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[2026] NSWLEC 30
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-27
Duggan J
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Medium Neutral Citation: Secretary, Department of Climate Change, Energy, the Environment and Water v Vassallo [2026] NSWLEC 30
Hearing dates: 08 December 2025
Date of orders: 27 March 2026
Decision date: 27 March 2026
Jurisdiction: Class 5
Before: Duggan J
Decision: See orders at [172]-[183]
Catchwords: SENTENCING – environmental offences – s 60N(1) of the Local Land Services Act 2013 (NSW) – clearing native vegetation – actual and potential harm caused to the environment – reasonable foreseeability of harm – whether offence was part of a planned or organised criminal activity – whether defendants committed offences recklessly or negligently – objective seriousness – contrition and remorse – good prospects of rehabilitation – early guilty plea – no prior convictions – specific deterrence not warranted – totality principle – married couple who bear the financial burden of the other’s offending – monetary penalty and publication order imposed
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 1.6, 12.8, 13.12, 13.25
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Criminal Procedure Act 1986 (NSW), ss 257B, 257G
Fines Act 1996 (NSW), s 122
Local Government Act 1993 (NSW), s 694
Local Land Services Act 2013 (NSW), ss 60N, 60Y, Pt 5A Div 5
Native Vegetation Act 2003 (NSW)
Land Management (Native Vegetation) Code 2018 (NSW), Pt 2 Div 2
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 82 LGERA 21; (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi (2024) 262 LGERA 190; [2024] NSWLEC 139
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
Gore v The Queen (2010) 208 A Crim R 353; [2010] NSWCCA 330
Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
NCR Australia v Credit Connection Pty Ltd [2005] NSWSC 1118
Pearce v The Queen [1998] 194 CLR 610; [1998] HCA 57
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97
Secretary, Department of Planning and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54
Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30
Category: Sentence
Parties: In 2025/00056036, 2025/00056037, 2025/00056038, 2025/00056039 and 2025/00056040:
Secretary, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
John Vassallo (Defendant)
In 2025/00056051, 2025/00056052, 2025/00056053, 2025/00056054 and 2025/56055:
Secretary, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
Raelene Rita Vassallo (Defendant)
Representation: Counsel:
G Wright SC and M McAuliffe (Prosecutor)
W Bruffey (Defendants)
Solicitors:
Department of Climate Change, Energy, the Environment and Water (Prosecutor)
Austin Giugni Martin Lawyers (Defendants)
File Number(s): 2025/00056036; 2025/00056037; 2025/00056038; 2025/00056039; 2025/00056040; 2025/00056051; 2025/00056052; 2025/00056053; 2025/00056054; 2025/00056055
Publication restriction: Nil
On 23 May 2025, John Vassallo (Mr Vassallo) and Raelene Rita Vassallo (Mrs Vassallo) (collectively, the Defendants) pleaded guilty to five offences each of clearing native vegetation in a regulated rural area contrary to s 60N(1) of the Local Land Services Act 2013 (NSW) (LLS Act).
These proceedings are to sentence the Defendants with respect of those offences.
On 10 July 2019, the Department of Planning, Industry and Environment – Crown Lands (as it was then known) issued owner’s consent for clearing of native vegetation on the Subject Land to be carried out in accordance with Pt 2 Div 2 of the Land Management (Native Vegetation) Code 2018 (NSW) (Native Vegetation Code).
On 30 July 2019, NSW Local Land Services (LLS) issued the previous landholders of the Subject Land with a mandatory code compliance certificate, Land Management Certificate No LMC001135 (LMC), pursuant to Pt 5A Div 5 of the LLS Act.
On 16 September 2020, Mrs Vassallo called LLS and inquired about whether the LMC transferred to a new owner upon sale. The LLS officer explained to Mrs Vassallo that the LMC did transfer after sale of the Subject Land. The LLS officer also explained the conditions of the LMC and the key aspects of the Native Vegetation Code and recommended that the Defendants “stick with the LMC” as this was the most feasible option.
On 12 May 2021, Mr Vassallo instructed JA Scott, a sole trader business that offered tree clearing services, with respect to the area and manner of clearing that he wanted at the Subject Land. These instructions included:
Kurrajong trees were not to be cleared;
Bigger trees were not to be cleared; and
A buffer zone was to be left between the power lines and the road.
After the meeting, Mr Vassallo sent JA Scott a copy of the LMC.
On approximately 22 October 2021, JA Scott commenced clearing native vegetation on the Subject Land. The clearing continued until approximately 10 April 2022 when one of JA Scott’s bulldozers broke down.
In approximately December 2022, the Defendants engaged and instructed Western Earth Moving and Rural Contracting Pty Ltd (WEM) to clear vegetation on the Subject Land. Mr Vassallo advised WEM that there was a clearing permit but did not provide them with a copy of the LMC.
During the Relevant Period, the Defendants caused or authorised JA Scott and WEM to clear 2,398.34 hectares of native vegetation from the Subject Land by means of machinery including bulldozing, chaining and burning. This clearing was not in accordance with the LMC.
Between approximately 22 October 2021 and 28 June 2022, at the direction of the Defendants, native vegetation clearing was carried out by JA Scott in the east, north and northeastern section of the Subject Land (Tranche 1).
Approximately 15,691 native trees with a diameter at breast height (DBH) exceeding 30cm were cleared, including approximately 11,208 tree hollows.
During this period, Mr Vassallo attended the Subject Land about once a month.
Between approximately 17 December 2022 and 4 May 2023, at the direction of the Defendants, native vegetation clearing was carried out by WEM in the northwestern section of the Subject Land (Tranche 2).
Approximately 34,841 native trees with a DBH exceeding 30cm were cleared, including approximately 24,887 tree hollows.
During this period, Mr Vassallo directed WEM to retain Kurrajong trees and some large trees.
Between approximately 1 January 2023 and 1 April 2024, at the direction of the Defendants, native vegetation clearing was carried out by WEM in the southern section of the Subject Land (Tranche 3).
Approximately 73,706 native trees with a DBH exceeding 30cm were cleared, including approximately 52,647 tree hollows.
Between approximately 2 February 2023 and 24 March 2023, at the direction of the Defendants, native vegetation clearing was carried out by WEM in the eastern and northern sections of the Subject Land (Tranche 4).
Approximately 22,065 native trees with a DBH exceeding 30cm were cleared, including 15,761 tree hollows.
Between approximately 2 February 2023 and 3 March 2023, at the direction of the Defendants, native vegetation clearing was carried out by WEM in the eastern section of the Subject Land (Tranche 5).
Approximately 21,487 native trees with a DBH exceeding 30cm were cleared, including approximately 15,348 tree hollows.
On 14 February 2023, the NSW Enviroline received a call advising that the Defendants were breaching a clearing permit by clearing big trees.
Over the subsequent months, authorised officers of the Department of Climate Change, Energy, the Environment and Water (DCCEEW) conducted investigations at the Subject Land.
On 31 July 2023, authorised officers of the DCCEEW conducted a voluntary interview with Mr Vassallo. During this interview, Mr Vassallo stated that:
He organised and engaged contractors to conduct the clearing;
The purpose of the clearing was to “graze” and “crop if you want”;
He was unaware of the activities that could be undertaken on the Subject Land and had not been in recent contact with LLS in relation to the clearing work;
He had been told by his solicitor that the LMC continued to apply to the Subject Land, but the solicitor did not inform him of what vegetation could be cleared; and
He was not aware of the contents of the LMC and thought it permitted him to clear but “didn’t know what vegetation [he] was supposed to clear”.
On 27 April 2023, Mr Vassallo was served with a notice issued under s 12.8 of the Biodiversity Conservation Act 2016 (NSW) (BC Act). In his response to this notice, Mr Vassallo stated that:
Clearing of the Subject Land commenced on 21 September 2021;
The purpose of the clearing was to clear invasive native species;
The persons who gave directions to any persons or company in association with the clearing were the Defendants;
Legal advice was sought from a solicitor prior to commencing clearing in accordance with the LMC and the Native Vegetation Code;
The clearing was carried out by JA Scott and WEM; and
The clearing was authorised by the Native Vegetation Code.
