Office of Environment and Heritage v Swansbel

[1]

SOLICITORS: Department of Planning and Environment (Prosecutor) Webbs & Boland (Defendant) File Number(s): 18/294597

[2]

Judgment

Swansbel (Pastoral) Pty Ltd (Swansbel) has pleaded guilty to a charge of clearing native vegetation contrary to s 12(1) of the Native Vegetation Act 2003 (NV Act) on its property "Lammermoor" located in Merah North near Narrabri. Lammermoor (the Property) is approximately 1,000 hectares of mostly cultivated land. A plea of guilty is an admission of all the elements of the offence. The offence is one of strict liability. It is necessary to sentence Swansbel for the offence to which it has pleaded guilty.
The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J); and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Veen (No 2) at 472, 485-86, 490-91, 496; and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt. A defendant is required to prove mitigating matters on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281.

[3]

Native Vegetation Act 2003

The NV Act (since repealed) provided at the time of the offence as follows: Part 1 Preliminary … 3 Objects of Act The objects of this Act are: (a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and (b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and (c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and (d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development. … Part 3 Clearing native vegetation Division 1 Control of clearing 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 EPA Act 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.
The principles of "ecologically sustainable development" can be found in the Dictionary of the Local Government Act 1993 and include the principle of inter-generational equity, that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. Another principle is the conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration.

[4]

Maximum penalty

The maximum penalty for an offence is relevant to determining objective gravity in that it reflects Parliament's expression of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 (Kirby P, Campbell and James JJ agreeing).
The maximum penalty for an offence under s 12(2) of the NV Act was $1,100,000 per s 126 of the Environmental Planning and Assessment Act 1979 at the date of the offence and s 17 of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) (which identifies the value of penalty units).

[5]

Crimes (Sentencing Procedure) Act 1999

Section 3A of the CSP Act which applies to this matter identifies the purposes of sentencing. It states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Under s 21A(1), aggravating factors in subs (2) and mitigating factors in subs (3) and any other objective or subjective factors that affect the relative seriousness of the offence are to be taken into account. Mitigating factors in subs (3) are considered below.

[6]

The offence

The offence against s 12 of the NV Act was that Swansbel carried out and/or authorised the clearing of native vegetation otherwise than in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan.
The particulars in the amended summons filed 1 February 2019 stated: (a) Place of offence At or near Lot 251 in DP 826141 at or near Merah North in the Narrabri local government area. (b) Native Vegetation The native vegetation cleared comprised an area of 320 hectares and included: … (ii) Coolibah (Eucalyptus coolabah subsp. coolabah) - a tree (iii) Eurah (Eremophila bignoniiflora) - a shrub (iv) Black Rolypoly (Sclerolaena muricata subsp. Muricata) - a shrub (v) Galvanised Burr (Sclerolaena birchii) - a shrub … (c) Manner of breach (i) The Defendant cleared native vegetation; and/or (ii) The Defendant caused or authorised, by his contractors or agents, the clearing of native vegetation; and/or (iii) The Defendant was the landholder of land on which native vegetation was cleared.

[7]

