Garrett v Freeman

INTRODUCTION 1 HIS HONOUR: Mr Geoffrey Noel Freeman has, by all accounts, led an exemplary life. He has had a distinguished career in local government, firstly for fourteen years at Wollongong City Council as a health and building surveyor, later becoming the council's building maintenance manager; then the technical services manager in the council's health and building department where he was instrumental in establishing a development assessment panel; and finally as manager of health and building services. He left that council to pursue full-time farming interests for four years, but returned to local government in 1992, firstly at Narrandera and then in 1995 at Hastings Council. 2 At Hastings Council (as Port Macquarie-Hastings Council was then called) he was initially appointed director of services with responsibility for waste management, the council's buildings, parks and recreation, the Rural Fire Service, libraries and community services. He was instrumental in the establishment of a new centralised waste management facility and a new library. In 2000, he was appointed director of infrastructure and, more recently, director of water and natural resources. The many references tendered attest to his excellent leadership in these various roles, to his personal integrity and reliability and to his strong commitment to his family. 3 In short, but for one error of judgment, Mr Freeman has been a model citizen. For that error of judgment Mr Freeman now pays a heavy personal cost. 4 There are five related prosecutions before me for sentencing. They all arise from the same course of conduct, namely that, between 15 September 2003 and 19 December 2003, Port Macquarie Hasting Council, through its employee, Mr Freeman, acting in his capacity as the council's director of infrastructure, caused the construction of road works on land owned by the council west of the Port Macquarie Airport and south of Hastings River, also known as Partridge Creek. It is common ground that the area was the habitat of a number threatened species and, in particular, Pseudomys gracilicaudatus or the Eastern Chestnut Mouse, Tyto capensis or the Grass Owl and Crinia tinnula or the Wallum Froglet.

OVERVIEW OF THE OFFENCES 5 Mr Stephen Garrett, as a person duly authorised under s 179 of the National Parks and Wildlife Act 1974 ("the NP&W Act") by the Director-General of the Department of Environment and Conservation ("the DEC"), now the Department of Environment, Conservation and Climate Change ("the DECC"), charged Port Macquarie Hastings Council in its corporate capacity with three offences that, contrary to s 118D(1) of the NP&W Act, it caused damage to the habitat, not being critical habitat, of a threatened species by undertaking the construction of road works on land at Partridge Creek, knowing that the land was habitat of that kind. Particulars of threatened species include the Eastern Chestnut Mouse, the Grass Owl and the Wallum Froglet. On 15 December 2005, a plea of guilty was entered by the council for all three charges. 6 Mr Garrett also charged Mr Freeman with two offences by virtue of s 175B(1) of the NP&W Act in his capacity as a person concerned in the management of the council that, contrary to s 118D(1) of the NP&W Act, the council caused damage to the habitat, not being critical habitat, of a threatened species by undertaking the construction of road works on land at Partridge Creek, knowing that the land was habitat of that kind. Particulars of threatened species include the Eastern Chestnut Mouse and the Grass Owl. Mr Freeman pleaded not guilty. The case against him was heard before me over seventeen days and I found the offences proved beyond reasonable doubt: Garrett v Freeman (No. 4) [2007] NSWLEC 389. 7 Mr Peter Carter, on behalf of the New South Wales Department of Primary Industries, which administers the Fisheries Management Act 1994 ("the FM Act"), charged Port Macquarie-Hastings Council in its corporate capacity that, between about 14 September 2003 and 19 December 2003, at Fernbank Creek in the State of New South Wales, it committed an offence against s 200 of the FM Act in that, being a local government authority it carried out reclamation work without the authority of a permit issued by the Minister. On 31 August 2005, the council pleaded guilty to the offence as charged. 8 It is also convenient to describe here the locality in which the offences were committed. The Port Macquarie local government area includes a location known as Thrumster, Partridge Creek, which has been identified as a development area in the council's strategic land use planning. 9 Partridge Creek naturally drains into the Hastings River. Studies in the late 1990's indicated that there was some acidic discharge from the creek area. In conjunction with the Department of Land and Water Conservation ("the DLWC"), with funding from the Environmental Trust, the council undertook a restoration program called the Partridge Creek Acid Sulphate Soil Hot Spot Remediation Project ("the ASSR project"). 10 A highly modified natural watercourse, Partridge Creek has in effect, acted as a drain that had been widened and deepened over the years to facilitate grazing on the surrounding land. The ASSR project aimed to restore the hydrology of the area by installing a weir in the northern section of the drain and infilling several sections of the drain in the central back swamp area. This was to raise the groundwater table and contain the acidic groundwater. 11 At the time of the offences the corporate defendant was called Hastings Council but has since changed its name to Port Macquarie Hastings Council. It is incorporated by virtue of s 220 of the Local Government Act 1993 and its staff at the relevant time included:

· Mr Bernard James Smith- General Manager; · Mr Geoffrey Noel Freeman- Director of Infrastructure Services; · Mr Michael Andrew Coulter - Director of Planning and Environment; · Mr Peter Matthew Owens- Planning Manager; · Mr Matthew Rogers- Environmental Services Coordinator; · Mr Thor Aaso- Environmental Officer; · Mr Trevor Graham Schubert- Maintenance Coordinator; 12 Mr Aaso, in partnership with the DLWC, had primary responsibility for the ASSR project, while Mr Rogers supervised the council's involvement in the ASSR project. Mr Freeman was responsible for land owned by the council at the time of the offences and initiated the construction of the roads to provide better access to the area. 13 An agreed statement of facts has been filed for each of the matters against the council. I will summarise these facts below, but first I will discuss the findings of fact I made in the matter of Garrett v Freeman (No. 4) that are relevant to sentencing.

FINDINGS OF FACT IN GARRETT v FREEMAN 14 Both charges against Mr Freeman assert that between approximately 15 September 2003 and 19 December 2003, at Partridge Creek, Port Macquarie, whilst acting as a person concerned in the management of Port Macquarie-Hastings Council, Mr Freeman committed an offence against s 118D(1) of the NP&W Act, which relevantly states: A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind. 15 As noted above in par [6], Mr Freeman is charged in his capacity as an individual responsible for the management of a company by virtue of 175B(1) of that Act, which states: (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision…

The section then goes on to provide three defences to this provision. 16 There is also a defence available to a s 118D(1) offence, where the defendant can show either: that the act constituting the offence was essential for the carrying out of an activity by a determining authority within the meaning of Pt 5 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") if the determining authority has complied with that Part (s 118D(2)(b)(ii)); or that the act was an activity in accordance with an approval of a determining authority within the meaning of Pt 5 of the EP&A Act if the determining authority has complied with that part (s 118D(2)(b)(iii)). 17 The first charge against Mr Freeman is that damage was caused to the habitat of a threatened species Tyto capensis or the Grass Owl (now known as the Eastern Grass Owl) by disturbance to areas used for roosting, loss of wetland or swampy habitat used for nesting, the removal of shrubby low heath vegetation providing cover and foraging habitat, the introduction of potentially invasive weeds and grasses, and provision of enhanced access to predators. 18 The second charge against Mr Freeman is that damage was caused to the habitat of a threatened species Pseudomys gracilicaudatus or the Eastern Chestnut Mouse by disturbance, the removal of low heath vegetation providing cover, the introduction of potentially invasive weeds and grasses, and by the provision of enhanced access to predators. 19 The parties agreed that at the time of the offences, Mr Freeman held the position of director of infrastructure services of Hastings Council, which was a position that fell within the meaning of senior staff in Ch 11 of the Local Government Act. The parties also agreed that the Grass Owl and the Eastern Chestnut Mouse were threatened species and that Partridge Creek was their habitat. There was a consensus that construction of roads took place in the area, although Mr Freeman was adamant that these were in fact "tracks". Nevertheless it was agreed that the construction was an activity by a determining authority within the meaning of Pt 5 of the EP&A Act. 20 In these proceedings, I had to first decide whether the following elements of an offence under s 118D of the NP&W Act were proved beyond a reasonable doubt: · that, a provision of the NP&W Act namely s 118D(1), was contravened by a corporation; · that Hastings Council was a corporation; · that Hastings Council did a thing, namely, construct roads; · that the thing caused damage to the habitat of the two threatened species; and · that at the time of the offence, Hastings Council knew that the land concerned was habitat of those threatened species. 21 Before I summarise my findings I should note that Mr Freeman was extremely inconsistent in his record of interview, affidavit and oral evidence: see Garrett v Freeman (No. 4) at [162] to [226]. As noted in Garrett v Freeman (No. 3) [2007] NSWLEC 139 at [18] to [24], Mr Freeman's answers to questions were generally evasive, long-winded and self-serving. I could, therefore, only rely upon Mr Freeman's evidence to the extent that it was corroborated by evidence independent of his testimony. 22 I found that the prosecutor proved beyond a reasonable doubt that the council knew that the land was the habitat of the Grass Owl and the Eastern Chestnut Mouse. I relied upon the following evidence in coming to this conclusion: a) An ecological assessment titled "Partridge Creek Acid Sulphate Soils Remediation Strategy: Ecological Assessment" (October 2002) created by Environmental Resource Management Australia for the council ("the ERM report"), which states that the habitats of the Eastern Chestnut Mouse, the Grass Owl and the Wallum Froglet were likely to be significantly affected by the project. b) A fauna survey by Mr Phillip Anthony Redpath, an ecologist, prepared in light of the ERM report and titled "Partridge Creek Acid Sulphate Soil Hotspot Remediation Project Targeted Fauna Survey and 8 Part Test Assessment" (December 2002) ("the 2002 Redpath's survey") that identifies the presence of the Eastern Chestnut Mouse and the Grass Owl. c) A plan of management known as the "Partridge Creek Hotspot Remediation Management Plan" (April 2003) prepared by Mr Aaso, that is reflective of Mr Redpath's survey and identifies the presence of the Eastern Chestnut Mouse and the Grass Owl on the land. d) The adoption of the plan of management by the council at its meeting on 10 February 2003. Mr Coulter gave undisputed evidence that the plan of management and the report he co-authored regarding the ASSR project were distributed to the councillors at the meeting. e) Mr Aaso placed the documents mentioned in (a)-(c) above in the council's I-Drive information system (accessible by council employees) on or before 9 September 2003. f) Ms Katrina Louise O'Reilly, the resource compliance manager of Department of Infrastructure, Planning and Natural Resources (then DLWC) at Grafton, sent a letter on 26 June 2002 to the general manager of the council regarding slashing that occurred on the land, advising that a number of threatened species including the Eastern Chestnut Mouse and the Grass Owl inhabited the area. g) Mr Aaso, Mr Rogers and Mr Coulter worked for the council on the ASSR project and were fully aware of the threatened species on the land and the measures that should be adopted to mitigate the impact on them. 23 I was satisfied from the evidence that the construction that took place resulted in two "roads" that could not be described as "tracks". The photographs tendered depicted substantial dirt roads, capable of carrying two-way traffic and there was evidence to establish that the materials used were common in the construction of roads. 24 I found that the construction of the roads caused damage to the habitat of the threatened species to a significant extent. I accepted and relied upon the following evidence, that demonstrates the effects of the construction on the Grass Owl and the Eastern Chestnut Mouse:

(a) Mr Anthony Ward Bischoff, a birdwatcher who holds a scientific license under s 132C of the NP&W Act , visited the Partridge Creek area in January 2004 and noted that one road had been constructed directly across the main habitat area of the Grass Owl.

(b) Mr Stephen Debus, an ecologist at the University of New England, inspected the area in February 2006 and thought that the Grass Owl habitat was damaged by making the vegetation in the vicinity of the roads less desirable as a breeding site or less conductive to successive breeding, because the roads had increased the potential for predation and human disturbance. According to his calculations, approximately 0.2 hectares of potential Grass Owl roosting or breeding habitat had been physically removed by the construction of the east-west road.

(c) Mr Redpath, who visited the site before and after the construction, said that the roads added another level of impact, providing access to the area for domestic and feral dogs and cats, and foxes, as evidenced by the presence of dog tracks in the margins of the road. The roads also would have the potential to effect the habitat of the Grass Owl and the Eastern Chestnut Mouse as they interfered with the hydrological conductivity in the area; further providing a new opportunity for the incursion of weeds into the habitat of the species.

(d) The report of Professor Barry J Fox dated April 2006 noted that the Partridge Creek Area is clearly suitable habitat for the Eastern Chestnut Mouse and he had no doubt that the construction of the east-west and north-south roads had caused damage to the habitat of the Eastern Chestnut Mouse by the actual alienation of the area by the roads and the potential of water flow onto immediate surrounding area impacting the native vegetation. The most important impact, however, was that the roads provided predators with easy access to the areas occupied by the Eastern Chestnut Mouse. He concluded that there had been substantial damage to the habitat of this species.

(e) The report of Darkheart Eco Consultancy dated August 2004, concluded that the roads had resulted in the removal and/or modification of habitat, and listed the following potential and known impacts on the habitat of the Grass Owl: habitat loss and fragmentation; road kill risk; anthropogenic impacts; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regimes. The most significant impacts that the roads had or could have on the Eastern Chestnut Mouse were identified as follows: habitat loss and fragmentation; physical and behavioural barrier; road kill risk; exotic fauna; stormwater and water flow regime alterations and altered bushfire regime.

(f) Numerous dog-prints were observed along both the north-south and east-west roads by Ms Maria Alma Matthes, a senior threatened species officer with the DECC. This means that the roads could lead to the threatened species being further impacted by feral dogs gaining improved access. 25 I therefore had no trouble in finding beyond a reasonable doubt that in constructing the roads, the council had contravened s 118D(1) of the NP&W Act. 26 I then had to consider whether the prosecutor had proved on the balance of probabilities that the defences in s 118D(2)(b)(ii)-(iii), noted in par [16] above, had been negatived. I have noted that the parties agreed that the construction of the particular roads was an activity within the meaning of Pt 5 of the EP&A Act. The main issue was whether the determining authority had complied with the requirements of Pt 5 of the EP&A Act. 27 Mr Freeman claimed that he made a valid Pt 5 assessment, titled a "Review of Environmental Factors" ("the REF"). However, the document had no determination date, it was not signed, it did not adequately identify the proposed activity, there was no mention of the location of the roads or the material to be used to construct them or how the construction was to take place, nor was there mention of the particular threatened species or their habitat. The document was only three pages long, the typical Pt 5 assessment being about 25. The document was severely defective. 28 I came to the firm conclusion that Mr Freeman did not conduct a valid Pt 5 assessment of the proposed activity and that he had merely made a token attempt to comply with the requirements of the Act. He completed a tick-a-box checklist which did not even mention the threatened species or whether the activity was likely to have a significant effect on the habitat of the species, as required by s 111 of the EP&A Act. Finally, the Pt 5 assessment was not undertaken before the activity took place, so that even if it was valid, the determining authority failed to comply. On this basis, I found that the prosecutor had proved beyond a reasonable doubt that the defences in s 118D(2)(b)(ii) and (iii) were negatived. 29 The final matter for my consideration was whether the defendant was liable under s 175B of the NP&W Act noted in par [15] above. I had first to consider whether the contravention was by a corporation, as only then would Mr Freeman be liable under s 175B. I found that Hastings Council is a corporation by virtue of s 220 of the Local Government Act 1993 and noted the parties' consensus that Mr Freeman was concerned with the management of Hastings Council at the relevant time. 30 Mr Freeman attempted to claim the defence under s 175B(1)(a) of the NP&W Act that excuses the defendant where the corporation contravenes s 118D without his knowledge (actual, imputed or constructive). I found that Mr Freeman on the balance of probabilities had knowledge that the offence was being committed. If necessary, I would have so found beyond a reasonable doubt. In his capacity as the acting general manager of the council when a report on the ASSR project and the plan of management were included on the agenda of the council's meeting on 10 February 2003, Mr Freeman knew, before any of the road works started, that the land was habitat of the two threatened species. 31 Before the roads were planned Mr Freeman had contact with two reports in 2003 that discussed the possible impact on the threatened species and their habitats. He also had a number of discussions or meetings with other council employees, confirming his knowledge that threatened species inhabited that area and of the possible need for an assessment of the impact. His knowledge of the need for a Pt 5 assessment was implicit in his claim that he did in fact undertake a sufficient assessment under that part. Moreover, Mr Freeman admitted to Mr William Llewellyn Saunders, a local birdwatcher, that he was aware, before he authorised the construction of the roads, that the area was the habitat of the threatened species. If Mr Freeman did not have actual knowledge that the construction of the roads would affect the habitat of the threatened species, then he adopted a position of wilful blindness. I found that the matters above showed at least imputed or constructive knowledge of these matters, but in any event his admission to Mr Saunders demonstrated that he had actual knowledge. 32 Mr Freeman failed to demonstrate any plausible defence to the charges of the two offences under s 118D(1) of the NP&W Act and I found the offences proved beyond a reasonable doubt.

