicultural prescription, the minimum average basal area must not be lower than 10 m²/ha.

Crew to remove all merchantable stems not marked for retention and ensure mechanical disturbance creates a suitable seed bed for regeneration. The crew is responsible in consultation with the HC for selecting retained seed trees and retaining patches of advanced regeneration.

“HC” is an abbreviation for "Harvesting Coordinator".

50 A second version uploaded by the defendant to a planning portal on 3 July 2020 (the Revised Harvest and Haul Plan) stated:

The objective is to harvest the merchantable component of the mature aged crop and retain the vigorous younger age class trees for the future.

To achieve this objective, a significant proportion of the High Quality Small (HQS) trees must be retained to grow on into HQL. Crew is responsible for identifying and retaining growers and patches of quality advanced regeneration. FTs may mark growers and seed trees in some areas to provide Crew/HC with example of trees which must be retained throughout the harvest area. The crew is responsible in consultation with the HC for selecting retained seed trees and retaining patches of advanced regeneration. Despite this silvicultural prescription, the minimum average basal area must not be lower than 10 m2/ha.

Where regeneration has been poor from the previous harvesting events, mechanical disturbance & post-harvest burning should also be implemented, with consideration given to enrichment planting. HC in cooperation with FTs to identify priority areas for mechanical disturbance & enrichment planting.

51 Under "Operational Responsibilities" both versions of the Harvest and Haul Plan stated:

Mark-up – the FT is responsible for marking up the forest ahead of harvesting operations consistent with Harvesting Procedures (CIFOA) SOP - Chapter 3 - Tree retention and Tree Retention Clumps, and Chapter 2 - Broad Area Habitat Search.

52 "FT" is an abbreviation for "Forestry Technician".

53 Next to "Broad Area Habitat Search" (also under "Operational Responsibilities") both versions of the Harvest and Haul Plan stated:

Compartment mark-up surveys must be conducted at least 100m in advance of operations. The survey must search for threatened and protected species features as described in Harvesting Procedures (CIFOA) SOP - Chapter 2.

Where impenetrable understorey is identified those patches will be marked by the FT. The HC and Crew must ensure markup is complete in these areas.

54 "Crew" was defined in both versions of the Harvest and Haul Plan as meaning "Harvest Contractor/Forest Operators".

55 Next to "Marking Retained Trees" both versions of the Harvest and Haul Plan stated:

FT must select and mark trees to meet the following as per SOP 3 - Tree Retention and Tree Retention Clumps:

 Hollow-bearing tree condition - All/8 per ha must be retained where available

 Giant trees - 160cm (BBT only)/140cm (all other spp) at stump height

 Sap feed trees - All

 Glossy-black Cockatoo feed trees - All

 Koala feed trees - Prescription 1 and 2

56 Next to "Protection of Retained Trees" both versions of the Harvest and Haul Plan stated:

Trees marked or selected for retention must not be felled or damaged.

Damaged trees must be replaced with a comparable tree. Where a comparable tree is not available, it must be replaced with a mature tree, with a healthy crown. Damaged and replaced trees must be recorded in the FCMapApp.

57 The defendant also prepared an operational map (Harvest Plan Harvest Map) dated 12 June 2020 depicting harvestable areas of Compartments 32, 33 and 34.

Standard operating procedures

58 At the time of the forestry operation in the Forest, the defendant had in place a "Standard Operating Procedure" for the Coastal IFOA issued in April 2020 (SOP).

59 A copy of the SOP is at Tab 6 of the Tender Bundle.

FCMap App

60 Forestry Corporation Map Application (FCMap App) is an iPad application developed by the defendant. The FCMap App is used by FCNSW staff and their harvesting contractors to record and view spatial data whilst in the field. The FCMap App enables FCNSW staff to (amongst other things) record the location of trees that FCNSW has identified and mapped for retention (retained trees) using a GPS waypoint feature. The FCMap App enables FCNSW's contractors to record (amongst other things) a GPS line feature of the locations where the harvesting machinery has been operated. The machinery GPS line features are referred to as (machinery) tracklogs.

61 The FCMap App also enables the defendant’s Forestry Technicians to use:

(a) a GPS line feature to record the locations in a forest where they have walked in the course of identifying and mapping forest features. These are referred to as traverse lines;

(b) use a polygon feature in MapApp to map the location or boundary of patches within a compartment; and

(c) use a polygon feature in MapApp to map the presence of any "impenetrable understorey".

62 The EPA has access to the FCMap App and the data recorded in it. In addition to the FCMap App, the EPA also has ongoing access to the spatial data relevant to harvesting operations via geographic information system (GIS) software called ArcMap including data showing the above features.

Forest Technician Team

63 At all material times, the team responsible for retained tree selection in Compartments 32, 33 and 34 of the Forest comprised:

(a) Lead Forest Technician;

(b) Forestry Technician 2;

(c) Forest Technician 3; and

(d) Forest Technician 1

(together, the Forest Technician Team).

…

PRE-HARVEST OPERATIONAL TRAINING

67 Prior to commencement of forestry operations under the CIFOA, FCNSW developed an in-house training package for staff and contractors in relation to the requirements of the CIFOA, forest mark-up and the use of FCMapApp for regulatory compliance.

68 On 28 May 2019, FCNSW provided the EPA with a training package outline titled 'CIFOA Training, 2019: Harvesting Supervisors, Technicians and Operators in NSW CIFOA areas'. A copy is at Tab 7 of the Tender Bundle.

69 From 2 to 4 July 2019, training was delivered by Mr Tony Brown (then Forestry Corporation Remote Sensing Resources Analyst) and Mr Justin Williams (Forestry Corporation Strategic Planning Manager) at the Coffs Harbour Showground and Clydesdale Motel & Steakhouse, Casino to the Forest Technician Team.

70 The first day of training comprised of two half-day theory sessions of PowerPoint presentations, live FCMapApp demonstrations, and extended discussions and Q&A with the Forest Technician Team.

71 The second day of training included a half day field session where the Forest Technician Team reviewed any issues in the application of the training by looking at examples onsite in a forest. A significant portion of the field session covered concepts such as tree growth stage, tree development, tree dominance, cohort identification, disturbance history, regeneration strategy and silvicultural strategy - topics that are fundamental in tree selection for retention and protection of habitat, future habitat and protection of current Koala/Nectar/Glossy Black Cockatoo habitat. Training on these concepts were necessary for harvest planning and mark­up.

72 Prior to conducting forestry operations in the Forest, all members of the Forest Technician Team:

a. received training in the CIFOA requirements related to the identification and retention of Giant Trees (CIFOA Training) between 2 and 4 July 2019 as particularised in [69] - [71]; and

b. were briefed on the Harvest and Haul Plan and attended the Harvest Plan induction on 16 June 2020.

…

PRE-HARVESTING SEARCHES – IDENTIFICATION AND MAPPING OF RETAINED TREES

76 On 16 June 2020, the Forest Technician Team commenced the broad area habitat search and mark-up of the Forest. In accordance with the CIFOA, SOP and Harvest Plan, one of their tasks was to search for, identify and map all retained trees, including all giant trees and HBTs, in each patch in each Compartment. (FCNSW disputes the relevance of this fact but not the fact itself).

77 Compartments 33 and 34 were broken up into patches. The relevant patches of Compartments 33 and 34 are listed in Table 1.

Table 1: Patch attributes for Compartments 33 and 34

| Patch Label | Patch Area ha | Patch BNA ha (harvesting base net area) | Giant Trees offence | HBTs offences | | Compartment 32 | | 1A | | | | The tree in charge 2022/198795 was located in this patch - EPA Ref 18, Brush Box (Lophostemon confertus*),* Basal hollow on stump | | Compartment 33 | | | 8A | 7.84 | 3.5 | EPA Ref 71, Blue Gum, 148 cm (DSHOB) | | | 8B | 6 | 3.89 | EPA Ref 3, Blue Gum, 145 cm (DSHOB) | | | 7B | 8.3 | 5.81 | EPA Ref 4, Brush Box, 183 cm (DSHOB) | | | 7A | 8.72 | 5.81 | EPA Ref 5, Brush Box, 163 cm (DSHOB) | The tree in charge 2022/198793 was located in this patch - EPA Ref 16, Brush Box (Lophostemon confertus*),* Basal hollow on stump | | 6B | 7.12 | 1.89 | EPA Ref 9, Brush Box, 150cm (DSHOB) | | | Compartment 34 | | | No Patch Label data recorded. Object lD: 40218 | 5.93 | 4.81 | EPA Ref 8, Brush Box, 143 cm (DSHOB) | | | No Patch Label data recorded. Object lD: 40218 | | | | The tree in charge 2022/198798 was located in this patch - EPA Ref 21, Brush Box (Lophostemon confertus*),* Basal hollow on stump |

78 On 16 June 2020, the Forest Technician Team attended a harvest plan reading conducted by Mr Philip McKenzie (Senior Harvest Planner) on-site at the Forest. A copy of the harvest plan reading summary is at Tab 9 of the Tender Bundle.

79 Between about 17 June 2020 to 17 July 2020, three Forest Technicians from the Forest Technician Team searched for giant trees in patches of Compartments 33 and 34 of the Forest in the manner set out below at [85] - [110].

80 These searches, including giant trees selected for retention, were captured in FCMapApp using iPads with Mobile GPS, and giant trees were physically marked with paint.

Compartment 32: Search in Patch 1A

81 On 29 and 30 July 2020, Forestry Technician 2 and Forest Technician 3 searched Part 1A of Compartment 32 and identified and mapped 39 trees as HBTs for retention.

82 The tree at EPA Ref 18 was not identified and mapped and was later harvested by the Greensill Harvesting Crew.

83 EPA Ref 18 was not located in an area marked by FCNSW as impenetrable understorey.

84 The map at Tab 10 of the Tender Bundle depicts the traverses of the Forest Technicians and the location of EPA Ref 18 in Patch 1A.

Compartment 33: Searches in Patches 8A, 8B, 7A and 6B

85 Between about 16 and 29 June 2020, the Forest Technician Team conducted searches and mark-up in Compartment 33.

86 A total of 12 giant trees were mapped by FCNSW to be permanently retained in Patches 8A, 8B, 7A and 6B of Compartment 33 prior to the commencement of harvesting by the Greensill Harvesting Crew.

Patches 8A and 8B

87 On 17 June 2020, patches 8A and 8B were searched by Forestry Technician 1 and Forestry Technician 2, and on 22 June 2020, these patches were again searched by Forestry Technician 2.

88 No giant trees were identified and mapped for permanent retention in patches 8A and 8B by FCNSW.

89 FCNSW failed to identify and map the giant trees located at EPA Ref 71 in Patch 8A and EPA Ref 3 in Patch 8B and, as a result, these trees were not retained in that they were harvested by the Greensill Harvesting Crew as follows:

(a) EPA Ref 71 was harvested between 26-27 June 2020 (Tracklines dataset: from 26 June 2020 16:56 to 27 June 2020 00:08, by Greensill harvesting operator of 'Greensill 01 iPad 02'); and

(b) EPA Ref 3 was harvested between 25-26 June 2020 (Tracklines dataset: from 25 June 2020 16:38 to 26 June 2020 00:28, by Greensill harvesting operator of 'Greensill 01 iPad 02').

90 The trees located at EPA Ref 71 and EPA Ref 3 were not located in an area mapped by FCNSW as impenetrable understorey.

91 Figure 1 at Tab 11 of the Tender Bundle depicts the traverses of the two Forest Technicians and the locations of EPA Ref 17 in Patch 8A and EPA Ref 3 in Patch 8B.

Patch 7A

92 On 22 and 23 June 2020, Patch 7A was searched by Forestry Technician 2.

93 Two giant trees were identified and mapped for permanent retention in this patch by FCNSW**.**

94 FCNSW failed to identify and map the giant trees located at EPA Ref 4 and EPA Ref 5 in Patch 7A and, as a result, these trees were not retained in that they were harvested by the Greensill Harvesting Crew as follows:

(a) EPA Ref 4 was harvested on 1 July 2020 (Tracklines dataset (ObjectlD: 546818): between 19:46 to 22:25, by Greensill harvesting operator of 'Greensill 01 iPad 02'); and

(b) EPA Ref 5 was harvested between 30 June to 1 July 2020 (Tracklines dataset (ObjectlD: 546384): between 16:42 to 01:03, by Greensill harvesting operator of 'Greensill 01 iPad 02').

95 Thirteen HBTs were identified and mapped for permanent retention in this patch by FCNSW.

96 The tree at EPA Ref 16 was not identified or mapped and was harvested by Greensill Harvesting Crew.

97 None of the trees were located in an area mapped by FCNSW as impenetrable understorey.

98 Figure 2 at Tab 11 depicts the traverses of the Forest Technician and the locations of EPA Ref 4, EPA Ref 5 and EPA Ref 16 in Patch 7A.

Patch 6B

99 On 25 June 2020, Patch 6B was searched by Forest Technician 3 and Forestry Technician 2 and, on 29 June 2020, the patch was searched by Forestry Technician 1.

100 One giant tree was identified and mapped for permanent retention in this patch by FCNSW. FCNSW failed to identify and map the giant tree located at EPA Ref 9 in Patch 6B and, as a result, this tree was not retained in that it was harvested on 2 July 2020 by the Greensill Harvesting Crew. (Tracklines dataset (ObjectlD: 546912): between 16:43 to 00:43, by Greensill harvesting operator of 'Greensill 01 iPad 02').

101 EPA Ref 9 was not located in an area mapped by FCNSW as impenetrable understorey.

102 Figure 3 at Tab 11 depicts the traverses of the Forest Technicians and the location of EPA Ref 9 in Patch 6B.

Compartment 34: Searches in Patch 40218 and “unnamed patch”

103 On 1, 2 and 8 July 2020, Patch 40218 in Compartment 34 was searched by Forest Technician 3. On 7 and 8 July the patch was searched by Forest Technician 1. On 14 July the patch was searched by Forest Technician 2.

104 A total of nineteen trees were identified and mapped as Giant Trees for permanent retention in this patch by FCNSW. A total of twelve trees were marked 'with the letter 'L'. (Trees can be recorded as having multiple attributes. For example, a giant tree can also be a hollow­ bearing tree. The tree is recorded with attributes of both types of retained tree. It is displayed according to the first (known as the primary) attribute recorded. If a giant tree was recorded with the primary attribute 'hollow-bearing tree' and secondary attribute 'giant tree' it would be displayed with the letter 'H'. Trees with the primary attribute 'giant tree' display the letter 'L').

105 FCNSW failed to identify and map the giant tree located at EPA Ref 8 in Patch 40218 and, as a result, this tree was not retained in that it was harvested between 15-16 July 2020 by the Greensill Harvesting Crew. (Tracklines dataset (ObjectlD: 547792): between 16:29 to 00:56, by Greensill harvesting operator of 'Greensill 01 iPad 02').

106 EPA Ref 8 was not located in an area marked by FCNSW as impenetrable understorey.

107 Figure 4 at Tab 11 depicts the traverses of the Forest Technicians and the location of EPA Ref 8 in Patch 40218.

108 On 1, 2, 6-8 and 13-14 July 2020, Forestry Technician 1, Forestry Technician 2 and Forestry Technician 3 searched an "unnamed" patch in Compartment 34 and identified and mapped 40 trees as "hollow-bearing trees." The trees were identified for retention on that basis.

109 EPA Ref 21 which was located in that patch was not identified or mapped. It was not located in an area marked by FCNSW as impenetrable understorey.

110 Figure 5 at Tab 11 depicts the traverses of the Forest Technicians and the location of EPA Ref 21 in the unnamed patch.

FCNSW’s method of identifying and measuring potential giant trees

111 At all relevant times, the Forest Technician Team knew that all giant trees in Compartments 32, 33 and 34 of the Forest were to be permanently retained (as required by the CIFOA).

