Ground 3 - assessment of level of harm caused by unlawful clearing
165Mr Rummery indicated that ground 3 was not pressed if ground 2 of the notice of appeal were not successful. On that basis, strictly speaking it would not be necessary to deal with this aspect of the appeal, although, in the event that the finding as to ground 2 were to be incorrect, it would be appropriate to address ground 3. Furthermore, it seems from Mr Rummery's submissions that the basis on which he may have considered ground 3 could not be pressed if he were unsuccessful on ground 2 was that a finding that her Honour did not err as to the area of unlawful clearing would be determinative of the level of harm caused by the clearing.
166Mr Rummery submits that if the area is found to be significantly smaller than originally found then the level of harm should be found to be similarly reduced. Insofar as he relies in support of this ground on the challenge to the area of clearing, his challenge fails for the above reasons. However, Mr Rummery's submissions in relation to the assessment of level of harm caused by the unlawful clearing go beyond the issue as to the area of the clearing, as will be discussed below.
167Mr Rummery raises much of the same issues as to the alleged lack of evidence put before the Court as to ground 2 in the context of ground 3. He points to her Honour's acceptance of the proposition that on matters of sentence the Court must not take facts into account in a manner that is adverse to the defendant unless those facts have been proven beyond reasonable doubt ([30]) and maintains that the essential elements to establish unlawful clearing were not able to be proved beyond reasonable doubt (as the prosecution could not provide evidence to support the premise that the trees cleared were live, remnant native indigenous vegetation over an area of 248 ha).
168It is contended that the primary judge erred in determining both the area of alleged clearing and the number of trees unlawfully cleared and has therefore erred in characterising the clearing as extensive ([85], [87]).
169Mr Rummery notes that the primary judge rejected the prosecutor's estimate of the number of trees cleared and accepted Mr Rummery's evidence but says that the number of trees cleared identified by him in cross examination referred to the total number of trees including very small trees. Mr Rummery maintains that measurements collected by OEH investigators on the size of cleared trees identified 22% of the trees were less that 25 cm breast height diameter; that being the size identified by Dr Nadolny as regrowth. Therefore it is submitted that the primary judge's estimate of the number of trees cleared unlawfully should have been reduced by 22%.
170Mr Rummery also challenges her Honour's assessment that the commission of the offence caused moderate to substantial harm ([120]). He contends that the level of harm was overstated having regard to the broad rejection of the evidence on which the prosecutor had relied and the inability of the prosecutor to establish that the area of unlawful clearing was 248ha. Mr Rummery maintains that the level of harm was low based on the reduced area of unlawful clearing and the lack of proof of any actual environmental harm being caused by the thinning of smaller trees.
171The prosecutor maintains that her Honour did not err in rejecting the contention that the clearing of 191ha of the removed vegetation was permitted by s 11(1)(i) of the Native Vegetation Act. (The prosecutor nevertheless accepts that if, contrary to the prosecutor's submissions as to ground 1, the clearing of that 191ha was lawful, then the environmental harm caused by the unlawful component of the clearing would need to be reassessed and that the outcome of that reassessment would likely impact upon the penalty imposed.)
172As to the findings regarding environmental harm, the prosecutor notes that the process adopted by her Honour in concluding that the total number of trees cleared was in the vicinity of 18,000 to 20,000 was supported by the evidence referred to by the primary judge and involved a rejection of the evidence put forward by the prosecutor in relation to this issue. The number of trees felled was said by the primary judge to be important but not determinative of the environmental harm caused by the clearing ([86]).
173As to the number of trees unlawfully cleared, the regrowth exception was applicable only if it could be established that what was cleared was "only" regrowth. Her Honour's conclusion as to the number of trees felled was supported by the evidence and has not been shown to be incorrect.
174Insofar as Mr Rummery takes issue with the findings as to the age of the trees cleared, the prosecutor notes that her Honour accepted that the majority of the trees cleared were significantly younger than had been suggested by the prosecutor, concluding that trees were within an age range of 40 to 80 years with the majority of those cleared being at the lower end of this age spectrum ([101]). It is also noted that her Honour considered that the fact that the trees cleared were younger than had been suggested by the prosecutor diminished the objective seriousness of the offence (by which it must be inferred the environmental harm caused by the offence) but only marginally ([102]). In these circumstances, the prosecutor submits that no error in the primary judge's approach to assessing the environmental harm caused by the offence has been demonstrated.
175There is, however, a difficulty with the finding that the majority of the trees felled were between 40 and 80 years ([101]). Dr Nadolny's evidence was that the majority of felled trees that he observed during the site inspections had a stem size of 25-45 DBH. Dr Nadolny also observed that the cleared area had included "smaller trees of pole or sapling form". On Dr Nadolny's evidence as to tree growth rates (referred to at [153]-[155] above), an estimate of tree age based on the measurements taken by him during the site inspections would put the likely age of the majority of those felled trees at 25-45 years (or at least more than 20 years to, say, 40 years). As noted earlier ([154]-[155]), both experts agreed that tree growth rates could be variable, though Dr Nadolny considered that the growth rates contended for by Mr Rummery would be at the upper end of the expected variability.
176Mr Peake (at [132] of his report) said that a substantial proportion of the overstorey species would have been established since 1970 (i.e., by 2008-2010 would have been in the order of at least 38-40 years' old) and that a reasonable proportion of the overstorey species cleared would have been established since 1990 (i.e., by 2008-2010 would have been in the order of at least 18-20 years' old).
177Her Honour noted that Mr Peake was of the opinion that overall the harm was reasonable or moderate (at [117]). Mr Peake's assessment of the harm as moderate, notwithstanding that in his view the trees cleared were younger in age than estimated by Dr Nadolny, is consistent with the recognition by her Honour that the retention of younger trees is necessary ([102]). At [118] her Honour noted the importance of native vegetation for the maintenance of fauna habitat.
178Her Honour noted (at [100]) that the expert evidence was that tree growth rates could not be precisely determined in the absence of comprehensive quantitative analysis (of which there had been none in the proceedings). Although her Honour's finding as to the number of trees cleared has not been shown to have been in error, the conclusion that the majority of trees the subject of clearing were between 40 and 80 years' old is not supported by the evidence. That was one of the matters that her Honour took into account in assessing the objective seriousness of the offence.
179Therefore, while there was no error demonstrated in her Honour's acceptance, for the purpose of sentencing, that the factual elements of the offence had been established to the requisite degree of proof, there was an error in one of the matters on which her Honour relied in reaching the conclusion that there was "moderate to substantial" environmental harm caused by the clearing.
180Although Mr Rummery did not in oral submissions press this challenge to her Honour's findings, the prosecutor did address this issue in written submissions (at [28(c)-(d)]) and in oral submissions was content to rest on those submissions for the contention that the challenge to her Honour's finding as to the level of harm had not been made good. The prosecutor pointed to her Honour's conclusion (at [101]) that the fact that the trees cleared were younger than had been suggested by the prosecutor diminished the objective seriousness of the offence only marginally.
181Given that the prosecutor's submissions specifically address the issue as to the age of the trees, and the error is one that is identified in Mr Rummery's submissions, the fact that Mr Rummery (who did not have the benefit of legal representation) indicated that ground 3 would only be pressed if ground 2 were successful does not lead me to conclude that this Court should not proceed to consider the effect on Mr Rummery's sentence appeal of the error that has been established in her Honour's finding as to the age of the trees.
182It is clear that her Honour's finding as to the level of environmental harm caused by the offence took into account an erroneous finding as to the age of the felled trees. That matter, which her Honour noted was not determinative, cannot be dismissed as having no significance in her Honour's reasoning. To that extent, part of the basis on which ground 3 challenges her Honour's finding as to the level of harm is made out.
183In those circumstances, it is necessary to consider whether, on the assumption that the majority of trees cleared were in the 20-40 year range, but all other factual findings by her Honour were correct, the environmental harm was "moderate to substantial" and what impact this has on the size of the fine imposed on Mr Rummery.
184There was no dispute by Mr Rummery's expert that the level of environmental harm was at least "moderate". Given the number of trees, the extent of the clearing and that the retention of younger trees is necessary for the maintenance of native vegetation, in my opinion her Honour did not err in finding that "moderate to substantial" environmental harm had been caused. Nevertheless, the fact that the majority of the trees felled were younger than her Honour considered them to be, and that Mr Rummery would (had he confined himself to clearing only regrowth) have been lawfully able to clear an unknown proportion of those trees, taken with the matters considered by her Honour from [120] as other factors relevant to sentencing, leads me to conclude that the size of the fine should be revisited.
185I consider that, adopting the findings made by her Honour as to the discount to be applied to reflect Mr Rummery's personal circumstances, and bearing in mind that Mr Rummery was also ordered to pay the prosecutor's costs, the appropriate fine would be $66,000 (that being 66% of the pre-discounted original fine of $120,000 but rounded down to $100,000 i.e., 66% of $100,000).