BACKGROUND FACTS IN GARRETT v PORT MACQUARIE-HASTINGS COUNCIL 33 As noted in par [5] above, on 15 December 2005, the council pleaded guilty to three charges under s 118D(1) of the NP&W Act that it caused damage to the habitat of the three threatened species, knowing that the land concerned was habitat of that kind. The parties have filed an agreed statement of facts that I summarise below. 34 The parties agree with my findings in the Garrett v Freeman (No. 4) that summarise the damage to the habitat of the Grass Owl by the construction of road works, noted in par [24] above. The parties also agree with my findings in relation to the impact of the construction of road works on the habitat of the Eastern Chestnut Mouse, which are also noted in par [24] above. The parties add that it is agreed that the effects of the construction on the habitat of the Wallum Froglet can be summarised as: damage by disturbance, loss of preferred wetland and sedge land areas, introduction of potentially invasive weeds and grasses and the provision of enhanced access to predators. 35 The parties agree that the council knew that the land was habitat of the three threatened species and recite the evidence described in par [228] of Garrett v Freeman (No. 4) that is briefly summarised at par [22] above. 36 There is an agreement that the matters of fact contained in the evidence that I accepted in pars [231] to [236] of Garrett v Freeman (No. 4) which are briefly summarised at par [24] above demonstrate the impact of the construction on the habitat of the Grass Owl and the Eastern Chestnut Mouse. 37 The parties agree, that at the time of the alleged offence, the council constructed a "road" running from the south to north and another from the east to west through the Partridge Creek area. Reference is made to par [229] of Garrett v Freeman (No. 4) where I explained that it is self-evident that the constructions are properly described as "roads". This is supported by the photographs tendered in evidence that show substantial dirt roads sufficient to carry two-way traffic and the fact that the roads were constructed with geotextile fabric and surfaced with clay gravel, complete with such features as culverts and the like.

BACKGROUND FACTS IN CARTER v PORT MACQUARIE-HASTINGS COUNCIL 38 As noted in par [7] above, on 31 August 2005, the council has also pleaded guilty to the charge that it carried out reclamation work without the authority of a permit issued by the Minister contrary to s 200 of the FM Act that provides: A local government authority must not carry out dredging or reclamation work except under the authority of a permit issued by the Minister. 39 For the purposes of the proceedings brought under the FM Act the parties agree upon the following matters. 40 The Partridge Creek wetland is connected to the Hastings River by Fernbank Creek and includes "water land" as defined in s 198A of the FM Act. The aerial photographs that make up the exhibits to the affidavit of Mr Geoffrey Richard Sainty sworn 8 April 2005, depict the approximate area of Partridge Creek and the wetland. In his affidavit Mr Sainty identified four sections of road which in his opinion protruded into the wetland as WL1, WL2, WL3 and WL4. 41 Over three months starting from September 2003, the roads were constructed by the council and included four sections constructed on "water land" as defined by the FM Act s 198A. These sections are demarcated as existing between survey pegs subsequently inserted and identified as: · WL1 and WL1A; · WL2 and WL2A; · WL3 and WL3A; · WL4 and WL4A. 42 These four sections are also found in a marked-up aerial photograph annexed to the joint experts' report to which I will refer below. The photograph shows that three sections of the north-south road and one section of the east-west road, were constructed in or on wetlands: · section between WL1 and WL1A - part of the north-south road; · section between WL3 and WL3A - part of the north-south road; · section between WL4 and WL4A - part of the north-south road; · section between WL2 and WL2A - the east-west road. 43 The sections of the road that were not constructed on "water land" as defined in the FM Act are demarcated by broken red lines between points WL1A and WL3 and between points WL3A and WL4. 44 Mr Freeman directed the laying of pipes on or about 24 September 2003 and construction of the roads occurred in the following three months. Geotextile fabric was laid on the existing ground surface and imported clay gravel was used to fill and surface the roads. Where the roads crossed the three open watercourses, pipes were laid and culverts were built. 45 In summary, the total length of the roads constructed in wetland area is approximately 1,012.44 metres. The total bottom surface area of these sections is approximately 6,553 square metres and the total volume of earthen material and gravel constituting these sections is estimated at 1,034 cubic metres. 46 Construction of the roads on "water land" constituted "reclamation work" as defined in s 198A(a) and (b) of the FM Act. The parties agree that this work was not authorised under the Crown Lands Act 1989 or authorised by a relevant public authority as required by s 200(2)(b) of the FM Act. The parties agree that for the purposes of the FM Act the council is classed as a local government authority. 47 The Minister administering the FM Act did not issue a permit under s 201 of that Act to authorise the reclamation work and the council did not apply to the Minister for a permit for such reclamation work. 48 For the purposes of sentencing, the council admits that the construction of four sections of roads on water land was an activity by a determining authority within Pt 5 of the EP&A Act and that it failed to comply with that Act. 49 Reclamation of the wetland area has occurred as a result of the east-west road and much of the north-south road being constructed through the wetland. The roads were raised above the level of the wetland and the wetland no longer supported macrophytes, that being vegetation characteristic of wetland.

SENTENCING PRINCIPLES GENERALLY Purposes of sentencing 50 I take into account in each of these proceedings the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedures) Act 1999 ("the Sentencing Procedure Act"): 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.

These purposes overlap and give statutory recognition to the common law principles of sentencing.

Sentencing considerations 51 The court must take into account the objective circumstances of the offence and the personal or subjective circumstances of the defendant when imposing a sentence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, and Veen v The Queen (1979) 143 CLR 458 at 490. The objective gravity or seriousness of the offence is given primary consideration and matters subjective to the offender must not interfere with the imposition of a penalty that adequately reflects the seriousness of the offence: see authorities referred in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at 215-6 [108]-[109] per Preston J.

Maximum Penalty 52 In sentencing an offender for a criminal offence, the fundamental consideration is the degree to which, having regard to the maximum penalties provided by the Act in question, the offender's conduct offended against the legislative objective of protecting the habitat of threatened species under the Act: see R v Peel [1971] 1 NSWLR 247 at 262; applied in Garrett v Williams (2006) 160 LGERA 115 at [89] per Preston J. 53 Section 118D of the NP&W Act prescribes a maximum penalty of 1,000 penalty units or imprisonment for one year, or both, for the commission of an offence under s 118D(1). Since a penalty unit is $110 (s 17 of the Sentencing Procedure Act), the maximum pecuniary penalty is a fine of $110,000. 54 Section 200 of the FM Act prescribes a maximum penalty of 2,000 penalty units for the commission of an offence under s 200(1); that is, the maximum penalty is $220,000. 55 A maximum penalty is to be given careful attention and is to be used as a yardstick, for it represents the worst possible scenario for the offence: Markarian v The Queen (2005) 228 CLR 357 at [31].

Deterrence 56 A fundamental consideration to be taken into account in sentencing is the deterrence of like-minded others: s 3A(b) Crimes (Sentencing Procedure) Act. Deterrence in sentencing for environmental offences operates as a powerful factor in protecting the public from the commission of similar offences. General deterrence is particularly important: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. The court also need to ensure that the sentence would deter the particular offender.

Integrity of the system of planning and development control 57 I have found in Garrett v Freeman (No. 4) that the activity of constructing roads required a Pt 5 assessment and that Mr Freeman was aware of this - but nevertheless failed to complete one (at [263] to [265]). 58 It is beyond dispute that the purpose of the system of planning and development control is to promote the proper management of resources or land for the economic, social and environmental welfare of the community: Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 252 per Stein J. There is a strong need for general deterrence in cases of offences against s 125 of the EP&A Act consisting of breaches in planning controls generally: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at 97 [35]. In Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349, the Chief Judge of this court, Preston J, has stated that there is a need in sentencing in vegetation damage cases to uphold the integrity of the system of planning and development control (at 355-6 [72] to [77]). The same principles apply to the enforcement of similar provisions under the NP&W Act, and in particular, there is a clear need to uphold provisions of that Act designed to protect the habitat of threatened species and preserve biological diversity. 59 Also relevant to sentencing are the purposes of the NP&W Act that are set out in s 2A of that Act: 1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape… (2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development. 60 Since the provision of the NP&W Act breached by the council and Mr Freeman invokes provisions of the Threatened Species Conservation Act 1995, the purposes in s 3 of that Act are also relevant: The objects of this Act are as follows: (a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management. 61 I accept the prosecutor's submission that in the circumstances the council and Mr Freeman have acted in a way that compromises the objects of these statutes, in particular the objects of the conservation of the habitat of threatened species.

SENTENCING CONSIDERATIONS IN GARRETT v FREEMAN 62 The offences committed by Mr Freeman comprised activities by a determining authority within the meaning of Pt 5 of the EP&A Act and would not have been committed if he complied with s 111(1) of that Act prior to constructing the roads. A determining authority must "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity", and this he failed to do. 63 I also accept the prosecutor's submission that the magnitude of the damage to the habitat of the relevant species enlivened the obligation under s 112 of the EP&A Act to prepare an environmental impact statement - if not a species impact statement either separately or as part thereof - together with the statutory obligations which flowed from that. As noted in par [24] above, I found in Garrett v Freeman (No. 4) that the construction of the roads caused damage to the habitat of the two threatened species to a significant extent. 64 As demonstrated by the amount of time taken in the hearing of the charges against Mr Freeman, it was fundamental to the commission of these offences that he caused council to fail to comply with Pt 5 of the EP&A Act - and did so knowingly: see Garrett v Freeman (No. 4) at pars [263] to [266].

Deterrence 65 When imposing a sentence, the penalty must reflect the need to deter others in a like position to the defendant from committing similar offences and that is a primary consideration in a case of this kind: s 3A(b) of the Sentencing Procedure Act. 66 As to whether the penalty must be sufficient to deter the offender from committing a similar offence, Mr D A Buchanan SC, appearing for the prosecutor, put to Mr Freeman during cross-examination that his expression of contrition and remorse was largely directed at reducing his punishment and was not genuine. Mr Buchanan acknowledges nevertheless that irrespective of whether Mr Freeman provides evidence of remorse or contrition, assuming that Mr Freeman is in the future in a position to offend against s 118D of the NP&W Act or to breach Pt 5 of the EP&A Act, his experience in these proceedings makes it unlikely he would re-offend. 67 I am convinced by Mr Freeman that he is truly sorry for his actions and that it is highly unlikely that he will re-offend. It goes against the grain of logic to suggest that someone of Mr Freeman's background, which I have noted at the start of this judgment, would behave otherwise.

Conduct was deliberate 68 The seriousness of the offence is to be judged by, amongst other things, the extent to which the offence was committed deliberately. Offences committed deliberately are more serious than offences committed due to inadvertence or error: Bentley v Gordon [2005] NSWLEC 695 at [125] and [126] per Preston J. 69 The prosecutor submits that Mr Freeman committed the offence deliberately and relies on my finding in Garrett v Freeman (No. 4) at [264] that: It is self evident that the construction of the roads through the habitat of threatened species would damage that habitat. If Mr Freeman did not have knowledge of this fact then, as submitted by the prosecutor, he adopted a position of "wilful blindness" as to the existence of a fact which comprised the principal offence, in which event that knowledge can be imputed.

I also refer to my finding, noted in par [31] above, that Mr Freeman nevertheless had actual knowledge of the fact that the area was habitat of the two threatened species. 70 For the purposes of sentencing, the prosecutor distinguishes between the state of knowledge that the land was threatened species habitat, and the fact of building the roads would damage habitat. 71 I agree that knowledge that the land concerned was habitat for relevant threatened species is an essential element of the offence itself and is not an aggravating factor. What is an aggravating factor, however, is that the conduct which caused damage to the habitat of threatened species was deliberate. The offence is complete if the person, knowing that the land concerned is habitat of that kind, then causes damage to that habitat. The causing of the damage may be accidental or inadvertent, but nevertheless would amount to an offence. In the present case it was deliberate and intentional. 72 I find that, although Mr Freeman's error of judgement has landed him in this position, it is beyond doubt that in making that judgement he knew that the area was the habitat of the threatened species, that the construction of the roads could damage that habitat and his commission of the offence was therefore deliberate.

Purpose for the committing of offences 73 The reasons for committing offences can be taken into account in measuring its objective seriousness: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 per Badgery-Parker J. They may also be relevant to the assessment of whether re-offence is likely. 74 The prosecutor contends that Mr Freeman constructed the roads with the aim of achieving the highest and best use and maximising the return that the council would get for the land. In his affidavit dated 12 March 2007, Mr Freeman states that use of the council's land at Partridge Creek for industrial purposes, as planned by the council's Planning and Environment division, was not "the highest and best use of council's land holding". Mr Freeman accepted, however, the proposition that the highest and best use of the land would be residential development and the roads were constructed to provide interconnections for future redevelopment. In his testimony, Mr Freeman also stated that he engaged Campbell & King Pty Ltd to primarily look at the development potential of the land. On these bases, the prosecutor submits that the roads were not of a temporary nature but intended to serve long term development purposes. 75 Mr Freeman's evidence and the council's plan of management for Partridge Creek provides a more realistic explanation as to why Mr Freeman constructed the roads. The management plan discusses the restoration of the natural hydrological regime of the hot spot while minimising impacts on threatened species. It provides in tabular form, information about the levels of inundation of the area for particular levels of land elevation. At 0.9 metres AHD (Australian Height Datum) inundation, the percentage of time the land is wet for any given period will be 20.7 per cent at surface ground level, while the remainder will be dry. The flooded land is therefore useless for the purpose of any development other than environmental conservation. 76 In his affidavit of 12 March 2007, Mr Freeman states that in 2003 he became aware that better access was needed to be provided to the land. Some of the purposes for that access were: a) To provide reliable internal access between the various portions of the land without the need to go onto the Fernbank Creek Road and through private land that we did not have any right of way over. b) to provide better access to the land for Bush Fire Fighting purposes ... e) As the inundation of the site progressed (for the ASSR project), and especially after rainfall, some of the existing tracks became impassable. Persons using these tracks would simply drive around the wet section onto other areas of the site. I wished to prevent this from occurring. 77 I accept that it is plausible that Mr Freeman carried out the works, with the view of satisfying the purposes he describes above; that is, to provide better overall access to the area, although I note that his evidence is not corroborated. 78 Mr T F Robertson SC, appearing for Mr Freeman, submits that Mr Freeman received no personal benefit, material or non-material, from the construction of the roads. I accept the submission, which is also conceded by the prosecutor. I also accept that the council itself received no material benefit from the construction of the roads, apart from the benefit it gained from providing an interconnection between the east and the western side and the south and northern sides of the Partridge Creek area. Consequently, I find that the construction of the roads falls short of putting the council in a position where it could maximise the value of its land.

Knowledge that offences committed without compliance with Pt 5 of the EP&A Act 79 I have found that Mr Freeman did not comply with the requirements of Pt 5 of the EP&A Act and that his "preliminary" or checklist REF was inadequate for the purpose of Pt 5 requirements: Garrett v Freeman (No. 4) at [238] to [252]. Although Mr Freeman's evidence was that he did not have experience in preparing statements of environmental impact, he knew of the requirements of the statute but claimed that the checklist REF satisfied the requirements of Pt 5. 80 Nevertheless, I find that Mr Freeman deliberately proceeded with the construction of the roads, in the face of -

(a) all the material he had read which made him aware of the sensitivity of the area as habitat for threatened species,

(b) the warnings he received from inside council on the subject, and

(c) flowing from (a) and (b), the obvious need to consult with external stakeholders. 81 I find that Mr Freeman thus ignored the regulatory environment and statutory obligations. The absence of training and process manuals is not sufficient to excuse his conduct. 82 The prosecutor also submits that Mr Freeman had significant experience in matters pertaining to an assessment as to environmental effects for the purposes of Pt 5 of the EP&A Act. The evidence, however, is to the contrary, and I do not accept the submission.

Environmental harm General observations 83 The recognition of the harm done to the victim and the community is one of the purposes of sentencing identified by s 3A(g) of the Sentencing Procedure Act. It is also plain from the provisions of Pt 8A NP&W Act that, so far as it is concerned with threatened species and their habitats, the object of the legislature is to protect those species and their habitats from harm. 84 Where harm, loss or damage caused by an offence is substantial, it is an aggravating factor to be taken into account in determining the appropriate sentence: s 21A(2)(g) of the Sentencing Procedure Act. The prosecutor, of course, bears the onus of proving beyond reasonable doubt the matters that are adverse to the defendant and the defendant bears the onus of proving on the balance of probabilities matters which he asserts: R v Olbrich (1999) 199 CLR 270. 85 Mr Buchanan relies upon a number of facts that fall outside the findings in Garrett v Freeman (No. 4) that need to be found for the purposes of sentencing. Where there is additional evidence in the sentence hearing which would permit the court to find facts for the purposes of sentence which might be at variance with Garrett v Freeman (No. 4) which were not essential to finding either offence proved, the prosecutor submits that on a proper view of sentence, the court will not do so. 86 Mr Buchanan states that Mr Freeman conceded that the proposed works were likely to have a significant effect on the habitat of threatened species, sufficient in the opening words of s 112(1) to enliven the obligation or the requirements of Pt 5 of the EP&A Act. I expressly found in Garrett Freeman (No. 4) at [237] that the construction of the roads caused significant damage to the habitat of the threatened species and which I have summarised in par [24] above. 87 Mr Robertson relies upon an analysis of the concept of harm within the meaning of the NP&W Act. He points out that the terms "damage" and "habitat" are undefined but the concluding words of s 118D provide that the person who damages the habitat must know that the land concerned is habitat of that kind. Therefore, it becomes apparent that "of that kind" is a reference to the habitat of the particular species that are the subject of the charges. Mr Robertson further submits that the habitat must be actual habitat and cannot be potential habitat. He also relies upon the distinction between "core habitat" and "peripheral habitat". The Macquarie Dictionary defines "damage" as "injury or harm that impairs value or usefulness" which, according to Mr Robertson, is its ordinary and natural meaning. As I understand the submission, this means that when this definition is read into the section, it can be construed as injury, or diminution in usefulness, of that land for the particular species concerned. 88 Mr Robertson then submits that the prosecutor must demonstrate that the roads were constructed through the actual habitat of particular species that inhabited the area and that damage was done to the usefulness of that land for the species concerned at that time. Only then can the prosecutor claim that the offences are serious. 89 During the sentence hearing, however, I reminded Mr Robertson of my earlier findings during the hearing on the plea of not guilty, in which he did not appear, that: · there was damage to the habitat of the threatened species; · that approximately 0.2 hectares of potential roosting or breeding habitat of the Grass Owl had been physically removed by the construction of the east-west road and that would indicate that "core" habitat of that species was damaged; and · that the damage to the habitat of both the Grass Owl and the Eastern Chestnut Mouse was significant.