Equipment used

112 Each Forest Technician used the following equipment during the pre-harvest searches in Compartments 32, 33 and 34 of the Forest; ROI Forest Technician 3 Q: 47-54; ROI Forestry Technician 1 Q: 45:

(a) an iPad with mobile GPS and loaded with the FCMapApp, Harvest Plan, Harvest Map and SOP; ROI Lead Forest Technician Q 153:

(i) survey tracklogs of Forest Technicians were recorded in FCMapApp by Mobile GPS in the 'HFDTraverse' dataset (as required by the CIFOA);

(ii) retained trees were mapped in FCMapApp in the 'HFDTreesCoastal' dataset and up to three 'TreeType' attributes were recorded (as required by the CIFOA) per tree. Giant trees recorded with the attribute 'giant' were displayed in MapApp using as the symbol for the primary attribute of the tree. If the primary attribute of the tree was 'giant tree', the letter 'L' was displayed.

(b) paint - giant trees identified by Forest Technicians were marked with paint and designated with the letter 'G' or 'L' on the trunk (over bark);

(c) a length of rope or "string line"; and

(d) PPE, first aid kit, water, radio, range finder, EPIRBs (Emergency position indicating radio beacons).

113 The transcripts of interview with the EPA and Lead Forest Technician, Senior Manager of Planning, Hardwood Forests Division of FCNSW, Karen Morrow, Forest Technician 1, Forest Technician 3 and Forest Technician 2 are at Tab 12.

Failure to measure diameter at stump height (30 cm above ground)

114 FCNSW failed to ensure that at all times the diameter of potential giant trees was measured at stump height (30 cm above ground level) over bark on the upslope of the tree, as required by the CIFOA.

HARVESTING OPERATION

115 On or about 24 June 2020, harvesting operations commenced in the Forest by the Greensill Harvesting Crew.

116 Prior to commencement, the Greensill Harvesting Crew attended CIFOA Training between 28 and 29 November 2019.

117 Prior to commencement of harvesting operations in the forest, the Senior Planner employed by FCNSW conducted an on-site harvest plan reading with the Greensill Harvesting Crew. Also in attendance were Ms Karen Morrow (Forestry Corporation Harvesting Coordinator), Mr Matt Hagon (Forestry Corporation Harvesting Coordinator) and Mr David Blair (Greensill Crew Supervisor).

118 Between 24 June 2020 and 21 July 2020, Karen Morrow, the Harvesting Coordinator, supervised harvesting activity in the Forest.

119 FCNSW is liable for the acts of its contractor, Greensill, because FCNSW was responsible for retained tree identification, selection and protection in Compartments 32, 33 and 34 of the Forest in accordance with the relevant Conditions and Protocols of the Coastal IFOA. The 6 live giant trees felled were not mapped in FCNSW's retained tree spatial dataset which the Greensill Harvesting Crew relied upon to conduct the harvesting operation under the direction of FCNSW.

OTHER INVESTIGATIONS

120 As part of its investigation, the EPA also conducted directed interviews with the following FCNSW employees…

(d) … FCNSW - Lead Forest Technician;

(e) … FCNSW - Forest Technician;

(f) … FCNSW - Forest Technician;

(g) … FCNSW - Forest Technician.

121 The EPA also obtained information and records from FCNSW in response to two statutory notices 1598397 and N-43089 issued to FCNSW on 20 October 2020 and 25 March 2022. A copy of FCNSW's response to Notice 1598387, together with a document titled "Native Forest Strategic Inventory Manual" provided with that response is at Tab 13 of the Tender Bundle.

FOREST TYPE AND ECOLOGY

122 Prior to the commencement of the forestry operations in the Forest, FCNSW conducted pre-operational surveys of Compartments 32, 33 and 34 of the Forest, which were comprised of both desktop and field-based reviews, including:

(a) Identification of forest types (‘Forest Type’ dataset) - a copy of FCNSW's Forest Type Map dated 5 August 2019 is at Tab 14 of the Tender Bundle;

(b) Targeted flora surveys, targeted fauna surveys, wildlife habitat clump area and carry-over exclusion review, TEC assessment, fauna species requiring development of site-specific biodiversity conditions, fauna protected by species specific condition applying to nest, den, roost, camp or feed tree retention, post survey ecology assessment (targeted flora survey, targeted fauna surveys, threatened Coastal IFOA fauna detected within trigger distance of operational area, and threatened Coastal IFOA flora detected within 100m of operational area - a copy of FCNSW's Ecology Report dated 17 March 2020 is at Tab 15 of the Tender Bundle.

7. The following documents were attached to the SOAF:

| TAB | DOCUMENT | DATE | | 1 | Maps depicting locations of subject trees in WCCSF | Various | | 2 | Relevant conditions from the (CIFOA) | November 2018 | | 3 | Relevant sections of the Protocol to the ClFOA | March 2020 | | 4 | Photographs of the six cut giant tree stumps labelled with EPA References | Various | | 5 | Photographs of the three HBTs labelled with EPA References | Various | | 6 | FCNSW, “Standard Operating Procedure” for the CIFOA (SOP) | April 2020 | | 7 | FCNSW, CIFOA Training, 2019: Harvesting Supervisors, Technician and Operators in NSW CIFOA areas | Version provided on 28 May 2019 | | 8 | Video and transcript of FCNSW’s contractor training delivered by Tony Brown | 2020 | | 9 | FCNSW’s Harvest Plan reading summary | 16 June 2020 | | 10 | Map of traverses and location of EPA Ref 18 in Patch 1A in Compartment 32 in the WCCSF | 7 July 2023 | | 11 | Various Maps of the WCCSF: Figure 1: Traverses and locations of EPA Refs 71 and 3 in Patches 8A and 8B in Compartment 33; Figure 2: Traverses and locations of EPA Refs 4, 5 and 16 in Patch 7A in Compartment 33; Figure 3: Traverses and location of EPA Ref 9 in Patch 6B in Compartment 33; Figure 4: Traverses and location of EPA Ref 8 in Patch 40218 in Compartment 34; and Figure 5: Traverses and location of EPA Ref 21 in unnamed patch in Compartment 34. | Various | | 12 | Transcript of record of interview with Forest Technician 3, FCNSW | 16 September 2020 | | 13 | Transcript of record of interview with Lead Forest Technician, FCNSW | 16 September 2020 | | 14 | Transcript of record of interview with Forest Technician 1 FCNSW | 17 September 2020 | | 15 | Transcript of record of interview with Forest Technician 2, FCNSW | 17 September 2020 | | 16 | Transcript of record of interview with Forestry Corporation Harvesting Coordinator | 9 October 2020 | | 17 | Transcript of record of interview with Senior Manager of Planning, Hardwood Forests Division of FCNSW and selected exhibits shown to witness during interview: a. Memorandum of ‘Hollow-bearing Tree and Giant Tree Tool Box Talk’ (SL8); b. Email from Daniel Tuan to Senior Manager of Planning, Hardwood Forests Division of FCNSW and others titled ‘Giant trees measurement’ (SL9). c. Email chain between Justin Williams, Senior Manager of Planning, Hardwood Forests Division of FCNSW and James Jagger titled ‘RE: Giant Tree Report questions – seeking legal privilege’ (SL11) | 8 December 2020 | | 18 | FCNSW’s response to Notice No 1598387 for information and records issued by the EPA | 10 November 2020 | | 19 | FCNSW, Hardwood Forests Division, Forest Type Map for the Forest | 5 August 2019 | | 20 | FCNSW, Hardwood Forests Division, Ecology Report for the Forest | 17 March 2020 |

8. Detail about forest operations and planning is identified in the SOAF including reference to the requirement for a broad area habitat search (BAHS) under the CIFOA.

9. In addition to the SOAF four affidavits by representatives of the Gumbaynggirr Nation were read by the EPA. The EPA also read an affidavit sworn by Mr Chaudhary FCNSW’s Chief Executive Officer in Environment Protection Authority v Forestry Corporation of NSW (Local Court (NSW), 23 December 2023, unrep). The EPA read four expert reports of ecologist Dr Kooyman. The FCNSW read seven affidavits of forestry officers and two expert reports, one by ecologist Ms Ashby and one by forest biometrician Ms Baalman.

Purposes of sentencing

10. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) identifies the purposes of sentencing. It 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,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(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.

11. Section 21A of the CSP Act identifies numerous matters which a court must take into account if relevant when sentencing including aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

12. In reaching a decision on an appropriate penalty, the Court’s consideration of the subjective and the objective circumstances of the offences is informed by the context of the relevant legislative framework aimed at environmental protection, see for example Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15].

Objective circumstances

The nature of the offences

13. The degree to which a defendant’s conduct offends against the legislative scheme under which an offence arises is relevant to sentencing for environmental offences. Under s 10(1)(c) of the Forestry Act one of the principal objectives of the FCNSW is, where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in s 6(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Under s (2) each of the principal objectives is of equal importance, the others including to be a successful business, to have regard to the interests of the community in which it operates and to be an efficient and environmentally sustainable supplier of timber from land under its control. As the EPA submitted harm to the regulatory regime is a relevant sentencing consideration and offences which undermine the integrity of the regulatory regime are objectively serious.

14. The objects of the BC Act are also relevant given that s 13.12 of the BC Act applies in identifying relevant sentencing matters. The BC Act states:

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

(c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and

(d) to support biodiversity conservation in the context of a changing climate, 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

…

Maximum penalty

15. Each offence has a maximum penalty of $2 million. The maximum penalty is a public expression by Parliament (and, by extension, the general community) of the seriousness of the offence. The maximum penalty serves as a yardstick and a basis for the comparison between the case before the court and the worst case; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 372 (Gleeson CJ, Gummow, Hayne and Callinan JJ) (Markarian). The gravity of any particular offence should be measured by reference to the range of penalty available; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri’s) at 697 (Kirby P, Campbell and James JJ agreeing).

State of mind/reasons for the offences

16. The state of mind of the FCNSW, as determined through the actions and beliefs of its officers at the time of an offence being committed may be relevant to determining the objective seriousness of the strict liability offences in this sentencing context. A strict liability offence committed deliberately, recklessly or negligently in the criminal sense will be regarded as objectively more serious than one where the offence was accidental; see Environment Protection Authority v Central Coast Council [2024] NSWLEC 141 at [33] citing Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 148 LGERA 189; [2006] NSWLEC 242 at [123]; Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) [2014] NSWLEC 74 at [71]: Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69 at [32].

Giant trees offence – FCNSW not criminally negligent

17. The EPA submitted that the commission of the giant trees offence resulted from criminal negligence. The FCNSW submitted strongly that no basis for such a finding existed in the circumstances of the giant trees offence.

18. The EPA must meet a high bar in establishing criminal negligence as is made clear in numerous authorities. In Environment Protection Authority v Whites Timber Products Pty Ltd; Environment Protection Authority v White’s Haulage Pty Ltd [2024] NSWLEC 135 Pepper J stated:

69. In Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 (Plath) I held at [81]:

[81] … in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v R [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).

19. In Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114, Preston CJ stated, at [53]-[54]:

Negligence, in contrast [to recklessness], assesses the offender’s conduct not by reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances.

…

What is to be considered is whether the risk of this consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.

The degree of departure from the appropriate standard of care, in order to be negligent under the criminal law, needs to be such that the court, on an assessment of all of the facts, can conclude that failure to take the relevant precaution warrants criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 439 and see also NSW Sugar Milling Cooperative Ltd v Environment Protection Authority at 321, 325.

20. Criminal negligence as finally alleged orally at the hearing by the EPA appeared to be based on four matters. Firstly the terms of Protocol 39 about how to identify a giant tree by measuring 30 cm above the ground were clear and unambiguous (and the interpretation of the terms was not what a reasonable person would have done). Secondly the training provided to the forest technicians who marked trees to inform the contractors who removed them was erroneous on that key issue of measurement of giant trees as required by Protocol 39. The EPA appeared to place most emphasis on the first two matters, which are linked. Thirdly as a result of the incorrect training the forest technicians were not suitably qualified persons to undertake their task, a requirement of the CIFOA. Fourthly the use of string lines to measure tree diameter by the forest technicians was in breach of the relevant control in the CIFOA.

Protocol 39 terms/training of forest technicians (matters 1, 2)

21. According to the EPA the terms of Protocol 39 are very clear in requiring measurement of a tree’s diameter at stump height defined as 30 cm from ground. No reasonable basis for varying these clear terms existed on the evidence. The EPA submitted that the training provided by the Practices Manager and other FCNSW officers to the forest technicians contributed to a finding of criminal negligence. The training provided was to the effect that usual forest measurement practice should also be applied so that abnormalities and buttresses could be considered in determining where to measure above 30cm.

Evidence relevant to interpretation of CIFOA and training of forest technicians

22. Extensive evidence was directed to the content and delivery of training by the FCNSW to the forest technicians, all of which was essentially agreed. The evidence summarised below refers to training in relation to giant tree and hollow-bearing tree identification.

23. The SOAF identifies the circumstances giving rise to the giant trees offence. The agreed facts concerning pre-harvest training at pars 67 to 72 identify that an in-house training package was developed for staff in relation to the requirements of the CIFOA. Two days of training was provided by FCNSW officers in July 2019.

24. When asked about the definition of giant tree the FCNSW’s position was that the definition was relatively clear. At the time of the Senior Manager’s 8 December 2020 ROI the FCNSW understood that there were differences in interpretation. The evidence of the Senior Manager was otherwise largely supported by the FCNSW officers who swore affidavits read in the sentence hearing. One officer the Forest Practices Manager Hardwood Forest Division at the FCNSW (Practices Manager) developed and presented training of forest technicians in relation to the CIFOA requirements before the offences. One officer provided a toolbox talk to forest technicians about giant tree identification following receipt of the stop work order (SWO) dated 17 July 2020 from the EPA. The FCNSW did not dispute that training provided initially was in the terms criticised by the EPA.

25. An email from the General Manager Hardwood Forests sent on 31 July 2020 stated that in light of the SWO all staff and contractors needed to be briefed on the need to measure giant trees in accordance with the literal definition in the CIFOA.

Evidence of the FCNSW Practices Manager

26. The Practices Manager swore an affidavit dated 10 December 2024 stating that the FCNSW began operating in accordance with the CIFOA from about February 2019. The Practices Manager was one of the people responsible for developing and providing training to forestry personnel and contractors about requirements under the CIFOA. The first training session in relation to the CIFOA was held in about January or February 2019. There was separate training for forest technicians, harvest managers and external contractors who conduct actual harvesting. There was large overlap in the training provided to those groups.

27. A significant part of the training involved what habitat features were to be mapped and retained as part of the CIFOA’s newly implemented BAHS requirement. This included identification of giant trees and hollow-bearing trees. The training was a mixture of PowerPoint presentations and field-based learning where groups went into a forest and practically dealt with the requirements of the CIFOA. Features identified in the searches were recorded in an application and were then visible to harvesting crews when undertaking harvesting operations.

28. The Practices Manager recalled that his messaging during retained tree training in 2019 was along the lines that ‘when measuring diameter, if there are abnormalities or buttressing at DSHOB then the diameter should be measured above those, where the true diameter of the tree formed’. Based on his experience in the forest industry, the Practices Manager was aware that the industry practice in Australia was that measurements of tree diameter were typically taken at breast height or 1.3m (DBH). Where ‘abnormalities’ at breast height were present, he believed it was standard practice to measure above those abnormalities.

29. A focus of training in relation to hollow-bearing trees was finding and retaining those hollows which were less common in the landscape, such as larger hollows. The training by the Practices Manager in 2019 also dealt with basal scars and hollows. He said words to the effect of ‘in order to be a suitable habitat for wildlife, basal scars need to connect to larger enclosed hollows’.

30. The Practices Manager attended a meeting between the EPA and the FCNSW on 20 July 2020 to discuss a draft hollow-bearing tree guide. The Practices Manager attended two in-person meetings to develop joint agreed hollow-bearing tree guidance in July 2020. The FCNSW and the EPA published their own separate guidance on hollow-bearing tree identification. The FCNSW’s guidance was published in September 2020 and set out, with use of relevant photos, features of trees that made the presence of a hollow more likely. It also provided guidance on selecting hollows that were less common that provided greater habitat for wildlife. The focus was on selection of suitable hollows. The Practices Manager considered the guide prepared by the FCNSW to be more comprehensive than the guide prepared by the EPA.

Cross-examination of FCNSW Practices Manager

33. In cross-examination the Practices Manager said he had worked in forestry for nearly three decades. He held the position of what was previously called forest technician (now forest officer) for over a decade.

