Zoe is a legal information platform. Always consult the official source for authoritative text.
Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd - [2024] NSWLEC 131 - NSWLEC 2024 case summary — Zoe
[2019] NSWLEC 114
Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291
[2012] NSWLEC 271
Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd
[2009] NSWLEC 4
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121
Issa v The Queen (2013) 248 CLR 483
Source
Original judgment source is linked above.
Catchwords
[2019] NSWLEC 114
Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291[2012] NSWLEC 271
Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd[2009] NSWLEC 4
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121Issa v The Queen (2013) 248 CLR 483[2006] NSWLEC 242
GL v R [2022] NSWCCA 202(2022) 302 A Crim R 188
Greentree v Minister for the Environment and Heritage (2005) 144 FCR 388[2005] FCAFC 128
Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198[2004] FCA 741
Minister for the Environment & Heritage v Greentree (No 3) (2004) 136 LGERA 89[2009] NSWLEC 178
R v DP [2019] NSWCCA 55
R v Kilic (2016) 259 CLR 256[2016] HCA 48
R v Olbrich (1999) 199 CLR 270GreentreeMerrywinebone Pty LtdHarris (No 7) [2022] NSWLEC 153
Stephen Garrett v Dennis Charles Williams (2006) 160 LGERA 11
Judgment (56 paragraphs)
[1]
Background
The salient factual background and a consideration of the evidence giving rise to the offences is detailed at [14]-[40] of Greentree (No 7) and (for concision) is mostly not repeated here. As will be seen, further evidence was received at the sentence hearing including a statement of agreed facts.
In Greentree (No 7), the Court found each of Mr Greentree and Auen Grain guilty of:
1. Carrying out or authorising the clearing of native vegetation on Boolcarrol contrary to s 12 of the NV Act between:
1. 29 December 2016 and 8 May 2017 ('Northern Clearing Event 1');
2. 8 May 2017 and 27 July 2017 ('Northern Clearing Event 2');
3. 2 July 2017 and 16 August 2017 ('Northern Clearing Event 3');
4. 27 July 2017 and 16 August 2017 ('Northern Clearing Event 4');
5. 16 August 2017 and 24 August 2017 ('Northern Clearing Event 5a'); and
6. 27 July 2017 and 24 August 2017 ('Southern Clearing Event 6a'),
together referred herein as the 'NV Act Offences'; and
1. Carrying out or authorising the clearing of native vegetation on Boolcarrol, in a rural regulated area, contrary to s 60N of the LLS Act between:
1. 25 August 2017 and 18 September 2017 ('Northern Clearing Event 5b'); and
2. 25 August 2017 and 18 January 2019 ('Southern Clearing Event 6b'),
together referred herein as the 'LLS Act Offences'.
[2]
The property
On 29 February 2008, Mr Greentree and his business partner, Kenneth Bruce Harris purchased Boolcarrol as tenants in common.
From 29 December 2016 to 19 January 2019, Boolcarrol (approximately 12,590ha) was farmed with an adjoining property that was also jointly held by Mr Greentree and Mr Harris, "Milton Downs" (approximately 21,463ha). The clearing the subject of each of the offences was carried out entirely on Boolcarrol.
[3]
Greentree Farming
At all relevant times, Mr Greentree (the sole director and, as noted below, effectively the sole shareholder of Auen Grain) and Auen Grain, along with Mr Harris and Merrywinebone Pty Ltd (who were also charged with similar offences to Mr Greentree and Auen Grain which were summarily dismissed in Greentree (No 7)), were in a partnership that traded as "Greentree Farming" ABN 65 543 574 712 ('Greentree Farming'). Mr Greentree was the managing partner of Greentree Farming prior to 27 October 2017 (and the joint managing partner alongside Mr Harris from October 2017 onwards) and retained control over the day-to-day operations carried out by Greentree Farming on Boolcarrol. Mr Greentree was one of two shareholders of Auen Grain, and he was the sole shareholder of the company (Prime Grain Pty Ltd), which was the other shareholder.
During the period of the offending, Boolcarrol was farmed and managed by Greentree Farming for the purpose of grazing and cropping. The partnership agreement for Greentree Farming recorded the nature of the business conducted by the partnership as cereal grain growing.
The Greentree Farming partnership was dissolved in December 2019, after the events the subject of these proceedings. The valuation of Boolcarrol in November 2019 was approximately $48,800,000 which consisted of $41,687,775 for land value broken down as follows:
1. $37,178,700 for land suitable for cultivation ($3,900/ha for 9,533ha); and
2. $4,509,075 for land suitable for grazing/timber ($1,475/ha for 3,057ha).
[4]
The clearing
In the period 29 December 2016 to 18 September 2017, a total of 872ha was cleared in the northern area of Boolcarrol and in the period 27 July 2017 to 18 January 2019, a total of 390ha was cleared in the southern area of Boolcarrol. As further detailed below, this amounted to a total area cleared of 1,262ha across the entire property (approximately 10% of Boolcarrol).
As considered in Greentree (No 7), the clearing of native vegetation on Boolcarrol was carried out by (or authorised by) Mr Greentree and undertaken primarily through the use of machinery including a bulldozer and plough and by burning vegetation. Auen Grain caused or permitted Mr Greentree to carry out the clearing on Boolcarrol. Following the clearing, some cultivation activities were carried out in various areas that were the subject of each of the clearing events.
For the purposes of sentencing, an understanding of the nature and extent of the clearing involved in each offence (and the consequence thereof) is necessary. Further consideration of the harm resulting from each event of clearing is detailed later in this judgment in my summary and consideration of the submissions.
[5]
Northern Clearing Event 1
Northern Clearing Event 1 involved clearing of native vegetation by Mr Greentree (or at his direction) over an area of up to 53ha on Boolcarrol on Lot 1 in DP 128418, Lot 2 in DP 753913, and Lot 100 in DP 842249 in the period 29 December 2016 to 8 May 2017. The clearing took place in the areas described in the expert evidence of Paul Spiers (a remote sensing scientist) as polygons 1 - 25, in the paddocks "Big Horse" (polygons 1 - 8) and "Five Mile" (polygons 9 - 25).
Prior to the clearing, this area contained trees with a tree cover density ranging from sparse (approximately 52ha) to very sparse (approximately 1ha), and uncleared grass cover and shrubs.
In relation to Big Horse (polygons 1 - 8), Mr Greentree's evidence (in Greentree (No 7)) was that he caused vegetation to be cleared in these polygons for five reasons. First, to construct two "parallel" farm roads with a fence down the middle, which included removing native trees (species: Coolabah and Box). Mr Greentree indicated that no more than 20 live trees were removed. Neither the road nor the fence was built, although an old fence was removed during the clearing. Second, to clear noxious weeds and to remove saplings, both of which involved indiscriminate clearing of vegetation. Third, to "clean-up" after the March 2017 bushfires ('bushfires'), stubble fires, wind damage and the effects of drought. Fourth, to improve the pasture (in polygons 7 and 8). And, fifth, to create "firebreaks".
In relation to Five Mile (polygons 9 - 25), Mr Greentree's evidence was that he undertook "cleaning-up" of fire-damaged trees and raked (then staked) debris using a bulldozer with a stick rake attached, and then burning those stacks.
In Greentree (No 7), the Court did not accept Mr Greentree's evidence that the clearing in polygons 1 - 3 and 8 was for the construction of two "parallel" farm roads and a fence (Judgment [274]); that the clearing in polygons 1 - 8 was to "clean-up" debris after the bushfires (Judgment [281]-[283], [290]); or for the construction of "firebreaks" (Judgment [284]-[290]); or that the clearing in polygons 1 - 8 was for the purpose of controlling noxious weeds (Judgment [298]). The Court also did not accept that the clearing for "pasture improvement" was permitted because it was "the continuation of existing farming practices", or that clearing for this purpose explained the extent of the clearing undertaken (Judgment [299]).
[6]
Northern Clearing Event 2
Northern Clearing Event 2 involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 33ha on Boolcarrol on Lot 7 in DP 7593913 in the period 8 May 2017 to 27 July 2017. The clearing took place in the paddock "North Ram" (all in polygon 26).
Prior to the clearing, this area contained trees with a tree density of sparse, uncleared grass cover and shrubs.
Mr Greentree gave evidence (in Greentree (No 7)) that he caused clearing of the area in North Ram after the bushfires and removed some trees to build an "airstrip". The Court did not accept Mr Greentree's evidence that the purpose of the clearing was for the building of an airstrip; and did not accept Mr Greentree's evidence that the extent of the loss of vegetation in polygon 26 was caused by activities undertaken following the bushfires (Judgment [152]).
Vegetation cleared in Northern Clearing Event 2 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); eucalyptus populnea (Poplar Box); alectryon oleifolius (Western Rosewood); and einadia nutans (Climbing Saltbush).
[7]
Northern Clearing Event 3
Northern Clearing Event 3 involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 168ha on Boolcarrol on Lots 7 and 8 in DP 753913 in the period 2 July 2017 to 16 August 2017. The clearing took place in the paddock "North Ram" (polygons 27 - 31).
Prior to the clearing, this area contained uncleared grass cover, with trees and shrubs. Tree density in the area was sparse or open trees.
Mr Greentree gave evidence (in Greentree (No 7)) that:
1. All of polygons 27 - 31 were affected by the bushfires and he undertook "clean-up" work of the debris after the fire. The Court did not accept this explanation (Judgment [161], [318]-[321]);
2. "Tilling" for noxious weeds was undertaken. The Court accepted this explanation and found that live vegetation was cleared in this process (Judgment [160]-[161], [324]-[327]);
3. Clearing was undertaken for the purposes of constructing a road and fenceline for paddock subdivision (in polygons 27 - 31), an explanation which was rejected by the Court on the basis that Mr Spiers had excluded routine agricultural management activities from his calculation of the clearing and that such clearing was not undertaken to the minimum extent necessary for such activities or in accordance with the relevant regulations (Judgment [328]); and
4. Clearing was undertaken in polygons 30 and 31 for the purposes of an asserted airstrip (with proposed dimensions being those of polygon 26). Mr Greentree accepted in cross-examination that the land cleared was in excess of what would have been required for an airstrip. The Court found the clearing was not undertaken for the purpose of constructing an airstrip and did not accept Mr Greentree's evidence in this regard (Judgment [162], [316]).
Vegetation cleared from Northern Clearing Event 3 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); eucalyptus populnea (Poplar Box); and alectryon oleifolius (Western Rosewood) (all in polygon 27).
[8]
Northern Clearing Event 4
Northern Clearing Event 4 involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 105ha on Boolcarrol on Lot 100 in DP 842249 in the period 27 July 2017 to 16 August 2017. The clearing took place in the paddock "Five Mile" (polygons 32 and 33).
Prior to the clearing, this area contained uncleared grass cover, with trees and shrubs. The tree density was isolated trees.
Mr Greentree denied clearing in polygons 32 and 33 but gave evidence (in Greentree (No 7)) that polygons 32 and 33 were "cultivated for control of noxious weeds" and he considered no native vegetation had been cleared. The Court found that Mr Greentree's usual method of weed control (being a form of cultivation known as "tilling") was indiscriminate in nature and rejected Mr Greentree's denial of clearing in polygon 33 (Judgment [172]-[174]).
Vegetation cleared from Northern Clearing Event 4 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); salsola australis (Buckbush); sclerolaena muricata (Black Roly Poly); solanum esuriale (Quena); and tribulus micrococcus (Yellow Vine) (polygons 32 and 33); and eucalyptus populnea (Poplar Box) (polygon 26 only).
[9]
Northern Clearing Event 5a
Northern Clearing Event 5a involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 342ha on Boolcarrol on Lots 2, 13, 14 and 24 in DP 753913, Lots 14, 37 and 38 in DP 753916, and Lot 6 in DP 128419 in the period 16 August 2017 to 24 August 2017. The clearing took place in the paddock "South Carrol" (polygons 43 - 45). As will be later considered, for sentencing purposes, this clearing, which was the subject of a charge under s 12 of the NV Act, was undertaken along with Northern Clearing Event 5b, which was the subject of a charge under s 60N of the LLS Act.