90 I indicated, however, that this does not preclude argument that there was no long lasting actual harm to the particular species, and that would tend to reduce the seriousness of the offences as indicated by the objects of the NP&W Act. There was a considerable amount of detailed expert evidence in the sentence hearing going to this question. 91 Mr Buchanan argues that the driving of large wide roads through the habitat of the threatened species is sufficient to sustain a finding that the offences resulted in substantial environmental harm. He relies upon my findings of Garrett v Freeman (No. 4) that the construction of the roads caused damage to the habitat of the threatened species to a significant extent at [230]; and that the roads had the potential to interfere with the hydrological conductivity in the area at [233]. I agree. 92 In my view, this sentencing hearing does not involve re-visiting the findings made in the course of the contested hearing on the plea of not guilty in Garrett v Freeman (No. 4). The concept of damage to the habitat of a threatened species involves various forms of injury and adverse consequences to the habitat. This is the focus of legislative efforts aimed at preventing or minimising environmental harm. It matters not if the proposed activity would not harm the actual habitat of a particular threatened species which inhabits the area. Rather, damage refers to an impairment or injury to the environment per se and its functioning as the habitat of the threatened species, making it less valuable, in the sense of worthiness, for the their kind. I note that most dictionary definitions of "damage" tend to cross-refer to the concept of "harm" and both expressions tend to be characterised in terms of a diminution in usefulness or value. I am prepared to adopt the same concept in applying the term "cause damage" as used in s 118D(1). The mere known presence of a threatened species on the land, in my opinion, is sufficient - if a person wishes to conduct any activity that interferes with the habitat, he or she must first carry out an assessment of any risks of damage being caused by the proposed activity.

Confounding factor of rising water levels 93 There is in evidence a joint experts' report dated 27 March 2008 and authored by - · Mr Philip Anthony Redpath - ecologist retained by the prosecutor; · Mr Stephen John Stewart Debus - ornithologist retained by the prosecutor in Garrett's cases; · Professor Barry James Fox - Visiting Professor of Biological, Earth and Environmental Sciences, University of New South Wales retained by the prosecutor in Garrett's cases; · Mr Geoff Richard Sainty - wetland ecologist, Sainty and Associates Pty Ltd, wetland botanist expert witness, retained by the prosecutor in Garrett's cases; · Mr Arthur William White - frog biologist, Biosphere Environmental Consultants Pty Ltd, retained by the prosecutor in Carter's case; · Ms Annette Louise McKinley - plant ecologist, Landmark Ecological Services Pty Ltd, plant ecology and restoration expert retained by Mr Freeman and Port Macquarie-Hastings Council; · Mr David Roydon Milledge - wildlife ecologist, Landmark Ecological Services Pty Ltd, threatened fauna expert retained by Mr Freeman and Port Macquarie-Hastings Council; · Ms Barbara Christine Stewart - plant ecologist, Landmark Ecological Services Pty Ltd, plant ecology and restoration expert, retained by Mr Freeman and Port Macquarie-Hastings Council. 94 The joint experts' report was prepared by the authors following a conference on site on 17 March 2008 and 18 March 2008. 95 The experts adopted Dr Sainty's identification of four sections of road labelled WL1, WL2, WL3 and WL4 as described in par [41] and [42] above. On or about 5 February 2007, the council carried out restorative works in the area including removal of the roads. Some sections of the north-south road have not been removed and the joint report refers to these unexcavated sections of the north-south road as "linking roads" which they identify as: · WL1A to WL2 · WL2 to WL3 · WL3A to WL4 96 The joint experts' report notes that the ASSR project has had a substantial confounding effect on the revegetation and restoration of fauna habitat. 97 According to Mr Milledge, who was involved in fauna monitoring surveys in the Partridge Creek area in November 2007, July and August 2008 and a joint field inspection on 17 and 18 March 2008, flooding of the Partridge Creek site has occurred since the construction of the roads. In concurrence with the authors of the joint experts' report, Professor Fox states that the permanent raising of the water level has been a confounding factor in assessing the state of the area after remediation. 98 The prosecutor submits that although rising water levels have made the Partridge Creek site less hospitable as habitat for the Eastern Chestnut Mouse, this does not mitigate the seriousness of the offence and is irrelevant to an assessment of the seriousness of Mr Freeman's conduct in building the roads in the first place. 99 The experts found a raised water level to 0.9 metres AHD and a substantial increase in vegetation biomass resulting in changes to vegetation and fauna habitats at all four road sections. I accept the opinion in the joint experts' report that the results of the ASSR project in maintaining ground water levels at 0.9 metres AHD have had a substantial confounding effect on the revegetation and restoration of fauna habitat since its initiation in 2004, and will have ongoing effects. 100 I take these factors into consideration and acknowledge that the current state of the area is not wholly attributable to the effects of the roads.

Environmental harm after excavation of the roads 101 It is also apparent from the joint experts' report that the unexcavated or linking roads pose a problem in that they continue to provide access for feral predators and the experts suggest they be remediated. Ms McKinley and Ms Stewart, in particular, are of the view that linking roads need to be ripped up and directly seeded. 102 The joint experts' report notes that Red Fox, Feral/Wild Dog and Rusa Deer tracks have been observed within the road sections along the linking road between WL1A and WL2; along the linking road between WL2 and WL3 and along the linking road between WL3A and WL4. There are, however, a number of remarks in the report that there is likely to be no lasting impact on the species if additional remediation works involving removal of geotectile and road base material and filling road sections to former ground level is carried out and predation is adequately controlled. I accept, therefore, that there is a potential for impact on the species themselves. I otherwise accept the opinions expressed in the joint report. The linking roads, which have not been ripped up and remediated, need to be restored to accelerated regeneration with access blocked to feral predators.

Extent of harm on the habitat of the Eastern Chestnut Mouse 103 Although Mr Robertson did not appear on behalf of Mr Freeman at the hearing on the plea of not guilty, I reminded him that Mr Freeman conceded that the road works harmed the habitat of the Eastern Chestnut Mouse and Grass Owl. Therefore, the only argument open to him relates to the extent of harm to the habitat and the extent of harm to the actual species themselves. 104 As noted in Garrett v Freeman (No. 4) at [72], Mr Redpath, a regional ecologist at the Grafton Office of the DIPNR, conducted a target fauna survey in the Partridge Creek area in December 2002 to evaluate the ERM report. On that occasion he observed a "thriving breeding population" of the Eastern Chestnut Mouse. 105 One such place where the mouse was found, labelled as PCS-007, was located to the east of the creek. This location was some 125 metres from the east-west road and Mr Robertson submits that for this road to have crossed the Eastern Chestnut Mouse core habitat, the mouse would have to have had a range well in excess of three hectares. On this basis, he argues that there is no possible way that the presence of the species at that location could prove that the road interfered with any part of its habitat, the mouse only having a range of half of a hectare according to Mr Redpath. 106 Another location at which the species was detected is on the eastern side of the creek, labelled as PCS-003. Since no part of the roads does bridge the creek, Mr Robertson argues that it is impossible to say that the habitat of the species was damaged by the north-south road, it being highly unlikely that the mouse can traverse creeks. 107 In December 2005, Mr Redpath undertook another survey of the area as part of the post works monitoring of the ASSR project and revisited his sample sites. No Eastern Chestnut Mouse, despite an extensive amount of trapping effort, was captured or observed. Mr Redpath states: Comparison of site photographs does clearly demonstrate the biomass of vegetation at the three original sites has increased significantly between the first and second surveys. Of all the considerations, the increase in biomass resulting from higher water levels and recent flooding is the most likely factor influencing the presence/absence of ECM [Eastern Chestnut Mouse] in the study area. 108 Mr Redpath lists a number of land management activities and perturbations which could have the most potential to influence the presence or absence of the target species. Those factors relevantly include the construction of a weir to regulate water level and construction of an access road through the area. He notes that the wildfire in November 2002 coupled with significant rainfall in April, June and July 2005 possibly had a significant impact on the species. In particular, the conditions that exist after a wildfire are likely to favour another species, Rattus Lutreoulus or the Swamp Rat, over the Eastern Chestnut Mouse. 109 It follows that although there was a decline in the actual number of species detected in 2005, after the construction of the roads, this could be attributable to other factors cumulatively with the construction of the roads. 110 Mr Redpath notes that, prior to the construction of the roads, the wetland acted as a potential barrier to access for predators. Mr Redpath recommends a number of measures until the precise reasons for the absence of the species are established - the removal of the road being one of these measures. 111 Professor Fox, who is put forward as the world's foremost expert on the Eastern Chestnut Mouse, opines that the failure to obtain a record of the species in the 2005 Redpath's survey provides a strong inference that there had been substantial damage to the population from the road construction. 112 Despite the impact of the wildfire and subsequent rising water levels, Professor Fox maintains that the roads had the greatest impact. He reasons that the species is able to cope with fire and fluctuating water levels and is most affected not by fire, but by predators which emerge after fire. 113 Mr Robertson relies upon the report of HWR Ecological titled "Thrumster Sand Plain Sewerage Treatment Plant - Ecological Assessment" ("the HWR report") dated 30 August 2005, which was carried out by Mr John-Paul King. It can be observed that, although this report is somewhat disorganised, it states that both the Grass Owl and the Eastern Chestnut Mouse were located in the Partridge Creek area after the roads had been constructed. 114 The prosecutor argues that the HWR report is deficient in a number of respects, namely; (i) the report contains no point-sourced data on the location of the reported capture; (ii) there is nothing in the report to say that what was captured was an Eastern Chestnut Mouse; (iii) the report lacked the sort of trapping and geographic information to repeat the survey; and (iv) the report says nothing about who conducted the trapping, their expertise or qualifications. 115 The prosecutor's view is supported by Professor Fox, who opines that the HWR report lacks the very strong confirmatory evidence that would be required for this species. He also points out that in December 2005, 640 trapping nights were undertaken at Partridge Creek, which was six to seven times more than the trapping effort in the HWR report, and in which no Eastern Chestnut Mouse was found. 116 I accept the prosecutor's submission that, for the reasons stated in par [114] above, this report cannot be reliably used to maintain a conclusion that the roads had little or no impact on the Eastern Chestnut Mouse. I also accept the opinion of Professor Fox, noted in par [115] above, which I find persuasive. 117 Mr Robertson also relies upon the ERM report which was prepared for the council in October 2002 prior to the proposed construction of an embankment at Partridge Creek to inundate the acid sulphate soil layers with surface and groundwater inflows. The ERM report states that the proposed activity is considered likely to have a significant impact and that large proportions of known and potential habitat is likely to be removed or significantly modified by the proposed extent of inundation. 118 The ERM report describes in detail the components of habitat that the species needs to survive. The Eastern Chestnut Mouse feeds on plant stems, seeds, fungi and insects, and it has a home range of less than half a hectare. 119 The species was recorded in dense sedge land habitat approximately 400 metres south of the proposed embankment location where the sedgeland consists of a common rush couch grass sedgeland vegetation community, which covers approximately 32.43 hectares. The Eastern Chestnut Mouse was not recorded at any other sedgeland habitats in the survey area. The report, however, states that the species may still occur in other areas of sedgeland habitat at lower densities. The then proposed strategy was expected to inundate approximately 54.48 per cent of the closed sedgeland habitat which includes 87 per cent sedgeland vegetation community. This represents a large proportion of known habitat and for that reason significant impact on the habitat of the Eastern Chestnut Mouse was predicted. 120 Mr Robertson also relies on the evidence of Mr Milledge. In his 2007 report, Mr Milledge states that since the wildfire at November 2002, no records of the species have been made in the area. Mr Milledge notes, however, that there is no evidence that re-colonisation of the species did in fact occur after the wildfire because there were no surveys conducted until 33 months after the fire. He also cites the competitive presence of the Swamp Rat and the possibility that the survey effort was insufficient to detect remaining individuals, as possible explanations for the absence of the species. In his opinion, the absence of the species in 2005 and 2007 is not necessarily attributable to the construction of the roads. 121 Mr Robertson notes that Mr Milledge attempted to replicate Mr Redpath's survey in 2008 and was unable to do so at sites PCS-003 and PCS-007 due to heavy inundation as a result of the ASSR project. Mr Milledge did, however, capture two female species 300 metres south west of the site where Mr King captured the species in 2004. At this site, he noted a lower density of the competitor, the Swamp Rat, as opposed to the other three sites where the Swamp Rat contributed 76 per cent of captures and a high incidence of re-captures. In his opinion such a high presence of the Swamp Rat possibly accounts for the low incidence of the Eastern Chestnut Mouse. 122 Ms Stewart and Ms McKenley, both qualified and highly experienced ecologists, co-authored a report dated November 2007. The report attempts to evaluate regeneration of vegetation in relation to habitat requirements of the relevant threatened species. The report states that all regeneration observed along excavated road sections is in the early stages and nowhere approached the height of mature vegetation. The report notes an absence of the elements of the habitat favourable to the presence of the Eastern Chestnut Mouse such as low, dense vegetation for shelter, foraging and breeding. 123 Mr Robertson acknowledges that the north-south road traversed the type of vegetation associated with the species. He submits, however, there is no evidence that the species ever used that area. 124 The evidence clearly shows, however, that the Eastern Chestnut Mouse can occur in the vegetation type that has been disturbed by the construction of the roads. Moreover, the nature of roads, devoid from vegetation, can function as a substantial disincentive for the species to travel within the parameters of suitable habitat.

