Terrey v Department of Environment, Climate Change and Water

Disposition of the Appeal 7I have determined that the appeal should be allowed. In considering the objective circumstances of the offence and the subjective circumstances of Mr Terrey, a fine of $2,000 imposed by the Local Court was too severe. Rather, the appropriate penalty in this case is a fine in the sum of $1,000.

Factual Circumstances Giving Rise to the Offence 8The factual circumstances giving rise to this appeal were not in dispute and were contained in a statement of facts that was in evidence before the court below and an agreed statement of facts tendered to this Court. 9Mr Terrey is the owner of a large commercial fruit growing business (peaches and nectaries) at 644 Grose Vale Road, Grose Vale ("the property"). 10During the 2009-2010 fruit-growing season, the Director-General of the Department of Environment, Climate Change and Water ("DECCW") issued a number of general licences to Mr Terrey to shoot Flying-foxes on the property, and other properties owned by him, for the purposes of mitigating crop damage caused by the Flying-foxes, subject to conditions. 11Upon issuing the licences, DECCW sent Mr Terrey a copy of a document entitled "Shooting of flying-foxes Standard Operating Procedure for NSW" dated October 2009 and a document entitled "Important Information for the Licence Holder", which contained information on the standard licence conditions. The Standard Operating Procedures stated that the shooting was most often conducted at and after dusk when lighting conditions and visibility was poor. Thus, the document went on to state that "additional searches for wounded animals must be conducted the following morning to locate any animals that may have been missed". 12In late November 2009, the Director-General of DECCW varied Mr Terrey's general licence to enable him to shoot an additional 15 Grey-headed Flying-foxes. 13The new licence conditions were aimed at ensuring that: (a)the shooting of Flying-foxes was undertaken in accordance with accepted animal welfare standards, and that all Flying-foxes shot were killed as quickly and as humanely as possible; (b)the shooting of Flying-foxes was accurately accounted for and recorded by licensees; (c)there was a reduction in the illegal shooting or overshooting of Flying foxes; and (d)DECCW was able to adequately monitor and manage the number of Flying-foxes shot by commercial fruit growers under the licensing system. 14Mr Terrey authorised two shooters to conduct the shooting of the Flying-foxes on the property, one of which was Mr Lance Mitchell. By virtue of s 120(5) of the NPWA, Mr Mitchell, as a person authorised to carry out shooting under the licence, was also taken to be a holder of the licence. 15On 6 December 2009, Mr Mitchell shot four Flying-foxes on the property. As the person who shot the four Flying-foxes, Mr Mitchell was the person responsible for ensuring compliance with condition 9 of the licence, namely, that the shot Flying-foxes were immediately located and immediately alleviated of any suffering. 16Under an agreement between Mr Terrey and Mr Mitchell, Mr Terrey was the person responsible for collecting the dead Flying-foxes from the property and placing them in the nominated location on the property. This agreement was consistent with condition 11 of the licence. 17On 7 December 2009, Mr Terrey conducted a search of the property, along with his son and grandson, but only located one of the four Flying-foxes. 18The time that Mr Terrey was able to dedicate to looking for the Flying-foxes was limited because it was picking season and during this period Mr Terrey and his family work up to 22 hours per day, picking fruit, packaging it and sending it to the Sydney markets. The total annual income for the orchard is generated during this six week harvest. The income is used to support Mr Terrey and his wife and Mr Terrey's son, Mr Andrew Terrey, and his wife and family. 19On 8 December 2009, DECCW officers Mr Paul Godfrey, Mr Dave Monahan, and Ms Vickii Lett, conducted an inspection of the property and found three Flying-foxes, two of which were dead. The two dead Flying-foxes were located in the trees on the property. 20Mr Terrey was issued a penalty infringement notice in relation to the failure to collect the two dead Flying-foxes. He elected to have the matter determined by a court. 21Arising out of the same incident, Mr Mitchell was charged with an offence for breaching condition 9 of the licence. The particulars of his charge included the injury to a Flying-fox that was also located by DECCW officers during their inspection of the property. The injured Flying-fox was subsequently euthanised. 22Mr Terrey had previously had an official caution letter sent to him following an inspection by DECCW officers on 8 November 2009, for failing to comply with conditions attached to another general licence, namely: (a) to get the daily shooting tally completed and signed by the nominated shooters in contravention of condition 7 of that licence; (b) to produce dead Flying-foxes upon request and removing dead Flying-foxes from the property prior to approval in contravention of condition 10 of that licence; and (c) to construct a burial site in contravention of condition 11 of that licence (worded differently to condition 11 the subject of this appeal).

The Sentence Imposed by the Local Court 23In imposing the penalty for the offence the learned magistrate's reasoning was as follows: HIS HONOUR: The accused has pleaded guilty what might be termed an unusual offence. The alligation is that he is the holder of a licence issued under section 120 of the National Parks and Wildlife Act and he failed to comply with a condition attached to the licence. Very briefly he is currently the owner of a very large orchard at Grose Vale. He has a problem with flying foxes. Flying foxes as I understand it are a threatened species. I imagine they do, do untold damage to the orchard industry. By the issue of the licence he is able to do what other people cannot do. That is he can destroy a certain number. On the day in question under the power of his licence he got two contractors to come and shoot flying foxes. It is a condition of his licence that a log be kept of those that are shot and that the bodies of the dead animals are thrown in a certain spot. The shooters reported having shot four, they could only locate one. The defence say, firstly Mr Terrey, then Mr Terrey's son and his son in turn had a search and couldn't locate any. I stress it is a very large orchard we are talking about. There was limited time that could be devoted I suppose to searching because it is around about picking season. But National Parks and Wildlife officers came and they found the missing three. Two dead and one was still alive but wounded which had to be put down. So it cannot be said that the task was impossible. Because the animals were found. Mr Terrey comes before the court as a person of prior good character. No similar matters to this though he has been given a warning in the past for non-compliance. The Prosecution have informed me that the maximum penalty is 100 penalty units or $11,000. I have been given statistics from the Judicial Commission website showing that from July 06 to June 10 there have only been two prosecutions under this section or for this similar offence. One penalty is $250, one penalty was $350. It seems incredibly low in the view of the maximum penalty. It has been put to me that I could deal with the matter under section 10, that is not record a conviction. Firstly relying on his character and secondly relying I suppose on the task at hand. That is searching that large orchard. But the search nonetheless did turn up the other three missing flying foxes. It seems to me when a State instrumentality specifically licenses someone to do that which cannot be done by others, that is shoot threatened species that everyone involved, those issuing the licences. The owner of the property. The contractors who shoot in court should they be brought before the court should take the matters seriously. It is hard to envisage a situation where section 10 would be applicable in this case. So far as imposing a penalty is concerned. I am not going to be guided by two paltry penalties issued or metered out in a four year period that cannot reflect the seriousness in my view of the offence. Stand up Mr Terrey? FOR THIS OFFENCE YOU ARE CONVICTED. YOU ARE FINED $2000, PROFESSIONAL COSTS $400. I ALLOW TWENTY EIGHT DAYS TO PAY.

Evidence Before This Court 24Before this Court the parties relied upon the following evidence: (a)the Local Court attendance notice issued to Mr Terrey dated 22 December 2010; (b)a statement of facts tendered by DECCW in the Local Court proceedings in relation to the charges against both Mr Terrey and Mr Mitchell; (c)photos tendered by DECCW and Mr Terrey in the proceedings below; and (d)a partial transcript of the proceedings before the magistrate on 23 February 2011. 25Mr Terrey made two applications for leave to adduce fresh evidence pursuant to s 37(2) of the Crimes (Appeal and Review) Act 2001. 26The fresh evidence was two-fold: (a) first, the "Standard Operating Procedure" document described above; and (b) second, a document recording the number of Flying-foxes that had been shot and killed on the property on 6 December 2009. 27Both applications were opposed by DECCW. 28Leave was granted by the Court to tender the Standard Operating Procedures because it was in the interest of justice that this document be placed before the Court. This was because it was a document referred to in the licence, albeit not condition 11, and that assisted in the Court's understanding of the permissible procedures surrounding the shooting of Flying-foxes made lawful by the licence. It also illuminated the rationale for condition 11. 29The tender of the Flying-fox record sheet was, Mr Terrey argued, in the interest of justice because it demonstrated that his breach of condition 11 did not in anyway compromise the objects of the NPWA. The Court did not grant leave to adduce this fresh evidence because it was neither a matter of controversy that four Flying-foxes were shot by Mr Mitchell nor that four Flying-foxes were recorded as having been killed. Thus, there was no suggestion that Mr Terrey had engaged in any deception in the number of Flying-foxes that had been shot. 30Mr Walters, appearing on behalf of Mr Terrey, proceeded to commence his closing address. It immediately became apparent that Mr Walters was seeking to rely on factual matters that were not the subject of any evidence before the Court. When the Court raised this with Mr Walters, he informed the Court that he was doing no more than reiterating during submissions the same factual matters that had been put to the learned magistrate in the court below. 31Leaving aside the question of whether this material properly constitutes evidence, a difficulty emerged by reason of the fact that a portion of the transcript of the proceedings before the magistrate referred to as "counsel addressed" had not been reproduced and was therefore not before this Court. 32After some discussion, it was agreed by the parties that a statement of agreed facts would be tendered, such statement comprising the material that been presented in closing addresses to the court below. After a short adjournment to permit this process to occur, an agreed statement of facts was received by the Court into evidence.

The Nature of an Appeal Against Sentence in This Court 33While this adjournment took place, a further issue emerged. Shortly before the hearing commenced at 10.00am the prosecutor had faxed to the Court its written submissions. While not in any way being critical of the prosecutor (there had been no direction to file and serve written submissions made by the Court), because of the timing of their arrival the Court did not have the opportunity of reading them prior to the hearing commencing. This was rectified over the adjournment referred to above. These submissions alerted the Court to the following important legislative amendment that had occurred on 30 March 2009. 34Up until 29 March 2009, s 37(1) of the Crimes (Appeal and Review) Act 2001 set out the nature of appeals against convictions and sentence as follows (emphasis added): An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 38 35However, on 30 March 2009 s 37(1) was amended to set out the nature of appeals against conviction, but as it appears from the current text of that provision, no longer appeals against sentence (emphasis added): An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, expect as provided by section 38. 36Section 38 of the Act deals with the circumstances in which evidence is to be given in person and is not presently relevant. 37The Second Reading Speech for the Crimes (Appeal and Review) Amendment Bill 2009 states that the aim of the Bill was to give effect to the Crimes (Appeal and Review) Act 2001 - Report on the Statutory Review of the Act August 2008 ("the Report"). Part 5.12 of the Report discussed the previous incarnation of ss 18(1) and 37(1) of the Crimes (Appeal and Review) Act , which required appeals to the District Court (in the case of s 18(1)) and all appeals to the Land and Environment Court (in the case of s 37(1)) to be conducted as a rehearing based on "certified transcripts". Because there was no method by which to certify a transcript in the Local Court, the Report contained the recommendation (Recommendation 12): That the references to "certified" transcript in section 18 and 37 be repealed. 38Recommendation 12 of the Report appears to have been given effect to by cls 6 and 10 of Sch 1 to the Crimes (Appeal and Review) Amendment Act 2009. But in so doing, the words "against conviction" were inserted with the effect that s 37(1) of the C rimes (Appeal and Review) Act 2001 purports to no longer apply to appeals against sentence. 39As a consequence, there is currently no provision in the Crimes (Appeal and Review) Act which describes the nature of a severity appeal to this Court for an environmental offence. 40This is so notwithstanding that pursuant to s 31 of the Act there is an appeal as of right to this Court in the following terms: 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. 41The question arose, therefore, as to whether the limitation contained in s 37(2) of the Act applied in respect of appeals, such as the present appeal, against sentence only. 42Section 37 "Appeals to be by way of rehearing on the evidence" is located in Subdiv 2 "Determination of appeals" of Div 1 "Appeals by defendants" which is located in Pt 4 of the Act, entitled "Appeals from Local Court to Land and Environment Court". Section 37(2) provides as follows: 37 Appeals to be by way of rehearing on the evidence ... (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. 43DECCW submitted that notwithstanding that s 37(1) had been deliberately amended by the legislature to restrict the application of that provision to appeals against conviction, the limitation contained in s 37(2) nevertheless applied to appeals against both conviction and/or sentence. 44It was contended that the limitation applied, notwithstanding the express restriction on the ambit of s 37(1), because when regard was had to the headings in Pt 4, Div 1, Subdiv 1 and 2, it was clear that properly construed both in its textual context and as against the objective legislative intention to restrict the factual matters relied upon by parties to an appeal in respect of an environmental offence to the evidence before the Local Court, the necessity for leave to adduce fresh evidence in s 37(2) remained. In support of this argument DECCW relied on s 35(1) of the Interpretation Act 1987, which states that headings to Parts, Divisions or Subdivisions into which a statute is divided "shall be" taken to be part of that statute. 45DECCW advance three additional arguments why it was appropriate to construe s 37(2) in the manner it proposed: (1) first, to do otherwise would result in appeals commenced by defendants to this Court being different in nature to appeals made by defendants to the District Court (see s 17 of the Crimes (Appeal and Review) Act ); (2) second, to do otherwise would mean that appeals commenced by defendants would be different in nature to appeals made by prosectors from the Local Court to the Land and Environment Court (see s 47(1) of the Crimes (Appeal and Review) Act ); and (3) third, that the interpretation was consistent with several decisions of this Court recently handed down in respect of appeals against sentence after the date the legislation changed (for example, Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 at [10]-[13] and Nguyen v Canterbury City Council [2010] NSWLEC 55 at [9] and [31]). 46Mr Terrey relied instead on the clear and unambiguous text of s 37(1) and submitted that on any construction of s 37(2), it was plain that that subsection was anchored to the subsection before it, namely, s 37(1). 47I agree. To the extent that decisions of this Court that have been decided subsequent to the legislative change to s 37(1) state the contrary, they are, in my view, plainly wrong and ought not be followed. 48In my further opinion, s 35 of the Interpretation Act does not assist the respondent. The language of s 37(2) is sufficiently clear that no ambiguity exists that could justify the construction afforded to the provision suggested by DECCW. This is because when read within the context of s 37 as a whole, the "fresh evidence" referred to in s 37(2) is not at large, but follows on from the nature of an appeal against conviction, namely, that is one of rehearing on the evidence before the court below. It would produce an absurdity if a hearing against sentence was not, by reason of its omission from s 37(1), limited to the evidence tendered in the court below, but nevertheless required the leave of this Court to adduce fresh evidence. This is the logical outcome of DECCW's submissions. 49The Court acknowledges that the result produces the anomalies identified above by DECCW, and moreover, accepts that the objective intention of the legislature in making the amendment is opaque (the Second Reading Speech, Hansard , 25 March 2009, pp 13707-13713 is silent in this regard). But the Court cannot ignore the deliberate insertion of the words "against conviction" by the Parliament. If, as DECCW suggested, the amendment has occurred due to a drafting oversight, any error is for Parliament alone to rectify. It is not for this Court to, in effect, insert the words "and/or sentence" after the word "conviction" in s 37(1) by way of judicial fiat. 50Having arrived at this conclusion, as a matter of fairness to Mr Terrey, the Court alerted Mr Walters that it had erroneously excluded the Flying-fox recording sheet pursuant to s 37(2) and invited Mr Walters to renew the tender and to put before the Court any other evidence relevant to the appeal. Mr Walters declined both invitations. 51Notwithstanding the legislative lacuna on the nature of an appeal against sentence only under the Act, the Court proceeded on the basis that the appeal was by way of rehearing, absent the limitation on adducing fresh evidence contained in s 37(2). Thus the Court resolved for itself the ultimate issues for determination, in this case, the appropriate sentence to be imposed for the offence to which Mr Terrey has entered a plea of guilty ( Advanced Arbor Service v Strathfield Municipal Council [2006] NSWLEC 485 at [31] and Thomson v Hawkesbury City Council [2009] NSWLEC 151 at [44]).

Purposes of Sentencing 52Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purpose of imposing a sentence on the offender includes: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Correct Approach to Sentencing 53It is a basic principle of sentencing law that the sentence imposed by a court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the defendant ( Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). 54Section 21A of the CSPA identifies matters that the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). 55Section 194 of the NPWA sets out additional factors that the Court is to take into consideration when imposing a penalty under the NPWA: 194 Sentencing-matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, 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 significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) 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, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence... (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant. 56The correct method of sentencing is the instinctive synthesis method having regard to all of the relevant objective and subjective circumstances surrounding the commission of the offence ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

Objective Considerations 57The primary factor to consider in determining an appropriate sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [50] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [46]). 58In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which a court may have regard relevantly include (see Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110]): the nature of the offence; the maximum penalty for the offence; the objective harmfulness of Mr Terrey's actions; Mr Terrey's state of mind in committing the offence; Mr Terrey's reasons for committing the offence; the foreseeability of the risk of harm to the environment; the practical measures available to Mr Terrey to avoid harm to the environment; and Mr Terrey's control over the causes of harm to the environment.

Nature of the Offence 59A fundamental consideration of relevance to an environmental offence is the degree to which, having regard to the maximum penalties provided by the statute in question, the conduct giving rise to the commission of the crime would offend against the legislative objectives expressed in the statutory offence (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]). 60The objects of the NPWA stated in s 2A include: 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, 61The nature and objects of the NPWA were discussed recently by the Court in Director-General, Department of Environment, Climate Change and Water v Forestry Commission of NSW [2011] NSWLEC 102 (at [57]-[60]): 57 A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalty provided by the statute in question, the Forestry Commission's conduct offend against the legislative objectives as expressed by the statutory offence ( Rawson at [49]). 58 The objects of the NPWA include the promotion of the conservation of nature by applying the principles of ecologically sustainable development, including the conservation of habitat and the biological diversity at the community, species and genetic levels. The "principles of ecologically sustainable development" are defined to be the principles of the ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991. These include the precautionary principle, that of intergenerational equity, the conservation of biological diversity and principles of ecological integrity. 59 The conservation of threatened species has been described by Preston J in Bentley (at [63]) as "an essential action in the conservation of species diversity, and hence of biological diversity, and of ecological integrity". 60 The offence created by s 175 of the NWPA has an important role in the overall statutory scheme of the NPWA in preventing contravention of that Act, and therefore, contravention of the objects of that Act. 62Mr Terrey submitted that the commission of the offence did not offend against the legislative objectives of the NPWA because four Flying-foxes were shot and, ultimately, four Flying-foxes were recovered. 63I do not agree. As was submitted by DECCW, Mr Terrey, by the grant of a licence under s 120 of the NPWA, was allowed to do what others could not do, namely, shoot Flying-foxes, which are listed as a vulnerable species under Sch 2 of the Threatened Species Conservation Act 1995 ("the TSCA"). The licence, including condition 11, was subject to specific conditions that were directed to minimising the suffering of shot Flying-foxes (compliance with condition 11 is, in my view, an additional method of ensuring that the shot Flying-foxes are located and, if injured, are therefore humanely dealt with); ensuring that the shooting of Flying-foxes is accurately accounted for and recorded by the licensee; reducing the illegal shooting of Flying-foxes; and enabling DECCW to adequately monitor the number of Flying-foxes shot by commercial fruit growers under the licensing system. 64By failing to comply with condition 11 of his licence, Mr Terrey's conduct in allowing two Flying-foxes to go undetected undermined the protective regulatory scheme established by the NPWA and had the potential to impede the ability of the regulating authorities to monitor and record the number of Flying-foxes shot. The conservation of species, all the more acute when that species is vulnerable, as an object of the NPWA, is dependant on the licensed and monitored killing of these species occurring within the legislative framework of the NPWA ( Morris v Department of Environment and Climate Change [2008] NSWLEC 309 at [13]).

Maximum Penalty 65The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [60]-[64] ). In Markarian v The Queen the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the Court (at [31]). 66In this instance, the maximum penalty for this offence is relatively low, namely, $11,000 (s 175 of the NPWA), given the seriousness with which the community has come to view environmental offences.

Objective Harmfulness of Mr Terrey's Actions 67In assessing the seriousness of the harm to the environment caused by the commission of the offence against the NPWA, the Court is required to consider the extent of the harm caused, or likely to be caused (Bentley at [179]; Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [14]; Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [91] and ss 194(1)(a) of the NPWA). 68Under s 118A of the NPWA a person must not harm Flying-foxes, except where authorised to do so by a licence issued under that Act. 69At the time of the commission of the offence, the Flying-fox was listed as a vulnerable species under the TSCA. A species is listed as vulnerable if it is facing a high risk of extinction in New South Wales in the medium-term, determined in accordance with criteria prescribed by the regulations, and provided it is not eligible to be listed as an endangered or critically endangered species (s 10(4) of the TSCA). The commission of an offence involving, as it did, a vulnerable species, serves in my opinion, to increase the objective seriousness of the offence (s 194(1)(b) of the NPWA). 70Having said this, the failure of Mr Terrey to comply with condition 11 did not cause actual harm to the environment. Mr Terrey was authorised to shoot the two Flying-foxes and the Flying-foxes, once located, were dead. 71However, has stated above at [63] and [64], very real harm was caused to the regulatory system enshrined in the NPWA insofar as Mr Terrey's actions undermined the protective licensing controls imposed by the Act.

Mr Terrey's State of Mind and His Reasons for Committing the Offence 72A factor by which the objective seriousness of the offence may be augmented is the reason for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237]; Gittany at [140]; Rae at [47]). If the offence is found to be committed for financial gain this will increase its objective seriousness (Gittany at [141], Bentley at [246]-[247], Scahill at [82], Director General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [78], Rae at [49], s 21A(2)(o) of the CSPA and s 194(1)(h) of the NPWA). 73It was submitted by DECCW that the commission of the offence was commercially motivated based on an inference drawn from the evidence that the offence was carried out during picking season and that Mr Terrey was therefore subject to time constraints in searching for the Flying-foxes. DECCW submitted that it could readily be inferred that the picking and packaging of fruit to be sent to Sydney for sale took precedence over the locating of the dead Flying-foxes. 74I cannot accept this submission. That is to say, I do not find that DECCW has proved beyond reasonable doubt that the offence was committed for financial gain. The evidence before the Court goes no higher than to establish that Mr Terrey was under time pressure at the time the offence was committed because it was harvest time. From this it cannot be extrapolated, absent additional cogent evidence, that Mr Terrey performed a perfunctory search for financial reasons. To the contrary, not only did Mr Terrey search for the Flying-foxes, so too did his son and grandson. In my opinion, the evidence merely establishes that Mr Terrey carried out an inadequate search, and therefore, failed to locate the two dead Flying-foxes.

Foreseeability of the Risk of Harm 75Mr Terrey could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence (s 194(1)(d) of the NPWA). That is to say, it was reasonably foreseeable, given the strict terms of condition 11 ("must be"), that if the Flying-foxes were not collected breach would occur and the harm described above would result. Augmenting this foreseeability was the fact that, first, by reason of the official caution letter Mr Terrey had been put on notice by DECCW of the need to comply with the conditions of licences he held under the NPWA. In that letter DECCW had unequivocally warned Mr Terrey that further breaches would be dealt with by way of penalty infringement notices and possible prosecution. 76While the caution letter was not issued in respect of the licence the subject of this appeal, it is not necessary that the specific cause of the incident be foreseeable (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [32]). 77Second, Mr Terrey had been furnished with the Standard Operating Procedures that outlined the necessary steps required to be executed in order to comply with the conditions of the licence. Compliance with the Standard Operating Procedures was a condition of his licence to shoot Flying-foxes. That document clearly stated that "additional searches for wounded animals must be conducted the following morning to locate any animals that may have been missed" and that "killed flying-foxes must be collected and disposed of in an appropriate manner (ie burned or killed) in accordance with acceptable practices as required by local councils and applicable State or Federal regulations".

Control Over the Causes and the Practical Measures Available 78As the owner of the property, as well as the holder of the licence under s 120 of the NPWA, Mr Terrey had complete control over the shooting of the Flying-foxes under the licence. It was Mr Terrey who engaged Mr Mitchell to carry out the shooting and at all times it was Mr Terrey who was responsible for the collection of the dead Flying-foxes. This was reflected in the agreement that Mr Terrey had with Mr Mitchell. It follows that Mr Terrey had complete control over the causes that gave rise to the offence (ss 194(1)(e) of the NPWA). 79By way of exculpation, Mr Terrey maintained that he was entitled to rely on Mr Mitchell's observance of condition 9 and that had this occurred, it is unlikely that any offence would have been committed by him under condition 11. This argument must be rejected. Whether or not Mr Mitchell breached condition 9 is irrelevant for present purposes. The fact remains that Mr Terrey was under a legal obligation, pursuant to condition 11, to collect the dead Flying-foxes. That he did not do so is the fault only of himself. 80It follows, given that Mr Terrey had complete control over the collecting of the dead Flying-foxes, that he could have taken practical measures to prevent, control, abate or mitigate the harm . These measures were simply that Mr Terrey should have continued searching for the shot Flying-foxes until they were located (s 194(1)(c) of the NPWA). 81It was advanced by Mr Terrey that the search carried out by him was thorough, evidenced by the fact that he also enlisted the assistance of his son and grandson, and thus, no further practical measure were available to him to prevent, control, abate or mitigate the harm to the environment. This was particularly so when regard was had to the extensive size of the property (depicted in the photos before the Court) on which the Flying-foxes were shot. 82I do not agree. Although there was no evidence before the Court as to the duration of the search carried out by either Mr Terrey or the DECCW officers the next day, the two dead Flying-foxes were able to be located by the DECCW officers, demonstrating, as the learned magistrate succinctly observed, "it cannot be said that the task was impossible ". Assuming the search was carried out during daylight (there is no evidence to suggest otherwise) the photos before the Court of the dead Flying-foxes in the trees indicate that they ought to have been visible to a person carrying out a proper search of the property.

Conclusion on Objective Circumstances 83Having regard to the nature of the offence; the maximum penalty; the extent of harm; the practical measures available to Mr Terrey to prevent the harm; the reasonable foreseeability of the risk of harm caused by the commission of the offence; the extent to which Mr Terrey had control over the causes that gave rise to the harm; and the lack of any commercial motive in committing the offence, I find that the objective seriousness of the offence committed by Mr Terrey is low.

The Subjective Circumstances of Mr Terrey 84A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144], Rae at [55] and s 21A(3) of the CSPA). 85The subjective circumstances of Mr Terrey to be considered relevantly include: any prior criminal record; any plea of guilty; any contrition and remorse; Mr Terrey's good character, if any; his cooperation with, and assistance to the regulatory authorities; and the financial means of Mr Terrey to pay an monetary penalty imposed.

Prior Criminality 86Mr Terrey has no prior convictions for any environmental offences (s 21A(3)(e) of the CSPA).

Plea of Guilty 87Mr Terrey pleaded guilty at the first available opportunity and should be afforded the full 25% discount for the utilitarian value of the plea of guilty (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the CSPA).

Prior Good Character of Mr Terrey 88It was submitted that Mr Terrey is, but for the commission of the offence, of prior good character (s 21A(3)(f) of the CSPA). Reliance was placed by Mr Terrey on a remark to this effect by the learned magistrate. 89But the Court must also consider the effect of the previous letter of caution which, in my view, serves to tarnish Mr Terrey's character. This is discussed in further detail below in considering the need for specific deterrence as a component of the penalty imposed.

Assistance to Authorities 90There was no evidence before the Court that Mr Terrey provided any assistance to the regulatory authorities (ss 21A(3)(m) and 23 CSPA).

Contrition and Remorse 91The contrition or remorse of a defendant is able to be taken into account as a mitigating factors in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). 92Mr Terrey has made no expression of contrition or remorse, other than, in his submission, the plea of guilty. 93In the recent decision in Forestry Commission the issue of whether a plea of guilty is of itself sufficient to show contrition or remorse was examined (at [110]-[112]): 110 In this case, the Forestry Commission initially made no expression of contrition or remorse, other than the plea of guilty. It did so, counsel for the Commission told the Court, because it believed that its plea of guilty was sufficient ( Signato v R [1998] HCA 74; (1998) 194 CLR 656 at [22] and Cameron v R [2002] HCA 6; (2002) 209 CLR 339 at [65]). 111 I do not read these authorities as unequivocally standing for the proposition that a plea of guilty, without more, is a sufficient expression of remorse or contrition for the purpose of sentencing. In any event, the statements made in each decision were not made in the context of s 21A(3)(i) of the CSPA. Thus in Georgopolous v R [2010] NSWCCA 246, the Court of Criminal Appeal stated (at [49]) the following: 49 In my opinion a plea of guilty may by inference amount to evidence of remorse for the purpose of the section but it will rarely be sufficient to meet the pre-conditions for it to be used as a mitigating factor. The plea is simply an admission by the offender of the facts that form the elements of the offence. The court is entitled to act upon the plea regardless of the reason why the offender made the admissions inherent in the plea of guilty. The offender is bound by the plea even if, as appears to be the case here, the offender does not in fact believe he is guilty: see Wong v DPP [2005] NSWSC 129; 155 A Crim R 37. Provided that the offender intended by the plea of guilty to make the relevant admissions, it does not matter why he made those admissions. 112 This decision has been endorsed and followed in this Court. In Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 Biscoe J stated (at [12] and see also similar sentiments expressed by myself in Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; 172 LGERA 52 at [107] and Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200 at [54(c)]): 12 What is the significance of a plea of guilty? It is an admission of the elements of the offence and an acknowledgement of guilt for the offence: Georgopolous v R [2010] NSWCCA 246 at [49], [1], [17]. It is a mitigating factor listed in s 21A(3)(k). A plea of guilty and the timing of the plea are required to be taken into account by the Court which must give reasons if they do not attract a lesser penalty: s 22. The utilitarian value of a plea of guilty generally attracts a discount in the range of 10-25 per cent depending primarily on the timing of the plea: R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160]. A plea of guilty may by inference amount to evidence of remorse but, of itself, will rarely be sufficient to meet the pre-conditions of s 21A(3)(i) for remorse to be used as a mitigating factor: Georgopolous at [49]. Remorse is a mitigating factor but only if the offender shows he is truly remorseful by satisfying those pre-conditions. 94I therefore do not accept that Mr Terrey's plea of guilty, without more, evinces any contrition or remorse on his behalf.

Capacity to Pay a Fine 95There is no evidence that Mr Terrey suffers from any financial hardship that would prevent him from paying any monetary penalty imposed by the Court.

Conclusion on Subjective Considerations 96The subjective considerations of Mr Terrey operate to some extent to mitigate the penalty to be imposed by the Court.

Deterrence, Denunciation and Retribution 97The penalty must be sufficient to deter others who, by oversight or inadequacy in procedure, risk committing an offence against the NPWA in the hope that should the oversight or inadequacy be exposed, only nominal penalties will be applied. There is also a need for the sentence to serve as a general deterrent to prevent others committing similar offences against the NPWA. Accordingly, penalties must be imposed that are substantial enough to encourage persons, such as Mr Terrey, to adopt procedures in order to ensure compliance with the regulatory scheme under the NPWA (Hunter Valley Property Management at [34]; Bentley at [139]; Axer at (367)) 98Mr Terrey submitted that in the present case minimal consideration of either general or specific deterrence was warranted. This submission must be rejected. 99In respect of general deterrence, DECCW submitted, and I agree, that the deterrent effect of a fine must send a message to persons holding licences permitting them to kill vulnerable species to take care in ensuring compliance with the conditions of those licences. The need for general deterrence was reinforced by Mr Terrey's own evidence, as set out in the statement of agreed facts, that: While orchardists accept a certain percentage of damage to their crop, the extensive reduction in farming operations in the Sydney basin mean that there is increasing pressure on product still grown in that area and rising populations of invasive species. Flying foxes sometimes come in plague numbers. The demands of the market are such that only perfect fruit are acceptable. Damage no matter how slight results in rejection and loss of income. 100In respect of specific deterrence, DECCW submitted, and again I agree, that there is a very real need to include specific deterrence as a component of the penalty. This is because not only was Mr Terrey made aware of the licence conditions and the Standard Operating Procedure at the commencement of the 2009-2010 fruit growing season, he had also been issued with a previous official caution letter that set out the consequences of not complying with the conditions of licences issued under the NPWA. The issuing of the letter of caution, albeit, as stated above, in respect of asserted breaches of another licence, nevertheless suggests, when viewed together with the commission of this offence, at best, a cavalier approach by Mr Terrey to compliance with his regulatory obligations. At worst, the letter of caution, particularly when combined with Mr Terrey's absence of demonstrable remorse for his crime suggests, a more serious and worrying disregard of his legal obligations. 101The imposition of an appropriate sentence also serves the purpose of ensuring that retribution and denunciation are properly addressed. The sentence of this Court is a public denunciation of Mr Terrey and ensures that he is held accountable for his actions and is adequately punished ( Rae at [8]-[9], Bentley at [141], Environment Protection Authority v Hanna [2010] NSWLEC 98 at [34] and ss 3A(a) and (e) of the CSPA). I also take these elements of sentencing into account.

Consistency in Sentencing 102A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]). 103Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWLEC 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 at [54]). 104There have been a limited number of prosecutions in the Land and Environment Court for breaches of s 133(4) of the NPWA. 105The Court was referred to two cases by DECCW where breaches of s 133(4) of the NPWA had been committed (Forestry Commission and Morris ). Of these two decision only Morris is sufficiently factually similar to the present offence to be of assistance. 106In Morris the defendant was charged with two breaches of the NPWA in relation to the killing of protected fauna and contravening the conditions of a licence to shoot kangaroos issued under the NPWA. The defendant had killed 128 Eastern Grey kangaroos in circumstances where he was not licensed to shoot that species in the zone in which he was operating. The maximum penalty for each offence was $11,000. The Local Court fined the defendant $8,000 and $570 professional and court costs for the protected fauna charge and, relevantly for present purposes, $2,000 and $70 court costs, for the breach of his licence. On appeal the penalties were upheld by this Court. The penalties were imposed in circumstances where the defendant pleaded guilty, made an admission that he was trying to cheat the system, expressed contrition and remorse, co-operated with authorities, and where the imposition of a substantial fine would have caused financial hardship to be suffered by the defendant. 107In my opinion, the offence committed in Morris was objectively more serious than the offence with which Mr Terrey has been convicted. This should therefore warrant the imposition of a more lenient sentence in the present case .

Whether an Order Under s 10 of the CSPA Ought to be Made 108Mr Terrey submitted that this is an appropriate case for an order to be made under s 10 of the CSPA. Section 10 of that Act states: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 109It was noted in Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 by Pain J that the circumstances in which s 10 orders are appropriate will be rare in convictions for environmental offences (at [46]): 46 There are several decisions which emphasise that a grant of a s 10 order under the CSP Act in environmental offences is not lightly given. As I stated in Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 at [24]: Several cases have made it clear that s 10 of the Crimes (Sentencing Procedure) Act (and its predecessor s 556A of the Crimes Act 1900 ) is rarely applied in pollution cases. In Environment Protection Authority v Attard [2000] NSWCCA 242, Sperling J (with whom Mason P and Smart AJ agreed) stated at [5] that s 556A would only be applied in exceptional circumstances. In Hunter Water Board v State Rail Authority (NSW)(No 2) (1992) 75 LGRA 22, Stein J at 23 said: This court has not infrequently stated that it will be a rare case when a dismissal under s 556A is seen as appropriate for an environmental offence, especially a breach of the Clean Waters Act 110It was further observed by Biscoe J in Blue Mountains City Council v Carlon [2008] NSWLEC 296 that the circumstances in which a s 10 order is appropriate are even more limited where, such as in the present case, the environmental offence is one of strict liability. In that case his Honour opined that (at [70]-[71]): 70 This is a strict liability offence in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence: Caralis v Smyth (1988) 34 A Crim R 193, 65 LGRA 303 at 308 (CCA). It is unusual in the case of strict liability offences for a defendant to receive the benefit of s 10, even if the defendant genuinely believed that it was lawfully entitled to undertake the prohibited activity. The reason for imposing a penalty even where such a belief is held, has been expressed in various ways to similar effect: to invoke the deterrent purpose of educating the offender and the community in the law's proscriptions so that the law will come to be known and obeyed; to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct; to give effect to the system of planning controls. See Mosman Municipal Council v Menai Excavations P/L (2002) 122 LGERA 89 at [35] (Lloyd J); McDonagh (on behalf of Great Lakes Council) v Birdon Dredging Pty Ltd (1998) 99 LGERA 198 at 205 (Bignold J) quoting Walden v Hensler (1987) 163 CLR 561 at 570; Caralis v Smyth (1988) 34 A Crim R 193, 65 LGRA 303 at 309 (CCA). 71 In the context of strict liability pollution of the environment offences, it has been said that it is a rare case when a dismissal under s 10 is seen as appropriate: Thorneloe v Filipowski (2001) 52 NSWLR 60 (CCA) at [165] - [169] per Spigelman CJ. Nevertheless, in that case, the Court of Appeal made an order under s 10(1)(a) directing that the charge be dismissed in circumstances where there was nothing further that the master of a vessel, a first offender, could have done to avoid the comparatively minor oil pollution the subject of a strict liability offence to which he had pleaded guilty: at [214]. Spigelman CJ held at [178] and [184]: 178 It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight ... 111The mandatory factors to which the Court must have regard set out in s 10(3) are not exhaustive ( R v Paris [2001] NSWCCA 83 at [42] and s 10(3)(d)) and are disjunctive in operation ( R v Paris at [42]). 112In the context of the present appeal, Mr Terrey is an elderly man who has been in the commercial fruit growing business for over 50 years. This is the first environmental offence with which Mr Terrey has been convicted, although as discussed above, Mr Terrey has been earlier issued with an official caution letter and the Court cannot completely discount any risk of recidivism. 113Against this, there are no extenuating circumstances in relation to the commission of the offence that I am able to take into account. There is no evidence before the Court as to Mr Terrey's physical or mental health. At all times it was Mr Terrey's responsibility to comply with condition 11 of his licence. And as I have found above, at all times Mr Terrey had control over the causes that gave rise to the offence and could have prevented the commission of the offence by searching until he found all of the dead Flying-foxes. In this context, it cannot be said that Mr Terrey held a positive belief that the conditions of the licence were being complied with. On the contrary, he must have known at the time that they were not. 114It also cannot be said that this is a wholly trivial offence given that the breach undermined the protective regulatory licensing scheme established by NPWA. But the Court notes that s 10 can apply to offences that are not considered trivial in nature ( R v Paris and Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38]). 115Finally, because Mr Terrey has shown no contrition for the predicament he now finds himself in, the Court is unable to confidentially state that he has sufficient insight into the unlawfulness of his actions that this is likely to be an isolated incident. 116In my view, given that Mr Terrey is still engaged in commercial fruit growing an order under s 10 would serve only to send the misleading message to Mr Terrey and to those persons working in that industry that compliance with licence conditions under the NPWA is not taken seriously. Nothing could be further from the truth. 117I therefore do accept that an order under s 10 of the CSPA is appropriate in the circumstances of the commission of this case.

Appropriate Penalty to Be Imposed 118Synthesising both the objective circumstances of the offence as mitigated by the subjective circumstances of Mr Terrey, including a 28% discount applied for Mr Terrey's early guilty plea and the other subjective factors discussed above, and having regard to the decision in Morris , I consider that an appropriate penalty is a fine imposed in the sum of $1,000.

Costs 119In determining an appeal the Court may make such order as to the costs of the appeal as it thinks just (s 49(4) of the Crimes (Appeal and Review) Act ). 120Given that Mr Terrey has been partially successful in his appeal insofar as the fine imposed has been reduced, it is appropriate each party pay its own costs ( Kirzner v Manly Council [2009] NSWLEC 13 at [42]-[46]). In his closing address Mr Terrey did not cavil with this approach.

Orders 121For the reasons articulated above, the Court makes the following orders: (1) Mr Terrey is convicted of the offence as charged; (2) Mr Terrey is fined the sum of $1,000; and (3) the fine imposed in order (2) is payable within 28 days to the Registrar of this Court, unless within five days from the date of the making of these orders the parties approach the Court seeking an alternate payment order.

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 August 2011