Secretary, Department of Planning and Environment v Khouzame

Solicitors: Department of Climate Change, Energy, the Environment and Water (Prosecutor) Khouzame Legal (Defendant) File Number(s): 2023/00240182 Publication restriction: NIL

The offence of clearing native vegetation is committed

1. Ms Chaza Khouzame was the owner of a rural property at Canyonleigh, in the Southern Highlands of New South Wales. The property is at 1751 Tugalong Road, Canyonleigh. The property is 40.86 hectares in size. When Ms Khouzame purchased the property in January 2021, it was largely forested, although land within a powerline easement that divides the property, running east-west through the southern portion of the property, had been cleared.
2. The property was unimproved. After Ms Khouzame purchased the property, she and her family would visit the property on weekends and holidays and camp in a tent on the property. Later, they erected a shed which they would use when visiting the property. The tent and the shed were erected in the higher, northern portion of the property.
3. Within six months after purchasing the property, Ms Khouzame decided to clear around 5 hectares in the higher, northern portion of the property. The clearing was undertaken in two tranches, the first in 2021 between about 13 July to about 18 August 2021 and the second in 2022 between about 2 May 2022 and 2 August 2022.
4. The first tranche of clearing in 2021 was the most extensive clearing of around 4.92 hectares. Ms Khouzame cleared all of the native vegetation in an area bounded by Tugalong Road to the east, the adjoining property to the north, part way down the spur of the ridge to the west, and to the edge of the ridge to the south, with an extension to the south of a new road down the side of the ridge to the already cleared powerline easement.
5. The second tranche of clearing in 2022 was in seven pockets, four along the common boundary of the property to the north and three to the south of the powerline easement. Together, these pockets made up 0.12 hectare of clearing.
6. Ms Khouzame's clearing of the land involved the commission of an offence against s 60N of the Local Land Services Act 2013 (NSW) (LLS Act). The property is in a "regulated rural area", as that term is defined in s 60D of the LLS Act. The vegetation on the property that Ms Khouzame cleared was "native vegetation", within the meaning of that term in s 60B of the LLS Act. The actions involved in clearing that vegetation fell within the meaning of "clearing" in s 60C of the LLS Act. The clearing was not authorised in any of the ways specified in s 60N(1)(a) to (e) of the LLS Act.

The offender pleads guilty to the offence

1. Ms Khouzame has pleaded guilty to committing the offence. A sentence hearing has been held. The Court's task is to determine the appropriate sentence for Ms Khouzame's commission of the offence.
2. Determining the appropriate sentence involves an intuitive synthesis of the facts and circumstances that frame the objective seriousness or gravity of the offence committed by Ms Khouzame and the subjective or mitigating circumstances of Ms Khouzame as the offender.

Objective seriousness of the offence

1. The facts and circumstances that frame the objective seriousness of the offence include: the nature of the offence; the maximum penalty for the offence; the objective harmfulness of the offence; the offender's state of mind in committing the offence; the foreseeability of the risk of harm; the practical measures to prevent the risk of harm; and the control the offender had over the causes of the offence. I will deal with each.

Nature of the offence

1. The objective seriousness of the offence can be understood by considering the nature and purpose of the statutory provision, the contravention of which constitute the offence, its place in the statutory scheme, and the degree to which the offender's conduct offends against this statutory purpose: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [51]-[71]; [168]-[171]; Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15]; Chief Executive of the Office of Environment and Heritage v Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140 at [22].
2. The objects in s 3 of the LLS Act, of relevance to the protection of native vegetation, include: "(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".
3. The "principles of ecologically sustainable development" are defined in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW) and were explained in Bentley v BGP Properties Pty Ltd at [56]-[63].
4. The statutory scheme of the LLS Act, similar to its predecessor the Native Vegetation Act 2003 (NSW), is to prohibit the clearing of native vegetation on a particular category of land but enable a person to be relieved of this prohibition if the clearing is authorised under the LLS Act. This scheme needs some elaboration.
5. The LLS Act categorises land as either category 1 - exempt land, where the clearing of native vegetation is not regulated, or category 2 - regulated land, where the clearing of native vegetation is regulated (s 60E). These categories of land are to be designated on a native vegetation regulatory map (s 60G(3)).
6. Land is to be designated as category 1 - exempt land if the Environment Agency Head reasonably believes the land was cleared of native vegetation at the relevant date (s 60H(1)) and the land contains native vegetation of the type specified in s 60H(2), or is biodiversity certified under Part 8 of the Biodiversity Conservation Act 2016 (NSW) (s 60H(3)). Land is to be designated as category 2 - regulated land if the Environment Agency Head reasonably believes that the land was not cleared of native vegetation at the relevant date (s 60I(1)), the land contains native vegetation of the type specified in s 60I(2), or if the land is not required to be designated as category 1 - exempt land (s 60I(3)).
7. Land designated as category 2 - regulated land is a "regulated rural area" (s 60D). The LLS Act prohibits a person clearing native vegetation in a regulated rural area, unless the clearing is authorised in one of the five ways specified in s 60N(1), namely: "(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)."
8. Four of these ways of clearing do not require an approval or authority under Part 5A of the LLS Act, as they are otherwise authorised under the LLS Act.
9. First, clearing for an allowable activity authorised under Division 4 and Schedule 5A of the LLS Act can be carried out without any approval or other authority under Part 5A of the LLS Act (s 60Q(1)). Second, clearing authorised by a land management (native vegetation) code under Division 5 of Part 5A of the LLS Act can be carried out without any approval or other authority under Part 5A (s 60S(1)).
10. Third, clearing authorised by a development consent or approval under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) or by some other form of statutory approval or authority under other legislation is clearing authorised under s 60O of the LLS Act. Fourth, clearing of native vegetation as part of private forestry operations is authorised if they are forestry operations to which a private native forestry plan applies and they are carried out in accordance with the requirements of a private native forestry plan or an applicable private native forestry code of practice (s 60ZW(1) and s 60ZZA(1)).
11. All other clearing of native vegetation in a regulated rural area requires an approval under Division 6 of Part 5A of the LLS Act. The landholder makes an application to the Native Vegetation Panel (the Panel), established under s 60ZE of the LLS Act, for approval to clear native vegetation on the land (s 60ZF(1)). An approval may only be granted if the land is being cleared for a purpose specified in the application and the land can be used for that purpose without development consent or State significant infrastructure approval under the EPA Act and the clearing is not part of an activity that is carried out by, or that requires the approval of, a determining authority under the EPA Act (s 60ZF(4)).
12. The Panel, in determining whether to approve or refuse the application: "is to take into consideration (without limitation) the following - (a) the likely impact of the proposed clearing on biodiversity values as set out in a biodiversity development assessment report that has been submitted by the applicant for the approval in accordance with section 60ZG, (b) whether the clearing of the native vegetation is likely to cause or increase soil erosion, salination, acidification, land slip, flooding, pollution or other adverse land or water impacts, (c) any future clearing of native vegetation on the land that has been duly authorised or notified but not yet carried out" (s 60ZF(5) of the LLS Act).
13. The Panel must refuse to grant approval: "(6) …if the Panel is of the opinion that the proposed clearing of native vegetation is likely to have serious and irreversible impacts on biodiversity values. Serious and irreversible impacts on biodiversity values means serious and irreversible impacts on biodiversity values as determined under section 6.5 of the Biodiversity Conservation Act 2016 that would remain after the measures proposed to be taken to avoid or minimise the impact of the proposed clearing on biodiversity values" (s 60ZF(6) of the LLS Act).
14. "Biodiversity" is defined in s 1.5(1) of the Biodiversity Conservation Act 2016 (NSW) as: "the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems." "Biodiversity values" are defined in s 1.5(2) of the Biodiversity Conservation Act as: "(a) vegetation integrity - being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state, (b) habitat suitability - being the degree to which the habitat needs of threatened species are present at a particular site, (c) biodiversity values, or biodiversity-related values, prescribed by the regulations."
15. This statutory scheme is intended to protect native vegetation, and especially native vegetation with biodiversity values, by prohibiting the clearing of native vegetation unless the clearing is authorised under the LLS Act.
16. In the case of Ms Khouzame's clearing of native vegetation on her land, as the clearing was not otherwise authorised by the LLS Act, she needed to apply for, and obtain, an approval under Division 6 of Part 5A of the LLS Act, authorising the clearing. The making of that application would have empowered the Panel to consider the impact of the clearing on the biodiversity values of the land and, if the clearing is likely to have serious and irreversible impacts on biodiversity values, the Panel would have been required to refuse to grant approval for the clearing.
17. As I will explain below when addressing the environmental impact of the commission of the offence, the clearing has had significant impacts on biodiversity values. In those circumstances, the Panel, had Ms Khouzame applied for approval for the clearing, may well have determined to refuse approval to the clearing because it would have serious or irreversible impacts on biodiversity values.
18. Ms Khouzame's actions in clearing native vegetation on her property without the authority of an approval under Division 6 of Part 5A of the LLS Act offended against the legislative objective expressed in the statutory offence (s 60N) and thwarted the attainment of the objects in s 3 and Division 6 of Part 5A of the LLS Act. In particular, the actions of Ms Khouzame and their consequences ran 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, for reasons analogous to those given in Bentley v BGP Properties Pty Ltd at [65]-[71], [169]-[171].