Extent of harm on the habitat of the Grass Owl 125 Mr Robertson relies on the evidence of Mr Milledge, a highly regarded ecologist with many decades of experience specifically in the area of owls and ground dwelling mammals in the north coast of New South Wales. 126 Mr Milledge applies the same coordinates that Mr Redpath had used for his targeted surveys, particularly where the grass Owl had previously been observed moving and roosting. 127 In the report annexed to his 2007 affidavit, Mr Milledge analyses the results of the surveying undertaken by his firm, Landmark Ecological Services in 2007. The survey demonstrates that the Grass Owl remains in the area, with one or two individuals present. He recorded one owl in the northern section of the study area where sightings had been made in 2002, 2004 and 2005. He also recorded that individual or another individual in the southern section. On this basis, Mr Milledge concludes that: the continued presence of the Grass Owl in the study area suggests that threats to its survival resulting from habitat damage caused by access road construction and removal may not yet have had the significant impact predicted. 128 Mr Milledge insists, however, that the area could be only described as "potential habitat". He further states that one can only draw the conclusion that a roost site is an actual nest for the owl, if the owl is observed with prey in its claws returning to its roost site to feed its young. 129 In his affidavit of 28 September 2008, Mr Milledge states that the Eastern Grass Owl still occupies the sedgeland-grassland habitat in the north of the catchment and that although there is no evidence of nests or young owls, repeated sightings of the species leads to the conclusion that there is likely to be at least one pair of breeding residents. 130 Mr Milledge had also used the technique of call playback to detect the owl and upon playing the sound, he observed a particular owl fly off in the opposite direction. He concluded that the owl can become habituated to the technique of call play-back and "[i]f you use call playback and get no owl response that doesn't mean the owl isn't there". 131 Mr Milledge earlier accepted Mr Redpath's proposition that a pair of owls was roosting in the northern section in 2002. At the hearing, however, he stated that he is "not absolutely 100 per cent certain that a pair was observed". The prosecutor submits that this later dilution of his opinion should be given less weight than his earlier acceptance of Mr Redpath's evidence. 132 In 2005, Mr Redpath recorded the monitoring of owls movements by persons he referred to as "birders", that is local ornithologists or birdwatchers. The prosecutor submits that: "no one has ever seen a pair since 2002, therefore one can hypothesise that there's been an impact on the Grass Owls that inhabit this area". 133 Mr Robertson submits that the evidence of Mr Redpath is inconclusive and unreliable. Mr Redpath is not an owl expert but rather a regional ecologist who specialises in fire ecology and apart from the work at Partridge Creek and an assessment of a fauna impact statement in relation to koalas, he appears to have no papers or publications in this area. Similarly, Mr Redpath had never found the Eastern Chestnut Mouse before 2002. 134 Mr Robertson argues that the method used by Mr Redpath in 2002 to identify the roosting pair, or "benchmark", was not subsequently replicated and therefore no valid comparison can be made. Mr Redpath had even failed to mark the sites, making them difficult to relocate in 2005. Mr Debus also gave evidence that there is no way of knowing whether Mr Redpath's observations of the owl was of a pair unless you band the birds or radio track: one can not say on any respectable scientific basis that there has been a reduction of the use of the area by the Grass Owl. 135 Mr Robertson does, however, rely on some of the conclusions reached by Mr Redpath in relation to the effect of the fire on the owl. In his 2005 report, Mr Redpath states that: the increased biomass resulting from increased inter-fire interval may also have implications for the Grass Owl. While not conclusive, it appears the sporadic and rare observations of Grass Owl during the 2005 survey and over the two year monitoring period are in direct contrast to the daily sightings of Grass Owl in 2002 survey. The reduced observations may also be a result of the possible decline in small mammal prey as a consequence of the 2002 wildfire. These opinions do not account for the potential timing errors made by the volunteers when undertaking monitoring (eg leaving the dusk survey sites before Grass Owls become active). 136 The 2002 Redpath's survey states that the repeated sighting of a pair of owls of itself demonstrates that they are roosting and potentially nesting. In his 2004 affidavit Mr Redpath, however, retreats from the proposition that the observations he made of the pair of owls in 2002 suggest that they were raising young. 137 Dr Debus also appears to accept Mr Redpath's conclusion that a section of the roads went through a roosting site for a pair of owls. 138 The prosecutor uses the roosting pair identified in 2002 at PCS-001 and PCS-002 as a "benchmark". Against this "benchmark" the sighting of different birds at dawn and dusk in the 2007 Milledge's survey are few and no pair was found as behaving in the way a pair was observed to behave in 2002. 139 The prosecutor relies upon the description in the joint report of the east-west road bisecting a site where a pair of owls were roosting (if not nesting) evidences immediate harm. 140 The signatories to the joint experts' report of 2008, noted in par [93] above, agree that there will be no lasting impact on the Grass Owl if introduced predators are adequately controlled, revegetation continues and comprehensive additional remediation works, involving removal of geotextile and road base material and filling road sections to former ground levels would be carried out. 141 As I indicated at the hearing, the joint experts' report accepts that there was the removal of a known roosting site and the signatories to this report include Mr Milledge and Ms Stewart. However, although this evidences harm to the actual habitat of the species, I do accept that it was a small area, in proportion to the available potential habitat for the species. During the hearing, Mr Robertson provided some calculations directed at the area of habitat removal and submits that the area of habitat removal was well under one per cent of the total area of known or potential habitat for the owl, making the actual area of physical removal minute. 142 I am therefore prepared to make a finding, on the balance of probabilities, that there was minimal actual impact on the species, but for the fact that a section of road was actual roosting habitat. The species continues to be found in the area and there is a possibility that it may be found more often if it had not become habituated to the calls used to attract it.

Feral Predators 143 The prosecutor relies on the evidence of Professor Fox of April 2008 that there was evidence of paw prints on the roads to support the conclusion that construction of the roads has provided more ready access to feral predators. 144 According to Mr Milledge, there is a lack of scientific evidence to establish that the Eastern Chestnut Mouse and the Grass Owl are subject to predation by foxes. In his own studies he was unable to find any evidence of the mouse or owl in fox scats - apart from the hair of a mouse on one occasion some distance away from the target area. 145 The prosecutor argues that no-one suggested the lack of scientific evidence of this sort meant there was any doubt that providing access for dogs, cats and foxes increased the risk of predation. The extension of the Feral Predator Control Program, to which I will refer below, to include Partridge Creek also symbolises acknowledgement of that risk. 146 Mr Robertson argues that there is no evidence that predation by foxes would be of a concern at point PCS-007, where Mr Redpath had captured the Eastern Chestnut Mouse in 2002. Mr Robertson relies upon the evidence of Mr Milledge that predation is of even less concern now because the area is inundated and would always, or at least for some time, be inundated as a consequence of the ASSR project, thereby reducing its ability to function as habitat for the species. Similarly, the area at point PCS-003, where the Eastern Chestnut Mouse was found, is submerged and has effectively been sacrificed to the ASSR project. For these reasons and those in par [144] above, Mr Robertson asserts that one can not possibly draw a conclusion beyond reasonable doubt that ingress of feral predators equals predation of the mouse. 147 Mr Robertson put a series of questions to Mr Redpath in cross-examination, the answers to which demonstrate the presence of both feral deer and wallabies in the area. Mr Redpath accepted that although feral deer are not feral predators, they trample the ground and create pathways through the area that can be utilised by other feral predators. Mr Robertson thus submits that there was already a level of predation in the area even before the construction of the roads, which Mr Freeman also identified. 148 The joint experts' report does, however, suggest that introduced feral predators cause an impact on the species. The authors of the report also agree, in a general sense, that changes to the Partridge Creek area as a result of the construction of the roads allows access for introduced predators - including Red Fox - into the habitat of the Grass Owl and the Eastern Chestnut Mouse. It states that there will be no lasting impact "if introduced predators, including Red Fox…are adequately controlled" in conjunction with other measures discussed above being taken.

Conclusion on environmental harm 149 I have previously found, in Garrett v Freeman (No. 4), that the construction of the roads caused damage to the habitat of the threatened species to a significant extent. I also found that the roads had the potential to interfere with the hydrological conductivity of the area. 150 I accept, at pars [99] and [100] above, that the impact of rising water levels as a result of the ASSR project has meant that the current state of the area is not wholly attributable to the effects of the roads. 151 It is self-evident, in my opinion, that the presence of the roads afforded the opportunity for predators such as feral dogs and foxes to more readily access the area. This is accepted by the authors of the joint experts' report, which include Mr Milledge. It is also confirmed by the observed presence of paw prints along the roads. Whilst there is no evidence of any of the threatened species being actually taken, there was and remains clearly a potential for actual impact upon the species themselves. 152 I accept the evidence which shows that there are no recorded trappings of the Eastern Chestnut Mouse in the vicinity of the roads themselves. The nature of the vegetation suggests that the roads were constructed over areas that were not core habitat of the species, the more so since the raising of the water levels to 0.9 metres AHD. The evidence nevertheless shows that the species would move from one core habitat to another through the areas traversed by the roads. Having rejected the reliability of the HWR Report as noted in pars [114] to [116] above, I have no reason not to accept the opinions of Professor Fox, whose evidence I have briefly described at pars [111] and [112] above, namely that the construction of the roads had the major impact, and I repeat my conclusion at par [124] above. I also accept, however, the fact that there is no evidence of a mouse actually having been taken by any feral predator. It is also a fact, however, that no mouse has been found in the area since the construction of the roads, despite extensive trapping as noted in par [115] above. 153 The evidence also clearly establishes beyond a reasonable doubt that a section of road went through a roosting site of a pair of owls, which amounts to actual harm to the habitat of the species: see pars [136] to [139] above. I otherwise accept as established beyond a reasonable doubt that there was a potential impact on the actual species themselves: par [148] above. Again, however, there is no evidence of actual harm to the owl itself by predators.

Objective gravity of the offences 154 The prosecutor places the level of gravity at the upper limit of moderate seriousness. The offences committed by Mr Freeman, it is submitted, are particularly serious having regard to their impact on the two threatened species. 155 Mr Robertson argues that in the scale of offences imposed for doing things in relation to threatened species, this is the least serious of offences. This is because of the structure of ss 118A to 118D of the NP&W Act. Mr Robertson submits that there is a scale of seriousness ranging from the most serious at s 118A, Which prohibits harming or picking threatened species, to the least serious at s 118D, which is concerned with activities that cause damage to the habitat of threatened species. The objectives of s 118D are directed at preventing a reduction in biological diversity. Further, questions of likelihood do not come into consideration in establishing the offence under s 118D. 156 Mr Robertson also relies on the objectives of the NP&W Act in s 2A(1)(a)(i) and (ii), namely the conservation of habitat, ecosystems and ecological processes, and biological diversity at the community, species and genetic levels, which are the objects that are most relevant to the present offences. Mr Robertson also places great emphasis on the current impact of the offences, following the remediation and revegetation that has been carried out, and submits that this should have precedence over the impact at the time the offences were committed. I note, however, that remediation of the roads by the council did not take place until some three years after they were constructed, during which time the adverse impacts remained.

A routine agricultural management activity? 157 Mr Robertson briefly raised an argument that Mr Freeman should have the benefit of a principle that an ex post facto expression of legislative intention that an offence no longer be an offence should sound in mitigation of penalty. He submits that s 118G of the NP&W Act, inserted after the commission of the offences, would have provided a defence for Mr Freeman. 158 The available defence, he submits, is that the clearing of the native vegetation constituted a routine agricultural activity and therefore is excused by s 118G(2)(a). 159 I reject the submission. The clearing of the vegetation to construct roads was plainly not such an activity. Although the area had been associated with agriculture some years in the past, the area did not have such a character at the time of the offences. The roads could not be described as farm roads: see s 118G(2)(a)(ii). Moreover, the defence is not available if the work is done before the grant of any statutory approval or other authority required for the work: s 118G(3)(b). I found in Garrett v Freeman (No. 4) that the construction of the roads caused significant damage to the habitat of the threatened species, which means that the requirements of Pt 5 of the EP&A Act, and in particular, s 112, had to be complied with, but were not. It is therefore unnecessary to consider the effect of the cases of Yrttiaho v Public Curator (Queensland) (1971) 125 CLR 228 and R v Pritchard (1999) 107 A Crim R 88, which might have otherwise applied if the facts had come within the defence afforded by the section.

Lack of training in conducting an environmental impact assessment? 160 Mr Robertson submits that Mr Freeman's lack of training in conducting an environmental assessment under Pt 5 of the EP&A Act is a mitigating factor. 161 I reject the submission. I have already found that Mr Freeman was aware of the need for a Pt 5 assessment. Further, as a director and sometimes acting general manager of the council Mr Freeman ought to have made proper efforts to find out what was required for a proper assessment after having become aware that such an assessment was required. Moreover, although Mr Freeman was aware of the need for a Pt 5 assessment, he did not undertake his token assessment until after the commencement of construction of the roads. Remediation, amelioration and recompense 162 Recompense by an offender for the harm caused can be taken into account in mitigation of penalty. It can reduce the gravity of the injury suffered by the victim and evidence remorse on the part of the offender: s 21A(3)(i) of the Sentencing Procedure Act. The defendant bears the burden of proving these matters. 163 Mr Robertson relies upon evidence of changes within the council that have been prompted by these proceedings and which include: · a project management facilitation process that has been developed by Mr Freeman, aimed at ensuring there is a documented and accountable process of making project decisions and obtaining approvals; and · the re-writing of all the environmental checklists and ensuring that staff are properly trained. 164 I take into account the fact that Mr Freeman has been involved in the remediation of the Partridge Creek area and the institution of reforms to the council's environmental impact assessment processes. I also acknowledge that he gave his support, and ensured his division provided resources, for the remediation of the area.

Contrition and insight 165 Remorse is a factor that is to be taken into account as a mitigating factor, as provided in s 21A(3) of the Sentencing Procedure Act. Section 21A(3)(i) was amended by the Crimes (Sentencing Procedure) Amendment Act 2007, which commenced on 1 January 2008, and now states: (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … 166 In the present case, the remorse element which is given practical expression by a plea of guilty is absent, so that the considerations described by Sully J in R v Kalache (2000) 111 A Crim R 152 and by Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383 are not relevant. 167 Contrition in offenders is often associated with insight into how they came to offend, namely the reasons for or factors contributing to their actions. A finding that an offender has insight into his or her offending provides a basis for concluding that there is a reduced risk of re-offending and thus that there is a reduced need for the sentence to include an element of specific or general deterrence: see R v Wisbey [2001] NSWCCA 434 at [31]; R v Cohen [2002] NSWCCA 339 at [25]; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273 at [203], [210]. 168 The prosecutor concedes that Mr Freeman has, in evidence on sentence, said that he is contrite and accepts responsibility for his actions. This was not the case, however, in the principal proceedings where he constantly attempted to excuse his conduct. According to the prosecutor, this is indicated by the following evidence:

(a) Mr Freeman's response to the council's resolution of 6 August 2007 seeking a report as to what had gone wrong does not show that he accepts responsibility for his actions.

(b) During and after the commission of the offence, Mr Freeman ignored internal and external approaches inquiring as to what had occurred and why - and when an investigation was commenced he told lies and attempted to obstruct the investigation. 169 According to the prosecutor's submission, absent evidence otherwise, acknowledgement of error after a finding of guilt has been made is not contrition and is more consistent with an attempt to avoid punishment and there is nothing approaching a frank admission of wrongdoing which would convince the court that he is truly contrite for his conduct. I find, however, that Mr Freeman's expression of contrition is genuine, that he now accepts responsibility for his action and that he now accepts that what he did was wrong. I also find that there is no real risk that Mr Freeman will re-offend.

Prior good character 170 Previous good character is a relevant consideration and must be taken into account as a mitigating factor: s 21A(3)(f) of the Sentencing Procedure Act; Ryan v The Queen (2001) 206 CLR 267; R v Ryan (2003) 141 A Crim R 403 per Grove J at 410-11 [42] to [45]. I have referred to this factor in pars [1] and [2] above and I acknowledge and take into account those matters.

Co-operation with the authorities 171 Section 23(1) of the Sentencing Procedure Act provides: A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. 172 A number of matters are set out in s 23(2) that the court must take into account when considering whether to impose a lesser penalty by reason of co-operation. The issue of a discount in penalty for co-operation with the authorities raises the same sort of issues that arise in respect of a discount for a plea of guilty: R v Gallagher (1991) 23 NSWLR 220. 173 The prosecutor submits that there is no evidence which warrants imposition of a lesser penalty by reason of co-operation with law enforcement authorities. I agree. As noted in Garrett v Freeman (No. 3), Mr Freeman's responses to the statutory notices were misleading, and the various responses he otherwise gave of the events were inconsistent and unhelpful.

Capacity to pay the fine 174 Where the court is contemplating the imposition of a fine, the court must consider the means of the defendant which may be reasonably and practicably available to the court for consideration and other matters that the court deems relevant in fixing the fine: s 6 of the Fines Act 1996. 175 The prosecutor submits that there is no such information in Mr Freeman's case and the primary consideration should be the deterrence of others which demands a more than nominal penalty. A small or nominal fine would not satisfy the element of deterrence, let alone punishment: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354 per Stein J; Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [85] and [93]. 176 I accept the prosecutor's submission and, in particular, I take into account the need for deterrence. In considering an offender' means, the amount of any order for costs can be taken into account: Environmental Protection Authority v Barnes [2006] NSWCA 248 at [88]. I do not take into account, Mr Freeman's own legal costs, which are being met by the council. I take into account, however, the costs which Mr Freeman must pay to the prosecutor, which are agreed at $167,500.

Even-handedness 177 The sentence imposed should be consistent with sentences imposed for the same offence in similar cases: Lowe v The Queen (1984) 154 CLR 606 per Mason J at 610 - 611; R v Henry (1999) 46 NSWLR at 353 at [12]. The prosecutor notes that there are very few decisions on sentence for offences against s 118D(1) which can be used for this purpose. 178 Carmody v Brancourts Nominees Pty Ltd (No. 2) [2003] NSWLEC 84 is a case which involved a breach of s 118D(1) by a defendant who pleaded guilty to one offence involving damage to koala habitat at Hawkes Nest. In addition to knowledge as to habitat, the defendant had been warned not to continue clearing but did so anyway. The damage consisted the clearing of the understorey vegetation, mainly introduced weed, and there was no evidence of damage or harm to preferred koala habitat trees. There was no evidence of actual harm to koalas and there was evidence that koalas had been detected in the area subsequently. 179 In that case, the parties had agreed on a remediation plan at a cost to the defendant of $5,000. Despite the defendant's good character, the court declined to make an order under s 10 of the Sentencing Procedure Act as the offence was not trivial and the defendant had continued to clear vegetation after being warned to cease work. I allowed a discount of 15 per cent for the plea and imposed a fine of $5,000, ordered the defendant to carry out the remediation works and ordered payment of the prosecutor's costs of $30,000.

Payment of costs 180 The prosecutor applies for an order under s 253(1) Criminal Procedure Act 1986 that Mr Freeman pay the prosecutor's legal costs as agreed or as assessed. That section has since been repealed and replaced by ss 257A to 257G. 181 Section 253 applies in the present case, however, because the proceedings were commenced before it was repealed. Costs are not to punish the unsuccessful party but to indemnify the successful party for the expense to which it has been put: Latoudis v Casey (1990) 170 CLR 534. 182 There were submissions about the proportion of the prosecutor's costs to be borne by Mr Freeman and by the council respectively. Since the conclusion of the hearing, however, I have been advised that the parties have agreed upon the amount of costs and the portions to be borne by each defendant. 183 The costs are substantial. The prosecutor has agreed to accept the sum of $167,500 as against Mr Freeman and $114,000 as against the council. The prosecutor accepts that where costs are so substantial, it is appropriate to take into account the fact that the defendant will have to pay the prosecutor's costs which can form part of the defendant's punishment: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]. Again, I note that the council has agreed to pay Mr Freeman's own legal costs. 184 Despite the above principle, the prosecutor argues that the fact that both defendants will have to pay the prosecutor's costs is not a matter which should be given a great deal of weight. The purposes of costs and sentencing should not be confused. The prosecutor should be compensated for the costs to which it has been put and the penalty should be sufficient to punish, denounce and deter. It is the penalty that serves as a deterrent to others - not the costs order. I accept the force of the prosecutor's submission, but there should nevertheless be some amelioration in the amount of the fine in view of the substantial costs which Mr Freeman is now required to pay. The amelioration in the amount of the fine in this case should be relatively modest, since Mr Freeman does not have to carry the burden of meeting his own legal costs. 185 Finally, the fines must be paid into the National Parks and Wildlife Fund: ss 137 and 176(3) of the NP&W Act.

