Kennedy v Chief Executive, Office of Environment and Heritage

Agreed facts 6Filed in the Land and Environment Court proceedings was a Statement of Agreed Facts. Briefly, it records the following: that at the time of the alleged offence the property known as "Greenmount" was owned by Mr Kennedy; that some of the vegetation on the property prior to December 2005 was dense and included trees that were between 10 and 20 metres high and included various types of eucalypts; that clearing of native vegetation was carried out on the property at Mr Kennedy's direction and consistent with his verbal instructions between approximately June and August 2009 by Mr Kennedy's brother using a bulldozer, chainsaw and log loader; that some of the overstorey of the vegetation that was cleared comprised large native trees; and that native groundcover, mid-storey shrubs and juvenile eucalyptus were also cleared. 7It was agreed that the clearing was not carried out in accordance with a property vegetation plan or development consent issued under the Native Vegetation Act. It was also agreed that the clearing was not authorised or permitted by any direction issued by a Catchment Management Authority; nor under the Rural Fires Act 1997 (NSW) or any Bushfire Management Plan or direction issued by the Rural Fire Service; nor under any direction or order issued by the Livestock Health and Pest Authority or its predecessor. 8It was further agreed that Mr Kennedy had no prior convictions for environmental offences in New South Wales but had been issued with a remedial direction under s 47 of the Native Vegetation Conservation Act 1997 (NSW) in January 2005 in respect of unlawful clearing of other land.

Mr Kennedy's evidence 9Mr Kennedy, who is a grazier, affirmed an affidavit on 23 February 2012 (parts of which were the subject of objections and either not read or not admitted). In that affidavit, he deposed to the run-down condition of Greenmount when the property was purchased by him in about 2005; that the country varied from completely cleared to small regrowth with a large amount of dead fallen timber; that it was obvious to him that the property had been logged over many years; and that many areas were completely inaccessible to him. He said that the property had been stocked heavily with sheep and was very bare; and that there were signs of pigs and substantial rabbit warrens over the property. 10Mr Kennedy deposed that he removed the sheep from the property; ran only cattle to allow the pasture and country denuded by sheep to recover and to reseed; and that he had granted several shooters access to the property to shoot feral game and rabbits. 11Mr Kennedy said that there had been an ongoing rabbit and pig problem on the property and that he had engaged his brother "to bulldoze and burn the regrowth as the rabbit infestation and resultant land damage was totally out of [his] control without immediate action" ([49]). Mr Kennedy said that the timber was small regrowth, dead fallen timber and old heaps. He asserted that it was within the exemptions for clearing, as was clearing for tracks and fencelines ([51]). 12Mr Kennedy further said that there was some timber for farm use which he intended to use for sheds and yards ([52]). He deposed that regrowth and dead timber was burnt over the next 8 weeks ([54]), which he said would not have been possible with bigger timber as it would need to be stacked for many months to allow it to dry enough to burn ([55]). He said that retained logs were stacked, measured and stamped as he intended to send them off site to be milled, but that the log quality was not good enough for that to happen ([56]-[58]). 13Relevantly, Mr Kennedy's affidavit explained his understanding of the guilty plea that was entered on his behalf. He deposed that he had pleaded not guilty since receiving the summons ([106]); that he was unaware that failure to use timber cut under routine agricultural management activity (RAMA) provisions for on farm use within a set time was a breach of the Native Vegetation Act (at [107]); that he had not used the timber within the specified time "and I am guilty to that breach however it was not intentional" at [108]; and that he believed that "this breach" should be mitigated by the circumstances to which he had referred. By that he was presumably referring to his evidence as to the unintentional nature of the breach; the fact that he could not proceed with the proposed building/yards as there was no income to fund the work due to the cost of the remediation order demanding removal of stock and that the past two years had been very wet preventing earth works or building being undertaken. 14At [112], Mr Kennedy deposed that he had "therefore" changed his plea from not guilty to guilty. At [113], Mr Kennedy stated that "[t]he guilty plea relates only to failure to use timber within a specified time".

Guilty plea 15There was no qualification on the plea of guilty at the time it was made on behalf of Mr Kennedy by Mr Bolger. At that time, the Court was informed that Mr Kennedy sought to call some expert as to the degradation of the property and as to other matters in mitigation. 16When the matter came before Biscoe J for sentence in July 2012, his Honour expressed concern as to whether Mr Kennedy understood whether he really wanted to plead guilty. There were a number of exchanges between his Honour and Mr Kennedy in which his Honour sought to elucidate whether Mr Kennedy maintained his guilty plea (having regard to the time that had by then been spent in the hearing on whether or not he came within certain exceptions). Mr Kennedy agreed with the proposition that what he was saying at [113] of his affidavit was that his perception was that he had to do something within a specified time with the timber (i.e., use the felled timber for construction on the farm) and that "except for that [he] would be not guilty". 17His Honour pointed out to Mr Kennedy that the time limit was not as to whether the timber was in fact used in that period but whether it was cleared for use within that time limit; which raised an issue as to whether, at the time the timber was cleared, Mr Kennedy intended to use the timber within 18 months - that being a matter on which the onus was on Mr Kennedy. Mr Kennedy informed his Honour that he had obtained a quote for the construction of the shed (for which the timber was going to be used) in June 2010 and that the construction was going to be done within that year 2010. Asked whether he was going to use all of the timber (for that purpose) Mr Kennedy said at first that some of it was exempt, for tracks, fence lines and regrowth, but then said that he was going to use all of it. Presumably that answer should be understood as meaning all that was not otherwise exempt. His Honour noted that there was no evidence of this in Mr Kennedy's affidavit but then went on to ask Mr Kennedy if he was content to maintain his guilty plea, to which Mr Kennedy said: Yes, in respect of not using the timber, yes 18Counsel for the prosecutor expressed a concern that Mr Kennedy was seeking to carve out a part of the charge to which he was content to plead guilty. His Honour then indicated that, as he understood the guilty plea, it indicated that some of the clearing was unlawful and that the issue was as to the extent of the unlawful clearing. His Honour proceeded on that basis.