Maximum penalty for the offence

1. The maximum penalty for the offence is a public expression by Parliament of the objective seriousness of the offence. It provides a sentencing yardstick for the offence before the Court: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] and R v Campbell [2014] NSWCCA 102 at [28].
2. The maximum penalty for an offence against s 60N of the LLS Act varies depending 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 or otherwise. In the present case, the offender is an individual and the prosecutor does not contend that Ms Khouzame committed the offence intentionally. The maximum penalty in these circumstances is $500,000.

Objective harmfulness of the offence

1. The degree of harm caused by the commission of the offence affects the seriousness of the offence: the greater the harm, the more serious the offence. Under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act), an aggravating factor is if "the injury, emotional harm, loss or damage caused by the offence was substantial."
2. The prosecutor contended, and I find beyond reasonable doubt, that the commission of the offence caused actual environmental harm which was substantial. The evidence of environmental harm was in the Statement of Agreed Facts and the Supplementary Statement of Agreed Facts.
3. Ms Khouzame cleared a significant area (5.04 hectares) of forested land. The native vegetation in the area cleared had significant ecological value. The native vegetation comprised two plant community types, PCT 3948 Wingecarribee Gorges Stringybark and Grey Gum Forest in the larger area cleared on the ridgeline, and PCT 1107 River Peppermint-Narrow-leaved Peppermint open forest on sheltered slopes in the area cleared for the dirt road down the southern slope of the ridge.
4. The clearing removed at least 54 species of native trees, plants, shrubs and grasses. The Statement of Agreed Facts listed the species of vegetation removed as follows: "48. The native trees removed included: a. Acacia decurrens (black wattle or early green wattle); b. Allocasuarina verticillata (drooping sheoak); c. Eucalyptus agglomerata (blue-leaved stringybark); d. Eucalyptus globoidea (white stringybark); e. Eucalyptus punctata (grey gum); and f. Acacia falciformis (broad-leaved hickory) 49. The native shrubs removed included: a. Acacia obtusifolia; b. Acacia ulicifolia; c. Bursaria spinosa; d. Cassinia quinquefaria; e. Daviesia leptophylla; f. Daviesia mimosoides; g. Exocarpos strictus; h. Hibbertia obtusifolia; i. Leucopogon juniperinus; j. Monotoca scoparia; k. Olearia viscidula; l. Ozothamnus diosmifolius; m. Persoonia linearis; n. Phyllanthus hirtellus; 50. The native grasses and grass-like vegetation removed included: a. Austrostipa rudis; b. Echinopogon caespitosus; c. Entolasia stricta; d. Lepidosperma laterale; e. Lomandra filiformis; f. Lomandra glauca; g. Lomandra longifolia; h. Lomandra multiflora subsp. multiflora; i. Microlaena stipoides; j. Rytidosperma longifolium; k. Rytidosperma pallidum; l. Tetrarrhena juncea; and m. Themeda triandra. 51. The native forbs removed included: a. Brachyscome angustifolia; b. Dampiera purpurea; c. Dianella caerulea; d. Dianella revoluta; e. Gonocarpus elatus; f. Gonocarpus tetragynus; g. Goodenia hederacea; h. Helichrysum leucopsideum; i. Hydrocotyle sibthorpioides; j. Pomax umbellata; k. Solanum prinophyllum; l. Veronica plebian; m. Viola silicestris; n. Xerochrysum bracteatum; o. Billardiera scandens; p. Cassytha glabella; q. Clematis aristata; r. Comesperma ericinum; s. Glycine microphylla; t. Hardenbergia violacea; and u. Marsdenia suaveolens."
5. The quality of the native vegetation was high, with little disturbance. No significant broadscale clearing had occurred in the first tranche area in over a century, at least since August 1913. There were old growth trees greater than 200 years in age.
6. The clearing of the native vegetation caused habitat loss, loss of connectivity and fragmentation. The Supplementary Statement of Facts recorded: "2. The property is located in the Great Western Wildlife Corridor, which is the only vegetated connection between the Greater Blue Mountains World Heritage Area in the North and Morton National Part in the South. This area did not burn in the 2019-2020 Bushfires. Consequently, it contains an important source population for species to repopulate from. 3. Clearing vegetation that acts as wildlife corridors or links between different habitats can disrupt ecological processes and have a significant impact. Due to the scale of clearing, the impact of the clearing on the connectivity and fragmentation of ecosystems has been substantial."
7. Because of the ecological importance of the native vegetation cleared, the clearing "has directly and likely substantially reduced the biodiversity value of the area and the habitat provision for wildlife" (at [4] of the Supplementary Statement of Agreed Facts).
8. The manner in which the clearing occurred, including by a bulldozer, excavator and other earthmoving equipment stripping the ground bare of native vegetation and shaping the land by earthworks, has led to significant soil erosion. This was exacerbated by the highly erodible nature of the soils on the property and the ineffective soil erosion measures implemented following the clearing (at [4] of the Supplementary Statement of Agreed Facts).
9. The Supplementary Statement of Agreed Facts recorded the environmental impacts of erosion: "5. As a result of the clearing, the cleared area was affected by erosion. Erosion often affects topsoil, which is rich in nutrients necessary for plant growth. The loss of this fertile layer can reduce soil productivity and the ability to support healthy plant life. Eroded soil particles can be deposited in nearby water bodies, causing sedimentation. This, in turn, degrades water quality and can harm aquatic ecosystems. Soil erosion may also alter natural drainage patterns of landscapes and contribute to increased runoff and the risk of flooding."
10. Some of the old growth trees cleared had hollows, which afford nesting habitat for fauna. The Supplementary Statement of Agreed Facts recorded: "6. Small, medium and large tree hollows were observed in the cleared trees. The small hollows are likely to have been 100 years old. The medium hollows are likely to have been 200 years old and the large hollows greater than 200 years old. Some of the hollows are depicted in the cleared trees in image 15 and 16 below."
11. The trees cleared included three species referred to as a food tree species for the Koala (Phascolarctos cinereus). The Koala is listed as an endangered species under the Biodiversity Conservation Act and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). There is a population of Koalas on the property and surrounding properties. The Supplementary Statement of Agreed Facts recorded: "8. The offending conduct cleared critical koala habitat including Blue-leaved Stringybark (Eucalyptus agglomerata) which is a preferred koala food tree species. The clearing had, or is likely to have, a significant effect on the population of Koalas on the property and on surrounding properties by fragmenting and reducing its habitat."
12. The native vegetation cleared was also habitat for two other species listed as vulnerable under the Biodiversity Conservation Act and the EPBC Act, the Gang Gang Cockatoo and the Yellow-Bellied Glider. The Supplementary Statement of Agreed Facts recorded in [9] and [10] that: "The cleared area included critical habitat for the Gang Gang Cockatoo and is likely to have adversely affected the population". and, in respect of the Yellow-Bellied Glider that: "It is highly likely to have used the cleared habitat. It is likely that the clearing adversely affected the local population."
13. These significant environmental impacts of the clearing are "substantial" for the purposes of s 21A(2)(g) of the Sentencing Act.

