(e) the defendant's assertion that "the Council and the Rural Fire Service would be pleased to have the combustible vegetation removed from Lot 3 as it was incompatible with and threatened an increasing number of adjoining and surrounding residences".
151 The defendant's assertion in (a) is inconsistent with the evidence that the defendant was aware that the unanimous expert opinion was that the vegetation on the defendant's property was part of the Southern Highlands Shale Woodland endangered ecological community. This was the opinion of the Council (the s 149 certificate and telephone advice to Mr Stone, communicated to the defendant), the National Parks and Wildlife Service (the NPWS mapping showed the community on the defendant's property, Mr Clarke advised Mr Stone that the vegetation on the defendant's property was part of the community, and Mr Priday's report and Ms Sullivan's letter to the Council stated the vegetation was part of the community, all of which information was communicated to the defendant), the defendant's first ecological consultant, Mr Stone (in his report and oral communications to the defendant) and even the defendant's second ecological consultant, Gunninah Environmental Consultants (in its report notwithstanding the opinion that it was a marginal or variant patch of the community).
152 The defendant's assertion in (b) is inconsistent with the evidence of the whole purpose and process of obtaining a flora assessment as part of the development application process. From the outset, the defendant was aware that the presence on the property of vegetation that might be part of the Southern Highlands Shale Woodland endangered ecological community necessitated the preparation of a flora assessment and an assessment of the likely significance of the effect the development was likely to have on the community. The defendant was aware that these assessments needed to accompany the development application and would be taken into account by the Council in determining whether development consent should be granted to the carrying out of the residential subdivision which would involve the almost total removal of the vegetation on the property. The defendant's actions in obtaining another ecological consultant to support his development application after Mr Stone's conclusions against the defendant's interests evidence the defendant's awareness.
153 If the defendant had believed he could carry out clearing of the vegetation without consent, he would not have engaged in this lengthy and detailed process of applying for consent for development that included the clearing of vegetation and of obtaining flora assessments from consecutive ecological consultants of the impacts of the clearing of the vegetation.
154 It is relevant to note that the defendant engaged throughout the process solicitors to advise him and indeed the defendant said when dissatisfied with Mr Stone's advice that he would be consulting his solicitors about the matter.
155 By the time of the second series of clearing, the defendant was on notice that he was under investigation by the Council and the Department of Environment and Conservation for illegally clearing vegetation on the property. The defendant was aware then that his "actions in having vegetation removed…were to be such as to be capable of constituting a breach of the law" yet he nevertheless proceeded to arrange for further clearing to be undertaken by Mr Ragg on 28 December 2004.
156 The defendant's assertion in (c) is inconsistent with the contents of the reports of Gunninah Environmental Consultants and AVK Environmental Management. As I have noted already, the Gunninah Environmental Consultants' report finds the vegetation on the defendant's property to be part of the Southern Highlands Shale Woodlands community, although a marginal or variant patch. No where in the report is it stated that the vegetation can be cleared without consent. The AVK Environmental Management Report also does not state that the vegetation on the property could be cleared without approval. The purpose of that report is entirely different. That report evaluates the bushfire hazard risk if the development of subdivision and subsequent erection of dwellings on the subdivided lots were to be carried out and makes recommendations to minimise the bushfire safety risk. No where does the report assert that any of the recommended measures should be taken independently of the carrying out of the proposed development.
157 Nowhere in either report is it stated that the "larger trees" on the defendant's property should be cut down, let alone the particular trees that the defendant arranged to be cut down that are the subject of the charges, regardless of whether the proposed development was approved and carried out.
158 The defendant's assertion in (d) is inconsistent with the contents of the AVK Environmental Management report, for the reasons given above. Further, nowhere in that report does it assert that "all of the combustible and fire transmissible vegetation" on the defendant's property should be removed regardless of whether the proposed development was approved and carried out.
159 The defendant's assertion in (e) is inconsistent with the content of the New South Wales Rural Fire Service's letter of 12 August 2003. The letter notified the Council of the general terms of approval that the Rural Fire Service would require the Council to include as conditions of consent if the Council determined to grant consent to the defendant's development application for the proposed subdivision and erection of dwellings. The condition required by the Rural Fire Service was to implement the consultant's summary recommendations in the AVK Environmental Management Report. These recommendations presupposed the carrying out of the proposed subdivision and erection of dwellings. If development consent were not to be granted, the proposed development could not be carried out and accordingly, the recommended measures could not be carried out. The Rural Fire Service's letter does not authorise the carrying out of the consultant's summary recommendations regardless of whether the proposed development was approved and carried out.