34. The Practices Manager had seen drafts of parts of the CIFOA prior to it being made in November 2018. He was aware prior to the CIFOA or its drafts being made that the CIFOA was to be a new set of prescriptions as to the conduct of forestry operations. One new aspect was the BAHS.

35. The Practices Manager had spent about a decade in a role in which he searched forests for habitat features required to be retained. For example, the Practices Manager searched and marked for retention hollow-bearing trees. At that time those searches were not required by way of a prescribed BAHS. Some aspects of those searches subsequently became a requirement of the BAHS under the CIFOA. Searching and marking giant trees for retention was a new requirement arising from the CIFOA.

36. The Practices Manager assisted in the delivery of the training for operations under the CIFOA alongside the then Strategic Planning Manager for the Hardwoods Division at the FCNSW (SPM). The Practices Manager confirmed he ran a training session for North Coast staff in February 2019 and while he could not recall if the specific forest technicians who undertook the BAHS at WCCSF attended he thought they would have. The training addressed the new BAHS requirement and the identification of giant trees. Another training session for forest technicians was held some time in 2019. The forest technicians the Practices Manager trained had already been trained in their particular areas of responsibility and were often experienced in their roles, so that training focused specifically on the changes brought by the CIFOA. The Practices Manager delivered the training with the SPM. The training involved reference to a PowerPoint presentation which was put together ahead of the February 2019 training by the Practices Manager and the SPM. After the Practices Manager and the SPM had made those PowerPoint slides they were reviewed by the Senior Manager. The training also involved some field work that did not involve searching for a giant or hollow-bearing tree. The Practices Manager did not provide the remarks he made regarding the PowerPoint slides to anyone at the FCNSW for approval. When the PowerPoint slides were created the Practices Manager included what he knew to be the CIFOA prescription as to the measurements for a giant tree.

37. The Practices Manager's affidavit exhibited the PowerPoint presentation he presented at the training of forest technicians and he was taken to particular slides within the presentation as follows:

38. a slide titled 'other retained trees', which identified giant trees were to be measured at DSHOB, with no text elaborating on that measurement.

39. a slide titled 'why are we here?' which identified the format of the training as in-office and field training and said it was refresher training for National Competencies required to work in State Forests.

Evidence of former FCNSW Planning Manager

47. The current Area Manager, Hardwood Forest Division – Northern Division at the FCNSW was until late 2023 the Operations Planning Manager for the North Coast of NSW at the FCNSW (Former Planning Manager). He affirmed an affidavit dated 10 December 2024. The EPA issued a draft SWO in relation to the felling of two giant trees in WCCSF on 16 July 2020. A final SWO was issued on 17 July 2020. A copy of the SWO was exhibited to the Former Planning Manager’s affidavit.

48. On about 22 July 2020 the Former Planning Manager sent a memorandum known as a ‘Toolbox Talk’ to North Coast Forest Officers where he provided details about what had to happen as a result of the SWO and directed staff that until further notice they had to comply with what he understood to be the EPA’s interpretation of how giant trees should be measured under the CIFOA. This ‘Toolbox Talk’ memorandum was exhibited to the Former Planning Manager’s affidavit. (In re-examination the Former Planning Manager explained that a toolbox talk is a process where the FCNSW gathers a team to discuss a specific issue to either provide information or direction, with two-way communication between a management group and an employee group.)

49. The Former Planning Manager was given the task of undertaking an internal investigation or root cause analysis of the issues raised in the SWO. The Former Planning Manager was the lead investigator. The root cause analysis is not dated but the Former Planning Manager recalled he spent a week on the investigation and released a draft report on about 30 July 2020.

50. The Former Planning Manager formed the view that the main cause of the felling of the giant trees was that FCNSW personnel believed they were permitted to measure tree diameter higher than 30cm from the ground, at around breast height, to measure above any buttresses or abnormalities in a tree’s stump. The Former Planning Manager understood that the practice of personnel at the FCNSW who conducted the BAHS had been to measure the tree’s diameter at the point where the tree stopped tapering significantly and buttressing did not prevent an accurate measurement. He knew this based on the training run by the Practices Manager. The Former Planning Manager’s internal investigation listed four improvement actions and all four were implemented by the FCNSW. The Former Planning Manager’s internal investigation report was exhibited to his affidavit.

51. The Former Planning Manager detailed improvements to pre-harvest quality assurance audits for BAHS by FCNSW personnel. The Former Planning Manager assisted in developing actions to improve the FCNSW’s compliance performance in what he described as a ‘compliance recalibration project’ in around October to November 2020. The Former Planning Manager also detailed information that had been provided to him regarding the FCNSW’s BAHS, including their costs and scope.

Cross-examination of former FCNSW Planning Manager

52. As the Former Planning Manager at the CIFOA’s inception and in 2020 he was responsible for the monitoring and supervision of the conduct of BAHS. He had experience under previous Integrated Forest Operations Agreements (IFOAs) and the current CIFOA in searching for habitat features that needed to be retained in forests. There were similar elements between prior IFOAs and the CIFOA in terms of the searches that were conducted but they were not exactly the same.

53. The Former Planning Manager became aware of the offences when the FCNSW received a draft stop work order and then the SWO. At that time he was familiar with Condition 64.2 of the CIFOA and the definition of giant trees in the CIFOA.

54. The Former Planning Manager did not agree that there was nothing in the CIFOA that supported any qualification to the requirement to measure the diameter of a potential giant tree at DSHOB. He said that the outcome statement with respect to retained trees (for Division 3 Chapter 4 of the CIFOA) assisted in interpreting the CIFOA so that the conditions were to be applied consistently with their intent. That outcome statement provides:

Important trees are retained and protected for shelter and food resources for native species, and to support their persistence.

55. When asked what in the outcome statement supported the FCNSW’s interpretation, the Former Planning Manager said that it was in relation to the training delivered in 2019. At the time of the offences his belief was that the outcome statement provided a basis for applying the CIFOA in the way that the FCNSW had when the offences were committed.

56. The Former Planning Manager understood that what made giant trees ‘important’ as stipulated in the outcome statement was the size. Therefore if there was a bias associated with the measurement then the tree may not in fact be giant.

57. The Former Planning Manager said that the CIFOA had a definition regarding DSHOB and that ever since the SWO was received the FCNSW had applied the CIFOA ‘literally’ measuring at 30cm regardless of abnormalities or buttressing.

58. The Former Planning Manager accepted that buttresses are a natural feature of some species of trees. When asked if he accepted they were not abnormalities he said that buttressing is an abnormality in terms of the bowl of the tree such that measuring buttressing results in measuring the roots rather than the bowl of a tree. He said that meant buttressing might be wider than the stem of a tree.

59. The Former Planning Manager said he carried out his investigation in conjunction with two other FCNSW officers. They were tasked with conducting that investigation days after the incident. It was completed within a couple of weeks of the incident. While conducting the investigation the Former Planning Manager spoke to several people including the forest technicians who did the BAHS and the contractors who did the harvesting. No one was able to give a precise recollection of those giant trees in the forest and what happened with them.

60. The Former Planning Manager agreed that the SWO made clear that the provisions quoted by the EPA in the SWO were the provisions the FCNSW needed to comply with.

61. In re-examination the Former Planning Manager said that the giant trees that were unlawfully felled were measured above buttressing or abnormalities which resulted in a diameter measurement less than the definition of a giant tree in the CIFOA. The Former Planning Manager said his root cause analysis stated that the FCNSW’s view of the intent of the giant tree conditions differed from what the intent of the CIFOA was. He used ‘intent’ in that document the same way he used intent in his cross-examination and was referring to the CIFOA’s ‘outcomes’.

62. The Former Planning Manager said the FCNSW received the SWO on 17 July 2020 and his ‘Toolbox Talk’ with the direction to apply giant tree measurements in the CIFOA strictly occurred on 22 July 2020. In his ‘Toolbox Talk’ the Former Planning Manager said that ‘standard forest mensuration principles do not apply’ to the CIFOA because standard mensuration principles are that abnormalities are not measured.

4. Outcome statements

4.1 The approval must be interpreted in a manner that is consistent with achieving and giving effect to the outcome statements. The outcome statements do not otherwise form part of the approval and are not enforceable on their own.

4.2 The protocols must be interpreted in a manner that is consistent with achieving and giving effect to the outcome statements.

Interviews of forest technicians

64. Three forest technicians undertook broad area habitat searches (BAHS) in the relevant compartments of WCCSF in June and July 2020. The SOAF identifies the hollow-bearing and giant trees which were not marked for retention by forest technicians within those compartments and which were subsequently cut down. The forest technicians did mark other hollow-bearing and giant trees in those compartments for retention. The forest technicians who undertook the BAHS in the relevant compartments were interviewed by the EPA in September 2020, these ROIs being attachments to the SOAF. Extracts of the ROIs were included by the EPA in its written submissions.

65. Forestry Technician 1 had been a forest technician for over three and a half years. He said, when asked about training on measuring giant trees:

Yes, yeah, we just measure the giant trees 30 centimetres on the high side of a tree but we sort of – we’re trained to take out any and more in the – any sort of deformance [sic] in the, the trunk in that – and take, and take the, the true to sort of the breast sort of the diameter of the tree.

66. He was asked about alternative methods to manage deformities and said, “So just come up to the, the true part of the diameter of the tree”.

67. Forestry Technician 2 had been a forest technician for 15 years. In explaining his understanding of the CIFOA training in relation to giant trees, he said:

And giant trees well, of measuring giant trees that – where the true form of the log had started of never meeting buttresses, or defects or unusual growth on butts.

Q. During the training for the coastal IFOA what were [sic] told about measuring giant trees?

A. To measure them at their true form.

…

Q. Was it explained? Can you recall what the actual IFOA condition was?

A. To measure the tree at the true form and not to measure usual growths, or double stems, or, or growths off the tree.

68. Forestry Technician 3 had been a forest technician for four years. In relation to training on the measurement of giant trees, Forestry Technician 3 said, “The direction was to measure the tree the – where the tree takes true form but not measure abnormalities or buttressing, the tree roots.” Later, he said, “It, it depends on the tree. Again, I’ve measured where the tree starts to show true form, so it’s true form and not measuring air.”

EPA submissions

69. The evidence of the FCNSW identifies that the training provided by the Practices Manager and the SPM in January 2020 was wrong in directing the forest technicians to measure above the height specified clearly in the CIFOA Protocol 39. The training provided to the FCNSW forest technicians was developed in-house and there was no approval by senior FCNSW staff or someone alert to the legal risk of not complying with the CIFOA. The SPM and the Practices Manager approved their own work. Rather than instructing the forest technicians about the definition in the protocol they were being told to use a measure that is directed to an entirely different topic, being an inventory management tool directed towards the calculation of potential forest yield. The forest technicians were trained quite contrary to the requirements of the CIFOA.

FCNSW submissions

70. The Senior Manager of Planning, Hardwood Forests Division of FCNSW in the ROI on 8 December 2020 identified that there was a difference in interpretation between the EPA and the FCNSW. That FCNSW officers considered usual forest mensuration practice should apply as that was consistent with the outcomes-based approach in the CIFOA. This approach was entirely reasonable given the preponderance of using DBH in the forest industry.

71. The CIFOA was new and introduced the giant tree concept for the first time. Industry practice in Australia typically measures tree diameter at DBH. Numerous protocols to the CIFOA use DBH. DBH requires measurement above breast height where a tree is deformed and branched to a point where the trunk becomes more cylindrical. All FCNSW officers involved in training had extensive operational experience in forestry practices. The officers wrongly believed the definition of DSHOB required measurement above deformities or abnormalities, as DBH required, so that the measurement was the ‘true form’ of the tree or where it becomes cylindrical. Given the similarities in the definitions of DBH and DSHOB it was wrong but understandable to assume that the industry practice regarding measuring buttresses or abnormalities would apply to both controls. Measurement of tree diameter is part of standard forestry practice. Dr Kooyman referred in his evidence to DBH on numerous occasions. The EPA sought to dismiss the significance of industry practice in relation to tree mensuration but such practice is inherent in the definitions.

72. Annotated photographs attached to the FCNSW’s submissions show that when measuring buttresses and abnormalities at the base of a tree, a tree that otherwise would not (according to standard forestry practice) normally be regarded as giant would be caught by the definition in the CIFOA.

73. The FCNSW was not cavalier in its approach to compliance and responded promptly when the issue was identified on 22 July 2020; see above in [49]. That ‘Toolbox Talk’ included the statement that ‘Standard forest mensuration principles do not apply’; see [62] above. The evidence of the forest technicians is that they understood they were applying standard forestry practices. They were mistaken to do so. One hundred and forty five giant trees were identified by the forest technicians across the three relevant compartments.

Finding on interpretation of Protocol 39/training for CIFOA requirements (matters 1 and 2)

74. In Protocol 39 the diameter of trunk measured at a specified height is the key control for determining whether a tree is giant. The EPA submitted that because the control is clear on its face there could be no reasonable basis to depart from applying it in the field. The FCNSW emphasised that its officers understood that usual forest practice applied because of the outcomes focus under the CIFOA.

75. I agree with the EPA that Protocol 39 is clear in its terms in specifying where to measure for identification of a giant tree. That finding must be viewed in the overall context of the CIFOA in light of the matters identified in the evidence of FCNSW officers that the CIFOA was a new instrument, DBH was the usual approach to measurement in the CIFOA not DSHOB, and FCNSW officers considered their approach was consistent with the outcomes focus of the CIFOA.

76. The unchallenged and extensive evidence of FCNSW officers about the training provided (see above at [22]-[68]) detailed the training of forest technicians by the Practices Manager in particular, and the understanding of the forest technicians. The ROIs of the forest technicians confirmed the nature of the training they received. The training for contractors was similar. That the training was incorrect is in one important respect concerning measurement of giant trees is accepted by the FCNSW.

77. The extensive evidence adduced and agreed about training summarised above shows that training was undertaken by FCNSW of its technicians and consultants in relation to the CIFOA requirements. There is no basis for finding that the incorrect training prepared by experienced forestry officers in the context of a new control being implemented, which was unlike any other control in the CIFOA, gives rise to a finding of criminal negligence. The written material provided by FCNSW officers did correctly state the control. The oral instruction provided a different interpretation to the literal words in the control. That mistake has been admitted and was quickly corrected in training carried out after the SWO was issued, as identified in the written evidence of the Former Planning Manager and in his cross-examination.

78. As identified in the authorities above, in order to establish the serious allegation of criminal negligence the EPA has to demonstrate by direct or indirect evidence that there was such a great falling short of the necessary standard of care which a reasonable person would have exercised that the doing of the act merits criminal punishment beyond that already arising from the plea of guilty to a strict liability offence. The understanding of senior forestry officers of obligations under Protocol 39 in the context of the CIFOA, and the conduct of training consistent with that understanding, has not been established as giving rise to criminal negligence.

Suitably qualified person (matter 3)

79. The EPA submitted that because the forest technicians had not been correctly trained they were not suitably qualified persons at the time of the offences. Condition 18(c) of the CIFOA requires forestry operations to be carried out competently by a suitably qualified person. The term is defined in Protocol 39 definitions as:

A person who has experience or qualifications, or both, which enable them to carry out the requirements of a described job or task in a competent and professional manner and, where relevant, comply with the specific requirements in Protocol 6: Suitably qualified persons - training and experience.

80. Turning to ‘Protocol 6: Suitably qualified persons - training and experience’, clause 6.4 is headed ‘Broad area habitat search - staff skill and training’ and provides in part:

(1) A person conducting a broad area habitat search must:

(a) Be properly trained and proficient, to the EPA's satisfaction, in the identification of flora and fauna subject species and habitat within their area of operation. This includes subject species and features listed in Table 2 in condition 57.3 of the approval...

81. The EPA submitted that the forest technicians were not ‘suitably qualified persons’ to identify and ensure the retention of all giant trees because of incorrect training notwithstanding that they did identify and ensure the retention of some giant trees.

FCNSW submissions

82. The FCNSW submitted the EPA’s submissions that the forest technicians were not suitably qualified persons were speculation and conjecture. It is a separate offence that the FCNSW was never charged with. It is a distraction from the proceedings.

83. In circumstances where the EPA investigated this matter in 2020 but did nothing in respect of whether the BAHS was conducted by suitably qualified persons, it is completely unreasonable to now offer this as speculation. There were and remain a range of remedies or steps available to the EPA under the relevant frameworks which have not been taken. It is impermissible to ask the Court to determine this aspect nearly five years after the date of the offence.