The offender's state of mind in committing the offence

1. The offence against s 60N of the LLS Act is one of strict liability and mens rea is not an element of the offence. Nevertheless, the state of mind of an offender in committing the offence can increase the seriousness of the offence. A strict liability offence committed intentionally, recklessly, or negligently would be objectively more serious than one that is not so committed: Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [42]. Furthermore, a large measure of premeditation will make an offence more serious than if it is committed on the spur of the moment: Director-General, Department of Environment and Climate Change v Rae at [43].
2. The prosecutor contended, and 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.
3. This is especially evident with the first tranche of clearing, which was extensive and involved large earthmoving equipment. The Statement of Agreed Facts establishes that in the first tranche of clearing, all of the native vegetation along the higher and flatter ridgeline was cleared within an area of 4.92 hectares. Before the clearing, that area had been heavily forested, including old growth trees greater than 200 years in age. The removal of this extensive vegetation required large machinery. Taller Eucalypt trees were cut by chainsaws and the cut logs and stumps were pushed and stacked into piles of tree debris by a bulldozer, excavator and other earthmoving equipment. All other vegetation, including understorey and groundcover, was cleared by the bulldozer, excavator or other earthmoving equipment. The ground surface within the cleared area underwent earthworks and was stripped back to bare earth.
4. The clearing occurred over an extended period from about 13 July to 18 August 2021. Thinning of the vegetation in a smaller area on the ridgeline was first evident on 21 July 2021, but by 28 July 2021 most of the trees along the ridgeline to Tugalong Road had been cleared and a pile of tree debris had formed in the cleared area. Over the following weeks, the remaining trees were felled, all understorey and groundcover removed, and the ground surface in the cleared area stripped back to bare earth.
5. On 9 August 2021, three earthmovers carried out works in the cleared area spreading soil or top fill. By 11 August 2021, earthworks had created earthen benches on the land. The works continued on 12 August 2021 using an excavator and a bulldozer.
6. By 18 August 2021, earthworks had occurred within a 3.24-hectare area of the cleared area where the ground was stripped bare of native vegetation, including all trees, understorey and groundcover. The earthworks had shaped the land into three tiers with well-formed earthen benches between each tier. Tree trunks had been stacked along the northern boundary of the property. In the steeper parts of the cleared area, on the southern and western sides of the ridgeline, felled trees had been left where they had been cut down.
7. Sometime prior to 18 August 2021, a bulldozer, excavator or other earthmoving equipment had cleared native vegetation and constructed a dirt road approximately seven to 10 metres wide, covering 0.11 hectare, down the southern slope of the ridge in a south-easterly direction to the powerline easement at the bottom of the slope.
8. In the second tranche of clearing, between 2 May and 2 August 2022, vegetation was cleared, selectively in three pockets near the powerline easement, and extensively in the four pockets along the northern boundary of the property. In the latter four pockets, most of the vegetation, including trees, understorey and groundcover, was totally removed.
9. This premeditated and planned clearing of native vegetation makes the offence committed on Ms Khouzame more serious.
10. The prosecutor contended, and I find beyond reasonable doubt, that Ms Khouzame committed the offence with a heightened state of mind, negligently in the case of the first tranche of clearing and recklessly in the case of the second tranche of clearing. The reason for the difference in the state of mind is that in between the first tranche and the second tranche of clearing, Ms Khouzame received official notices that her clearing of the land was unlawful.
11. The first notice served on Ms Khouzame was from Wingecarribee Shire Council (the Council) on 10 August 2021. The Council emailed Ms Khouzame on 10 August 2021 enclosing a letter and a Development Control Order under the EPA Act requiring Ms Khouzame to "stop immediately all vegetation clearing, landfilling and Earthworks including all associated work and activities on the property." The reasons given for the order were that: "1. Landfilling/Earthworks/Vegetation clearing is / has been carried out in contravention of the EPA Act. 2. The work is not exempt as defined in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 3. The premises are within land zoned RU2 - Rural Landscapes as defined within Wingecarribee Local Environmental Plan 2010, being an environmental instrument pursuant to the Environmental Planning and Assessment Act 1979 (NSW) for which controls in respect of landfilling, earthworks and preservation of trees and vegetation apply. 4. Unauthorised development consisting of vegetation clearing, landfilling and earthworks has commenced on the premises for which development consent is required and has not been obtained. 5. Environmental controls have not been put in place to properly deal with the potential movement of the imported fill material from the effects of erosion and wind. 6. The unauthorised development is or is likely to impact on the local environment. 7. The unauthorised development is likely to impact on the long term sustainability of established vegetation on the premises. 8. Accordingly, this order is given in circumstances that necessitate immediate compliance so as to prevent further Environmental damage and harm to established vegetation on the property and the local environment."
12. Ms Khouzame accepted, in the Statement of Agreed Facts, that she became aware of the Development Control Order on 11 August 2021.
13. Yet, despite Ms Khouzame being aware on 11 August 2021 of the Development Control Order, Ms Khouzame allowed the clearing to continue, in the first tranche of clearing, from 11 August to 18 August 2021 and for the duration of the second tranche of clearing between 2 May and 2 August 2022.
14. The second notice served on Ms Khouzame was from the Department of Planning and Environment (the Department) on 22 April 2022. This was a Stop Work Order under s 11.3 of the Biodiversity Conservation Act 2016 (NSW). The Stop Work Order required Ms Khouzame to cease certain actions and not to carry out other actions: "Actions to cease 3. Each of the following actions on the Land must cease immediately: (a) Clearing of native vegetation as defined in section 60C of the LLS Act on: i) Category 2 - Sensitive Regulated Land. ii) Category 2 - Regulated Land. (b) Damage to the habitat of a threatened species or threatened ecological community as defined in section 1.6 of the BC Act. Actions not to be carried out 4. Each of the following actions must not be carried out on the Land for the duration of this Stop Work Order: (a) Clearing of native vegetation as defined in section 60C of the LLS Act on: i) Category 2 - Sensitive Regulated Land. ii) Category 2 - Regulated Land. (b) Damage to the habitat of a threatened species or threatened ecological community as defined in section 1.6 of the BC Act."
15. The bases for issuing the Stop Work Order were stated to include: "F. This Stop Work Order (Order) relates to portions of the Landholding which are assessed under the LLS Act as: a) Category 2 - Sensitive Regulated Land. b) Category 2 - Regulated Land. The Transitional Native Vegetation Map is Annexure A. The definition of the landholding are included at Annexure B. G. Investigations carried out over the Landholding by The Department have determined that activities involving the clearing of native vegetation on regulated land are being carried out, and that the activities are likely to result in a contravention of section 60N of the LLS Act."
16. Ms Khouzame did not contest that she received, and became aware of, this Stop Work Order on or about 22 April 2022. Yet, despite this awareness, Ms Khouzame carried out the second tranche of clearing between 2 May 2022 and 2 August 2022.
17. Ms Khouzame gave evidence that: "Before cutting down the trees, I went onto the council website and completed a questionnaire which advised me that I could remove trees below 6 metres without needing to obtain council approval" (at [39] of Ms Khouzame's affidavit of 26 April 2024). Ms Khouzame attached a copy of the questionnaire to her affidavit, although it was not established when this questionnaire was completed. The questionnaire was stated to be for "Individual Tree Removal", not for the wholescale removal of all trees within a 5-hectare area. Ms Khouzame had answered question 1 by saying that the individual tree she wished to remove was "less than 6m in height". The "advice" given in answer to the question was that a tree with that height "is by definition not a tree in Council's adopted Development Control Plans (DCPs). As your tree is smaller than 6m in height, you are not required to submit an application to Council for these works."
18. Ms Khouzame said she believed, before carrying out the clearing, that the trees on the property were less than 6m in height. That belief was mistaken, as many of the trees cleared were greater than 6m in height. Nevertheless, that was her belief, which informed her answer to the question in the Council's questionnaire.
19. The prosecutor submitted that, based on this evidence of Ms Khouzame, she could not be shown to have an awareness that her clearing of native vegetation would be in breach of the LLS Act. That means her clearing in the first tranche was neither intentional nor reckless. But it was negligent. As stated in Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114 at [53], negligence "assesses the offender's conduct not by 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 60N of the LLS 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 an approval or authority under the law, is likely to result. This issue is to be decided on an objective basis, not a subjective 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:" Chief Executive, Office of Environment and Heritage v Brummell at [53].
20. The prosecutor submitted that a reasonable person in Ms Khouzame's position would have foreseen this risk. The Council's questionnaire was titled "Individual Tree Removal" and refers to the removal of single trees. The exception stated for a tree less than 6m in height and a circumference of less than 500mm at 1m above ground level, was limited to the Council's Development Control Plans and did not purport to provide a defence under the LLS Act. A reasonable person would not interpret the information set out in the Council's questionnaire as authorising the clearing of all native vegetation, including trees, understorey and groundcover, in an area of 5.04 hectares.
21. Ms Khouzame did not contest that prosecutor's contention that she committed the first tranche of clearing negligently, only saying that it "occurred as inadvertence and an error in the judgment of the defendant not having the relevant knowledge" (Ms Khouzame's written submissions, at [12]). That goes to Ms Khouzame's subjective knowledge or foresight, not what a reasonable person would know or foresee.
22. I agree with the prosecutor. In the circumstances, I find beyond reasonable doubt that Ms Khouzame's clearing of native vegetation in the first tranche of clearing was negligent. A reasonable person in the position of Ms Khouzame would have known or foreseen that the large-scale and extensive clearing of all native vegetation, by the means proposed, in an area of 4.92 hectares, is likely to be done without lawful authority under the LLS Act or other relevant Act. To proceed with the clearing with this knowledge or foresight was negligent.
23. The prosecutor contended that Ms Khouzame's clearing of native vegetation in the second tranche of clearing was reckless. By this time, Ms Khouzame was aware, from the Development Control Order issued by the Council and the Stop Work Order issued by the Department, that the clearing she was undertaking was unlawful under both the EPA Act and the LLS Act. Her belief that she could clear trees, based on the answer to the Council's questionnaire, could no longer be maintained. The notices expressly stated that she was not authorised to clear the native vegetation on the property and indeed ordered her to stop clearing.
24. The prosecutor cited the explanation of recklessness in Chief Executive, Office of Environment and Heritage v Brummell at [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."
25. The prosecutor submitted that, upon service on her of the Development Control Order and the Stop Work Order, Ms Khouzame had knowledge and foresight of the likely consequence of the clearing, namely, that further clearing could not be done except in accordance with lawful authority under the EPA Act or LLS Act. Despite that knowledge or foresight, Ms Khouzame undertook the second tranche of clearing.
26. On the same day Ms Khouzame received the Department's Stop Work Order, 22 April 2022, she emailed the Council responding to the Council's earlier Development Control Order, which had been attached to the Council's letter of 10 August 2021. Ms Khouzame referred to that letter and said that she "would like to express my deepest apologies." She explained that she "had made contact with council and passed on by council to a few other departments in regards to making my land safe for my kids to drive in and enjoy the weekend, we plan on building a home for us and did not [know] that we could not clear the trees affecting the property" (Statement of Agreed Facts, at [34]).
27. The prosecutor submitted that the effect of Ms Khouzame's apology was to indicate that she was apprised of the likely illegality of clearing trees on the property. In any event, any residual doubt about the likely illegality of the clearing was removed by the unequivocal statements in the Department's Stop Work Order served on Ms Khouzame on 22 April 2022.
28. Ms Khouzame did not contest the prosecutor's contention that she carried out the second tranche of clearing recklessly, but pointed out that the majority of the clearing occurred in the first tranche of clearing.
29. I find beyond reasonable doubt that Ms Khouzame's commission of the second tranche of clearing was reckless. The facts may support a finding that she committed the second tranche of clearing intentionally. However, as the prosecutor did not contend that Ms Khouzame did commit the second tranche of clearing intentionally, it is sufficient to find that the clearing, at the least, was committed recklessly. That finding can be made on the evidence beyond reasonable doubt, for the reasons given by the prosecutor.

Foreseeability of the risk of harm

1. The extent of foreseeability of the risk of harm to the environment by commission of the offence is a relevant objective circumstance of the offence: Director-General, Department of Environment and Climate Change v Rae at [50].
2. Although the evidence did not establish that Ms Khouzame actually foresaw the risk of harm that would or would be likely to be caused to the environment by the first tranche of clearing, a reasonable person would have foreseen this risk. Having regard to the nature and extent of the clearing proposed, and the nature and quality of the native vegetation cleared, a reasonable person in the position of the offender would foresee the risk of harm that would or would be likely to be caused to the environment by the commission of the offence.
3. However, by the time of the second tranche of clearing, Ms Khouzame was aware of the risk of environmental harm that further clearing would or would be likely to cause. The Council's Development Control Order issued on 10 August 2021 stated, in the reasons for the order: "6. The unauthorised development is or is likely to impact on the local environment. 7. The unauthorised development is likely to impact on the long term sustainability of established vegetation on the premises."
4. The Department's Stop Work Order issued on 22 April 2022 identified the land, on which clearing was taking place, as including land categorised as "Sensitive Regulated Land" and the clearing as causing "damage to the habitat of a threatened species or threatened ecological community as defined in section 1.6 of the BC Act."
5. In these circumstances, the prosecutor submitted, and I find beyond reasonable doubt, that a reasonable person in Ms Khouzame's position would have foreseen the risk of harm caused or likely to be caused to the environment by the first tranche of clearing and that Ms Khouzame had knowledge that allowed her to foresee the risk of harm caused or likely to be caused to the environment by the second tranche of clearing.

Practical measures to prevent risk of harm

1. The practical measure Ms Khouzame could and should have taken was not to clear the native vegetation on the property unless and until she obtained an approval or other authority under the LLS Act or other relevant Act authorising the clearing.

The offender's control over the cause of the offence

1. Ms Khouzame directed others to carry out the clearing of native vegetation on her property. She therefore had full control over the causes that gave rise to the commission of the offence and the concomitant harm to the environment.

Conclusion on objective seriousness of the offence

1. Having regard to the nature of the offence; the maximum penalty for the offence; the substantial environmental harm caused by the commission of the offence; the premeditated commission of the offence negligently (for the first tranche of clearing) and recklessly (for the second tranche of clearing); the foreseeability of the risk of harm to the environment; the practical measures available to prevent that risk of harm; and the offender's control over the cause of the offence and the harm to the environment, the offence is of medium objective seriousness, lying near the lower end of the mid-range of seriousness.

Subjective circumstances of the offender

1. Within the limits set by the objective seriousness of the offence, the Court may take into account mitigating circumstances personal to the offender. The mitigating circumstances relevant in this case are: the offender does not have a record of prior convictions; the offender is a person of good character; the offender is unlikely to reoffend; the offender has shown some, although limited, remorse; and the offender pleaded guilty at an early time.

Lack of prior criminality

1. Ms Khouzame does not have any prior convictions for an environmental or other offence: s 21A(3)(e) of the Sentencing Act.

Prior good character

1. There is evidence that Ms Khouzame has otherwise been of good character: s 21A(3)(f) of the Sentencing Act. Ms Khouzame provided two character references. The first was from Rev. Fr Dr John El Karaan, a priest at St Nicholas Antiochian Orthodox Church of which Ms Khouzame is a parishioner. Rev. Fr El Karaan has known Ms Khouzame for over six years, finding her "to be a sincere, honest, trustworthy person", "very generous" and "a role model to others whose interest is to do well and to contribute to the common good of society and our Church." The second reference was from Ms Anne Vo, the principal solicitor of Arver Law, who has known Ms Khouzame since June 2022 "in her personal capacity as a mother as well as a responsible homemaker who takes care of her family, both immediate and extended." Ms Vo believes Ms Khouzame "is a responsible and honest individual that is reliable to her friends and her family."

Likelihood of reoffending

1. Ms Khouzame is unlikely to reoffend by clearing vegetation on the property as she sold the property on 16 February 2024. Ms Khouzame thus no longer has the capacity to clear further vegetation on the property.

Remorse shown by the offender

1. Remorse shown by an offender for the offence is a mitigating factor 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)": s 21A(3)(i) of Sentencing Act.
2. Ms Khouzame has given evidence that she is "extremely sorry and remorseful for my actions"; these proceedings have taught her "the importance of ensuring that I comply with the laws of Australia,"; and she promises the Court that she "will not engage in such offending again in the future" and that she will ensure that she complies with the laws of Australia (at [45]-[47] of her affidavit of 22 April 2024).
3. One of her referees, Ms Vo, said she believed Ms Khouzame "has recognised her accountability for her actions and is ready to move on from this incident." She recorded that in her last meeting, Ms Khouzame "was in tears and disclosed her sincere regret and remorse for her actions." Ms Vo believed Ms Khouzame "has developed a renewed understanding and appreciation for the necessary steps required to ensure compliance with Council approvals and regulations."
4. In a psychological report of Mr Watson-Munro of 29 April 2024, tendered by Ms Khouzame, Mr Watson-Munro stated that: "Ms Khouzame reported that she was unaware of the seriousness of her alleged behaviour and now that this has been demonstrated to her, she is additionally anxious regarding the potential penalty which she may incur for her actions. At examination she consistently expressed remorse for her conduct."
5. The prosecutor referred to the four forms by which genuine remorse may be expressed, which were identified in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [203]-[214]. The prosecutor submitted only the fourth of those forms was evident in this case, being the personal appearance and evidence of the offender expressing genuine regret for committing the offence.
6. As to the first form, Ms Khouzame has not undertaken any action to rectify the harm caused or likely to be caused by the commission of the offence, either voluntarily or in response to the Remediation Order the Department served on her on 27 October 2022. The Remediation Order required Ms Khouzame to submit a Remediation Plan by 31 January 2023 (3.1.1). The Remediation Plan had to be prepared by an accredited person and demonstrate "how the Remediator will restore the Remediation Area towards benchmark condition for the South East Dry Sclerophyll Forests vegetation class of the Sydney Basin IBRA region Interim Biogeographic Regionalisation for Australia (IBRA) region at Table 1" (3.1.3). Table 1 described the benchmark attributes, the benchmark values and the units of measure. Ms Khouzame has not complied with these requirements of the Remediation Order at all.
7. The Remediation Order also required Ms Khouzame to notify the Environment Agency Head within 14 days if she intends on selling the land (3.1.12) and to inform all purchasers of the land of the Remediation Order (3.1.11). Ms Khouzame did not inform the Department before she sold the property in February 2024.
8. Ms Khouzame has given evidence that she does not have "the funds or financial means required" to comply with the Remediation Order or to otherwise remediate the environmental harm caused by the commission of the offence (at [13] of her affidavit of 9 May 2024).
9. As to the second form, Ms Khouzame did not voluntarily report the commission of the offence and any concomitant environment harm to the Council or the Department. Those authorities had to find out for themselves, through complaints from other persons, about Ms Khouzame's clearing of the land.
10. As to the third, Ms Khouzame has taken no action to address the causes of the offence. Even when put on notice by the Council's Development Control Order and the Department's Stop Work Order that clearing of native vegetation on her property was unlawful, Ms Khouzame continued to clear the property, including carrying out the second tranche of clearing.
11. In these circumstances, the prosecutor submitted that the Court would be guarded as to the genuineness of Ms Khouzame's remorse. I agree. I find that although Ms Khouzame has expressed in words some remorse for committing the offence, this is limited. She has not acknowledged the environmental harm caused by her actions of clearing or made any attempt at reparation of that harm, as required by s 21A(3)(i) of the Sentencing Act. She has not expressed remorse in three of the four ways suggested in Environment Protection Authority v Waste Recycling and Processing Corporation as indicating genuine remorse. Ms Khouzame's remorse appears to be directed more towards having been prosecuted for committing the offence and the prospect of being ordered to pay a sizeable monetary penalty.

Plea of guilty

1. Ms Khouzame entered a plea of guilty at the earliest occasion. The prosecution was commenced on 23 July 2023, with the first return being on 8 September 2023. On that day, Ms Khouzame entered a plea of guilty. The utilitarian value to the criminal justice system of this early plea of guilty should be assessed as affording a discount of 25%: s 21A(3)(k) and s 22 of the Sentencing Act and R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160].

Appropriate sentence

1. The prosecutor submitted that the appropriate sentence for the offence committed by Ms Khouzame is a fine. Ms Khouzame submitted that instead the Court should make an order under s 10(1)(a) of the Sentencing Act directing the relevant charge be dismissed. I will deal with Ms Khouzame's submissions first.

An order under s 10(1) of the Sentencing Act?

1. Section 10(1)(a) of the Sentencing Act provides that a court that finds a person guilty of an offence may, without proceeding to conviction, make an order directing that the relevant charge be dismissed. In deciding whether to make an order under s 10(1), the court is to have regard to four factors: "(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider": s 10(3) of the Sentencing Act.
2. With regard to the first factor in s 10(3), Ms Khouzame referred to her prior good character, the lack of prior convictions (and hence being a first offender) and the state of her mental health.
3. As to the first two matters, I have found that Ms Khouzame is a person of prior good character and with no record of previous convictions.
4. As to her mental health, Ms Khouzame has given evidence that the proceedings have had "a major impact" on her mental health; she continues "to stress about the outcome of these proceedings"; and she also stresses "about the further financial impact that this will have on my two young children" (at at [28]-[30] of her affidavit of 26 April 2024).
5. Mr Watson-Munro, in his psychological report tendered by Ms Khouzame, described Ms Khouzame as presenting as "a co-operative though depressed and anxious woman." Mr Watson-Munro recorded that, prior to Ms Khouzame committing the offence and being prosecuted for it, she had "a complex clinical and developmental history, which was particularly acute in the lead up to her alleged offending conduct." She was highly stressed as a consequence of a difficult fourth pregnancy, "with her baby girl being born at 26 weeks premature on 14 May 2020". Ms Khouzame's depression and anxiety were further aggravated by the restrictions surrounding the COVID-19 pandemic and her inability to travel outside of Australia to visit her family in Lebanon, and their inability to visit her in Australia, due to border closures. During this time, she experienced "escalating tensions within her marriage."
6. Mr Watson-Munro recorded that, on being prosecuted for the offence, "she is additionally anxious regarding the potential penalty which she may incur for her actions." He observed that: "It is clear that her exposure to the justice system has had a telling impact upon her and in this regard, she continues to suffer severe depression, which was noted at a clinical level and confirmed through appropriate psychometric testing. Ms Khouzame is suffering a range of psychological problems, inclusive of very poor sleep and substantial weight gain, as a consequence of comfort eating."
7. Mr Watson-Munro opined that although "her exposure to the justice system has had a significant and deleterious impact on her mental health…, it is apparent from my history taking that Ms Khouzame has struggled with significant symptoms of depression and anxiety for many years" and that "[h]er current charges have further aggravated her fragile mental state."
8. The prosecutor submitted that this evidence does not establish a nexus between the state of Ms Khouzame's mental health and the commission of the offence, such as that it impaired Ms Khouzame making reasonable judgments regarding directing the clearing of native vegetation on her property. In these circumstances, Ms Khouzame's moral civil culpability is not reduced: see Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [171]-[178] and Kapua v R [2023] NSWCCA 14 at [7]-[8].
9. Ms Khouzame responded to this submission of the prosecutor citing a decision of a single judge in David Morse v Chan [2010] NSWSC 1290 at [66] that the exercise of the discretion in s 10(1) does not require a conclusion that the mental illness was causally connected to the offence.
10. I agree with the prosecutor that the state of Ms Khouzame's mental health, including the depression and anxiety explained by Mr Watson-Munro, has not been established to have contributed the commission of the offence. As I have earlier found, the clearing of the property was not a spur of the moment decision; it was premeditated and planned and conducted over extended periods of time in 2021 and 2022. It has not been established that Ms Khouzame's depression and anxiety impaired her making reasonable judgments about whether or not to carry out clearing of native vegetation on her property, or the nature, scale, extent and duration of clearing that she in fact undertook. In these circumstances, Ms Khouzame's moral culpability for the offence is not reduced by the state of her mental health.
11. With regard to the second factor in s 10(3), Ms Khouzame did not contend that the offence was of a trivial nature. As the prosecutor submitted, and I have earlier found, the offence clearly was not of a trivial nature. The nature, scale, extent and duration of the clearing, and the concomitant, substantial environmental harm caused are incompatible with a finding that the offence is of a trivial nature. To the contrary, the offence Ms Khouzame committed is objectively a serious one, warranting the imposition of a sentence for the purposes of denunciation and general deterrence. In these circumstances, the scope for the operation of s 10(1) decreases: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303 at [132].
12. With regard to the third factor in s 10(3), Ms Khouzame did not advance any extenuating circumstances in which the offence was committed. Ms Khouzame did suggest that one reason she decided to clear "a small section of the land" was so that she "could drive safely into the Property and my children had a safe space to play whilst at the Property" (at [38] of her affidavit of 26 April 2024). To like effect, Ms Khouzame said in her apology to the Council on 22 April 2022 that she cleared the property to make "my land safe for my kids to drive in and enjoy the weekend" (at [34] of the Statement of Agreed Facts). However, that was not what Ms Khouzame did. Far from clearing just "a small section of the land" for her children to have a safe space to play in, she cleared 5.04 hectares, pushed and stacked trees and stumps into large piles of tree debris, carried out significant earthworks with steep embankments, and constructed a dirt road down the southern slope of the ridge to the powerline easement at the base of the slope. Such large-scale works, creating unsafe children's play areas, are inimical with Ms Khouzame's stated reason for clearing the land.
13. With regard to the fourth factor in s 10(3), Ms Khouzame asked the Court to take account of her early guilty plea, her sincere remorse and contrition and the financial effect that any fine imposed will have on her. I have earlier found that Ms Khouzame's early guilty plea should attract the full discount of 25% for its utilitarian value to the criminal justice system. I have found that Ms Khouzame has expressed some remorse for the offence, although it is limited. I will consider below the financial effect any fine will have on Ms Khouzame when I address her submission regarding s 6 of the Fines Act 1996 (NSW). I also take those findings into account here as a matter in the exercise of the discretion under s 10(1), although they do not weigh materially in favour of the exercise of the discretion.
14. For these reasons, I do not consider it appropriate in the circumstances to make an order under s 10(1) of the Sentencing Act.

A fine?

1. As the prosecutor submitted, the appropriate sentence is a fine. Having regard to the objective circumstances of the offence, which contribute to the offence being of medium objective seriousness, and the mitigating circumstances personal to Ms Khouzame which I have found, I consider the appropriate fine is $180,000. This amount should be discounted by 25% for the utilitarian value of the early guilty plea to be $135,000.
2. Ms Khouzame submitted that the Court should consider three factors in fixing the amount of the fine. The first is the jurisdictional limit of the Local Court, the second is s 6 of the Fines Act and the third is any costs Ms Khouzame may be ordered to pay.
3. As to the first factor, Ms Khouzame noted that proceedings for the offence against s 60N of the LLS Act committed by Ms Khouzame could also have been brought in the Local Court. There, the maximum monetary penalty the Local Court could impose for the offence is 100 penalty units or $11,000 (s 187(3) of the LLS Act). Ms Khouzame submitted that this jurisdictional limit of the Local Court is "a highly significant sentencing factor" in fixing the amount of the fine that should be imposed by this Court: Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [98].
4. The prosecutor submitted that it was justified in bringing the proceedings in this Court as the offence committed by Ms Khouzame was objectively serious and warranted a fine of an amount far greater than the jurisdictional limit of the Local Court. The prosecutor submitted, citing Zreika v The Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [109], that "the bare theoretical possibility of the matter being dealt within the Local Court does not suffice." Unless it is "plainly wrong" that the offence be prosecuted in this Court, rather than the Local Court, the jurisdictional limit of the Local Court may be of lesser relevance: at [112].
5. Although I take into account the jurisdictional limit of the Local Court for an offence against s 60N of the LLS Act, it does not affect the amount of the fine I have determined is appropriate to impose for the offence committed by Ms Khouzame. That offence is of such objective seriousness as to warrant the imposition of a fine in an amount which exceeds significantly the jurisdictional limit of the Local Court. A fine at the jurisdictional limit of $11,000 would manifestly be disproportionate to the objective seriousness of Ms Khouzame's offending.
6. The second factor Ms Khouzame relied on is s 6 of the Fines Act. That section provides: "6 Consideration of accused's means to pay 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."
7. As s 6 makes clear, the Court is required only to consider "such information regarding the means of the accused as is reasonably and practically available to the court for consideration." Ordinarily, if an offender wishes for the Court to consider their means to pay a fine, the offender needs to provide to the Court information on their means to pay.
8. Ms Khouzame put limited financial information before the Court. Ms Khouzame gave evidence in her affidavit of 26 April 2024 that: she is under financial stress; she and her husband are having marital difficulties, which limits the financial support she receives; she pays for school fees, child care fees and day-to-day living expenses for her children, from savings she and her husband had; she used her savings to pay her legal fees in these proceedings; and she has a 50% share in the matrimonial home at South Hurstville. In oral evidence, Ms Khouzame said that although she has been behind on repayments of the home loan for the matrimonial home, she caught up after she sold the property at Canyonleigh, which was not mortgaged. Ms Khouzame also said in oral evidence that she owned another property, whether solely or jointly with her husband was not stated, but she gave no details of the nature, location or value of the property, or, if the property had been sold, what were the proceeds of the sale of this property.
9. Ms Khouzame tendered a letter from an accountant, Mr Myssy from Circle Advisory Partners, who wrote "to bring to your attention the dire financial circumstances" Ms Khouzame "has been enduring". He stated Ms Khouzame's "prolonged period of unemployment has plunged Ms Khouzame into a state of severe financial instability, leaving her grappling with substantial challenges in meeting her financial obligations." The accountant did not provide any details of Ms Khouzame's financial circumstances.
10. Ms Khouzame did not disclose the Contract of Sale of the property at Canyonleigh or provide direct evidence of how much the property was sold for (said to be $250,000) or where the proceeds of sale were distributed (said to be used to repay in part the loan over the matrimonial home).
11. Ms Khouzame did not provide to the Court any tax returns, bank statements, loan statements, financial statements, including balance sheets or profit and loss statements, or valuations of any real or personal property which Ms Khouzame owns.
12. In these circumstances, the information regarding the means of Ms Khouzame to pay a fine is so scant and general that the Court cannot meaningfully reduce the amount of the fine that is otherwise appropriate to be imposed.
13. Furthermore, as the prosecutor submitted, the means of an offender to pay a fine is but one factor of many for the Court to consider when fixing the amount of the fine: Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80 at [267]. Other sentencing considerations, such as the need for denunciation and general deterrence, may justify imposing a fine in a certain amount even if the offender is unlikely to be able to pay the fine: see also The Queen v Linc Energy Ltd (in liquidation) (District Court (Qld), 11 May 2018, unrep, Shanahan J, page 2).
14. The third factor Ms Khouzame submitted the Court should consider in fixing the amount of the fine is any amount of costs she may be ordered to pay. Ms Khouzame submitted that it is now established that costs are "an important aspect of the punishment" (EPA v Barnes [2006] NSWCCA 246 at [78]), so that "in considering the appropriate penalty, it was legitimate to take into account the associated costs order" (Harris v Harrison at [100]). Ms Khouzame submitted that "costs orders…should be seen as an element of the overall penalty imposed, and can affect the amount of a fine" (Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 at [147]).
15. The prosecutor submitted that the fine and an order for costs serve different purposes, so that the amount of the fine should not be reduced by the amount of costs ordered. The prosecutor cited Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50] that: "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."
16. I do not consider it is appropriate to reduce the amount of the fine that is otherwise appropriate to impose to take account of any award of costs. The amount of the fine should not be dependent on the award of costs; if anything, it should be the other way around.
17. For these reasons, the amount of the fine should remain at $135,000.

Additional orders

1. The prosecutor seeks an order that Ms Khouzame pay the prosecutor's professional costs of the proceedings, in an amount to be determined under s 257B and s 257G of the Criminal Procedure Act 1986 (NSW). Ms Khouzame did not oppose in principle such an order, but submitted that consideration should be given to the aggregate penalty that would be imposed by both the fine and an award of costs.
2. I consider that an order for costs should be made. The fact that the offender might be of limited financial means does not demand that the Court not make an order for costs against the offender: Environment Protection Authority v Taylor [No 4] (2002) 120 LGERA 414; [2002] NSWLEC 59 at [45]. Congregational Christian Church Samoa Parish Sydney v Georges River Council [2017] NSWLEC 71 at [21]; Environment Protection Authority v Hanna at [282]-[285].
3. In any event, as I have found earlier, Ms Khouzame has provided scant evidence regarding her financial situation and her means to pay not only a fine but also any order of costs. The evidence before the Court does not establish that Ms Khouzame would be unable to pay both a fine and an order of costs.
4. The prosecutor seeks an order, under s 122(2) of the Fines Act, directing that one half of any fine imposed on Ms Khouzame be paid to the prosecutor as a moiety. Ms Khouzame did not oppose this order. It is appropriate.

Orders

1. The Court: 1. convicts the defendant of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged; 2. fines the defendant $135,000; 3. orders the defendant to pay the prosecutor's costs in the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW); and 4. directs that 50% of the fine in Order 2 be paid to the prosecutor.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2024