Appropriate penalty 186 As noted above, the maximum penalty for each offence committed by Mr Freeman is $110,000 or imprisonment for one year or both: s 118D(1) of the NP&W Act. The prosecutor does not seek a remediation order against Mr Freeman. The council has carried out remediation work at its own initiative and expense. 187 I have accepted the fact that there is no evidence of actual harm to either of the threatened species. But that is not the offence with which Mr Freeman has been charged. It is an offence of causing damage to their habitat. The damage clearly had the potential to impact upon the species themselves, particularly in the manner described at par [101] and [148] above. 188 I also accept the fact that the construction of the roads was of no material benefit to Mr Freeman. As noted below in the prosecution case against the council, the impact of the works has since been minimised by the remediation work which was undertaken in early 2007, but that work was undertaken by the council and at its expense. The fact that the remediation work was done in 2007 means, however, that the roads remained in place for about three years. 189 In my view, having regard to all the considerations and findings discussed in this judgment above, the appropriate penalty for each offence is $38,000. Since each offence arose in the same course of conduct, the principle of totality applies: Camelleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 203-204. This requires the court firstly to determine an appropriate sentence for each offence and secondly to review the aggregate sentence to determine whether it reflects the total criminality of the defendant. If necessary, an adjustment should be made to ensure that the total sentence is just and appropriate. In performing this exercise, I conclude that there should be a penalty of $38,000 for the first offence and a penalty of $19,000 for the second (related) offence. The fines must be paid into the National Parks and Wildlife Fund: ss 137 and 138(1), (7) and (9) NP&W Act. I decline to impose a penalty for imprisonment in this instance. 190 The final orders, therefore, are:

(1) The defendant is convicted of the offence as charged. (2) The defendant is fined in the sum of $38,000. (3) The fine must be paid into the National Parks and Wildlife Fund, in accordance with ss 137 and 176(3) of the National Parks and Wildlife Act. (4) The defendant must pay the prosecutor's costs in the agreed sum of $167,500 in accordance with s 253 of the Criminal Procedure Act 1986 (as in force at 9 September 2005) . (5) The exhibits may be returned.

(1) The defendant is convicted of the offence as charged. (2) The defendant is fined in the sum of $19,000. (3) The fine must be paid into the National Parks and Wildlife Fund, in accordance with ss 137 and 176(3) of the National Parks and Wildlife Act . (4) The exhibits may be returned.

SENTENCING CONSIDERATIONS IN GARRETT V PORT MACQUARIE HASTINGS COUNCIL 191 The principles regarding sentencing and maximum penalty described in pars [50] to [60] above are equally applicable against the council. Again, the prosecutor has the burden of proving matters that are adverse to the defendant. 192 Section 118D(1) of the NP&W Act is a strict liability offence where no fault element need be proved. The elements of the offence are set out in par [15] of Garrett v Freeman (No. 4). Mr C J Leggatt SC, appearing with H P Irish for the council, notes, however, that a breach of Pt 5 of the EP&A Act is not an element of this offence. However, as I have observed in par [16] above, compliance with Pt 5 is a defence to a charge against s 118D(1).

General Deterrence 193 The principles of general deterrence are outlined in par [56] above. These are also equally applicable against the council. I would add, however, that general deterrence is to be given more weight in the case against the council, for the reason stated in par [197] below. 194 The council submits: (i) that the allegation by the prosecutor that the objects of the NP&W Act and Threatened Species Conservation Act have been compromised, does not operate as independent indicia of the seriousness of the offence or council's culpability; (ii) it must be assumed that the inclusion in the NP&W Act of the strict liability offence created by s 118D(1) and the maximum penalty wholly achieves such objects; and (iii) a separate consideration of the objects would have the effect of "double counting" the same considerations.

Individual Deterrence 195 The council submits that there is no need for individual deterrence because of its previous environmental reputation and the measures it has taken subsequent to the offence, not only in rehabilitation of the area but also in implementing procedures within the council designed to ensure that this kind of thing will not occur again. 196 The prosecutor acknowledges that the council now understands what caused it to commit the offences and that both project planning and development systems and corporate culture, have been addressed to ensure there is no repetition of this kind of offence. I agree, and find that there is no need in this case for any element of individual deterrence.

Integrity of the system of planning and development control 197 I repeat my observations in pars [57] to [61] above. The council through its employee Mr Freeman, was obliged to comply with ss 111(1) and 112 in Pt 5 of the EP&A Act and it failed to do so. The fact that the council itself is a public body which administers the system of development control is a highly relevant consideration and further reinforces the need for general deterrence.

Punishment denunciation and accountability 198 The purposes of sentencing in relation to punishment, outlined in par [50] above, are also relevant to the council.

Whether the conduct was deliberate 199 Deliberate conduct is of a greater seriousness than acts committed accidentally. In my opinion, the council deliberately committed the offences through its employee, Mr Freeman, who was charged with functions of management of the council. The evidence establishes that the council knew that the land was the habitat of the relevant threatened species and nevertheless it carried out activities causing damage to that habitat. Unlike Mr Freeman, however, the council has pleaded guilty to this element of the offences. 200 In addition to the deliberate conduct of Mr Freeman described in pars [68] to [72] above, the other council's employees, particularly Mr Aaso and Mr Rogers, knew in September 2003 that the construction of the roads was damaging threatened species habitat, which the council admits. This is why they brought the matters to Mr Freeman's attention. By virtue of s 175B(4) of the NP&W Act, this knowledge is imputed to the council.

Purpose for the committing of offences 201 The prosecutor submits that, since the council committed the offences by its co-defendant, Mr Freeman then, in so far as there is evidence that Mr Freeman had a particular intention, it follows that so too did the council. 202 I have noted that neither the council nor Mr Freeman stood to gain financially from the construction of the roads. The council had little benefit in constructing the roads and therefore this factor cannot add a great deal to the seriousness of its conduct.

Knowledge that offences committed without compliance with Pt 5 of the EP&A Act 203 The council submits that the prosecutor has not proved beyond a reasonable doubt that a Pt 5 assessment under the EP&A Act should have been prepared in respect of the relevant threatened species. Mr Moody's expert evidence, noted in par [204] below should be attributed little weight, for it is just his opinion. According to the submission, even if the obligation had been proven beyond reasonable doubt, there is a rule against punishment for a higher offence: The Queen v De Simoni (1981) 147 CLR 383 at 389; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273 at [146]. It would also be an error to take into account that council knew that Mr Freeman's purported assessment did not comply with Pt 5 of the EP&A Act, when this has not been proven beyond a reasonable doubt. 204 The prosecutor relies on the evidence of Mr Moody, a town planner, that the "preliminary REF" was inadequate to discharge the obligations which were imposed on council by s 111 of the EP&A Act. Although council denies these facts as they were found in Garrett v Freeman (No. 4), the prosecutor submits that the court should take them into account for the sentencing purposes. 205 The prosecutor submits that the council knew that the construction of the roads was an activity within the meaning of Pt 5 of the EP&A Act and that the provisions of that Part imposed obligations upon the council to conduct an assessment as to environmental impact "to the fullest extent". Plainly the council knew that the construction of the roads would impact upon the habitat of threatened species - if only because it developed, and adopted on 10 February 2003, the plan of management for the ASSR project. 206 The prosecutor submits that the council was determined to construct the roads irrespective of the consequences for threatened species' habitat and any training of its director, Mr Freeman, or detailed project planning, or regulatory requirement processes would only have possibly reduced the chances of the offences occurring. 207 I accept the prosecutor's submission. I accept the evidence of Mr Moody that the construction of the roads called for the application of Pt 5 of the EP&A Act. There is no expert evidence to the contrary. Consistent with the provisions of ss 175A and 175B(1) of the NP&W Act, I find that the acts of Mr Freeman are also attributable to the council and that the council had knowledge that the offences were committed without compliance with Pt 5 of the EP&A Act. As noted in par [16] above, although a failure to comply with Pt 5 is not an element of the offences with which the council is charged, compliance with Pt 5 is a defence under s 118D(2)(b). Environmental impact assessments are a vital mechanism for reconciling the interest of development and environmental protection. If the council had complied with that Part, it would undoubtedly make a sensitive planning decision paying careful attention to minimising impacts before carrying out such development and in so doing protecting the environment.

Environmental Harm 208 For the purposes of ss 3A(g), 21A(2)(g) and 21A(3)(a) of the Sentencing Procedure Act, "harm" is not defined. It is, however, defined in s 5 of the NP&W Act, but only by reference to an animal: harm an animal (including an animal of a threatened species, population or ecological community) includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill, but does not include harm by changing the habitat of any animal. 209 I accept that there is no evidence that such harm as described in the above definition was caused. The harm in the present cases is limited to "damage" to the habitat of the three threatened species within the meaning of s 118D(1) of the NP&W Act. 210 "Damage" within the meaning of s 118D(1) of the NP&W Act should be given its ordinary everyday meaning; that is inflicting of anything detrimental. As noted in par [92] above, most dictionary definitions of "damage" tend to cross-refer to the concept of "harm" - a diminution of usefulness or value. 211 For the purposes of whether there is likely to be a significant effect on threatened species "or their habitats" (s 5A of the EP&A), "likely" has been held to mean "real chance or possibility"; and "significantly" to mean "important", "notable", "weighty" or "more than ordinary": Oshlack v Richmond River Council (1993) 82 LGERA 222 at 233, per Stein J (referring to s 77(3)(d1) the predecessor of s 78A(8)(b) of the EP&A Act). The evidence satisfies these tests in relation to the habitat of the threatened species in these cases. 212 The parties agree that actual harm was caused to the habitat, which is an acceptance of the findings made in Garrett v Freeman (No. 4). The prosecutor submits that the harm to the habitat of the Eastern Chestnut Mouse and the Grass Owl is more serious, whereas the harm to the Wallum Froglet is less serious - but hardly trivial. 213 The council submits that any assessment of the environmental harm caused to the three threatened species' habitats must have regard to the pre-existing factual matrix, which I assume is a reference to the impact on that habitat by the ASSR project. Ponding caused by construction of roads 214 I note at the outset that the council does not concede my finding in Garret v Freeman (No. 4) that the roads interfered with the hydrological conductivity of the area. It does however agree that they had the potential to interfere. 215 As noted above, prior to the commission of the offences the Partridge Creek wetland was subject to past disturbances due to acidic discharges caused by prior exposure of acid sulphate soils. The effects of exposure of acid sulphate soils are presently addressed though implementation of the ASSR project: · The ASSR project is intended to restore the hydrology of the area by installing containment walls and a weir gate in the northern section of the creek and strategic infilling several sections of the creek. The works were also aimed at reducing the frequency, intensity and duration of acid discharges from Partridge Creek, containing and treating acidic surface and ground water within the area and restoring the former wetland ecology by raising the groundwater table. · To assess the impact of a range of operational water level scenarios on threatened species, the council commissioned a fauna survey which was conducted by Mr Redpath. Mr Redpath recommended that the reduced water levels could reduce potential impacts on the habitats of the Grass Owl and Eastern Chestnut Mouse by lessening the inundation of the vegetation communities comprising their habitats. · The water retention levels of the strategy were thus reduced from the initially proposed 1.3 metres AHD to a maximum of 0.9 metres AHD to avoid the risk of significant impact on the Grass Owl and the Eastern Chestnut Mouse. 216 The prosecutor submits that the roads interfered with local surface hydrology notwithstanding the raising of the water levels by reason of the ASSR project. 217 The prosecutor argues that the water retention levels could not have prevented water being impounded behind the roads and relies on the photographic evidence which shows the extent to which the east-west road, in particular, was a potential obstruction to water from the south and the south-east. As described by Professor Fox in his oral evidence, the east-west road was constructed substantially above the surrounding area. The council firmly disputes this conclusion, stating that the photographs on their own do not prove that the east-west road was a potential obstruction to water from the south and the south-east. 218 Dr Arthur White, who has expertise in relation to frogs and tadpoles, and expert knowledge in hydrology insofar as it affects frogs and tadpoles, gave evidence of the potential for the east-west road in particular to dam water behind it. In the absence of survey or hydrological data, the council challenges his opinion as purely speculative. Dr White states, however, that one might speculate "on the degree of water impoundment by the east west road and how often it occurred but not the fact of it". I note that the photographs of the area, particularly of the east-west road, support the correctness of Dr White's view. 219 The evidence of Mr Redpath, under cross-examination, also appears to support the evidence of Dr White. He confirms that the 0.9 metres AHD inundation level for the ASSR project was selected to ensure that breeding habitats of the Grass Owl and the Eastern Chestnut Mouse would not be affected by rising water levels. The construction of the roads, however, led to the impounding of water behind them and thus the raising of water levels behind them above 0.9 metres AHD. 220 Dr White's evidence is further corroborated by that of Mr Sainty, who states in his July 2004 report: The road effectively divides the wetland into two sections…and has started to cause "ponding" in the upper part as is evidenced by the wetter areas and changes to plant assemblages on the southern side of the road … 221 The potential for the east-west road in particular to cause "ponding" is challenged by the council on the basis that the water levels of the area were due to rise in any event in order to implement the ASSR project. The council argues that while Dr White agreed that how often the impounding effect occurred would depend on the degree of periodicity of inundation, for which Dr White would have to look at the hydrological data, he had not done so. Accordingly, the court should give the so-called impounding effect little weight. 222 I have come to the firm conclusion that the council's submission, noted in par [214] above, must be rejected and that the evidence of Dr White must be accepted as it is corroborated by Mr Redpath and by Mr Sainty. Mr Redpath, in particular, was involved in the selection of the inundation level of 0.9 metres AHD specifically to ensure that the habitat of the Grass Owl and the Eastern Chestnut Mouse was not affected by rising water levels. Moreover, the photographic evidence is telling and it is self-evident that the east-west road caused ponding to occur on the upper or southern side and that the north-south road had at least the potential to do so. Shortly stated, I find beyond a reasonable doubt that the east-west road interfered with the hydrological conductivity of the area and the north-south road had the potential to do so.

Confounding impacts of rising water levels 223 The prosecutor acknowledges the views of the experts in their joint report and, in particular, observations of Professor Fox that permanently raising water levels would be a confounding factor in assessing the results of remediation. 224 The council also relies on the joint experts' report in which it is agreed that the implementation of some components of the ASSR project, namely, maintaining the overall water level at 0.9 metres AHD, confounds the results remediation. 225 The elevated water levels are a relevant consideration for the purposes of sentencing. The higher water levels are particularly relevant in considering whether there were long term harmful environmental effects caused by the offences. It is more difficult to find the Eastern Chestnut Mouse, for example, when the area is inundated. 226 The council notes that the ASSR project, the main cause of the so-called "confounding" factor, commenced before construction of the roads and the water level in the wetlands is controlled by a weir which is currently set at 0.9 metres AHD. The council also relies on the evidence of Mr Rogers that the construction of the roads did not have any appreciable impact on surface hydrology, for two reasons, namely, inundation during a flood event and high hydraulic soil conductivities. 227 The prosecutor submits that the evidence of Mr Rogers should be given less weight because he has no expert knowledge of hydrology. The council responds that the court should accept his evidence as credible because his expert knowledge in hydrology was not put to him in cross- examination. 228 The prosecutor submits that the fact that the council might inundate the area - and make the area less attractive as habitat for the species - is irrelevant to an assessment of the seriousness of the council's conduct in building the roads in the first place. 229 I accept the prosecutor's argument for the reasons explained in pars [218] to [223] above, but I also take into consideration, as I did in the cases against Mr Freeman, the fact that the current state of the Partridge Creek area is not wholly attributable to the harmful effects of the roads.

Pre-existing tracks 230 The parties agree that there were pre-existing tracks in the vicinity of the alignment of the north-south road. The prosecutor does not agree, however, that there were pre-existing tracks in the vicinity of the east-west road and relies on the evidence of Mr Redpath to support this proposition. 231 The council argues that there were pre-existing tracks on the land and the prosecutor has not proved Mr Redpath's contrary view beyond a reasonable doubt and relies on the evidence of Mr Rogers who was supervising the ASSR project and had been to the site numerous times. The council also disagrees that the roads were substantial structures with a far more dramatic impact upon the habitat of threatened species than the pre-existing tracks. 232 I do not agree. I have already found, as noted in par [37] above, that the roads that were built were substantial structures. I accept the evidence of Mr Redpath that there was no existing track along the alignment of the east-west road, a fact which is confirmed by the "before" and "after" aerial photographs which are in evidence. I accept that there was a pre-existing track along the alignment of the north-south road, which was subsequently constructed as a road. I thus find proved beyond a reasonable doubt that there was no existing track along the alignment of the east-west road, but there was an existing track along the alignment of the north-south road, and that the roads were built as substantial structures.