84. In any event, there is no substance to the allegations. First, the criteria is ‘to the satisfaction of the [EPA]’. The EPA’s officer attended the relevant training and said nothing (see [31] above). Further, if the EPA was not satisfied, it was entirely open to communicate this to the FCNSW at any time and/or take any regulatory action it felt appropriate. Given that nothing was said at that time or shortly after the inference should be drawn that the interpretation was considered reasonable. Submissions in proceedings are not the appropriate place to express a concern, let alone in a speculative way.

85. Secondly notwithstanding the above complaints, the FCNSW addressed any error in its training within weeks of the offences occurring and ensured it did not reoccur. Thirdly there is also no underlying substance to the allegation. In simple terms, the issue is that the FCNSW’s personnel proceeded on the incorrect, but reasonably held, basis that standard forestry practices applied to measuring giant trees. To suggest that a technical misunderstanding constitutes a person not being suitably qualified is an overreach and should be rejected. Ultimately no criticism was made of the capability of the FCNSW officers who trained the forest technicians.

Finding on suitably qualified person

86. I agree with the FCNSW’s submissions entirely in rejecting the EPA’s submissions that the forest technicians were not suitably qualified persons at the time of the giant trees offence. Primarily, a breach of Condition 18(c) of the CIFOA is not the subject of the giant trees offence and should not be raised by the EPA in this sentencing process for a different offence.

87. Secondly the definition of suitably qualified person in Protocol 39 is wide in referring to the requirement for training to the EPA’s satisfaction. That definition is not obviously rendered inapplicable because of an error in one aspect of training of the forest technicians. The FCNSW’s evidence summarised above in the evidence of the former Planning Manager and Practices Manager included detail of the extensive training provided by experienced officers to forest technicians which the EPA has not sought to address or criticise other than in one aspect.

88. I was not directed to any specific training or experience requirement for suitably qualified persons specified in the CIFOA. That is further context suggesting that a discrete error in one part of training that was not otherwise criticised cannot give rise to a breach of Condition 18(c).

89. Thirdly the definition includes ‘to the EPA’s satisfaction’. An EPA officer attended relevant incorrect training of contractors on 28 November 2019 and said nothing at the training or afterwards. That the EPA sent an email to the FCNSW before the training session to say no comment should be sought from the EPA officer at the session is no answer to the submission that silence gives rise to an inference of satisfaction at the least. That no evidence has been called from or about that officer’s attendance does enable an adverse inference to be drawn that such evidence would not have assisted the EPA; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 320.

90. The allegation that the forest technicians were not suitably qualified persons is not accepted.

Use of stringlines (vs diameter tape) (matter 4)

91. The EPA submitted that the forest technicians did not use diameter tape as required by Protocol 39(b) of the CIFOA (SOAF par 23). The forest technicians’ evidence was that they used stringlines to measure for giant trees.

92. The FCNSW submitted that the EPA’s focus on the use of stringlines rather than a diameter tape was completely irrelevant to the proceedings. It is critical to note the EPA did not allege that the use of stringlines contributed to the breach, rather the parties agreed that the cause of the offence was that forest technicians were measuring above abnormalities/buttresses and so were measuring at the wrong spot. There is no suggestion that there was any inaccuracy in the way measurements were done at DSHOB.

93. Further, the EPA’s interviews with the FCNSW’s personnel and contractors make clear:

(a) stringlines were calibrated against a standard diameter tape or against other stringlines, with knots tied by the lead technician at the diameter of 140cm and 160cm;

(b) the stringlines were used on a trial basis, as an alternate to a standard diameter tape as they could be affixed to the tree and potentially it could be easier for the Forest Technicians to work with;

(c) stringlines were used because standard diameter tapes were not long enough;

(d) as a practical matter, diameter tapes determine diameter through measuring circumference. Standard measurements on a diameter tape are multiplied by pi. The circumference of a tree with a diameter of 140cm is 439.822cm and 160cm is 502.65cm.

94. The FCNSW is not charged with any offences arising from the use of stringlines. These matters were known to the EPA in 2020 and, as the regulator, they have done nothing. It is improper for the EPA to now raise it when they do not suggest this in any way contributed to the offence or in any way resulted in environmental harm.

95. There is no definition of diameter tape in the protocols or anywhere else in the CIFOA. I agree with the submissions of the FCNSW that the use of stringlines by FCNSW personnel is irrelevant to establishing criminal negligence for the giant tree offence.

No criminal negligence in relation to giant trees offence

96. It must follow from my findings on the four matters relied on by the EPA and considered above that the EPA has not met the high threshold required to establish criminal negligence on the part of the FCNSW in relation to the giant trees offence. The offence does not suggest a cavalier approach to compliance responsibilities under the CIFOA, a relatively new instrument at the time of the offences.

Hollow-bearing tree offences

97. The EPA submitted that there was no aggravating state of mind consideration in relation to the HBT offences. Its evidence and submissions sought to deal with the circumstances of the HBT offences to establish that a possible reason was a lack of care. I find below that conclusion cannot arise from the evidence.

Evidence relied on by the EPA relevant to state of mind/reason for HBT offences

98. The SOAF identified at pars 76-110 the searches for hollow-bearing trees by three forest technicians in the relevant compartments. An annexure to the SOAF included one photograph of one of the tree stumps identified by the EPA as hollow-bearing (EPA Ref 21).

99. In his second report (report 2) relied on by the EPA in relation to the HBT offences Dr Kooyman provided his expert opinion on appropriate pre-logging and post-logging surveys and experienced forester processes and practices including identification of hollow-bearing trees. Dr Kooyman detailed the work he has done in these areas and his understanding of the practices and procedures necessary. He also outlined the processes that lead to the formation of hollows in trees, the understorey and undergrowth in relation to each of the hollow-bearing trees the subject of these proceedings.

Evidence relied on by the FCNSW

100. The FCNSW tendered ‘Tree Hollows in Tasmania – a Guide’ published by the Cooperative Research Centre for Forestry and Forest Practices Authority in November 2009 (Trees Hollows Guide) and reprinted with minor edits in September 2017 (Exhibit 1).

101. The maps attached to Ms Ashby’s report show that 145 hollow-bearing trees were identified in the respective compartments and patches. In compartment 34 where EPA Ref 21 was located an hollow-bearing tree close by was identified and marked.

EPA submissions

102. The EPA asked the Court to review the photograph of the hollow-bearing tree EPA Ref 21 in the SOAF and draw an inference from the photograph of the stump that more steps should have been taken to ensure a more thorough search. The size of the hollow and the likely size, age and characteristics of the hollow-bearing trees that were felled means that it would surely have been noticed if a forest technician checked the base of the tree.

103. The EPA submitted that this inference could be drawn by reference to the evidence of forest technicians about their methods for finding hollows. No reference to the evidence of the forest technicians was made to support that submission.

104. Dr Kooyman’s report 2 supports a submission that there must have been some failure in order for the offences to have been committed given that hollows were missed. The steps that Dr Kooyman says could have been taken are relevant in a very general way to the assessment of the failure to identify hollow-bearing trees by the forest technicians.

105. The EPA stated in written submissions that there may have been inadequate training in relation to the identification of hollow-bearing trees. In oral submissions the EPA stated that no criticism of the training provided by FCNSW in relation to hollow-bearing trees was made.

FCNSW submissions

106. The FCNSW submitted that Dr Kooyman’s experience as set out in his report 2 was irrelevant as no evidence links his experience and opinions with what the forest technicians did. It was unnecessary to challenge that evidence as a result. Hollow-bearing trees are not always able to be detected in the field as can be seen from the Tree Hollows Guide and the evidence of Dr Kooyman. The forest technicians located a hollow-bearing tree very close to EPA Ref 21 in compartment 34. Expert ecologist Ms Ashby was unable to locate one of the felled hollow-bearing trees when she undertook a site inspection.

107. No inference should be drawn by the Court viewing the photograph of the stump from EPA Ref 21 in the SOAF. No evidence establishes that it shows the circumstance at the time of the offence. The photo was taken after the harvest had occurred and presumably after the EPA’s investigators had taken various measurements around the base of the tree. It should not be taken as indicative of how the base of the tree would have appeared during the BAHS in 2020.

108. The FCNSW identified that a factor possibly contributing to the HBT offences was that the FCNSW’s training focused on identifying rare hollow types suitable for habitat for mammals and large birds.

109. The definition of hollow-bearing tree itself refers to guidance being provided by the EPA. At the time of the offences the EPA had not provided its guidance. The Court should conclude there was uncertainty as to what hollows required preservation and, for whatever reasons (even without criticism) the EPA, in its capacity as the regulator, had not acted to provide clarity. Further, the FCNSW proactively sought to develop guidance to assist staff to identify hollows and trees likely to have hollows which evidences an organisation that was committed to the environment, meeting its obligations under the CIFOA and preventing recurrence of these offences.

Conclusion on HBT offences - state of mind / reasons

110. Protocol 39 contains a definition of hollow-bearing tree which refers to a tree that is alive and has visible hollows, holes or cavities or clearly inferred hollows as an older growth stage tree with one or more obvious deformities. Such trees are defined as retained trees. Condition 64.2 provides that all such trees must be retained in the net harvest area in the intensive harvesting zone. That control required that all hollow-bearing trees be located in the relevant compartments within the net harvest area. In this case the failure to do so has resulted in the commission of three offences for each hollow-bearing tree missed by the forest technicians. What is unanswered in the evidence provided by the EPA is why this occurred, and if anything could have been done to avoid it.

111. As the FCNSW submitted, Dr Kooyman’s opinion evidence in report 2 of what steps he considered should be taken based on his experience was not linked with what the forest technicians did. While the EPA submitted based on report 2 that an inference ought to be drawn that the forest technicians did not do everything they could have to identify hollow-bearing trees, I consider the EPA submission does not rise above speculation in that there is no evidence to support that submission. The Tree Hollows Guide identifies the challenges of identifying hollow-bearing trees. That other hollow-bearing trees were identified including in close proximity to EPA Ref 21 suggests that the forest technicians did understand their job. It is difficult to give Dr Kooyman’s opinion evidence any weight given that Dr Kooyman was on site several years after the offences period. Dr Kooyman agreed in cross-examination that not all hollows will be found, while not accepting the assessment in the Tree Hollows Guide that 50% could be missed. As the FCNSW submitted there is evidence that a search for hollow-bearing trees was conducted by the forest technicians. There is no evidentiary basis to support a finding that a better search should have been conducted and if that was done that all hollows would have been located.

112. The EPA submission that the Court should draw its own conclusion based on looking at the photograph EPA Ref 21 in the SOAF is inappropriate in a criminal matter, for the reasons advanced by the FCNSW set out above in [107].

113. Ultimately the EPA made no criticism of the training provided by FCNSW in relation to the identification of hollow-bearing trees. The Practices Manager gave oral evidence that the training provided before the offences stated that hollows particularly relevant to native species known to be in the area should be focussed on. The control requires that all hollows be identified not those related to a particular species. The training provided in relation to the identification of hollow-bearing trees made clear that all hollows must be located, according to the evidence of the Former Planning Manager. In the absence of any identifiable failure by the forest technicians and no allegation of deficiency in training by the EPA, there is no evidence to support a finding that some inadequacy caused the offences.

Biodiversity Conservation Act factors s 13.12

115. The BC Act applies as the HBT offences and giant trees offence are ‘native vegetation’ offences as defined in s 1.6 of that Act. Section 13.12 of the BC Act sets out factors that the Court is required to take into account where relevant when imposing a penalty for offences under the Act and states:

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.

Extent of harm caused or likely to be caused by the commission of the offence s 13.12(1)(a)

116. The extent of environmental harm caused or likely to be caused by the offences is a relevant matter to consider. The EPA did not submit that the environmental harm caused by the offences was substantial and did not submit any harm caused was an aggravating factor under s 21A(3)(a) of the CSP Act.

117. The harm caused overlaps, and is different, as between the giant trees offence and the HBT offences.

118. The EPA relied on two reports (1 and 4) of Dr Kooyman in relation to environmental harm caused by the offences. The FCNSW relied on a report of Ms Ashby ecologist.

119. In his first report Dr Kooyman responded to the question from the EPA of what was the extent of environmental harm caused or likely to be caused by felling of the giant trees and the hollow-bearing trees, and what practical measures could have been taken to prevent, control, abate or mitigate that harm. Dr Kooyman inspected all sites of the felled trees the subject of the offences on 8 and 9 February 2021. Dr Kooyman provided his opinion on the key negative ecological impacts on the forest habitats in which the trees were felled. He identified and evaluated measurable and potential negative impacts on the habitat values of WCCSF. The key ecological impacts included:

120. The loss of critical habitat (including tree hollows) and feed trees (such as Eucalyptus microcorys, Eucalyptus saligna) for wildlife such as koala (Phascolarctos cinereus) and greater glider (Petauroides volans);

121. The loss of small hollows suitable for microbats, and other species such as smaller gliding possums, and the arboreal herpetofauna such as Stephen’s Banded Snake;

122. The creation of large gaps (breaks) in the forest canopy from tree felling, increasing the harm to the forest from the felling and removal of very large trees that would otherwise be protected (under CIFOA protocols);

123. The trees felled being in addition to the trees already removed in the timber harvesting operation;

124. The removal of giant trees that are key structural elements of tall wet sclerophyll forests and provide essential habitat for arboreal and flying animals including threatened species and provide and protect important ecological processes.

125. Dr Kooyman provided a list of 27 threatened species likely to occur in the logged areas the subject of the offences and adjacent habitats to identify the values protected by the retention of giant trees and hollow-bearing trees which may be impacted by the offences. I understand that when Dr Kooyman used the term impact he was referring to actual or potential harm.

126. In her report Ms Ashby responded to the question of what is the extent of the environmental harm caused or likely to be caused by (i) the giant trees offence; and (ii) the HBT offence.

Cross-examination of Dr Kooyman

131. Dr Kooyman said that he was familiar with the CIFOA to some extent and had been involved with NSW forests managed by FCNSW for many years. He was aware of IFOA that preceded the CIFOA. He was aware these proceedings involved breaches of the CIFOA and familiarised himself as much as he thought necessary with the CIFOA’s operation to express the opinions provided in his four reports. He did not seek to understand the process by which IFOAs are approved under the Forestry Act. He was aware that the CIFOA was made by State ministers by agreement following consultation between relevant stakeholders. He was aware that the CIFOA included conditions of the approval, outcome statements and protocols. He read the CIFOA but was not familiar with every aspect of it.

132. When taken to Condition 14.1 of the CIFOA Dr Kooyman said he was familiar with the principles of ecologically sustainable development and in broad terms with ecologically sustainable forest management. He understood them to be slightly different in that ecologically sustainable forest management referred specifically to the long-term maintenance of forest dynamics and processes that maintain the forest and therefore translated into different activities.

133. Dr Kooyman understood that the CIFOA enabled lawful removal of trees from forests, that the CIFOA accepted forestry activities would have an impact on the environment and that it identifies ways in which that impact is to be ameliorated by identifying features to be protected and retained. Dr Kooyman was aware that the CIFOA related to forests other than WCCSF. He was not aware of the precise size of WCCSF but agreed it was a reasonably large area of 13,600 hectares. Dr Kooyman was taken to maps from Ms Ashby’s evidence which showed the locations of the trees the subject of the offences. Dr Kooyman said he visited the sites of the nine trees the subject of the offences and that it was necessary to see them and get an idea of their spatial distribution.

134. Dr Kooyman accepted that it is possible under some circumstances for an appropriately qualified person conducting a search to miss hollows. He said that it was effort related but angles of branches, density of understories and other factors can impede visual recognition.

135. When shown the Tree Hollows Guide, he stated he has not done any work in Tasmania and was not familiar with it. The Tree Hollows Guide stated that more than half of hollows in an area may be missed during ground-based surveys. Dr Kooyman said that would be a generalisation and that he could not agree with that statement as it seemed unusually high and he would need to see statistics in support. He agreed with the statement that hollow surveys ‘can work well for some trees and in some forest types, but not all hollows will be found’. He said that there would be a series of confounding issues and variables involved, including that hollow-bearing trees often have multiple hollows.