The Defendants cleared native vegetation on the Subject Land using four treatment methods:
Treatment 1: Cleared/thinned with all managed native vegetation pushed and left on the ground;
Treatment 2: Cleared/thinned with all managed native vegetation pushed, burnt and paddock stick raked;
Treatment 3: Thinned with native vegetation managed in accordance with the LMC; and
Treatment 4: Cleared with native vegetation removed for a new farm dam.
The parties rely upon an Amended Agreed Statement of Facts on Harm filed on 27 November 2025, which is summarised below.
Prior to the clearing of native vegetation, the Subject Land had high quality biodiversity, plant coverage and habitat values for the Cobar Peneplain’s threatened and protected species of fauna and flora.
As a consequence of the clearing of native vegetation by the Defendants the vegetation integrity and habitat values of the Subject Land was reduced to moderate to good quality. This reduction resulted in decreased habitat quality, biodiversity, ecosystem health and function, and resilience of the environment to disturbance.
The impacted trees were invasive native species. However, the non-invasive native species Brachychiton populneus, or Kurrajong tree, was potentially cleared but the Prosecutor could not establish how many Kurrajong trees were potentially cleared.
All of the 224.15 hectares of native vegetation cleared in Tranche 1 lost approximately 83% of its native vegetation habitat. The loss of habitat value in Tranche 1 caused environmental harm.
On 2 and 3 July 2024, ecologist, Phillip Cameron, undertook a field assessment of the Subject Land. In an expert report prepared by Mr Cameron (Report), he applied the Biodiversity Assessment Method (BAM) to assess threatened, endangered or vulnerable species affected by the clearing. The BAM identified two categories of species: threatened species with a known association with the plant community types (PCT****s) occurring on the Subject Land (also called “ecosystem credit species” because they are a known component of the ecosystem); and, species with a potential association with the PCTs occurring on the Subject Land whose likelihood of occurrence cannot be reliably predicted and require a targeted assessment to confirm their presence or absence.
Mr Cameron concluded in the Report that the following species of flora “have the potential to use the Property as habitat”:
| Species name | Common name | General Type | BC Act status | PCT | | Acacia curranii | Curly-bark Wattle | Shrubs | Vulnerable | 103, 104 | | Bertya opponens | No common name | Shrubs | Vulnerable | 104 | | Diuris tricolor | Pine Donkey- orchid | Orchids | Vulnerable | 103 | | Lepidium monoplocoides | Winged Peppercress | Herbs and Forbs | Endangered | 105 | | Pterostylis cobarensis | Cobar Greenhood | Orchids | Vulnerable | 103, 104 | | Sida rohlenae | No common name | Herbs and Forbs | Endangered | 98, 103, 104, 105 |
Of the 497.73 hectares of native vegetation cleared in Tranche 2, about 128.91 hectares lost approximately 83% of its native vegetation habitat, and about 368.82 hectares lost approximately 45% of its native vegetation habitat. The loss of habitat value in Tranche 2 caused environmental harm.
Mr Cameron concluded in the Report that the following species of flora “have the potential to use the Property as habitat”:
| Species name | Common name | General Type | BC Act status | PCT | | Acacia curranii | Curly-bark Wattle | Shrubs | Vulnerable | 72, 103, 104, 257 | | Bertya opponens | No common name | Shrubs | Vulnerable | 104 | | Diuris tricolor | Pine Donkey- orchid | Orchids | Vulnerable | 72, 103 | | Lepidium monoplocoides | Winged Peppercress | Herbs and Forbs | Endangered | 105 | | Pterostylis cobarensis | Cobar Greenhood | Orchids | Vulnerable | 72, 103, 104, 176, 257 | | Sida rohlenae | No common name | Herbs and Forbs | Endangered | 103, 104, 105 |
Of the 1,052.94 hectares of native vegetation cleared in Tranche 3, about 696.39 hectares lost approximately 83% of its native vegetation habitat, and 356.55 hectares lost approximately 45% of its native vegetation habitat. The loss of habitat value in Tranche 3 caused environmental harm.
Mr Cameron concluded in the Report that the following species of flora “have the potential to use the Property as habitat”:
| Species name | Common name | General Type | BC Act status | PCT | | Acacia curranii | Curly-bark Wattle | Shrubs | Vulnerable | 72, 103, 104, 257 | | Bertya opponens | No common name | Shrubs | Vulnerable | 104 | | Diuris tricolor | Pine Donkey- orchid | Orchids | Vulnerable | 72, 103 | | Lepidium monoplocoides | Winged Peppercress | Herbs and Forbs | Endangered | 105 | | Pterostylis cobarensis | Cobar Greenhood | Orchids | Vulnerable | 72, 103, 104, 257 | | Sida rohlenae | No common name | Herbs and Forbs | Endangered | 103, 104, 105 |
Of the 315.21 hectares of native vegetation cleared in Tranche 4, about 53.36 hectares lost approximately 83% of its native vegetation habitat, and about 261.85 hectares lost approximately 45% of its native vegetation habitat. The loss of habitat value in Tranche 4 caused environmental harm.
Mr Cameron concluded in the Report that the following species of flora “have the potential to use the Property as habitat”:
| Species name | Common name | General Type | BC Act status | PCT | | Acacia curranii | Curly-bark Wattle | Shrubs | Vulnerable | 103, 104, 257 | | Bertya opponens | No common name | Shrubs | Vulnerable | 104 | | Diuris tricolor | Pine Donkey- orchid | Orchids | Vulnerable | 103 | | Lepidium monoplocoides | Winged Peppercress | Herbs and Forbs | Endangered | 105 | | Pterostylis cobarensis | Cobar Greenhood | Orchids | Vulnerable | 103, 104, 176, 257 | | Sida rohlenae | No common name | Herbs and Forbs | Endangered | 98, 103, 104, 105 |
Of the 306.96 hectares of native vegetation cleared in Tranche 5, 6.41 hectares lost approximately 83% of its native vegetation habitat, and 300.55 hectares lost approximately 45% of its native vegetation habitat. The loss of habitat value in Tranche 5 caused environmental harm.
Mr Cameron concluded in the Report that the following species of flora “have the potential to use the Property as habitat”:
| Species name | Common name | General Type | BC Act status | PCT | | Acacia curranii | Curly-bark Wattle | Shrubs | Vulnerable | 103, 104 | | Bertya opponens | No common name | Shrubs | Vulnerable | 104 | | Diuris tricolor | Pine Donkey- orchid | Orchids | Vulnerable | 103 | | Lepidium monoplocoides | Winged Peppercress | Herbs and Forbs | Endangered | 105 | | Pterostylis cobarensis | Cobar Greenhood | Orchids | Vulnerable | 103, 104 | | Sida rohlenae | No common name | Herbs and Forbs | Endangered | 103, 104, 105 |
| Species name | Common name | General Type | BC Act status | | Antechinomys laniger | Kultarr | Marsupials | Endangered | | Artamus cyanopterus cyanopterus | Dusky Woodswallow | Birds | Vulnerable | | Certhionyx variegatus | Pied Honeyeater | Birds | Vulnerable | | Chalinolobus picatus | Little Pied Bat | Bats | Vulnerable | | Chthonicola sagittata | Speckled Warbler | Birds | Vulnerable | | Circus assimilis | Spotted Harrier | Birds | Vulnerable | | Daphoenositta chrysoptera | Varied Sittella | Birds | Vulnerable | | Falco subniger | Black Falcon | Birds | Vulnerable | | Grantiella picta | Painted Honeyeater | Birds | Vulnerable | | Hamirostra melanosternon | Black-breasted Buzzard | Birds | Vulnerable | | Lophochroa leadbeateri | Major Mitchell’s Cockatoo | Birds | Vulnerable | | Melanodryas cucullata cucullata | Hooded Robin | Birds | Endangered | | Melithreptus gularis gularis | Black-chinned Honeyeater | Birds | Vulnerable | | Pachycephala inornata | Gilbert’s Whistler | Birds | Vulnerable | | Pomatostomus temporalis temporalis | Grey-crowned Babbler | Birds | Vulnerable | | Saccolaimus flaviventris | Yellow-bellied Sheathtail-bat | Bats | Vulnerable | | Sminthopsis macroura | Stripe-faced Dunnart | Marsupials | Vulnerable |
The Major Mitchell’s (Pink) Cockatoo was likely to use the Subject Land for breeding, and the Little Eagle and Square-tailed Kite also potentially used the Subject Land for breeding.
