Plath v Vaccount Pty Ltd t/as Tableland Timbers - [2011] NSWLEC 202 - NSWLEC 2011 case summary — Zoe

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Plath v Vaccount Pty Ltd t/as Tableland Timbers

[2011] NSWLEC 202

Land and Environment Court (NSW)|2011-11-11|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2011-11-11

Before

Pepper J

Catchwords

(2006) 145 LGERA 234 Blackwell v R [2011] NSWCCA 93 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
(2002) 123 LGERA 269 Environment Protection Authority v Waste Recycling and Processing Corporations [2006] NSWLEC 419
(2006) 148 LGERA 299 Gordon Plath of the Department of Environment and Climate Change v Fish
Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Blackwell v R [2011] NSWCCA 93 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2002) 123 LGERA 269 Environment Protection Authority v Waste Recycling and Processing Corporations [2006] NSWLEC 419(2006) 148 LGERA 299 Gordon Plath of the Department of Environment and Climate Change v FishGordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144(2010) 179 LGERA 386 Hili v The QueenJones v The Queen [2010] HCA 45(2010) 272 ALR 465 La Fontaine v R (1976) 136 CLR 62 Markarian v The Queen [2005] HCA 25(2009) 170 LGERA 253 R v Borkowski [2009] NSWCCA 102 R v Crabbe (1985) 156 CLR 464 R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383 Veen v The Queen [1979] HCA 7(1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14

Judgment (35 paragraphs)

[1]

[5]

Tableland Timbers is Engaged to Carry Out Logging 11In late 2008, Mr MacDougall and his wife, Mrs Joan MacDougall, engaged Tableland Timbers to carry out some logging on their land, as part of a management plan to harvest timber and let younger timber grow and to make some extra money. 12Tableland Timbers is a timber milling and logging business based in Grafton. Mr Peter McPherson and Mrs Suzanne McPherson have been the directors of Tableland Timbers since 28 February 1992. Their employees include Mr Adrian Grant and their sons, Mr Craig McPherson and Mr Siman McPherson. 13During an initial inspection of the intended logging work, Mr Peter McPherson attended the private property and told Mr MacDougall that it was necessary to apply to the Grafton office of the Department of Environment and Climate Change (now the Office of Environment and Heritage, Department of Premier and Cabinet ("OEH")) for permission prior to commencing logging. 14On Mr Peter McPherson's second visit to the property to look at the area that was intended to be logged, Mr MacDougall indicated that the national park bordering the private property was "along the top of the escarpment". Mr MacDougall instructed Mr Peter McPherson to log whatever trees Tableland Timbers were able to on the private property without taking any of the younger trees. 15On 5 September 2008, Mr Kelvin Christiansen, a senior OEH Private Native Forestry Officer, in response to an inquiry from Tableland Timbers, sent a private native forestry ("PNF") information kit, a property vegetation plan ("PVP") pack and a sketch map to Mr MacDougall and Tableland Timbers. The private property boundary was marked on the map. 16On 24 September 2008, OEH received a letter from Tableland Timbers requesting re-evaluation of the representation of the old growth forest on the sketch map. The re-evaluation was completed on 3 October 2008 and a revised map was sent to Mr MacDougall and Tableland Timbers. Again the private property boundary was marked on the map. 17On 8 October 2008, OEH received a letter and a sketch map from Tableland Timbers requesting a PNF-PVP for 15 years over the majority of the forested area on the private property. 18On 13 October 2008, Mr Christiansen sent a PNF-PVP agreement and map to Mr MacDougall for signing. The agreement was subsequently signed and returned to OEH, and Mr Christiansen then approved the PNF-PVP. The private property boundary was marked on the map. 19On 31 October 2008, Mr Jason Barker, PNF Operations Officer, returned the approved PNF-PVP, together with a Forest Operation Plan map, Forest Operation Plan pro forma and letter to Mr MacDougall and Tableland Timbers. The PNF-PVP permitted logging in certain parts of the private property. A copy of the approved PNF-PVP was attached to the agreed bundle. Again the private property boundary and area in which permission had been given to log was clearly indicated on the map. 20In late 2008, Mr Peter McPherson, his son Mr Craig McPherson, and Mr Grant attended the private property with Mr MacDougall to discuss the logging work that was to be carried out and the location of the common boundary between the private property and the national park. Mr MacDougall claims that both he and the representatives from Tableland Timbers had copies of the PNF-PVP map showing the boundaries of the property at the time. Mr Peter McPherson claims that Mr MacDougall was unable to locate his copy of the PNF-PVP map. 21On 3 November 2008, Mr Craig McPherson and Mr Grant commenced logging on the private property. At this time, Mr Craig McPherson asked Mr Siman McPherson and Mr MacDougall for a map showing the boundary with the national park. Mr Craig McPherson obtained from Mr Siman McPherson both a topographical map and the sketch map produced by OEH that showed the general location of the boundary of the private property, including GPS coordinates. 22Mr Craig McPherson did not mark the boundary between the national park and the private land when he commenced logging operations in the northern parts of the private property. In addition, Mr McPherson did not look at the sketch map or any GPS equipment when he was felling trees on the north western part of the private property because he had "tunnel vision" and had a "million and one other things going on" in his head at the time. 23It was an agreed fact that at the time of the harvesting, Mr Craig McPherson believed, based upon his understanding of the conversations in his presence between Mr Peter McPherson and Mr MacDougall, that he had not crossed the boundary between the private property and the national park. 24By contrast, prior to carrying out logging on the south western part of the private property where it joined the national park, Mr Craig McPherson used the sketch map and GPS equipment to identify the boundary, which was subsequently marked with pink spray paint on the trees. 25Mr Grant, on the other hand, was not shown any maps of the boundary between the private property and the national park and did not see the PNF-PVP, although he was aware that the national park was located nearby. 26The logging continued up until 20 December 2008. 27In mid January 2009, Mr Craig McPherson and Mr Grant recommenced the logging on the property, which continued through to March 2009. 28In January 2009, Tableland Timbers brought a new mechanical harvester onto the private property and began to log with the use of the harvester in addition to handfelling trees using a chainsaw. The harvester was not fitted with a GPS. 29While the logging operations were being carried out, Mr MacDougall visited the property once a week to view the progress of the work but he did not inspect the national park boundary. 30At no stage did Mr MacDougall believe that the logging operations had moved into the national park. 31The logging operations, excluding the act of trespassing into the national park, are described as conservative, light and selective, giving due consideration to avoiding environmental damage to the soil. The method adopted by the loggers was consistent with the loggers not being aware that logging work had travelled across the boundary into the national park.

[6]

OEH Investigation 32On 4 June 2009, PNF Support Officers Mr Ben Garrett and Mr Lucas McKinnon, and PNF Operations Officer Mr Barker undertook an audit of the PNF operations on the private property, against the PNF Code of Practice ("the code"). Overall, the logging complied with the code, however, it was at this stage that they discovered that the logging had been undertaken partly within the national park. 33On 3 July 2009, Mr Garrett and Mr Barker again inspected the property and took photographs and waypoints with a GPS. 34On 8 July 2009, Mr Barker informed Ranger Prior that logging activities had been carried out in the national park. Mr Barker noted that further investigation was required to determine the extent of the incursion into the national park and the number of trees felled. 35Further inspections were undertaken by officers of the OEH on 9, 21, 24, 30 July, 5, 6, 8 August, 18 November 2009, 16 April 2010, 29 March and 5 April 2011. During the course of these investigation, the officers undertook mapping of the boundary of the national park using a GPS, recorded the location of tree stumps within the park, tagged the tree stumps by nailing numbered metal tags onto the stumps and photographed them. A report was subsequently prepared for the OEH by Mr Stephen Collet, a forestry consultant, detailing this work. 36During the investigation, the OEH officers conducted interviews with the following people: (a) Mr MacDougall on 30 July 2009; (b) Mr Siman McPherson on 28 August 2009; (c) Mr Grant on 18 September 2009; and (d) Mr Craig McPherson on 18 September 2009 and 23 November 2010. 37In November and December 2010, a survey was conducted of the national park boundary at the request of the OEH by Mr Bruce Weir. Mr Weir discovered that the boundary as surveyed varied from the boundary as previously indicated by the OEH. 38The OEH Senior Technical Officer Mr Aleksander Maric calculated the number of stumps that fell within the boundary of the private property and the number of stumps that fell within the boundary of the national park, based on Mr Weir's survey. In his final count Mr Weir found: (a) 494 stumps in the national park; (b) 6 stumps on the boundary; (c) 4 stumps struck by falling felled trees in the national park; (d) 4 trees pushed over; and (e) 1 tree cut into firewood (Tableland Timbers denies it fell and cut a tree into firewood). 39On 4 May 2011, Mr Collet inspected the private property and the national park in order to update his report in line with the survey of Mr Weir. Mr Collet concluded that a total of 503 trees were felled, pushed over or struck by other falling felled trees within the national park. It is agreed by the parties that this is the number of trees unlawfully harvested or damaged in the national park. These trees were located up to 500m into the national park.

[8]

Evidence of the McPhersons 45Tableland Timbers also relied on the unchallenged evidence contained in two affidavits, namely: (a) an affidavit of Mr Craig McPherson sworn 14 September 2011; and (b) an affidavit of Mr Peter McPherson sworn 9 November 2011. 46The affidavit of Mr Craig McPherson deposed to the fact that in November 2008, before he started logging on the property, he met with Mr MacDougall on the northern boundary of the property to clarify the boundary because the information provided by Mr Peter McPherson was not sufficient to accurately locate the boundary. 47At this time there was a conversation between Mr MacDougall and Mr Craig McPherson to the following effect: I said: "So where are the boundaries of your land and where is the National Park?" Mr MacDougall said: "Well up here on the northern side is JA's (referring to the landowner to the north John Adams) old boundary and it's fenced. Then down the bottom (pointing to the south) on the southern side from the grid at Grasstrees across is fenced but all the rest of it, (pointing with a sweeping motion from the south along the western side to where we were) the boundary with the National Park is down off the escarpment (pointing further west). It was surveyed when I sold the land to the National Parks. There's marker pegs down the back where the boundary is and you won't be able to miss them." I said: "How easy is it to see the pegs?" Mr MacDougall said: "The pegs are there and you will be able to see them". 48Mr Peter McPherson stated that he and his wife had been running a business of logging and sawmilling continuously since 1979, and in mid 1991 the entity "Tableland Timbers" was formed. 49Mr Peter McPherson stated that in August or September 2008 he received a telephone call from Mr MacDougall requesting him to carry out logging on the land. He, along with his son Mr Craig McPherson and Mr Grant, met with Mr MacDougall on the property on the shoulder of Marengo Road overlooking the area to be harvested. Mr Peter McPherson recalled that they were looking in a generally western direction and had a view to the west, northwest and southwest of most of the areas to be logged. 50Later during the inspection, Mr Peter McPherson deposed that he had a conversation with Mr MacDougall to the following effect, whilst travelling in a westerly direction towards the boundary to the national park: I said: "So where is the boundary with the National Park" Mr MacDougall said: "The boundary is down there near the escarpment (pointing to the west)" 51Mr Peter McPherson deposed to the fact that there were further conversations that were held during the inspection that he did not specifically recall but his understanding from those conversations was that the boundary of the national park was such that if they logged to the point of the escarpment where the slope made it impractical and impossible to safely fell and remove logs, they would still be on Mr MacDougall's property. 52Mr Peter McPherson stated that since the commission of the offence, he has been back to the private property and has inspected the logging that occurred and that it is consistent with the instructions given by Mr MacDougall, that is to say, the harvesting of timber generally followed the ridge line or escarpment, stopping just before the escarpment. 53Mr Peter McPherson stated that there were no boundary fences between the national park and the private property and, at the time of harvesting, there were no survey pegs and no trees marked or blazed to indicate the boundary of the private property in the area where the national park was harvested. He noted that some other parts of the boundary had been marked by trees having been sprayed with paint to indicate the boundary and that some of the markings appeared to have been done by Mr Craig McPherson but others were inconsistent with the manner in which Tableland Timbers marked boundaries. 54Mr Peter McPherson stated that he believed Mr Craig McPherson made an honest mistake, relying on information from Mr MacDougall as to the location of the boundary when he undertook the harvesting in the national park. However, he noted that it was a mistake that could have been avoided by the use of a GPS and accurate maps. 55Mr Peter McPherson expressed deep regret on behalf of the company for the damage occasioned to the national park. He stated that the company has strived for many years to achieve a reputation in the private sector as a professional, responsible timber and logging operation. The company has logged timber from more than 500 properties and has at all times sought to comply with the code. The company has also made contributions to the community in which they operate in the form of regular charitable donations totalling $5,232.55. 56Finally, Mr Peter McPherson deposed to the fact that in March 2009 Tableland Timbers engaged Glen Poole Contracting to meet with landowners and government departments in regard to resource identification and utilisation on behalf of the company. This service included the identification, mapping and marking of property boundaries. In addition, all of the employees of Tableland Timbers, including Mr Craig McPherson, have now been given strict instructions to use GPS locating equipment to check all property boundaries before carrying out harvesting.

[11]

Nature of the Offence 63A fundamental consideration of relevance that illuminates the objective seriousness of an environmental offence is the degree to which the offender's conduct would offend against the legislative objectives expressed in the statutory offence ( Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]). 64The objects of the Act set out in s 2A of the Act include: 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation. (2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development. 65As Preston CJ recently observed in the context of an offence against s 156A of the Act committed in a nature reserve ( Glover at [25] and [27]): [25] The offence of damaging land reserved under the NPW Act has an important function in the statutory framework. Compliance with the regulatory scheme is vital if the objects of the NPW Act are to be achieved. ... [27] These objects are achieved in part through the creation of a reserve system which makes provision for nature reserves as well as national parks, historic sites, State conservation areas, regional parks, karst conservation reserves and Aboriginal areas. 66The purpose of reserving land as a national park under the Act is set out in s 30E(1) as follows: The purpose of reserving land as a national park is to identify, protect and conserve areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor or tourist use and enjoyment so as to enable those areas to be managed in accordance with subsection (2). 67The removal of, and damage to, vegetation within the national park by Tableland Timbers, with the resulting adverse impacts on the ecosystem and natural landscape, is wholly incompatible with this purpose and with the objects of the Act set out above.

[13]

Harm to the Environment 70The extent of harm caused or likely to be caused by the commission of the offence can increase the objective seriousness of the offence (s 194(1)(a) of the Act). 71As stated above, it was an agreed fact that 503 trees were felled, pushed over or damaged by Tableland Timbers in the national park by way of a selective harvest. The trees harmed predominantly consisted of New England Blackbutt ( Eucalyptus campanulate ), but also included at least five stringybark species, namely, Round-leaved Gum ( Eucalyptus brunnea ), Diehard Stringybark ( Eucalyptus cameronii ), Silver-topped Stringybark ( Eucalyptus laevopinea ), Messmate ( Eucalyptus obliqua ) and Red Stringbark ( Eucalyptus macrorhyncha ). The remaining 1% of the damaged trees included She-oak species ( Allocasuarina species ). 72Because of their maturity, the replacement of the 503 trees is estimated to take in excess of 100 years. 73Notwithstanding this estimate, Mr Collet was of the view that following the offence the area logged could still constitute a viable, mature forest structure, albeit at a markedly reduced commercial value. 74It was agreed that the offence occasioned environmental harm at the local level, the regional landscape level and the State and national level. 75The offence has resulted in the following actual harm and potential harm at the local level: (a) the disturbance of formally reserved forest habitats that directly contravenes and compromises the conservation management intent and direction of the National Park Plan of Management; (b) the significant loss of habitat resources and a lowering of habitat quality for a suite of forest fauna including threatened species; (c) the disturbance of an ecologically important forest stand leading to elevated potential for penetration by cattle and weeds with consequential indirect impacts on forest biodiversity, including on formally threatened fauna and flora species; (d) potential insidious local impacts by plant diseases and pathogens transported by logging machinery; and (e) an impact on the quality of the habitat of at least two species of threatened forest fauna and at least three species of threatened forest flora, including the Spotted-tail Quoll , Stephens Banded Snake, Powerful Owl, Masked Owl, Eastern False Pipistrelle, Greater Broad-nosed Bat, Eastern Bent-wing Bat, Yellow-bellied Sheathtail Bat, Glossy Black-cockatoo, Little Lorikeet, Varied Sitella, Square-tailed Kite and Little Eagle. 76It was an agreed fact, which I find, that the impact of the offence at the local level was significant, with direct and indirect consequences for local biodiversity. 77At the regional landscape level, the logging operation carried out by Tableland Timbers in the national park resulted in the following: (a) the disturbance of productive tablelands tall open forest ecosystems that are under-represented in the national park and within the overall formal reserve system; (b) the disturbance and reduced ecological functioning of a landscape forest link that provides habitat connectivity and movement potential for fauna between the national park and large forest areas to the east; and (c) the lowering of the habitat quality for suites of forest fauna, including threatened species, directly and indirectly as a result of the logging operation. 78The ecological impact of the offence at the regional level was agreed to be material, but with a lower overall consequence to the ecology of the national park and its biodiversity than the impact at the local level. 79The offence has also resulted in the disturbance of a connectivity conservation focus within an important part of the Great Eastern Ranges Initiative ("GER Initiative") at a State and national level. 80The GER Initiative assumes that formal reserves like the national park are a cornerstone of the New South Wales biodiversity conservation strategy. Logging within the national park, a recognised core area within the GER Initiative, has therefore compromised broader landscape conservation efforts. The level and significance of that compromise was agreed to be negligible, however, it must still be taken into account in determining the overall harm caused by the commission of the offence. 81The prosecutor submitted that the overall actual harm caused to the environment was "significant" taking into account that 503 trees and other vegetation were damaged in an ecologically important forest stand in the national park and when consideration is given to the fact that this damage resulted in loss of habitat and a lowering of habitat quality for forest fauna, including 24 threatened species together with associated regional impacts. Its overall characterisation of the harm to the environment was serious, albeit not at the worst end of the scale. 82In submitting that the overall level of environmental harm was at the lower end of the scale, Tableland Timbers noted that prior to the commission of the offence the area of the national park where the clearing occurred had been selectively cleared and had been, and still was, exposed to cattle grazing. 83In some cases it is necessary for the Court to consider the state of the environment prior to the commission of the offence in order to assess the extent of the environmental harm caused by the offence and to avoid the offender being made responsible for the environmental harm inflicted by others ( Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 at [12]-[15] and Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 at [88]). 84However, as the prosector correctly submitted, the fact that the affected environment had already been modified or disturbed cannot be a factor mitigating Tableland Timber's conduct ( Ecolab at [14], Environment Protection Authority v Waste Recycling and Processing Corporations [2006] NSWLEC 419; (2006) 148 LGERA 299 at [149] and Walker Corporation (No 4) at [89]). 85In having regard to the direct harm caused to the 503 trees, as well as the consequential harm, both actual and potential, caused to the ecological systems at the local, regional, State and national level, and bearing in mind the prior disturbance, I find beyond reasonable doubt that there was actual and potential environmental harm caused by the unlawful clearing of moderate seriousness, but not of "significant" seriousness as contended for by the prosecutor.

[15]

Tableland Timbers' State of Mind 91A strict liability offence, such as the offence in question, that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed ( Rae at [42] and Glover at [36]). 92Evidence that an employee of a corporation had, at any particular time, a particular state of mind is evidence that the corporation had the same state of mind. Section 175B(4) of the Act states: 175B Offences by corporations (4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (5) In this section, the state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose. 93The prosecutor submitted Tableland Timbers was reckless, or at the very least negligence, in the commission of the offence. In doing so it relied on the following: (a) the state of mind of Mr Craig McPherson; (b) that Tableland Timbers is a professional logging company that negotiated and obtained the PNF-PVP on behalf of Mr MacDougall; (c) that Mr Craig McPherson and Mr Grant were aware that the private property adjoined the national park and the location of the boundary was specifically discussed at the second meeting on the property; (d) that Mr Craig McPherson and Mr Grant were not aware of the exact location of the boundary and that Mr Grant was not given any maps of the boundary; (e) that Mr MacDougall had indicated to Mr Peter McPherson that the "boundary is down there near the escarpment (pointing to the west)" and had indicated to Mr Craig McPherson on another occasion that the "boundary with the national park is down off the escarpment (pointing further to the west)"; (f) that Mr Craig McPherson stated that the information provided to him by Mr Peter McPherson was not sufficient to accurately locate the boundary between the private property and the national park; (g) that despite the fact that neither Mr Craig McPherson nor Mr Grant had a clear understanding of where the boundary with the national park was located they nevertheless proceeded with the logging; (h) that Mr Craig McPherson, when operating the harvesting machine, did not look at the sketch map when he was felling trees in the north western part of the private property; and (i) that Mr Craig McPherson made no effort to locate the boundary with the national park, which had had been told by Mr MacDougall was indicated by survey markers, before commencing logging. 94In these circumstances, the prosecutor submitted that the relevant belief of Mr Craig McPherson at the time of the commission of the offence equated to reckless indifference to the prospect of crossing the boundary into the national park. 95Tableland Timbers, in contrast, submitted that it was Mr Craig McPherson's honestly held but mistaken belief that the area being logged was the private property not the national park, which was based on the conversations that he had with Mr MacDougall. 96It accepts that Mr Craig McPherson was negligent in not using the GPS equipment provided, but denies that this amounted to being reckless as to the consequences of crossing the boundary into the national park. In support of this submission Tableland Timbers relied on the fact that at the time of harvesting Mr Craig McPherson believed, based upon his understanding of conversations in his presence between Mr Peter McPherson and Mr MacDougall, that he had not crossed the boundary between the private property and the national park. 97What amounts to criminal negligence was described in the context of an offence against s 118 of the Act in Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 as follows (at [81]-[82]): [81] ... in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state ( R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk ( R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini ). [82] The test for criminal negligence is objective. The risk of harm must have been foreseeable to the reasonable person in the position of the Defendants ( NSW Sugar Milling Co-operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 per Hunt CJ at CL at 7). In this case, of course, the allegation of foresight of harm is not of foresight of damage to threatened species habitat. The Defendants were aware damage was being caused to habitat. That awareness is an element of the offence addressed in the Defendants' pleas of guilty. Rather the allegation must be that a reasonable person in the position of the Defendants would have foreseen that the damage was unlawful as being an offence against the NPW Act. 98The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission ( Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]): [76] The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. 99Tableland Timbers was aware that the private property bordered the national park and did not make any attempt to locate the survey markers already in place; to remark the boundary between the national park and the private property; or to use the GPS. To log in these circumstances clearly amounted to negligence, but did it amount to recklessness? 100The prosecution relied on the decision in Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 in support of its submission that the offence had been committed recklessly by Tableland Timbers. In Linklater the offender was aware of the existence of pink markers delineating the area not to be cleared but could not locate them at the time of clearing. In these circumstances the Court had no difficulty holding that the offender was reckless (at [41]-[44]). 101In the present case, however, Mr Craig McPherson honestly believed, based on the conversations with Mr Peter McPherson and Mr McDougall that he was not harvesting in the national park. Critically, it was only after the harvesting had taken place that he entertained doubts as to whether or not this belief was correct. In these circumstances I cannot find that Tableland Timbers was reckless at the time the offence was committed. 102However, the fact that the offence was committed negligently is nevertheless a circumstance of the conduct constituting the offence that increases the objective seriousness of the offence ( Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [13]).

[32]

Consistency in Sentencing 133The principal of consistency in sentencing requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered. But care must be taken given the wide divergence of facts and circumstances leading to the imposition of specific penalties and because a sentence in one case does not demonstrate the limits of a sentencing judge's discretion ( Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 at [54] ). 134There have only been two other prosecutions under s 156A of the Act, namely, Glover and Plath v Knox [2007] NSWLEC 670. 135The prosecutor submitted, with which I agree, that these cases have little comparative value , given the facts of both these offences were materially different to the offence before the Court. Both were objectively less serious than the offence presently under consideration and both were committed by individuals, not corporations. 136In Glover , the defendant collected cones from Banksia intergrifolia trees in the Moonee Beach Nature Reserve, and in the process drove a quad bike in the reserve crushing vegetation, in contravention of s 156A(1)(b) of the Act. The Court imposed a penalty of $7,500 in circumstances where the environmental harm was low; the offence was premeditated and intentional; the offence was committed for financial gain; the defendant had two prior convictions; the defendant pleaded guilty; demonstrated remorse; and the defendant had provided assistance to the authorities. The defendant had also agreed to the pay the prosecutor's costs in the amount of $9,000. 137In Knox, the defendant was charged with damaging 3.7ha of vegetation in the Goulburn River National Park as a result of aerial spraying of pesticides on neighbouring land in contravention of s 156A(1) of the Act. The Court imposed a penalty of $13,200 in circumstances where the environmental harm was found to be serious; the offence was committed negligently; the defendant pleaded guilty and expressed remorse; the defendant did not have any prior convictions; the defendant took practical measures to prevent the harm; and the defendant had a limited capacity to pay a fine. The Court ordered the defendant to pay the prosecutor's costs in the sum of $35,000. 138In addition to the above cases, Tableland Timbers submitted that several native vegetation clearing cases under the Native Vegetation Act 2003 served as relevant comparators. The Court was referred, in this regard, to the decisions in Rae , Vin Heffernan (and the authorities cited thereat) and Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182. Significantly, the maximum penalty for the relevant offence in each of these cases was the same as under s 156A of the Act, namely, $1,100,000. 139In Rae the defendant pleaded guilty to an offence under s 12(1) of the Native Vegetation Act . An area of 215ha was partially cleared, including an area of 155ha that was cleared of 95% of all trees. Most of the trees cleared were mature, with some in excess of 17m in height. The Court imposed a fine of $160,000 in circumstances where the defendant knew that he needed consent to clear but proceeded without it; the offence was committed for financial gain; there was a high degree of environmental harm; and the native vegetation that was cleared had significant conservation status and contributed to biodiversity. Overall, the offence was considered to be of medium objective gravity. Mitigating factors considered included the absence of prior offences; the defendant's good character; the defendant's early guilty plea (although not at the earliest opportunity); the defendant's expression of contrition and remorse; and the defendant's assistance in the investigation. 140In Vin Heffernan , the Court fined the defendant $30,150 for the negligent clearing of 22ha of native vegetation of high conservation value at a local scale but of low conservation at a landscape scale, contrary to s 12(1) of the Native Vegetation Act . The defendant had cleared the land largely at the direction of a third party; had pleaded guilty; had provided assistance to the authorities; was of good character; and had expressed contrition and remorse. 141In Calman the Court fined three defendants (two landowners and a contractor) the sum of $22,000 each for the unlawful clearing of 21ha of land that included mature trees, contrary to s 12(1) of the Native Vegetation Act . In committing the offence the defendants acted neither deliberately nor recklessly, and moreover, were not negligent. Rather, the offences were committed without any knowledge that the clearing was illegal under any law. The defendants' culpability was assessed as low, however, the environmental harm caused was reasonably substantial. The defendants pleaded guilty; had no prior convictions; had expressed contrition and remorse; and had agreed to a remediation order. The prosecutor's costs of $73,000 were significant and each defendant was ordered to pay a third of them. 142I find the facts of this offence to be less serious than those present in Rae , but more serious than those underlying the imposition of the penalties in Glover , Knox , Vin Heffernan and Calman .

Plath v Vaccount Pty Ltd t/as Tableland Timbers

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