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[2026] NSWLEC 138
General information, not legal advice.
Land and Environment Court (NSW)
2026-11-02
Pritchard J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Secretary, Department of Climate Change, Energy, the Environment and Water v Dalton [2026] NSWLEC 138
Hearing dates: 20 February 2026
Date of orders: 02 November 2026
Decision date: 02 November 2026
Jurisdiction: Class 5
Before: Pritchard J
Decision: See orders at [170]
Catchwords: SENTENCING – environmental offences – primary offences under s 60N of Local Land Services Act 2013 (NSW) – clearing of native vegetation in a regulated rural area – Form 1 offence under s 2.4 of Biodiversity Act 2016 (NSW) – knowingly damaged habitat of a threatened species – consideration of factors in s 21A of Crimes (Sentencing Procedure) Act 1999 (NSW) – offences caused actual environmental harm of some seriousness but not substantial so as to engage aggravating factor in s 21A(2)(g) – reasonably foreseeable risk of environmental harm – defendant took no practical measures to prevent, control, abate or mitigate harm caused or likely to be caused by offences – defendant had complete control over the cause of offences – offending constituted a planned criminal activity – offences committed for financial gain – objective seriousness of primary offences at lower end of moderate objective seriousness – objective seriousness of Form 1 offence at middle of low range of objective seriousness – subjective circumstances of defendant – guilty plea at early occasion and no antecedents – remorse demonstrated but only modest weight given – low likelihood of reoffending and good prospects of rehabilitation – no information as to defendant’s means to pay – general deterrence – moiety to prosecutor – costs order – publication order
Legislation Cited: Biodiversity Conservation Act 2016 (NSW) ss 1.3, 1.6, 2.4, 12.8, 13.1, 13.12, 13.25, 13.29
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 31, 32, 33, 35
Crimes Sentencing Procedure Regulation 2017 cl 4
Criminal Procedure Act 1986 (NSW) ss 257B, 257G
Crown Lands Management Act 2016 (NSW)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Fines Act 1996 (NSW) ss 6, 122
Land Management (Native Vegetation) Code (NSW) 2018
Local Land Services Act 2013 (NSW) ss 3, 60B, 60C, 60D, 60G, 60N
Local Land Services Regulation 2014 (NSW)
Native Vegetation Act 2003 (NSW) (repealed) s 12
Protection of the Environment Administration Act 1991 (NSW) s 6(2)
Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing) Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Chief Executive of the Office of Environment and Heritage v Boyle [2019] NSWLEC 54
Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141
Chief Executive of the Office of Environment and Heritage v Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140
Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114
Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Environment Protection Authority v Appleton [2025] NSWLEC 62
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70
Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75
Environment Protection Authority v Laison [2015] NSWLEC 89
Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environmental Protection Authority v Albiston [2020] NSWLEC 80
Environmental Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280
Environmental Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289
Environmental Protection Authority v Cadia Holdings Pty Limited [2025] NSWLEC 27
Environmental Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Garrett v Williams [2007] NSWLEC 56
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Harrison v Perdikaris [2015] NSWLEC 99
Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42
Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
R v Campbell [2014] NSWCCA 102
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v Duncan (2007) 172 A Crim R 111; [2007] VSCA 137
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Peel (1971) 1 NSWLR 247
R v Storey [1998] 1 VR 359
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
RO v R [2019] NSWCCA 183
Secretary, Department of Planning & Environment v Aerotropolis Pty Ltd (No 2) [2025] NSWLEC 48
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
Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154
Secretary, Department of Planning and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54
Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (2022) 253 LGERA 1; [2022] NSWLEC 60
Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153
Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131
Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210
Category: Sentence
Parties: Secretary, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
Sheldon Jeffrey Dalton (Defendant)
Representation: Counsel:
B Nield SC and C Nguyen (Prosecutor)
S J Stanton (Defendant)
Solicitors:
Secretary, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
Mackenzie & Vardanega (Defendant)
File Number(s): 2025/00255188
2025/00255189
2025/00255190
Publication restriction: Nil
On 17 October 2025, the defendant Mr Sheldon Dalton (the defendant) pleaded guilty to two charges of clearing of native vegetation in a regulated rural area contrary to s 60N(1) of the Local Land Services Act 2013 (NSW) (LLS Act) (the principal offences):
the first charge being for the period 16 May 2023 to 10 June 2023 (proceedings 2025/255188); and
the second charge being for the period 3 September 2023 to 31 October 2023 (proceedings 2025/255189).
The defendant also admits that he has committed an offence against s 2.4 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) in that he knowingly damaged habitat of a threatened species leipoa ocellata, known as “Malleefowl”, in the period 16 May 2023 to 31 October 2023 (proceedings 2025/255190). That further offence is referred to as the Form 1 offence. Pursuant to s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act), in dealing with the defendant for the principal offences, the Court may take the further offence into account.
The offending occurred on the property known as “Yarradah”, Lot 53 in DP 1255473, at Lachlan Valley Way, Wallanthery, NSW 2675 (the property). It is agreed that during the charge period, Mr Dalton (with his wife Rebecca Dalton) was the landholder of Yarradah for the purposes of s 13.29 of the BC Act.
The clearing offences to which the defendant has pleaded guilty are split into two tranches totalling the unlawful clearing of an area 944.9 hectares:
between 16 May 2023 to 10 June 2023 (the first tranche), 545.6 hectares; and
between 3 September 2023 and 31 October 2023 (the second tranche), 399.3 hectares.
The property is approximately 4,346 hectares in size. For the purposes of the LLS Act, it is in a rural regulated area and made up of a combination of category 1-exempt land, category 2-regulated land, and category 2-sensitive regulated land. Extracted below is a copy of the Native Vegetation Regulatory Map provided in the agreed statement of facts which depicts the categories of native vegetation which have been cleared on the property.
Image 1 – Native Vegetation Regulatory Map
At all times during the charge period, the property was held by the defendant and his wife Rebecca Dalton under a perpetual Western lands lease (WLL 15297) granted for the purpose of grazing pursuant to the Crown Lands Management Act 2016 (NSW).
An aerial image of the property taken on 3 January 2023 immediately before the clearing of native vegetation commenced, provided in the agreed statement of facts, is extracted below, with the following characteristics observable:
woody vegetation of varying densities;
distinct vertical separations with irregular linear strips highlighting this separation in lightly toned lines, and less prominent canopy cover to the east of these lines;
a conversion to cropping land in the property’s northwest; and
linear strips and tracks in the property’s southern half.
Image 2 – Photograph of Property taken 03 January 2023
On 30 March 2023, Peter Ware, Director of Allan Blackburn and Associates Consulting Services Pty Ltd (trading as Blackburn Agri), acting as the agent and consultant for the defendant and his wife, signed and submitted to Local Land Services (LLS) a Landholder Notification Form – Invasive Native Species under the Land Management (Native Vegetation) Code 2018 (NSW) (the Code), Part 2 “Invasive Native Species”, Division 1 “Low impact clearing of invasive native species” to clear vegetation on the property (the INS Notification).
On the INS Notification, Mr Ware nominated the following invasive native species on the property for clearing: Hop Bush, Turpentine and White Cypress Pine. He listed the intended clearing dates as 16 April 2023 and 30 April 2023. In preparation for the drafting and lodging of the INS Notification, the defendant undertook a site inspection and spoke to Mr Ware on the phone. He did not see a copy of the INS Notification before it was lodged, but received an email copy from Mr Ware afterwards.
The INS Notification set out the conditions to be met under the Code, including the following conditions relevant to the clearing of native vegetation on the property:
The land intended to be cleared was not category 2-sensitive regulated land;
Land cannot be cleared if it is likely to harm an animal that is a threatened species and the landholder or agent has knowledge that the clearing will likely harm the animal;
Clearing is limited to methods that are likely to cause no more than minimal disturbance to soil and groundcover, including but not limited to burning, slashing and clearing of individual plants;
Any clearing within category 2-vulnerable regulated land must cause no more than nil disturbance to soil and groundcover;
Clearing of trees and shrubs that are non-invasive native species is permitted only to the minimum extent necessary, and must not exceed 10% of the total number of trees and shrubs cleared from the treatment area;
If the landholder or agent intends to use methods other than burning, the requirements under the Code for the number and size of species must be retained; and
The intended clearing would be carried out in accordance with the LLS Act, the Local Land Services Regulation 2014 (NSW) and the Code.
Image 3 – Areas of clearing on the Property
The first tranche of clearing of native vegetation on the property occurred between about 16 May 2023 and 10 June 2023.
The first tranche of clearing was carried out by the defendant by fire and mechanical clearing and involved two clearing activities:
Activity 1 which occurred between 16 May 2023 and 18 May 2023 on approximately 215.6 hectares of the property, with the area cleared comprising mixed vegetation cover including dispersed taller crowns, smaller woody vegetation and understory; and
Activity 2 which occurred between 18 May 2023 and 10 June 2023 on approximately 340.3 hectares of the property, with the area cleared comprising dense woody vegetation, with understory and small pockets of dense groundcover.