Mr Cameron concluded in the Report that the following species of fauna “have the potential to use the Property as habitat”:
| Species name | Common name | General Type | BC Act status | | Antaresia stimsoni | Stimson’s Python | Reptiles | Vulnerable | | Ardeotis australis | Australian Bustard | Birds | Endangered | | Burhinus grallarius | Bush Stone- curlew | Birds | Endangered | | Calyptorhynchus lathami lathami | South eastern Glossy Black- Cockatoo | Birds | Vulnerable | | Hieraaetus morphnoides | Little Eagle | Birds | Vulnerable | | Lophoictinia isura | Square-tailed Kite | Birds | Vulnerable | | Ninox connivens | Barking Owl | Birds | Vulnerable | | Phascolarctos cinereus | Koala | Birds | Vulnerable | | Polytelis swainsonii | Superb Parrot | Birds | Vulnerable | | Setirostris eleryi | Bristle-faced Free-tailed Bat | Bats | Endangered | | Tyto novaehollandiae | Masked Owl | Birds | Vulnerable |
The native vegetation clearing by the Defendants impacted the connectivity of the canopy to support the movement of threatened species across the landscape.
It also impacted the number of trees which flower throughout the year, reducing the food sources for threatened species which rely on nectar. Several of the species likely to be present on the Subject Land contributed to and rely upon the ecological networks supported by nectar-producing plants.
Several threatened flora species, identified as having potential to occur on the Subject Land, are known or likely to produce nectar. The following flora species are ecologically important for supporting pollinators such as birds, bees, and other insects within the Cobar Peneplain region in which the Subject Land is located:
Acacia curranii;
Capparis loranthifolia var. loranthifolia;
Commersonia procumbens;
Diuris tricolor (mimic nectar);
Goodenia occidentalis;
Grevillea ilicifolia subsp. Ilicifolia;
Philotheca ericfolia; and
Pterostylis cobarensis (mimic nectar).
Threatened fauna species known or likely to utilise nectar could have directly benefited from the presence and flowering of nectar-producing threatened flora species on the Subject Land, including the Dusky Woodswallow, Black-chinned Honeyeater, Pied Honeyeater, Painted Honeyeater and Pink Cockatoo.
Several other threatened fauna species likely to be present on the Subject Land were indirectly dependent on nectar-producing flora, as they prey on insects that are attracted to, and feed from, nectar, including the Corben’s Long-eared Bat, Little Pied Bat, Yellow-bellied Sheathtail-bat, Kultarr, Stripe-faced Dunnart, Speckled Warbler, South-eastern Hooded Robin, Gilbert’s Whistler and Varied Sittella.
These species contribute to and rely upon the ecological networks supported by nectar-producing plants, highlighting the broader biodiversity value of maintaining nectar resources in the Cobar Peneplain landscape where the Subject Land is located.
The regeneration of tree hollows in the Cobar Peneplain is a slow process, often taking over a century and resulting in significant ecological impacts.
Tree hollows can take up to 100 years to develop in mature trees, and hollows suitable for vertebrate fauna may take 80 to 150+ years to form.
In the semi-arid environment of the Cobar Peneplain, tree hollow development is particularly slow due to factors like low rainfall and slow tree growth. Small hollows suitable for species such as the Brush-tailed Phascogale may take around 100 years to form, while large hollows required by species like the Glossy Black-Cockatoo can take over 200 years to develop.
The clearing affected mature trees and hollow bearing trees which provided roosting and breeding habitat to several threatened species with recorded populations within 5km of the Subject Land.
The Glossy Black-Cockatoo, Little Pied Bat, Corben’s Long-eared Bat, Varied Sittella, Pink Cockatoo, and Yellow-bellied Sheathtail-bat are dependent on tree hollows for shelter and/or reproduction and are therefore particularly vulnerable to the loss of hollow bearing trees.
The removal of hollow bearing trees disrupts the critical habitat of many threatened species, leading to declines in biodiversity.
The removal of existing hollow bearing trees results in a habitat-deficit that can persist for generations.
Removal of ground cover exposes soil and increases the risk of erosion.
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—
…
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).
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 –
…
(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),
…
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
…
(n) the offence was part of a planned or organised criminal activity,
…
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 –
…
(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),
…
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
…
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
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.
The offences for which the Defendants are to be sentenced fall within the defined meaning of “native vegetation offence”: s 1.6 of the BC Act.
It is to be noted that where a Prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond reasonable doubt, the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor in sentencing it must establish the presence of such factor on the balance of probabilities: E**nvironment P**rotection A**uthority v Sydney Water Corporation [2019] NSWLEC 100 at [131].
The primary factor to be considered in sentencing is the objective seriousness of the offences. The objective seriousness of the offence fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations can never produce a punishment that does not reflect the objective seriousness of the offence: E**nvironment P**rotection A**uthority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [139]-[140].
The objective gravity of the offence is to be judged by 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 (2008) 163 LGERA 71; [2008] NSWLEC 280 at [22].
3 Objects of Act
The objects of this Act are as follows—
…
(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),
(f) to apply sound scientific knowledge to achieve a fully functioning and productive landscape,
These relevant objects reinforce the public protective nature of the legislative regime.
Each of the offences are strict liability offences and carry the maximum penalty for an individual in the circumstances of these charges of $500,000 for each offence. The strict liability nature of the offences and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offences and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 82 LGERA 21; (1993) 32 NSWLR 683 at 698.
The Defendants have agreed on an Amended Agreed Statement of Facts on Harm that relates to the extent of harm for each of the offences. The Amended Agreed Statement of Facts on Harm has been considered in the determination of the harm caused or likely to be caused by the commission of each of the offences.
The Prosecutor contended that for the clearing in each charge the environmental harm was substantial.
The Defendants submitted that in determining the environmental harm the following matters are relevant:
The scale of clearing is just one factor informing the objective seriousness of the offences: Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 *(*Brummell) at [38];
The Court should also be cautious in relying on the size of the land cleared as the prevailing factor in the assessment of objective seriousness, given the LMC permitted a broad range of clearing on the property across all tranches, subject to conditions;
The reduction in vegetation integrity was modest and the biodiversity scores across the tranches remains “relatively high”. This indicates that the soil’s seed bank is present and that rehabilitation can occur unassisted if grazing is managed in accordance with an agreed plan such as an inevitable remediation order; and
The actual harm was limited to invasive native species.
To the extent that the Prosecutor contends that there was potential harm to Kurrajong trees, the Court would not accept such a matter as an aggravating feature of the offending as on the evidence the Court could not be satisfied beyond reasonable doubt how many Kurrajong trees were potentially harmed. The potential harm to Kurrajong trees to an unknown extent does not meaningfully elevate the seriousness of the offences.
The Defendants generally acknowledge that there was actual harm to the environment as a consequence of the offending in that the reduction in habitat values in each cleared tranche resulted in decreased ecosystem health, habitat quality and reduced resilience. Several vulnerable or endangered species have the potential to use the property as habitat.
Having regard to the evidence in the Amended Agreed Statement of Facts on Harm I make the following findings as to the harm caused or likely to be caused by the commission of the offences:
Charge 1:
(a) Cleared a total of 224.15 hectares of native vegetation. (b) The treatment 2 method was used to clear the whole of the area which comprised of four PCTs:
(i) 5.33 hectares of Poplar Box – White Cypress Pine – Wilga – Ironwood shrubby woodland on red sandy-loam soils in the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion; (ii) 215.02 hectares of Poplar Box – Gum Coolabah – White Cypress Pine shrubby woodland mainly in the Cobar Peneplain Bioregion; (iii) 18.8 hectares of Gum Coolabah woodland on sedimentary substrates mainly in the Cobar Peneplain Bioregion; and (iv) 123.05 hectares of Poplar Box grassy woodland on flats mainly in the Cobar Peneplain Bioregion and Murray Darling Depression Bioregion.