Environmental harm after excavation of the roads 233 The summary of the evidence in pars [101] and [102] above are also applicable in the case against the council, and which I adopt for the purpose of sentencing in the case against the council.

Extent of harm caused to the habitat of the Wallum Froglet 234 As noted above, the nature of the damage caused to the habitat of the Wallum Froglet can be described as damage by disturbance, loss of preferred wetland and sedgeland areas, the introduction of potentially invasive weeds and grasses, and provision of enhanced access to predators. 235 The parties agree that remediation by way of removal of road materials has eliminated the main obstacle to the restoration of the Wallum Froglet's habitat. 236 The prosecutor relies on the evidence of Dr White that the construction of the roads caused damage to the Wallum Froglet habitat. Dr White's evidence as to the damage to that animal's habitat caused by fixed rather than fluctuating water levels, was not challenged. 237 Dr White was, however, challenged on his opinion that construction of the roads resulted in loss of the Wallum Froglet's habitat due to loss of the uneven or undulating surface levels which existed on either side of the east-west road. He rejected the suggestion that this was speculative, explaining that it would be unreasonable to assume the land on which the roads had been built was any different to the land on either side of it. 238 Dr White agreed, however, that although the extent to which the level can be maintained depends on different factors, if the water level can be maintained at 0.9 metres AHD it will pose as many problems for the Wallum Froglet as did the construction and removal of the roads in the first place. Installation and removal of the roads has had a number of impacts which may be exacerbated by the weir - which also accords with the joint experts' report. 239 The council submits that the assumption that a level of 0.9 metres AHD will be maintained was the basis of speculation by Dr White that the Wallum Froglet will be affected. Evidence or speculation based on water levels maintained at 0.9 metres AHD, or obtuse references to "the weir", are of little or no probative value. 240 Dr White's evidence is also challenged on the basis that he never sighted the roads, having inspected for the first time after the removal of the roads, and not at the optimal inspection time for a nocturnal species such as the Wallum Froglet. He visited the site after exceptional inundation by rain, when there was already the ASSR project in place as well as some removal of the roads, but still found that Wallum Froglet habitat covered a large portion of Partridge Creek Area. He did not know the finished levels of the roads when they were constructed, nor had he examined the hydrological data to establish the levels of inundation from the date the ASSR project was completed, through the date of construction of the roads until daylight inspection on 27 August 2007. I conclude that in the light of this evidence I am not persuaded by Dr White's opinions and I rely on the joint experts' report. 241 Consistently with my finding in par [222] above and the joint experts' report, I find beyond a reasonable doubt that the roads provided a barrier to water movement, and excavated areas following removal of the roads may allow for pooling of water which allows access for predatory fish, particularly Gambusia, and some competing frog species, potentially reducing its habitat value. 242 The joint experts' report notes that the large pool at the section WL1 of the north-south road is too deep to provide suitable habitat for the Wallum Froglet, now colonised by Gambusia, but adjoining areas are likely to provide suitable habitat during drier times. The continuing implementation of the ASSR and maintaining of water levels at 0.9 metres AHD will render section WL2 of the east-west road unsuitable, but additional ephemeral habitat could be created. Sections WL3 and WL4, are unlikely to provide suitable habitat unless significant rehabilitation works are undertaken, or prolonged drought occurs. As noted above, I accept the opinions expressed in the joint report.

Extent of harm to the habitat of the Eastern Chestnut Mouse 243 The council submits that a proper understanding of the evidence below leads to the conclusion that the offences only affected "non-core" habitat of the Eastern Chestnut Mouse and that there should be no lasting environmental harm, provided the area continues to be remediated and controlled. The council argues that the extent of damage is debatable, with Mr Rogers even suggesting that the habitat modification has the potential to favour the species. 244 The prosecutor relies upon the joint experts' report and the evidence of Professor Fox noted in pars [111] and [112] above. 245 Professor Fox's evidence was challenged on the basis that he never sighted the roads, having inspected them for the first time after the removal of the roads, and that he reviewed reports of others rather than carried out his own systematic surveys for the Eastern Chestnut Mouse. I accept, however, the evidence and the opinions of Professor Fox and I come to the same conclusions as in the case against Mr Freeman and for the same reasons. 246 The evidence given by Mr Redpath in relation to the harm to the Eastern Chestnut Mouse is also relevant (see pars [104] to [109] above). In particular, the council relies on Mr Redpath's statement that there are a number of factors which are likely to have affected the presence of the mouse. 247 The council refers to Professor Fox's observations about Mr Redpath's extensive but unsuccessful trapping exercise, which is corroborated by Mr Milledge's own experience that it is generally a difficult species to detect by the standard method of trapping. Mr Milledge also agrees with Professor Fox that the Swamp Rat displaces the Eastern Chestnut Mouse from the habitat. Therefore, one cannot conclude that the mouse is absent from the habitat or has been permanently displaced if only the rat is found. Again, however, I prefer the evidence of Mr Redpath, who was familiar with the area both before and after the construction of the roads. I have also already stated that I accept the evidence and opinion of Professor Fox. 248 The council relies upon the HWR report described in par [113] above. It further submits that the HWR Report subsumes earlier admissions that it made in the agreed statement of facts because it is better tested evidence and was admitted without objection. 249 The prosecutor submits that no weight can be placed on the document for the purpose that the council relies on it. The arguments advanced by the prosecutor in this respect can be found at pars [114] to [115] above. 250 The council acknowledges that the HWR report is not an expert report. Neither Mr Rogers nor Mr Milledge is prepared to discard the observations recorded in the HWR Report, although both concede that it could have been presented with, for example, detailed supporting data such as appendices. In his oral evidence on 30 September 2008, Mr Milledge demonstrated that Mr John-Paul King's observations were consistent with Mr Redpath's and Mr Milledge's own surveys. Thus, it is submitted, the report should be accorded "probative weight" and the court would conclude that the threatened species were present at the site after the construction of the road works. 251 I do not accept the council's submission. I give the HWR report little weight for the reasons I have expressed in pars [116] above. 252 The joint experts' report states that there would be no lasting adverse impact at road sections WL1 or WL3 because these areas are not considered suitable habitat for the species. Similarly, there is no lasting impact at road section WL2 because much of that east-west road section and the adjacent habitat is unsuitable for the species and more suitable for competitively dominant species. At this location the species are also subject to predation due to retention of the linking road to the east and west. At road sections WL3 and WL4 the lower level of the excavated road and the depth of water have created habitat that is too wet to be suitable for the species. I accept the opinions in the joint experts' report.

Extent of harm to the habitat of the Grass Owl 253 The council submits that the assertion that the construction of the east-west road destroyed either a site where owls were roosting, or a site where owls were nesting has not been proved beyond a reasonable doubt for the following reasons: · As noted at [134] there were some inconsistencies in Mr Redpath's evidence; · Mr Milledge is not certain that Mr Redpath established that there was a "pair"; and · Mr Milledge does not agree that Mr Redpath's coordinates coincide with the east-west road. 254 According to the submission, care needs to be taken with Mr Redpath's shifting evidence in relation to what was observed at PCS-002 in surveys pre-dating the construction of the roads. In particular, in the 2005 Redpath's survey, which post-dated the construction of the roads, he did not treat the roads as being the determinative, or even the most likely factor, causing then-observed impacts on habitat. Mr Milledge's evidence casts doubt on, among other things, play-back methodology as a reliable tool in surveying for owls. 255 In response to the criticisms of Mr Milledge, the prosecutor submits that irrespective of the technical meaning which might be attributed to the term "survey", the record of the observations made in 2004-2005 in appendix 3 to the 2005 Redpath's survey contains numerous sightings of different birds at both dawn and dusk during a total of 21 days. The sightings of the Grass Owl are few given the effort involved in those sessions and none are of a pair behaving in the way a pair was observed to behave south of PCS-002 in August 2002. Finally, Dr Debus accepts Mr Redpath's supposition that the road went through a roosting site for a pair of owls. 256 The joint experts' report acknowledges, however, that the east-west road went through a known roosting site. Again I accept the opinions in the joint experts' report and I find beyond a reasonable doubt, therefore, that the east-west road went through "core" habitat of the Grass Owl. 257 Mr Milledge further concludes that all three threatened relevant fauna species currently occur in the Partridge Creek catchment and that their habitats are currently being restored. He considers that populations of the three threatened fauna species appear likely to be maintained if restoration of their habitats is achieved in accordance with the Partridge Creek Ecological Restoration and Conservation Management Plan adopted by the council on 9 July 2008 to which I will refer below. I note again, however, that there was no attempt to rehabilitate the area for three years following the commission of the offence. I agree that the roads appear to have had little impact on the species themselves. 258 Dr Debus states that it is possible that a pair of owls seen in 2007 by Mr Milledge, and in 2002 as detected by Mr Redpath, was probably the same pair or, at worst, recolonisation by new individuals. Dr Debus says that one would not expect to find very many owls by area searches because they are difficult to flush during the daytime. It seems to me that the views of De Debus are plausible. I find, therefore, that, since the owls are difficult to flush during the daytime, there is no evidence to suggest that the population has actually diminished as a consequence of the construction of the roads. 259 The prosecutor relies on the joint expert report as against the council in pars [139] to [140] above. The prosecutor also points out that one of the authors of the report, Dr Debus, is very well qualified in relation to the Grass Owl and is familiar with Partridge Creek. 260 I repeat my finding at [142] that there was minimal impact on the actual habitat of the species, but for the fact that a section of road that was an actual roosting habitat.

Feral Predators 261 The prosecutor relies on the evidence of Professor Fox described in [143] as against the council. 262 In response to the evidence of Professor Fox, the council relies on the evidence of Mr Milledge in [144] that there is no real evidence of predation of the species. 263 I find, however, in accepting recommendations in the joint experts' report, that there is evidence of a greater presence of predators in the area since the construction of the roads. I repeat my finding in par [151] above. That is, I am satisfied beyond a reasonable doubt that the presence of the roads allowed more ready access to the area by feral predators.

Conclusion on environmental harm 264 The council makes a number of general submissions in relation to harm. It relies on an analysis of the total area of habitat affected: · the relevant habitats total some 100 hectares according to Mr Rogers and the damage was caused to 0.6 per cent of that area; · the freshwater wetlands habitats have an areal extent of approximately 200 hectares according to Mr Milledge, on which basis, Mr Rogers' percentage occupied by the roads would reduce to 0.3 per cent; · According to Dr Debus, the east-west road removed small percentage of the total area of habitat available in the Partridge Creek grassland/wetland system of "potential Grass Owl roosting or breeding habitat". 265 The council submits that when the remediation of the road works and ongoing restoration is taken into account, the net effect on the threatened species is arguably less than the effect which roads would have had if they had been constructed in accordance with Pt 5. I disagree. This submission assumes that the construction of the roads would have been approved if a Pt 5 assessment had been carried out. 266 I repeat my findings and the reasons therefor in pars [149] to [153] above as to the extent of environmental harm caused by the construction of the roads.

Objective gravity of the offences 267 I note the prosecutor submits that the offences committed in this case by the council are serious and the level of gravity is at the upper limit of moderate seriousness.

Remediation, amelioration and recompense 268 Recompense can be a mitigating factor as outlined in par [162] above. 269 In 2008, the council commissioned, adopted and commenced to implement the Partridge Creek Ecological Restoration and Conservation Management Plan prepared by Landmark Ecological Services Pty Ltd. The management plan outlines a range of restoration actions and if the council funds and implements the plan for the ten year life of the plan, there will have been an effective remediation of the Partridge Creek area as can be achieved in the circumstances. Mr Rogers states that funding for the remediation management plan is quarantined in the council's funds and is secure, and that development of council's sewerage treatment strategy is dependent upon implementation of the management plan. Monitoring of the management plan will be handed over to reputable local ecologists, Kendall & Kendall Ecological Consultants. 270 The prosecutor concedes that the council has put in place or is in the process of putting in place systems to prevent a recurrence of conduct of the type which comprised these offences, specifically its new project management framework and its revised environmental assessment processes. 271 The evidence of Mr Rogers demonstrates that there is now a number of "trip wires" which trigger the requirement for further environmental assessments or approvals for activities such as those which caused the offences to take place. Mr Rogers states that these new procedures ensure that a person who plans to undertake an activity is accountable within the council's management systems. 272 Mr Rogers, in his oral evidence, explained that the Partridge Creek Ecological Restoration and Conservation Management Plan, adopted by the council on 9 July 2008 following assessment of the wetland environment and the impact caused by the construction of the roads - · includes remediation of unexcavated linking roads; · exceeds remediation of the area subject to these proceedings; · incorporates the extension of the council's Thrumster Feral Animal Control Program, which has been operating successfully since its inception in 2005 and has the objectives to conserve biodiversity and to protect known threatened species; · is being supervised, including under the Thrumster Feral Animal Control Program, by Ms McKinley, Ms Stewart and Mr Milledge, with ongoing fieldwork proposed to be carried out in the future by local ecologists in whom Mr Milledge reposes professional confidence; and · is likely to incorporate trial manipulation of habitat for the Eastern Chestnut Mouse. 273 The maintenance of the overall water level for the whole area the subject of the ASSR project at 0.9 metres AHD, versus reducing it, is also under active consideration. 274 Ms McKinley and Ms Stewart predict that vegetation regeneration over the road sections in terms of restoration targets set out in the Partridge Creek Ecological Restoration and Conservation Management Plan is good, based on observations to date. 275 Moreover, the evidence shows that the council has taken a number of steps to make recompense for the damage to habitat caused by its conduct. In particular, I take into account the evidence of the council's Thrumster Feral Animal Control Program, which is described in the report of Mr Milledge dated 7 November 2007 as: controlling the Red Fox, Feral Cat and Feral Dog population in and around the wetland through an effective baiting and trapping program to reduce predation pressure on threatened species, particularly the Grass Owl and Eastern Chestnut Mouse. 276 I also acknowledge that in respect of the Wallum Froglet, remediation by way of removal of the road materials has eliminated the main obstacle to restoration of its habitat. 277 The council submits that the quantity and quality of restoration work to date arguably exceeds any ameliorative measures which may have been associated with the construction of the roads as a Pt 5 activity, or any conditions or modification which may have been imposed or required to render the activity unlikely to significantly affect threatened species or their habitats before it was approved and carried out. Again, I disagree. The submission assumes that the construction of the roads would have proceeded is a Pt 5 assessment had been carried out.

Contrition and insight 278 I repeat the principles relevant to the matters of contrition and insight which I take into account in pars [165] and [167] above. 279 The prosecutor divides the evidence in the case against the council into two categories. First, there was the period up to the departure of Mr Smith as general manager and the appointment of Mr Richard Mark Persson as administrator of the council. 280 During this first period, on the evidence of its general manager Mr Smith, the council maintained strong support for Mr Freeman's actions, even after he was found guilty. Despite Mr Freeman's apparent inability to appreciate the need for careful assessment of the environmental effects of development work, and after the council and Mr Freeman had been charged with these offences, the council in 2005 put Mr Freeman in charge of water and natural resources. The fact that Mr Freeman was put in charge of water and natural resources must be read, however, in the context of the other measures implemented by the council at around and since that time. Mr Freeman resigned from the council on 11 September 2008. 281 This, in the prosecutor's submission, would not support a conclusion that before 2008 the council had learnt its lesson from the commission of these offences or from the bringing of these proceedings. 282 The prosecutor relies upon the council's actions relating to providing information to assist with the investigation of the offences. The parties accept my findings of fact in Garrett v Freeman (No. 4) at [219] - [266] that: · the council, by its executive employee Mr Freeman, responded to a notice under s 169 of the NP&W Act and a notice under s 193 of the Protection of the Environment Operations Act, by failing to furnish requested information and documents and by furnishing incorrect information. · Mr Freeman was aware as at May 2004 that the council had a large amount of information in relation to the land at Partridge Creek and he stated in his oral evidence that he arranged for various staff, who would have access to that material, to compile that information and provide a response to the DEC. · When the prosecutor informed Mr Freeman that no documentation was provided, except a two page letter, he replied that the response was provided on advice from the council's then solicitor, Mr Miles. · Mr Freeman could not explain why his response to the request for information and records did not contain all available documentation, other than that was the response that was provided on advice at the time. · Mr Freeman agreed that Mr Miles gave him legal advice that it at least was all right to respond to the request for all documentation in relation to the land by saying there is no documentation, when in fact the contrary was the case. 283 Shortly stated, I find that this demonstrates a failure by the council to co-operate in the prosecutor's investigation of the offences and moreover, an attempt to mislead the prosecutor in its investigation of the offences. 284 During the investigation period, and after the finding of the offences against Mr Freeman were proved, the council showed no contrition or insight. To the contrary, the council's then general manager, Mr Smith allegedly responded to this court's judgment against Mr Freeman by publicly saying: … we installed a minor track and the Land and Environment Court has found that from an administrative point of view, there were some flaws in the process.

