Plath v Hunter Valley Property Management Pty Limited

Land and Environment Court (NSW)|2010-09-24|Before: Preston CJ

CITATION : Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264

PROSECUTOR Gordon Plath of the Department of Environment, Climate Change and Water PARTIES : DEFENDANT Hunter Valley Property Management Pty Limited

KEY ISSUES: ENVIRONMENTAL OFFENCES :- picking endangered population of plants - sentence - offence of low objective gravity - conduct offended against legislative objects - substantial environmental harm - conduct negligent - foreseeable risk of harm - practical measures to avoid harm - control over causes of harm - offence not committed for commercial gain - subjective circumstances of offender - lack of prior criminality - early plea of guilty - remorse - assistance to authorities - payment of prosecutor's costs - appropriate penalty a fine and publication order

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: National Parks and Wildlife Act 1974 Threatened Species Conservation Act 1995

Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 CASES CITED: Markarian v The Queen (2005) 228 CLR 357 Plath v Rawson (2009) 170 LGERA 253 R v Thomson (2006) 49 NSWLR 383

PROSECUTOR Ms Erin Shepley (solicitor)

SOLICITORS Department of Environment, Climate Change and Water LEGAL REPRESENTATIVES: DEFENDANT Mr Mark Seymour

SOLICITORS Alex Irving Solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

GORDON PLATH OF THE DEPARTMENT OF ENVIRONMENT, CLIMATE CHANGE AND WATER V HUNTER VALLEY PROPERTY MANAGEMENT PTY LIMITED

JUDGMENT 1 HIS HONOUR: The corporate defendant, Hunter Valley Property Management Pty Limited, owns land in the country town of Denman in the Hunter Valley. The land is Lot 351 in DP 568158 known as 113 Virginia Street, Denman. The directors of the corporate defendant are Mr Eric Weng and Dr Fiona Zhu who is married to Mr Weng. The defendant purchased the land for the purpose of building a new, larger medical surgery for Dr Zhu who practises as a general practitioner in Denman and a dwelling house for Dr Zhu and Mr Weng and their children. 2 In July 2008, prior to the defendant lodging a development application for the proposed medical practice and dwelling house, Mr Weng arranged for a contractor to remove rubble and rubbish from the land and to slash vegetation and mow grass on the land. Amongst the vegetation slashed or damaged were many individual trees of the species Acacia pendula or weeping myall. The population of Acacia pendula in the Hunter catchment is listed as an endangered population under the Threatened Species Conservation Act 1995. The slashing of these trees on the land constitutes the offence against s 118A(2) of the National Parks and Wildlife Act 1974 ("NPW Act") of picking plants of an endangered population. The defendant has pleaded guilty to the offence. The Court's task is to sentence the defendant for the offence. 3 After the vegetation on the land was slashed, the defendant lodged and Muswellbrook Shire Council approved a development application to build the medical practice and dwelling house on the land. The development consent was subject to 64 conditions, including a condition requiring the remediation and protection of the Acacia pendula trees on the land.

The nature of the offence 4 The defendant's actions in picking the plants of the listed endangered population without first applying for and obtaining the necessary approval undermined the legislative objectives of the offence against s 118A(2) and the regulatory scheme, including impeding the achievement of ecologically sustainable development: see s 2A(1)(a) and s 2A(2) of the NPW Act and the discussion in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71], [168] [169]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]-[55] and Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15]-[19].

Maximum penalty 5 The maximum penalty for the offence against s 118A(2) of picking any plant that is of, or is part of, an endangered population committed by the defendant which is a corporation is 2,000 penalty units ($220,000) and an additional 100 penalty units ($11,000) in respect of each whole plant that was affected by or concerned in the action that constituted the offence. The penalty of imprisonment for up to 2 years is not available for a corporate defendant. 6 The agreed statement of facts indicates that between 210 and 260 plants were affected by or concerned in the slashing that constituted the offence. 7 These high maximum penalties for the offence of picking an endangered population reveals the seriousness with which Parliament views such an offence: see Plath v Rawson at [60]-[64].