In the area of the first tranche of clearing, the defendant unlawfully cleared a total of 545.6 hectares of native vegetation.
In the area of the first tranche of clearing, three plant community types (recurring assemblages of native plant species associated with specific environmental conditions such as soil type and climate) were cleared:
PCT 173: Sandplain mallee of central NSW;
PCT 56: Belah woodland on clay-loam soils on alluvial plains of north-central NSW; and
PCT 142: Broombrush shrubland in the mallee landscapes.
The second tranche of clearing of native vegetation occurred between about 3 September 2023 and 31 October 2023 in the north-east quadrant of the property.
The second tranche of clearing was carried out by the defendant by fire and mechanical clearing and involved one clearing activity: Activity 3 which occurred between September 2023 and 31 October 2023 on approximately 991.1 hectares of the property, with the area comprising significant dense woody vegetation, with scattered crowns within sections of groundcover.
In the area of the second tranche of clearing, the defendant unlawfully cleared a total of 399.3 hectares of native vegetation.
In the area of the second tranche of clearing, the same three PCTs were cleared as in the area of the last tranche of clearing:
PCT 173: Sandplain mallee of central NSW;
PCT 56: Belah woodland on clay-loam soils on alluvial plains of north-central NSW; and
PCT 142: Broombrush shrubland in the mallee landscapes.
It was agreed that damage to the habitat of a threatened species occurred between about 16 May 2023 and 31 October 2023 inclusive. The habitat was damaged by means of fire and mechanical clearing. The damage occurred to the habitat of the threatened species leipoa ocellata (Malleefowl).
Between 30 September 2023 and 3 October 2023, Greg Steenbeeke, an ecologist engaged by the Department of Climate Change, Energy, the Environment and Water, conducted a field assessment on the property. Mr Steenbeeke identified the habitat of the “Mallee Bird Community” present on the property and identified an adult Malleefowl whilst walking through the western side of the property, adjacent to a small burnt patch.
On 18 September 2023, investigators served a notice issued under s 12.8 of the BC Act on the defendant. The defendant’s written response to the s 12.8 notice, dated 29 September 2023, included the following statements:
Clearing of the property commenced mid-May 2023;
The clearing was carried out by the defendant;
The defendant was responsible for the day-to-day operation of and decision making on the property;
The purpose of the clearing was for work, health and safety, hazard reduction, preparation for access tracks and reduction of weed infestations; and
Peter Ware of Blackburn Agri was the consultant in relation to the property.
On 14 February 2025, investigators conducted a directed interview with the defendant. During the interview, the defendant made the following statements:
He engaged Mr Ware to act as agent/consultant in relation to the INS Notification;
He was not shown the INS Notification before its lodgement, but conducted a site inspection and spoke to Mr Ware on the phone before it was lodged;
He received an email copy of the notification after it was lodged;
He intended to clear invasive native species on the property using fire;
He was responsible for lighting the fire that cleared/burnt approximately 1277.13 hectares of native vegetation on the property in mid-May 2023;
He used a 60/40 petrol diesel accelerant mix and an Accufire Firelighter device attached to a “side by side” off-road vehicle to spread the accelerant;
He knew prior to lighting the fire that the property contained native vegetation that was habitat of the Malleefowl;
He knew there was “a Malleefowl Incentive Property Vegetation Plan” on the adjacent property;
There were no approvals or consents from or communication with the NSW Rural Fire Service prior to lighting the fire; and
He made all decisions regarding farming practices for the property.
On 14 February 2025, investigators conducted a directed interview with Rebecca Dalton. During the interview, Mrs Dalton stated that:
She adopted the evidence given by the defendant in his response to the s 12.8 notice; and
She endorsed all decisions regarding farm management made by the defendant.
On 20 April 2025, investigators conducted a voluntary interview with Mr Ware. During the interview, Mr Ware made the following statements:
In his affidavit sworn 10 February 2026, the defendant said that he has been an agricultural producer for around 40 years, and that he runs the property with his wife as primary producers, primarily for wheat production.
The defendant regretted and expressed his remorse “for what has occurred in terms of the clearing of the land and the matters referable to the native fauna and in particular, the Mallee Fowl species that are the subject of these matters before the Court”. He said that “the matters have weighed heavily on me and more importantly, have been a source of grave concern to my wife[,] and I sincerely regret the anguish that she has sustained in the matters being undertaken.”
The defendant said that he had “at times, been well aware of what it means to engage in and undertake the conservation of both native flora and fauna and on this occasion, I regret that I failed to uphold the considerations that I have previously undertaken and abided by”. He has been in primary production for a period of 40 years and has never offended the legislation concerning native flora and/or vegetation, “but for this occasion”.
The defendant also asked the Court to take into account that he had retained Mr Ware to act as his consultant and to engage in the preparation of all applications on which he relied. He said:
Whilst it cannot be an answer to my prosecution, it certainly needs to be understood from my perspective by way of my remorse and contrition, that it was Mr Ware's advice and assistance that I referred to and acted upon and in that regard, I readily realise now how it has led to my prosecution and equally, to the fact that I need to be more vigilant in the future concerning matters that involve interaction with the appropriate agencies.
Since June 2023, he had attempted to engage in a review of the properties Yarradah and Scotts Craig. Yarradah has an area of 22,000 acres of which 17,000 acres are in the north and 5,000 acres in the south. It was in the southern area of 5,000 acres on Yarradah where a portion of the burning took place. In relation to the property Scotts Craig which has an area of 31,000 acres, the defendant had “attempted to photograph the burnt area for regrowth so that [he] could inform the Court of what has been regenerated since June 2023”. Regrettably, he could not “engage in this because of the recent triple fatality in Lake Cargelligo, where a person of interest known as Mr Ingram was associated with that triple fatality but more particularly and of relevance to this Affidavit, he was born in the area and lived for some time on ‘Scotts Craig’**, which is in the Mount Hope area and on Police instructions given to me, I was told to remain indoors and not to be anywhere in the vicinity and I have not been able to undertake those photographs to put the extent of regeneration of the vegetation before the Court”.
Finally, in asking the Court to take into account his plea of guilty together with his resolve that it will not occur again, the defendant asked the Court to note that he had no convictions and that there were currently “no matters of any interest concerning any matters that are referable by any regulator and/or agency in the manner in which I have conducted my property”.
(e) to ensure the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development (described in section 6 (2) of the Protection of the Environment Administration Act 1991),
60N Unauthorised clearing of native vegetation in regulated rural areas—offence
(1) A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences—
(a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A,
(b) that the clearing is authorised by a land management (native vegetation) code under Division 5,
(c) that the clearing is authorised by an approval of the Panel under Division 6,
(d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc),
(e) that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry).
: Maximum penalty—
(a) for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment—
(i) in the case of a corporation—$5 million, or
(ii) in the case of an individual—$1 million, or
(b) for any other offence—
(i) in the case of a corporation—$2 million, or
(ii) in the case of an individual—$500,000.
…
(2) The higher maximum penalty under this section does not apply unless—
(a) the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and
(b) the court attendance notice or application commencing the proceedings alleged that those factors applied to the commission of the offence.
If any such allegation in the notice or application is not established by the prosecution, the lower maximum penalty under this section applies (whether or not the notice or application is amended).
(3) For the purposes of this section, clearing of native vegetation is not authorised as referred to in subsection (1) unless the conditions to which the authorisation is subject (including any conditions of a land management (native vegetation) code relating to the clearing or any certificate or approval issued or granted for the clearing) are complied with. This subsection extends to conditions that impose obligations on the person who clears the native vegetation that are required to be complied with before or after the clearing is carried out.
…
The maximum penalty for the charges to which Mr Dalton has pleaded guilty is $500,000, as provided by s 60N(1)(b)(ii). The prosecutor does not seek the higher maximum penalty of $1 million set out in s 60N(1)(a)(ii) for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment.
In s 60B, “native vegetation” is defined as follows:
(1) For the purposes of this Part, native vegetation means any of the following types of plants native to New South Wales—
(a) trees (including any sapling or shrub or any scrub),
(b) understorey plants,
(c) groundcover (being any type of herbaceous vegetation),
(d) plants occurring in a wetland.
(2) A plant is native to New South Wales if it was established in New South Wales before European settlement. The regulations may authorise conclusive presumptions to be made of the species of plants native to New South Wales by adopting any relevant classification in an official database of plants that is publicly accessible.
(3) For the purposes of this Part, native vegetation extends to a plant that is dead or that is not native to New South Wales if—
(a) the plant is situated on land that is shown on the native vegetation regulatory map as category 2-vulnerable regulated land, and
(b) it would be native vegetation for the purposes of this Part if it were native to New South Wales.
(4) For the purposes of this Part, native vegetation does not extend to marine vegetation (being mangroves, seagrasses or any other species of plant that at any time in its life cycle must inhabit water other than fresh water). A declaration under section 14.7 of the Biodiversity Conservation Act 2016 that specified vegetation is or is not marine vegetation also has effect for the purposes of this Part.