Statement of agreed facts

The parties agreed a statement of agreed facts (SOAF) filed 25 February 2019 (exhibit A) as follows: THE PROPERTY 1. The property is Lot 251 DP 826141, located in Merah North of the Narrabri local government area ("the Property"). 2. The Property is owned by Swansbel (Pastoral) Pty Ltd ("Swansbel"). Swansbel is a family grazing and mixed farming operation which is operated by 3 brothers and their sister, it is not a publicly listed company. 3. Swansbel has owned the property since about 1986. 4. At all relevant times, Swansbel had management and control of the Property. THE CLEARING 5. Between about 10 July 2013 and 30 December 2013, 320 hectares of native vegetation was cleared on the Property ("the Clearing"). The Clearing occurred within the area of interest depicted in Figures 1 and 2 ("Cleared Area"). 6. The Clearing was undertaken by North West Civil Constructions Pty Ltd, a company contracted by Swansbel. 7. The Clearing removed native vegetation that was continually present on the property since 1 January 1990. 8. Some of the trees that were removed were mature as at 1 January 1990 and were old growth trees when cleared. Figure 1: Area of interest (AOI) in July 2010 Figure 2: Area of interest (AOI) in May 2016 DETECTION OF ILLEGAL CLEARING ON THE PROPERTY 9. Evidence of the Clearing first came to the attention of an authorised officer, David Minehan, former Team Leader Compliance and Regulation, North West Region of the Office of Environment and Heritage, who lodged a report through Enviroline on 30 September 2016. 10. An authorised officer, Wendy Illingworth, Compliance and Regulation, North West Region of the Office of Environment and Heritage, began investigating the Clearing on 10 October 2016. THE SPECIES OF NATIVE VEGETATION CLEARED 11. Ecologist Phillip Cameron attended the Property and conducted a field assessment on 21 March 2018. 12. In accordance with the NSW Biodiversity Assessment Methodology 2017, vegetation integrity survey plots were used to determine if native vegetation had been removed or was still present, with four established within the Cleared Area and two established on land adjacent to the Cleared Area. An example of a plot within the Cleared Area and an example of a plot adjacent to the Cleared Area are at Figures 3 and 4. 13. The Cleared Area comprised 320 hectares of the following native vegetation species: (a) Coolibah (Eucalyptus coolabah subsp Coolabha)- a tree; (b) Eurah (Eremophila bignoniiflora)- a shrub; (c) Black Rolypoly (Sclerolaena muricata subsp. Muricata)- a shrub; (d) Galvanised Burr (Sclerolaena birchii)- a shrub; and (f) Pigweed (Portulaca oleracea)- a forb. 14. These species are "native vegetation" within the meaning of the now repealed Native Vegetation Act 2003. 15. These species are associated with the following vegetation community: PCT40, Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains. 16. PCT40 is an endangered ecological community (EEC) listed under the NSW Biodiversity Conservation Act 2016 (and the repealed Threatened Species Conservation Act 1995) and the Commonwealth Environment Protection Biodiversity Conservation Act 1999. Figure 3: An example of a plot within the Cleared Area Figure 4: An example of a plot on neighbouring land adjacent to the Cleared Area THE EXTENT OF CLEARING 17. Aerial photography interpretation (API) expert Catherine James analysing a series of aerial and satellite imagery and observed changes to vegetation in the area of interest (AOI) from 1983 to 2016. 18. She concluded that between 10 July 2013 and 30 December 2013 there was a significant reduction in woody vegetation within the AOI. The changes affect almost the entire original woody vegetation visible in the AOI in 1983. The changes involve clearing of trees and shrubs. The ground surface has also been disturbed with a change in land use from pasture to cultivation. 19. The area cleared within the AOI comprised 320 hectares. 20. Ecologist Phillip Cameron concluded that as a result of the Clearing: a. Eucalyptus trees 20-29cm dbh were affected by the Clearing. This size class are less likely to possess tree hollows but may have dead stags, fissures in bark or other habitat refuge. These trees are likely to be less than 50 years old but were alive before 1991 (not regrowth). b. Eucalyptus trees 30-49cm dbh were affected by the Clearing. This size class have potential to possess small and less likely medium sized tree hollows. These trees are likely to be less than 80 years old but were alive before 1991 (not regrowth). c. Eucalyptus trees 50-70cm dbh were affected by the Clearing. This size class (large trees) have potential to possess small and medium sized and less likely large tree hollows. These trees are likely to be more than 100 years. d. Eucalyptus trees 80cm + dbh (very large trees) were affected by the Clearing. This size class are very likely to possess small, medium and large tree hollows size classes. These trees are likely to be more than 200 years old. e. Trees with hollows less than 20cm diameter were also affected by the Clearing. This size of tree hollows is an important breeding resource for listed tree hollow dependent species for the Plant Community Type affected. ENVIRONMENTAL HARM 21. The Clearing has caused harm to the environment. 22. There has been harm occasioned to ecological communities, including to critically endangered, endangered and vulnerable species. 23. The Cleared Area was comprised of PCT40, an endangered ecological community (EEC), listed under the NSW Biodiversity Conservation Act 2016 (and repealed Threatened Species Conservation Act 1995) as well as the Commonwealth Environment Protection Biodiversity Conservation Act 1999. 24. The Clearing was not carried out consistently with recovery actions for PCT40 as recommended by OEH. 25. The Clearing has had a significant and detrimental impact on this EEC by: a. Reducing the available genetic resources of important functional species within the ecological community; b. Removing important fauna habitat features (including canopy cover, shrub cover, tree hollows and/or fallen timber); and/or c. Increasing fragmentation of these ecological communities. 26. The native vegetation that existed in the Cleared Area prior to the Clearing was not in low condition. 27. The native vegetation cleared was of high conservation value. Conservation value considers the vegetation's capacity to support a diversity of fauna. 28. The native vegetation cleared provided resources and ecological functions critical to maintaining the health and regenerative capacity of vegetation communities in the locality and region. 29. Mr Cameron hypothesised the Property may provide habitat for up to 52 listed fauna and flora species predicted by NSW OEH with some also listed under the EPBC Act to occur in the same PCT in the same condition as affected by Clearing: 30. An ecological community is an assemblage of species occupying a particular area and interacting ecologically. Removal of native vegetation can affect other biota by affecting, breeding, dispersal, soil chemistry, feeding and resting resources. 31. Further, the loss of hollow-bearing trees can cause extremely long-term damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to form, with prominent hollows mainly confined to trees over a hundred years old. 32. Accordingly, removal of all or most of a local population of trees, shrubs and ground layer in the Cleared Area affects the ecological interactions, not just in the Cleared Area, but in the surrounding area that are no longer part of a joined, contiguous ecosystem. 33. Conservation value considers the vegetation's capacity to support a diversity of fauna. Mr Cameron considered the native vegetation cleared on the Property to be of high conservation value due to the listing of PCT40 as an endangered ecological community. Further, the Clearing has resulted in the loss of important, mature habitat which has a known association with listed fauna and flora listed in Table 2. NO APPROVAL TO CLEAR 34. The Clearing was not carried out in accordance with a development consent. 35. The Clearing was not carried out in accordance with a property vegetation plan. 36. There was no authority or approval to clear under any other Act. THE OEH INVESTIGATION 37. Swansbel co-operated with the OEH during the investigation and fulfilled all of its statutory requirements including answering questions, providing information and facilitating the inspection of the Property by OEH staff. 38. Swansbel has entered a plea of guilty at the first available opportunity to these agreed facts. 39. Swansbel does not have any prior vegetation offences.