I find that this demonstrates a complete lack of understanding by the council through its general manager of the seriousness of the offences with which it has been charged. 285 The council should have the benefit of the fact that it has since then demonstrated genuine contrition and remorse through its actions and words as described in Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 at [203]. 286 In addition to the matters outlined in pars [269] to [275] above, the council has sought to rectify any harm caused or likely to continue to be caused by: · engaging Mr Berrigan of Darkheart Eco-Consultancy to prepare a report for the council presenting the findings of his assessment of the effects of roadway construction; · carrying out restoration work including the removal of the roads in early 2007, expending at least $31,866 to date on mitigating the damage/restoring the threatened species habitat; · proposing to secure the conservation status of the area by its future zoning. 287 The council repudiates the assertion that it showed no contrition or insight and care needs to be taken that Mr Smith's personal support and reference for Mr Freeman are not wrongly attributed to council. I disagree. Mr Smith was the council's general manager and was authorised to take such steps and make such statement on its behalf, and he did so on behalf of the council. 288 The council's plea of guilty was entered during this first period. Although the council may be entitled to the full utilitarian value of its plea, its entry is consistent with a recognition of the strength of the prosecutor's case, that the council had committed the offences with which it was charged: R v Winchester (1992) 58 A Crim R 345, 350 per Hunt CJ at 350, quoted in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 388 [14]). 289 The court has evidence of contrition and remorse in the affidavits and oral evidence of its current administrator, Mr Persson. That evidence is not challenged. Further, I accept that the council's efforts at remediation of the Partridge Creek area are also evidence of contrition. The council is entitled to have its remorse and contrition taken into account but it cannot be given the same weight as remorse evidenced at a much earlier stage than in the closing of stages of the court proceedings. 290 I accept the fact that the council has now put in place systems to avoid a repetition of these offences. This evidence is not challenged. Although not necessarily evidence that the council understands the reasons why the offences were committed, it is evidence that it understands that there were planning and project development systems deficiencies which contributed to their commission. 291 I accept that the measures the council has now, albeit somewhat belatedly, taken since the commission of the offences satisfy the four forms of action underlying genuine contrition and remorse discussed in Environment Protection Authority v Waste Recycling and Processing Corp, noted in pars [365] and [366] below

Prior good character 292 A relevant consideration in sentencing is prior good character as outlined in par [170] above. The council has the benefit of written references as to general environment protection. The prosecutor submits that so far as concerns the evidence of the council's "good" environmental works, it will be noted that this evidence has as its primary location the council's work in relation to aquatic environments rather than wetlands or threatened species habitat. 293 The prosecutor's submission is contradicted, however, by evidence relating to the ASSR Project. A final report of June 2006, annexed to the affidavit of Mr Rogers, states that: with the adoption of the Management Plan by Hastings Council, the Partridge Creek wetland area has been designated for wetland conservation and the preservation of threatened species.

I accept the council's submission that the ASSR project is consistent with the objects of the NP&W Act and Threatened Species Conservation Act .

Plea of guilty 294 The council's plea of guilty is a relevant consideration to be taken into account in sentencing: s 22 of the Sentencing Procedure Act. 295 Any discount should reflect the utilitarian benefit flowing from the fact of the entry of a plea of guilty and the stage at which it was entered avoided the cost to the community of evidence collection and any hearing of the charges: R v Thomson; R v Houlton; (2000) 49 NSWLR 383 at 419 [160]). 296 The council's pleas were entered in at an early stage and thus it is entitled to full usual discount of 25 per cent the penalty which would otherwise be appropriate. 297 Where there is evidence that the plea was entered by way of remorse, that should be reflected in mitigation of sentence separately from a discount for their utilitarian value. The question is whether there is a basis for making an affirmative finding that is more probable than not that the pleas of guilty entered by the defendant council give practical expression to genuine contrition. 298 I accept the prosecutor's submission that until the appointment of the administrator and the departure of the former general manager, the council's conduct in relation to these matters bespoke a complete absence of remorse. In that context, the comprehensive nature of the prosecution case and the inevitability of the conviction are the only explanations for entry by the council of its pleas of guilty, and thus no indication of genuine remorse or contrition at all. This does not disentitle the council to a separate discount for its recently realised remorse. It is simply that the plea of guilty cannot be treated as evidence of remorse.

Co-operation with the authorities 299 The extent to which the court takes into account the degree to which the defendant has co-operated with law enforcement authorities is set out in pars [171] and [172]. 300 The council submits that, to the extent that it did not provide the degree of assistance to law-enforcement authorities for the purposes of reducing penalty, it was by Mr Freeman, acting on the advice of the council's then legal advisors, that it did such a thing. I disagree with the council's submission. Mr Miles, upon whose advice Mr Freeman acted, was acting in the capacity of the council's solicitor and Mr Freeman's actions must be regarded as those of the council. 301 The prosecutor acknowledges that there is evidence favouring the council inasmuch as it co-operated with the preparation of the prosecutor's cases against Mr Freeman. However, there is also evidence that the council seriously obstructed the investigation of these matters. I agree that this negates any benefit council should otherwise have received for its assistance in preparation of the cases against Mr Freeman.

Financial commitments of the council 302 There are considerations to be taken into account when applying s 6 of the Fines Act that are described in par [174] above. 303 I acknowledge the media publicity that this case has received in both the Port Macquarie-Hastings area and in local government circles and the concern which it has aroused. On this evidence, this is as case where general deterrence will be particularly important and where a small or nominal fine would send the wrong message. 304 However, I also take into account the ongoing financial commitment of the council and the fact that it will continue to implement its Thrumster Feral Animal Control Program and the Partridge Creek Ecological Restoration and Conservation Management Plan over a ten-year period. This financial commitment is relevant when considering the level of fine to be imposed: Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440 per Hulme J at [54] (Barr J agreeing at [62]); D-G National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [84].

Even-handedness 305 I take into account the principle of even-handedness outlined in par [177] above. I do not find that the case of Carmody v Brancourts Nominees Pty Ltd (No. 2) provides a relevant comparison to the present matter. The damage to habitat in that case was not to trees which afforded the main habitat for koalas, but to understorey vegetation comprising mainly introduced weeds.

Payment of costs 306 The parties have agreed that the prosecutor's costs attributable to the council are $114,000. I do not take into account the fact that council has agreed to pay Mr Freeman's costs. The council was under no obligation to do so. Suppose, for example, that in the course of his duties Mr Freeman were to be charged with a criminal offence and its commission were attributable to a neglect on his part - negligent driving for example. It would be unthinkable if the council were to then meet Mr Freeman's legal costs in defending the charge - or any other criminal charge.

Appropriate penalty 307 The fact that the three offences arise out of the same course of conduct means that the totality principle described by the Court of Criminal Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority applies. 308 The council asks that I take into account the possibility that any fine imposed against the council will be borne by the residents of the local government area of Port Macquarie. That is, any fine would decrease the council's working capital for conducting its other essential services. I rejected a similar submission in Environment Protection Authority v Tenterfield (2000) 112 LGERA 173 at [38]-[42] because it obscures the overriding need for general deterrence, and reject it again in this case. 309 It is also appropriate, in my view, to take into account the objects of the NP&W Act, noted in par [59] above. These objects describe the purpose of s 118D and taking those objects into consideration is not double counting, as the council submits; that is s 118D is not a stand-alone provision. The objects identify the mischief that the NP&W Act seeks to avoid. 310 Having regard to the various findings discussed above, an appropriate penalty for each offence, after applying the totality principle, is $38,000, $19,000 and $9,500 respectively. The council is entitled to a full discount of 25 percent for the early plea of guilty. In taking into account the other mitigating factors - in particular the remediation work - a total discount of 30 percent is appropriate. This results in fines of $26,600, $13,300 and $6,650 respectively. 311 As in the case against Mr Freeman, the fines must be paid into the National Parks and Wildlife Fund.

(1) The defendant is convicted of the offence as charged. (2) The defendant is fined in the sum of $26,000. (3) The fine must be paid into the National Parks and Wildlife Fund in accordance with sections 137 and 176(3) of the National Parks and Wildlife Act 1974. (4) The defendant must also pay the prosecutor's costs in the agreed sum of $114,000 in accordance with s 253 of the Criminal Procedure Act 1986 (as in force at 9 September 2005). (5) The exhibits may be returned.

(1) The defendant is convicted of the offence as charged. (2) The defendant is fined in the sum of $13,000. (3) The fine must be paid into the National Parks and Wildlife Fund in accordance with sections 137 and 176(3) of the National Parks and Wildlife Act 1974.

(1) The defendant is convicted of the offence as charged. (2) The defendant is fined in the sum of $6,500. (3) The fine must be paid into the National Parks and Wildlife Fund in accordance with sections 137 and 176(3) of the National Parks and Wildlife Act 1974.

SENTENCING CONSIDERATIONS IN CARTER V PORT MACQUARIE-HASTINGS COUNCIL 313 The council in these proceedings pleads guilty to the charge that it carried out reclamation work without authority of permit issued by the Minister contrary to s 200 of the FM Act. The question for determination before me is the appropriate penalty. The purposes of sentencing in the Sentencing Procedure Act s 3A outlined in pars [50] to [56] above also apply in these proceedings.

Maximum penalty 314 The maximum penalty fixed by the parliament for an offence against s 200(1) of the FM Act is $220,000. The maximum penalty applies, of course to the "worst case" scenario. The council submits that this case is nowhere near the "worst case" scenario.

Nature of the offence having regard to the objects of the Act 315 The objects of the FM Act are set out in s 3:

(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.

(2) In particular, the objects of this Act include: (a) to conserve fish stocks and key fish habitats, and (b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and (c) to promote ecologically sustainable development, including the conservation of biological diversity, and, consistently with those objects: (d) to promote viable commercial fishing and aquaculture industries, and (e) to promote quality recreational fishing opportunities, and (f) to appropriately share fisheries resources between the users of those resources, and (g) to provide social and economic benefits for the wider community of New South Wales. 316 Several fundamental goals of modern environmental regulation are clearly reflected in the objects of the Act, namely the promotion of ecologically sustainable development; the preservation of biodiversity; and establishing inter-generational equity in relation to development and the use of resources. 317 Part 7 of the FM Act deals with the protection of aquatic habitats and Div 3 specifically regulates the carrying out of dredging or reclamation works in wetlands. The motives of ecologically sustainable development can again be observed in s 198 which outlines the objective of Div 3: The objects of this Division are to conserve the biodiversity of fish and aquatic vegetation and to protect fish habitat by providing for the management of dredging and reclamation work, consistent with the objectives of ecologically sustainable development. 318 Section 203(1) of the FM Act informs the type of damage intended to be secured against by the requirement under s 200(1) to obtain a permit issued by the Minister before carrying out reclamation work. The section provides: (1) If dredging or reclamation work is carried out in contravention of section 200 or 201, the Minister may, by order in writing given to the local government authority or person concerned, require that authority or person to carry out, within a period specified in the order, such remedial work as the Minister considers necessary to rectify the damage caused by the dredging or reclamation work to fisheries and fish habitats. (2) A court that convicts a person of an offence against section 200 or 201 may also make an order of the kind referred to in subsection (1). 319 "Fishery" is defined in s 6 of the FM Act as including "(a) a species of fish, (b) an area of waters or seabed...". "Fish habitats" is not defined in the Act. 320 Section 198A provides the following definitions: reclamation work means any work that involves:

(a) using any material (such as sand, soil, silt, gravel, concrete, oyster shells, tyres, timber or rocks) to fill in or reclaim water land, or

(b) depositing any such material on water land for the purpose of constructing anything over water land (such as a bridge), or

(c) draining water from water land for the purpose of its reclamation.

(b) whether forming an artificial or natural body of water,

and includes wetlands and any other land prescribed by the regulations as water land to which this Division

wetlands includes marches, mangroves, swamps, or other areas that form a shallow body of water when inundated intermittently or permanently with fresh, brackish or salt water and where the inundation determines the type and productivity of the soils and the plant and animal communities. 321 Mr T G Howard, appearing for the prosecutor, submits that the offence committed by the council is of a type that tends to undermine the regulatory system in place under Div 3 of Pt 7, comprising, the carrying out of significant reclamation works by a local government authority without a permit issued by the Minister and without any genuine prior assessment of likely environmental impacts having been undertaken. The prosecutor further submits that such conduct tends to directly undermine the promotion of ecologically sustainable development and the conservation of biodiversity, which are fundamental to the object of the FM Act. The offence is, by its nature, a serious offence. I accept the prosecutor's submission, which is self-evident. 322 The council submits that even if the objects of the regulatory system were undermined, they do not operate as independent indicia of the seriousness of the offence. It must be assumed that the inclusion in the FM Act of the strict liability offence created by s 200 and the maximum penalty wholly achieves the objects referred to in par [315] above. A separate consideration of whether the offence tends to undermine the regulatory system in place under Div 3 of Pt 7 of the FM Act would have the effect of "double counting" the same considerations. I do not agree. Section 200 is not so limited in its function. 323 I thus find the construction of the subject roads in the Partridge Creek wetland area by the council in contravention of s 200 is a fairly stark example of the type of development which is not ecologically sustainable and the conduct of the council highlights the mischief that the FM Act seeks to avert.

Objective gravity of the offence 324 There are two components to the assessment of the objective gravity of an offence: an examination of the precise acts or omissions of the offender; and the consequence of those acts or omissions: R v Carroll [2008] NSWCCA 218 at [39], cited by Biscoe J, in Environment Protection Authority v Snowy Hydro Limited 162 LGERA 273 at [137]. 325 The parties have prepared an agreed statement of fact which I briefly summarised in pars [38] to [49] above. 326 The parties agree that the offence created by s 200 of the FM Act is one of strict liability and there is no mens rea as an element of the offence. 327 It is common ground, evidenced by the plea of guilty, that the elements of the offence have been satisfied: · that the defendant was a local government authority; · that a provision of the FM Act was contravened by a local government authority; · that the council carried out "reclamation work" as defined in s 198A of the Act, by constructing four section of road on "water land" as defined in s 198A of the FM Act; · that the thing carried out was not authorised by a permit issued by the Minister.

328 The council submits, however, that a breach of Pt 5 of the EP&A Act is not part of the elements of the offence. I agree. In this instance it seems to me that the "determining authority" for the purpose of Pt 5 is the Minister, whose authority of a permit is required to carry out reclamation work - not the council, which would be "the proponent" for the purpose of that part. Accordingly, the evidence on the question of whether an assessment by the council under Pt 5 of the EP&A Act was either required or attempted is not relevant to the commission of this offence, except to the extent that the council was required to apply to the Minister for a permit before it could lawfully do the work. 329 The reclamation works were carried out without a permit issued by the Minister under the FM Act in circumstances where it must properly be inferred that the council was aware that a permit was required. 330 The reclamation works were carried out without any genuine prior assessment of their potential to affect the aquatic habitat. Had the council applied for a permit, likely impacts on the wetland would have been properly considered. 331 The prosecutor submits that the reclamation works carried out by the council in constructing the subject roads were significant in scale. A total of about one kilometre of road was emplaced in four sections of the wetland. Much of the north-south road and all of the east-west road was constructed through wetland. Those sections of the roads had the effect of reclaiming area of wetland. That was because the roads were raised above the level of the wetland and no longer supported macrophytes and vegetation characteristic of the wetland. 332 It is an agreed fact that the total length of the roads, excluding those parts which are not alleged to have been constructed in wetland areas, are just over a kilometre, approximately 1012.44 metres, comprising 104.33 metres for the section between WL1 and WL1A; 498.11 metres for the section between WL2 and WL2A; 149.40 metres for the section between WL3 and WL3A and 260.59 metres for the section between WLA and WL4A. It is also agreed that the total bottom surface area of the roads, again excluding parts that are not constructed in wetland, is approximately 6,553 square metres, comprising 709 square metres for the section between WL1 and WL1A; 3,504 square metres for the section between WL2 and WL2A; 864.3 square metres for the section between WL3 and WL3A and 1,475 square metres for the section between WL4 and WL4A. The total volume of earthen material and gravel constituting the roads, excluding parts that are not constructed in wetland, is estimated to be 1,034 cubic metres, comprising 161 cubic metres for the section between WL1 and WL1A; 378 cubic metres for the section between WL2 and WL2A; 221 cubic metres for the section between WL3 and WL3A and 274 cubic metres for the section between WL4 and WL4A.

Partridge Creek wetland 333 I take judicial notice of the fact that wetlands effectively function, inter alia, as a nursery for fish and are an important component of fisheries stocks. That is, wetlands contain fish habitat as that term is used in Div 3 of Pt 7 of the FM Act. 334 In relation to the general importance of wetlands, the report prepared by Sainty & Associates Pty Ltd in July 2004, states: W etlands are among the most productive of ecosystem types and contribute greatly to the vitality and productivity of the river systems and estuaries that they drain into [Moss, B (1988) Ecology of fresh waters. Man and medium, 2nd ed, Blackwell Scientific Publications]. They are therefore an extremely important part of the landscape and need to be adequately represented in decision making processes at a number of spatial scales. …wetlands are an abundant source of food that includes large numbers of invertebrates, frogs, fish and aquatic plants. Naturally fluctuating water levels, particularly following flood events, ensures a diverse and abundant supply. 335 In his affidavit of 18 July 2005, Mr Sainty, a practising wetland ecologist, states that the Partridge Creek wetland has a high ecological value and comprises an "unusual assemblage" of vegetation and is worthy of conservation.

Environmental harm 336 The environmental harm caused by the offence is the harm caused to the aquatic environment and not any harm that may have been occasioned to threatened species in this prosecution. In the present case, the joint experts' report establishes beyond a reasonable doubt that it is likely that the reclamation work harmed, that is, caused damage within the meaning of s 203(1) of the FM Act, to fish habitat. I repeat the observation as to the meaning of damage in this context, noted in par [92] above. 337 The prosecutor submits that the evidence establishes beyond a reasonable doubt that the placement of the roads impacted adversely on the Partridge Creek wetland during the period of approximately three years before they were removed, by interfering with the hydrology of the wetland, causing discernible ponding on the upstream side of the roads away from the culverts and consequential changes to plant assemblages; and creating the potential to obstruct the passage of fish.

Confounding factors 338 The prosecutor further submits that the value of the wetland is not reduced by way of significant past disturbances such as the ASSR project. Prior to the construction of the roads, the wetland had fish stocks, but these were apparently limited because of the particular acid sulphate soil problem which existed. These factors confound the question of what harm was caused to the aquatic environment of the wetland by the commission of the offence. 339 I take into account that, prior to the commission of the offence, the wetland was highly modified and significantly degraded by acidic discharges caused by prior exposure of acid sulphate soils; when the offence was committed, the council had already commenced the ASSR project which involved raising the water levels; and the roads were removed in February 2007 and the affected area continues to undergo a process of recovery. That is, consideration of harm should have regard to the pre-existing factual matrix insofar as the pre-existing environment promoted or had an impact upon fish habitat. I take into account the full effects of the ASSR project. 340 The parties agree that the road running north to south was constructed along what Mr Aaso recalls was an old track running along roughly the same axis as the north-south road: Garrett v Freeman (No. 4) at [26]. That track, however, was at ground level and did not interfere with the hydrological conductivity on the land which was a consequence of the laying of the road base and the construction of the roads. 341 Due to these confounding factors, it is difficult to determine the degree to which the aquatic environment of the wetland was harmed by the commission of the offence, although there was actual harm and potential for further harm. 342 The prosecutor submits that, except where the roads included culverts for the passage of water underneath them, the roads formed a barrier to the movement of water across the area that did not previously exist. The road therefore interfered with the hydrological conductivity of the area. 343 Mr Sainty, an experienced ecologist who first inspected the wetland on 31 May 2004, said in his report of July 2004, of what is now referred to as the east-west road: The road effectively divides the wetland into two sections (Fig. 7) and has started to cause "ponding" in the upper part as is evidenced by the wetter areas and changes to plant assemblages on the southern side of the road (Fig. 8). 344 Consistent with the above observation, Mr Sainty concluded: Evidence of wetter areas adjacent to the road is already apparent where there has been a change of species abundance and diversity along the edge of the road. 345 The council relies on the evidence of Mr Rogers. In his affidavit of 22 September 2008, Mr Rogers states that the construction of the roads did not have any appreciable impact on surface hydrology because of inundation after the flood events; and high hydraulic soil conductivities. I do not accept this evidence because it is contrary to the evidence of ponding that was observed by Mr Sainty. 346 In so far as Mr Rogers' proffered his opinion that there was no hydrological impact, Mr Sainty's evidence should be preferred. Mr Sainty is a qualified and highly experienced wetland ecologist, whereas Mr Rogers, although having attained qualifications in environmental management, lacks the expertise needed in wetland ecology. Secondly, Mr Sainty's opinion was supported by well articulated reasoning and not seriously challenged in cross examination or in any way undermined. 347 The council submits that in the joint experts' report, Mr Sainty contributed only to line items headed "vegetation" and did not attend the second day of joint conferencing. He is not an expert on actual or potential acid sulphate soils and understood the ASSR project, to use his words, "only to a very limited extent." He withdrew from this topic as "beyond my expertise". However, the council continues to rely on his observation that "there are things going on [at Partridge Creek] all the time, there are changes, and the more you go there the more you observe variations on a theme". The council submits that none of his evidence contradicts the evidence of other experts as to changes to habitat being brought by the ASSR project. In the council's submission, a proper understanding of the context in which the offences occurred would allow the court to draw the conclusion that there is no lasting environmental harm as a consequence of any discrete temporal changes attributable to the construction of the roads. Furthermore, those discrete temporal changes were within the "variations on a theme" comprising the history of this site. I agree with this last submission if it relates to the period following the remediation, but it could not apply to the three-year period when the roads were in place.

Obstruction of fish passage 348 The prosecutor submits that the presence of the roads in the wetland, prior to their removal, had the potential to obstruct the passage of fish in the wetland during periods of prolonged low rainfall and drought. By creating the potential for the obstruction of fish passage, the prosecutor submits that the offence undermines the goal of preserving biodiversity. 349 Mr James Knight, a scientific officer employed by the Department of Primary Industries, states in his affidavit of 8 August 2005, that during periods of prolonged low rainfall and drought the roads acted as a levee bank, channelling water down the creeks and forcing the water through the culverts at higher than normal velocities. This had the potential to obstruct fish movement due to the fishes' inability to swim against these strong currents. The evidence that there was potential for obstruction of fish passage was corroborated by Mr Sainty and Mr Knight credibly adhered to his opinion in cross-examination. 350 The council submits that Mr Knight's evidence should be given little weight. His evidence goes largely towards the separate offence in s 219 but then, only so far as the roads provided a potential obstruction to the passage of fish. 351 I accept the opinions of Mr Knight. They demonstrate the harm caused by the offence, which is a consideration under s 21A(2)(a) of the Sentencing Act. Mr Knight does not suggest that there is lasting environmental harm to fish habitat which cannot be remediated. Accordingly, I find that there was no lasting environmental harm to fish habitats and the harm has been largely ameliorated as a result of the remediation carried out by the council, although somewhat belatedly. The evidence of both Mr Sainty and Mr Knight shows clearly and beyond a reasonable doubt that the roads interfered with the hydrology of the wetland, forming a barrier to the movement of water and the potential for obstructing the passage of fish. I thus accept the prosecutor's submissions noted in par [337], [342] and [348] above.

General and specific deterrence 352 The prosecutor submits that there is a need for a specific deterrent. Firstly, the council constructed the roads in the wetland in circumstances where it must be taken to have been aware of its obligation to first obtain a permit from the Minister. Secondly, for a considerable period of time, the council erroneously and unreasonably adopted the position, including in response to the prosecutor's official inquiry, that it had carried out a Pt 5 assessment. Thirdly, by the time of the hearing, the council still maintained that it had carried a Pt 5 assessment. The prosecutor submits that this demonstrates an inadequate insight of the council into its conduct in committing the offence and calls into play the need for specific deterrence. 353 The prosecutor also submits that the fact that Mr Freeman, despite his very senior position and scope of his authority, had received no training in relation to the need to obtain permits from the Minister prior to constructing roads in a wetland, increases the need for specific deterrence. 354 The council submits, however, that there is no need for individual deterrence and relies on the affidavits of Mr Rogers and Mr Persson that are discussed under the heading of "Remediation, Amelioration and Recompense" at pars [358] to [364] below. I agree with the council's submission. It is highly unlikely that the council will again offend, particularly since the council has now adopted the procedures described in par [361] below. 355 There is, however, a need for general deterrence in this case to ensure that other local government authorities are not tempted to circumvent the requirement to obtain a permit prior to carrying out works which have the potential to significantly affect the biodiversity of fish and aquatic vegetation.

State of mind 356 The defendant's state of mind at the time of the offence can be an aggravating (or mitigating) feature of the offence when assessing the objective gravity or circumstances of the offence: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [207] to [210] and the cases cited therein. 357 The council submits that the court would not find its state of mind an aggravating feature of the offence when assessing the objective gravity or circumstances of the offence. In my opinion this is a neutral consideration in the present case. It is difficult to apply a state of mind to a corporate body, except in those cases where the corporate body is the alter ego of a particular individual.

Remediation, amelioration and recompense 358 The parties agree that the council has undertaken substantial remediation works by removing the offending portions of the roads. Despite this, the prosecutor submits that the roads were in place for a period of about 3 years prior to their removal and subsequent remediation. Moreover, the council received the affidavit of Mr Sainty sworn 18 July 2005 soon after that date, but did not take the action to remove the roads for another 18 months. 359 I acknowledge the fact that the council has undertaken remediation work, but it has done so only belatedly. I seems to me that it did so only after the appointment of the present administrator, who unlike the previous administration, has taken a serious view of this and the other offences with which the council is charged. 360 The parties agree that the council has taken steps to improve its systems in relation to identifying the need for permits under the Act and in relation to assessment of likely impacts pursuant to Pt 5 of the EP&A Act. 361 The council relies on the evidence of Mr Rogers which is that, following a process that commenced in 2004, a project management framework was implemented from November 2005. The framework is a comprehensive suite of guidance, tools, checklists and references delivered on an intranet platform. Mr Rogers also states that since 1 July 2008, compliance with it has been made mandatory by a direction of the former director within council's water and natural resources division. The staff in the division have completed training in relation to the framework and such training will be formally extended to the remainder of the council's staff. The review of the council's processes relating to the assessment of environmental and planning matters by Environmental Resource Management Australia (ERM) was formally adopted by the council on 3 September 2008. As from 3 September 2008, the ERM training manual for Pt 5 assessments was adopted as a formal procedure. Mr Rogers also states that from May 2005, matters for determination pursuant to Pt 5 of the EP&A Act were referred from the water and natural resources division for assessment by a manager of another division, and have now been the subject of wholesale review training. Mr Rogers concludes that "any risk of reoccurrence…has been addressed and is being adequately managed by council". I take all these matters into account in the sentencing process. 362 The council also relies on the evidence Mr Persson, that the council has adopted a systematic and organisational wide approach capable of achieving success and sustainability which is termed the "business excellence framework". The council's manual for dealing with Pt 5 matters aims to guide members of the council in decision-making processes, and specifies factors to be taken into account, one of which is the effect of the decision on the environment. I take this into account also in the sentencing process. 363 The prosecutor submits, however, that until further changes are made to the system after cross-examination of Mr Rogers on 30 September 2008, the assessment system in place is still apparently defective in that there is a potential for the requirement to obtain a permit under s 200 of the FM Act to be missed where works were being carried out on wetland areas which, whilst intermittently inundated, were dry at the time when the works were contemplated. I note that this appears to be a defect which should be remedied. 364 I accept the evidence of Ms McKinley, whose opinion is also shared by Ms Stewart, that the prognosis for successful regeneration in accordance with the restoration targets as set out in the Partridge Creek Restoration and Conservation Management Plan, is good.

Contrition and remorse 365 The council submits that through its actions and words, it has demonstrated genuine contrition and remorse: s 21(3)(i) of the Sentencing Procedure Act; Environmental Protection Authority v Waste Recycling and Processing Corp at [203]. 366 The council submits that it had carried out the four forms of action underlying genuine contrition and remorse discussed in Environmental Protection Authority v Waste Recycling and Processing Corp. In that case the four forms of action underlying genuine contrition and remorse are identified as (i) the speed and efficiency to rectify the harm caused or likely to be caused by the offence; (ii) voluntarily reporting the commission of the offence and any concomitant environmental harm to the relevant authorities; (iii) the taking of action to address the causes of the offence; and (iv) the personal appearance of corporate executives in court and their evidence outlining genuine regret and stating future plans to avoid a repetition of such offences. 367 As to the first form of action, the council has sought to rectify any harm caused or likely to continue to be caused, by doing the following: · Carrying out restoration work including the removal of the roads in early 2007. Mr Persson states that "to-date $31,866 has been expended by council in carrying out remediation works in the nature of removal of the roadways, these works being carried out in February/March 2007". · Commissioning and adopting on 9 July 2008, the Partridge Creek Ecological Restoration and Conservation Management Plan that outlines actions over a 10 year period to facilitate the restoration of the wetland and the long-term conversion of habitat for threatened species. Over its 10 year life, total implementation costs are estimated at $350, 000. · Proposing to secure the conservation status of the area the subject of the Partridge Creek Ecological Restoration and Conservation Management Plan by its future zoning. · Resolving, on 3 September 2008, to extend council's existing Thrumster Feral Animal Control Program to include the land at Partridge Creek, as part of the implementation of the Partridge Creek Ecological Restoration and Conservation Management Plan.

I note, however, that the council took no action to restore the land until early 2007, some three years after the roads were constructed. 368 In relation to the third form of action, council has put in place systems to avoid re-offending: s 21A(3)(g) of the Sentencing Procedure Act. 369 The council carried out the fourth form of action when its administrator, Mr Persson, personally gave evidence and publicly expressed genuine regret and outlined the council's future plans to avoid any repetition of such offences. 370 I again note that Mr Freeman resigned from council on 11 September 2008.

Co-operation with the authorities 371 The court may impose a lesser penalty than it would otherwise impose having regard to the degree to which the offender has assisted in the investigation of, or in proceedings related to, the offence concerned or any other offence: s 23(1) of Sentencing Procedure Act. 372 The council submits that it should be entitled to a lesser penalty on this ground. To the extent that it did not provide the degree of assistance expected by the prosecutor for the purposes of recommending a reduction, it was by Mr Freeman, acting on the advice of the council's then legal representatives, that the council did such a thing. I reject this submission. The council's then legal representatives were acting on behalf of the council when advising Mr Freeman. 373 I accept the prosecutor's submission that the council was not wholly co-operative in the investigation of the matter. It declined to make its officers available for interviewing by the prosecutor and it provided answers to the prosecutor's official questioning which, in relation to the purported assessment of the works under Pt 5 of the EP&A Act particularly, were incorrect and misleading.

Other considerations 374 The prosecutor submits that although regard should be had to the principle of even-handedness, there is no established pattern of sentencing for offences of this type. In Carter v Wall [2002] NSWLEC 124, Cowdroy J imposed a fine of $10,000, discounted from $15,000 on an individual offender for a serious contravention of s 205 of the Act, involving removal of about 3,000 mangrove trees in a tidal channel adjacent to the Richmond River. The maximum penalty at the time was a fine of $22,000 so the fine represented about 45 per cent the maximum, or 68 per cent of the maximum prior to discount. Ultimately, in the circumstances, the prosecutor submits that the offence falls somewhere in the middle of the range for an offence of this type.

375 I also take into account that council has no prior convictions; the evidence of Mr Rogers that the council has a good environmental track record; and that the council has pleaded guilty to the offence. 376 The parties agree that the council entered a plea at an early stage and is entitled to a substantial discount for the utilitarian value of the plea; namely the full discount of 25 per cent.

Payment of costs 377 The council consents to an order to pay the prosecutor's costs in the agreed sum of $80,000. The prosecutor seeks a moiety of the fine under s 122 of the Fines Act 1996. 378 The council also has liabilities for costs consequent on the offences which are relevant in any consideration of the size of any fine to be imposed: Environment Protection Authority v Middle Harbour Constructions Pty Ltd at [54]. As at 26 September 2008, the council has incurred $451,200 in relation to its costs in all matters before me. As previously noted, however, I disregard the council's payment of Mr Freeman's costs for the reasons stated in par [306] above.

Appropriate penalty 379 The offence is a serious one and the council allowed the roads to remain in place, with their consequent adverse impact, for three years before commencing remediation work. A penalty in the mid-range is appropriate. The council is, however, entitled to the full discount of 25 per cent for its early plea of guilty and an overall discount of 30 per cent for the other mitigating circumstances, including the fact of remediation. 380 In my view, however, having regard to the maximum penalty of $220,000, the appropriate penalty is $110,000, discounted by 30 per cent to $77,000. Since, however, the offence was committed in the course of the same conduct as those in the proceedings Garrett v Port Macquarie Hastings Council, it follows that the principle of totality applies. That is, all the offences are to be seen as connected and punished accordingly. The total criminality of the council thus calls for a penalty, in my opinion, of $35,000. Although this is higher than the penalties imposed on the council for the offences against s 118D(1) of the NP&W Act, the penalty in this case must reflect the higher maximum monetary penalty under s 200 of the FM Act, which would be consistent with the legislative intent to regard this type of offences more seriously. There will be an order for the payment of a moiety of the fine to the prosecutor under s 122 of the Fines Act. 381 I make the following orders in the proceedings Carter v Port Macquarie Hastings City Council:

(1) The defendant is convicted of the offence as charged. (2) The defendant is fined in the sum of $35,000. (3) One half of the fine, namely $17,500, is to be paid to the prosecutor. (4) The defendant is to pay the prosecutor's costs in the agreed sum of $80,000 in accordance with section 253 of the Criminal Procedure Act 1986 (as in force at 13 April 2005). (5) The exhibits may be returned.

CONCLUDING REMARKS 382 The overall result may be summarised as follows. For the two charges against Mr Freeman under the NP&W Act, he is to pay total fines of $57,000 plus the prosecutor's costs in the sum of $167,500. For the three charges against the council under the NP&W Act, it is to pay total fines of $45,500 plus the prosecutor's costs in the sum of $114,000. For the charge against the council under the FM Act, the fine is $35,000 and the council is to pay the prosecutor's costs in the sum of $80,000. I hereby certify that the preceding 382 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate Dated: 6 February 2009 **********

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