For the purposes of this Part, clearing native vegetation means any one or more of the following—
(a) cutting down, felling, uprooting, thinning or otherwise removing native vegetation,
(b) killing, destroying, poisoning, ringbarking or burning native vegetation.
regulated rural area means any area of the State to which this Part applies that is category 2-regulated land.
…
category 2-regulated land means areas of the State to which this Part applies designated as category 2-regulated land on the native vegetation regulatory map (including category 2-vulnerable regulated land that is so designated).
An offence against s 60N is a strict liability offence “whereby any person who clears native vegetation in a regulated rural area is guilty of an offence unless they establish a relevant defence”: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [1] (Greentree) at [418] (Robson J).
Section 33 of the Sentencing Act provides as follows in relation to further offences the Court may take into account in dealing with an offender for the principal offence:
33 Outstanding charges may be taken into account
(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence—
(a) if the offender—
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
(4) A court may not take a further offence into account—
(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or
(b) if the offence is an indictable offence that is punishable with imprisonment for life.
(5) For the purposes of subsection (4)(a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.
(6) Despite subsection (4)(a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.
2.4 Damaging habitat of threatened species or ecological community
(1) A person—
(a) who damages any habitat of a threatened species or threatened ecological community, and
(b) who knows that it is the habitat of any such species or community, is guilty of an offence.
Maximum penalty—Tier 1 monetary penalty or imprisonment for 2 years, or both.
(2) A person who damages habitat of a threatened species or threatened ecological community in the course of carrying out any unlawful activity is taken to know that it was habitat of that kind unless the person establishes that the person did not know that it was habitat of that kind.
damage habitat includes damage caused by—
(a) removing or relocating any part of the habitat, and
(b) activities that prevent the continued use of the habitat by animals.
…
habitat includes—
(a) an area periodically or occasionally occupied by a species or ecological community, and
(b) the biotic and abiotic components of an area.
…
threatened species means a critically endangered species, an endangered species or a vulnerable species listed in Schedule 1.
It was uncontroversial that Malleefowl (leipoa ocellata) is a threatened species within the meaning of the BC Act.
Section 1.3 of the BC Act provides as follows in relation to the purpose of the Act:
1.3 Purpose of Act
The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular—
(a) to conserve biodiversity at bioregional and State scales, and
(b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and
(c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and
(d) to support biodiversity conservation in the context of a changing climate, and
(e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and
(f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and
(g) to regulate human interactions with wildlife by applying a risk-based approach, and
(h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and
(i) to support and guide prioritised and strategic investment in biodiversity conservation, and
(j) to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and
(k) to establish a framework, reflecting the avoid, minimise and offset hierarchy, to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and
(l) to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and
(m) to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and
(n) to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and
(o) to make expert advice and knowledge available to assist the Minister in the administration of this Act.
13.12 Sentencing for offence—matters to be considered
(1) In imposing a penalty for an offence against this Act or the regulations (or a native vegetation offence), the court is to take into consideration the following (so far as they are relevant)—
(a) the extent of the harm caused or likely to be caused by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,
(f) whether the offence was committed for commercial gain.
(2) The court may take into consideration other matters that it considers relevant.
native vegetation legislation means any of the following provisions and any regulations or other instruments or requirements issued or made under those provisions—
(a) Part 5A (Land management (native vegetation)) of, and Schedule 5A to, the Local Land Services Act 2013…
native vegetation offence means any offence under the native vegetation legislation.
The effect of s 1.6 of the BC Act is that the principal offences against s 60N of the LLS Act are “native vegetation offences” to which the sentencing considerations in s 13.12 of the BC Act apply.
Section 3A of the Sentencing Act provides in relation to the purposes of sentencing:
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.
21A Aggravating, mitigating and other factors in sentencing
(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters—
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was partially or wholly motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, gender identity, sexual orientation or age, or having particular variations of sex characteristics or a particular disability),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain,
(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(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),
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23),
(n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).
The provisions in relation to the taking of further offences into account in imposing a penalty are contained in Division 3 of Part 3 of the Sentencing Act. In proceedings for the principal offence (defined in s 31 as an offence the subject of proceedings under s 32(1)), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender wants the court to take into account when dealing with the offender for the principal offence: s 32(1); Crimes Sentencing Procedure Regulation 2017, cl 4.
Pursuant to s 33(2) of the Sentencing Act, the court may take a further offence into account in dealing with the offender for the principal offence:
33 Outstanding charges may be taken into account
....
(2) The court may take a further offence into account in dealing with the offender for the principal offence—
(a) if the offender—
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
35 Consequences of taking offences into account
(1) If a further offence is taken into account under this Division—
(a) the court is to certify, on the list of additional charges, that the further offence has been taken into account, and
(b) no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.
6 Consideration of accused’s means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A)
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
122 Payment of share of fine to prosecutor (cf Fines and Penalties Act 1901 sec 5(3))
(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. (3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).
[30] … In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case …
In relation to the standard of proof, a court may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. If there are circumstances which the court proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. [3]
Where the prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor, it must establish by evidence, beyond a reasonable doubt, the presence of such aggravating factor. Where the defendant contends for the presence of a mitigating factor, it must be established on the balance of probabilities: R v Olbrich at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) citing R v Storey at 369; Environment Protection Authority v Metropolitan Collieries Pty Ltd [4] at [76] (Robson J); Environment Protection Authority v Sydney Water Corporation [5] at [131] (Pepper J).
In relation to the objective seriousness of the principal offences against s 60N of the LLS Act, the prosecutor submitted that in clearing native vegetation without authorisation, and in bypassing the five regulatory avenues permitting clearing under s 60N(1) and (3), the defendant not only offended against the legislative objective expressed in the statutory offence, but also undermined the attainment of the statutory objectives set out in s 3(e) of the LLS Act.
In relation to the objective seriousness of the Form 1 offence, the prosecutor submitted that the purposes of the BC Act which were undermined by the offence against s 2.4 of the BC Act were those in paragraphs (a), (b), (g), (h) and (j) of s 1.3.
While the prosecutor did not contend that the actual and potential environmental harm was substantial in the sense that the aggravating factor in s 21A(2)(g) of the Sentencing Act was engaged, it submitted that the Court would find that the offences did cause actual harm of some seriousness, noting the following:
The area of the land cleared was 1,536.7 hectares:
(a) 545.6 hectares in relation to the first principal offence; and (b) 991.1 hectares in relation to the second principal offence.
(a) 3.5 weeks (16 May to 10 June 2023) for the first principal offence; and (b) 1 month and 29 days (3 September to 31 October 2023) for the second principal offence.
(a) in relation to the first principal offence – mixed vegetation cover including dispersed taller crowns, smaller woody vegetation, dense woody vegetation, dense groundcover and understory; and (b) in relation to the second principal offence – significant dense woody vegetation, scattered crowns and groundcover.
(a) PCT 173: Sandplain mallee of central NSW; (b) PCT 56: Belah woodland on clay-loam soils on alluvial plains of north-central NSW; and (c) PCT 142: Broombrush shrubland in the mallee landscapes.
The prosecutor submitted that the Court would find that a reasonable person in the defendant’s position would have foreseen the risk of harm that would or would likely be caused to the environment by the commission of the offences having regard to:
the nature and extent of the clearing planned;
the nature and quality of the native vegetation cleared; and
the known existence of Malleefowl and Malleefowl nesting mounds on the property and a Malleefowl Incentive Property Vegetation Plan on an adjacent property.
In relation to the defendant’s intention and state of mind, the prosecutor submitted that the Court would find that the defendant’s commission of the principal offences was premeditated and intentional in light of the size, scope, and duration of the burning; the scope of the divergence between the notified and actual clearing; the use of both earthmoving machinery and fire; the defendant’s admissions concerning the steps he took to prepare and spread the accelerant; his admission that in undertaking the clearing he intended to clear native species on the property using fire; and his admission that he was “well aware of what it means to engage in and undertake the conservation of both native flora and fauna”.
In relation to the Form 1 offence, the defendant made admissions that he was aware that the property contained Malleefowl habitat, and that an adjacent property was subject to a Malleefowl Incentive Property Vegetation Plan. Through Mr Ware, he was provided with a map of former Malleefowl nesting sites on the property, and engaged with Mr Mercer in relation to the Malleefowl present on the property.
The prosecutor submitted that the defendant’s culpability was increased by the evidence that he was aware of the existence of various regulatory regimes concerned with the protection of the environment and the regulation of clearing, and that he had a demonstrated capacity of engaging with the regulatory bodies overseeing those regimes. He engaged Mr Ware for the purpose of liaising with the authorities, and authorised Mr Ware to engage with private consultants (Mr Mercer and Continu Risk Management Pty Ltd) in relation to threatened species and land clearing risks. He was submitted to have been clearly aware of the need to comply with the statutory scheme in order to clear vegetation from his property. If he had not been, he would not have taken the steps he took to submit the INS Notification Form.