136. Dr Kooyman agreed four categories of environmental harm existed in relation to the offences:

A. Disturbance as a factor in the forest affects a range of functions. And - and so there’s - there’s no - no contest in terms of the idea that these are approved operations. But the additive effects can have - have serious implications, which is why the - the protective mechanisms are put in place. And so - so, as an ecologist, I look at the overall impacts and the additive, additional impact that arises as a consequence of those additional removals and the activities that surrounded them. So - so those - those factors interact. They’re almost inextricable interactions. And they’re confounding.

…

Q. Where is it that I find, in any of your four reports, that you’ve attempted to separate the harm that you’ve identified has been caused to the forest as a consequence of 1 and 2 from the additive harm caused by 3 and 4?

A. Nowhere specifically. I - I think the reality is that I’ve assessed the - the impacts of those tree removals in the context of their - their impact on, their additional impact on the site.

139. Dr Kooyman was then taken to his fourth report that responded to Ms Ashby’s report. He clarified that in his report when he stated that, “The Ashby report… has focused on evaluating the impact of tree removal mostly in relation to hollows” he was referring to his view that impacts arise from the loss of giant trees in addition to the hollow-bearing trees. When he referred to the need to evaluate “all aspects of the tree harvesting removal operation” he was referring to a need to focus on the impacts of the hollow-bearing trees and giant trees unlawfully felled.

Cross-examination of Ms Ashby

140. Ms Ashby visited some of the sites of the offences on 22 November 2024 with the Former Planning Manager and a FCNSW ecologist. She was unable to locate one site and was unable to reach two in time. She said the Ngugi Study she relied on in her report (see above in [125]) was not necessarily reliable across forest types but would be indicative particularly given that northern NSW is not far from south east Queensland. Ms Ashby was unable to say how quickly it would take a tree of 100cm DBH to reach 140cm DBH as she was unsure whether the figures referred to in her report could be applied in a linear way. She said that whether growth rates involve an averaging or some sort of mathematical adjustment of growth rates at different times during a tree’s life was outside her expertise.

141. Ms Ashby said that the Ngugi Study referred to brush box and agreed that not every species would necessarily be suppressed by overshadowing by larger trees. She said that there are species of shade-tolerant trees in forests such as WCCSF but that trees in dense forests tend to experience some growth spurt and competitive action when there is a canopy gap. Her statement that the removal of larger trees “can mimic the natural processes in a forest that provide for the growth of younger otherwise suppressed trees” did not refer to all trees, only those that would otherwise be suppressed.

142. Ms Ashby said that basal hollows can grow over time if the internal architecture allows for fungus, termites or other animals that make the hollow larger and increase the number of species that can make use of a hollow, subject to normal attrition of trees.

143. Ms Ashby said at the locations she inspected she observed that regrowing vegetation around the stumps of the trees unlawfully felled did not look any different to any other part of the forest she saw. She did not see any evidence of recent animal use in the area. She accepted that some fauna that use basal hollows don’t scratch.

144. Ms Ashby said that giant trees are more likely to have hollows or develop hollows. The loss of canopy might affect sub-canopy shade-tolerant fruit trees if they were hypothetically there. She did not see any during her inspection. There was dense native vine regrowth and lantana.

145. Ms Ashby was cross-examined about her findings on the impacts of the offences on various particular species. Ms Ashby said she did not observe species crossing gaps in the canopy in this forest but has observed that in other forests doing other research projects. Asked why she said that four trees should be replaced or retained for each tree unlawfully felled her opinion was based on the Gibbons Report. When asked whether lightweight 3D printed hollows were experimental Ms Ashby said that it is an active area of research. Ms Ashby said that she believed there was some work demonstrating the efficacy of lightweight 3D printed hollows in a north coast State Forest but she was unsure whether it was published and could not point to it exactly.

Submissions on harm

146. The EPA submitted that where there was a disagreement about the impact on threatened species, that Dr Kooyman’s evidence that 18 species may have been harmed by the offences, should be preferred. Ms Ashby’s evidence was narrowly focussed on the nine trees the subject of the offences referred to in the context of habitat loss and failed to recognise the overall value of giant trees in particular in the forest ecosystem. Her finding of negligible harm was in the context solely of habitat loss. Dr Kooyman’s evidence in report 1 was more wholistic and extensive about the types of harm arising from the offences. The removal of the giant trees removed a key structural element of the forest which protected not only habitat but ecological processes. Dr Kooyman’s opinion was that the ecological impacts of the felling of these trees included those listed in [119] above. The FCNSW bears an onus of demonstrating that the harm is negligible given that the EPA does not submit that the harm caused is aggravating. The harm caused by the giant trees offence is greater than in relation to the hollow-bearing trees given the evidence about structural importance of giant trees to the forest.

147. The FCNSW submitted the offences caused negligible harm, relying on Ms Ashby’s conclusion which was not challenged in cross-examination.

Finding on environmental harm arising from ecological evidence

148. Section 13.12(1)(a) refers to harm caused or likely to be caused by an offence. In Environment Protection Authority v Whites Timber Products Pty Ltd [2024] NSWLEC 135 at [116]-[117] I said:

Section 13.12(a) of the BC Act refers to harm or likely harm caused by the commission of an offence. Harm is not defined in the BC Act. The dictionary meaning is to ‘injure’, ‘damage’, ‘hurt’, Macquarie Dictionary (online ed, accessed October 2024). Similar provisions exist in s 241 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The POEO Act does include a definition of harm to the environment (alteration of the environment, widely defined, which causes degradation). In Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 74 at [49] I considered the meaning of likely harm as ‘a real or not remote chance or possibility regardless of whether it is less or more than a fifty percent chance’ citing Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44]. In Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 (EPA v Waste Recycling) Preston CJ held at [145]:

[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.

While potential harm is not synonymous with likely harm in that it has a lower threshold of application, it has been considered relevant in many statutory contexts considering environmental harm and can be considered under s 13.12(2).

149. The challenge of considering ecological evidence when applying the criminal standard of proof beyond reasonable doubt if making findings adverse to the Defendant arises. Contrary to the EPA’s submission that the onus of proof rests on the Defendant to establish that any harm was negligible because an allegation of significant harm was not made, where matters are not agreed the EPA bears the onus of establishing the level of harm it alleges beyond reasonable doubt. Dr Kooyman considered there was actual harm arising from the loss of the nine trees due to their inherent structural significance in the forest ecosystem, particularly in relation to the giant trees, the importance of which he described at a general level in report 1. On the other hand, Ms Ashby considered the large number of giant trees, hollow-bearing trees and other retained trees kept in compartments 32, 33 and 34 identified in the multiple harvest review plans in her evidence, and in the adjoining areas of forest, in concluding that any harm caused was negligible.

150. I agree with the EPA’s observation that Ms Ashby’s evidence is more narrowly focussed on habitat loss compared to Dr Kooyman’s evidence. Dr Kooyman considers the wider ecological importance of the trees cut down focussing on the giant trees in contrast to Ms Ashby’s focus on the small number of trees removed compared to the relatively large number of trees kept.

151. Considering additive or cumulative impact presents another challenge for ecological evidence in the forestry context. The FCNSW emphasised that legal forestry practices lead inevitably to environmental harm through the removal of trees from the forest ecosystem and the use of machinery for tree removal (categories (1) and (2) as described in [136] above). It emphasised that relevant harm can only arise from any additional harm of the same type caused by the removal of the trees the subject of charges (categories (3) and (4) as described in [136] above). Its submissions implicitly criticised Dr Kooyman’s evidence that harm was additive (by which I understood he meant cumulative) because he did not isolate the harm arising from the offences from the harm arising from lawful forestry operations. That any harm is inherently additive does not undermine its occurrence. It does make it difficult to quantify the extent of that harm or likelihood or potential for harm beyond identifying that any such harm caused by lawful forestry activities also occurred when the nine trees were cut down unlawfully. To the extent there was actual harm it is unquantifiable and not significant.

152. In relation to potential for impact on the 27 threatened species identified by Dr Kooyman in his first report, the EPA attached a summary table to its submissions which identified agreement and disagreement between the two ecologists. As identified above in [128] Dr Kooyman agreed with Ms Ashby in his fourth report that some species identified would not be impacted. The ecologists disagreed about the extent of impact on and the number of other species which might be impacted. I was invited to resolve the disagreement by accepting Dr Kooyman’s opinion. I am unable to do so on the state of the evidence presented given the EPA bears an onus to establish matters adverse to the FCNSW beyond reasonable doubt and given the expertise of both experts. Neither expert was challenged in relation to their expertise. Consequently I accept the agreed evidence that there is potential for harm to three threatened and endangered species (the white-eared monarch, common planigale and the koala) as a result of the offences but given Ms Ashby’s unchallenged evidence that the actual harm caused was negligible, any potential for harm was very small.

Amicus curiae presentation on environmental harm

153. I considered the possible role for the community in sentencing for environmental crimes in Environment Protection Authority v Forestry Corporation of NSW [2024] NSWLEC 84 at [24]-[36] in ruling on the Bellingen Environment Centre Incorporated’s (BEC) application to participate as an amicus curiae. I observed that a government regulator’s ability to represent all relevant aspects of community concern about environmental protection is not a given. I allowed Dr Corkill on behalf of the BEC to participate to a defined and limited extent as amicus curiae at the hearing.

154. Dr Corkill presented information to the Court on the very high conservation significance of WCCSF in the opinion of the BEC. Important context for this opinion is a proposal by the BEC and other environmental conservation organisations for the Great Koala National Park (GKNP) presented to the NSW Government. Dr Corkill emphasised that the area has been proposed as the GKNP because of its significance as koala habitat and has high conservation value. The BEC which was incorporated in 1990 and other community groups funded research by an ecologist which underpinned their submissions in support of the GKNP to the NSW Government. Dr Corkill submitted that the compartments where the offences occurred are considered by the BEC to be of key conservation value due to forming part of a chain of connecting koala habitats so that harm caused by the offences included harm to the functionality of that key chain.

155. Koalas were listed as endangered by the Commonwealth Government as provided by s 178 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in February 2022. The threat of extinction level for koalas was upgraded from vulnerable to endangered (meaning a high risk of extinction) under Sch 1 Pt 2 of the BC Act in May 2022 by the NSW Government.

156. After the main hearing on sentence in June 2025 the NSW Government announced by press release on 8 September 2025 its intention to create the GNKP over 176,000 hectares which includes the area the subject of these offences, Minister for Environment and Heritage (NSW), ‘Support for the Great Koala National Park’ (Media Release, 8 September 2025).

157. The offences in their terms are not expressly directed to loss of koala habitat in the sense that other provisions in the CIFOA deal directly with the requirement to protect koala habitat. The undisputed evidence of Dr Kooyman is that two of the trees the subject of the offences are koala feed trees (Eucalyptus saligna). Dr Kooyman and Ms Ashby jointly identified koalas as one of the threatened species potentially impacted by the offences, although they did not agree on the extent of that impact.

158. I consider the concerns of the community as represented by the BEC are a relevant consideration in relation to the extent of environmental harm caused by the offences in emphasising the significance of the WWCSF as koala habitat. This evidence also provides important social context for the significance of the offences in the local community, a relevant sentencing consideration given the importance of retribution and denunciation.

Practical measures that may be taken to prevent, control, abate or mitigate harm caused or likely to be caused by the commission of the offence s 13.12(1)(b)

159. The FCNSW accepted that practical measures could have been taken to prevent the giant trees offence. Mr Chaudhary’s second affidavit identified measures taken since the offences to ensure better compliance with CIFOA obligations.

160. No evidence in relation to the HBT offences was led by the EPA which identified deficiencies in how the forest technicians were trained to identify hollow-bearing trees. No evidence identified any failure in the field in the forest technicians’ search. While there was some cross-examination of the Practices Manager about training of forest technicians in relation to hollow-bearing trees, no submission was made which suggested deficiencies in the training provided on the identification of hollow-bearing trees. The EPA encouraged the Court to read Dr Kooyman’s report 2 as that would provide some limited assistance but, as noted above in [99], it does not assist in drawing any conclusion about what could have been done differently. Accordingly, on the current evidence no practical measures which could have avoided the HBT offences can be identified.

161. In relation to mitigation, as a result of recommendations of Ms Ashby, the FCNSW has permanently retained 36 additional trees, 24 future large and 12 future hollow-bearing trees since the offences, reflecting a ratio of 4:1 replacement (the CIFOA mandates a replacement ratio of 1:1). The FCNSW engaged a company to provide and install 12 lightweight 3D printed hollows (as pictured in Exhibit 2) in four locations in the vicinity of the lost trees. Mr Chaudhary was advised these installations occurred on 1 May 2025.

Extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the offence s 13.12(1)(c)

162. To the extent that harm or likelihood of harm has been established as found above that harm was foreseeable by the FCNSW.

Extent to which the person who committed the offence had control over the causes that gave rise to the offence s 13.12(1)(d)

163. The FCNSW accepts it had control over the causes of the giant trees offence and the HBT offences.

Whether the offence was committed for commercial gain s 13.12(1)(f)

164. The EPA did not contend the offences were committed for commercial gain other than in the very general sense that the FCNSW is a commercial enterprise. The objectives require the FCNSW to ‘be a successful business’ and to this end ‘to operate at least as efficiently as any comparable businesses’ and ‘to maximise the net worth of the State’s investment in the Corporation’; see s 10 of the Forestry Act. The FCNSW contended that while the offences occurred in the context of a commercial operation that is not an aggravating feature. I agree with the FCNSW given its objective arises as a statutory corporation tasked with utilising forest resources of the State. It is not a private for profit entity to which such considerations more readily apply.

Other relevant matters s 13.12(2)

Cultural harm - Negative impact on Gumbaynggirr Nation

165. I will take into account as part of the sentencing process the negative impact of the offences in causing cultural harm to the Gumbaynggirr Nation. Dr Marshall, traditional owner and knowledge holder in Gumbaynggirr Country and cultural ecologist, swore an affidavit dated 7 March 2025. Dr Marshall is authorised to speak for Gumbaynggirr Country. Dr Marshall identified specific impacts of the offences on Gumbaynggirr men and women and general impacts on cultural landscape and ecology. Loss of hollow-bearing trees would remove habitat for Gumbaynggirr totem species. The harm caused by the offences is harm to Gumbaynggirr culture, emotional wellbeing, spiritual wellbeing and Gumbaynggirr people personally. Dr Marshall described the loss of the giant trees as part of the ‘death by 1000 cuts’ of Gumbaynggirr culture and its key indicators. As species and flora in Gumbaynggirr Country are affected, Gumbaynggirr culture, intergenerational knowledge, and identity is damaged. Giant and large old trees hold significant cultural value and their loss permanently affects connection with ancestry and culture. Giant and large old trees are also used as points or location guides and loss leads to loss of directional indicators, which further impacts culture. Loss of koala habitat or food is also a significant loss as koalas are significant for Gumbaynggirr Country.

166. Mr Kelly of the Budaabang clan of the Gumbaynggirr Nation carries forward the legacy of his ancestors to represent his wider community and uphold cultural values. He feels obligated to protect traditional areas including areas within WCCSF. Trees are totems and homes of totems of Gumbaynggirr people. Mr Kelly is the CEO of the Yurruungga Aboriginal Corporation (YAC). In or about 2023 the YAC successfully applied to the Commonwealth Department of Climate Change, Energy, Environment and Water to begin consultations on an Indigenous Protected Area for the Bellinger Valley.

167. Mr Kelly observed the stumps of the nine unlawfully felled trees on 18 February 2025. Observing the damage done to the trees caused him significant mental anguish and distress and it was evident to him that the post-harvest landscape in the immediate vicinity of the felled trees was significantly damaged. Mr Kelly said the unlawful removal of the felled trees was particularly damaging to Gumbaynggirr cultural values and spiritual connection.

168. Mr Kelly said that each species listed by Dr Kooyman in one of his reports as species likely to have been affected by the unlawful logging have cultural significance to Gumbaynggirr people. The offences had severed ancestral ties, disrupted symbiotic relationships, and caused irreparable cultural loss. Mr Kelly called for recognition and respect and understanding of the profound impact of this destruction. It is a wound that will continue to affect his community for generations.

169. Ms Buchanan, senior lore woman and medicine woman of the Gumbaynggirr Nation, swore an affidavit dated 9 March 2025 which annexed a statement on the harm caused by the logging and cutting down of sacred trees in WCCSF**.**

Finding on objective seriousness

173. Cultural harm must also be considered as articulated in the evidence of Dr Marshall, Mr Kelly and Ms Buchanan. The offences have caused actual environmental harm to the extent articulated above at [151] and potential for environmental harm as articulated above at [152].

174. The offences occurred in a location which the principal regional environmental conservation organisation considers to be of very high conservation significance for the endangered koala. This view has recently been accepted by the NSW Government in the wider context of the establishment of the GKNP. The number of trees unlawfully removed is relatively small viewed in the context of the number of retained trees identified on the maps attached to Ms Ashby’s report but the structural significance of the giant trees I accept is significant as identified by Mr Kooyman.

175. The giant trees offence is ‘rolled up’ comprising six individual contraventions of the relevant CIFOA condition which is relevant to how its seriousness is assessed; EPA v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [159] citing Johnston v R [2017] NSWCCA 53 at [68]-[70]. The seriousness of the offence is increased by the number of trees the subject of the offence. I consider the giant trees offence is of a low level of medium objective seriousness.

176. The hollow-bearing trees offences which each represent one tree are of low objective seriousness.

Subjective factors

Aggravating factor, prior conviction s 21A(2)(d)

177. The FCNSW has earlier convictions summarised below:

| Case | Offence | Plea | Penalty | | Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 | 1 x offence against s 120(1) of POEO Act (waste pollution) | Early guilty plea | total fine of $30,000 after 25% discount (max penalty: $250,000 for corporation) | | Director-General*, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales* [2011] NSWLEC 102 | 1 x offence against s 175(1)(a) of National Parks and Wildlife Act 1974 (NSW) (NPW Act) | Early guilty plea | $5,600 payable Office of Environment and Heritage (OEH) for a specific project (max penalty: $22,000 for corporation, jurisdictional limit of Local Court applied) | | Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 | 1 x offence against s 120(1) of POEO Act 1 x offence against s 133(4) of NPW Act (repealed) | Early guilty pleas | $35,000 total after 25% discount (max penalty: $1,000,000 for corporation s120(1); $22,000 for corporation s 133(4)) | | Chief Environmental Regulator of the Environment Protection Authority v Forestry Corporation of New South Wales [2017] NSWLEC 132 | 1 x offence against s 133(4) of NPW Act (repealed) | Guilty plea | $8,000 after 20% discount and a publication order (max penalty: $22,000 for corporation) | | Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 | 4 x offences against s 2.14(4) of Biodiversity Conservation Act 2016 (NSW) | Guilty pleas | $135,600 total after 25% discount; moiety of 50% to EPA and a publication order (max penalties: $440,000 for tier 3 and $110,000 for tier 4 offences) | | Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 75 | 3 x offences against s 69SA(1) of Forestry Act 2012 (NSW) | Guilty pleas | $230,000 total after 25% discount Ordered to undertake an audit, produce a report and implement recommendations. Moiety of 50% paid to EPA and a publication order. (max penalty: $2 million for corporation) | | Environment Protection Authority v Forestry Corporation of NSW (Local Court (NSW), 23 December 2023, unrep) | 1 x offence against s 69SA(1) of Forestry Act 2012 (NSW) | Not guilty | $20,000 total with moiety of 50% paid to EPA and a publication order. (max penalty: $2 million for corporation) |

178. Under s 21A(2)(d) of the CSP Act a record of prior convictions is an aggravating factor. The Sentencing Bench Book (Judicial Commission of NSW) states at [10-600] that:

The aggravating factor of prior convictions under s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 should be interpreted in a manner consistent with the proportionality principle in Veen v The Queen (No 2) at 477; R v McNaughton at [30]. Prior criminal record “cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”.

The reference to “aggravating factors” in s 21A(2) does not mean that s 21A(4) should be applied to deprive s 21A(2)(d) of any effect: R v McNaughton at [33]. The words “aggravating factors” in s 21A(2) should not be interpreted as if they were a reference only to “objective considerations”. The aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law: R v McNaughton at [34]. Parliament has not used the word “aggravation” in its common law sense. The text of s 21A(1)(c) (“any other objective or subjective factor”) and s 21A(2)(h) and (j) supports that interpretation. Thus, prior criminal record may be used in the manner set out in Veen v The Queen (No 2) at 477, as a subjective matter adverse to an offender via s 21A(2)(d). The statement by Howie J in R v Wickham [2004] NSWCCA 193 at [24], that “[o]n its face [s 21A(2)(d)] would indicate that a prior criminal record is a matter of aggravation by making the offence more serious”, confines s 21A(2) to objective considerations and is therefore disapproved.

The court in Hillier v DPP (2009) 198 A Crim R 565 and Van der Baan v R [2012] NSWCCA 5 at [34] reiterated the above approach.

179. The above guidance will be applied in considering the subjective circumstances of the FCNSW. No mitigating circumstances under s 21A(3)(e) can arise given the prior convictions.

180. Mitigating factors relevant to this sentencing exercise as referred to in s 21A(3) of the CSP Act are to be considered.

Discount for early guilty plea ss 21A(3)(k), 22

181. An early plea of guilty may entitle a defendant to a discount in penalty in the range of 10-25%; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing). This range is intended to be a guide only, it does not create a presumption or entitlement to a particular discount in a given situation; R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 at [44] (Johnson J, Simpson and Rothman JJ agreeing).

182. All summonses were commenced on 7 July 2022. The plea of guilty to the giant trees offence was prompt being entered on 9 September 2022. A discount of 25% for the early plea for that offence is warranted.

183. The pleas of guilty to the hollow-bearing tree offences were delayed until 6 May 2024. Pleas of not guilty were entered on 28 April 2023 with a trial date of 9 May 2024 being vacated on the change of pleas to guilty. While the FCNSW submitted there was utilitarian value in the delayed pleas of guilty warranting a discount I consider a small discount of 5% is appropriate given the substantial delay in entering them.

Cooperation with Prosecutor ss 21A(3)(m), 23

184. No submissions were made on this topic by FCNSW.

Likelihood of re-offending and prospects of rehabilitation s 21A(3)(g)

185. Mr Chaudhary CEO of the FCNSW swore an affidavit dated 12 December 2024 which set out steps taken by the FCNSW to investigate the offences, consult with the EPA to avoid a repeat occurrence and improve regulatory compliance within the FCNSW.

186. Mr Chaudhary established a compliance assurance team within the FCNSW in around August and September 2020 following the issuing of the SWO in July 2020. The FCNSW increased its investment in environmental compliance including by employing more people to monitor harvesting operations and improving technology for tracking and mapping. The compliance assurance team was said to undertake a range of activities aimed at improving the FCNSW’s approach to compliance. In May 2024 when the EPA issued a new Site-Specific Biodiversity Condition applying to the Southern Greater Glider FCNSW operations were immediately shut down while plans and procedures were updated to ensure the FCNSW could comply with the changes. In accordance with its renewed focus on compliance, in 2021 the FCNSW agreed to undertake a series of voluntary measures beyond the requirements of the CIFOA to assist prompt post-fire forest recovery in areas of forest burnt in the Black Summer bushfires. Mr Chaudhary was aware that the FCNSW responded as fully and comprehensively as possible through the investigation of the offences.

187. Mr Chaudhary was cross-examined. He was taken to his affidavit sworn 30 November 2023 for the purpose of sentencing in relation to the Mogo State Forest prosecution; see Environment Protection Authority v Forestry Corporation of NSW (Local Court (NSW), 23 December 2023, unrep). Due to his concern about the commission of the offence Mr Chaudhary caused a copy of the Local Court’s judgment in the Mogo State Forest prosecution to be given to the FCNSW’s executive team and board of directors. Mr Chaudhary understood that the fault in the Mogo State Forest prosecution was directly that of the FCNSW, because the FCNSW is charged with the responsibility of identifying those forest features and failed to do so. Mr Chaudhary accepted that the responsibility was with forest technicians employed by the FCNSW to mark hollow-bearing trees for retention during a BAHS so that contractors did not cut down those trees. Mr Chaudhary accepted that the cause of the offences in the Mogo State Forest prosecution was that hollow-bearing trees had not been marked for retention by forest technicians.

188. Mr Chaudhary understood that what led to the harvesting of the trees the subject of these offences was the failure of FCNSW forest technicians to identify the nine trees as qualifying as either giant or hollow-bearing trees, so that they were not marked and the contractors harvested them. Mr Chaudhary said that the primary responsibility for conducting the BAHS was with FCNSW staff and therefore the primary responsibility for the offences was with the FCNSW, not the contractors it engaged.

189. The EPA focussed on the FCNSW’s prior offences to submit that the Court could not conclude that the FCNSW was unlikely to re-offend. This factor however requires close consideration of the particular offence before the Court and a defendant’s response to that offence. The prior record of the FCNSW while not irrelevant should not receive unnecessary emphasis in this context.

Good character of defendant s 21A(3)(f)

193. The FCNSW submitted that it was of good corporate character relying on the affidavit evidence of Mr Chaudhary. The EPA submitted that the Court has previously formed the view the FCNSW cannot be regarded as being a good corporate citizen, relying on EPA v Forestry Corporation of New South Wales [2022] NSWLEC 75 at [59] (Moore J), and the same conclusion should be reached here.

194. I do not agree with the EPA that Moore J made the clear-cut finding attributed to him in the paragraph relied on. Justice Moore appropriately weighed up various matters in discussing the FCNSW’s prior record in the context of the offence(s) before him and did not make an explicit finding. That is the appropriate response in this matter. Weighing against a finding of good character is the prior record of the FCNSW, with the offences before me following the three offences under s 69SA(1) heard by Moore J in 2022 and the offence under s 69SA(1) heard in the Local Court in 2023. I will not make an explicit finding of good character given these circumstances but I have accepted the evidence of Mr Chaudhary and others identifying the measures taken by the FCNSW to respond to the offences and that the FCNSW has good prospects of rehabilitation.

Remorse and contrition s 21A(3)(i)

195. Section 21A(3)(i) provides that remorse may be taken into account but only if an offender has provided evidence that he or she has accepted responsibility for his or her actions, and has acknowledged any injury, loss or damage caused by those actions, or made reparation (or both). Mr Chaudhary CEO of the FCNSW attended the sentencing hearing, swore two affidavits and was cross-examined. Mr Chaudhary’s 12 December 2024 affidavit expressed contrition and remorse on behalf of the FCNSW. He acknowledged that the offending resulted in real environmental harm and was cognisant of the cultural impact the offences may have had on Indigenous communities. Mr Chaudhary said he will continue to promote a culture of compliance at the FCNSW and affirmed that the FCNSW takes its environmental and legal responsibilities seriously. The FCNSW acted promptly after the actions giving rise to the offences were identified by the EPA. Amended instructions which accorded with the strict interpretation of the CIFOA were provided to FCNSW forest technicians inter alia. Measures taken to ameliorate the harm have been implemented.

196. Mr Chaudhary’s expression of contrition and remorse is supported by actions taken by the FCNSW and can be considered as a matter in mitigation.

197. The FCNSW participated voluntarily in a restorative justice process which can also be considered in relation to contrition and remorse. I will consider the process next.

Restorative justice process

198. The nature and purpose of restorative justice generally and as applied in environmental matters were identified in Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 at [41]-[45] (Garrett) which was the first time such a process occurred in a sentencing process before the Court. Chief Justice Preston first identified in the United Nations Office on Drugs and Crime Handbook on Restorative Justice Programmes (United Nations, New York, 2006) the five underlying assumptions of a restorative justice program:

(a) That the response to crime should repair as much as possible the harm suffered by the victim; (b) That offenders should be brought to understand that their behaviour is not acceptable and that it had some real consequences for the victim and community; (c) That offenders can and should accept responsibility for their actions; (d) That victims should have an opportunity to express their needs and to participate in determining the best way for the offender to make reparation; and (e) That the community has a responsibility to contribute to this process.

199. The objectives include:

(a) Supporting victims, giving them a voice, encouraging them to express their needs, enabling them to participate in the resolution process and offering them assistance; (b) Repairing the relationships damaged by the crime in part by arriving at a consensus on how best to respond to it; (c) Denouncing criminal behaviour as unacceptable and reaffirming community values; (d) Encouraging responsibility taking by all concerned parties, particularly by offenders (e) Identifying restorative, forward looking outcomes; (f) Reducing recidivism by encouraging change in individual offenders and facilitating their integration into the community; and (g) Identifying factors that lead to crime and informing authorities responsible for crime reduction strategy.

200. Restorative justice processes originated in drug-related crime, reflected in the source of the assumptions and objectives set out above. The application of such processes has expanded substantially since the early 2000s into diverse areas of criminal law including in environmental crime as I noted in E**nvironment Protection Authority v Forestry Corporation of NSW [2024] NSWLEC 84 at [27]. Such processes enable prosecutors and defendants to agree to participate in consultative processes involving affected members of the community enabling all aspects of harm arising from a particular environmental offence to be considered.

201. The EPA and the FCNSW told the Court that they wished to pursue a restorative justice process in the course of pre-trial preparation for the sentencing hearing following pleas of guilty to all offences being entered. The EPA and the FCNSW voluntarily committed to undertake a restorative justice process which included a restorative justice conference (RJC) before the sentencing hearing. An experienced facilitator Mr McDonald was engaged. The FCNSW funded the process at a cost of $148,744.35.

202. Mr McDonald undertook preparatory work for the RJC by reviewing documents provided by the EPA and the FCNSW about the offences. In total, 49 FCNSW and EPA employees, Gumbaynggir representatives, community representatives and BEC representatives were interviewed. In the interviews participants were asked to talk about their understanding of what happened, how it happened and what they understood and experienced as the impacts of the offences. This helped to determine the composition of the RJC.

203. The RJC was held on 8 and 9 April 2025 facilitated by Mr McDonald and his staff. There were 26 participants in total. The conference brought together 3 Gumbaynggirr men and women, 11 FCNSW officers including senior management and the CEO of the FCNSW, 10 EPA officers including senior management and the CEO of the EPA, Mr McDonald and a support officer, a forest chaplain, and a professor and chair of the restorative justice unit at the Australian National University. The RJC report was prepared by Mr McDonald following the conference. This identified the process undertaken leading up to the two-day conference, what was discussed during the conference and the outcome of discussions at the conference which were wide-ranging in scope. The discussions lead to the drafting of an agreement about ten future actions which all who attended agreed with. The additional orders sought by the EPA at [236] are based on that agreement.

FCNSW response to restorative justice process

204. Mr Chaudhary’s second affidavit dated 12 May 2025 stated that he arranged for copies of the affidavits of Ms Buchanan, Mr Kelly and Dr Marshall (above in [165]-[169]) to be provided to the FCNSW’s executive leadership team and members of the board. During the restorative justice conference the FCNSW undertook to take a series of measures to make amends for its offences and build longer term partnerships with the local Gumbaynggirr community. Mr Chaudhary said he found the restorative justice process invaluable and reiterated the FCNSW’s sincere regret and remorse for the offences and harm.

205. An outcome of the restorative justice process is that the EPA and the FCNSW have agreed to a number of activities involving the local Gumbaynggir community as proposed in Annexure B to this judgment which are intended to become part of the orders to be made by the Court as part of this sentencing process. Section 13.25(2) of the BC Act states that the Court can make a restorative justice activity order, requiring a defendant to carry out any social or community activity for the benefit of the community or persons that are adversely affected by the offence that the offender has agreed to carry out.

206. Mr Kelly CEO of the YAC also swore an affidavit dated 11 June 2025 in which he stated, as CEO and authorised officer of the YAC, that the YAC is willing and able to receive, expend and account for any monies to be paid in accordance with additional order 8 and Annexure B to the additional orders. The extensive measures identified in Annexure B include the facilitation of a healing ceremony on Gumbaynggir Country, development of a biocultural repair plan in consultation with Gumbaynggir People, engagement with Gumbaynggir People in further harvesting plans on Gumbaynggir Country, cultural mapping for the Indigenous Protected Area Proposal for the Bellinger Valley and establishing the Gumbaynggir Guardian ranger program.