Prior to the clearing, this area contained stable groundcover, shrubs and trees with sparse tree density.
Mr Greentree gave evidence (in Greentree (No 7)) in relation to polygons 43 and 44, that the area had been fire-damaged over the years since 2008 (not related to the March 2017 bushfires) and he undertook "clean-up" work in polygon 43, which involved raking (then stacking) timber and burning it, resulting in ash heaps in that area; he had undertaken clearing in polygon 43 to control "saplings", and in polygons 43 and 45 to control "noxious weeds"; and in polygon 44, he did "work to locate" gravel for the purpose of roads on Boolcarrol and in doing so he cleared native vegetation and a few river red gums.
The Court did not accept Mr Greentree's assertion (apart from his admissions regarding the removal of river red gums) that no live vegetation was cleared. The Court did not accept that Mr Greentree removed the river red gums to locate gravel (Judgment [180]). The Court also did not accept Mr Greentree's evidence and the defendants' submissions that the clearing was undertaken for the control of "noxious weeds" (Judgment [344]).
Vegetation cleared from Northern Clearing Event 5a included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); eucalyptus populnea (Poplar Box); alectryon oleifolius (Western Rosewood); sclerolaena muricata (Black Roly Poly); and einadia nutans (Climbing Saltbush).
[10]
Northern Clearing Event 5b
Northern Clearing Event 5b involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 171ha on Boolcarrol on Lots 2, 12, 13, 14 and 24 in DP 753913, Lots 14, 32, 33, 37, 38, 44, 45 and 68 in DP 753916, Lot 1 in DP 128418, Lot 6 in DP 128419, Lot 2 in DP 546098, and Lot 24 in DP 1221147 in the period 25 August 2017 to 18 September 2017. The clearing took place in polygons 34 - 42 and 46 - 59 in the paddocks "North Carrol" and "Barratta". As will be later considered, for sentencing purposes, this clearing was related to Northern Clearing Event 5a, which was the subject of a charge under s 12 of the NV Act.
Prior to the clearing, this area contained mid dense (approximately 3ha), sparse (approximately 138ha), very sparse (approximately 25ha) or isolated (approximately 5ha) trees, together with shrubs and grass cover.
Mr Greentree gave evidence (in Greentree (No 7)) that he undertook clearing of vegetation in this area, including "clean-up" work of debris (dead limbs and stumps) following bushfires and tilling of weeds, which the Court did not accept. Mr Greentree also gave evidence that he had cleared native vegetation (including Poplar Box and Coolabah) in polygons 40 and 41 for the purpose of "an access road and a stock track".
Vegetation cleared from Northern Clearing Event 5b included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah) and eucalyptus populnea (Poplar Box).
[11]
Southern Clearing Event 6a
Southern Clearing Event 6a involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 145ha on Boolcarrol on Lots 34 and 41 in DP 753954, and Lots 69 and 71 in DP 753937 in the period 27 July 2017 to 24 August 2017. The clearing took place in polygons (south) 1 - 3. Similarly to the position regarding Northern Clearing Events 5a and 5b, for sentencing purposes, this clearing, which was the subject of a charge under s 12 of the NV Act, was undertaken along with Southern Clearing Event 6b, which was the subject of a charge under s 60N of the LLS Act.
Prior to the clearing, this area contained uncleared grass cover, shrubs and trees with consistent tree cover density.
Mr Greentree gave evidence (in Greentree (No 7)) that he undertook all the clearing in polygon (south) 1 in the paddock "Wilsons", an area of 58ha of vegetation including native vegetation, for the purpose of constructing a "separate complex" mainly for farm infrastructure, including an airstrip, cattle yards, bunkers, grain silos, machinery sheds, and a proposed residence, in addition to controlling saplings and noxious weeds.
The Court did not accept Mr Greentree's evidence (in Greentree (No 7)) that the reason for the clearing of vegetation in polygon (south) 1 was for the purpose of building an airstrip, infrastructure, and/or "separate complex" (Judgment [187]). In relation to polygon (south) 2, Mr Greentree's evidence was, and the Court did not accept, that he knocked over "dangerous" dead trees, and otherwise denied clearing in that polygon (Judgment [188]). Mr Greentree denied clearing in polygon (south) 3, saying it had been the subject of "pasture improvements" by the prior owners of Boolcarrol. The Court did not accept that evidence (Judgment [189]).
Vegetation cleared from Northern Clearing Event 6a included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah), sclerolaena muricata (Black Roly Poly) and boerhavia domini (Tarvine).
[12]
Southern Clearing Event 6b
Southern Clearing Event 6b involved clearing of vegetation by Mr Greentree (or at his direction) over an area of 245ha on Boolcarrol on Lots 1, 3, 18, 19, 42, 52, 69, 71, 82 and 83 in DP 753937, and Lot 25 in DP 1221147 in the period from 25 August 2017 to 18 January 2019. The clearing took place in polygons (south) 2 - 18. As stated above, this clearing event was related to Northern Clearing Event 6a, which was the subject of a charge under s 12 of the NV Act.
Prior to the clearing, the area contained trees, shrubs and groundcover.
In evidence given (in Greentree (No 7)), Mr Greentree denied any clearing in polygons (south) 5 - 7 and 10 - 16; the Court did not accept this evidence (Judgment [407]-[408]). Mr Greentree also gave evidence, which was not accepted by the Court, that the clearing in polygons 4 - 18 was for the purpose of an "access road" (polygons 9 - 11); and "clean-up" work as well as for the cultivation of "noxious weeds" (polygons 6 - 8) (Judgment [467]-[474]).
Vegetation cleared from Northern Clearing Event 6b included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah), and eucalyptus populnea (Poplar Box).
[13]
Evidence
In this sentence hearing, in addition to the evidence adduced at the liability hearing, the Court received a statement of agreed facts filed 30 October 2023, and the prosecutor read the expert evidence of Terrence Michael Mazzer (an ecologist and zoologist) (paragraphs 7, 9, 53-64, 69, 71-76 of the "Northern Report" and paragraphs 7, 9, 51-61, 65, 67-72 of the "Southern Report" only), the affidavits of Travis Christopher Peake (an ecologist) affirmed 28 November 2023 (annexing an expert report) and Gareth Craig Pickford (the Chief Remote Pilot at the NSW Department of Planning and Environment) affirmed 4 December 2023.
The defendants read the affidavits of Michael Anthony Giugni affirmed 5 February 2024, Anthony Eyres affirmed 1 February 2024, Ian Bailey affirmed 1 February 2024, Joshua Lawrence affirmed 31 January 2024, and Kim Greenaway sworn 5 February 2024.
The Court also received a valuation report of Milton Downs (including Boolcarrol) dated 7 November 2019; copies of various financial statements for Auen Grain and Greentree Farming; and a statement of evidence of David Robertson (a senior ecologist) dated 22 May 2020.
[14]
NV Act Offences
During the charge period of the NV Act Offences (29 December 2016 to 24 August 2017), s 12 of the NV Act provided:
12 Clearing requiring approval
(1) Native vegetation must not be cleared except in accordance with:
(a) a development consent granted in accordance with this Act, or
(b) a property vegetation plan.
(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the [Environmental Planning and Assessment Act 1979 (NSW)] for a contravention of that Act.
…
Section 126 of the Environmental Planning and Assessment Act 1979 (NSW) (during the charge period of the NV Act Offences) provided:
126 Penalties
(1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.
Pursuant to s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'), a penalty unit during the charge period of the NV Act Offences was $110 per unit. Accordingly, the maximum penalty that can be imposed on each of the NV Act Offences for a contravention of s 12(1) of the NV Act is $1,100,000.
[15]
LLS Act Offences
During the charge period of the LLS Act Offences (25 August 2017 to 18 January 2019), s 60N(1) of the LLS Act provided:
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.
Section 60N(2) provides that the higher maximum penalty for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment 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.
[16]
Purposes of sentencing
The purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is a need for the Court through the sentence it imposes to denounce unlawful conduct; hold the offender accountable for its actions; and ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291; [2018] NSWLEC 205 at [91]; Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [168].
In fixing the appropriate penalty for each of the offences, s 3A of the Sentencing Act relevantly provides:
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,
…
(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.
[17]
Statutory matters to be taken into account in sentencing
In relation to both the NV Act Offences and the LLS Act Offences, s 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offender, including relevant factors in aggravation under s 21A(2) and relevant factors in mitigation under s 21A(3). Relevant to the submissions made in relation to the present offences, s 21A provides:
21A Aggravating, mitigating and other factors in sentencing
…
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
…
(o) the offence was committed for financial gain,
…
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
…
(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
…
(m) assistance by the offender to law enforcement authorities,
…
In relation to the LLS Act Offences, the Court is also required to consider the matters set out in s 13.12 of the Biodiversity Conversation Act 2016 (NSW) ('BC Act') which relevantly provides:
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,
…
(f) whether the offence was committed for commercial gain.
(2) The court may take into consideration other matters that it considers relevant.
[18]
Objective seriousness of the offences
The primary factor to be considered in sentencing is the objective seriousness of the offence which fixes both the upper and lower limits of proportionate punishment - the upper, because a sentence should never exceed that which can be identified as proportionate to the gravity of the particular offence; and the lower, because allowance for the subjective factors can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [139]-[140].
The objective circumstances relevant to each offence are: first, the nature of the offence; second, the maximum penalty; third, the environmental harm; fourth, the foreseeability of the risk of environmental harm; fifth, the practical measures to prevent environmental harm; sixth, the control over the causes giving rise to the offence; seventh, the defendant's intentions in committing the offence; and eighth, the defendant's financial gain from committing the offence: Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [51].
As will be seen, there was disagreement between the parties in relation to matters concerning the and the extent of environmental harm and the defendants' state of mind.
[19]
Nature of the offences
The extent to which a defendant's conduct offends against the legislative objectives expressed or inherent in the specific offence provision is fundamental in the assessment of objective seriousness for environmental offences: Stephen Garrett v Dennis Charles Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Rae at [15].
In relation to the NV Act Offences, the relevant objects contained in s 3 of the NV Act identify the purpose of creating the offence in s 12 of the NV Act. The objects are:
(a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and
(b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and
(c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and
(d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and
(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,
in accordance with the principles of ecologically sustainable development.
The objects of the LLS Act Offences are stated in s 3 of the LLS Act, which identify the purpose of creating the offence in s 60N of the LLS Act including ensuring the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development (described in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW)) (pursuant to s 3(e) of the LLS Act).
Possession of the requisite consent to clear an area of native vegetation is the touchstone of the regulatory scheme. It is the primary basis upon which the objects of the NV Act and LLS Act (including the prevention of broadscale clearing and the protection of native vegetation of high conservation value) are sought to be achieved.
Each of the offences committed by each defendant, considering the significant area of clearing and the significant period of time over which the offending took place without compliance with any of the regulatory provisions and consents, offends the legislative objectives expressed in the above provisions and, in doing so, each offence undermines the integrity of the regulatory framework for environmental protection and the objects of the NV Act and the LLS Act.
[20]
Maximum penalties
The maximum penalties for the statutory offences reflect the public expression by Parliament of the seriousness of an offence and provides a "sentencing yardstick" for the offences before the Court: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]; Markarian at [31].
The sentencing court is "to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category": R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].
The NV Act Offences each carry a maximum penalty in the amount of $1,100,000 per offence for both Auen Grain and Mr Greentree (see [57] above). And, the LLS Act Offences each carry a maximum penalty (if the offence was committed intentionally and caused, or was likely to cause, significant harm to the environment) in the amount of $5,000,000 for Auen Grain (a corporation) and $1,000,000 for Mr Greentree (an individual) (see [58] above).