(c) Approximately 15,691 native trees with a DBH exceeding 30cm were cleared including approximately 11,208 tree hollows. (d) The clearing caused both actual and potential harm to native vegetation.
(a) Cleared a total of 497.73 hectares of native vegetation. (b) At least 367 hectares was cleared using treatment 1, at least 128.91 hectares was cleared using treatment 2 and at least 1.82 hectares was cleared using treatment 4. (c) The cleared area comprised of six PCTs:
(i) 21.25 hectares of White Cypress Pine – Poplar Box woodland on foot slopes and peneplains mainly in the Cobar Peneplain Bioregion; (ii) 394.4 hectares of Poplar Box – Gum Coolabah - White Cypress Pine shrubby woodland mainly in the Cobar Peneplain Bioregion; (iii) 18.8 hectares of Gum Coolabah woodland on sedimentary substrates mainly in the Cobar Peneplain Bioregion; (iv) 34.92 hectares of Poplar Box grassy woodland on flats mainly in the Cobar Peneplain Bioregion and Murray Darling Depression Bioregion; (v) 1 hectare of Green Mallee – White Cypress Pine very tall mallee woodland on gravel rises mainly in the Cobar Peneplain Bioregion; and (vi) 123.05 hectares of Dwyer's Red Gum – Currawang grassy low woodland of the central western plains of NSW.
(d) Approximately 34,841 native trees with a DBH exceeding 30cm were cleared including approximately 24,887 tree hollows. The vegetation cleared potentially included both vulnerable and endangered flora species.
(a) Cleared a total of 1,052.94 hectares of native vegetation. (b) An area of 356.55 hectares was cleared using treatment 1 and 696.39 hectares was cleared using treatment 2. (c) The cleared area comprised of five PCTs:
(i) 63.14 hectares of White Cypress Pine – Poplar Box woodland on foot slopes and peneplains mainly in the Cobar Peneplain Bioregion; (ii) 619.43 hectares of Poplar Box – Gum Coolabah – White Cypress Pine shrubby woodland mainly in the Cobar Peneplain Bioregion; (iii) 148.7 hectares of Gum Coolabah woodland on sedimentary substrates mainly in the Cobar Peneplain Bioregion; (iv) 219.5 hectares of Poplar Box grassy woodland on flats mainly in the Cobar Peneplain Bioregion and Murray Darling Depression Bioregion; and (v) 2.17 hectares of Dwyer's Red Gum – Currawang grassy low woodland of the central western plains of NSW.
(d) Approximately 73,706 native trees with a DBH exceeding 30cm were cleared including approximately 52,647 tree hollows. The vegetation cleared potentially included both vulnerable and endangered flora species.
(a) Cleared a total of 315.21 hectares of native vegetation. (b) An area of 261.85 hectares was cleared using treatment 1 and 53.36 hectares was cleared using treatment 2. (c) The cleared area comprised of six PCTs:
(i) 2.82 hectares of Poplar Box – White Cypress Pine - Wilga – Ironwood shrub woodland on red sandy-loam soils in the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion; (ii) 321.46 hectares of Poplar Box – Gum Coolabah - White Cypress Pine shrubby woodland mainly in the Cobar Peneplain Bioregion; (iii) 22.4 hectares of Gum Coolabah woodland on sedimentary substrates mainly in the Cobar Peneplain Bioregion; (iv) 51.67 hectares of Poplar Box grassy woodland on flats mainly in the Cobar Peneplain Bioregion and Murray Darling Depression Bioregion; (v) 1.56 hectares of Green Mallee – White Cypress Pine very tall mallee woodland on gravel rises mainly in the Cobar Peneplain Bioregion; and (vi) 1.01 hectares of Dwyer’s Red Gum – Currawang grassy low woodland of the central western plains of NSW.
(d) Approximately 22,065 native trees with a DBH exceeding 30cm were cleared including approximately 15,761 tree hollows. The vegetation cleared potentially included both vulnerable and endangered flora species.
(a) Cleared a total of 306.96 hectares of native vegetation. (b) An area of 300.55 hectares was cleared using treatment 1 and 6.41 hectares was cleared using treatment 2. (c) The area comprised of three PCTs:
(i) 43 hectares of Poplar Box – Gum Coolabah – White Cypress Pine shrubby woodland mainly in the Cobar Peneplain Bioregion; (ii) 257.4 hectares of Gum Coolabah woodland on sedimentary substrates mainly in the Cobar Peneplain Bioregion; and (iii) 6.56 hectares of Poplar Box grassy woodland on flats mainly in the Cobar Peneplain Bioregion and Murray Darling Depression Bioregion.
(d) Approximately 21,487 native trees with a DBH exceeding 30cm were cleared including approximately 15,348 tree hollows. The vegetation cleared potentially included both vulnerable and endangered flora species.
I do not take into consideration a potential impact upon the species of Kurrajong trees as I accept the Defendants’ submission that upon the evidence, I am unable to be satisfied beyond reasonable doubt as the potential for such asserted impact.
Having regard to the nature of the clearing in each charge, I find that the environmental harm consequent upon the clearing comprised both actual and potential harm. Having regard to the nature of the harm identified and the extent of clearing and the particular impacts of the clearing in each charge, I find that the environmental harm in:
Charge 1 was substantial;
Charge 2 was substantial, and the harm was greater than that in Charge 1 having regard to: the number of hollow bearing trees cleared; and the use of treatment 2 (which produced a more extensive cleared landscape with little residual vegetation);
Charge 3 was substantial, and the harm was the greatest of all of the charges having regard to: the extent of the clearing; the number of hollow bearing trees cleared; the number of trees removed; and the use of treatment 2 (which produced a more extensive cleared landscape with little residual vegetation);
Charge 4 was substantial; and
Charge 5 was substantial.
The extent of the harm in each charge elevates the objective seriousness of the offending.
The Prosecutor identified that the aggravating level of harm as identified in s 21A(2)(g) of the CSP Act were relevant to sentencing. The Defendants submitted that the harm identified in these cases would not be an aggravating factor as the harm was not significantly more deleterious than the ordinary consequence of the commission of the offence.
I have identified the harm as required by s 13.12(1)(a) of the BC Act. In identifying that harm, I have taken into account the extent, nature of vegetation cleared and the manner of clearing. Both the ordinary consequence of the clearing (for example, the loss of vegetation) and the deleterious effect over and above the ordinary consequences (for example, the manner of clearing and the impact on reliant fauna species) has been assessed and therefore it is not necessary for the specific provision of s 21A(2)(g) of the CSP Act to be considered as to do so would be to take into account twice the same sentencing factors.
The Prosecutor submitted that there appeared to have been no attempt by the Defendants to ameliorate the risk of harm caused by the clearing.
The legislative regime does not contain a total prohibition on the clearing of native vegetation. Rather, clearing may be carried out in accordance with statutory exemptions. It was open to the Defendants to instruct both contractors to clear in strict compliance with the LMC. The Defendants did not provide the LMC to WEM and the evidence is to the effect that Mr Vassallo was unconcerned about the LMC when JA Scott raised the breach of clearing laws with him on 23 March 2023. The failure of the Defendants to take reasonable positive steps to ensure that the clearing was only as permitted under the LLS Act is a significant factor elevating the objective gravity of the offences in the circumstances.
The Defendants submitted that they did in fact take some steps to ameliorate the risk of harm by directing JA Scott not to clear Kurrajong trees, to retain the “bigger trees” and to leave a buffer zone around the powerlines.
I accept as a matter of principle that the Defendants could have either complied with the terms of the existing LMC that permitted a degree of clearing or sought and obtained a different permission. This observation is, in effect, contending that the Defendants could have ameliorated the impact of the offending by not offending. To the extent that the Defendants are being sentenced for carrying out clearing without an approval for such clearing I do not take this suggestion into account as a matter that elevates the objective seriousness of the offending.
The Prosecutor submitted that the extent of foreseeability of harm is a relevant objective circumstance of the offence: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [50].
In the present case, the Court should be satisfied that the risk of harm associated with clearing very large sections of native vegetation was self-evident. It is submitted that a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the clearing.
The Defendants accepted that the harm caused by the offending was foreseeable but cautioned that the extent to which such factor may elevate the objective harm should be considered in the context of the fact that the LMC did permit an extent of clearing and the offending relates to the clearing beyond the scope of the LMC.
I accept that the harm caused or likely to be caused by the offending was foreseeable and I take this factor into account as a matter that elevates the objective seriousness of the offending.
The Prosecutor submitted that the clearing was carried out by the Defendants by directing others. The Defendants had complete control over the cause of the harm.
The Defendants accepted that Mr Vassallo had predominant control over the causes that gave rise to the offending. As to Mrs Vassallo it was submitted that she had a very limited role in both the planning phase of the clearing, the carrying out of the clearing, and the supervision of the clearing. Her moral culpability is less than that of Mr Vassallo, despite both being criminally liable for the offences.
I accept the Prosecutor’s submissions as to the control evinced by the evidence as it related to Mr Vassallo. It is clear that the impetus for the clearing was Mr Vassallo’s desire: the directions as to the clearing were given by him, and to the extent that there was supervision of contractors, that was undertaken by him. I consider this to be a matter that would increase the objective seriousness of Mr Vassallo’s offending.
I accept the Defendants’ submission with respect to Mrs Vassallo. Her role appeared to be limited to more of an administrative role wherein she had conversations with officers as to the effectiveness of the LMC upon transfer of the land, and she emailed a copy of the LMC to JA Scott. Apart from that role she attended the Subject Land irregularly during the Relevant Period and played no part in the directions given to the contractors. I consider that Mrs Vassallo’s control over the causes was not such that it would elevate the objective seriousness of the offending in the charge against her.
The Prosecutor submitted that the aggravating factor provided by s 21A(2)(n) of the CSP Act must not be taken into account if the degree of planning was an “inherent characteristic” of the offence, but may be taken into account where the degree of planning exceeds that which is inherently characteristic of the offence: R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97 at [37].
The expression “organised criminal activity” in s 21A(2)(n) of the CSP Act includes activity that is carried out by just one person, concerning which that person engages in planning or preparation: Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353 at [25]. Offences carried out over a sufficiently long period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of the section, even if the organisation is not complicated: NCR Australia v Credit Connection Pty Ltd [2005] NSWSC 1118 at [76].
In Secretary, Department of Planning and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54, Preston CJ of LEC at [44] found that the clearing of 5.04 hectares of native vegetation was more serious because it was “premediated and planned” (though his Honour did not refer to s 21A(2)(n) of the CSP Act):
44 … I find proven beyond reasonable doubt, that Ms Khouzame's commission of the offence was premeditated and planned. This is evident from the nature, scale, extent and duration of the clearing undertaken at the direction of Ms Khouzame. The clearing of native vegetation on the property was not something Ms Khouzame could do on the spur of the moment. It needed to be planned and organised. She needed to engage people with large plant and equipment to schedule and undertake the large-scale clearing she proposed.
The Prosecutor contended that, in the present case, the following matters supported a finding beyond reasonable doubt that the offending was planned beyond that which is inherent in the offence:
The Defendants engaged contractors to carry out the clearing;
Bulldozers and machinery were used to clear the native vegetation;
The scale and size of the clearing;
The Defendants sought legal advice in respect of the proposed clearing; and
Mrs Vassallo made enquiries with LLS about the extent of cultivation and cropping that could be undertaken on the property.
The Defendants submitted that there should be no such finding. While the Court might accept that submission in that the clearing obviously had some inherent planning to it, that factor adds little to this sentencing exercise. The aggravating factor in s 21A(2)(n) of the CSP Act exists for a number of reasons. First, offending with a high degree of planning and sophistication is often harder to detect, investigate, and prosecute. This is not such a case. The planning did not make the offending harder to detect, investigate or prosecute. The scale of the planned clearing had the opposite effect; the clearing is obvious. Second, offending with a high degree of planning may evince a heightened degree of moral culpability due to the calculatedness of the offence. The degree of planning may reveal that nefarious intention, such as in the case of calculated acts of planned violence. This is not such a case. Hiring land clearers to clear land says very little, if anything, about the offenders’ culpability.
In contrast, this is a case in which both offenders are unsophisticated poultry farmers. Their “plan” was ill-conceived and limited to hiring professional land clearers. They are not local to the area and are not crop farmers. They engaged in a rudimentary business agreement with people whose job it was to clear land.
I do not accept that conduct is capable of being characterised as a part of a planned or organised criminal activity. Each of the indicia to which the Prosecutor relies on are factors that are inherent in the nature of the offending. The fact that the work required machinery or the engagement of contractors was largely a consequence of the nature of the clearing rather than evidence of a planned criminal activity.
However, in this case, even if I was satisfied that there was an element of a planned or organised criminal activity I would not consider it appropriate to take it into account as an aggravating factor of the offending as each of the factors that would identify the activity as planned or organised is a factor that I have already taken into account in determining the objective seriousness of the offending, including: the large area of clearing; the large amount of vegetation cleared; the clearing treatment adopted and the times over which the offending occurred. To consider these factors again in the context of this allegation would be to double count those factors in the determination of the sentence in these matters.
The Prosecutor submitted that an offence against s 60N of the LLS Act is an offence of strict liability. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [123]; Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [70]. Offences committed deliberately are more serious than offences committed by inadvertence and error: Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 at [57].
In Brummell Preston CJ of LEC at [50]-[53] described the difference between recklessness and negligence in the context of unlawful clearing under the predecessor to the LLS Act, the N**ative V**egetation Act 2003 (NSW):
50 … The heightened mental states of negligence or recklessness apply to the external element of the offence of clearing native vegetation under s 12(1) of the NV Act of the absence of lawful authority in the form of a development consent or a property vegetation plan under the NV Act.
51 A critical difference between the two mental states is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).
52 Recklessness refers to the state of mind of the offender who, in clearing native vegetation, is aware of a risk that the particular consequence or circumstance, that the clearing will be done except in accordance with such lawful authority, is likely to result. The offender is reckless when he or she has knowledge or foresight of the likelihood of the consequence or circumstance occurring. The word “likely” conveys “the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent”: Boughey v The Queen (1986) 161 CLR 10 at 21.
53 Negligence, in contrast, assesses the offender’s conduct not be reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances. In the context of s 12(1) of the NV Act, negligence refers to whether a hypothetical reasonable person in the position of the offender would have known or foreseen that the consequence or circumstance, that the clearing will be done except in accordance with the lawful authority of a development consent or a property vegetation plan, is likely to result. The issue is to be decided on an objective basis. What is to be considered is whether the risk of this consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGERA 320 at 321, 324, 325.
The Prosecutor submitted that the evidence established that the clearing was committed recklessly by both Defendants.
With respect to Mr Vassallo’s conduct the Prosecutor relied upon the following matters to support a finding that he acted recklessly:
Mr Vassallo instructed JA Scott as to the specific areas to be cleared. He also instructed that Kurrajong trees and “bigger trees” were not to be cleared. After agreement was reached about the cost of the clearing, Mr Vassallo sent JA Scott a copy of the LMC;
In December 2022, the Defendants engaged WEM. Mr Vassallo advised WEM that there was a clearing permit to cover the Subject Land. The LMC was not provided to WEM. Mr Vassallo told WEM to retain the Kurrajong trees and some large trees. WEM did not ask Mr Vassallo for a copy of the LMC;
During a voluntary interview with authorised officers on 31 March 2023, Mr Vassallo said that he was unaware of the activities that could be undertaken on “Category 2” land and that he had not been in recent contact with LLS in relation to the clearing work. He said he had been told by his solicitor that the LMC continued to apply to the Subject Land, but the solicitor did not inform him of what vegetation could be cleared; and
Mr Vassallo’s claim that he was not aware of the contents of the LMC and thought it permitted him to clear but “didn’t know what vegetation [he] was supposed to clear” does not sit comfortably with his conduct in obtaining legal advice about the LMC, nor with the fact he had possession of the LMC and its contents were unambiguous. The only reasonable inference is that Mr Vassallo was aware of the importance of the LMC to his ability to lawfully clear the land because he had read it. It is also an agreed fact that on or shortly after 12 May 2021 Mr Vassallo sent JA Scott a copy of the LMC, which also calls into question his account to investigators on 31 March 2023 that he was not aware of the contents. Mr Vassallo then represented to WEM that there was a clearing permit to cover the Subject Land.