[8]

Affidavit of Mr Swansbra

Mr Swansbra director of Swansbel affirmed an affidavit dated 8 March 2019. Swansbel is a family-run company comprised of Mr Swansbra and his two brothers as the company directors and shareholders. Mr Swansbra and his brothers operate their own individual farms and run the operation collectively and all accounts, expenses and profits are pooled. Mr Swansbra's older sister is the company secretary and organises all the financial affairs of the company.
Mr Swansbra attributed the growth of the company to his and his brothers' hard work over the years. They manage the land on the Property sensibly and ensure best management practises such as minimum tillage which maximises moisture retention. They do this in order to ensure the longevity of the Property for economic productivity so that it can be passed to the next generation. Approximately 12 years ago the configuration spacings on the machinery used were changed to ensure better moisture retention. This configuration took four years to complete and was costly but allowed the company to preserve moisture. This configuration change also ensures that soil structure is preserved through minimal compaction. Further, all of their employees are well looked after and some of their employees have been working at the company for over 35 years.
The paddock that was unlawfully cleared is known as field 29 and is on the property on which Mr Swansbra lives. This paddock was originally grazing country and every 15 years or so the company would remove regrowth and weeds from the land. This area used to become infested with box thorn, turnip and thistles. The coolabah regrowth would also be very thick and essentially choke out a large component of the vegetation. Mr Swansbra made the decision to remove approximately half of the vegetation in the paddock in order to be able to better manage it and crop the land. Once clearing was completed the remaining half of the paddock was preserved and essentially locked up which was Mr Swansbra's method of offsetting the removal of vegetation from the original paddock.
Mr Swansbra accepted that the clearing was unlawful and he was aware that the removal of native vegetation in 2015 required a permit. His decision to clear land was reached after many years of removing weeds and thick regrowth from the Property.
Mr Swansbra ensured that Swansbel cooperated with the Office of Environment and Heritage (OEH) during the investigation. The Property was made accessible to the OEH for them to undertake an inspection, Mr Swansbra ensured that the company complied with and answered all of the OEH notices that were served, and a company director (Mr Swansbra's brother, Phillip) was made available for questioning in a formal interview.