160 In circumstances where the defendant's exculpatory assertions in the letter are inconsistent with other evidence and where, by the defendant declining to give sworn evidence, no opportunity has been afforded for the assertions to be tested, little weight should be given to the defendant's assertions.
161 Another aspect of the defendant's evidence in the letter that was not able to be tested was the subject matter of the defendant's asserted contrition and remorse. On one construction of the statements in the letter, the regret expressed by the defendant is that, having acted "contrary to the law", he finds himself being sentenced by the Court and could face "serious consequences". This might be inferred from the following statements of the defendant:
(a) "I address this letter to your Honour with utmost sincerity and profound regret that I find myself in circumstances for which serious consequences must be considered by the court";
(b) "On the basis of the expert opinion which has been produced by the Department of Environment and Conservation (DEC) that the vegetation which I arranged to be removed from Lot 3 was part of an assemblage of Southern Highlands Woodland Shale Forest (sic) I must acknowledge that my actions were contrary to the law in respect of which I am profoundly sorry and regretful. I apologise to both the Court and the community for what I have done";
(c) "I understand that the Court must deal with this matter according to law but in support of this submission of sincere apology for having broken the law, I am of the opinion that submission of information to the court would serve to outline the circumstances which brought about this regrettable situation may be of significant assistance to the court in its deliberation on this matter"; and
(d) "The information is however submitted for the purpose of providing the Court with insight into the matters which caused me to act as I did and to inform the Court of my remorse and regret for my actions, which may assist the Court in reaching its conclusions in this matter".
162 On this interpretation, the defendant's regret is not genuine contrition and remorse for the wrongfulness of his conduct. The defendant's submission to the contrary was not able to be tested.
Defendant's employer's letter to the court
163 The defendant also tendered a letter from his employer, Mr Oxley, the Chief Executive Officer of Wollongong City Council. In that letter, Mr Oxley sated that the defendant had informed him that he had been charged with illegally clearing a number of ecologically important trees on land he owned in the Southern Highlands. The defendant later informed Mr Oxley that he had pleaded guilty to the charges. Mr Oxley stated:
"I have discussed with Dennis his actions, the subject of the proceedings and he has expressed his great remorse for what he has done. In my judgment, his remorse is clearly genuine. His actions have brought shame upon himself and this has taken an obvious toll upon him. I am however entirely confident that Dennis will not act in this way ever again".
164 Mr Oxley's letter was also objected to by the prosecutor on the same basis as it objected to the defendant's letter. Mr Oxley did not attend court to give evidence orally and was not available for cross-examination. I admitted the letter subject to weight. As the prosecutor asserts, in the absence of oral evidence from Mr Oxley which could be tested, the assertions in his letter as to the defendant's remorse should be given little weight. It is not known whether Mr Oxley understands the difference between remorse for being proceeded against and remorse for having done the wrong thing or that he could distinguish between the two if he did.
165 As I have found above, the defendant's assertions of remorse do not sit easily with the evidence of the deliberateness and premeditation of the defendant's conduct and the defendant's knowledge in relation to the endangered ecological community and the need for approval before carrying out his proposed development which would involve clearing of the trees. Furthermore, as the prosecutor notes, the defendant committed his second offence in December 2004 in the knowledge that he was under investigation for the felling of 45 trees between November 2003 and January 2004. Notwithstanding that, the defendant went ahead and committed the second offence. As the prosecutor submits, it is difficult to reconcile this conduct with the remorse of which Mr Oxley speaks in his letter.
No remorse for consequences
166 The evidence does not establish that the defendant has any contrition or remorse for the consequences of clearing the Southern Highlands Shale Woodland endangered ecological community.
167 First, the defendant's letter to the Court does not express any contrition or remorse for the consequences of his conduct to the environment, particularly the Southern Highlands Shale Woodland endangered ecological community. The generalised apology to "both the Court and the community for what I have done" is insufficient to establish specific contrition and remorse for the environmental consequences of his conduct.