207. It is appropriate that such an order pursuant to s 13.25(2) of the BC Act be made. I consider further below in the context of the penalties to be imposed the implementation of these orders.

208. The FCNSW’s substantial participation is relevant to support its expression of contrition and remorse. The expression of remorse by senior FCNSW officers throughout the process is recorded in the RJC report.

209. A notable aspect of the restorative justice process from my perspective is that the local environmental group the BEC who were given leave to appear as amicus curiae chose not to participate when invited to do so. This is entirely their choice. I am not seeking in any way to criticise that decision. I am highlighting that circumstance because arguably not all those persons or entities who had an interest in the circumstances surrounding the offences did participate. It follows that the interests of the amicus curiae and its members which I have considered above were not part of the RJC and any of the activities agreed as follow up did not include input from that important potential participant in the RJC process.

Other sentencing considerations

Deterrence s 3A(b)

210. General deterrence is an important factor when imposing penalties for environmental offences; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 367 (Badgery-Parker J) (Axer). Nominal fines are insufficient for deterrence; Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 at [159] citing Axer at 359 (Mahoney AJA), 367 (Badgery-Parker J, Finlay J agreeing) and Camilleri’s at 701 (Kirby P, Campbell and James JJ agreeing).

211. The sentence should operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed; Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 at [99] citing R v Rushby [1977] 1 NSWLR 594 at 597.

Specific deterrence

212. Specific deterrence as referred to in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2) at 477 (Mason CJ, Brennan, Dawson, Toohey JJ) refers to a defendant who displays ‘uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law’. Given the ongoing nature of the offences in the context of the CIFOA and the FCNSW’s prior convictions for other forestry offences specific deterrence is relevant to this sentencing exercise.

Retribution and denunciation s 3A(a), (f)

213. Purposes of sentencing include providing retribution for and denunciation of the offence.

Even-handedness in sentencing

214. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty; R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Maxwell and Lee JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court; Hoare v R (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) (Hoare). The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts; Hili v R*; Jones v* R (2010) 242 CLR 520; [2010] HCA 45 at 535 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) quoting R v Ruha (2010) 198 A Crim R 430; [2010] QCA 10 at [47]. A history of sentencing in other cases does not limit my sentencing discretion.

215. The cases identified in the table at [177] which are most relevant to consider in relation to even-handedness follow. In Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 75 the FCNSW was convicted of three offences under s 69SA(1) of the Forestry Act for failing to comply with the threatened species license requirements in the IFOA in force for the Southern Region of NSW. The three offences were:

216. The failure to mark the boundary of an environmentally sensitive area as an exclusion zone;

217. Carrying out a specified Forestry Activity in an exclusion zone; and

218. Using harvesting machinery in an exclusion zone.

219. The FCNSW pleaded guilty to the offences. Moore J characterised the offences as being toward, but not at, the lower end of the low range of potential offending conduct. The FCNSW was fined $230,000 total after a 25% discount of penalty. The FCNSW was also ordered to undertake an audit, produce a report and implement recommendations made. A moiety of 50% was paid to the EPA and a publication order was made. The maximum penalty was $2 million for a corporation.

220. In the Mogo State Forest prosecution in the Local Court, the FCNSW was convicted of one offence against s 69SA(1) of the Forestry Act for not retaining four hollow-bearing trees, in breach of site-specific conditions imposed by the CIFOA. The FCNSW pleaded not guilty. Following a hearing on liability the FCNSW was found guilty. The offence was found to be on the low end of objective seriousness. The FCNSW was fined $20,000 total with a moiety of 50% paid to the EPA. The maximum penalty for that offence was $2 million for a corporation, noting there is an upper limit on the penalty able to be imposed in the Local Court.

221. In [2022] NSWLEC 70 the FCNSW was convicted of four offences under s 2.14(4) of the BC Act by:

Totality

221. Where a defendant is being sentenced for more than one offence, the aggregate or overall sentence must be ‘just and appropriate’ to the totality of the offending behaviour; Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 at [623] quoting Mill v R (1988) 166 CLR 59; [1988] HCA 70 at 63; Jindalee at [156].

Proceedings could have been commenced in the Local Court

222. I take into account that for both offences proceedings in the Local Court could have been considered where the maximum penalty is $110,000, a relevant factor identified in Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [95]-[99] (Harrison) (Simpson J, Hall and Schmidt JJ agreeing) citing R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [93]. As identified in Harrison the significance of the circumstance varies from case to case, at [42]. The circumstances of these offences do not suggest that prosecution in the Local Court was appropriate.

Appropriate penalty

223. The Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a ‘value judgment as to what is the appropriate sentence given all the factors of the case’; Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at 132 unanimously following Markarian at 378 (McHugh J). The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant; see Veen v R (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen (No 2*)* at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-1 (Deane J). The sentence should not exceed what is ‘justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances’; Hoare at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) citing Veen (No 2) at 472, 485-6, 490-1, 496.

224. Weighing up the objective and subjective factors for each offence I consider the following penalties would be warranted if these were to be imposed:

225. Giant trees offence: $400,000 reduced by 25% for early plea of guilty to $300,000

226. HBT offence 2022/198793: $140,000 reduced by 5% for early plea of guilty to $133,000

227. HBT offence 2022/198795: $140,000 reduced by 5% for early plea of guilty to $133,000

228. HBT offence 2022/198798: $140,000 reduced by 5% for early plea of guilty to $133,000.

229. Applying the totality principle, I would have reduced the penalties as follows:

230. Giant trees offence reduced to $250,000

231. HBT offence 2022/198793 reduced to $100,000

232. HBT offence 2022/198795 reduced to $60,000

233. HBT offence 2022/198798 reduced to $40,000.

234. The EPA and the FCNSW have requested that no monetary penalty be imposed. Rather as part of making a restorative justice activity order an amount equivalent to what would have been imposed as a penalty should be paid to the YAC with the expectation that the agreed activities be undertaken by that corporation in accordance with those specified in annexure B. While I do not consider the restorative justice process and its outcome is a substitution for the sentencing process for which the FCNSW is before the Court, given the scale of the orders to be made in addition to the restorative justice activity order, on this occasion I will not impose penalties. I will order payment by the FCNSW of the equivalent of the penalties I would have imposed to the Yurruungga Aboriginal Corporation to assist in achieving the restorative justice activity order specified in Annexure B.

Additional orders under BC Act

227. Section 13.19 of the BC Act provides that orders can be made as part of sentencing in addition to any penalty being imposed. Under s 13.20 orders can be made for restoration and prevention. Section 13.25 specifies a number of further orders that may be made. The EPA seeks a publication order, an audit and training order, remediation orders and restorative justice activity orders.

228. The EPA and the FCNSW have agreed orders requiring an audit of searches for giant trees and hollow-bearing trees to be conducted as specified below in orders 3-7. The audit cost was estimated to be $34,250. Such orders are appropriate in the circumstances of these offences.

229. Orders giving effect to the restorative justice process have also been agreed and are appropriate to be made pursuant to s 13.25(2) as contained in order 8 and annexure B.

230. Other additional orders sought by the EPA are opposed in part or whole by the FCNSW, namely the publication order in terms of its extent and additional orders 9 and 10 in their entirety which are directed to remediation of the offences.

Publication order

231. The EPA seeks an order under s 13.25 of the BC Act that the FCNSW take specified action to publicise the offences (including the circumstances of the offences), their environmental and other consequences, and any other orders made by the Court against the FCNSW, as follows:

Pursuant to section 13.25(1)(a) of the Biodiversity Conservation Act 2016 (the BC Act):

a. within 60 calendar days of this order, FCNSW is to cause the publication of a notice of the offences, the circumstances and consequences of the offences, and the orders made on sentence, in the form set out in Annexure A to these orders (the Notices) in the print and/or digital versions of the following publications within the first 12 pages:

i. The Australian Financial Review;

ii. The Sydney Morning Herald;

iii. The Daily Telegraph;

iv. Northern Rivers Times;

v. News of the Area (Coffs Coast and Nambucca Valley publications);

vi. Australian Forests & Timber News; and

vii. Australasian Timber Magazine.

b. FCNSW must ensure the Notices are published at a minimum size of 14 cm x 14 cm and within the first 12 pages of the print versions of the publications listed in sub-paragraph 2a.

232. Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent, particularly for corporate offenders, who are susceptible to criminal stigma; Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [241]-[244].

233. The FCNSW agrees with the wording proposed. The FCNSW opposes the requirement to publish in seven publications identified by the EPA which it submitted is costly and excessive. The FCNSW’s Corporate Affairs Manager swore an affidavit dated 12 December 2024 which detailed her enquiries regarding compliance with the publication order proposed. Based on correspondence the total cost of the FCNSW fulfilling proposed order 3 in print was estimated at $11,666.65 inclusive of GST. She had been unable to obtain a quote for the digital publication of the notices in order 3 and understood that digital advertisement sizes do not accommodate the amount of text set out in the notice.

Finding on publication order extent

234. The purposes of a publication order have been considered on numerous occasions including in Environmental Protection Authority v Crown in Right of New South Wales [2019] NSWLEC 178, Duggan J at [84] identifying that the Court’s discretion to impose such an order is wide, such orders serve as a deterrent to environmental crime and improve the effectiveness of sentencing for environmental crime, and should not be considered in determining the amount of any monetary penalty inter alia.

235. The publication order as sought by the EPA will be made in light of the considerations referred to in the previous paragraph.

Proposed orders 9 and 10

236. The EPA also seeks additional orders (9 and 10) which are opposed by the FCNSW. The orders state as follows:

In proceedings 2022/198791 [giant trees offence]:

9 Pursuant to section 13.20(1)(b) and (d) of the BC Act, an order that the FCNSW identify, record, map and permanently retain in accordance with Protocols 23 and 39 all live tree species with a diameter at stump height over bark of 100 centimetres or greater in any part of any operational area in Wild Cattle Creek State Forest.

In proceedings 2022/198793, 2022/198795, 2022/198798 [HBT offences]:

10 Pursuant to section 13.20(1)(b) and (d) of the BC Act, an order that the FCNSW identify, record, map and permanently retain tree retention clumps as defined in the CIFOA in all parts of an operational area in accordance with Condition 63 of the CIFOA and Protocols 22 and 39 which comprises at least eight per cent of the base net area in each compartment in the regrowth zone of Wild Cattle Creek State Forest.

237. I note that after the main sentencing hearing the NSW Government announced the creation of the GKNP and an immediate moratorium on logging in areas including WCCSF. The parties informed the Court of this development at further listings of the matters in October and December 2025. In December 2025 the parties advised jointly that there was still potential utility in making the proposed orders 9 and 10.

238. The parties disagreed on whether and how the onus of proof operated in relation to the making of orders under s 13.20. The EPA submitted that it did not have to establish the reasonableness of making an order beyond reasonable doubt, as it is not a finding of fact relevant to sentence arising from s 141 of the Evidence Act or from Olbrich. Such orders are ancillary. The EPA accepted that given the nature of the orders sought a high degree of satisfaction was required. The FCNSW submitted that the EPA had to establish matters supporting the making of such orders beyond reasonable doubt. Both proposed orders were opposed by the FCNSW as being completely disproportionate to the harm caused by the offences. I do not consider I need to resolve the matter of onus as I find below that the EPA has not provided the necessary high degree of satisfaction required to impose proposed orders 9 and 10.

Evidence relevant to additional orders 9 and 10

239. The EPA relied on the third expert report (report 3) of Dr Kooyman dated 15 August 2024 in which he responded to various questions posed by the EPA. The EPA’s questions included:

In relation to the proposed additional order with respect to summons 2022/198791 [proposed order 9], would an order in those terms facilitate a reasonable additional measure of habitat protection in terms of both habitat retention and recruitment to make good the damage to animals, plants and their habitat caused by the unlawful removal of the six giant trees?

In relation to proposed additional order 2 [proposed order 10] in proceedings 2022/198793, 2022/198795, 2022/198798, would the proposed increase from 5% of the base net area in each compartment, (per condition 63.1(a) of CIFOA), to 8% of the base net area in each compartment facilitate a reasonable additional measure of habitat protection in terms of both habitat retention and recruitment of habitat trees to make good the damage to animals, plants and their habitat caused by the unlawful removal of the three hollow-bearing trees?

240. Dr Kooyman’s opinion was that the retention of all trees ≥ 100cm DSHOB would provide a reasonable additional measure of habitat protection and improved habitat tree retention over time. Those factors would help to ameliorate the existing negative impacts of the unlawful felling of the six giant trees. The application of the order in WCCSF would secure and protect an adequate age and size class representation of recruitment trees to maintain extant habitat values and offset natural attrition rates. The application of the order would mitigate consequences of increased exposure to attrition resulting from harvesting operations. Dr Kooyman stated that trees at the ≥ 100cm DSHOB size class are the most likely to meet the definition of ‘giant tree’ in Protocol 39 of the CIFOA in future. It would take over 100 years for Blackbutt species to reach giant tree size from the 100cm DSHOB size.

241. In Dr Kooyman’s opinion increasing retention from 5% to 8% of the base net area in each compartment would facilitate improved habitat protection in terms of both habitat retention and recruitment of habitat trees. In his opinion this would be a reasonable additional measure to make good the damage caused by the unlawful removal of the hollow-bearing trees. The application of this order across any part of any operational area in WCCSF would protect an adequate area to make good the damage caused by the unlawful removal of the hollow-bearing trees.

242. Dr Kooyman stated that not all proposed additional retained trees with ≥ 100cm DSHOB would achieve sizes prescribed for retention as giant trees. Set against the backdrop of detected and modelled declines in large trees in forestry landscapes additional orders 9 and 10 would facilitate a reasonable additional measure of habitat protection.

243. In his fourth report Dr Kooyman commented on forest biometrician Ms Baalman’s recommended alternative to additional orders 9 and 10 (see below in [252]-[254]). Ms Baalman’s recommendation was based on the statistical presentation of growth and yield data for WCCSF and additional temporary plot-based samples from areas of State Forest in the region (using a 40km radius) and subsequently the whole of the North coast. Dr Kooyman stated the areas included in the evaluation included a range of forest ecosystem types not representative of the tall wet forest in WCCSF the subject of these prosecutions. He criticised the sampling as not statistically suitable as it included only 19 temporary plot-based samples for WCCSF with eight trees greater than 80cm DSHOB. The use of temporary plots was problematic because they would be moved regularly, would not provide a sample over time, and the size of the plots was not identified. A very small area of WCCSF was sampled; Dr Kooyman calculated 0.00044% of the forest area. Further, additional plots (218) were subsequently added and the data from these plots confirmed large diameter trees including giant trees and hollow-bearing trees were extremely scarce across the region.

A. The third report, so what preceded that, there may have been - I’d have to look at my - my - what I’ve included previously, whether I referred to those size classes. Some of it would have referred to - to large trees with hollows arriving at a hollow forming size at around 80 to 100 centimetres plus, so - so those - those diameter measures would have been previously referred to, and in that context, I suspect they have been picked up, but I - that’s - that’s just--

Q. You’re guessing.

A. I’m guessing.

…

Q. The point of my question is I’m trying to understand where it is from your point of expertise that you have been able to form the opinion that the appropriate order the Court should make for my client to provide restoration is to, firstly, choose 100 centimetre diameter, and, secondly, choose that to be measured over stump height.

A. Well, that was in the - my brief.

Q. That was in the instruction.

A. Yes, yes, so - so the - but if I’m - if you’re going to ask me if I’m comfortable with that as an indicator, then the answer is yes, but because it does relate to large trees that have the potential to become larger and have hollows.

246. Dr Kooyman said he took ‘any operational area’ in WCCSF to mean the areas where logging activities would be undertaken. Dr Kooyman did not know offhand the size of the operational areas affected by additional orders 9 and 10 but said it was apparent that the intent of the additional orders was to create a restoration obligation that applied to all 13,635 hectares of WCCSF. That seemed reasonable in terms of an ecological assessment due to natural attrition rates in association with ongoing loss of large trees.

247. When asked whether he accepted there was no correlation between the areas affected by additional orders 9 and 10 and the compartments within which forestry operations were being carried out in WCCSF he said that his interpretation was that the orders were designed to protect the existing large trees and hollow-bearing trees in WCCSF.