Prosecutor's evidence 19The prosecutor relied, among other evidence, on an affidavit affirmed 4 July 2011 by a compliance investigator employed by the Office of Environment and Heritage, Department of Premier and Cabinet (OEH), Mr Glendon Turner. Mr Turner was at all relevant times an authorised officer within the meaning of s 34 of the Native Vegetation Act. He was the officer within the Department who was assigned the task of investigating the alleged illegal clearing of native vegetation on the Greenmount property ([6], [15] of his affidavit). 20At [16] of his affidavit, Mr Turner deposed that he first received knowledge of the clearing of native vegetation on the property on 24 August 2009 when he received an email from a departmental officer (Mr Bryce Gorham) providing details of "clearing activity". Mr Turner deposed to his inspection of the property on 25 August 2009, from the fenceline, where he observed burning stacks of vegetation on the property and took photographs of a dozer operating on the property. He obtained authorisation to enter the land and took various photographs of the vegetation and cut logs. He further inspected the property on 31 August 2009 in the company of Mr Beaman, again having obtained authorisation to enter the land, and took other photographs on the property. On 10 September 2009, he and Mr Beaman took a helicopter flight over the property and took digital photographs of the property and adjoining land. Further site visits were made by Mr Turner on 21 June 2010 (in the company of Mr Beaman) and 4 May 2011, in the company of Dr Christopher Nadolny, a botanical ecologist employed by OEH.

Relevant Statutory Provisions 21Section 12 of the Native Vegetation Act provides as follows: 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the [Environmental Planning and Assessment Act 1979 (NSW)] for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. 22"Native vegetation" is defined in s 6(1) of the Native Vegetation Act as meaning any of the types of indigenous vegetation there specified (including trees and understorey plants). Section 6(2) provides that vegetation is "indigenous" if it is a, or comprises, species of vegetation that existed in the State before European settlement. 23Section 9 deals with what is meant by remnant native vegetation and regrowth: 9 Meanings of remnant native vegetation and regrowth (1) For the purposes of this Act, remnant native vegetation means any native vegetation other than regrowth. (2) For the purposes of this Act, regrowth means any native vegetation that has regrown since the earlier of ... : (a) [in the case of the subject land] 1 January 1990 ... 24Subject to any exclusion in a property vegetation plan, s 19 of the Native Vegetation Act permits the clearing of native vegetation that is "only regrowth" (but not "protected regrowth" as defined in s 10). 25Section 22, in Division 3 of the Native Vegetation Act, permits clearing for routine agricultural management activities in the following terms: 22 Routine agriculture management activities (1) Clearing for routine agricultural management activities is permitted. (2) This section does not authorise any clearing of native vegetation: (a) if it exceeds the minimum extent necessary for carrying out the activity, or (b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure. 26Section 11 defines routine agricultural management activities as meaning various activities on land carried out by or on behalf of the landowner, including: (a) the construction, operation and maintenance of rural infrastructure including, among other specified infrastructure and subject to the regulations, dams, permanent fences, buildings and farm roads; (b)-(c) the removal of noxious weeds or control of noxious animals, in each case under the relevant legislation; and: (i) any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property 27Section 11(2) provides that the regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities. Part 4 of the Native Vegetation Regulation 2005 (NSW) deals with routine agricultural management activities and, relevantly, clause 16 provides as follows: 16 Obtaining construction timber (1) The activities that comprise routine agricultural management activities for the purposes of section 11 of the Act are extended to include the clearing of native vegetation on land for use in the construction or maintenance of rural infrastructure on the land within whichever of the following time periods is applicable to the land: (a) [relevantly for present purposes] 18 months after the clearing for land ... (2) This clause authorises clearing of native vegetation only if the clearing: ... (b) is carried out in conjunction with a restoration program or other arrangements that will ensure the restoration of native vegetation on the cleared land of the same or a similar species as the native vegetation cleared and to the same or a similar extent as existed on the cleared land. (3) This clause authorises the clearing of native vegetation only if the native vegetation does not comprise: (a) a threatened species, or a component of a threatened population or threatened ecological community, under the Threatened Species Conservation Act 1995 or is likely to comprise habitat of such a threatened species, ...

Land and Environment Court hearing 28In the Land and Environment Court hearing, the prosecutor's case was that, during the charge period, Mr Kennedy had cleared 44.7 hectares of native vegetation from the Greenmount property, largely comprising 2,500 to 4,000 mature trees (established before 1 January 1990). Approximately 6-10 hectares of the area cleared was said by the prosecutor to have comprised "White Box, Yellow Box, Blakely's Red Gum Woodland", an endangered ecological community listed in Schedule 1, Part 3 of the Threatened Species Conservation Act 1995 (NSW). 29The prosecutor contended that the clearing had caused "significant" or "substantial" environmental harm, relying on a report prepared by Dr Nadolny in which Dr Nadolny concluded that the overstorey of the cleared vegetation comprised large native trees, including species of eucalypts; and that the cleared groundcover was predominantly native, as well as scattered shrubs and juvenile eucalypts. Dr Nadolny identified four distinct communities in the cleared woodland, including the White Box endangered ecological community, and assessed the number of mature trees cleared as being between 2,500 and 4,000. 30Mr Kennedy denied that White Box was present on the property and (as referred to above) gave evidence as to the nature of the vegetation that had been cleared. He contended that: much of the native vegetation cleared comprised a little more than 600 mature trees (which he mistakenly believed were permitted to be cleared for the routine agricultural management activity of constructing rural infrastructure (sheds, a stockyard and fencing) on the property within 18 months); there was clearing to create permitted infrastructure buffer distances for existing fences, tracks, dams and firebreaks (permitted by clause 20(3) of the Native Vegetation Regulation); and that otherwise the native vegetation cleared was only non-protected regrowth that was permitted to be cleared. He maintained that the alleged area of 44.7 hectares should be reduced to about 27 hectares if allowance was made for the area permitted to be cleared by clause 20(3) of the regulation. He contended that there was no environmental harm.