State of mind of offender 8 Although the offence is one of strict liability, the commission of the offence intentionally, recklessly or negligently will be objectively more serious than if not committed with such states of mind. 9 The prosecutor submits and the defendant accepts that the defendant was negligent in the manner in which it proceeded to have the land cleaned up. The defendant submits that the evidence does not establish recklessness or wilful blindness on the part of the defendant. 10 Dr Zhu had made inquiries in 2007 of the Council about the proposal to purchase the land and build a medical practice and dwelling house. A council officer, Mr Pringle, stated that he advised Dr Zhu when they visited the land on 23 August 2007 of the existence on the land of an endangered population of trees called Acacia pendula. Dr Zhu said she had no recollection of the specifics of this conversation. In cross-examination, Dr Zhu recalled being told by their town planner, Ms Bev Atkinson, in an email on 13 September 2007 that there were threatened plants on the land. Dr Zhu also said this in a letter she wrote on 17 April 2009 to the Department of Environment and Climate Change. 11 Mr Weng arranged in mid June 2008 for a contractor to clear the land and clean it up. Mr Weng requested all vegetation be removed but the contractor suggested instead that it would be better to just clean up the rubble and mow the grass. Mr Weng agreed and the contractor undertook the work between 9 and 11 July 2008. 12 At the time Mr Weng arranged for and the contractor undertook the clean up of the land, Dr Zhu was not a director of the defendant. There is no evidence that Mr Weng was advised by Dr Zhu of the information she received from the Council officer, Mr Pringle, and the town planner, Ms Atkinson, about the presence on the land of threatened plants. 13 I find the defendant was negligent in the circumstances in arranging for cleaning up of the land without making the necessary inquiries and without seeking approval. This increases the seriousness of the offence.

Harm to the environment and significance of the threatened species 14 The Court is required by s 194(1)(a) and (b) of the NPW Act to consider the extent of the harm caused or likely to be caused by the commission of the offence and the significance of the endangered population that was harmed or likely to be harmed by the commission of the offence. 15 The Scientific Committee in its final determination to list the population of Acacia pendula in the Hunter catchment as an endangered population found the population has fewer than 1,000 individuals and is only in 6 locations in the Hunter catchment. The presence of Acacia pendula on the land was unknown until May 2007 when a plant ecologist working for the original subdivider of the land (from whom the defendant purchased the land) identified the Acacia pendula trees. Approximately 60 individual plants up to 4.5m high and between 150 and 200 juvenile plants less than 2 metres tall were identified on the land. The discovery represented a sizeable addition to the previously known population of Acacia pendula in the Hunter catchment. 16 The work that constituted the offence resulted in the majority of Acacia pendula trees on the land being slashed. 17 The prosecutor accepts that the plants are growing back. However, it will take some time for the plants to fully recover. The conservation requirements imposed by the conditions of the development consent will assist in the plants' recovery. 18 I find the harm caused to the environment and to the endangered population by slashing and damaging vegetation on the land was substantial. This is an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act").

Foreseeability of risk of harm 19 Having regard to the nature and extent of the clearing, the defendant could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence: see s 194(1)(d) of the NPW Act.

Practical measures to prevent harm 20 The defendant could have and should have taken steps to make inquiries of the Council of the need to obtain approval, and then obtained that approval, before slashing or damaging the vegetation on the land. If the defendant had complied with the regulatory scheme, the necessary approval could have been given efficiently while protecting the endangered plant population. When the defendant did subsequently lodge a development application it took the Council less than three months to grant development consent subject to conditions which included the conservation of the Acacia pendula trees on the land. 21 There were, therefore, practical measures the defendant could have taken to prevent the harm caused by commission of the offence: see s 194(1)(c) of the NPW Act.

Control over causes 22 The defendant, in directing the work constituting the offence, had control over the causes that gave rise to the offence: see s 194(1)(e) of the NPW Act. The defendant did not commit the offence under an order or a direction from anyone else: see s 194(1)(g) of the NPW Act.

No commercial gain 23 The evidence does not establish that the defendant committed the offence to make a profit or to save incurring an expense, or to avoid the cost of obtaining and implementing a development consent. The consent subsequently granted required the conservation of the Acacia pendula trees on the land. 24 I do not find, therefore, that the offence was committed for commercial gain: see s 194(1)(h) of the NPW Act.

Conclusion on objective circumstances 25 The offence committed by the defendants is of low objective gravity.

Subjective circumstances of the defendant 26 Within the limits set by the objective gravity of the offence, the Court may take into account the mitigating factors personal to the offender: see s 21A(3) of the Sentencing Act.

Lack of prior criminality 27 The defendant does not have any prior convictions for any environmental offences: see s 21A(3)(e) of the Sentencing Act.

Guilty plea 28 The defendant pleaded guilty on the first available occasion, being the first mention of the matter on 25 June 2010. The defendant should be afforded the full 25% discount for the utilitarian value of the plea of guilty: see s 21A(3)(k) and s 22 of the Sentencing Act and R v Thomson (2006) 49 NSWLR 383 at [160].

Remorse 29 A director of the defendant, Dr Zhu, gave both affidavit and oral evidence. In her oral evidence, Dr Zhu said she was "truly really sorry for what happened to the trees" and that she had only wanted to make a contribution to the community in which she works and lives by providing a better medical service. She expressed her hope that "the trees will come back and [be] healthy from now on". Pursuant to the condition of development consent, the defendant is conserving the Acacia pendula trees on the land and thereby making reparation for the harm caused by the commission of the offence: see s 21A(3)(i) of the Sentencing Act. 30 Dr Zhu's remorse was genuine. She had character references that testified as to her good character, integrity and contribution to the community. The character references also testified as to the good character of the director, Mr Weng.

Assistance to authorities 31 The defendant has responded to statutory notices issued in connection with the investigation of the offences, including Mr Weng and Dr Zhu participating in records of interviews with investigators. Since pleading guilty, the defendant has further co-operated by agreeing to statements of facts: see s 21A(3)(m) of the Sentencing Act.

Payment of prosecutor's costs 32 The defendant has agreed to pay the prosecutor's costs in the sum of $19,911.82.

Publication order 33 The prosecutor and defendant have agreed that a publication order should be made under s 205(1)(a) of the NPW Act. A publication order serves the purpose of general deterrence.

Synthesis of objective and subjective circumstances 34 The sentence of the Court is a public denunciation of the conduct of the defendant. The sentence must ensure that the defendant is held accountable for its actions and is adequately punished. There is a need for the sentence to act as a general deterrence to prevent other persons committing similar offences. However, specific deterrence of the defendant is not necessary having regard to the one-off nature of the offence, the fact that the defendant's only asset and business is the land in question, the defendant is effectively the alter ego of Dr Zhu and Mr Weng, the remorse expressed by a director of the defendant, Dr Zhu, the actions of the defendant in conserving the trees on the land pursuant to the development consent and the unlikelihood of the defendant reoffending. 35 The appropriate penalty for the offence is a fine. The amount of the fine should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and offender: see Markarian v The Queen (2005) 228 CLR 357 at [37], [39], [66] and [73]. Accordingly, I have taken account of each of the objective circumstances of the offence and the offender, as mitigated by the subjective circumstances of the defendant. I have considered the significance of the endangered population, the number of plants of the population affected and the degree of environmental harm caused by the commission of the offence in fixing the amount of the fine. 36 The appropriate penalty is a fine in the sum of $50,000. This should be discounted by 25% for the plea of guilty, resulting in the fine of $37,500. In addition the defendant should be required to publicise the offence and its environmental consequences and the orders the Court made against the defendant. The appropriate means is by placing a notice in a newspaper circulating in the Hunter region in which the endangered population occurs (the Newcastle Herald). A copy of the draft publication notice is attached. Finally, the defendant should pay the prosecutor's costs in the agreed sum of $19,911.82.

The defendant is convicted of the offence as charged.

The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act 1974.

The defendant, within 28 days of this order, is to place a notice in the first 12 pages of the early general news section of the Newcastle Herald at a minimum size of 8cm by 12cm in the form of annexure A (pursuant to s 205(1)(a) of the National Parks and Wildlife Act 1974).

The defendant is to pay the prosecutor's costs in the sum of $19,911.82.

The costs are to be paid to the prosecutor for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 189(3) of the National Parks and Wildlife Act 1974.

Hunter Valley Property Management Pty Limited Guilty of offence of picking endangered population of plants On 23 December 2010, the Land and Environment Court of NSW found Hunter Valley Property Management Pty Limited guilty of one offence of picking an endangered population of plants. The offence occurred at 113 Virginia Street, Denman, in the Hunter Valley.

The offence occurred between about 9 July 2008 and 11 July 2008 when the company instructed a contractor to clean up the land, including removing vegetation on the land. The works removed between 210 and 260 Acacia pendula plants, known as Weeping Myall which are part of an endangered population in the Hunter catchment. There are less than 1000 known Acacia pendula plants in the Hunter catchment.

Hunter Valley Property Management Pty Limited pleaded guilty to the offence.

Hunter Valley Property Management Pty Limited was convicted by the Land and Environment Court, fined $37,500 and ordered to pay the prosecutor's costs of $19,911.82.

This advertisement was placed by order of the Land and Environment Court and paid for by Hunter Valley Property Management Pty Limited.

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.

(2006) 145 LGERA 234

(2009) 168 LGERA 121

(2009) 170 LGERA 253

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