248. Dr Kooyman stated that no publications he referred to in report 3 assisted him in determining a ratio for the number of trees or area of forest to be retained which was to be protected by reference to the harm caused by the offences.

249. Dr Kooyman accepted that the CIFOA had provided a ratio of 1:1 in terms of replacing a damaged tree that was to be retained. Dr Kooyman was aware that Ms Ashby had applied a different approach. He rejected her approach of a 4:1 ratio for reasons outlined in his fourth report, including that the study Ms Ashby relied on for that ratio focused on increased fire frequency and could not subsequently be relied on in terms of model projections for replacement of both giant and hollow-bearing trees. By ignoring ‘the additive impact (harm) caused by tree harvesting and increasing potential for fire’ the reliance on that modelling was flawed. He also noted the failure to include giant trees in that discussion and in the study.

250. In cross-examination Dr Kooyman said he was aware that Ms Baalman had attempted to quantify the impacts of additional orders 9 and 10. He understood that Ms Baalman had quantified the orders as providing a ratio for retention of trees at a rate of 3,000 trees for each tree unlawfully felled. He could not point to any publication to support that retention ratio but indicated he did not believe the number of trees affected by the order would be as high as Ms Baalman estimated. Dr Kooyman suggested Ms Baalman’s figures were an overestimation of the impact of the proposed orders.

251. The FCNSW’s Senior Resource Analyst swore an affidavit dated 11 December 2024. He outlined the steps taken and databases utilised to extract, collate and prepare data to provide to Ms Baalman for preparation of her expert report on the practical impacts of additional orders 9 and 10.

252. Ms Baalman prepared an expert report dated 11 December 2024 to provide a statistical opinion on the practical implications of the proposed orders. Ms Baalman based her analysis on data provided by the FCNSW’s Senior Resource Analyst including taper data, strategic inventory data, permanent growth data, and Geographic Information System (GIS) data. From the GIS data Ms Baalman derived summary area values for WCCSF (13,635 hectares) and the WCCSF net harvest area (3,309 hectares) inter alia.

EPA submissions

257. Dr Kooyman’s evidence confirmed that a tree of 100cm diameter is a large tree that will likely grow into the category of a giant or hollow-bearing tree in future. The orders do not duplicate or re-write the CIFOA. The context of the orders is that the CIFOA has not been complied with, resulting in a criminal offence. This enlivens the Court’s power under s 13.20 BC Act to make particular orders requiring measures to be taken to redress the offending. The proposed orders are focussed on the 3,309-hectare net harvest area within the 13,500 hectares of WWCSF. Dr Kooyman criticised Ms Baalman’s evidence in terms of the number of samples considered inter alia. The sample size she used was not adequate from an ecological perspective. Ms Baalman’s estimate of trees affected by additional orders 9 and 10 are likely an overestimation.

FCNSW submissions

258. The FCNSW submitted the additional orders 9 and 10 lacked any rational connection to the harm caused as there is no rational correlation between harm in relevant areas of WCCSF and making orders across the entirety of WCCSF. Dr Kooyman did not propose them. He was asked to comment on measures proposed to him by the EPA. Who identified the measures is not known from the evidence. That Dr Kooyman agreed that they were reasonable measures does not justify their imposition as having any rational connection to the harm. The orders if made would impose a substantial practical and financial cost on the FCNSW as identified in the evidence of Ms Baalman and the Commercial Services Manager. They would rewrite the CIFOA, amendment of which requires a process of approval by ministers and public participation. There are formal mechanisms for variation of controls under the CIFOA, including that the EPA can issue site and species-specific conditions at any time. The purpose of a restoration order must be to restore, not punish.

No basis for additional orders 9 and 10 established

259. The proposed additional orders 9 and 10 lack a proper scientific basis. While Dr Kooyman considered they were appropriate he was unable to provide any methodological justification for them. I am not seeking to be critical of Dr Kooyman as he no doubt did the best he could given his brief. None of his criticisms of Ms Baalman’s evidence were put to her in cross-examination. To the extent the criticisms were of the data she was supplied with by the Senior Resource Analyst, he was also not cross-examined. The scale of impact she identified is best encapsulated by the proposal leading to tree retention at a ratio of 3000:1 in operational areas. The financial impact was identified by the Commercial Services Manager.

260. The EPA has not submitted that harm caused or likely to be caused by the offences was so substantial as to be an aggravating factor. The FCNSW has implemented the replacement of trees at a ratio of 4:1 as recommended by Ms Ashby. Protocol 23.3 of the CIFOA required replacement of a damaged tree at a 1:1 ratio so that the requirements in the CIFOA have already been exceeded. Even if Ms Baalman’s figures are an over-estimation the scale of tree retention sought by the additional orders appears excessive in the context of the loss of nine trees in a wide area. The orders appear to be a disproportionate response to the offences and are not reasonable. I decline to make the proposed additional orders 9 and 10.

Costs

261. Pursuant to ss 257B and 257G of the CP Act the EPA’s recoverable professional costs are to be paid by the FCNSW. The EPA provided a rough oral estimate of costs of $715,000 which it submitted was likely to result in costs payable in the order of $536,000, a substantial amount. The FCNSW asked that costs be reserved so that further discussion about quantum can be entered into with the EPA. I will reserve costs.

Court Orders

262. The Court orders that in proceedings 2022/198791, 2022/198793, 2022/198795, 2022/198798:

263. The Defendant Forestry Corporation NSW is convicted of each offence in each proceeding.

264. Pursuant to section 13.25(1)(a) of the Biodiversity Conservation Act 2016 (NSW):

(a) within 60 calendar days of this order, Forestry Corporation NSW is to cause the publication of a notice of the offences, the circumstances and consequences of the offences, and the orders made on sentence, in the form set out in Annexure A to these orders (the Notices) in the print and/or digital versions of the following publications within the first 12 pages:

(i) The Australian Financial Review; (ii) The Sydney Morning Herald; (iii) The Daily Telegraph; (iv) Northern Rivers Times; (v) News of the Area (Coffs Coast and Nambucca Valley publications); (vi) Australian Forests & Timber News; and (vii) Australasian Timber Magazine.

(b) Forestry Corporation NSW must ensure the Notices are published at a minimum size of 14cm x 14cm and within the first 12 pages of the print versions of the publications listed in Order 2(a) above.

3. Pursuant to section 13.25(1)(d) of the Biodiversity Conservation Act 2016 (NSW), Forestry Corporation NSW is to engage one or more suitably qualified and independent consultants to undertake an audit (the Audit) to:

(a) analyse the internal procedures and policies of Forestry Corporation NSW regarding the allocation of resources to the conduct of searches for the purposes of identifying retained trees under the Coastal Integrated Forestry Operations Approval, including the number of forest technicians and time required to adequately complete searches to adequately identify, map and retain all trees to be retained as required by Conditions 64.2 and 117 of the Coastal Integrated Forestry Operations Approval and Protocol 23; (b) analyse the skills, functions and roles performed by forest technicians to determine the experience, qualifications and competency level required to adequately identify, map and retain giant trees and hollow-bearing trees during searches as required in Conditions 64.2 and 117 of the Coastal Integrated Forestry Operations Approval and Protocol 23; (c) assess the required experience, qualifications and competency level determined under Order 3(b) against the Australian Qualification Framework to determine the appropriate Australian Qualification Framework level and Australian Qualification Framework level criteria for forest technicians engaged to identify giant trees and hollow-bearing trees during searches; (d) assess all training provided to Forestry Corporation NSW’s forest technicians responsible for identifying and mapping giant trees and hollow-bearing trees during searches and determine if this training is fit for purpose and likely to result in those persons meeting the appropriate Australian Qualification Framework level as determined under Order 3(b) above; and (e) provide Forestry Corporation NSW and the Environment Protection Authority with a written report outlining the outcomes of the Audit and making appropriate recommendations arising from Orders 3(a)-(d) above within 90 calendar days of engagement (the Audit Report), or later if agreed by the Environment Protection Authority.

4. For the purposes of Order 3:

(a) within 28 calendar days of the making of these orders, Forestry Corporation NSW is to nominate to the Environment Protection Authority one or more suitably qualified and independent consultants to undertake the Audit, at the same time notifying the Environment Protection Authority of any prior or existing engagement of the proposed consultant or consultants; (b) within 14 calendar days of the nomination under Order 4(a), the Environment Protection Authority is to advise Forestry Corporation NSW if the nominated consultant(s) is approved, and if not, to nominate a consultant(s) who is suitably qualified and independent to undertake the Audit to the Environment Protection Authority’s satisfaction; (c) within 14 calendar days of the Environment Protection Authority approving the nominated consultant(s), or nominating an alternative consultant(s), Forestry Corporation NSW is to provide the proposed letter of engagement to the consultant(s) to the Environment Protection Authority for comment; (d) within 14 calendar days of Forestry Corporation NSW providing the proposed letter of engagement to the consultant(s) to the Environment Protection Authority, including any briefing materials comprising the letter of engagement, the Environment Protection Authority is to provide comments to Forestry Corporation NSW on the letter of engagement; (e) within 14 calendar days of the Environment Protection Authority providing comments on the letter of engagement, the Forestry Corporation NSW is to engage the approved consultant(s) in accordance with the proposed letter of engagement and the Environment Protection Authority’s comments, together with any additional documents that the Environment Protection Authority provides for the assistance of the consultant(s); (f) within 28 calendar days of the date on which Forestry Corporation NSW and the Environment Protection Authority are provided with the Audit Report under Order 3(e), Forestry Corporation NSW is to provide the Environment Protection Authority with a written report outlining the outcomes and any recommendations made by the consultant(s) in the Audit Report, including how the recommendations (if any) will be implemented by Forestry Corporation NSW (the Draft Implementation Plan); (g) within 28 calendar days of Forestry Corporation NSW providing the Environment Protection Authority with the Draft Implementation Plan, the Environment Protection Authority is to provide Forestry Corporation NSW with its comments on the Draft Implementation Plan; (h) within 14 calendar days of receiving the Environment Protection Authority’s comments on the Draft Implementation Plan, Forestry Corporation NSW is to prepare a Final Implementation Plan (the Final Implementation Plan) which addresses the Environment Protection Authority’s comments and provide the Final Implementation Plan to the Environment Protection Authority.

5. Pursuant to section 13.25(1)(g) of the Biodiversity Conservation Act 2016 (NSW), Forestry Corporation NSW is to implement the Final Implementation Plan within 12 months of providing the Final Implementation Plan to the Environment Protection Authority.
6. Within 28 calendar days of implementing the Final Implementation Plan, Forestry Corporation NSW is to provide the Environment Protection Authority with a report on the implementation of Final Implementation Plan (the Final Implementation Report).
7. The Environment Protection Authority may agree to an extension of time in relation to the timeframes specified in orders 3-6.
8. The Court notes the agreement of Forestry Corporation NSW in terms of section 13.25(2) of the B**iodiversity C**onservation Act 2016 (NSW) and orders that Forestry Corporation NSW pay the amount of $450,000 to the Yurruungga Aboriginal Corporation ABN 185 426 721 98 to undertake the restorative justice activities in Annexure B in order of priority, depending on available funds. Forestry Corporation NSW will provide all reasonable assistance to the Yurruungga Aboriginal Corporation to facilitate these activities.
9. Timing on the making of payment(s) as provided for in order 8 is reserved.
10. Costs are reserved.

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ANNEXURE A

Forestry Corporation NSW (FCNSW) has been convicted in the Land and Environment Court for four offences under the Forestry Act 2012 for breaching conditions of the Coastal Integrated Forestry Operations Approval (CIFOA) during forestry operations in Wild Cattle Creek State Forest between June and July 2020.

FCNSW breached the CIFOA by failing to identify, map and record six giant trees and three hollow-bearing trees during broad area habitat searches conducted prior to forestry operations in Wild Cattle Creek State Forest. As a result, these nine trees were unlawfully felled by FCNSW’s logging contractors, so causing harm to the environment.

The prosecution was brought by the NSW Environment Protection Authority (the EPA) and FCNSW pleaded guilty to the offences. On 13 March 2026 the Court convicted FCNSW of each offence and determined that FCNSW should pay a monetary penalty totalling $450,000. The Court ordered FCNSW to pay the amount of the monetary penalty in lieu of a fine to undertake restorative justice activities and bio-cultural repair of the affected locations. The Court also ordered FCNSW undertake an audit of its internal procedures, instruction and training relating to the identification and retention of giant trees and hollow-bearing trees and implement the recommendations of the audit. FCNSW was ordered to pay the EPA’s legal costs as agreed or assessed and publish this notice in State-wide, local and industry publications.

ANNEXURE B

Restorative Justice Activity Order

The Court notes the agreement of the Forestry Corporation NSW in terms of section 13.25(2) of the Biodiversity Conservation Act 2016 and orders that Forestry Corporation NSW carry out the following restorative justice activities and pay the amount of $450,000 to the Yurruungga Aboriginal Corporation ABN 185 426 721 98 to undertake the following projects in order of priority depending on available funds:

Healing ceremony

1. To facilitate a healing ceremony on Gumbaynggirr Country to acknowledge the harm and begin the process of repair and healing following the unlawful felling of the nine trees that are the subject of these proceedings. In facilitating the ceremony, the Yurruungga Aboriginal Corporation may expend available funds on reasonable expenses associated with travel costs for Gumbaynggirr persons attending the ceremony, refreshments for the attendees at the ceremony, costs for support persons for Elders attending the ceremony, cultural immersion for relevant Forestry Corporation NSW and Environment Protection Authority staff and other administrative costs involved in the organisation of the healing ceremony.

Biocultural repair plan development and implementation

2. To develop and implement a biocultural repair plan in consultation with Gumbaynggirr representatives, Forestry Corporation NSW and the Environment Protection Authority that aims to repair and improve the cultural and ecological health of the sites affected by the unlawful felling of the nine trees that are the subject of these proceedings (the Plan). In developing the Plan, the Yurruungga Aboriginal Corporation will undertake detailed site assessments, consult with Gumbaynggirr community and bring Elders and Knowledge Holders on Country to determine the right methods and timing for biocultural repair according to Gumbaynggirr Lore. Activities may include management of weeds and other invasive species and works to replant suitable plants and regenerate the health of the affected sites. The Plan will also outline required monitoring of the sites and review the effectiveness of implementation.

Engagement of Gumbaynggirr People in future harvesting plans on Gumbaynggirr Country

3. To facilitate the involvement of Gumbaynggirr People in a Working Group comprised of representatives from Forestry Corporation NSW, the Environment Protection Authority and the Gumbaynggirr Nation to ensure genuine and meaningful engagement of Gumbaynggirr representatives in the development and implementation of harvest plans and Forestry Corporation NSW activities on Gumbaynggirr Country, including paying the reasonable costs of Gumbaynggirr representatives and any support persons in participating in the Working Group.

Cultural mapping for the Indigenous Protected Area Proposal for the Bellinger Valley

4. To undertake cultural mapping and ecological assessments in State Forests on Gumbaynggirr Country (including Wild Cattle Creek State Forest) for the purposes of progressing the proposal for an Indigenous Protected Area for the Bellinger Valley.

Establishing the Gumbaynggirr Guardians ranger program

5. To employ and train “Gumbaynggirr Guardians” as Indigenous rangers to undertake work to assess and protect culturally significant areas of Gumbaynggirr Country.

In making this order, the Court notes that:

6. In all dealings with Gumbaynggirr people regarding the restorative justice activities outlined in this order, Forestry Corporation NSW and Environment Protection Authority have agreed to follow principles of Free, Prior and Informed Consent and to respect and care for Indigenous Cultural Intellectual Property shared during this process as outlined in the United Nations Declaration of the Rights of Indigenous Peoples:

https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP\_E\_web.pdf

7. The Yurruungga Aboriginal Corporation will report to the Environment Protection Authority and Forestry Corporation NSW within 60 days of the end of each financial year on the expenditure of funds on the restorative justice activities until the available funds have been fully expended.

8. If any funds paid to the Yurruungga Aboriginal Corporation are unable to be expended for the purposes of projects set out in this Annexure at paragraphs 1 – 5, the Yurruungga Aboriginal Corporation is to pay the balance of unexpended funds into the Consolidated Revenue Fund of the NSW Government.