Primary judgment 31His Honour set out his findings on the main factual issues at [5] of his reasons. His Honour found that the area unlawfully cleared was 32.48 hectares; that the nature and extent of the native vegetation cleared substantially comprised a little more than 600 mature trees and regrowth (established since 1 January 1990); and that the previous state of the property was in essence as Mr Kennedy had described in his affidavit. 32His Honour made the following findings as to the extent of the clearing and Mr Kennedy's reasons for the clearing. First, that a little more than 600 mature trees were felled to construct rural infrastructure within 18 months "which at the time [Mr Kennedy] mistakenly thought was sufficient to make that clearing permissible". Second, that some native vegetation was also cleared to create permissible buffer distances but that some of this was cleared for buffers for firebreaks which was not permissible (but which Mr Kennedy mistakenly believed was permissible). Third, that the balance of the native vegetation cleared comprised only non-protected regrowth which was permissible (and his Honour noted that the reason for clearing this, though not relevant, was to remove fallen timber and control noxious animals). Fourth, his Honour noted that in consequence of the clearing the stock management of the property was to be improved. 33His Honour found that the extent of the environmental harm caused by the unlawful clearing was moderate. 34His Honour accepted Dr Nadolny's view as to the presence of the four distinct communities comprised by the cleared woodland. In particular, his Honour accepted (at [36]) that White Box was present on the property. His Honour did so in light of Dr Nadolny's expertise and the fact that he was not cross-examined. However, his Honour concluded that there was much less environmental harm than Dr Nadolny had estimated, for the following reasons. 35First, his Honour noted (at [61]) that the property included areas of much regrowth, scattered bigger timber, fallen dead timber and timber heaps stumps and bare ground and had been extensively logged by earlier owners prior to 1990; and that it was overrun with rabbits and had problems with feral animals. His Honour noted that there was no suggestion that the earlier logging was unlawful or that the regrowth followed clearing of a kind that would cause it to be excluded from the concept of regrowth under s 9(4) of the Act. 36Second, his Honour noted at [62] that Dr Nadolny's estimate of the amount of mature trees felled was theoretical and based on a comparison of trees on an adjoining stock route that had not been subject to normal agricultural activities. His Honour noted that only 601 logs had been counted on behalf of the prosecutor in August 2009 shortly after the clearing and accepted that a further log had been felled for butcher's blocks on the property. His Honour accepted Mr Kennedy's evidence that recently felled trees of that maturity were too green to be burned until months after August 2009. Therefore, his Honour accepted Mr Kennedy's contention as to the number of mature trees that had been logged. 37Third, his Honour found (at [63]) that 32.48 hectares had been unlawfully cleared. His Honour accepted an estimate made by one of the prosecutor's witnesses (Mr Spiers) that the cleared area was 44.7 hectares but reduced that by 12.22 hectares, partially accepting Mr Kennedy's estimate that 17.62 hectares had been cleared for permissible buffer distances. His Honour calculated this on the basis that the only item for buffer breaks that the prosecutor had disputed was 5.4 hectares for firebreaks. 38Fourth, his Honour accepted Mr Kennedy's evidence that the noxious animals had been virtually eradicated, as representing an offsetting environmental benefit ([64]). Fifth, his Honour noted that a substantial belt of native vegetation through the property remained intact ([65]). Sixth, his Honour accepted that the number of native fauna had been greatly reduced by reason of the feral animals prior to the clearing ([66]). 39His Honour also noted that the remedial directions issued to Mr Kennedy should in due course result in remediation at his cost of the damage that had been caused. 40Mr Kennedy notes that Dr Nadolny's report was made after the land was cleared and the timber was removed; and that all that remained were logs retained for his own use and they were Stringybark. He emphasises that Mr Nadolny was unable to find White Box logs in the retained logs. 41His Honour concluded that Mr Kennedy's conduct should be characterised as negligent rather than reckless ([72]); he accepted that the reasons for clearing the property included the commercial object of improvement of stock management but that this aggravating circumstance had been negated to a substantial degree by the remedial direction in relation to the property ([76]). His Honour concluded that the offence committed was of moderate objective gravity (taking into account the above and other matters) ([80]); the subjective circumstances of Mr Kennedy ([81]-[89]), including the utilitarian value of his plea of guilty (for which a 20% discount was allowed); and the need for deterrence and for consistency in sentencing ([90]-[93]). His Honour concluded that the appropriate penalty was a fine of $50,000, which was reduced by 20% to $40,000. His Honour noted that the prosecutor's costs were said to total $36,600 but said that, in the absence of any evidence as to the means of Mr Kennedy to pay whatever fine might be imposed, he did not give significant weight to the fact that Mr Kennedy would also be ordered to pay the prosecutor's costs.