[9]

Character references for Swansbel

Six character references written by friends and individuals that have dealt with Swansbel professionally were tendered (exhibit 1). Five of these references stated that they were aware that Swansbel had pleaded guilty to unlawfully clearing 320 hectares of native vegetation.
The directors of Swansbel and their families were described as hardworking, honest, sincere and upstanding members of both their community of Wee Waa, Narrabri and Moree, and the Australian cotton industry. Mr Swansbra has been a valuable member of Rotary International and is a strong supporter of the Westpac Rescue Helicopter Service. He and his family have helped neighbouring farmers in times of need. This has included helping a newcomer to the district by loaning machinery and helping others in times of flood. Further, the company has many long-term employees which are a testament to its caring attitude toward its employees. Swansbel has joined Innovate Ag Pty Ltd (Innovate Ag) to develop a world first biological insecticide "Sero-X" that will have far-reaching environmental benefits. Swansbel's investment in Innovate Ag is clear evidence of its deep-seated commitment to sustainable and environmentally responsible agricultural practices. Mr Swansbra has developed agronomic practices to use water efficiently and has used natural fertiliser products for improved soil health.
Mr Swansbra had previously discussed the value of native vegetation with one of his referees (who formerly owned property near the Property) and had used a tree transplanter to enhance trees around farm boundaries and houses and to join patches of remnant vegetation.
The referees stated that they were certain that the directors are remorseful, would carry out remedial work on the cleared area, and closely observe the legal requirements regarding unlawful clearance of native vegetation in the future. The unlawful clearing was out of character for Mr Swansbra and the company.

[10]

Objective circumstances

The objective seriousness of an offence is determined by considering the following factors: the nature of the offence; the maximum penalty for the offence; the environmental harm caused by the offence; the defendant's state of mind; the defendant's reasons for committing the offence; the foreseeability of the risk of harm to the environment; the practical measures available to the defendant to avoid harm to the environment; and the defendant's control over the causes of the harm (Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 at [16]).

[11]

Nature of offences

The statutory context in which the offences were committed is relevant to the assessment of the objective seriousness of the offences: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 (Bentley) at [51]-[71], [168]-[172]. A relevant consideration in environmental offences is the degree to which the offender's conduct offends against the legislative objectives expressed in the statutory offence: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [49].
As the OEH submitted, Swansbel's conduct was contrary to nearly all the objects of the NV Act which are set out in s 3, extracted above at [4].
Swansbel's counsel submitted that clearing half of the native vegetation from the relevant paddock allowed for better management of the Property and promoted its productivity (see Mr Swansbra's affidavit above at [15]). This accords with Swansbel's wider farming practices associated with growing cotton, wheat and chickpea described above in Mr Swansbra's affidavit at [14] and is confirmed by Swansbel's character references at [21]. These aim to promote moisture retention, soil health and ultimately the longevity of the economic use of the Property. It cannot be said that Swansbel generally had a complete disregard of the objects of the NV Act because its farming practices promote intergenerational equity.
Swansbel's submission disregards the content of the NV Act objectives in s 3 of, in particular: (a) the promotion of the management of native vegetation on a regional basis; (b) prevention of broad scale clearing unless it improves or maintains environmental outcomes; (c) the protection of high conservation native vegetation; (d) improvement of existing native vegetation; and (e) the encouragement of revegetation of land. The achievement of these objectives is to be in accordance with the principles of sustainable development. That farming operations are carried out sustainably, in the terms referred to by Swansbel, is not material to whether the objectives of the NV Act have been complied with in the context of this offence. Clearing land to crop cotton irrespective of whether it is done in an economically and environmentally sustainable way is diametrically contrary to the objectives of the NV Act.