The prosecutor submitted that given the size and duration of the clearing that the defendant ultimately conducted, the Court would reject any attempt to characterise the offence as a slip of the mind of an otherwise conscientious person. The only inference reasonably available was that over extended periods of time during 2023 he “chose to act autonomously in disregard of that scheme”. The prosecutor disputed any defence submission that the defendant’s conduct could be explained, even in a non-exculpatory manner, by a misguided reliance on Mr Ware: first, as a landholder, the defendant was responsible for the land clearing that he performed himself on his own property; second**ly, the defendant and his wife engaged Mr Ware as their consultant and agent; and third**ly, the defendant had personal involvement in preparing for the submission of the INS Notification Form and receiving the completed form after it had been submitted.
In light of the above, the prosecutor submitted that the Court would have grounds to find that the offending constituted a planned criminal activity within s 21A(2)(n) of the Sentencing Act.
In relation to overall objective seriousness, the prosecutor submitted that:
the principal offences contrary to s 60N of the LLS Act were of moderate objective seriousness, falling around the lower end of the mid-range; and
the Form 1 offence contrary to s 2.4 of the BC Act fell below the mid-range.
In relation to costs, the prosecutor seeks an order that the defendant pay the prosecutor’s professional costs in an amount to be determined under ss 257B and 257G of the Criminal Procedure Act 1986 (NSW).
The prosecutor also seeks an order under s 122 of the Fines Act that one half of any fine imposed be paid to the prosecutor as a moiety.
The defendant submitted that there was not an agreed fact directed to the intentional commission of the offences and that offences should be dealt with on the lower regime as to penalty which in the case of an individual is $500,000. The prosecutor did not contend for the application of a penalty within the range provided for in s 60N(2).
In relation to the significance of the maximum penalty for the offences, the defendant referred to Park v The Queen, [7] where Kiefel CJ, Gageler, Keane, Edelman and Gleeson JJ said at [19]:
[19] Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit.
The defendant accepted that the offending was to be appropriately regarded as serious, however, submitted that it was not offending that comes within the nature of contumacious disregard for the environment. The fact that the defendant retained a consultant, Mr Ware, who completed the INS Notification but did not show it to the defendant did not permit a finding that “there was a degree of defiance and an impending intention to wilfully breach the statut[e]”. Some credit should be given to the defendant by reason of the fact that the appropriate regulatory authorities were consulted as to flora and fauna, although this did not absolve him of responsibility for the acts undertaken and the gravity of how it occurred “save that it departs from the conduct being regarded as intentional to the extent that it would warrant the higher penalty”.
Equally, the defendant submitted that by his plea of guilty he acknowledges that the statutory objects concerning “what are ecologically sustainable development to be undertaken by a primary producer, are objects that he attempted to undertake, failed but nevertheless has resolve[d] to ensure that there will be no reoffending in the future”.
In relation to objective seriousness, the defendant submitted that the fact that there were two tranches of clearing undertaken over two periods of time did not indicate a continuing course of conduct, but rather “a course of conduct that was submitted for consideration by the INS in March 2023 and was undertaken over two periods of time, as more particularly referred to in the Agreed Facts”. The planning involved was accompanied by, if not preparatory to, the submission of the INS Notification, and whilst the clearing was not undertaken in conformity with the INS Notification, that did “not deprive the Offender of the recognition that he sought to initiate the matters under consideration in a lawful manner”.
This was to be contrasted with clearing of areas of vegetation where no permission is sought and “is clearly a callous disregard for the terms of the statute and completely contrary to engaging in sustaining an ecological habitat”. In the matter under consideration, there was no identification of the extent of the environmental harm, although there was no dispute in relation to the number of hectares cleared, a total of 1536.7 hectares.
Equally, in relation to the Form 1 offence concerning the habitat of the Malleefowl, and that it was “damaged as opposed to eradicated or for that matter, destroyed irrevocably”, there was no identification of the extent or degree of environmental harm. It was nevertheless conceded that environmental harm had occurred. However, in the absence of proof beyond reasonable doubt, it could not be determined and was not such as to aggravate the offence either under s 60N of the LLS Act or s 2.4 of the BC Act.
The defendant also referred to his attempts to undertake an assessment of re-growth of vegetation, but because of the events deposed to in his affidavit “concerning the triple fatality at Lake Cargelligo”, he was minded not to reattend the area bearing in mind the Police notification concerning the suspect possibly hiding out in the area. He submitted that the explanation in his affidavit should be accepted as indicative of his resolve to assist and put before the Court evidence in relation to extent of regrowth.
In overall terms of objective seriousness, the defendant submitted in relation to the s 60N offences that the offending fell within the mid-range or “possibly just a little under”, bearing in mind that permission was sought and that regrettably, a degree of recklessness was engaged in by the defendant in not following up the INS Notification, but equally was explicable on account of the fact that his consultant Mr Ware did not provide it to him. The relevant circumstances included the acceptance of the Form 1 as indicative of the guilt acknowledged by the defendant.
Further, the defendant submitted, an assessment of the offending could be gauged by comparing the offending in question to that which was before the Court in Secretary, Department of Planning & Environment v Aerotropolis Pty Ltd (No 2) [8] () (Robson J).
In relation to mitigating factors, the defendant submitted that in considering the Form 1 offence against s 2.4 of the BC Act, in the absence of proof of the degree of harm to the habitat of flora and fauna, the Court should not find that the harm was more substantial than that that caused by the commission of the two offences against s 60N of the LLS Act in the Form 1 offence against s 2.4 of the BC Act in consideration of the Form 1.
The defendant also referred to his excellent prospects of rehabilitation and submitted that the Court would find that he is highly unlikely to offend, and would factor in the maximum discount available for his early plea and the assistance of that plea in the administration of justice.
[140] The objective gravity or seriousness of the crime fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence ...
The objective gravity of the offence has two principal components: the precise acts or omissions of the offender and the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd [11] at [22] (Preston J).
The objective circumstances of relevance identified by Robson J in Natural Resources Access Regulator v Bao Lin Pty Ltd [12] at [51] were the nature of the offences; the maximum penalty; the environmental harm; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and the offender’s intentions in committing the offences.
The extent to which a defendant’s conduct offends against the legislative objectives expressed or inherent in the specific offence provision is fundamental in assessing the objective seriousness of environmental offences: Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens*; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd* [13] at [49] (Robson J). In considering the penalty, the Court should determine the degree by which the offender’s conduct offends against the legislative objectives: R v Peel [14] at 262 (Herron CJ, Manning JA, O’Brien J), cited with approval in Appleton at [70]. Offences that undermine the integrity of a regulatory system are objectively serious: Harrison v Perdikaris [15] at [47] (Preston CJ of LEC), cited with approval in Appleton at [70].
The statutory scheme of the LLS Act, similar to that of its predecessor the Native Vegetation Act 2003 (NSW), is relevantly to prohibit the clearing of native vegetation on a particular category of land, but to enable a person to be relieved of this prohibition if the clearing is authorised under the LLS Act: Secretary, Department of Planning and Environment v Khouzame [16] (Khouzame) at [13] (Preston CJ of LEC). The LLS Act specifies two categories of rural land which are to be described on a native vegetation regulatory map (s 60G(7)): (i) category 1-exempt land on which clearing can be conducted without approval or notification processes under the LLS Act; and (ii) category 2-regulated land on which clearing of native vegetation is an offence unless a defence is established. The statutory scheme of the LLS Act in relation to native vegetation on a particular category of land was elaborated upon by Preston CJ of LEC in Khouzame at [14] to [24].
The LLS Act prohibits the clearing of native vegetation in a regulated rural area, unless the person establishes one of the five defences specified in s 60N(1):
(a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A,
(b) that the clearing is authorised by a land management (native vegetation) code under Division 5,
(c) that the clearing is authorised by an approval of the Panel under Division 6,
(d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc),
(e) that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry).
…
(1A) The defences under subsection (1) (a)–(c) do not apply if the clearing was the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies.
…
For the purposes of s 60N, clearing of native vegetation is not authorised as referred to in subsection (1) unless the conditions to which the authorisation is subject (including any conditions of a land management (native vegetation) code relating to the clearing or any certificate or approval issued or granted for the clearing) are complied with: s 60N(3). Subsection 60N(3) extends to conditions that impose obligations on the person who clears the native vegetation that are required to be complied with before or after the clearing is carried out.
The statutory scheme is intended to protect native vegetation, especially vegetation with biodiversity values, by prohibiting clearing unless that clearing is authorised under the LLS Act: Khouzame at [24] (Preston CJ of LEC). Possession of the requisite consent to clear native vegetation has been described as the “touchstone” of the regulatory scheme and the “primary basis” upon which the objects of the LLS Act “are sought to be achieved”: Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [17] (Greentree sentencing judgment) (Robson J).
In Brummell Preston CJ of LEC concluded at [13] to [14] as follows:
[13] There is a need for the upholding of the regulatory scheme under the NV Act. The scheme depends on persons, first, taking steps to ascertain when authority is required to clear native vegetation, secondly, making an application in the appropriate form and manner and obtaining the requisite authority before undertaking the clearing of native vegetation and, thirdly, complying with the terms and conditions of any authority (whether a development consent or a property vegetation plan) in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory scheme relating to native vegetation and fauna: Director General, Department of Environment and Climate Change v Rae at [18].
[14] An offence which undermines the integrity of the regulatory scheme is objectively serious. The use of the criminal law ensures the credibility of the regulatory scheme.
[25] One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining approval for clearing of native vegetation, either in the form of a development consent or a property vegetation plan that permits the clearing of native vegetation. The application for and the grant of either form of authority involves undertaking a type of environmental impact assessment of the proposed clearing and the environmental outcomes that are likely to be achieved if the clearing takes place. The statutory provisions requiring prior environmental impact assessment and approval for the clearing of native vegetation are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including achieving the principles of ecologically sustainable development.
As to the approach to be taken by sentencing courts in considering Form 1 offences, the principles were stated in Attorney-General's Application under s 37 of the Crimes (Sentencing) Procedure Act 1999 No 1 of 2002 [19] (the Guideline judgment) (Spigelman CJ, with Wood CJ at CL, Grove, Sully and James JJ agreeing).
At [18] of the Guideline judgment the chief justice observed that there were a number of propositions that were well established and uncontroversial:
[18] A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.)
[23] The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (The Queen v De Simoni (1981) 147 CLR 383 at 389, 395-396; The Queen v Olbrich (1999) 199 CLR 270 at [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.
[24] The ‘top down’ approach which, notionally, identifies an appropriate penalty for the full gamut of offences, appears to me to be inconsistent with this principle. No doubt it can be said that even the ‘bottom up” approach involves, in a sense, punishment ‘for’ the Form 1 offences, because the penalty for the primary offence is increased. (See e.g. R v Anderson [1978] AC 964 at 969 per Lord Diplock.) But that is not necessarily the case, as I sought to show in R v Barton (2001) 121 A Crim R 185 at [64].) (Lord Diplock’s observations were appropriately qualified by Neasey J in R v Jones [1978] Tas SR 126 at 131.)
[39] The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure. This is not sentencing for the principal offence.
[40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, i.e. the primary offence.
…
[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.
[43] I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court The important point is that the focus throughout must be on sentencing for the primary offence.
[44] The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at (69]).
The approach set out in the Guideline judgment was confirmed in Abbas v R [20] (Abbas) where Bathurst CJ said at [14] that the object of s 33 of the Sentencing Act, reflected in s 33(3) which provides that any increase in penalty must not exceed the maximum penalty that the Court could have imposed for the principal offence, was not to impose a distinct penalty for the offences to be taken into account.
In Markarian v The Queen the plurality observed that occasionally "it may be useful and certainly not erroneous" for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences for which an offender has admitted guilt. Gleeson CJ, Gummow, Hayne and Callinan JJ said at [43]:
[43] … Just as on occasions, albeit that they may be rare ones, it may not be inappropriate for a sentencing court to adopt an arithmetical approach, it may be useful and certainly not erroneous for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt. Here Hulme J sought to, and in our opinion did make it clear, that the additional period of imprisonment was imposed not as a separate penalty for the further offences but by way of increase of penalty for the principal offence.
[22] In my respectful opinion, the approach suggested by Adams J is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General's Reference. Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.
[23] That approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. That does not mean that the principle of proportionality referred to by the High Court in cases such as Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; Veen v The Queen (No 2) supra at 472 and 477; Markarian supra at [83], is offended. Rather, the fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. That does not involve any injustice to the offender who has chosen to avail him or herself of the s 33 procedure. Nor does it mean that the offender is being sentenced for offences for which he or she has not been convicted. This is because the sentence is imposed by reference to the offence for which the offender has been convicted, by contrast to the "top down" approach rejected in Attorney General's Reference.
The maximum penalty under s 60N of the LLS Act depends on whether the offender is a corporation or an individual, and whether the offence was committed intentionally and caused or was likely to cause significant harm to the environment: s 60N(1)(a) and (2)(a). As to the principal offences, the defendant is an individual and the prosecutor does not press for the application of s 60N(2). Accordingly, the maximum penalty for each of the two offences against s 60N of the LLS Act is $500,000.
In Director-General, Department of Environment and Climate Change v Rae [22] the chief judge said at [13] in relation to the maximum penalties fixed by Parliament for offences of clearing native vegetation contrary to law:
[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.
The degree of harm caused by the commission of an offence affects the seriousness of the offence: “the greater the harm, the more serious the offence”: Khouzame at [30] (Preston CJ of LEC). Environmental harm is assessed broadly, encompassing both actual and potential harm: Greentree sentencing judgment at [100] (Robson J); Waste Recycling at [145] to [149] (Preston CJ of LEC).
Authorities, including Waste Recycling and Processing at [145] to [149] (Preston CJ of LEC) and Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [23] at [369] (Pepper J), establish the following principles that are relevant in establishing environmental harm:
harmfulness needs to be considered not only in terms of actual harm: the potential or risk of harm should also be taken into account;
harm is not limited to measurable harm such as actual harm to human health, and can also include a broader notion of quality of life;
harm can include harm to the environment and its ecology resulting from adverse impacts to a particular animal or plant;
harm can be direct or indirect, individual or cumulative;
the culpability of the defendant depends in part on the seriousness of the environmental harm; and
the fact that the environment that is harmed by the defendant’s conduct was already disturbed or modified is not a mitigating factor.
Where the harm caused by the offence is of medium significance and can be categorised as “substantial” under s 21A(2)(g) of the Sentencing Act, the causing of substantial harm is an aggravating factor: Brummell at [38] (Preston CJ of LEC).
Here, the prosecutor did not contend that the actual and potential environmental harm was substantial in the sense that the aggravating factor in s 21A(2)(g) was engaged, but submitted that the Court would find that the offences caused actual harm of some seriousness. The defendant submitted that there was no real assessment of the ultimate environmental harm, but acknowledged the risk to the environment by the commission of the offences.
I find proven beyond reasonable doubt that the offences caused actual environmental harm, as submitted by the prosecutor, having regard to the area of land unlawfully cleared of native vegetation in relation to each of the principal offences (545.6ha and 399.3ha respectively), that the clearing was carried out over extended periods of time, that a variety of native vegetation was cleared, that the areas unlawfully cleared had ecological value with three plant community types cleared for both the principal offences and for the Form 1 offence, and that the land cleared was habitat for the Malleefowl (), a threatened species within the meaning of the BC Act. Whilst I do not find that the harm was substantial so as to engage the aggravating factor in s 21A(2)(g), I find that the actual harm caused was of some seriousness.
Pursuant to s 13.12(1)(b) of the BC Act, the practical measures that may be taken to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment is to be taken into consideration in imposing a penalty.
Where an offence is committed against s 60N of the LLS Act, the practical measures that would have prevented the risk of harm will usually involve obtaining an approval or other authority under the LLS Act or other relevant Act authorising the clearing: for example, Khouzame at [77] (Preston CJ of LEC).
Here, the defendant arranged for his agricultural consultant Mr Ware to submit a Landholder Notification Form on behalf of himself and Mrs Dalton to LLS pursuant to the Land Management (Native Vegetation) Code 2018 seeking authorisation of the clearing of invasive native species: Hop Bush, Turpentine and White Cypress Pine. The clearing described on the form – in terms of the species to be cleared and the intended dates of clearing 16 April 2023 and 30 April 2023 – bore little relationship to the clearing of native vegetation of the three PCTs which was ultimately undertaken by the defendant. The defendant also admitted that he had no engagement with the NSW Rural Fire Service in relation to the burning of native vegetation on the property.
In these circumstances, I find established beyond reasonable doubt that the defendant took no practical measures to prevent, control, abate or mitigate the harm caused or likely to be caused by the commission of the offences.
An offence against s 60N of the LLS Act is one of strict liability and mens rea is not an element of the offence. Nevertheless, an offender’s state of mind in committing the offence can increase its objective seriousness. A strict liability offence that is committed intentionally, recklessly or negligently will be objectively more serious than one not so committed: Rae at [42] (Preston CJ of LEC); Brummell at [40] (Preston CJ of LEC); Khouzame at [43] (Preston CJ of LEC); also Greentree sentencing judgment at [123] (Robson J). A large measure of premeditation will make an offence more serious than if it is committed on the spur of the moment: Rae at [43] (Preston CJ of LEC); Khouzame at [43] (Preston CJ of LEC).
Here, I find established beyond reasonable doubt in relation to the s 60N offences that the offending constituted a planned criminal activity, an aggravating factor within s 21A(2)(n) of the Sentencing Act. The offences were premeditated and intentional. The defendant was aware of the regulatory regime in relation to the clearing of native vegetation, he engaged Mr Ware to liaise with the authorities and to submit the INS Notification Form to seek regulatory approval, and he undertook extensive unlawful clearing (of 545.6ha and 399.3ha) on the property over significant periods of time using both fire and earthmoving machinery. The clearing diverged significantly from that which had been notified to LLS. The defendant knew of the need for regulatory approval and he knowingly carried out clearing contrary to the regulatory approval obtained on his behalf.
None of the offences was committed on the spur of the moment. As submitted by the prosecutor in relation to the Form 1 offence, the defendant made admissions that he was aware that the property contained Malleefowl habitat, and that an adjacent property was subject to a Malleefowl Incentive Property Vegetation Plan. Through Mr Ware, he was provided with a map of former Malleefowl nesting sites on the property, and engaged with Mr Mercer in relation to the Malleefowl present on the property.
The criminality involved in the commission of an offence is to be measured not only by the seriousness of what occurred, but also by reference to the reasons for its occurrence. The carrying out of an offence to make a profit or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environmental protection licence, increases the seriousness of the crime. Offenders should not profit from crime: Garrett v Williams [24] at [121] (Preston CJ of LEC).
Where the clearing of native vegetation is to improve the agricultural productivity and profits from a property and to improve its capital value, such reasons for committing the offence increase its objective seriousness: Rae at [49] (Preston CJ of LEC); Turnbull at [148] to [149] (Preston CJ of LEC); and Chief Executive of the Office of Environment and Heritage v Boyle [25] (Boyle) at [67] to [70] (Moore J). The objective seriousness of an offence is increased if the offence is committed for financial gain such as to make a profit or to stop incurring an expense; s 21A(2)(o) of the Sentencing Act: Turnbull at [148].
I am satisfied beyond reasonable doubt that the clearing of native vegetation on the property was carried out by the defendant for financial gain in the sense that, as submitted by the prosecutor, the land was more usable when cleared and gave rise to a commercial benefit to the defendant. This constitutes a factor of aggravation increasing the objective seriousness of the defendant’s offending.
In relation to the objective seriousness of the two principal offences against s 60N of the LLS Act, in clearing native vegetation without authorisation and in bypassing the five regulatory avenues permitting clearing in s 60N(1) and (3), the defendant not only offended against the legislative objective expressed in the offence provision in s 60N, but also undermined the attainment of the statutory object in s 3(e) of ensuring the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991. The two principal offences in relation to native vegetation clearing are ones which undermine the integrity of the regulatory scheme and are objectively serious.
I find that the principal offences contrary to s 60N of the LLS Act were at the lower end of moderate objective seriousness. In relation to the Form 1 offence contrary to s 2.4 of the BC Act, I find that the offending was at the middle of the low range of objective seriousness.
The defendant entered a plea of guilty to the two offences against s 60N of the LLS Act at an early occasion. The prosecution was commenced on 3 July 2025, and pleas of guilty were entered on 17 October 2025. The prosecutor did not oppose a discount at the higher end of the range reflecting the utilitarian value of the pleas: s 22 of the Sentencing Act. I will apply a discount of 25% on sentence to reflect that utilitarian value. I will also take the pleas into account as a mitigating factor pursuant to s 21A(3)(k) of the Sentencing Act. [26]
The defendant has no relevant antecedents. I take this into account as a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act.
The remorse shown by the offender for the offending is a mitigating factor under s 21A(3)(i) of the Sentencing Act, 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).
In the context of environmental crimes, remorse is “more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives”: Waste Recycling at [203] (Preston CJ of LEC). In that matter, the chief judge said at [203] that the actions underlying genuine contrition and remorse may take at least four forms:
first, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence;
secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities;
thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems; and
fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company’s genuine regret and stating future plans to avoid repetition of such offences.
In this matter, there was no evidence before the Court of any action by the defendant to rectify any harm caused or likely to continue to be caused by the commission of the offences. There was no evidence that the defendant reported the commission of the offences and any concomitant environmental harm the relevant authorities. There was no evidence of the defendant taking action to address the causes of the offences.
Evidence of remorse was limited to the defendant’s affidavit which contained generalised expressions of remorse. I am, however, satisfied that the defendant has demonstrated remorse in a manner which engages s 21A(3)(i) of the Sentencing Act, but place only modest weight upon this mitigating factor in the instinctive synthesis resulting in the sentences to be imposed.
[65] The sentence of the Court is an important denunciation of the conduct of the defendant.
[66] The sentence must also serve as a public deterrent. 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 a light punishment will be imposed.
[67] This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines.
[68] The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court’s sentence, the defendant is given his just desserts.
[42] In considering the question of penalty generally and for environmental offences such as this in particular, general deterrence is a major consideration: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, Carlino v Leichhardt Council (2005) 144 LGERA 235.
[43] 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. There is a need to send a strong warning to others who may be minded to breach the law that such actions will be visited with significant consequences.
[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 a defendant outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the defendant 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.
In dealing with the defendant for the offences of unauthorised clearing of native vegetation in regulated rural areas to which the defendant has pleaded guilty in proceedings 2025/255188 and 2025/255189, I have also taken into consideration the offence against s 2.4 of the BC Act which the defendant has admitted in proceedings 2025/255190, but of which he has not been convicted.
However, in considering the Form 1 offences here the maximum penalty that I may impose on the defendant for the offences against s 60N(1) of the LLS Act of which he has been convicted may not exceed the maximum penalty I would have otherwise been empowered to impose for those principal offences. I may make orders with respect to restitution, compensation, costs, forfeiture, disqualification and loss or suspension of a licence or privilege as I would have been empowered if the defendant had been convicted of the offence against s 2.4 of the BC Act, but not otherwise impose any separate punishment for that offence.
[80] …This Court cannot determine the appropriateness of the sentence by way of a superficial comparison of the sentence imposed on the appellant with the sentences imposed on offenders who cleared similarly sized parcels of land. That approach risks giving undue weight to the quantum of cleared native vegetation in the sentencing exercise, in much the same way that the guideline judgment in R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 at [134] gave undue weight to the quantity of imported narcotics in the sentencing of drug offenders: Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [73]-[74] (Gaudron, Gummow and Hayne JJ). Indeed, in many if not most of the decisions on sentence cited above, the offenders had pleaded guilty at the first available opportunity, assisted the authorities, or expressed contrition or remorse. The quantum of native vegetation cleared is an important consideration in the sentencing of offenders for offences against s 12 of the Act, but it is not the only one.
In relation to the nature of the offence, the defendant's actions in clearing native vegetation on her property without the authority of an approval under Div 6 of Pt 5A of the LLS Act was found to have offended against the legislative objective expressed in the statutory offence and thwarted the attainment of the objects in s 3 and Div 6 of Pt 5A of the LLS Act. In particular, her actions and their consequences were found to have run counter to the object in s 3(e) of ensuring the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development. In relation to the maximum penalty for the offence, the defendant was an individual, and the prosecutor did not submit that the defendant committed the offence intentionally. In relation to the objective harmfulness of the offence, the clearing was found to have caused habitat loss, loss of connectivity and fragmentation and led to significant soil erosion. The objective harmfulness was substantial. The offence resulted in 5.04 hectares of high quality native vegetation being cleared in an area that had significant ecological values. The clearing directly, and likely substantially, reduced the biodiversity value of the area and the provision of wildlife habitat. In relation to the offender’s state of mind, the commission of the offence was found to have been premeditated and planned, evident from the nature, scale, extent and duration of the clearing undertaken at the defendant's direction. Although the offence was one of strict liability, the chief judge held that the offender’s state of mind could increase the seriousness of the offence. The chief judge found the first tranche of clearing to have been committed negligently and the second tranche to have been committed recklessly as the defendant had received two notices informing her of the unlawfulness of her actions.
As to the foreseeability of the risk of harm, although the evidence did not establish that the defendant actually foresaw the risk of harm to the environment from the first tranche of clearing, a reasonable person would have foreseen this risk. The defendant was alerted to the impact of the clearing on the environment by the issue of the DCO in August 2021 and the stop work order in April 2022, and as such was aware of the risk of environmental harm likely to be caused by the second tranche of clearing. The practical measure the defendant should have taken was to not clear the native vegetation unless and until she had obtained approval under the LLS Act or other relevant Act authorising the clearing. In relation to the defendant’s control over the cause of the offence, she was found to have directed others to carry out the clearing and therefore had full control over the causes of the offence and the harm to the environment. The chief judge held that the offence was of medium objective seriousness, in the lower end of the mid-range of seriousness.
[114] In summary, I find beyond reasonable doubt that each of the offences caused, or were likely to cause, significant harm to the environment having regard to, first, the loss of a significant area of native vegetation (1,262ha); second, the clearing of endangered ecological communities; third, the removal of native fauna habitat features including woodland and grassland, native tree canopy cover, native shrubs, and ground layer species, which was likely to have been used by the local populations of various threatened species; fourth, the destruction of habitat likely to have been utilised by threatened species – some of which are listed as vulnerable species; fifth, the loss of mature habitat of native fauna, such as the destruction of hollow-bearing trees; and, sixth, the clearing resulted in increased habitat fragmentation creating fragments of native vegetation.