Appeal 42In his notice of appeal filed on 30 April 2013, Mr Kennedy raises various grounds of appeal that largely appear to be submissions that he should not have been convicted of the offence to which he had pleaded guilty: 1. Native vegetation was cleared under exemptions in the act. 2. Timber retained for on farm use is exempt under R.A.M.A provisions. The approx 600 trees harvested for farm use have not been illegally cleared. There has been no breach of the act in regards to clearing. Evidence has been provided as to use of timber. 3. No E.E.C existed on the property. 4. Regrowth has occurred as a natural process hence a restoration programme was not required. 43Reference is made under the heading "Grounds for Appeal re judgement" to particular paragraphs of the judgment, with which Mr Kennedy either takes issue or cites in support of his appeal: Page 4 (a) stated that some 600 trees were cleared which defendant mistakenly believed were permitted under RAMA. Defendant maintains trees were exempt under RAMA and has at no stage stated he was mistaken in his actions. Page 6 (ii) stated balance of clearing comprises non protected regrowth which the defendant was legally able to clear. Page 7 9 Onus of proof in establishing a regrowth defence is on the defendant; Director General of the department of Environment, Climate Change and Water v Walker Corporation Pty Ltd per Preston CJ. Judge Biscoe in his findings page 6 (ii) has found excluding the 600 trees exempt under RAMA the balance of the clearing is non protected regrowth. So a regrowth defence has been established. Page 10 13 (c) control of noxious animals under RLP act 1998 falls within RAMA. Page 18 37 his honor [sic] finds that 600 trees only were cleared excluding regrowth which was permissible. This equates to 18.47 trees per hectare which is basically cleared land with useful farm timber remaining. Page 26 63 firebreaks of 5,4 hectares not allowed despite accepting defendant had concern for fire control. Defendant submits fire breaks at magistrates [sic] discretion and should be allowed. Page 26 64 accepts environmental benefit through regrowth clearing to reduce harbour for noxious animals. Page 28 73 dispute no restoration programme in place to restore native vegetation. Some thousands of regrowth trees are now growing on the property where only 600 were removed. EEC was never established by Nadolny as he never saw the property prior to regrowth clearing. He did not find any white box nor did he find EEC in the adjoining TSR [Travelling Stock Route] which is remnant eucalypt vegetation.

Submissions by Mr Kennedy 44Mr Kennedy served written submissions in support of his contention that his conviction and sentence should be set aside in which he again emphasised that he had pleaded guilty "to a breach of the act being failure to use timber within given time period" caused by wet conditions and restrictions on his property causing him loss of income. 45Mr Kennedy attached various documents to his submissions. By reference to his description of the documents and their contents, those attachments are as follows: A. Photographs taken on the Greenmount property on 19 April 2013 and said to show: that the area is Stringybark woodland and not a grassy White Box woodland and therefore not a threatened community; that the light soil types would not support a White Box community; and a large amount of regrowth over the entire area and timber used for on farm use and faulty logs. B. A letter dated 24 April 2012 from the Policy Director- Environment of the NSW Farmers' Association, expressing support for Mr Kennedy and, among other things, commenting on the primary judge's reasons for judgment, expressing an opinion as to the "deeply flawed" regulation of native vegetation in this State and calling for changes to the legislation. C. A statement from the Environmental Scientist/Ecologist who was called by Mr Kennedy to give evidence in the Land and Environment Court hearing (Mr Stephen Cotter) as "further evidence" in support of the appeal, which states that a re-examination of the evidence indicated that his Honour erred in determining that White Box was cleared from the property by reference to certain matters stated in the document [not seemingly addressed in his affidavit that was read at the hearing below], relied upon as demonstrating the lack of evidence to support a White Box community on the property. D. Letter dated 2 April 2013 from SMK Consultants commenting on certain matters raised in the experts' reports relied upon by the prosecutor at the hearing below (being the reports of Mr Spiers and Dr Nadolny). E. A hand-drawn map of the property and comments as to the results of a regrowth count on 19 April 2013 [incorrectly referred to in the report as 19 July 2013]. F. A document headed "Final submissions" that Mr Kennedy says was put before the court below, dealing with the issue of incorrect areas within polygons (referring to the report of Mr Spiers), which it is said was not addressed by the primary judge. G. Letter dated 10 April 2013 from SMK Consultants referring to the issues of polygon interpretation. 46Mr Kennedy also submits that 5.4 hectares of firebreaks should be allowed for community safety.