[12]

Environmental harm

The parties agreed at pars 21-33 of the SOAF that Swansbel's clearing caused harm to the environment in terms of loss of native vegetation and impact on ecological communities including critically endangered, endangered and vulnerable species. The native vegetation on the cleared land is specified at par 13 of the SOAF.
I accept the OEH's submission that the harm caused to the environment in this case is significant. The native vegetation cleared was of high conservation value due to the listing of plant community type (PCT) 40 as an endangered ecological community (see par 33 of the SOAF). Conservation value considers the vegetation's capacity to support a diversity of fauna. The clearing has resulted in the loss of important, mature habitat which has a known association with 52 listed fauna and flora of critically endangered, endangered or vulnerable status (see tables 1 and 2 of the SOAF). A number of trees cleared on the Property are likely to have contained hollows which would have provided foraging and nesting resources for the wide variety of fauna known to occur in PCT 40. Loss of hollow-bearing trees causes extremely long-term damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to form, with prominent hollows mainly confined to trees over one hundred years old (see pars 30-31 of the SOAF). Removal of native vegetation affects other biota by affecting breeding, dispersal, soil chemistry, feeding and resting resources.
While Swansbel submitted that there was no evidence that particular flora and/or fauna were present prior to or at the time the clearing was carried out or that the potential adverse effects upon other biota referred to in pars 30-31 of the SOAF had materialised, the ecological evidence agreed in the SOAF informed by what existed on nearby land as shown in figure 4 justifies a conclusion that the environmental harm is significant. Because the environmental harm was substantial it can be considered an aggravating factor under s 21A(2)(g) of the CSP Act.

[13]

Defendant's state of mind in committing the offence

An offence against s 12(1) of the NV Act is a strict liability offence. The state of mind of an offender at the time of the offence can increase the objective seriousness of the offence.
Mr Swansbra admitted that he knew he needed to seek approval prior to undertaking the clearing and deliberately did not do so (see affidavit above at [16]). Consequently, Swansbel deliberately carried out the clearing knowing that it breached the legislation governing native vegetation. Swansbel's knowledge through Mr Swansbra at the time of the offence and deliberate action increases the objective seriousness of the offence.
Swansbel relied on Mr Swansbra's affidavit at [15] above outlining the past management of the cleared paddock and the difficulties encountered with infestations of weeds and thick coolabah regrowth. Mr Swansbra considered that the removal of half the vegetation in the paddock leaving the remaining half essentially locked up allowed for better management of the Property while allowing for some productive use of it. Swansbel's motivation for offending was not wholly financial. Swansbel also considered appropriate land management so that the land could be passed on to future generations, consistently with the evidence of Swansbel's general farming practices over a significant period of time as set out above at [14] and the fact that Swansbel has not previously committed any offence. Swansbel's state of mind did not represent a wholesale rejection of the relevant principles of ecologically sustainable development including the principle of intergenerational equity but a misguided approach to land management. All those submissions can be accepted as an explanation for what Mr Swansbra did or caused to be done on behalf of Swansbel but do not ameliorate a finding that the actions giving rise to the offence were deliberate meaning their unlawfulness was known and enabled the extensive area of cleared land to be used for cotton production, as shown in figure 3 in the SOAF. As identified above at [28] Swansbel's actions failed to promote any of the objectives of the NV Act.

[14]

Reasons for committing the offence

Swansbel cleared land in order to make it available for crops (see figure 3 of the SOAF). There is an inference available that this was done for a financial benefit. That a further reason was the management of weeds according to Mr Swansbra is a secondary consideration. I find that the offence was committed for financial gain which is a factor of aggravation under s 21A(2)(o) increasing the objective seriousness of the offending conduct.

[15]

Foreseeability of risk of harm

The foreseeability of the risk of environmental harm caused was high.

[16]

Practical measures that could have been put in place to prevent harm and control over the cause of the offence

Swansbel had complete control of the cause of the offence and should have refrained from clearing the native vegetation on the Property until authority in the approved form was obtained.

[17]

Conclusion on objective seriousness

The offence is at the mid-range of moderate objective seriousness given that the environmental harm caused was significant, the offence was deliberate and gave a financial benefit to Swansbel.

[18]

Subjective circumstances

Section 21A(3) of the CSP Act identifies a number of mitigating circumstances that can be considered where relevant.

[19]

Harm caused by offence was not substantial (s 21A(3)(a))

As the harm caused was substantial this subsection does not apply for Swansbel's benefit.

[20]

No prior convictions (s 21A(3)(e))

Swansbel has no record of prior convictions.

[21]

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

Mr Swansbra's affidavit outlined above at [13]-[14] describes how Swansbel is a family run company that has grown from years of hard work and sensible land management. Swansbel is an employer who looks after its employees well as demonstrated by the fact that some of its employees have been working at the company for over 35 years. The character references summarised above at [21] describe Swansbel's directors as upstanding members of their local community and the Australian cotton industry. Swansbel is committed to sustainable agricultural practices, evident through its investment in Innovate Ag, development of practices to promote water efficiency and soil health, and enhancement of native vegetation on and around the site (see [21] and [22] above). I accept Swansbel is of good corporate character.

[22]

Good prospects of rehabilitation (s 21A(3)(h))

Rehabilitation can be addressed in two ways, rehabilitation of the defendant and, relatedly because of the offence committed, rehabilitation of the cleared land or any other land. The efforts, if any, of Swansbel to rehabilitate land as a consequence of the offence is material to demonstrating whether it has good prospects of rehabilitation as a defendant charged with this offence. Swansbel submitted that it had indicated through Mr Swansbra's affidavit above at [19] an intention to work with the OEH to ensure that all remaining vegetation on the Property is preserved for the benefit of the environment into the future. Part of the rationale for committing the offence was that the remaining uncleared land in the paddock would be preserved as native vegetation. These statements of intention do not directly address rehabilitation to ameliorate the environmental impacts of the offence. I note below at [49] in the context of remorse that no efforts to ameliorate the environmental impacts of the offence on the cleared land have occurred to date. Nor is there any evidence of efforts being taken to manage native vegetation on neighbouring land. The extent to which actions are likely to be undertaken on neighbouring land is unknown at this stage and I can give these statements of intention little weight.
Given the absence of evidence of any practical actions taken to date to rehabilitate any land, Swansbel does not get the benefit of such evidence in determining whether it has reasonable prospects of rehabilitation. Consequently, this factor is neutral in this sentencing exercise.

[23]

Unlikely to reoffend (s 21A(3)(g))

I accept Swansbel is unlikely to reoffend in light of Mr Swansbra's affidavit and the character references supplied.

[24]

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

Mr Swansbra expressed regret on behalf of the company for the decision to unlawfully clear native vegetation and described the impact that the proceedings have had on him and his family (see [18] above). Two of the character references summarised at [23] above stated that Swansbel is remorseful for the clearing and the impact it has had on the surrounding environment. Mr Swansbra expressed to one referee that he is "truly sorry" for the unlawful clearing. It is necessary to distinguish between regret at actions taken and remorse and contrition for an offence.
Section 21A(3)(i) of the CSP Act states that: (3) Mitigating factors … (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). …
Moore J stated at [102] in Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 (Boyle) that "contrition and remorse are not demonstrated by some sense of shame or impact on an offender and/or … on the offender's family". Remorse involves recognition of the damage to the environment caused by the native vegetation clearing: Boyle at [104] and s 21A(3)(i)(ii) of the CSP Act, set out above. There must be evidence that an offender had insight into the unacceptability of the offending conduct (Boyle at [107]) and has accepted responsibility for his or her actions (s 21A(3)(i)(i) of the CSP Act). Mr Swansbra's affidavit refers to his regret for his actions and the impact of the proceedings on him personally and his family. Statements by character referees that Swansbel is remorseful do not unequivocally convey remorse concerning the substantial environmental harm that the native vegetation clearing caused.
No remediation plan has been proposed by Swansbel for the cleared land. The clearing occurred in 2013 and came to the attention of an authorised officer in September 2016. On 9 April 2019 Swansbel was issued a remediation order in relation to the cleared land by the OEH (Order) which became exhibit 2 and is presently under appeal. By way of contrast, in Chief Executive, Office of Environment and Heritage v Merriman [2018] NSWLEC 96 (Merriman) at [47], the defendant farmer who pleaded guilty to clearing native vegetation expressed remorse in an affidavit regarding his actions and took remedial action to substantiate this. The defendant agreed on a process with the prosecutor resulting in an agreed remediation plan, registered a positive covenant on his land in relation to the remediated area and engaged a native vegetation nursery to implement the remediation plan as soon as possible. Under the remediation plan the defendant was required to fence the remediated area and agreed to do this work himself. Accordingly I held at [48] that the defendant had expressed genuine and substantial remorse. Unlike Merriman, there is no evidence that Swansbel has taken or is intending to take in the foreseeable future any positive steps to remediate the land cleared or protect native vegetation on neighbouring land. Swansbel's promise via Mr Swansbra to preserve the remaining native vegetation on the Property can be given limited weight. All of these matters contribute to my finding that Swansbel's expression of remorse is somewhat qualified.