In the Prosecutor’s submission, it is open to find that Mr Vassallo was reckless as to the fact the clearing was unlawful. He knew that any clearing that was not in accordance with the LMC was without lawful authority. Mr Vassallo instructed JA Scott in terms that departed from the LMC and those instructions were in any event so broadly worded that he must have been aware of a real and not remote chance his instructions, if implemented, would contravene the LMC. He proceeded in the face of that known risk and continued to do so for each charge period.
Further, Mr Vassallo’s engagement of WEM without providing the LMC, while asserting merely that “there was a clearing permit to cover the Property” demonstrated a conscious disregard of the real and not remote risk that the clearing would be unlawful, satisfying the mental state of recklessness, and aggravating each of the offences he is charged with. It may also be noted that clearing by WEM continued for over a year after the inspection by (and conversation with) investigators on 31 March 2023 (comprising Charges 2 and 3), during which time he did not seek any approval, engage with the LLS or obtain any advice about the LMC. This further supports a finding of recklessness (on Charges 2 and 3).
If, contrary to the Prosecutor’s submission, the Court does not accept that Mr Vassallo had a reckless state of mind, in the alternative the Prosecutor submits that at the time of the clearing a reasonable person in Mr Vassallo’s position would have known or foreseen the consequence that the clearing was to be carried out without lawful authority. A reasonable person would have ensured that the contractors carried out the clearing in accordance with the LMC and would not have given such open-ended instructions to JA Scott and WEM. Mr Vassallo’s at least negligent state of mind continued throughout the clearing and aggravates each of the offences he is charged with.
With respect to Mrs Vassallo’s state of mind the Prosecutor relied upon the following to support a finding that she was reckless:
The Court would be satisfied that Mrs Vassallo was aware at all times of the LMC and the extent of clearing that could be undertaken on the Subject Land pursuant to it. It is an agreed fact that on 16 October 2020, Mrs Vassallo telephoned LLS and inquired if the LMC transferred to a new owner upon sale. Mrs Vassallo also inquired about the extent of cultivation and cropping that could be undertaken on the Subject Land, obligations to do the clearing, allowable activities and what additional options were available;
LLS officer, Paul Nicholls, explained to Mrs Vassallo that the LMC transferred after the sale of a property and talked through the conditions of the LMC with her. Mr Nicholls also explained the key aspects of the Native Vegetation Code and recommended that “they stick with the LMC”, as it was his opinion that this was the most feasible option in that landscape; and
On 24 August 2021, Mrs Vassallo emailed JA Scott a copy of the LMC and included advice provided by a solicitor that the LMC was transferrable from the previous occupiers to subsequent landholders under s 60Y(10) of the LLS Act.
Mrs Vassallo’s conduct is properly characterised as reckless. She made specific inquiries of LLS as to whether the LMC applied to her and was expressly advised that it did, was taken through the conditions and limitations on clearing, and was told to “stick with the LMC”. She subsequently confirmed in writing that the LMC transferred under s 60Y(10) of the LLS Act. Following her conversation with Mr Nicholls, Mrs Vassallo was apprised of the knowledge and foresight that any clearing that was not in accordance with the LMC was likely to be without lawful authority. With this knowledge, Mrs Vassallo directed contractors to clear the land but did not provide instructions to the contractors that they comply with the LMC. This demonstrated a conscious disregard of a real and not remote risk that the clearing would be unlawful, satisfying the mental state of recklessness, and aggravating each of the offences she is charged with.
The Defendants accepted that the state of mind of the offenders may be a relevant consideration in the determination of the objective seriousness of the charges and the applicability of the principles outlined in Brummell.
The Defendants submitted that the following evidence would not support the finding beyond reasonable doubt that either Defendant had acted recklessly but it was accepted that it would be open to find that the Defendants’ conduct was negligent:
There was a valid LMC in place at the time of the clearing;
Mr Vassallo sent JA Scott the LMC which would indicate that Mr Vassallo believed in its lawful effect;
Mr Vassallo advised WEM that there was a permit – again indicating that he believed that there was a lawful order to carry out the clearing;
Mr Vassallo had been told by his solicitor that the LMC continued to apply;
Mr Vassallo was unaware of the contents of the LMC but thought it permitted him to clear but he “didn’t know what vegetation he was supposed to clear”; and
Mr Vassallo asked the authorised officer to explain the terms of the LMC to him.
The Court would find that Mr Vassallo was an evidently unsophisticated offender. The Prosecutor bears the onus of proving recklessness to the criminal standard. It must prove that he believed or suspected that the clearing of native vegetation may be unlawful but nevertheless proceeded to undertake the clearing without making further inquiries. The Court would not find that Mr Vassallo possessed that necessary foresight to constitute the high standard of recklessness beyond reasonable doubt.
It is conceded, however, that it would be open to the Court to find that Mr Vassallo was negligent, in that a reasonable person in the position of Mr Vassallo would have taken greater steps than Mr Vassallo did in the circumstances.
In relation to Mrs Vassallo, the agreed evidence is that:
There was a valid LMC in place at the time of the clearing;
Mrs Vassallo called LLS and enquired if the LMC transferred to her property, and was told that it did;
On 24 August 2021, Mrs Vassallo sent an email to JA Scott, evidently indicating that she thought the permit authorised the clearing; and
Mrs Vassallo was not the offender who primarily directed JA Scott.
While Mrs Vassallo may have been told that she should “stick with the LMC”, there is no evidence as to her comprehension of its terms. She was not interviewed by authorised officers, so there is limited evidence that she believed or suspected that the clearing was unlawful and proceeded regardless. Her conduct towards JA Scott indicates that she believed in the authority the LMC conferred to carry out the clearing.
The Court would not find that she was reckless. It is, however, open to the Court to find that she was negligent in the circumstances.
The lesser state of mind of the offenders, being neither intentional or reckless, places this offending in the mid-range of objective seriousness despite the scale of the clearing.
I accept the submissions of the Defendants. With respect to the evidence as it relates to Mr Vassallo, I accept that he had knowledge of the existence of the LMC and the need to comply with its terms. His understanding of the importance of the LMC was evidenced by his attention to ensuring that, upon his purchase of the land, he would obtain the benefit of the LMC. In addition, by providing a copy of the LMC to the contractor the importance of that LMC in the context of the clearing was also apparent.
I also accept that Mr Vassallo had not read or understood the terms of the LMC. Mr Vassallo both in his written and oral evidence stated that he was unable to read and write. In the passages below I identify Mr Vassallo’s educational and vocational history. I accept his evidence. In order for me to be satisfied that Mr Vassallo had acted recklessly it is necessary that I undertake an assessment of his subjective state of mind. In this case, by not having read the LMC the Prosecutor was unable to establish that Mr Vassallo possessed that necessary foresight to constitute the high standard of recklessness beyond reasonable doubt. That is, he would be unable to know that the clearing he arranged and that was being undertaken did not conform with the terms of the LMC. Accordingly, I do not find Mr Vassallo’s conduct to be reckless.
However, I do find that Mr Vassallo’s conduct was negligent in that objectively a reasonable person in his position would have known or foreseen that the consequence or circumstance that the clearing will be done except in accordance with the lawful authority of a development consent or a property vegetation plan, is likely to result. By not making himself familiar with the terms of the LMC there was a real risk of unlawful clearing. Whilst I accept that Mr Vassallo cannot read, he made it clear in his evidence that he has adapted to this limitation in his life and the conduct of his business affairs. He has utilised technology including the “read aloud” function when digital documents, texts and the like are sent to him. He also ensures that where it is necessary that he is aware of the content of written material he has it read to him by someone, usually Mrs Vassallo. This adaptation has operated sufficiently to enable him to conduct his personal and business affairs. It is apparent that he understood the importance of the LMC (as identified above) and sought legal advice to ensure the continued operation of the LMC. Those factors make it clear that notwithstanding the inability to read the LMC it would be foreseeable to a reasonable person that the terms of the LMC would dictate the extent of the clearing and failing to take any steps to obtain an understanding of the terms and limitations of the LMC would not ensure that the clearing was carried out lawfully, or to put it conversely, would likely lead to work being carried out unlawfully.
I find that Mr Vassallo’s state of mind influences the objective seriousness of the offending. By acting negligently with respect to the undertaking of the clearing the objective seriousness of the offending is increased.
As to Mrs Vassallo, I also accept the submissions of the Defendants. The degree of subjective knowledge necessary to establish recklessness is not satisfied on the evidence of this case. Mrs Vassallo stated in her oral evidence that the Subject Land, whilst she was a landowner, was really her husband’s pursuit. She attended the homestead infrequently to perform domestic duties but was otherwise unconnected with what was occurring on the farm. For those reasons, I accept that her conduct was not reckless.
However, for the same reasons I identified with respect to Mr Vassallo I find that Mrs Vassallo’s conduct was negligent. She was aware of the existence and importance of the LMC yet she took no steps to ascertain its terms and no steps to ascertain or ensure that the clearing on the land was being undertaken in accordance with its terms.
I find that Mrs Vassallo's state of mind influences the objective seriousness of the offending. By acting negligently with respect to the undertaking of the clearing the objective seriousness of the offending is increased.
Having regard to the matters detailed above, I find the objective seriousness of the offences that relate to Mr Vassallo to be that as set out below:
Charge 1 – high end of low range of objective seriousness;
Charge 2 – low end of mid-range of objective seriousness;
Charge 3 – mid-range of objective seriousness;
Charge 4 – high end of low range of objective seriousness; and
Charge 5 – high end of low range of objective seriousness.
Having regard to the matters detailed above, I find the objective seriousness of the offences that relate to Mrs Vassallo to be that as set out below:
Charge 1 – low range of objective seriousness;
Charge 2 – low range of objective seriousness;
Charge 3 – high end of low range of objective seriousness;
Charge 4 – low range of objective seriousness; and
Charge 5 – low range of objective seriousness.
Mr Vassallo deposed in his affidavit that he took responsibility for his actions and that he would not repeat his actions in the future. In addition, he acknowledged that it was likely that the Prosecutor would make a remediation order to remediate the harm caused by the offending conduct, and he stated his intention to adhere to any such order and repair the damage caused.
Mrs Vassallo also deposed in her affidavit that she took responsibility for her conduct and that she would not repeat the conduct in the future. She too acknowledged the prospect of a remediation order being made and her intention to adhere to it. In addition, she stated that she was ashamed and regretful of her conduct and had a desire to take all steps to remediate the land.
I accept that each Defendant has shown genuine contrition and remorse for their conduct. They both indicate an understanding of the criminality of the offending and the adverse consequences of the offending. In addition, the commitment to repairing the damage caused speaks strongly in their favour.
I take the Defendants’ contrition and remorse into account as a mitigating factor in sentencing.
I deal with the three considerations together as, on the facts of this case, the same considerations inform a consideration of each factor and to ensure that their mitigating benefit derived from my consideration is not double counted.
The Defendants were each born in Australia to Maltese immigrants and each returned with their families to Malta at an early age. The Defendants were educated in Malta but have minimal formal education. Mr Vassallo does not read either English or Maltese. The Defendants each returned to Australia in their teens.
Upon return to Australia the Defendants met and married as young adults and had a family. The Defendants worked diligently first as market gardeners and later as chicken farmers. The family worked long hours in their business and to care for and educate their children. They continue the chicken farming operations to the present date.
The Defendants purchased the Subject Land as a “hobby farm” to give them an opportunity to enjoy country life.
The commitment to their business and their family reflects well upon the characters of each of the Defendants. I take this into account as a mitigating factor in sentencing. That character also informs the confidence I expressed in their expressions of contrition referred to above. In the totality of the circumstances, I accept that the Defendants are unlikely to reoffend in the future and that they have good prospects of rehabilitation. I take this into account as a mitigating factor in the determination of sentence.
The Prosecutor accepts that the Defendants’ pleas of guilty were entered on an early occasion. It is open to the Court to accept that the utilitarian value of the plea can be assessed up to 25%: R v Thomson*;* R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 per Spigelman CJ at [160] (with Wood CJ at CL, Foster AJA, Grove and James JJ agreeing).
In light of the early pleas of guilty and the utilitarian value of the pleas I find that each Defendant should be afforded the full discount of 25%.
Having regard to my findings as to the individual characters of the Defendants and the likelihood of reoffending I do not consider that an element of specific deterrence is warranted in the sentence.
I do accept that in environmental crime there is an element of public interest in the denunciation of conduct such as the conduct the subject matter of these charges to ensure general deterrence. I take this into consideration in the determination of the appropriate sentence for each charge.
I note that the Prosecutor submitted that in the present case the important objectives of general and specific deterrence would be served by the proposed publication orders for both Defendants. In light of that appropriate concession, and in light of the fact that I propose to make the publication order as sought by the Prosecutor (and not opposed by the Defendants) to the extent that general deterrence is warranted I accept that such will be met by the making of the publication order.
The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to ensure that there is a consistent approach to penalty. This approach, however, must also acknowledge that care must be taken in comparing cases where the circumstances of and facts relating to the offences may be quite different: R v Visconti [1982] 2 NSWLR 104; Axer at [365].
Whilst I was directed to a number of decisions of this Court dealing with native vegetation clearing, I accept the Prosecutor’s submission that with respect to each of the matters to which I was referred, the sentence in each matter turned upon the particular facts of each case and do not provide a numerical guide or tariff from which the Court can extrapolate a sentencing range for the present matter.
I note that the Prosecutor seeks an order that its costs be paid and that there is yet no agreement as to the amount of such costs. The parties agree that the amount of such costs will not be insubstantial.
Whilst I take account of the agreement to pay the Prosecutor’s costs in determining the sentence in this matter, I do not consider that it should be a matter for a material discount in the circumstances of this case.
The appropriate sentence is to be derived by an “instinctive synthesis” of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
Taking into account the objective seriousness of the charges and the factors identified above, I have determined that the appropriate sentence in this case includes the imposition of a monetary penalty (in addition to the publication order and the additional orders relating to legal costs) in the following amounts:
Mr Vassallo:
(a) Charge 1 – $112,500; (b) Charge 2 – $127,500; (c) Charge 3 – $165,000; (d) Charge 4 – $112,500; and (e) Charge 5 – $112,500.
(a) Charge 1 – $37,500; (b) Charge 2 – $56,250; (c) Charge 3 – $63,750; (d) Charge 4 – $37,500; and (e) Charge 5 – $37,500.
The principle of totality is a relevant sentencing principle in the present case where both offences with which each of the Defendants has been charged and which they have pleaded guilty arise from the same identical facts and circumstances.
The application of the principle of totality, particularly in environmental offending, has recently been the subject of consideration in Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215. Wherein it was stated at [156]-160]:
156 There may be flexibility in how to apply totality, but the principle itself is constant. The Court explained in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 (per Wilson, Deane, Dawson, Toohey and Gaudron JJ) at 63 (adopting a statement from DA Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) at 56-57) as follows:
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
157 Totality is usually considered in the context of accumulation and concurrency of prison sentences but it has no lesser application in respect of fines (Camilleri’s Stock Feeds at 704, EPA v Barnes [2006] NSWCCA 246 at [43]-[50]).
158 In circumstances in which the offending involves multiple offences being committed by the one offender, it remains necessary for the sentencing judge, once the particular fine for each offence has been determined, to stand back and assess whether the total of the fines reflects the total criminality of all of the offending conduct.
159 In EPA v Barnes, the Court (per Kirby J, Mason P and Hoeben J agreeing) said at [49]:
“Dealing with these arguments, the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence.”
160 The principle of totality is at least in part based on the need to ensure that the sentences inflicted for individual crimes do not lead to a crushing result (Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 (“Postiglione”) per McHugh J at 308). Of course, its application must also not detract from the necessity to ensure that the punishment imposed on an offender in respect of each offence is an appropriate reflection of the gravity of the offending conduct.
167 The problem is that when sentencing each offender for multiple offences, her Honour has proceeded on the basis that totality only applies to offending arising at the same time and place. Her Honour’s finding that the offending at the different premises was not coincident could only mean that it happened at different times and places and thus did not arise out of the same course of conduct.
168 In my view, the application of totality is not so limited. It may apply to offences committed over a long period at different places and even involving different victims. Again, this must be apparent from a wide range of cases including cases in which there may be multiple victims and the offences happened at different times and/or places. The Court is required to stand back and assess the total of all of the sentences to consider whether the total is just and appropriate.
169 In Murray v R [2024] NSWCCA 107 at [58], Yehia J explained (with Bell CJ and Hamill J agreeing) that the principle of totality is not restricted to sentences for offences that form part of a connected or contemporaneous series of events.
170 Further, all of the offending was of the same or a similar type carried out in a similar way with the same purpose. Having achieved his aims at one property, Mr Littore did the same thing at another property. If the appropriate punishment was imprisonment, he would have been sentenced by way of indicative sentences for all the offences and then the determination of an aggregate, reflecting the total time in prison.
171 The same approach must be taken to the imposition of fines.
172 In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Gageler, Nettle and Gordon JJ observed at [64] (footnotes omitted):
“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences.”
173 Her Honour was required to fix a sentence in respect of each of the four offences with which each of the appellants was convicted and then look at the total of those four fines and ensure that the total was just and appropriate having regard to all of the criminality involved. Only by doing that could her Honour assess whether the total amount of the fines reflected the appropriate punishment and ensure that the total amount payable by each appellant was not disproportionate or crushing.
Accordingly, I adopt the same principles in consideration of the application of the principle of totality to the charges in these proceedings.
As outlined above, the elements of each offence are co-incident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case.
The primary difference between the charges is the dates upon which the clearing was undertaken. I accept the Defendants’ submission that whilst the proceedings relate to ten charges (being five charges for each Defendant) the criminal conduct was largely comprised by the single intention to clear the totality of the Subject Land in the manner in which it was undertaken. The fact of the ten charges leaves the Defendants, in essence, open to a cumulative maximum penalty ten times that which would be the case if the conduct was comprised in a single event with a single Defendant. To treat the ten charges as entirely separate and unconnected in that context would result in a total sentence that was disproportionate to the criminality of the offenders.
I also accept the Defendants’ submission that the offenders, being a married couple each to an extent bear the financial burden of the other’s offending. To that extent, and in recognition of the financial imposition on each individual, the impact of the sentence when measured against the criminal conduct of each individual will be not representative of the criminality unless consideration is given to this factor.
Having regard to the principle of totality with respect to the criminality of the two individual Defendants I consider that it would be appropriate to reduce the penalty in each matter by 50%.
Accordingly, I determine the appropriate sentence in each case to be:
Mr Vassallo:
(a) Charge 1 – $56,250; (b) Charge 2 – $63,750; (c) Charge 3 – $82,500; (d) Charge 4 – $56,250; and (e) Charge 5 – $56,250.
The total of the fines being: $315,000.
(a) Charge 1 – $18,750; (b) Charge 2 – $28,125; (c) Charge 3 – $31,875; (d) Charge 4 – $18,750; and (e) Charge 5 – $18,750.
The total of the fines being: $116,250.
13.25 Additional orders
(1) Orders The court may do any one or more of the following—
(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its consequences and any other orders made against the person,
I accept in this case that it is appropriate to make an order for publication of the sentence. The publication order serves to provide for public deterrence and is such that in this case will serve that purpose without the need to further increase the fines to effect that sentencing purpose.
The Prosecutor and the Defendants have agreed on the form of the publication order as set out in Annexure A hereto and I will make orders to give effect to that publication order.
The Prosecutor seeks an order that one half of any monetary penalty imposed by the Court be paid to the Prosecutor pursuant to s 122 of the Fines Act 1996 (NSW) (Fines Act).
Section 122 of the Fines Act provides:
122 Payment of share of fine to prosecutor
(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).
In proceedings 2025/00056036 the Court makes the following orders:
The Defendant, John Vassallo, is convicted as charged;
The Defendant, John Vassallo, is fined the sum of $56,250; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, John Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056037 the Court makes the following orders:
The Defendant, John Vassallo, is convicted as charged;
The Defendant, John Vassallo, is fined the sum of $63,750; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, John Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056038 the Court makes the following orders:
The Defendant, John Vassallo, is convicted as charged;
The Defendant, John Vassallo, is fined the sum of $82,500; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, John Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056039 the Court makes the following orders:
The Defendant, John Vassallo, is convicted as charged;
The Defendant, John Vassallo, is fined the sum of $56,250; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, John Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056040 the Court makes the following orders:
The Defendant, John Vassallo, is convicted as charged;
The Defendant, John Vassallo, is fined the sum of $56,250; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, John Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056051 the Court makes the following orders:
The Defendant, Raelene Rita Vassallo, is convicted as charged;
The Defendant, Raelene Rita Vassallo, is fined the sum of $18,750; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, Raelene Rita Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056052 the Court makes the following orders:
The Defendant, Raelene Rita Vassallo, is convicted as charged;
The Defendant, Raelene Rita Vassallo, is fined the sum of $28,125; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, Raelene Rita Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056053 the Court makes the following orders:
The Defendant, Raelene Rita Vassallo, is convicted as charged;
The Defendant, Raelene Rita Vassallo, is fined the sum of $31,875; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, Raelene Rita Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/00056054 the Court makes the following orders:
The Defendant, Raelene Rita Vassallo, is convicted as charged;
The Defendant, Raelene Rita Vassallo, is fined the sum of $18,750; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, Raelene Rita Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
In proceedings 2025/0056055 the Court makes the following orders:
The Defendant, Raelene Rita Vassallo, is convicted as charged;
The Defendant, Raelene Rita Vassallo, is fined the sum of $18,750; and
Pursuant to s 257B of Criminal Procedure Act 1986 (NSW), the Defendant, Raelene Rita Vassallo, is to pay the Prosecutor’s professional costs in the amount agreed or to be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
The Court orders that the Defendants pay the fines imposed by orders in [172]-[181] above to the Registrar, who is to pay 50% of each of such fines, when recovered, to the Secretary of the NSW Department of Climate Change, Energy, the Environment and Water pursuant to s 122 of the Fines Act 1996 (NSW).
The Court orders that pursuant to s 13.25(1)(a) of the Biodiversity Conservation Act 2016 (NSW), the Defendants, at their own expense, are to:
Within 28 days of the date of this order, publicise the commission of the offences and orders made against them by causing a notice to be published in the print and digital versions of The Land and the Western Herald, 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:
(a) The Land (10cm x 18.6cm) and (b) The Western Herald (10cm x 18.6cm); and
Annexure A
Secretary, Department of Climate Change, Energy, the Environment and Water
Vassallo [2026] NSWLEC 30
(1993) 113 LGERA 357
(2014) 205 LGERA 39
(1993) 82 LGERA 21
(1993) 32 NSWLR 683
(2019) 242 LGERA 241
(2009) 168 LGERA 121
(2008) 163 LGERA 71
(2006) 148 LGERA 299
(2024) 262 LGERA 190
(2006) 145 LGERA 189
(2005) 228 CLR 357
(2000) 49 NSWLR 383
(2024) 261 LGERA 49
(2019) 244 LGERA 1
(1986) 161 CLR 10
(1992) 75 LGERA 320
(1988) 166 CLR 59
(1997) 189 CLR 295
(2016) 256 CLR 656