168 Secondly, at no time when the defendant was confronted with an expressed concern by the Council or the Department of Environment and Conservation as to the legality of the clearing, did the defendant express any regret that he might have illegally cleared vegetation and caused environmental harm. The defendant did not respond to the Council's concerns expressed in its letter of 13 April 2004. The defendant declined to be interviewed by the Department of Environment and Conservation. He said to Mr Bond on 27 May 2004 he would not speak about the vegetation clearing at the property and did not respond to Mr Bond's letter of 2 June 2004. He declined to speak to the Council officer Mr Fonti on 28 December 2004 about the further clearing he had just undertaken. On each of these occasions, there was an opportunity for the defendant to make a contemporaneous expression of contrition and remorse, but none was forthcoming.
169 Thirdly, the defendant has not undertaken to take any action to ensure that the Southern Highlands Shale Woodland community on the defendant's property regenerates and will be not disturbed in the future by conduct of the defendant. The letter of the defendant's solicitor of 24 July 2006 is silent on the defendant undertaking remedial measures on the property or refraining from disturbing the vegetation in the future. The defendant's counsel submitted that there was no need for the defendant to undertake not to disturb the vegetation in the future because, as the vegetation is part of an endangered ecological community, the law prohibits such disturbance without legal authority. That submission is, of course, legally correct. But if there were to have been an undertaking of the defendant not to disturb in the future the community on the property, there would be some evidence from which the Court could draw a conclusion of the defendant's contrition and remorse as to the consequences to the ecological community.
170 Fourthly, little weight can be given to the offer made by the defendant's solicitor in the letter dated 24 July 2006 to the prosecutor. Mr Culleton, the defendant's solicitor, stated in this letter:
"We have received instructions from our client to propose that he will pay the sum of $75,000.00 payable within six (6) months to the Department for the purpose of rehabilitation or restoration of land on other sites at the discretion of the Department.
This offer is made as a genuine expression of Mr Williams' contrition and remorse for the clearing and to compensate for the environmental harm caused by his actions.
The writer understand that this offer is to implement what is often referred to as biobanking or offsetting".
171 Again, the offer in the letter is not the subject of sworn evidence that is capable of being tested: R v Elfar [2003] NSWCCA 258 (2 December 2003) at [24]-[25]. As stated in R v Elfar, if an offender appearing for sentence wishes to place evidence before the Court which is designed to minimise his criminality, then it should be done directly and in a form that can be tested. If untested material is put before the Court, and the Crown objects to the tender, the sentencing court would be entitled to treat the material as being of little or no weight.
172 Further, as the prosecutor submitted, there has been little action by the defendant to implement his offer. A very real question is why it is necessary to pay money for the restoration of land on other sites rather than using the funds offered for the short term management of the subject site. As the expert evidence made clear, the biggest threat to the long term viability of the property is disturbance and the defendant and his plans for residential subdivision are the most likely source of that disturbance.
173 In all the circumstances, I do not find on the balance of probabilities that the defendant is genuinely contrite and remorseful for the commission of the offences and the consequences caused by the commission of the offences.
Assistance to authorities
174 The defendant has not provided assistance to the authorities. In the course of the investigation of both the first and the second offences the prosecutor requested the defendant to make itself available for an interview. The defendant declined to participate in any interview. The defendant maintained his pleas of not guilty putting the prosecutor to proof until the last minute when he altered his pleas to guilty.
175 In this case, therefore, there is no evidence of warranting a lesser penalty by reason of cooperation with law enforcement authorities.
Capacity to pay fines
176 The defendant, through a statement from the bar table by his senior counsel, has stated that he is aged 54. He is a married man. His wife is a nurse in full time employment. He has three children - two sons aged 25 and 19 and a daughter aged 23. The land in Biggera Street, Braemar is in his own name. It is mortgaged to the value of $150,000. He owns jointly with his wife the residential home at 18 Elizabeth Street, Mangerton. It is unencumbered. A recent sale in the street went for $600,000.
177 The defendant is employed with Wollongong City Council as a senior administrative officer in Council's technology and administrative division. A PAYG payment summary tendered by the defendant reveals a gross annual salary of $61,721.
178 These facts do not disclose that the defendant is of limited means or impecunious. Nevertheless, this information about the accused's means to pay can be and is taken into account under s 6 of the Fines Act 1996.
Synthesis of objective and subjective circumstances
179 The prosecutor submitted that consideration should be given to a sentence of imprisonment. As noted above, the maximum penalty includes imprisonment for two years either by itself or in addition to a fine. The circumstances and consequences of the commission of the offences, including the deliberateness and commercial motive and the harm done to the endangered ecological community, are sufficiently serious to make a sentence of imprisonment a sentencing option in this case.