Further evidence 47Insofar as Mr Kennedy's submissions seek to rely on material that was not before the primary judge (namely, attachments A, B, C, D, E and G), the prosecutor opposes leave being granted for further evidence to be adduced. 48As to the admission of fresh evidence, in Mickelberg v R [1989] HCA 35 (at [27]); (1989) 167 CLR 259 (at 273), Mason CJ considered the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence and said: ... It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen. Deane J and I (at 402) considered that the test was best expressed in those terms. (footnotes omitted) [There referring to Gallagher v R [1986] HCA 26; (1986) 160 CLR 392] 49In R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 (at [63]), it was said that material available at the time of the trial could not properly be characterised as "fresh evidence". 50The prosecutor submits that, with the exception of the results of the regrowth count held on 19 April 2013 in attachment E, all of the material was available to Mr Kennedy at the time of the hearing and therefore cannot properly be characterised as "fresh evidence" (in the sense considered in Abou-Chabake). (Attachment A would also fall within the category of attachment E in that it consists of photographs taken at that same time.) 51As to attachment E (and presumably also attachment A), the prosecutor submits that this is not of relevance to any issue on the appeal in any event. The prosecutor apprehended that this material was sought to be relied upon to show that no restoration program was necessary and submitted (as is clearly the case for the purposes of the relevant exemption) that a restoration program is required for clearing to fall within the relevant exemption. 52However, attachment E contains a statement that none of the regrowth counted in plots or observed in other areas was White Box or the species that constitute this community and that Stringybark was by far the dominant regrowth species as on adjoining timbered areas and retained timber on the subject property. It seems to be capable of supporting a submission by Mr Kennedy that one could infer from this that there had not in fact been White Box on the areas cleared by him and if so it would be of potential relevance (though suffers from the difficulty that evidence of that kind could have been obtained at the date of the hearing). In this regard I note that Mr Kennedy's position was that White Box does not grow on the property and accordingly there could not be an EEC of that description. 53The prosecutor submits that none of the material now sought to be relied on, had it been available at the hearing, could have resulted in an acquittal (assuming Mr Kennedy had not pleaded guilty), the prosecutor raises the following matters. 54First, while the prosecutor accepts that material going to the presence or absence of the endangered ecological community identified by Dr Nadolny might have relevance when considering the appropriateness of his Honour's acceptance of Mr Kennedy's guilty plea (there referring to attachments A and C), it is submitted that the presence or absence of an endangered ecological community was not something on which any defence based on clause 16 of the Native Vegetation Regulation would have turned (that defence relating to an intention to use the cleared vegetation for routine agricultural management infrastructure within an 18 month time period). 55Further, it is noted that Mr Kennedy relied on a report from Mr Cotter at the hearing and that this report did not address the issues now raised in attachment C. Mr Cotter was cross-examined on the presence or absence of an endangered ecological community. In the course of that cross-examination, Mr Cotter said that he had not assessed the communities which comprised the cleared vegetation; that he was "not convinced'' that the cleared vegetation could be separated into the two or three categories that Dr Nadolny had assessed; was not in a position to assess the work undertaken by Dr Nadolny; was "not sure" that part of the community was an endangered ecological community; and cavilled with the proposition that Dr Nadolny could make such an assessment based on trees in a "log dump" or based on a transept survey on a travelling stock route "unless you can demonstrate that it's like for like", pointing to the fact that prior to any clearing there was no vegetation assessment. 56Similarly, in re-examination, Mr Cotter said that his understanding was that Dr Nadolny had based his conclusion as to the occurrence of the tree species in the endangered ecological community on their presence within the log dump, querying that it could be said that all those trees in the log dump had occurred together. 57The prosecutor relies on the above and also submits that in further cross-examination Mr Cotter revealed a significant misunderstanding as to what Dr Nadolny's methodology had been. Mr Cotter there accepted that Dr Nadolny's conclusion could more confidently be drawn based on identifying juvenile eucalypts and saplings present throughout the cleared and uncleared parts of the property and having regard to trees or patches of trees remaining standing in the property. 58The prosecutor submits that there is nothing in Mr Cotter's further report that suggests that any new material or information had become available which might cast doubt on the primary judge's acceptance of Dr Nadolny's findings as to the presence of the endangered ecological community. It is submitted that Mr Cotter's further report reflects an impermissible attempt by Mr Kennedy to revisit a forensic decision made by him as to what evidence should be called at the trial (Ratten v R [1974] HCA 35 at [18]; (1974) 131 CLR 510 at 517). 59I accept that attachments C, D and G seek to revisit issues already dealt with at the hearing. Even though Mr Kennedy may be given some latitude, as a self-represented litigant, for unfamiliarity with procedural aspects of the trial, it is not appropriate for fresh evidence of this kind now to be adduced by way of submission when the prosecutor has not had the opportunity to test that evidence. 60Attachment F is clearly a submission and should be read as such. 61As to the photographs in attachment A and the regrowth count in attachment E, as noted above there was some doubt as to the purpose for which reliance was sought to be placed on them. If reliance was sought to be placed on them for the proposition that it could be inferred that, since there had been no regrowth of White Box there could not have been a White Box EEC on the property in the first place, that proposition is difficult to test without expert evidence as to the state of regrowth of such an EEC. In any event, it is not clear why such evidence could not have been made available at the hearing (which was some 3 years after the clearing had taken place). Furthermore, for the reasons I set out in relation to the conviction appeal grounds, the presence of an EEC was relevant not to conviction but only to sentence. That counts against its admission on the conviction appeal at this stage. 62Finally, as to attachment B, in my opinion this is of no weight whatsoever. Advocacy by the Farmers' Association as to legislative changes should be made in an appropriate forum. That forum is not the Court. 63I would therefore refuse leave for the admission of the further evidence sought to be relied on by Mr Kennedy but would treat attachment F as a submission relevant to his grounds of appeal.

Principles relevant to Mr Kennedy's appeal 64On an appeal of the present kind, Mr Kennedy must establish error on the part of the primary judge (Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 [19] per Santow JA; Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 at [43]). 65The prosecutor accepts that there is jurisdiction for this Court to entertain an appeal against conviction even after a plea of guilty (referring to Lars, Da Silva and Kalanderian (1994) 73 A Crim R 91 at 109ff) but submits that for this Court to allow such an appeal in the present case it is necessary for Mr Kennedy to demonstrate that there has been a miscarriage of justice (referring to what was said in R v O'Sullivan [2002] NSWCCA 98; (2002) 128 A Crim R 371 at [9]-[12]). 66In Lars, the Court (Wood, Mathews and Badgery-Parker JJ) said that the principle to be applied was said to be the same as that to be applied in a trial court where prior to sentence an accused person seeks leave to withdraw a plea of guilty previously entered (at 109). 67The principles were restated more recently in Thalari v R [2009] NSWCCA 170; (2009) 75 NSWLR 307 at [32]-[35] referred to with approval in Clark v R [2012] NSWCCA 158 at [18] (per Johnson J with Basten JA and Garling J agreeing) and Han v R [2012] NSWCCA 257 at [18] (per Latham J with McClellan CJ at CL and Fullerton J agreeing). In Thalari, the Court said (at [32]-[35]): This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. (my emphasis) The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25]. A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v R (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46. (my emphasis) 68The proposition that, before the Court will go behind a plea of guilty and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred was emphasised in R v Kouroumalos [2000] NSWCCA 453, per Wood CJ at CL (with Studdert and Whealy JJ agreeing) at [16], citing R v Chiron (1980) 1 NSWLR 218 at 231; and R v O'Sullivan (2002) 128 A Crim R 371 at [9]-[12]. 69One circumstance where that may be established is where the applicant did not appreciate the nature of the charges. Another is where the applicant, on the admitted facts, could not in law have been convicted of the offences charged (Liberti at 121-122). In Kouroumalos at [19], Wood CJ at CL emphasised that what is required is "the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question".