The prosecutor submits that the Court would be satisfied beyond reasonable doubt that each of the clearing events the subject of the LLS Act Offences were committed intentionally and caused, or were likely to cause, significant harm to the environment. Alternatively, the prosecutor submits that if the Court is not satisfied that the higher maximum penalties apply, the lower maximum penalties of $2,000,000 for Auen Grain and $500,000 for Mr Greentree apply.
The defendants accept that the higher maximum penalty applies in relation to the two LLS Act Offences - Northern Clearing Event 5b and Southern Clearing Event 6b, because, first, the Court made findings that the clearing was committed intentionally as it was undertaken with knowledge that it would include the clearing of some native vegetation; second, the increased maximum penalty applies to offences that were "likely" to cause significant environmental harm (even if actual harm has not been established); and third, it was pleaded in each of the summonses for the LLS Act Offences that they were committed intentionally and caused, or were likely to cause, significant environmental harm.
[21]
Extent of harm
The prosecutor relies on the expert evidence of Mr Mazzer, Mr Spiers and Mr Peake and submits that although the very nature of the offence of clearing native vegetation denotes loss of vegetation (meaning that the offence itself indicates that harm has been caused), substantial harm should be considered by having regard to the nature of the offence provisions and the conduct that is caught by it.
The prosecutor submits - adopting the position of Preston CJ of LEC in Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114 ('Brummell') at [38] - that a conclusion as to substantial harm in relation to each of the offences can be made by reference to, first, the scale of the clearing; second, the status of the cleared native vegetation as part of an endangered ecological community under the Threatened Species Conservation Act 1995 (NSW) (and by dint of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act')) and the BC Act; third, ecological and conservation value of the cleared native vegetation, including the provision of habitat for endangered species of fauna and flora with reference to hollow-bearing trees; and fourth, the nature of the clearing being inconsistent with the recovery action needed for the particular plant community type ('PCT').
In accordance with these factors outlined in Brummell, the prosecutor's principal submission is that the harm caused by the clearing more generally (with no particular distinction between each of the clearing events) was substantial for the purposes of s 21A(2)(g) of the Sentencing Act having regard to the scale of clearing, the number of species cleared, and the ecological and conservation value of a significant portion of the vegetation as indicated in the unchallenged evidence of Mr Peake. In addition, in relation to the LLS Act Offences, the prosecutor again submits that Northern Clearing Event 5b and Southern Clearing Event 6b caused, or were likely to cause, significant harm to the environment such that the higher penalties are applicable to those offences.
In relation to the impact of the clearing, the prosecutor submits that the defendants cleared native vegetation in an area of 1,262ha in woodland and open forest communities which ranged in density from mid-dense (50% to 80% crown cover) to sparse (20% to 50% crown cover) and very sparse. The defendants also cleared native understorey plants and groundcover.
[22]
Foreseeability of risk of harm
The prosecutor submits that in relation to each offence, the Court can be satisfied that the risk of harm associated with clearing large sections of native vegetation was "self-evident" to the defendants particularly given their history of involvement in proceedings relating to the same type of offending, including in Director-General, Department of Land and Water Conservation v Ronald Lewis Greentree [1998] NSWLEC 30 ('Greentree 1998'); Director-General Department of Land and Water Conservation v Greentree [2004] NSWLEC 584 ('Greentree 2004'); Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198; [2004] FCA 741 ('Greentree (No 2)') and Minister for the Environment & Heritage v Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317; ('Greentree (No 3)'). The prosecutor contends that there is clear foreseeability of environmental harm that elevates the objective gravity of the offences. The defendants make no submissions concerning foreseeability of risk of harm.
I find beyond reasonable doubt that in relation to each of the offences, the defendants' own foresight of the harm that could be caused by their clearing of large sections of Boolcarrol containing native vegetation is manifest and reasonably foreseeable.
[23]
Practical measures to prevent harm
The prosecutor submits and I find beyond reasonable doubt that there is no evidence before the Court indicating that Mr Greentree and Auen Grain (by attribution), took steps to ameliorate the risk of harm caused by the clearing. I also consider that the objective seriousness of the offences is elevated where, under the respective legislative regimes, clearing is permitted with relevant approvals that the defendants did not seek to obtain despite being aware of such requirements. The failure of the defendants to obtain any approvals is a practical measure to prevent, control or mitigate harm to the environment which the defendants did not choose to do.
[24]
Control over the causes giving rise to the offences
In relation to each offence, I find that Mr Greentree personally carried out (or directed Greentree Farming employees to carry out) all of the clearing. As such, Mr Greentree and Auen Grain (by attribution) had total control over the causes of the harm to the environment occasioned by the commission of each of the offences.
[25]
Financial gain
The prosecutor submits that the clearing on Boolcarrol was undertaken in furtherance of the commercial farming enterprise which Mr Greentree and Auen Grain were engaged in at the time. The prosecutor submits that there is clear evidence of an intention by the defendants to undertake "broadacre" clearing when Boolcarrol was purchased and that the clearing of 1,262ha across the property was self-evidently done for the purpose of making more land available for cultivation.
The prosecutor points to the valuation obtained in November 2019, at which time, land on Boolcarrol that was suitable for cultivation was significantly higher in value ($3,900/ha) than land on Boolcarrol that was suitable for grazing (assessed as $1,475/ha). The net profit for Greentree Farming from farming operations for the financial year ending 30 June 2017 was an approximate amount of $3,400,000 and in the financial year ending 30 June 2018 was in the approximate amount of $600,000. In addition, in the financial year ending 30 June 2017, profit allocation showed an amount of approximately $189,000 allocated to Mr Greentree and approximately $9,400,000 allocated to Auen Grain. Although the prosecutor does not suggest that this profit is entirely attributable to the clearing activities the subject of these offences, Mr Greentree and Auen Grain have clearly benefited from the commercial operations of Greentree Farming.
The defendants accept that it is open to the Court to make a finding that the offences were committed for financial gain. Additionally, the defendants note that while there is no proper evidentiary basis for the Court to make any findings on the specific quantity of financial gain, it is open to the Court to find in general terms that land that is suitable for cultivation is more valuable than land that is only suitable for grazing livestock.
I accept the prosecutor's submissions and I find beyond reasonable doubt that each of the offences was committed by each defendant for financial gain and in relation to each offence, this constitutes an aggravating factor increasing the objective seriousness of the offending conduct.
[26]
State of mind in committing the offences
Offences against s 12 of the NV Act and s 60N of the LLS Act are offences of strict liability. A strict liability offence that is committed intentionally, negligently or recklessly is objectively more serious than one not so committed and the state of mind of an offender at the time of the offence can exacerbate the objective culpability of an offender: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [123]; Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 at [72].
As noted above, in the case of the LLS Act Offences, the higher maximum penalty applies where an offence was committed intentionally and caused, or was likely to cause, significant harm to the environment. The prosecutor submits that each of the NV Act Offences and the LLS Act Offences were committed intentionally by the defendants to remove native vegetation to make way for broadscale cropping and that Auen Grain caused or permitted Mr Greentree to carry out the clearing. The defendants accept the prosecutor's submissions that in relation to the LLS Act Offences, the higher maximum penalties apply.
As noted by Preston CJ of LEC in Brummell at [51]-[53], the essential difference between the mental states of intention and recklessness and negligence is that the first two states of mind are measured on a subjective standard (the referent being the offender) while the third state of mind is measured on an objective standard (the referent being a hypothetical reasonable person). 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: Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 ('Ghossayn') at [70].
The prosecutor submits that it is beyond reasonable doubt that Mr Greentree (or at his direction) intentionally cleared 1,262ha of native vegetation because Boolcarrol was purchased by Mr Greentree with an intention to undertake "broadacre" clearing and during the clearing, no distinction was made between noxious weeds and "everything else". And, that this state of mind is further evidenced by the methods of clearing through machinery (such as offset disc ploughs or cutter bars on a bulldozer) to plough, bulldoze or rake saplings or vegetation including grasses across the surface of the ground. Further, Mr Greentree accepted that in using these methods, native vegetation could have been caught up in this process.
[27]
Conclusion on objective seriousness
The prosecutor summarises the offending by Mr Greentree and Auen Grain as, intentional broadscale clearing of native vegetation over a not insignificant portion of Boolcarrol (10%); carried out for financial gain; and which caused, or was likely to cause, significant harm to the environment including native vegetation of high conservation value. The prosecutor submits that the offences committed are in the mid to serious range of offences of this type. Specifically, the prosecutor submits that Northern Clearing Events 1, 3, 5a and 5b and Southern Clearing Events 6a and 6b are in the "serious" range of objective seriousness, and that Northern Clearing Events 2 and 4 are in the "mid to serious" range.
The defendants submit that the offences fall within the "mid-range" of objective seriousness. Specifically, that Northern Clearing Events 1, 2 and 5b and Southern Clearing Event 6b are in the "mid-range", Northern Clearing Events 3 and 4 are in the "lower mid-range" and Northern Clearing Event 5a and Southern Clearing Event 6a are in the "upper mid-range".
Although a sentencing judge is not required to nominate a point on a scale when assessing the objective seriousness of an offence and specific characterisation of objective seriousness is not a necessary component of the sentencing task because it "…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender", it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42].
For the reasons that I have given, and the findings made above, in particular that the offending of Mr Greentree and Auen Grain amounted to intentional broadscale clearing of native vegetation over a not insignificant (10%) proportion of Boolcarrol (while conscious that there are eight separate offences under consideration), and that each offence was carried out for financial gain which caused, or was likely to cause, significant harm to the environment including to native vegetation of high conservation value and that the clearing was carried out repeatedly and systematically, I have concluded that the specific offences committed by Mr Greentree and Auen Grain (by attribution) fall within the following ranges of objective seriousness (conscious both of the individual seriousness as well as the overall objective seriousness of the conduct comprising those offences):
1. Northern Clearing Event 1: serious range;
2. Northern Clearing Event 2: mid to serious range;
3. Northern Clearing Event 3: serious range;
4. Northern Clearing Event 4: mid to serious range;
5. Northern Clearing Event 5a: serious range;
6. Northern Clearing Event 5b: serious range;
7. Southern Clearing Event 6a: serious range; and
8. Southern Clearing Event 6b: serious range.
[28]
Subjective circumstances
Within the limits set by the objective seriousness of each offence, the Court is to take into account the favourable factors personal to the defendants when determining the appropriate penalty to impose on each of them. Although in this part of the judgment I do not deal with the offences severally, and there is overlap (and differences in the level of offending) between some of the offences and the two defendants, I remain conscious that each defendant has been found guilty of eight separate offences.
[29]
Lack of prior convictions
It is a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act if a defendant has no prior convictions. The prosecutor submits that this mitigating factor does not apply to the defendants as Mr Greentree and Auen Grain were found to have contravened s 16(1) of the EPBC Act in 2004 when they cleared and ploughed an area of 100ha on the Windella Ramsar site (which is a declared Ramsar Wetland) west of Moree. The Court found that the contravention was deliberate, and that Mr Greentree was well aware that he was not entitled to clear the land and that he would contravene the EPBC Act: Greentree (No 2) and Greentree (No 3).
Although the offences in Greentree (No 2) and Greentree (No 3) related to the EPBC Act, rather than the NV Act and LLS Act as in the current offences, the prosecutor notes that the convictions in Greentree (No 2) and Greentree (No 3) still apply as antecedents for the defendants. The prosecutor points to Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; [2009] NSWLEC 4, whereby Lloyd J referred to the penalties imposed in Greentree (No 3) for contravening the EPBC Act when considering comparable cases for the purpose of imposing a sentence for offences contrary to s 12 of the NV Act.
The defendants submit that they have not been convicted of a prior offence of "vegetation clearing" and that the decision in Greentree (No 2) and Greentree (No 3) which the prosecutor raised in par [150] above, concerns the finding on the balance of probabilities in a civil penalty proceeding under s 481(1) of the EPBC Act concerning Mr Greentree and Auen Grain. And, further, that other than traffic infringements, Mr Greentree has no prior criminal convictions.
The defendants note that Auen Grain has a single prior conviction for a work, health and safety offence arising from an injury to an agricultural worker: Safework v Auen Grain Pty Limited & Merrywinebone Pty Limited [2015] NSWDC 229. And, that it was made clear in that decision that there were strong mitigating factors taken into account by the sentencing judge, including a plea of guilty, remorse and favourable findings based on Mr Greentree's evidence on sentence.
The defendants ultimately submit that the mitigating factor under s 21A(3)(e) of the Sentencing Act applies to each of the defendants because Mr Greentree and Auen Grain have not been previously convicted of the subject offences.
[30]
Previous good character
The defendants provided the Court with a number of character references including from Ms Kim Greenway, who has known Mr Greentree since the 1990s and speaks with an appreciation of the efforts Mr Greentree made for the Rowena community such as giving his time and resources to the local school, lobbying for a new school, supplying equipment to the school and spearheading the construction of a swimming pool for the community. Ms Greenway indicates that Mr Greentree used his organisational skills to rally the community for fundraising and is highly regarded in the community.
Mr Ian Bailey deposed that he has known Mr Greentree for 35 years and speaks of Mr Greentree's involvement in the Mungindi community from the early 2000s and that Mr Greentree "threw" himself into the local community, organising and underwriting community events, including the Mungindi Art Show, regular local race meetings, the Mungindi Music festival, the Mungindi Amateur Dramatic Society and the Mungindi Show.
Mr Anthony Eyres deposed that he has known Mr Greentree since 2000 and speaks to Mr Greentree's chairmanship of the Bread Research Institute and more recently, the Grain Growers Association. He refers to Mr Greentree's involvement in securing greater control over industry assets for grain growers, forming links with interstate grain growers' associations and promoting research into grain varieties.
Mr Joshua Lawrence deposed that Mr Greentree is committed to improving the wheat industry through volunteering many hours of his own time and resources.
I consider that Mr Greentree is entitled to some mitigatory benefit based upon his previous good character as canvassed in the affidavits to which I have been referred. I do not consider that Auen Grain is entitled to similar mitigatory benefit.
[31]
Remorse for the offences
The prosecutor notes that there is no evidence of insight, contrition, or remorse from the defendants and the defendants concede that there is no evidence of remorse and, in the circumstances, this mitigating factor does not apply.
[32]
Plea of guilty
The defendants did not enter a plea of guilty.
[33]
Assistance to the authorities
Following the liability hearing, the defendants agreed to the statement of agreed facts however, I remain conscious of the comments of the Court of Criminal Appeal in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 458 ('ACE Demolition') at [96] that participation in an agreed statement of facts will not ordinarily fall within s 21A(m) of the Sentencing Act. I do not consider that either defendant is entitled to any mitigatory benefit related to any assistance to the authorities.
[34]
General and specific deterrence
The sentences that I am to impose for each of the current offences will need to reflect both general and specific deterrence. The prosecutor submits that here, the purpose of both general and specific deterrence is "stark" given that specific deterrence should be given substantial weight in having regard to Mr Greentree and Auen Grain's intentional commission of the offences that occurred over a significant area of Boolcarrol as well as over a significant period of time. Further, in relation to general deterrence, the prosecutor submits that it is highly desirable to send a clear message to the public about the need to uphold the integrity of the environmental protection legislative regime in the carrying out of farming business on land. In particular, that it is integral to the system that approvals are required and statutory exemptions are carefully circumscribed and activities on land cannot be undertaken with reckless disregard for the legislative regime.
The defendants accept that the sentences will need to reflect the importance of general deterrence in relation to this category of the offences. In relation to specific deterrence, while the defendants accept that the Court is open to reflect a component of specific deterrence within the sentences, they submit that specific deterrence should play a smaller role in the sentencing exercise currently before the Court as there have been substantial changes to the defendants' land holdings and agricultural activities since these proceedings began including that the defendants are now generally involved in different forms of agricultural activities where opportunities to undertake similar land clearing activities are unlikely to arise.
I consider that the penalties imposed by the Court must serve as a general deterrent and the principle of general deterrence is of central importance in the sentencing for environmental offences. Further, as referred to at [69] above, persons will not be deterred from committing environmental offences by nominal fines and, deterrence is needed to uphold the integrity of the system of protecting and preserving native vegetation and endangered ecological communities, and there is a need to send a warning to others who may be minded to breach the law in a similar way that such actions will be visited with significant consequence. It is also trite that any penalty imposed must be more than the cost of doing business.
[35]
Capacity to pay a fine
In exercising my discretion to fix the amount of a fine, I am required by s 6 of the Fines Act 1996 (NSW) to consider:
1. such information regarding the means of each defendant as is reasonably and practicably available to the Court for consideration; and
2. such other matters as, in the opinion of the Court, are relevant to the fixing of that amount.
The defendants did not submit that they lack the means to pay a financial penalty. Accordingly, in fixing the amount of fines for each of the offences, I have little basis upon which to consider the means of the defendants.
[36]
Evenhandedness and consistency in sentencing
In determining the appropriate penalty in relation to each offence, the Court should be consistent with any patterns of sentencing for like offences.
The prosecutor provided a schedule of comparable cases in relation to clearing of native vegetation under s 12 of the NV Act to assist the Court with achieving consistency in sentencing including: Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137; Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd [2020] NSWLEC 47; Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy [2019] NSWLEC 120; Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 ('Traikaero'); Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69; Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54; Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141; Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54; Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150; Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159; Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119; Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110.
Conscious that the Court cannot determine the appropriateness of sentences by way of superficial comparison of sentences imposed on offenders who similarly cleared land, and that care must be taken when comparing cases as there may be many divergent facts and circumstances, I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders that led the sentencing court to impose the various sentences in each of the decisions to which I have been referred. Noting that there have been few cases dealing with offences against s 60N of the LLS Act, I find the following to be of some assistance:
1. Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137 is the most recent matter where the Court has passed sentence for offences contrary to s 12 of the NV Act. The defendant pleaded guilty to clearing 508ha of native vegetation and the Court accepted that the defendant had acted recklessly at the time of offending with disregard for whether a consent was required for the clearing. The Court found the offending to be in the high mid-range of seriousness due to the extent of the harm (actual and likely) to the environment and the defendant's state of mind in carrying out the offence. The Court determined that the appropriate sentence was $450,000 and taking into account a 10% discount for a guilty plea, imposed a fine of $405,000.
2. In Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54, the defendant pleaded guilty to an offence contrary to s 12 of the NV Act. The clearing totalled 500.8ha of native vegetation comprising predominantly sparse and very sparse isolated plants. The clearing was carried out by contractors. The clearing was found to fall within the middle of the mid-range of objective seriousness due to the nature of the environmental harm (found to be substantial) and that the offence was carried out for financial gain (development of the farming property). The Court considered the appropriate starting penalty was $450,000 and, allowing a 22.5% discount for an early guilty plea, imposed a fine of $348,750.
3. In Turnbull v Chief Executive of the Office of Environment & Heritage [2018] NSWCCA 229 the defendant pleaded guilty to clearing 103.6ha of native vegetation. The primary judge concluded that the clearing caused a high level of irremediable environmental harm, and the land had been used by the appellant for growing crops since 2013. It was found that the appellant had no intention of restoring the lost vegetation or offering any compensation such as increasing biodiversity on other land. The defendant was found to be aware of the illegality of his conduct and had promised environmental officers he would cease clearing. The conduct was found to be deliberate and premeditated and the defendant foresaw the risk of the harm that eventuated. The defendant had no prior convictions including for environmental offences and was otherwise of good character. On appeal, the first instance sentence of a fine of $315,000 was found to be within the appropriate range and was not manifestly excessive.
4. In Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90, the defendants pleaded guilty to clearing 264ha of native vegetation and clearing an additional 218 paddock trees from other areas of the property. The company, Traikaero Pty Ltd, owned the property on which the clearing took place and Mr Woods was the sole director of the company. The clearing took place over a period of five months and the Court found the defendants' conduct was reckless, committed for financial gain and caused actual environmental harm. The defendants could foresee the risk of harm caused and should have refrained from the clearing until and unless the clearing was authorised. The defendants did not have any prior convictions and Mr Wood was of good character. The Court considered the appropriate starting penalty for each defendant was $300,000 and, allowing a 22.5% discount for their guilty plea, imposed a fine of $232,500. The Court also found that the aggregate fine of $465,000 ($232,500 each) should be reduced to $340,000 ($170,000 each) to take into account the nature of the relationship between the defendants.
5. Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54 is a recent matter where the Court has passed sentence for an offence contrary to s 60N of the LLS Act. The defendant pleaded guilty to clearing 5ha of native vegetation, 4.92ha of which involved extensive clearing of native vegetation. The Court found that substantial harm was caused as the vegetation cleared had significant ecological value. The defendant had full control over the clearing. The defendant had failed to comply with a Development Control Order, a Stop Work Order, and a Remediation Order. The defendant was of good character and was unlikely to reoffend. The defendant showed limited remorse. The maximum penalty in this case was $500,000 (as the prosecutor did not contend that the defendant committed the offence intentionally). The Court considered that the appropriate starting penalty for the defendant was $180,000, discounted for the utilitarian value of an early plea to $135,000.
[37]
Totality and relationship between the defendants
Where the Court is sentencing defendants for more than one offence, the totality principle requires consideration. As Preston CJ of LEC stated in Ghossayn at [128] (in terms recently endorsed by Leeming JA in ACE Demolition at [108]-[111]):
"[128] The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate" and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. In the case of a sentence of a fine, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50]."
The defendants submit that the totality principle has material application to the sentencing of the defendants because the NV Act Offences and the LLS Act Offences should all be characterised as an "ongoing course of conduct" involving land clearing as the offending occurred on connected parcels of land within the same rural property, being Boolcarrol, and were committed within the context of the overarching agricultural operations associated with that rural property.
Although I consider that the offences could be described as arising out of one ongoing criminal enterprise, I consider that (as submitted by the prosecutor) the course of conduct engaged in; the period over which the offences were committed; and the scale of the offending, are also relevant to my consideration of the application of the principle of totality. In this regard, I have considered R v Wheeler [2000] NSWCCA 34 at [36]-[37], where the NSW Court of Criminal Appeal observed:
"[37] …[A] person who commits a deliberate series of discrete offences ... must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour."
[38]
Costs
The prosecutor seeks an order for payment of its professional costs under s 257B of the Criminal Procedure Act 1986 (NSW) and submits that payment of the prosecutor's costs is a common aspect of sentencing for Class 5 proceedings and that it is embedded in the general pattern of sentencing for all offences.
The defendants have agreed (on a joint and several basis) to pay the prosecutor's costs in all proceedings in the total amount of $278,857.41. I have considered the defendants' agreement to pay costs in this amount in my consideration of the appropriate penalties to impose on each of them and I make orders in each proceeding to reflect this agreement.
[39]
Moiety of fines
The prosecutor seeks an order under s 122(2) of the Fines Act 1996 (NSW) that half of each fine payable by each defendant be paid to the NSW Department of Climate Change, Energy and Water for investigation costs in relation to the investigation of the offences and to support its environmental law enforcement and investigation activities.
I consider that the power in s 122(2) of the Fines Act 1996 (NSW) is able to be exercised by this Court in proceedings where a fine or other penalty is imposed for a statutory offence and I find that it is appropriate to exercise that power to direct that one half of the fine imposed in relation to each defendant be paid to the Office of Environment and Heritage.
[40]
In proceedings 2019/00265266:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265266.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $43,200.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[41]
In proceedings 2019/00265268:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265268.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $43,200.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[42]
In proceedings 2019/00265270:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265270.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $28,800.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[43]
In proceedings 2019/00265272:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265272.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $28,800.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[44]
In proceedings 2019/00265274:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265274.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $136,800.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[45]
In proceedings 2019/00265276:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265276.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $136,800.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[46]
In proceedings 2019/00265278:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265278.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $86,400.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[47]
In proceedings 2019/00265280:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265280.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $86,400.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[48]
In proceedings 2019/00265282:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265282.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $288,000.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[49]
In proceedings 2019/00265284:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265284.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $288,000.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[50]
In proceedings 2019/00265290:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265290.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $115,200.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265292, 2019/00265294.
[51]
In proceedings 2019/00265292:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265292.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $115,200.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265294.
[52]
In proceedings 2019/00265286:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) in proceedings 2019/00265286.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $136,800.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[53]
In proceedings 2019/00265288:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265288.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $158,400.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265290, 2019/00265292, 2019/00265294.
[54]
In proceedings 2019/00265294:
1. Ronald Lewis Greentree is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265294.
2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $180,000.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292.
[55]
In proceedings 2019/00265264:
1. Auen Grain Pty Ltd is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265264.
2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $216,000.
3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.
4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.
5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.
[56]
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: 29 November 2024
Parties
Applicant/Plaintiff:
Secretary, Department of Planning, Industry and Environment
ritage v Woods [2019] NSWLEC 90
Director-General Department of Land and Water Conservation v Greentree [2004] NSWLEC 584
Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; [2009] NSWLEC 4
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119
Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110
Director-General, Department of Land and Water Conservation v Ronald Lewis Greentree [1998] NSWLEC 30
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Alcobell Pty Ltd [2015] NSWLEC 123
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127
Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
GL v R [2022] NSWCCA 202; (2022) 302 A Crim R 188
Greentree v Minister for the Environment and Heritage (2005) 144 FCR 388; [2005] FCAFC 128
Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198; [2004] FCA 741
Minister for the Environment & Heritage v Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317
Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42
Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v DP [2019] NSWCCA 55
R v Kilic (2016) 259 CLR 256; [2016] HCA 48
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Youkhana [2004] NSWCCA 412
Safework v Auen Grain Pty Limited & Merrywinebone Pty Limited [2015] NSWDC 229
Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54
Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153
Stephen Garrett v Dennis Charles Williams (2006) 160 LGERA 11; [2006] NSWLEC 785
Turnbull v Chief Executive of the Office of Environment & Heritage [2018] NSWCCA 229
Category: Sentence
Parties: Secretary, Department of Planning, Industry and Environment (Prosecutor)
Ronald Lewis Greentree and Auen Grain Pty Ltd (Defendant)
Representation: Counsel:
S Callan SC (Prosecutor)
D Jordan SC (Defendant)
Vegetation cleared in Northern Clearing Event 1 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus populnea (Poplar Box) (polygons 7, 14 and 25); alectryon oleifolius (Western Rosewood) (polygon 25 only); einadia nutans (Climbing Saltbush) (polygons 7 and 25); salsola australis (Buckbush) (polygons 7 and 25); and paspalidium constrictum (Box Grass) and paspalidium jubiflorum (Warrego Grass) (both in polygon 25 only).
Under the BC Act, a native vegetation offence means "any offence under the native vegetation legislation" and "native vegetation legislation" is defined to include the provisions listed under "Part 5A (Land management (native vegetation)) of … the Local Land Services Act 2013". Section 60N of the LLS Act is listed in Part 5A of the BC Act.
Before considering the various sentencing factors and remaining conscious that there are two defendants before the Court for sentencing, each in relation to eight separate offences, I note four matters.
First, the Court's task is to determine the sentence that should be imposed on each of Auen Grain and Mr Greentree in relation to each offence. In arriving at the appropriate sentences, the Court may not take into account facts adverse to the interests of each of the defendants unless those facts have been established beyond reasonable doubt. However, if there are circumstances in favour of the defendants that the Court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
Second, the appropriate sentence in each offence needs to reflect, and be proportionate to, the objective seriousness of the offences in relation to each of the NV Act Offences and the LLS Act Offences and the subjective and mitigating circumstances of the defendants.
Third, the appropriate sentence in relation to each offence is to be arrived at by an instinctive or intuitive synthesis of all the relevant objective and subjective circumstances: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37]-[39] (Gleeson CJ, Gummow, Hayne, Callinan JJ) at [70] (McHugh J) ('Markarian').
Fourth, in relation to offences involving clearing of native vegetation specifically, in Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 ('Rae'), Preston CJ of the LEC stated at [13]:
"…The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the offender and also of other owners, occupiers and developers of land on which native vegetation occurs who might be tempted to clear illegally by the prospect that only light punishment will be imposed by the courts. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational."
The prosecutor relies principally on Mr Peake's overall conclusion that the clearing events resulted in environmental harm, including significant environmental harm, which harm persists due to the loss of vegetation and associated fauna habitat. In particular, Mr Peake (and Mr Mazzer) opined that the vegetation communities on Boolcarrol were part of the Coolabah - Black Box woodland in the Darling Riverine Plains, Brigalow Belt South, Cobar Peneplain and Mulga Lands Bioregions - endangered ecological community ('EEC') listed under the BC Act ('Coolabah - Black Box BC Act EEC') and under the EPBC Act ('Coolabah - Black Box EPBC Act EEC'). Noting that the listing of vegetation as an EEC is a recognition of the rarity and vulnerability of the PCT to further loss and degradation such that it is facing a very high risk of extinction in NSW in the near future.
The prosecutor directed the Court to Mr Peake's detailed evidence where he described the impact of each of the clearing events and concluded that environmental harm, including significant environmental harm, resulted from each of the clearing offences. The prosecutor points to the following instances where Mr Peake regarded the harm caused as "highly significant" or "significant" in relation to each of the clearing events.
1. Northern Clearing Event 1 resulted in the clearing of up to 53ha comprising 34.88ha of highly cleared vegetation types, which clearing had:
1. a significant impact on the Coolabah - Black Box BC Act EEC as it resulted in the clearing of 13.31ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;
2. a significant impact on the Coolabah - Black Box EPBC Act EEC as it resulted in the clearing of up to 13.31ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;
3. a significant impact on PCT 39 (Coolabah - River Coobah - Lignum woodland) ('PCT 39') as it resulted in the clearing of 10.59ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and
4. a significant impact on PCT 244 (Poplar Box grassy woodland) ('PCT 244') as it resulted in clearing of 21.37ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.
1. Northern Clearing Event 2 resulted in the clearing of up to 33ha comprising 31.91ha of highly cleared vegetation types, which clearing had:
1. a significant impact on PCT 244 as it resulted in the clearing of 21.37ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.
1. Northern Clearing Event 3 resulted in the clearing of up to 168ha comprising 73.18ha of highly cleared vegetation types, which clearing had:
1. a significant impact on the Coolabah - Black Box BC Act EEC as it resulted in the clearing of 24.04ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;
2. a significant impact on the Coolabah - Black Box EPBC Act EEC as it resulted in the clearing of up to 24.04ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;
3. a significant impact on PCT 39 as it resulted in the clearing of 24.04ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and
4. a significant impact on PCT 244 as it resulted in the clearing of 49.14ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.
1. Northern Clearing Event 4 resulted in the clearing of up to 105ha comprising 74.24ha of highly cleared vegetation types, which clearing had:
1. a significant impact on the Coolabah - Black Box BC Act EEC as it resulted in the clearing of 23.21ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;
2. a significant impact on the Coolabah - Black Box EPBC Act EEC as it resulted in the clearing of up to 23.21ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;
3. a significant impact on PCT 39 as it resulted in the clearing of 23.21ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and
4. a significant impact on PCT 244 as it resulted in the clearing of 51.03ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW;
1. Northern Clearing Event 5a resulted in the clearing of up to 342ha comprising 198.25ha of highly cleared vegetation types, which clearing had:
1. a highly significant impact on the Coolabah - Black Box BC Act EEC as it resulted in the clearing of 97.03ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;
2. a highly significant impact on the Coolabah - Black Box EPBC Act EEC as it resulted in the clearing of up to 97.03ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;
3. a highly significant impact on PCT 39 as it resulted in the clearing of 87.51ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW;
4. a significant impact on PCT 56 (Poplar Box - Belah woodland) ('PCT 56') as it resulted in the clearing of 31.53ha of this PCT which is regarded as highly cleared (78%) in its natural distribution in NSW; and
5. a significant impact on PCT 244 as it resulted in the clearing of 63.29ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.
1. Northern Clearing Event 5b resulted in the clearing of up to 171ha comprising 116.91ha of highly cleared vegetation types, which clearing had:
1. a highly significant impact on the Coolabah - Black Box BC Act EEC as it resulted in the clearing of 73.22ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;
2. a highly significant impact on the Coolabah - Black Box EPBC Act EEC as it resulted in the clearing of up to 73.22ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;
3. a highly significant impact on PCT 39 as it resulted in the clearing of 63.35ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW;
4. a significant impact on PCT 40 (Coolabah open woodland) ('PCT 40') as it resulted in the clearing of 7.87ha of this PCT which is regarded as extensively cleared (63%) in its natural distribution in NSW;
5. a significant impact on PCT 87 (Poplar Box - Coolabah floodplain) ('PCT 87') as it resulted in the clearing of 9.27ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and
6. a significant impact on PCT 244 as it resulted in the clearing of 34.33ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.
1. Southern Clearing Event 6a resulted in the clearing of up to 145ha of vegetation types, which clearing had:
1. a highly significant impact on the Coolabah - Black Box BC Act EEC as it resulted in the clearing of 111.63ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;
2. a highly significant impact on the Coolabah - Black Box EPBC Act EEC as it resulted in the clearing of up to 111.63ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;
3. a significant impact on PCT 39 as it resulted in the clearing of 27.37ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW;
4. a highly significant impact on PCT 40 as it resulted in the clearing of 84.26ha of this PCT which is regarded as extensively cleared (63%) in its natural distribution in NSW;
5. a significant impact on PCT 87 as it resulted in the clearing of 16.48ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and
6. a significant impact on PCT 244 as it resulted in the clearing of 21.37ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.
1. Southern Clearing Event 6b resulted in the clearing of up to 245ha comprising 191ha of highly cleared vegetation types, which clearing had:
1. a highly significant impact on the Coolabah - Black Box BC Act EEC as it resulted in the clearing of 184.68ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;
2. a highly significant impact on the Coolabah - Black Box EPBC Act EEC as it resulted in the clearing of up to 184.68ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;
3. a significant impact on PCT 39 as it resulted in the clearing of 141.36ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and
4. a highly significant impact on PCT 40 as it resulted in the clearing of 43.32ha of this PCT which is regarded as extensively cleared (63%) in its natural distribution in NSW.
The prosecutor points to Mr Peake's evidence that the clearing events (with no particular distinction between each of the clearing events), first, caused the loss of a significant area of remnant vegetation, which was likely to have been in good condition prior to the clearing; second, caused the reduction in local habitat connectivity which could lead to poorer dispersal of threatened fauna species and other fauna species, contributing to their reduction in abundance in the local area; and third, may have caused or exacerbated tree dieback that is apparent in the remnant vegetation that adjoins, or is close to, the patches that were cleared.
The prosecutor points to Mr Peake's evidence in relation to the likely impact of the clearing on threatened species, being - first, that nine threatened species were highly likely to have been present in the cleared areas prior to clearing including, the pale-headed snake, south-eastern glossy black-cockatoo, spotted harrier, brown treecreeper, painted honeyeater, grey-crowned babbler, hooded robin, diamond firetail, and yellow-bellied sheathtail-bat; and second, 17 threatened species were moderately likely to have been present in the cleared areas prior to the clearing including the stripe-faced dunnart, koala, little pied bat, and barking owl. Further, that each of the clearing events likely caused significant damage to the habitat of eight threatened fauna species.
Furthermore, of the species noted above, the expert evidence of Mr Mazzer noted the following species were listed as "Vulnerable" under either the EPBC Act or the BC Act, being the pale-headed snake, south-eastern glossy black-cockatoo, spotted harrier, grey-crowned babbler, stripe-faced dunnart, yellow-bellied sheathtail-bat, little pied bat, diamond firetail, and hooded robin.
Mr Peake concluded that there was a moderate likelihood that the habitat of the pale-headed snake, south-eastern glossy black-cockatoo, brown treecreeper, painted honeyeater, grey-crowned babbler, hooded robin, diamond firetail, and yellow-bellied sheathtail-bat had been cleared by all of the clearing events.
The koala has been listed as "Endangered" under the EPBC Act and the BC Act, and the expert opinion of Mr Mazzer and Mr Peake is that the koala was moderately likely to have used the areas that were cleared as habitat prior to the clearing.
The prosecutor further identifies that Mr Mazzer's evidence outlines the environmental harm caused by the offences and points to a number of Mr Mazzer's findings regarding flora and fauna including that the clearing of native vegetation was likely to have a significant impact on the environment, describing the clearing as having resulted in "significant environmental harm". Mr Mazzer listed the major impacts of the removal of native vegetation in cleared areas - being: first, loss of a significant area of remnant native vegetation which was in good condition prior to clearing; second, loss of a significant area of over-cleared vegetation types within an over-cleared landscape; third, loss of significant areas of an endangered ecological community; fourth, loss of a significant area of habitat for native fauna, which is likely to affect several threatened species (in particular, woodland and grassland likely to have been used by local populations of ten threatened species); and fifth, loss of many hollow-bearing trees.
Mr Mazzer stated that it was likely that a substantial number of hollow-bearing trees were present in the areas cleared on Boolcarrol prior to the clearing activities, such that over three-quarters of all mature trees in the northern area of Boolcarrol contained hollows, ranging from 10 per hectare in open woodland areas to 50 per hectare in woodland areas, and between 10 and 20 hollow-bearing trees were present per hectare in the southern area of Boolcarrol. The conservation impact being that hollows do not form in trees until they have reached sufficient size and age and lost hollows are unlikely to be replaceable within 100 years, and potentially longer. Therefore, the loss of hollow-bearing trees has a significant detrimental influence on populations of hollow-dependent fauna resident on Boolcarrol.
The defendants do not accept that the harm caused in each of the offences was 'substantial' (although accept that the evidence supports a finding of "likely significant") and submit that the aggravating factor pursuant to s 21A(2)(g) of the Sentencing Act cannot apply in the present case because the prosecutor has not established on the evidence before the Court beyond reasonable doubt that each of the clearing events caused actual harm that is "significantly more deleterious than that which any ordinary" consequences of unlawful clearing of native vegetation: R v Youkhana [2004] NSWCCA 412 at [26]; GL v R [2022] NSWCCA 202; (2022) 302 A Crim R 188 at [64].
The defendants submit that in relation to the LLS Act Offences, the function served by the reference to "significant" harm in s 60N(1) of the LLS Act is different to that referred to in the Sentencing Act as it establishes a threshold for activating a higher statutory maximum penalty for an offence whereby the higher maximum is only activated when the clearing was intentional, and the clearing caused, or is likely to cause, significant harm to the environment.
The defendants contend that even after the higher maximum penalty comes into operation the distinction between actual harm and likely harm remains relevant for the purposes of sentencing. For example, on the issue of environmental harm, an offence that only involves likely harm is less serious than an offence involving actual harm.
The defendants submit that in reading and understanding Mr Peake's evidence (which they submit is the "only" reliable basis to make findings in relation to environmental harm), the Court would not be able to find beyond reasonable doubt that significant harm was caused by the defendants in their acts of vegetation clearing. Specifically, Mr Peake (who had the benefit of considering all the expert evidence including that of Mr Mazzer) concluded that EECs were highly likely to be present on Boolcarrol but did not conclude that the EECs were definitely present on Boolcarrol. It follows that if those EECs were not present, they could not have been impacted by the clearing events. Given that Mr Peake only found that the presence of the EECs was "highly likely", any conclusions expressed in relation to 'significant harm' must be understood in that context.
I find that harmfulness needs to not only be considered in terms of actual harm but also that potential harm or risk of harm should be taken into account. I accept and adopt the approach of Preston CJ of LEC in Brummell at [38]. As such, in relation to each offence, I have taken into account the scale of the clearing that has been undertaken as well as the number of species of native vegetation removed, considered along with the species of endangered flora and fauna potentially affected. I have also taken into account the status of the cleared native vegetation and the effect upon the habitat of endangered species for flora and fauna (with consideration of hollow-bearing trees). I also accept that the identification of native vegetation considered by Mr Peake (and Mr Mazzer) is made obviously more difficult given the very nature of the offences - being the clearing of vegetation - means that the lost vegetation is by definition no longer in situ.
Generally adopting the submissions made on behalf of the prosecutor (summarised above), and separately considering all the evidence including the evidence of both Mr Peake and Mr Mazzer, which I find compelling (both in the absence of any contrary evidence except for some comments of Mr Robertson in his report dated 22 May 2020, and not accepting the defendants' submissions that Mr Peake's evidence was limited or diminished by his various descriptors or by the parsing adopted by the defendants), I make the following further findings.
In relation to Northern Clearing Event 1, which comprised an area of up to 53ha, I find beyond reasonable doubt that the clearing of 34.88ha of highly cleared vegetation types has caused significant harm to, and a significant impact on: Coolabah - Black Box BC Act EEC (loss of 13.31ha); Coolabah - Black Box EPBC Act EEC (loss of up to 13.31ha) (being conscious of the different descriptors of these overlapping EECs used in the evidence); PCT 39 (loss of 10.59ha); and PCT 244 (loss of 21.37ha). Further, that the clearing of up to 53ha is likely to have had impacts on the habitat of eight threatened fauna species (being the pale-headed snake, south-eastern glossy black-cockatoo, brown treecreeper, painted honeyeater, grey-crowned babbler, hooded robin, diamond firetail, and yellow-bellied sheathtail-bat) immediately present prior to 29 December 2016. I note that the extent of harm "likely" to be caused by an offence can nevertheless increase the seriousness of an offence: Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 at [20].
In relation to Northern Clearing Event 2, which comprised an area of up to 33ha, I find beyond reasonable doubt that the clearing of 31.91ha of highly cleared vegetation types including 21.37ha of PCT 244 has caused significant harm to, and a significant impact on PCT 244; and is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 8 May 2017.
In relation to Northern Clearing Event 3, which comprised an area of up to 168ha, I find beyond reasonable doubt that the clearing of 73.18ha of highly cleared vegetation types has caused significant harm to, and a significant impact on: Coolabah - Black Box BC Act EEC (loss of 24.04ha); Coolabah - Black Box EPBC Act EEC (loss of up to 24.04ha); PCT 39 (loss of 24.04ha); and PCT 244 (loss of 49.14ha). Further, that the clearing of up to 168ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 2 July 2017.
In relation to Northern Clearing Event 4, which comprised an area of up to 105ha, I find beyond reasonable doubt that the clearing of 74.24ha of highly cleared vegetation types has caused significant harm to, and a significant impact on: Coolabah - Black Box BC Act EEC (loss of 23.21ha); Coolabah - Black Box EPBC Act EEC (loss of up to 23.21ha); PCT 39 (loss of 23.21ha); and PCT 244 (loss of 51.03ha). Further, that the clearing of up to 105ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 27 July 2017.
In relation to Northern Clearing Event 5a, which comprised an area of up to 342ha, I find beyond reasonable doubt that the clearing of 198.25ha of highly cleared vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah - Black Box BC Act EEC (loss of 97.03ha); Coolabah - Black Box EPBC Act EEC (loss of up to 97.03ha); and PCT 39 (loss of 87.51ha). And has caused significant harm to, and a significant impact on: PCT 56 (loss of 31.53ha); and PCT 244 (loss of 63.29ha). Further, that the clearing of up to 342ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 16 August 2017.
In relation to Northern Clearing Event 5b, which comprised an area of up to 171ha, I find beyond reasonable doubt that the clearing of 116.91ha of highly cleared vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah - Black Box BC Act EEC (loss of 73.22ha); Coolabah - Black Box EPBC Act EEC (loss of up to 73.22ha); and PCT 39 (loss of 63.35ha). And has caused significant harm to, and a significant impact on: PCT 40 (loss of 7.87ha); PCT 87 (loss of 9.27ha); and PCT 244 (loss of 34.33ha). Further, that the clearing of up to 171ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 25 August 2017.
In relation to Southern Clearing Event 6a, which comprised an area of up to 145ha, I find beyond reasonable doubt that the clearing of 145ha of vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah - Black Box BC Act EEC (loss of 111.63ha); Coolabah - Black Box EPBC Act EEC (loss of up to 111.63ha); and PCT 40 (loss of 84.26ha). And has caused significant harm to, and a significant impact on: PCT 39 (loss of 27.37ha); PCT 87 (loss of 16.48ha); and PCT 244 (loss of 21.37ha). Further, that the clearing of up to 145ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 27 July 2017.
In relation to Southern Clearing Event 6b, which comprised an area of up to 245ha, I find beyond reasonable doubt that the clearing of 191ha of highly cleared vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah - Black Box BC Act EEC (loss of 184.68ha); Coolabah - Black Box EPBC Act EEC (loss of up to 184.68ha); and PCT 40 (loss of 43.32ha). And has caused significant harm to, and a significant impact on: PCT 39 (loss of 141.36ha). Further, that the clearing of up to 245ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 25 August 2017.
Based upon, and accepting, the evidence of Messrs Peake, Mazzer and Spiers, and a number of admissions in the evidence of Mr Greentree, I find beyond reasonable doubt that the defendants acted intentionally and with the knowledge that the clearing would include native vegetation, and I find beyond reasonable doubt that the offences were likely to cause significant environmental harm. As such, I also find that the two LLS Act offences (being Northern Clearing Event 5b and Southern Clearing Event 6b) attract the higher maximum penalty pursuant to s 60N(1) of the LLS Act.
In making my findings above, I consider and, in particular, find beyond reasonable doubt that the harm caused in relation to each of the offences was "of medium or more significance" and is therefore "substantial" for the purposes of s 21A(2)(g) of the Sentencing Act. For completeness, I do not accept the defendants' submission (noted at [99] above).
In making these findings, for completeness, I find beyond reasonable doubt that the actual harm is significantly more deleterious than what would otherwise be considered the "ordinary" consequences of unlawful clearing of native vegetation. I make these findings in relation to each of the offences based upon my acceptance of the mostly unchallenged evidence of Mr Peake and in particular his evidence that environmental harm, including significant environmental harm, resulted from the clearing of native vegetation and that the harm persists due to the loss of vegetation as well as associated fauna habitat.
Further, in relation to each clearing event, in considering the extent of the harm, I take into account that there was clearing of habitat for various threatened fauna species, and I find this caused significant damage to the habitat of those threatened (and other) fauna species. Although I find that there is insufficient evidence of any direct harm to individual animals, it is clear from the evidence of Mr Peake, that there are a number of species which have had substantial areas of their habitat damaged.
In summary, I find beyond reasonable doubt that each of the offences caused, or were likely to cause, significant harm to the environment having regard to, first, the loss of a significant area of native vegetation (1,262ha); second, the clearing of endangered ecological communities; third, the removal of native fauna habitat features including woodland and grassland, native tree canopy cover, native shrubs, and ground layer species, which was likely to have been used by the local populations of various threatened species; fourth, the destruction of habitat likely to have been utilised by threatened species - some of which are listed as vulnerable species; fifth, the loss of mature habitat of native fauna, such as the destruction of hollow-bearing trees; and, sixth, the clearing resulted in increased habitat fragmentation creating fragments of native vegetation.
The prosecutor submits that when each of the clearing events was carried out, Mr Greentree was aware that he was prohibited by law to clear native vegetation unless the clearing fell within a statutory exemption or was subject to a relevant approval; and that the clearing the subject of these offences was not one falling within an exemption, nor did Mr Greentree seek approval to undertake the clearing.
The prosecutor further submits that Mr Greentree and Auen Grain (by attribution) plainly understood the need for approvals for the clearing of native vegetation given his involvement in criminal proceedings relating to offences of a similar genre: Greentree 1998; Greentree 2004; Greentree (No 2); Greentree (No 3).
Additionally, the prosecutor submits that Mr Greentree and Auen Grain (by attribution) also had knowledge that their clearing activities were likely to clear native vegetation as several Stop Work Order notices were issued by the Office of Environment and Heritage under s 11.3 of the BC Act to Mr Greentree in relation to Northen Clearing Event 5b (dated 1 September 2017), and Northern Clearing Event 6b (dated 1 September 2017, 9 October 2017, 16 November 2017, 22 December 2017, 30 January 2018 and 12 March 2018). Separately, a Notice to Provide Information and/or Records in relation to clearing was issued to Mr Greentree on 15 March 2018. This notice recorded that there had been evidence of clearing of native vegetation in possible contravention of native vegetation legislation and referred to the fact that the North West Local Land Services records do not reveal any approvals for the subject clearing and requested certain records from Mr Greentree regarding an investigation into possible contraventions of the LLS Act occurring on Boolcarrol. Relatedly, the prosecutor submits that the clearing of native vegetation was carried out repeatedly and systematically over many months (from December 2016 to January 2019) such that it is clear that the clearing was intentional.
In summary, the prosecutor submits that there is compelling inference for the Court to find that Mr Greentree and Auen Grain had the requisite knowledge that native vegetation was being cleared on Boolcarrol without the required approvals.
The defendants agree that vegetation was cleared intentionally in the context of furthering the agricultural operations of Greentree Farming (to convert areas of pasture into areas that would be available for cropping), however, the defendants submit that the relevant question for the Court is whether the Court could be satisfied beyond a reasonable doubt, that the defendants had specific knowledge that native vegetation would be cleared.
In this regard, the defendants concede that Mr Greentree knew that the vegetation he was clearing included native vegetation in relation to Northern Clearing Events 1, 2, 5a and 5b and Southern Clearing Events 6a and 6b (as found by the Court in Greentree (No 7)). However, the defendants consider that such findings (for the purposes of the sentencing exercise) should be confined only to the specific areas within the various clearing events and the particular species of native vegetation within those areas, specifically:
1. In relation to Northern Clearing Event 1, Mr Greentree's admissions in relation to clearing Coolabah and Poplar Box related to polygons 1 - 8 only and it was only in relation to those polygons and species which the Court found that Mr Greentree had knowledge of the presence of native vegetation prior to the clearing activities. There was no finding that Mr Greentree intentionally cleared native vegetation in polygons 9 - 25.
2. In relation to Northern Clearing Event 2, Mr Greentree's admission that the clearing was undertaken to clear Coolabah and Poplar Box that were "sick" after a bushfire and that the clean-up work of the remaining clearing of the plants that were "alive" could have included native vegetation is confined to polygon 26 (which is the only polygon covered by Northern Clearing Event 2).
3. In relation to Northern Clearing Event 5a, the Court's finding in Greentree (No 7) was focused upon Mr Greentree's knowledge as to the clearing of three or four river red gums in polygon 44, as part of his clearing of around 1ha of land for the purpose of locating gravel. In respect of the remaining 341ha area comprising Northern Clearing Event 5a, no finding was made as to the requisite knowledge that native vegetation was present. Mr Greentree acknowledged there was Black Roly Poly in the area of Northern Clearing Event 5a, which the defendants concede might allow the Court to make a finding of intentional clearing, but that such finding is subject to the wider context that Mr Greentree believed that there were other non-native and weed species present. Again, the defendants submit that the finding of "indiscriminate" tilling for weeds (Judgment [172], [344]) connotes recklessness as to the presence of native vegetation.
4. In relation to Northern Clearing Event 5b, the Court found that Mr Greentree knew some trees in polygon 34 (16ha) were Coolabah at the time they were cleared, and that Poplar Box and Coolabah were cleared for a road for cattle in polygons 40 and 41 (8ha). The defendants accept that the further admission of taking out saplings which were Coolabah and Poplar Box in polygons 48 - 59 (34ha) is sufficient to establish a degree of intentional clearing. However, the defendants submit that in Greentree (No 7), Mr Greentree denied any knowledge of native vegetation being present in polygons 36, 37, 39 and 46.
5. In relation to Southern Clearing Event 6a, the defendants submit that the Court's finding that Mr Greentree knew that some native vegetation was cleared is confined to the area for farm infrastructure and an airstrip in polygon 1 (58ha). The remainder of the area of 88ha concerned "cleaning-up" and it was not put to Mr Greentree that he knew that native vegetation was cleared in polygons 2 and 3. As such, the evidence as to the requisite knowledge that native vegetation was cleared in relation to polygons 2 and 3 only supports a finding of recklessness.
6. In relation to Northern Clearing Event 6b, the defendants concede that Mr Greentree's evidence includes that he undertook clearing of Coolabah in polygons 4, 8 and 9 (67ha), however contend that there is no evidence of the requisite state of mind to intentionally clear native vegetation in polygons 5 - 7 and 10 - 18, which again only supports a finding of recklessness.
The defendants maintain that the Court did not make findings that Mr Greentree had knowledge that native vegetation was cleared in relation to Northern Clearing Events 3 and 4 and therefore, this should inform the Court's assessment of the seriousness of those two clearing events:
1. In relation to Northern Clearing Event 3, there is no finding in respect of polygons 27 - 31 (comprising up to 168ha) that Mr Greentree had knowledge at the time of the clearing that native vegetation was present. Mr Greentree's explanation that he did not think there was any regrowth alive after a fire, or native groundcover, was not accepted by the Court, but the defendants submit that the evidence can only support a finding that Mr Greentree was aware of the possibility that there was live native vegetation present.
2. In relation to Northern Clearing Event 4, the defendants submit that there is no finding that Mr Greentree knew, at the time of clearing, that native vegetation was present in polygons 32 and 33 (comprising up to 105ha). The Court did not accept the reasons given by Mr Greentree for undertaking the clearing, but that does not establish beyond reasonable doubt that Mr Greentree knew and intended that native vegetation would be removed by the clearing activities. The defendants point to findings of "indiscriminate" tilling for weeds (Judgment [172], [333]), which implies recklessness as to the presence of native vegetation.
For the reasons that follow, I find beyond reasonable doubt that all of the clearing occurred in the context of the agricultural operations of Greentree Farming to convert areas of pasture into areas for cropping and that Mr Greentree and Auen Grain (by attribution) knew that native vegetation would be included in the clearing activities.
Although the defendants pointed to the fact that there were no specific findings in Greentree (No 7) that native vegetation had been cleared in respect of Northern Clearing 3 and 4, this is neither determinative nor persuasive. It is clear from my earlier findings that Mr Greentree knew that the vegetation he was clearing included native vegetation in respect of (at least) parts of Northern Clearing Events 1, 2, 5a and 5b and Southern Clearing Events 6a and 6b. In relation to Northern Clearing Events 3 and 4, I accept the prosecutor's submission and find that the evidence firmly points towards Mr Greentree knowing or intending that there would be some native vegetation cleared as part of those clearing events. I make this finding both on the basis of the discrete evidence in relation to the Northern Clearing Events 3 and 4, and also as part of a pattern of conduct in the other temporally and geographically related events.
Further, in answer to questions in Greentree (No 7) in relation to Northern Clearing Event 3 as to whether Mr Greentree accepted the possibility that some of the live vegetation was native vegetation, he answered "I don't know. There may have been some groundcover", and then went on to say that there was "species of Bambasti, Purple Pigeon Grass, and other noxious weeds". This statement does not sit comfortably with the evidence of the clearing that was shown in the relevant polygons or in the evidence of Mr Spiers and Mr Mazzer as well as the substantial loss of up to 168ha of vegetation in Northern Clearing Event 3.
I have also considered Mr Greentree's evidence in relation to Northern Clearing Event 4 (Tcpt, 10 June 2021, p 957(9) and following) where Mr Greentree admitted that he appreciated that there were native species present when he indiscriminately cleared or tilled what he described as "weeds". I am satisfied beyond reasonable doubt that he knew and intended that there would actually be some native vegetation cleared amongst the vegetation in that clearing event. Again, Mr Greentree and Auen Grain (by attribution) had a very significant working familiarity with Boolcarrol including the vegetation types and he personally undertook much of the clearing the subject of the charges. I also take into account the scale of clearing in Northern Clearing Event 4 comprising up to 105ha and the evidence of Mr Peake in relation to harm (Ex B at (97)).
In summary, I find beyond reasonable doubt that in relation to the NV Act Offences (being, Northern Clearing Events 1, 2, 3, 4, 5a and Southern Clearing Event 6a) and each of the LLS Act Offences (being, Northern Clearing Events 5b and Southern Clearing Event 6b) was committed intentionally in the pursuit of removing vegetation for broadscale cropping - a plan that was plainly obvious at the time Boolcarrol was purchased. It follows that Auen Grain caused or permitted Mr Greentree to carry out the clearing. I make these findings beyond reasonable doubt and remain conscious that there are eight separate offences relating to each defendant. I find beyond reasonable doubt that Mr Greentree intentionally caused the clearing, and he was aware that the clearing included some native vegetation in relation to each event. In making this finding, in addition to matters noted above, I place emphasis upon the following:
1. The evidence is clear that Mr Greentree made all decisions in relation to the conduct on Boolcarrol and this was in circumstances where, as often stated, Boolcarrol was purchased with an intention to undertake broadacre clearing to convert paddocks that had a lot of trees and turn them from pasture into areas that would be available for cropping.
2. As referred to in Greentree (No 7), Mr Greentree accepted that during 2017, clearing of vegetation (including native vegetation) took place for various purposes including, first, the removal of vegetation to deal with "noxious weeds", using the "tilling" method or using large machinery that was 8 - 12m wide - a method that involved "cutting all the root system off" and uprooting the weeds "and everything else"; second, the removal of saplings by putting a set of "offset disc ploughs, or a cutter bar for larger saplings on a bulldozer" - a method that kills all vegetation including grasses on the ground around the saplings; third, removal of vegetation to create "firebreaks", where Mr Greentree used a "bulldozer" and a "plough or grader"; and fourth, "clean-up work after bushfires", which involved the "raking and stacking of vegetation" which was later burnt.
As I have found above, I have no doubt given matters to which I will refer, Mr Greentree was aware that he was prohibited from clearing native vegetation unless it fell within a statutory exemption or was subject to a relevant approval. Mr Greentree did not seek any approval for the clearing, and I do not, and did not in Greentree (No 7), accept his varied and inconsistent explanations (Judgment [370]) of the clearing.
Apart from being unimpressed with Mr Greentree's varied explanations (and in some cases, denials), there was simply no acceptable explanation for the nature and extent of the clearing undertaken in relation to each of the offences and the overall and consistent clearing undertaken over the period of the offences occurring from late 2016 through to early 2019. I repeat the comment of Mr Spiers (noted in Greentree (No 7)), that "there are obviously thousands of trees that have disappeared. It is not logical to think that they would have just fallen over". This concern is separate to the overall loss of native vegetation. In relation to native vegetation, and as I have previously found, Mr Greentree's explanations, as considered in Greentree (No 7), consistently gave excuses such as that the clearing occurred after bushfires in circumstances where there was little or no evidence of any bushfires to the scale that Mr Greentree claimed. I did not accept that evidence.
I have also considered the four decisions referred to by the prosecutor (at [115], [128]) and have considered the circumstances of each of those judgments which were from the period 1998 to 2004 - many years prior to the subject offences. I have no doubt that Mr Greentree was aware of concerns in relation to the clearing of native vegetation having been charged with offences relating to prohibitions on clearing of native vegetation in New South Wales without the necessary approvals.
In making my findings above, I have also considered the evidence referred to by the prosecutor (noted at [129] above) which also leads me comfortably to the view, which I repeat, that Mr Greentree and Auen Grain (by attribution) had knowledge that the clearing of native vegetation can only be carried out in accordance with the legislative regime and there is clear inference from the matters referred to above and, more recently, the evidence in relation to the Stop Work Order notice issued on 1 September 2017 issued directly to Mr Greentree in the period of Northern Clearing Event 5b and Southern Clearing Event 6b; the further ten Stop Work Order notices (dated 9 October 2017, 16 November 2017, 22 December 2017, 30 January 2018 and 12 March 2018) in relation to Southern Clearing Event 6b; as well as the Notice to Provide Information and/or Records issued to Mr Greentree on 15 March 2018. Again, I repeat that I also accept the submission by the prosecutor, and I find beyond reasonable doubt, that the clearing of native vegetation carried out by the defendants was repeatedly and systematically carried out over many months, and I comfortably find the clearing was planned and organised which, reinforces my finding that it was intentional.
While I acknowledge the defendants' submissions that the Court's findings as to the requisite knowledge of the presence of native vegetation only apply to certain parts of some of the areas cleared in each of the clearing events, which may diminish the objective seriousness of the charges comprised by the clearing event as a whole, I do not find that submission persuasive.
In summary, in relation to each of the NV Act Offences, I am satisfied beyond reasonable doubt that Mr Greentree carried out the clearing of native vegetation intentionally and that the conduct and state of mind is attributable to Auen Grain, and this aggravates the offences for the purposes of sentence. Both Auen Grain and Mr Greentree accept that the clearing was carried out for the furtherance of the farming business enterprise (Greentree Farming) that they were both engaged in. I make the same findings in relation to the LLS Act Offences such that I find that the clearing was carried out intentionally by Mr Greentree and his conduct and state of mind is attributable to Auen Grain and, given that I am satisfied beyond reasonable doubt that the clearing in relation to the LLS Act Offences caused, or was likely to cause, significant harm to the environment, the higher maximum penalties apply for the LLS Act Offences.
I find that, despite the antecedents of each defendant raised by the prosecutor, neither defendant has been convicted of an offence against s 12 of the NV Act or s 60N of the LLS Act and as such, the defendants are entitled to some mitigation.
With the above matters in mind, I find that general deterrence is a matter that should be given substantial weight in the present sentencing exercise in relation to each defendant having regard to the nature and extent (in both area cleared and length of time of the offences) in the commission of the subject offences.
Further, there is an important role for specific deterrence in the fixing of appropriate penalties for each of the offences presently before me. This is particularly so in light of both defendants' previous conduct. I do not consider the evidence and submissions of the defendants in relation to the paucity of their present landholdings in NSW to be persuasive against a need for specific deterrence.
The sentences that I consider to be appropriate to impose on each defendant for each of the offences are not inconsistent with the sentences imposed in the above cases. However, while consistency in sentencing is important, a more appropriate yardstick against which each sentence should be compared is the maximum penalty set by Parliament rather than the amounts of fines in earlier cases: Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72].
Taking into account the purposes of sentencing (noted at [60]-[61] above), and synthesising the differing objective circumstances of each separate offence and the similar subjective circumstances of Mr Greentree and Auen Grain and, in relation to Auen Grain, conscious of the increase in maximum penalties that relate to the two LLS Act Offences, I consider that, subject to matters considered later in this judgment, the appropriate monetary penalty for each defendant in relation to the eight offences is as follows:
1. For Mr Greentree:
1. Northern Clearing Event 1: $60,000;
2. Northern Clearing Event 2: $40,000;
3. Northern Clearing Event 3: $190,000;
4. Northern Clearing Event 4: $120,000;
5. Northern Clearing Event 5a: $400,000;
6. Northern Clearing Event 5b: $190,000;
7. Southern Clearing Event 6a: $160,000;
8. Southern Clearing Event 6b: $250,000.
Totalling $1,410,000.
1. For Auen Grain:
1. Northern Clearing Event 1: $60,000;
2. Northern Clearing Event 2: $40,000;
3. Northern Clearing Event 3: $190,000;
4. Northern Clearing Event 4: $120,000;
5. Northern Clearing Event 5a: $400,000;
6. Northern Clearing Event 5b: $220,000;
7. Southern Clearing Event 6a: $160,000;
8. Southern Clearing Event 6b: $300,000.
Totalling $1,490,000.
Except in relation to Northern Clearing Event 5b and Southern Clearing Event 6b, and although there is some mitigation in relation to previous good character for Mr Greentree, I consider it appropriate to impose the same monetary penalty on Mr Greentree and Auen Grain for each of the offences because I find both their criminal responsibility and their culpability the same.
In imposing the sentences above, I have also taken into account that there is a separate temporal and spatial relationship between the Northern Clearing Event 5a and Northern Clearing Event 5b (noted at [34] and [39] above), and a similar relationship between Southern Clearing Event 6a and Southern Clearing Event 6b (noted at [43] and [48] above), in circumstances where the NV Act Offences (applying to Northern Clearing Event 5b and Southern Clearing Event 6b) arose as a result of the change in legislation on 25 August 2017 (Judgment [15]) whereby, the NV Act was repealed and s 60N was inserted into the LLS Act. The change had the consequence of imposing a significantly higher maximum penalty on Auen Grain under the LLS Act in relation to Northern Clearing Event 5b and Southern Clearing Event 6b.
I will later consider the basis on which the penalty for each offence is to be attributed between the defendants however where, as here, the Court is sentencing separate defendants for more than one offence, the aggregate or overall sentence must be "just and appropriate" and to reflect the total criminality before the Court: Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76 at [244].
In the circumstances, given the total criminality (considered separately in relation to each defendant), I consider that it is just and appropriate to reduce the aggregate of each individual defendant's monetary penalties (being $1,410,000 in relation to Mr Greentree and $1,490,000 in relation to Auen Grain) that would otherwise be appropriate for each defendant by 20% and that each penalty (for each defendant) be reduced by 20% with the following effect:
1. For Mr Greentree:
1. Northern Clearing Event 1: $48,000;
2. Northern Clearing Event 2: $32,000;
3. Northern Clearing Event 3: $152,000;
4. Northern Clearing Event 4: $96,000;
5. Northern Clearing Event 5a: $320,000;
6. Northern Clearing Event 5b: $152,000;
7. Southern Clearing Event 6a: $128,000;
8. Southern Clearing Event 6b: $200,000.
Totalling $1,128,000.
1. For Auen Grain:
1. Northern Clearing Event 1: $48,000;
2. Northern Clearing Event 2: $32,000;
3. Northern Clearing Event 3: $152,000;
4. Northern Clearing Event 4: $96,000;
5. Northern Clearing Event 5a: $320,000;
6. Northern Clearing Event 5b: $176,000;
7. Southern Clearing Event 6a: $128,000;
8. Southern Clearing Event 6b: $240,000.
Totalling $1,192,000.
Apart from the above, in circumstances where the relationship between the defendants is that of a company and its sole director (as noted at [10] above), the Court needs to recognise that the overlap between the defendant entities may call for a review and, if appropriate, an adjustment of the monetary penalties to take account of the effect that the total penalties may have on one defendant, being Mr Greentree.
The defendants submit that imposing an equal penalty on both offenders would effectively punish Mr Greentree, the director of Auen Grain, twice as the penalty for the corporate entity will in reality come from Mr Greentree: Traikaero at [86]-[89].
The prosecutor acknowledges that Mr Greentree (as sole director and effectively the sole shareholder of Auen Grain) may bear the burden of any penalty against Auen Grain, but further notes the approach of the Full Court in Greentree v Minister for Environment and Heritage (2005) 144 FCR 388; [2005] FCAFC 128 at [54] (confirming the decision of Sackville J in Greentree (No 3) at [78]), where the defendant company was a separate entity with its own liability and therefore, it was correct for the primary judge to impose a (civil) penalty on both the company and the individual. Further, the Full Court considered that it was irrelevant that the director of the company directed the actions as agent of the company.
Although coincidental and not relevant in a factual sense (being a decision in relation to the imposition of civil penalties under the EPBC Act), I have given consideration to the following words of Sackville J in Greentree (No 3) at [78]:
"[78] I infer that Mr Greentree will bear the burden of any diminution of [Auen Grain's] assets that will result from the imposition of a pecuniary penalty on the company. It is appropriate to take that fact into account in order to prevent Mr Greentree being punished, in effect, twice over: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169, at 182 [45], per Finkelstein J; Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80, at 116-117 [131]-[132], per Santow J. On the other hand, [Auen Grain] has been involved in a deliberate contravention of s 16(1) of the EPBC Act. The contravening conduct was undertaken in [Auen Grain's] commercial interests. It is also necessary to bear in mind that the maximum penalties that can be imposed on a corporation are ten times larger than the penalties that can be imposed on individuals who contravene the EPBC Act. The overall pecuniary penalty should obviously be no less than if [Auen Grain], a corporation, had been the sole contravenor. On the contrary, the overall penalty should reflect the fact that Mr Greentree, as well as [Auen Grain], has contravened s 16(1) of the EPBC Act."
While conscious that Mr Greentree and Auen Grain are equally criminally responsible and noting that the total criminality should still be reflected in the sentence, I consider that an appropriate allowance may be made to account for the effect that the total penalties may have on Mr Greentree, and that it is just and appropriate to reduce the aggregate of the monetary penalties (that I have otherwise considered to be appropriate to impose on each defendant) to address the prospect that Mr Greentree is not being punished twice for the same conduct. That being said, I remain conscious that the Court needs to recognise that each of Mr Greentree and Auen Grain has committed eight offences against s 12 of the NV Act and s 60N of the LLS Act and that the criminality involved by a corporation and by a director (and directing mind) of that corporation is not coterminous: Traikaero at [94]-[97] and further, that a corporation (as a separate entity) has its own liability for its conduct in committing the offences.
Although previous cases have proffered different responses to such scenarios including adopting different ratios of the fine to impose on an individual vis a vis a company or alternatively, by noting the ratio of maximum pecuniary penalties between a corporation and an individual (as is the case under the NV Act), there is no clear pattern (cf. Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 at [54]-[63]; Environment Protection Authority v Alcobell Pty Ltd [2015] NSWLEC 123 at [120]; Traikaero at [99]-[103]). In the circumstances, I consider that an appropriate allowance can be made to account for the impact that the total penalties may have on Mr Greentree (while still reflecting the total criminality before the Court) by reducing the aggregate of each of the penalties I have imposed on the defendants by 10% (with the effect that the aggregate for all penalties is reduced from $2,320,000 to $2,088,000) and that this percentage is to be applied to each offence under consideration.
Ronald Lewis Greentree ('Mr Greentree') and Auen Grain Pty Ltd ('Auen Grain') (collectively, the 'defendants') are to be sentenced after each having been found guilty of six offences against s 12 of the Native Vegetation Act 2003 (NSW) ('NV Act') and two offences against s 60N of the Local Land Services Act 2013 (NSW) ('LLS Act').
The offences relate to eight separate land clearing events between December 2016 and January 2019 involving the removal of native vegetation on a property known as "Boolcarrol", north-west of Narrabri in the State of New South Wales.
Mr Greentree and Auen Grain pleaded not guilty to the charges and on 23 December 2022, following a hearing before me, the defendants were each found guilty of the eight offences as charged: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153 ('Greentree (No 7)') (also referred to variously as 'Judgment').
A sentence hearing has been held and the Court's task is to determine and impose appropriate sentences on each of Mr Greentree and Auen Grain for each of the eight offences they committed.