180 However, considering all the possible alternatives and the fact that the defendant has no prior convictions and is of prior good character, I am of the view that it cannot be said that no penalty other than imprisonment is appropriate: s 5(1) of the Crimes (Sentencing Procedure) Act 1999. Instead, I consider a fine for each offence to be the appropriate penalty.
181 The fine for each offence needs to reflect the medium to high objective gravity of the first offence and the medium objective gravity of the second offence and the subjective circumstances of the defendant for both offences. The appropriate amount of the fine for each offence should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances: Markarian v The Queen (2005) 79 ALJR 1048 a [37], [39], [66] and [73].
182 The fines should achieve the purposes of sentencing including:
· ensuring that the defendant is adequately punished for each offence and is held accountable for his actions: s 3A(a) and (e) of the Crimes (Sentencing Procedure) Act 1999;
· denouncing the conduct of the defendant: s 3A(f) of the Crimes (Sentencing Procedure) Act 1999;
· deterring both the defendant (specific deterrence) and other persons (general deterrence) from committing similar offences: s 3A(b) of the Crimes (Sentencing Procedure) Act 1999; and
· recognising the harm done to the community particularly by reason of the damage to the endangered ecological community: s 3A(g) of the Crimes (Sentencing Procedure) Act 1999;
183 The circumstances in which the offences were committed by the defendant, particularly the deliberateness of and the commercial motive for the clearing, make deterrence of particular importance. Courts have repeatedly stated that the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in relation to compliance with environmental laws: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at 257 [156] - 258 [157] and Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006) at [229]. It should not be cheaper to offend than to prevent the commission of the offence: R v Anglian Water Services Ltd [2004] 1 Cr App R(S) 62, [2004] JPL 458 at [31]. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains: M Watson, Environmental Offences: the Reality of Environmental Crime" (2005) 7 (3) Environmental Law Review 190 at 199-200; Walker v Eves (1976) 13 SASR 249 at 253; Piva v Brinkworth (1992) 59 SASR 92 at 96. The amount of the fine should be substantial enough so as not to appear as a mere licence fee for illegal activities. The sentence should create a disincentive to the harm envisioned by the statute (in this case, harm to endangered ecological communities): R v Bata Industries Ltd (1992) 9 Or (3d) 329, 7 CELR (NS) 245 at [187].
184 In relation to the first offence, I consider that a fine of $144,000 is appropriate. This figure is calculated as follows. The synthesis of the objective and subjective circumstances warrants an amount of $120,000 for the principal penalty and $1,000 additional penalty for each of the 45 whole plants that have been affected by the commission of the offence, giving a total of $165,000. This figure is discounted by 12.5% for the utilitarian benefit of the plea of guilty to the justice system, and then rounded down to $144,000.
185 In the case of the second offence, the appropriate penalty is $72,000. This represents $80,000 for the principal penalty and $1,000 for each of the three whole plants affected by the commission of the offence, giving a total of $83,000. This figure is discounted by 12.5% for the utilitarian value of the plea and then rounded down to $72,000.
186 In fixing these amounts, I have taken into account the means of the defendant under s 6 of the Fines Act 1996. I have also taken into consideration that the defendant will be ordered to pay the costs of the prosecutor which might be substantial. These costs will also be part of the punishment of the defendant: see Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006) at [78], [84].
Totality principle
187 Consideration must now be given to the totality principle. The totality principle must be applied when sentencing an offender who has committed more than one offence. The effect of the totality principle requires the Court which is to pass a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate" and reflects the total criminality before the Court: Mill v The Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1988) 194 CLR 610 at 624 [49]. If the sentencing court believes that the totality principle requires an adjustment to the fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 346 (17 August 2006) at [50].
188 In determining an appropriate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for a deliberate series of discrete offences: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36]-[37].
189 In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: Regina v A [1999] NSWCCA 61 (30 March 1999) at [32].
190 In this case, I consider that the totality principle does require there to be an adjustment of the fines that would otherwise be appropriate. The aggregate sentence of the amounts determined to be appropriate for each individual offence is $216,000. This aggregate may exceed what is just and appropriate, having regard to the total criminality involved and the fact that the second offence was, although a discrete offence, nevertheless a continuation of the course of conduct commenced by the first offence.
191 Accordingly, I would adjust the aggregate sentence to $180,000, apportioned $130,000 for the first offence and $50,000 for the second. This involves an adjustment of the amounts of the fines that would otherwise had been appropriate for the offences.
Orders
192 For these reasons, the Court makes the following orders: