Defendant: It's nothing to do with you. This is my land and I can do whatever I want on my land.
15 After receiving a telephone call from a female neighbour of Ms McCabe, Mr Gerald Bailey, the mayor of Young, arrived at McCabe's house. Mr Bailey and the defendant then had a conversation where Mr Bailey asked the defendant to stop pushing over trees with the bulldozer and the defendant complied. When Mr Bailey left, the defendant then said to Mr Osborne: "We'll go up to where I'm going to do the house site and we'll do that". Mr Osborne drove up to the other end of the property where he had cleared trees for the house and he then pushed soil around to level out the site.
16 Later that day, Messrs Kel Broderick and Craig Filmer from the council arrived at the property. Mr Filmer said to Mr Osborne: "Don't do any more Oz" and Mr Osborne replied: "Okay, I won't". Shortly after that, Mr Osborne left the site and was subsequently paid $918.50 by the defendant for his work. As at the date of the offence, 21 August 2004, no development consent had been granted in relation to the property.
17 On 23 August 2004, the defendant and Mr Curtis met Mr Filmer at the Young Shire Council offices. Mr Filmer asked why the defendant thought he could do these works. The defendant replied: "I was just doing cut and fill works for a house".
18 On 25 August 2004, Mr N Schiller, a council ranger, observed a large pile of uprooted trees on the property and a large area had been cleared, with the surrounding soil spread across an open area approximately 80 to 100 square metres. The area was flat like a building site.
19 There was a meeting on 31 August 2004 between the defendant and Mr Bailey and Mr Hanrahan, the general manager of the council. The defendant handed a plan to Mr Bailey marking the trees that had been taken out. The defendant said: "I didn't realise that I was doing anything wrong".
20 Mr Luke Joseph Bond, an officer of the prosecutor, interviewed the defendant on 6 October 2005. There was a formal record of interview in which the defendant admitted that he knew that the development application had not been approved when settlement of the sale occurred; that he did not have any approval to clear trees on the property and was unaware that he needed any; that he had never seen Ms Hudson's threatened species report and that he had no discussions with Mr Curtis about the type of trees on the land. In an interview between Mr Bond and Mr Curtis on 24 February 2005, Mr Curtis also said that he did not discuss the subdivision with the defendant because he was engaged by the Keirs.
21 On 7 March 2006, Ms Hudson attended the property with Mr Bond. Ms Hudson observed that thirty three trees had been removed since she had been on the property in 2003. She was able to state that 29 Yellow Box trees and three Blakely's Red Gum trees had been removed. The remaining tree was dead when she had viewed the property in 2003. Thirteen of the trees felled were partly or wholly within lots marked 13 and 14 of the proposed subdivision plan, the area which Mr Priday identified as being higher conservation significance than the rest of the property. A sample of four trees that were felled shows that they were in the range of seventy-seven to a hundred and eighty-two years of age.
22 On the question of environmental harm, there is agreement that patches of the endangered ecological community the size seen on the property are a rarity. The amount of endangered ecological community of that quality in the area collectively amounts to just 200 to 300 hectares across the New South Wales south western slopes. Much of the remaining extent of Box Gum Woodland in New South Wales is in poor condition. Mr Priday formed the view that remnants such as the one in question are of significant value in terms of the prospects of the long-term persistence of the community and the role such remnants have in providing habitat for a suite of declining woodland fauna and flora species. In his view, the site would have been habitat for the Superb Parrot that tends to nest almost exclusively in the endangered economic community.
23 The defendant gave evidence before me this morning. To his credit, he has, on his own initiative, replanted some 120 trees on the property. That is more than three times the number of trees that he removed, although eighteen have since died because of the drought. It is not known what species of tree has been replanted, but he says they came from a local nursery and the local nurseryman is knowledgeable and knows the trees that are endemic to the area. The defendant says that he particularly cleared the eastern end of the site because that is where he wanted to build his house, that being the part of the land with the best view.
24 He says he bought the land with his partner with a view to subdividing it and making a profit, although in the events that have happened, no subdivision has occurred. He thinks that the land may be worth around $300,000, but it is mortgaged, the mortgage being in the order of about $150,000. Therefore, his equity in the land would be perhaps $85,000 or thereabouts. In giving his evidence, he demonstrated that he is remorseful and contrite. He said he does not feel too good about it now and as far as he knew, there was no tree preservation on the property at the time.
25 The defendant owns another property in Young at Back Creek Road on which he has the foundations for a house and on which he owes some $65,000. His company, Fletchers Enterprises Pty Limited, owns another property at West Wyalong and it seems that there is no equity in that property.
26 The defendant says that he is a truck driver, he has three dependent children, two at school and one at university. The one at university still has three and a half years to go at university. The next child is sixteen and in year 11 at school. The fifteen year old will be entering year 10 next year. His income is modest and he earns some $750 a week before tax. I mention these matters because the ability of a person to pay any fine is a matter to be taken into consideration in the imposition of any penalty under the Fines Act 1996.
27 The defendant has no known criminal record. He entered a guilty plea at an early stage. He assisted the Court in the statement of agreed facts and the utilitarian value of that plea is significant because by agreeing to the additional facts this morning, he obviated the calling of four witnesses by the prosecutor.
28 I turn now to the various considerations on the question of penalty. The maximum penalty for the offence is $220,000 plus $11,000 for each plant or tree that was affected. That penalty is a mark by the legislature of the seriousness with which it regards offences of this kind.
29 The following conclusions may be drawn about the defendant's conduct. Firstly, he expressly authorised the carrying out of the clearing. Secondly, at the time of authorising the clearing, the defendant was aware, from what he had been told, that the Box Gum trees were a protected species and that the development application was being held up because of, amongst other things, the issue in relation to the trees was not resolved. Thirdly, the defendant himself personally supervised the clearing and knocking over of the trees when it was being carried out.
30 On the question of environmental harm, that had already been described above, but, as I have said, to the defendant's credit, he has, without any prompting and on his own initiative, replanted three times the number of trees that were removed. I am satisfied, nevertheless, that his reasons for committing the offence were twofold. Firstly, to prepare a site for a proposed house on the eastern end of the property and secondly, to prepare the way for the subdivision and in this regard - he did so without getting the prior approval of the council for a subdivision.
31 Any sentencing exercise requires consideration of the purpose of sentencing. These purposes are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are: (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; and (g) to recognize the harm done to the victim of the crime and the community. In relation to the victim of the crime and the community, the victim is itself the community which has lost part of an important endangered ecological community.
32 The primary consideration in sentencing is the objective gravity or seriousness of the offence and the primary indicator of the objective gravity or seriousness of the offence is the maximum penalty proscribed by the legislature which I have described. A factor which highlights the objective gravity or seriousness of the offence in this instance is that the defendant knew, because he was told, that the vegetation on the site was protected. The damage was thus not only foreseeable, but was the intended outcome of what took place. The defendant could and should have refrained from arranging any clearing until he had first received development consent. So we have a defendant who committed the offences deliberately and in the full knowledge that his actions were unlawful and that the vegetation was protected.
33 I have described the subjective circumstances of the defendant, his lack of prior criminality and, I assume, his generally good character. Importantly, I have referred to the high utilitarian value of the plea in this case which warrants a discount in penalty in the range of ten to 25 per cent. Since the defendant entered a plea of guilty at an early stage, he is entitled, in my view, to the full discount of 25 per cent. The defendant has expressed his contrition and remorse and he has also assisted the authorities, willingly taking part in both of a record of interview in which he candidly conceded what he had done, and in his co-operation in the making of the agreed statement of facts.
34 In considering the question of penalty, the Court has to consider both the question of specific deterrence and general deterrence. In my view, there is no need for the penalty to mark any significant element of specific deterrence. I am satisfied that the defendant is unlikely to re-offend in the light of his present experience. There is, however, a need for general deterrence. In considering the question of penalty generally and for environmental offences such as this in particular, general deterrence is a major consideration. Persons - other persons - will not be deterred from committing environmental offences by nominal fines. There is a need to uphold the integrity of the system of protecting and preserving endangered ecological communities and there is a need to send a strong warning to others who may be minded to breach the law, such that actions of this nature will be visited with significant consequences. However, care must be taken to ensure that this defendant does not bear a disproportionate burden of the cost of general deterrence.
35 The offence in the present case was, as I have said, carried out for the purpose of creating a house site and for the purpose of a subdivision, the intention being to make a profit. I have noted, however, that no profit has been made and no subdivision consent has yet been granted.
36 A matter which the Court is also required to take into consideration under the Fines Act 1996 is the fact that the prosecutor is seeking its costs. I understand that the defendant accepts that he is obliged to pay the prosecutor's costs, but here has been no agreement as to costs. I am informed that the estimated costs at this stage are in the order of $32,500, which is not an insignificant sum.
37 Having regard to all these factors, it is apparent that a monetary penalty must be imposed. The prosecutor also suggests that a community service order be imposed. I am not satisfied that a community service order is called for in this case. I must observe that this penalty is much lower than penalties that have been imposed for similar offences, particularly since the defendant has voluntarily planted about three times the number of the tress that he cleared.
38 The formal orders of the court are: