Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd

Background

1. 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.
2. 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'.

The property

1. On 29 February 2008, Mr Greentree and his business partner, Kenneth Bruce Harris purchased Boolcarrol as tenants in common.
2. 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.

Greentree Farming

1. 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.
2. 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.
3. 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).

The clearing

1. 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).
2. 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.
3. 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.

Northern Clearing Event 1

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).
2. 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.
3. 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".
4. 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.
5. 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]).

Northern Clearing Event 2

1. 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).
2. Prior to the clearing, this area contained trees with a tree density of sparse, uncleared grass cover and shrubs.
3. 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]).
4. 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).

Northern Clearing Event 3

1. 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).
2. Prior to the clearing, this area contained uncleared grass cover, with trees and shrubs. Tree density in the area was sparse or open trees.
3. 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]).
4. 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).

Northern Clearing Event 4

1. 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).
2. Prior to the clearing, this area contained uncleared grass cover, with trees and shrubs. The tree density was isolated trees.
3. 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]).
4. 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).

Northern Clearing Event 5a

1. 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.
2. Prior to the clearing, this area contained stable groundcover, shrubs and trees with sparse tree density.
3. 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.
4. 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]).
5. 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).

Northern Clearing Event 5b

1. 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.
2. 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.
3. 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".
4. 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).

Southern Clearing Event 6a

1. 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.
2. Prior to the clearing, this area contained uncleared grass cover, shrubs and trees with consistent tree cover density.
3. 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.
4. 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]).
5. 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).

Southern Clearing Event 6b

1. 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.
2. Prior to the clearing, the area contained trees, shrubs and groundcover.
3. 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]).
4. 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).

Evidence

1. 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.
2. 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.
3. 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.

NV Act Offences

1. 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. …
2. 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.
3. 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.

LLS Act Offences

1. 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.
2. 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.

Purposes of sentencing

1. 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].
2. 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.

Statutory matters to be taken into account in sentencing

1. 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, …
2. 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.

Objective seriousness of the offences

1. 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].
2. 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].
3. 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.

Nature of the offences

1. 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].
2. 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.
3. 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).
4. 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.
5. 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.

Maximum penalties

1. 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].
2. 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].
3. 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).
4. 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.
5. 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.

Extent of harm

1. 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.
2. 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').
3. 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.
4. 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.

Foreseeability of risk of harm

1. 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.
2. 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.

Practical measures to prevent harm

1. 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.

Control over the causes giving rise to the offences

1. 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.

Financial gain

1. 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.
2. 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.
3. 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.
4. 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.

State of mind in committing the offences

1. 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].
2. 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.
3. 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].
4. 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.

Conclusion on objective seriousness

1. 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.
2. 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".
3. 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].
4. 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.

Subjective circumstances

1. 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.

Lack of prior convictions

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.

Previous good character

1. 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.
2. 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.
3. 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.
4. Mr Joshua Lawrence deposed that Mr Greentree is committed to improving the wheat industry through volunteering many hours of his own time and resources.
5. 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.

Remorse for the offences

1. 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.

Plea of guilty

1. The defendants did not enter a plea of guilty.

Assistance to the authorities

1. 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.

General and specific deterrence

1. 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.
2. 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.
3. 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.

Capacity to pay a fine

1. 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.
2. 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.

Evenhandedness and consistency in sentencing

1. In determining the appropriate penalty in relation to each offence, the Court should be consistent with any patterns of sentencing for like offences.
2. 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.
3. 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.

Totality and relationship between the defendants

1. 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]."
2. 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.
3. 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."

Costs

1. 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.
2. 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.

Moiety of fines

1. 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.
2. 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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