…
[116] I find beyond reasonable doubt that in relation to each of the offences, the defendants’ own foresight of the harm that could be caused by their clearing of large sections of Boolcarrol containing native vegetation is manifest and reasonably foreseeable.
[117] The prosecutor submits and I find beyond reasonable doubt that there is no evidence before the Court indicating that Mr Greentree and Auen Grain (by attribution), took steps to ameliorate the risk of harm caused by the clearing. I also consider that the objective seriousness of the offences is elevated where, under the respective legislative regimes, clearing is permitted with relevant approvals that the defendants did not seek to obtain despite being aware of such requirements. The failure of the defendants to obtain any approvals is a practical measure to prevent, control or mitigate harm to the environment which the defendants did not choose to do.
…
[121] The defendants accept that it is open to the Court to make a finding that the offences were committed for financial gain. Additionally, the defendants note that while there is no proper evidentiary basis for the Court to make any findings on the specific quantity of financial gain, it is open to the Court to find in general terms that land that is suitable for cultivation is more valuable than land that is only suitable for grazing livestock.
[122] I accept the prosecutor’s submissions and I find beyond reasonable doubt that each of the offences was committed by each defendant for financial gain and in relation to each offence, this constitutes an aggravating factor increasing the objective seriousness of the offending conduct.
…
[138] In summary, I find beyond reasonable doubt that in relation to the NV Act Offences (being, Northern Clearing Events 1, 2, 3, 4, 5a and Southern Clearing Event 6a) and each of the LLS Act Offences (being, Northern Clearing Events 5b and Southern Clearing Event 6b) was committed intentionally in the pursuit of removing vegetation for broadscale cropping – a plan that was plainly obvious at the time Boolcarrol was purchased. It follows that Auen Grain caused or permitted Mr Greentree to carry out the clearing. I make these findings beyond reasonable doubt and remain conscious that there are eight separate offences relating to each defendant. I find beyond reasonable doubt that Mr Greentree intentionally caused the clearing, and he was aware that the clearing included some native vegetation in relation to each event. In making this finding, in addition to matters noted above, I place emphasis upon the following:
(1) The evidence is clear that Mr Greentree made all decisions in relation to the conduct on Boolcarrol and this was in circumstances where, as often stated, Boolcarrol was purchased with an intention to undertake broadacre clearing to convert paddocks that had a lot of trees and turn them from pasture into areas that would be available for cropping.
(2) As referred to in Greentree (No 7), Mr Greentree accepted that during 2017, clearing of vegetation (including native vegetation) took place for various purposes including, first, the removal of vegetation to deal with “noxious weeds”, using the “tilling” method or using large machinery that was 8 - 12m wide – a method that involved “cutting all the root system off” and uprooting the weeds “and everything else”; second, the removal of saplings by putting a set of “offset disc ploughs, or a cutter bar for larger saplings on a bulldozer” – a method that kills all vegetation including grasses on the ground around the saplings; third, removal of vegetation to create “firebreaks”, where Mr Greentree used a “bulldozer” and a “plough or grader”; and fourth, “clean-up work after bushfires”, which involved the “raking and stacking of vegetation” which was later burnt.
[139] As I have found above, I have no doubt given matters to which I will refer, Mr Greentree was aware that he was prohibited from clearing native vegetation unless it fell within a statutory exemption or was subject to a relevant approval. Mr Greentree did not seek any approval for the clearing, and I do not, and did not in Greentree (No 7), accept his varied and inconsistent explanations (Judgment [370]) of the clearing.
…
[148] For the reasons that I have given, and the findings made above, in particular that the offending of Mr Greentree and Auen Grain amounted to intentional broadscale clearing of native vegetation over a not insignificant (10%) proportion of Boolcarrol (while conscious that there are eight separate offences under consideration), and that each offence was carried out for financial gain which caused, or was likely to cause, significant harm to the environment including to native vegetation of high conservation value and that the clearing was carried out repeatedly and systematically, I have concluded that the specific offences committed by Mr Greentree and Auen Grain (by attribution) fall within the following ranges of objective seriousness (conscious both of the individual seriousness as well as the overall objective seriousness of the conduct comprising those offences):
(1) Northern Clearing Event 1: serious range;
(2) Northern Clearing Event 2: mid to serious range;
(3) Northern Clearing Event 3: serious range;
(4) Northern Clearing Event 4: mid to serious range;
(5) Northern Clearing Event 5a: serious range;
(6) Northern Clearing Event 5b: serious range;
(7) Southern Clearing Event 6a: serious range; and
(8) Southern Clearing Event 6b: serious range.
[155] I find that, despite the antecedents of each defendant raised by the prosecutor, neither defendant has been convicted of an offence against s 12 of the NV Act or s 60N of the LLS Act and as such, the defendants are entitled to some mitigation.
…
[160] I consider that Mr Greentree is entitled to some mitigatory benefit based upon his previous good character as canvassed in the affidavits to which I have been referred. I do not consider that Auen Grain is entitled to similar mitigatory benefit.
[161] The prosecutor notes that there is no evidence of insight, contrition, or remorse from the defendants and the defendants concede that there is no evidence of remorse and, in the circumstances, this mitigating factor does not apply.
[162] The defendants did not enter a plea of guilty.
(1) For Mr Greentree:
(a) Northern Clearing Event 1: $60,000;
(b) Northern Clearing Event 2: $40,000;
(c) Northern Clearing Event 3: $190,000;
(d) Northern Clearing Event 4: $120,000;
(e) Northern Clearing Event 5a: $400,000;
(f) Northern Clearing Event 5b: $190,000;
(g) Southern Clearing Event 6a: $160,000;
(h) Southern Clearing Event 6b: $250,000.
Totalling $1,410,000.
(2) For Auen Grain:
(a) Northern Clearing Event 1: $60,000;
(b) Northern Clearing Event 2: $40,000;
(c) Northern Clearing Event 3: $190,000;
(d) Northern Clearing Event 4: $120,000;
(e) Northern Clearing Event 5a: $400,000;
(f) Northern Clearing Event 5b: $220,000;
(g) Southern Clearing Event 6a: $160,000;
(h) Southern Clearing Event 6b: $300,000.
Totalling $1,490,000.
Taking into account the purposes of sentencing in s 3A of the Sentencing Act and the maximum penalty for each of the offences against s 60N(1) of the LLS Act and for the Form 1 offence, synthesising the relevant objective circumstances of each of the offences (including the statutory object in s 3(e) of the LLS Act and the purposes in s 1.3 (a), (b), (g), (h) and (j) of the BC Act) and the subjective circumstances of the offender, considering the matters in s 13.12 of the BC Act and the aggravating, mitigating and other factors in s 21A of the Sentencing Act, and in circumstances where I am sentencing the defendant for two offences, the totality principle, I would impose the following penalties:
for the first charge (in proceedings 2025/255188), being for the clearing of native vegetation in a regulated area contrary to s 60N(1) of the LLS Act for the period 16 May 2023 to 10 June 2023 and involving the unlawful clearing of an area of 545.6 hectares, $120,000;
for the second charge (in proceedings 2025/255189), being for the clearing of native vegetation in a regulated area contrary to s 60N(1) of the LLS Act for the period 3 September 2023 to 31 October 2023 and involving the unlawful clearing of an area of 399.3 hectares, $180,000.
To those amounts, I apply a discount of 25% to reflect the early entry of pleas by the defendant, producing the following penalties:
for the first charge (in proceedings 2025/255188), being for the clearing of native vegetation in a regulated area contrary to s 60N(1) of the LLS Act for the period 16 May 2023 to 10 June 2023 and involving the unlawful clearing of 545.6 hectares, $90,000;
for the second charge (in proceedings 2025/255189), being for the clearing of native vegetation in a regulated area contrary to s 60N(1) of the LLS Act for the period 3 September 2023 to 31 October 2023 and involving the unlawful clearing of 399.3 hectares, $135,000.
[50] The Court is empowered to order a defendant to pay to the registrar of the Court, for payment to the prosecutor, such costs as the Court specifies or as may be determined under s 257G of the Criminal Procedure Act 1986 (which prescribes determination by agreement or in accordance with the Legal Profession Act 2004): s 257B Criminal Procedure Act 1986. In this jurisdiction such an order is routinely made. Consequently, payment of the prosecutor’s costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences. Therefore, of itself, it does not generally seem to be a reason for reducing a penalty in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence. Something more would seem to be required.
I will make an order that the defendant pay the prosecutor’s costs as may be determined under s 257G of the Criminal Procedure Act 1986.