Should guilty plea be set aside? 70I have referred above to what transpired in relation to Mr Kennedy's guilty plea. It emerges from the exchanges his Honour had with Mr Kennedy that Mr Kennedy did not understand what was required to be established in order to rely upon an exemption under the RAMA provisions for construction of rural infrastructure, in that he thought he was guilty of the offence of unlawful clearing because he had not used the timber within 18 months, whereas the issue as to whether he could have relied on that exception was whether he had the intention of using the timber for that purpose within the relevant period. 71Although his Honour made clear to Mr Kennedy the distinction between whether at the time the clearing took place he had intended to use the timber for construction purposes within the specified time period, on the one hand, and whether he had in fact used the timber within the specified time period, on the other hand, the fact that there remains some doubt as to whether Mr Kennedy really understood the relevance of that issue raises the question whether his guilty plea was based on a real awareness of guilt. 72The prosecutor accepts that Mr Kennedy may not have fully comprehended the effect of his guilty plea. However, he submits, first, that his Honour accepted that little turned on the question whether or not the timber cleared was in fact used within the 18 month period contemplated by clause 16(1)(a) of the Native Vegetation Regulation, the exemption relating to the clearing of native vegetation intended (at the time of the clearing activities) for use within that period. 73Second, the prosecutor submits that no miscarriage of justice can have arisen as a result of any outstanding uncertainty on the part of Mr Kennedy as to the extent or effect of his guilty plea. The prosecutor contends that even if Mr Kennedy had intended (at the relevant time) to use all of the cleared non-regrowth native vegetation for the construction of rural infrastructure within 18 months of the clearing activities, this would not in itself have given him a complete defence to the charge for the two reasons to which his Honour adverted at [73] of his reasons. 74The offence as charged was of clearing within a period of time and not over a specific area. The prosecutor submits that even at its highest there will always have been some part of the clearing which occurred during that period of time and which was not properly shown to be lawful clearing, i.e., that did not fall within one of the defences. Accordingly, it is submitted that a finding of guilty, on any contested hearing, would have been inevitable. 75The prosecutor accepts that the area of unlawful clearing would have an impact on sentencing considerations and in particular the level of environmental harm. It is accepted that if the area unlawfully cleared was quite small there may be a good argument that the environmental harm caused by that clearing was less than that which was found but it is submitted that in the present case all of the clearing which was found to be unlawful clearing was in fact unlawful clearing. 76In circumstances where, for the reasons set out below, the uncertainty on Mr Kennedy's part as to what was comprised by the offence cannot have altered the conclusion that, on the admitted facts, a contravention was established, there is no miscarriage of justice in the fact that his Honour accepted the guilty plea notwithstanding the confusion on Mr Kennedy's part as to what was required to fall within the exemption for clearing for rural infrastructure.

Conviction appeal 77I turn then to the contentions raised by Mr Kennedy on his conviction appeal. In essence, what Mr Kennedy contends is that the clearing was permitted by various of the exemptions contained in the Native Vegetation Act. 78Sections 21 and 22 in Division 3 of the Act identify clearing which is allowed to be undertaken without a property vegetation plan or other approval. Relevantly, s 22 contemplates clearing for routine agricultural management activities (RAMA) but does not authorise clearing of native vegetation for those purposes if it exceeds the minimum extent necessary. The prosecutor notes that in the present case there were no findings about whether clearing for any of the identified RAMA was or was not to the minimum extent necessary (and hence if Mr Kennedy's appeal were to succeed the matter would need to be remitted for re-hearing). 79Mr Kennedy relies on the following matters for his contention that the clearing of native vegetation from his property within the charge period was permitted.

Regrowth 80First, Mr Kennedy contends that a large part of the vegetation cleared was "regrowth" within the meaning of s 9 of the Native Vegetation Act. The prosecutor does not accept that Mr Kennedy established such a defence but notes that this contention was accepted by the primary judge (at [5], [31] and [61]). 81In that respect, the prosecutor notes that the onus, for a party seeking to defend a charge in reliance upon the regrowth exemption under s 19 of the Native Vegetation Act, is on the defendant (Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [134]). That requires the defendant to establish on the balance of probabilities the matters set out by Preston CJ of LEC in Walker Corporation (No 2) at [136]-[144], one of which is that the vegetation cleared was "only regrowth". It is submitted by the prosecutor that a finding that a large amount, but not all, of the native vegetation cleared was regrowth would not have established a defence to the charge. 82For that reason, Mr Kennedy's challenge to his conviction based on the cleared timber being regrowth cannot succeed. His Honour accepted that there was some regrowth but a defence based on this could not have succeeded had the issue been fully argued. 83The prosecutor accepts that his Honour's finding that a large amount of the vegetation was regrowth was relevant to the question of penalty and submits that it was taken into account by his Honour for that purpose at [61] and [72].

Routine agricultural management activities 84Second, Mr Kennedy contends that the balance of the native vegetation removed by him (found to have comprised approximately 600 mature trees [62]) was: harvested for the purpose of obtaining construction timber for the purposes of s 11(2) of the Native Vegetation Act and clause 16 of the Native Vegetation Regulation; cleared for the purposes of controlling noxious animals (said to be permitted by s 11(1)(c) of the Native Vegetation Act); and/or cleared for the purposes of creating firebreaks.

Clearing for construction purposes 85As to the use of the timber for RAMA purposes (i.e., for the purpose of construction of rural infrastructure), the prosecutor accepts that Mr Kennedy's response to the question put to him by his Honour on this issue suggests that, from at least June 2010, Mr Kennedy may have intended to use some (if not all) of the timber cleared within the 18 month period. The prosecutor submits that the evidence does not disclose whether Mr Kennedy had this intention at any earlier time within the charge period when clearing was undertaken on the property. 86However, it is not necessary to determine this (and this is the reason that there is no miscarriage of justice in acceptance of the guilty plea) because Mr Kennedy could not have succeeded in establishing the RAMA defence relating to construction of rural infrastructure in the absence of evidence satisfying clause 16(2)(b) of the Native Vegetation Regulation, which required that the clearing be carried out "in conjunction with a restoration program or other arrangements that will ensure the restoration of native vegetation on the cleared land of the same or a similar species as the native vegetation cleared and to the same or a similar extent as existed on the cleared land". 87His Honour found that there was no such program or other arrangement at the time of the clearing ([73]). The prosecutor points in this regard to the evidence of Mr Kennedy as supporting his Honour's finding. The prosecutor submits that it is no answer to this for Mr Kennedy to say that a restoration program was unnecessary (as "regrowth has occurred as a natural process"), since the requirement under the Regulation is that the restoration include "the same or a similar species ... and to the same or a similar extent as existed on the cleared land". The prosecutor further notes that the "regrowth counts" referred to by Mr Kennedy in attachment E make no attempt to identify the new regrowth species nor was any attempt made to identify or quantify the species present before the clearing commenced. 88The second reason that the prosecutor contends the RAMA exemption could not have been established is by reference to the finding that part of the cleared vegetation comprised an endangered ecological community ([36]). It is submitted that this finding was properly available to his Honour on the evidence (referring to the report of Dr Nadolny) and that it takes at least some of Mr Kennedy's clearing beyond the scope of the RAMA rural infrastructure exemption on which he relies (referring to clause 16(3)(a) of the Native Vegetation Regulation). Again, it is not necessary to determine this because, as noted above, the absence of a restoration program in relation to the clearing makes the RAMA exemption unsustainable.

Noxious animals 89As to the operation of s 11(1)(c) of the Native Vegetation Act, which permits landholders to clear native vegetation for the control of noxious animals under the Rural Lands Protection Act 1998, the prosecutor notes that each of the ways in which clearing may be permitted under the Rural Lands Protection Act requires a positive approval, direction or authorisation (as recognised by the primary judge at [18]). The prosecutor notes that it was an agreed fact that the clearing was not undertaken in accordance with any such approval direction or authorisation (referring to [17] and [18] of the Statement of Agreed Facts). 90Again the evidence does not support the conclusion that the clearing was permitted within this exemption.

Firebreaks 91As to the submission made in relation to the community safety in the creation of firebreaks, the prosecutor notes that the combined operation of the Native Vegetation Act and Native Vegetation Regulation does not create an exemption for the purpose of creating firebreaks (as noted by his Honour at [63]). Nor was the clearing authorised to be carried out under the Rural Fires Act in relation to any emergency fire fighting act as defined by that Act; or in accordance with a Bushfire Management Plan under that Act, or under any other direction authorising or permitting the clearing of native vegetation on the property was issued by the New South Wales Rural Fire Service (reference being made to [16] of the Statement of Agreed Facts). 92There was no error by his Honour in that conclusion. 93The prosecutor further submits that there was no evidence to suggest that the firebreaks might reasonably have been considered necessary to remove or reduce an imminent risk of the type contemplated by s 11(1)(i) of the Native Vegetation Act. The concept of "imminent risk" for the purposes of this exemption was considered by Pepper J in Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 (affirmed by this Court in Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106). It requires an assessment of the objective risk of harm and a temporal nexus between the vegetation and the risk posed by the vegetation; in other words that the risk was to be assessed against the likelihood of injury occurring relatively soon and not at some inchoate point in time ([57]). There was no evidence to suggest that there was an imminent risk of injury requiring the clearance of particular areas of the property by way of firebreaks.

Necessity of a restoration program 94As to the contention (in ground 4) that regrowth had occurred as a natural process and hence that a restoration program was not required, if this is relied upon for an argument that the RAMA exemption for infrastructure construction could be invoked without the need for a restoration program, I have already explained why that does not follow. If the regrowth since clearing is relied upon as indicating the earlier absence of an endangered ecological community, it suffers from the lack of any evidence to indicate the likely rate of regrowth of such a community. 95The absence of an endangered ecological community at the time of clearing would go to the degree of environmental harm; a matter relevant in relation to sentencing. However, it is clear that attachments E and A were not before his Honour so there can have been no error in his Honour not having regard to subsequent regrowth analyses when accepting the expert evidence that was before him on that issue and when considering the objective seriousness of the offence for sentencing purposes.

Attachment F - the polygon analysis 96Finally, Mr Kennedy contends that his Honour did not address the submissions he had made as to there being incorrect areas included in the polygon analysis carried out by Mr Spiers (attachment F). The dispute as to the polygon analysis at the hearing was as to the description of the land in various of the polygons and whether the area cleared was regrowth, in the context of Mr Kennedy's submissions at trial that there was an area exempt under RAMA provisions of 19.505 hectares. 97Mr Spiers had interpreted the aerial photographs and had described areas by reference, among other things, to different colours or colour gradations. Attachment F, at least in part, appears to represent Mr Kennedy's submissions as to Mr Spiers' conclusions and as to why the descriptions given by Mr Spiers should be seen as consistent with clearing having occurred at an earlier time. Mr Kennedy informed his Honour at the hearing that he had estimated the percentages of the areas within the polygons that he believed had already been cleared and were not timbered. The thrust of Mr Kennedy's submission, as his Honour noted, was that Mr Spiers had not sufficiently taken into account the areas that Mr Kennedy said were regrowth. Mr Spiers was not cross-examined on his report at the hearing. 98While his Honour did not refer expressly in his reasons to the "Final Submissions" document (Attachment F), his Honour clearly adverted to the dispute as to the area of clearing (at [63] of his reasons) and to Mr Cotter's analysis (at [59]). Further, his Honour accepted in Mr Kennedy's favour that the balance of clearing (other than the mature trees and the permissible buffer areas) was non-protected regrowth. The prosecutor had contended that photographic evidence showing logs on the area referred to as polygon 165 was inconsistent with the proposition that all that was cleared in that particular area was non-protected regrowth. 99The primary judge did not err in accepting the unchallenged expert evidence of Mr Spiers as to the interpretation to be placed on the aerial photographs. Moreover, his Honour's acceptance of Mr Cotter's conclusion that a substantial belt of native vegetation was retained on the property, and of Mr Cotter's view that, at least substantially, the vegetation cleared from polygon 165 was regrowth [59], was in Mr Kennedy's favour when his Honour came to assess the level of environmental harm that had been occasioned by the clearing. 100Therefore, the complaint made by Mr Kennedy as to his Honour's acceptance of Mr Spiers' evidence does not establish that the conviction based on acceptance of Mr Kennedy's guilty plea was unsound.

Conclusion on conviction appeal 101The prosecutor contends that this was not a case where the trial judge simply relied on the guilty plea as establishing the elements of the offence; rather that there was evidence that justified the finding and there was an exploration of the defences that Mr Kennedy now raises. It is submitted that a finding of guilt, even had there been a not guilty plea, would have been inevitable. I agree. 102Further, it is submitted that, having regard to the fact that his Honour accepted that Mr Kennedy believed he was allowed to clear some of this vegetation but was in part mistaken, the issue was properly addressed on the question of sentence as a subjective mitigating factor. Again, I agree. 103Therefore, while there was doubt as to whether Mr Kennedy fully understood the basis on which he could not rely on the RAMA exemption for construction of rural infrastructure (mistakenly thinking it was because he had not in fact used the timber within the 18 month period), no miscarriage of justice occurred because the exemption was not available to him in any event since the clearing was not in accordance with a restoration program (and would also not have been available if, as the prosecution evidence demonstrated, the cleared area had included an endangered ecological community). The appeal from conviction must be dismissed.

The sentence appeal 104As to the appeal from the sentence imposed, Mr Kennedy raises a number of issues by reference to which he contends that his Honour erred in relation to the imposition of the penalty. However, as is clear from his Honour's reasons, in determining the appropriate penalty his Honour took into account each of the matters raised by Mr Kennedy on appeal. 105In a number of instances his Honour did so favourably to Mr Kennedy. For example, his Honour accepted (at [61]) that a large portion of the cleared area comprised regrowth; accepted Mr Kennedy's contentions as to the number of mature trees that had been logged ([61]); and accepted that Mr Kennedy genuinely, but mistakenly, believed that the clearing fell within statutory defences or exemptions ([72]). His Honour accepted Mr Kennedy's evidence as to the eradication of noxious animals and his submissions as to the matters referred to in relation to the remediation of the property ([76]). 106While his Honour considered that the area cleared was of some significance, his Honour noted that this was not determinative of the objective seriousness of the offence ([47]). His Honour evaluated the level of environmental harm caused by the clearing as being of moderate objective gravity. That conclusion has not been shown to be affected by a failure to take into account relevant matters or by account being taken of irrelevant matters and it is not a conclusion that could be said to reflect some error of principle. 107In oral submissions on the appeal, Mr Kennedy emphasised that his property had been extensively disturbed over a long period and had a severe noxious animal infestation and submitted that the area cleared was regrowth and that there was no endangered ecological community on the property. Those matters were taken into account by his Honour in Mr Kennedy's favour. 108Mr Kennedy emphasised on the appeal that, as the owner of a property, he had a legal responsibility under Occupational Health and Safety provisions to provide a safe workplace and said that, prior to removing the regrowth, the area was entangled with remains of logging, had low cut stumps not clearly visible and extensive areas of rabbit warrens comprising a very unsafe workplace. It is not clear that submissions of that kind based on the existence of OHS obligations were put to the primary judge but in any event if there were competing obligations under the OHS legislation that would not authorise a breach of the Native Vegetation Act. 109Mr Kennedy submits that he has complied with any remediation orders on the property and fencing at a cost of over $50,000. He also submits that, prior to removing regrowth and addressing the issue of noxious animals and fire risk, he was physically unable to access these areas of the property for mustering, weed spraying and property management activities (since, due to work injuries, he is only able to use a four wheeled bike for access and management). Mr Kennedy submits that no landholder should be denied access to his or her own property. The remediation of the property was a matter which his Honour took into account. As to limitations on use (prior to clearing) of the property due to Mr Kennedy's injuries, I accept that from Mr Kennedy's perspective such limitations would be unfortunate. However, they do not authorise a breach of the legislation in relation to clearance of native vegetation. 110On the whole, as I read his Honour's decision, the findings on sentence were favourable to Mr Kennedy. No basis has been demonstrated for any conclusion that his Honour erred in the exercise of his discretion as to the imposition of sentence consequent upon acceptance of the guilty plea and the entry of a conviction against Mr Kennedy.

Conclusion 111For the reasons above, I would dismiss the appeal from both conviction and sentence. 112JOHNSON J: I agree with Ward JA. 113R S HULME AJ: I agree with Ward JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2014