[25]

Early plea of guilty (ss 21A(3)(k), 22)

An early plea of guilty may entitle Swansbel to a discount in penalty in the range of 10-25 percent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 419. This range is intended to be a guide only, it does not create a presumption or entitlement to a particular discount in a given situation: R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 at [44].
Swansbel pleaded guilty to an amended summons at the first reasonable opportunity on 1 February 2019 being the date on which the amended summons was filed. It should obtain a 25 percent discount given the utilitarian value of the plea.

[26]

Assistance to authorities (s 21A(3)(m))

Swansbel co-operated with the OEH at all stages during its investigation, see Mr Swansbra's affidavit at [17] above. This included facilitating access to the relevant paddock and ensuring the company complied with and answered all notices issued to it. It also made available to the OEH a director who participated in a formal interview regarding the matter.

[27]

Deterrence

General deterrence is an important factor in sentencing for environmental offences. As held by Preston CJ in Bentley at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J.
Preston CJ stated in Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [13]: The very high maximum penalties fixed by parliaments for offences of clearing native vegetation contrary to law are, to a significant extent, intended to act as a deterrent, a countervailing disincentive to the economic incentives to clear native vegetation illegally. The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the offender and also of other owners, occupiers and developers of land on which native vegetation occurs who might be tempted to clear illegally by the prospect that only light punishment will be imposed by the courts. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational.
Specific deterrence is a principle of sentencing pursuant to s 3A(b) of the CSP Act. The OEH submitted that since Swansbel is still farming, the sentence should involve an element of specific deterrence.

[28]

Retribution and denunciation

Section 3A(a), (e) and (f) of the CSP Act sets out retribution and denunciation as part of the purposes of sentencing and the Court needs to take it into account. This consideration applies equally to strict liability offences.

[29]

Extra-curial punishment

The Order described above at [49] requires Swansbel to prepare and implement a remediation plan to restore the vegetation in the cleared area in the manner specified in the Order. I was informed on 10 May 2019 that an appeal against the Order has been commenced in this Court.
Swansbel submitted that the Court should consider the cost associated with remediating the land as a form of extra-curial punishment which the Court must take into account in sentencing because the Court is required to ensure that the punishment the offender receives is appropriate and not excessive: R v Daetz; R v Wilson (2003) 139 A Crim R 398; [2003] NSWCCA 216 (James J, Tobias JA and Hulme J agreeing). "Extra-curial" means that which is imposed otherwise than by the sentencing court: Einfeld v The Queen (2010) 200 A Crim R 1; [2010] NSWCCA 87 at [86] (Basten JA, Hulme and Latham JJ agreeing). Unilateral action by a regulator against an offender may appropriately be taken into account by a sentencing court as extra-curial punishment even where that action is a consequence of the commission of the offence: R v Rivkin (2003) 198 ALR 400; [2003] NSWSC 447 at [54], cited in Einfeld v The Queen at [88]. In this case the Order was unilaterally made by the prosecutor. It is plainly a punishment imposed otherwise than by the sentencing court. Consistent with R v Rivkin and Einfeld v The Queen it may be taken into account in determining sentence. It is a form of punishment because it is coercive (failure to comply with the Order can be prosecuted as an offence) and the defendant will incur a detriment through the cost of compliance. Swansbel disputed the OEH's reliance on Moore J's remarks in Boyle since they were directed to the assessment of contrition and remorse rather than extra-curial punishment. If the Order was accepted to be extra-curial punishment this sentencing hearing should be stood over to enable the outcome of the Class 1 appeal to be known so that the extent of obligation placed on the defendant is known.
I accept the OEH's submission that in relation to this matter the Court should not regard the costs of compliance with the Order as a form of extra-curial punishment. The Order and any cost associated with compliance is an inevitable outcome of the various statutory powers available to the OEH. Any remediation work undertaken by Swansbel reverses or stops harm caused by its conduct. Any cost or inconvenience incurred in taking steps to return the land to its former state cannot be viewed as a form of punishment (extra-curial or otherwise), rather it represents the undoing of the detriment caused by Swansbel's conduct. This finding accords with the legislative context of the offence for which Swansbel was charged because an object of the NV Act (s 3(e)) is to "to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation".

[30]

Even-handedness

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty: R v Visconti at 107 (Street CJ, Lee and Maxwell JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court: Hoare v The Queen at 354. The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; at [42] (Hili). A history of sentencing in other cases does not limit my sentencing discretion. In Hili the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) held at [54] that: In Director of Public Prosecutions (Cth) v De La Rosa at [303]-[305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed of at [303], a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said at [303]: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence" at [304]. Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" at [304] (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned" at [304] citing Wong v R ; (2001) 207 CLR 584 at 606 [59].
In Rae the defendant pleaded guilty to an offence under s 12(1) of the NV Act. An area of 215 hectares was partially cleared and 155 hectares was cleared of 95 percent of all trees. Most of the trees cleared were mature and some were in excess of 17 metres in height. The clearing was held to be premeditated and intentionally carried out with knowledge of its seriousness and unlawfulness. The trees were cleared to improve the property by making it more viable for agricultural purposes and to increase its capital value. The native vegetation which was cleared had significant conservation status (endangered species) and contributed to biodiversity. Preston CJ held that there was a high degree of environmental harm which was considered an aggravating factor in sentencing. The defendant agreed to a direction by the prosecutor to carry out remediation of the site. Overall the offence was considered to be of medium objective gravity. Mitigating factors considered were the absence of prior offences, the defendant's good character, the defendant's guilty plea (though not at the earliest opportunity), his expression of contrition and remorse and his assistance in the investigation. The appropriate fine was $200,000 which was reduced to $160,000 after a 20 percent discount was applied for the early plea of guilty.

[31]

Moiety under the Fines Act 1996

The OEH seeks an order pursuant to s 122(2) of the Fines Act 1996 directing the payment of one half of any fine imposed on Swansbel to be paid to the OEH (a moiety). Section 122(2) of the Fines Act 1996 provides: Part 9 Miscellaneous ... 122 Payment of share of fine to prosecutor (1) This section applies where: (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. …
The award of a moiety to a prosecutor is discretionary: Boyle at [157]. One circumstance justifying the making of a direction pursuant to s 122(2) is when a prosecutor does not have an independent right to recovery of investigation costs: Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 (AGL Energy) at [143] citing Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154 at [62]. It is appropriate to make the order under s 122(2) sought by the OEH.

[32]

OEH's legal costs

The parties have agreed that Swansbel is to pay $40,000 of the OEH's costs as provided by ss 257B and 257G of the Criminal Procedure Act 1986.

[33]

Penalty imposed

When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J).
The appropriate penalty is $400,000 which should be discounted by 25% in light of the early plea of guilty to $300,000.
As an administrative matter, the fine should be paid to the Registrar of the Land and Environment Court.

[34]

Orders

The Court makes the following orders: 1. The Defendant Swansbel (Pastoral) Pty Ltd is convicted of the offence that from about 10 July 2013 to 30 December 2013 inclusive, at or near Merah North in the State of New South Wales, it committed an offence against s 12 of the Native Vegetation Act 2003 (the Act), in that it carried out and/or authorised the clearing of native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or a property vegetation plan. 2. The Defendant is fined $300,000. 3. Pursuant to s 122(2) of the Fines Act 1996 one half of the fine imposed on Swansbel in Order (2) is to be paid to the Prosecutor the Office of Environment and Heritage. 4. The Defendant is to pay the Prosecutor's costs in the amount of $40,000. 5. The exhibits are returned.

[35]

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: 30 May 2019

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