The prosecutor also seeks an order pursuant to s 122 of the Fines Ac**t that the defendant pay to it one half of any fine imposed. Section 122 applies where the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered (s 122(1)(a)), and the prosecutor is not a police officer (s 122(1)(b)). The award of a moiety to a prosecutor is discretionary: Boyle at [157] (Moore J). One of the justifications for such an order is to compensate the prosecutor for the costs and expenses incurred during the investigation of the offence. An order that the offender pay the prosecutor’s costs of the proceedings does not include costs and expenses incurred during the investigation of the offence and before the prosecution has been commenced: Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [32] at [62] (Preston CJ of LEC); EPA v Cadia Holdings Pty Limited [33] at [220]. However, the discretion remains available to be exercised where there is separate provision for the payment of investigation costs in the statutory regime, as in the circumstances of the investigation of the defendant here pursuant to Part 13, Div 3 of the BC Act: Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [34] at [150] to [158] (Moore J); Environment Protection Authority v Forestry Corporation of NSW [35] at [145] to [153] and orders at [159] (Moore J).
The LLS Act does not make any provision for the application of a fine when recovered, and the prosecutor is not a police officer. I will make an order pursuant to s 122 of the Fines Act that the defendant is to pay the prosecutor one half of the penalties I have decided to impose on the defendant.
(1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made;
(2) Publication orders assist in serving a deterrent purpose in environmental crimes. Such a notice informs or reminds the public that such an offence exists, and may add some “sting” to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence;
(3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma;
(4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed;
(5) If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence.
(6) Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order.
(7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication.
(8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness.
In proceedings 2025/255188:
In proceedings 2025/255189:
**In proceedings 2025/255188, 2025/255189 and 2025/**255190:
(a) Within 28 days of the date of this order, publicise the commission of the offences and orders made against him by causing a notice to be published in the print and digital versions of The Land, The Weekly Times, The Area News and The Riverine Grazier with the text of such notice to be that as set out in Annexure A to these orders, and at the minimum size specified below on the first available page of the print version of:
(i) The Land (10cm x 18.6cm) (ii) The Weekly Times (10cm x 18.6cm) (iii) The Area News (10cm x 18.6cm) (iv) The Riverine Grazier (10cm x 18.6cm)
(b) Within 42 days of the date of this order, provide to the Secretary of the NSW Department of Climate Change, Energy, the Environment and Water a copy and a screenshot of the entire page of The Land, The Weekly Times, The Area News and The Riverine Grazier on which the notices were published in accordance with order (2)(a) above.
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ANNEXURE A
On 2 November 2026, the Land and Environment Court of NSW convicted Sheldon Jeffrey Dalton of two offences of unauthorised clearing of native vegetation in a regulated rural area, at his property "Yarradah" at Wallanthery, NSW, contrary to section 60N(1) of the Local Land Services Act 2013 (NSW). The prosecution was conducted by the Department of Climate Change, Energy, the Environment and Water.
A total of 944.9 hectares of native vegetation was unlawfully cleared, which included Sandplain mallee of central NSW, Belah woodland on clay-loam soils on alluvial plains of north-central NSW and Broombrush shrubland in the mallee landscapes. The clearing resulted in damage to the habitat of the threatened species, Malleefowl (l**eipoa ocellata).
Mr Dalton entered pleas of guilty to the charges and was fined a total of $225,000 and ordered to pay the prosecutor's costs. He was also ordered to publish this notice.
All landholders should be aware of the serious consequences of clearing native vegetation without approval.
Landholders considering clearing native vegetation should seek advice from Local Land Services to ensure that any allowable clearing is conducted according to legislation.
[2022] NSWLEC 153.
(2004) 217 CLR 198; [2004] HCA 22 at [30] referring to R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [15] and Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4] to [10]. See also Environment Protection Authority v Laison [2015] NSWLEC 89 at [33] (Pain J); Environment Protection Authority v Appleton [2025] NSWLEC 62 (Appleton) at [64] to [66].
R v Olbrich at [27] to [28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) citing R v Storey [1998] 1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA, and Southwell AJA). See also Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J).
[2025] NSWLEC 23.
[2019] NSWLEC 100.
[2020] NSWLEC 80.
(2021) 273 CLR 303; [2021] HCA 37. See also R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [35]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30] to [31]; and R v Duncan (2007) 172 A Crim R 111; [2007] VSCA 137 at [20].
[2025] NSWLEC 48.
(2019) 242 LGERA 241; [2019] NSWLEC 114.
(2006) 148 LGERA 299; [2006] NSWLEC 419.
(2008) 163 LGERA 71; [2008] NSWLEC 280.
[2022] NSWLEC 42.
[2024] NSWLEC 140.
(1971) 1 NSWLR 247.
[2015] NSWLEC 99.
(2024) 261 LGERA 49; [2024] NSWLEC 54.
[2024] NSWLEC 131.
(2017) 227 LGERA 290; [2017] NSWLEC 140.
(2002) 56 NSWLR 146; [2002] NSWCCA 518.
[2013] NSWCCA 115.
[2019] NSWCCA 183.
(2009) 168 LGERA 121; [2009] NSWLEC 137.
(2022) 253 LGERA 1; [2022] NSWLEC 60.
[2006] NSWLEC 785; (2006) 160 LGERA 115.
[2019] NSWLEC 54.
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160].
(2006) 148 LGERA 278; [2006] NSWLEC 289.
[2007] NSWLEC 56.
(2012) 82 NSWLR 12; [2012] NSWCCA 210.
For example EPA v Metropolitan Collieries Pty Ltd (Robson J).
[2010] NSWLEC 170.
[2014] NSWLEC 154.
[2025] NSWLEC 27.
[2017] NSWLEC 2.
[2022] NSWLEC 75.
[2019] NSWLEC 178.
Order (7) of paragraph 170: Registrar replaced with prosecutor
Secretary, Department of Climate Change, Energy, the Environment and Water
Dalton
He acted as agent/consultant for the defendant and his wife on the property;
He acted as agent/consultant for the defendant and his wife in relation to the INS Notification;
He advised the defendant to tell the truth and gave general ideas as to answers;
Prior to the clearing, he engaged with LLS regarding threatened species and native vegetation clearing on the property;
Prior to the clearing, he engaged with “the Federal Department of Climate Change, Energy, and Water” in relation to threatened species and native vegetation clearing on the property;
Prior to clearing on the property, he engaged with an environmental consultant, Stephen Mercer, to produce a report under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) for the Federal Department concerning native vegetation clearing, threatened species and critically endangered ecological communities on the property, including Malleefowl and “the broader Malleefowl community”;
He usually engaged Mr Mercer to provide consultation on species and environmental impact in relation to bigger projects involving clearing and long-term damage, and usually supplied Mr Mercer’s reports to the defendant and his wife as they were received.
He engaged with WHS consultants Continu Risk Management Pty Ltd in relation to risks associated with native vegetation on the property;
Prior to the clearing, Mr Ware supplied details of the property’s known Malleefowl nesting sites to the defendant;
Prior to the clearing, he supplied details of the property’s known Malleefowl nesting sites to his teenage son to engage in a Malleefowl site inspection on the property; and
The defendant lit the fire that cleared the vegetation on the property.
Here, the matters relevant to the assessment of objective seriousness were that the offences were committed “in the absence of a close adherence to what the INS Notification required” and Mr Ware's failure to impart that to the defendant. Against that, the defendant undertook the clearing knowing that there was an endangered habitat for the purposes of the BC Act, that the clearing was undertaken for financial gain “but the financial gain being the pursuit of his primary production activities for which he was seeking permission to do so”, that there was no real assessment of the ultimate environmental harm but nevertheless the acknowledgment of the risk to the environment by reason of the commission of the offences, and finally that the control over the causes that gave rise to the offences and the harm to the environment were ultimately in the hands of the defendant. The defendant submitted that the Court could consider this to be in the middle to low range of objective seriousness in circumstances similar to the assessment of objective seriousness by Preston CJ of LEC in Chief Executive, Office of Environment and Heritage v Brummell [9] (Brummell).
[2025] NSWLEC 62
[2025] NSWLEC 27
(2002) 56 NSWLR 146
(2001) 209 CLR 1
(2017) 227 LGERA 290
(2019) 242 LGERA 241
(2009) 168 LGERA 121
(2008) 163 LGERA 71
(2006) 148 LGERA 278
(2006) 148 LGERA 299
(2006) 160 LGERA 115
(2004) 217 CLR 198
(2007) 230 CLR 1
(2005) 228 CLR 357
(2021) 273 CLR 303
(2000) 50 NSWLR 115
(1999) 199 CLR 270
(1971) 1 NSWLR 247
(2000) 49 NSWLR 383
(2024) 261 LGERA 49
(2022) 253 LGERA 1
(2012) 82 NSWLR 12
(1981) 28 SASR 9
(1985) 4 FCR 168
(1981) 147 CLR 383
(1989) 167 CLR 348
(1993) 113 LGERA 357
(1993) 32 NSWLR 683
(2000) 49 NSWLR 610
(2005) 144 LGERA 235
(1999) 48 NSWLR 340
(2001) 207 CLR 584