Land and Environment Court New South Wales

• Medium Neutral Citation: Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185
• Hearing dates: 24 September 2013
• Decision date: 01 November 2013
• Jurisdiction: Class 5
• Before: Craig J

Decision

Orders as set out at [126]

• Catchwords: SENTENCE - damage to habitat of threatened species contrary to s 118D(1) of the National Parks and Wildlife Act 1974 - clearing of portion of property authorised by Bush Fire Hazard Reduction Certificate pursuant to Rural Fires Act 1997 - area identified to be cleared in certificate unclear - area cleared exceeded area authorised to be cleared by Rural Fire Service - threatened fauna and flora species - known habitat of Squirrel Glider and Trailing Woodruff - actual and likely environmental harm to habitat - harm consistent with key threatening processes for threatened species under Threatened Species Conservation Act 1995 - some but not all habitat cleared - offences not committed for commercial gain - remediation readily possible and practically achievable - fines imposed - publication order - remediation plan to be prepared and implemented
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Criminal Procedure Act 1986 (NSW); Great Lakes Local Environmental Plan 1996 (NSW); National Parks and Wildlife Act 1974 (NSW); Rural Fires Act 1997 (NSW); Native Vegetation Act 2003 (NSW); Threatened Species Conservation Act 1995 (NSW); Uniform Civil Procedure Rules 2005
• Cases Cited: Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234; Bernard Elsey Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1969] HCA 46; (1969) 121 CLR 119; Camilleri Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Chief Executive of the Office of the Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719; Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299; Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287; Garrett v Port Macquarie-Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287; Great Lakes Council v Big Island Forster Pty Limited [2007] NSWLEC 270; Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1); Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
• Category: Sentence
• Parties: Chief Executive of the Office of Environment and Heritage (Prosecutor); Bombala Investments Pty Limited (Defendant)
• Representation: M Kelly (Solicitor) (Prosecutor); C R Ireland (Defendant); Chief Executive of the Office of Environment and Heritage (Prosecutor); O'Sullivan Saddington Solicitors (Defendant)
• File Number(s): 50117 and 50118 of 2013

Judgment

1 The Defendant, Bombala Investments Pty Limited, has pleaded guilty to two offences against s 118D(1) of the National Parks and Wildlife Act 1974 in that it caused damage to habitat of threatened species knowing that the habitat concerned was habitat of that kind. The threatened species identified in the first charge (50117 of 2013) was Petaurus norfolcensis commonly known as the Squirrel Glider. The threatened species identified in the second charge (50118 of 2013) was Asperula asthenes commonly known as Trailing Woodruff, a native trailing plant.

2 The offence in each matter arises from a single event. Each offence was committed on land owned by the Defendant near The Lakes Way at Forster, being Lot 37 in DP 1023220, Lot 33 in DP 850018 and Lot 148 in DP 651471, three contiguous Lots collectively referred to as "the Property". The offences occurred when vegetation on the Property was cleared by the Defendant on or about 24 February 2011. The vegetation cleared was habitat for each of the identified threatened species.

3 The essential facts attending the commission of these offences are not in dispute. The Defendant is a family company of which Mr Rinaldo Lani is a director. The only other director of the Defendant is Mr Lani's wife, Rosemaree, who does not participate in the operation or management of the company, otherwise than is required by law.

4 The circumstances surrounding the commission of the offences and the events that occurred on 24 February 2011 are set out in statements of agreed facts filed in each proceeding, together with a bundle of documents that is common to both. The statement of agreed facts filed in the proceedings relating to the Squirrel Glider have been marked Exhibit A while the statement of agreed facts relating to the offence concerning Trailing Woodruff have been marked Exhibit B. The documents identified in each of those statements have been marked Exhibit C. The facts set out in this judgment are derived from these Exhibits. However, before turning to consider the facts, the relevant statutory provisions need to be noticed.

 

The statutory provisions

5 Section 118D of the National Parks and Wildlife Act relevantly provide:

 

"118D Damage to habitat of threatened species, endangered populations or endangered ecological communities

(1) A person must not damage any habitat of a threatened species, an endangered population or an endangered ecological community if the person knows that the habitat concerned is habitat of that kind.

Penalty: 1,000 penalty units or imprisonment for 1 year or both.

(2) It is a defence to a prosecution for an offence against this section if the accused proves that the damage resulted from an act that:

...

(b) was essential for the carrying out of:

(i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or

...

(iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part.

...

(4) In proceedings for an offence under this section in respect of damage to any habitat of a threatened species, an endangered population or an endangered ecological community, it is to be conclusively presumed that the person knew that the habitat concerned was habitat of that kind if it is established that damage resulted from an act that:

(a) occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or an approval to which Part 5 of that Act applies, was required but not obtained, or

(b) constituted a failure to comply with any such development consent or approval."

As will shortly be seen, the operation of subsections (2) and (4) have relevance to the circumstances in which the present offences were committed.

6 By s 5 of the National Parks and Wildlife Act the term "threatened species" as used in that Act has the same meaning as it has in the Threatened Species Conservation Act 1995. As both the Squirrel Glider and Trailing Woodruff are listed in the relevant Schedule to the latter Act as vulnerable species, they are "threatened species" within the meaning of that Act: s 4.

7 Any form of "development" upon the Property is subject to the provisions of Great Lakes Local Environmental Plan 1996 (the LEP). Under the provisions of the LEP, the Property is zoned 1(c) Future Urban Investigation. Development that may be carried out on land so zoned without the need for a consent under the Environmental Planning and Assessment Act 1979 (the EPA Act) is "bushfire hazard reduction". That expression is defined in the Dictionary to the LEP to mean:

"a reduction (by controlled burning or mechanical or manual means) of material that constitutes a bush fire hazard."

A Bush Fire Hazard Reduction Certificate is given to the Defendant

8 The Property comprises a substantial tract of land that has frontage to The Lakes Way at Forster. The Property is located on the western side of that road.

9 Although not pristine, the Property contains vegetated areas as well as areas of past disturbance. Land on the eastern side of The Lakes Way and directly opposite the Property is fully developed for urban purposes. Moreover, the land that adjoined the Property to its north accommodated a large building occupied by a marine sales and servicing business known as Barclay Marine. Materials used or stored on the site of that business included fuel, resins and other flammable materials.

10 On 10 February 2011, Inspector Darrin Briggs of the Rural Fire Service issued a letter to the Defendant that was headed "Bush Fire Hazard Complaint". The letter indicated that the Property had been inspected and the opinion formed that a bushfire hazard existed necessitating the issue of a notice requiring the carrying out of bushfire hazard reduction work. It is accepted that the complaint and requirement for work arose by reason of the vegetated state of the Property as it adjoined the buildings and business of Barclay Marine.

11 The letter indicated that an environmental assessment had been carried out leading to the issue of a Bush Fire Hazard Reduction Certificate and environmental Approval for Works under s 100G of the Rural Fires Act 1997. The letter indicated that the completion of work was required by 11 March 2011 and that if work was not undertaken in accordance with the notice a further notice would issue, non-compliance with which may result in a penalty being imposed upon the Defendant for an offence against the Rural Fires Act.

12 The Bush Fire Hazard Reduction Certificate attached to the letter and signed by Inspector Briggs indicated that it was for works to be carried out on "Lot 4 The Lakes Way, Forster". Both the Prosecutor and the Defendant accept that the reference to Lot 4 is a reference to Lot 37 in DP 1023220 being one of those Lots that comprised the Property and being the Lot that immediately adjoined the premises of Barclay Marine.

13 The Bush Fire Hazard Reduction Certificate describes its purpose in the following way:

"Managing Asset Protection Zone to protect a major building using the following method of hazard reduction works:

- Other Line - Hand Clearing only with width 20.00 metres and length 61.26 metres

- Pruning of 2 trees

in accordance with the attached map".

The map attached to the Certificate is a small scale aerial photograph upon which cadastral boundaries of lots forming part of the Property can be identified, as can the developed lots on the eastern side of The Lakes Way. An outline of the Barclay Marine building is apparent and superimposed upon the map but located some distance to the south of the Barclay Marine building is an oval-shaped area hatched red, described in the evidence as "the lozenge". Typed across the lozenge shaped area are the words "Tree Removal or Pruning 1: Shape 1 Tree Removal or Pruning 1: Shape 2". Beneath the legend on the map is a reference to the dimension of 20m x 61.26m referred to in the Certificate and beneath a heading "Method" appears the following:

"Other - Line 1 - Hand clearing only

Tree Removal or Pruning 1 - Tree pruning 2 points".

Neither the Notice nor the attached map defines the expression "Other-Line1" nor identifies trees to be removed or pruned.

14 Unsurprisingly, upon receipt of the letter dated 10 February 2011 and the attached Bush Fire Hazard Reduction Certificate, Mr Lani contacted Inspector Briggs to seek an explanation as to the work required to be undertaken in order to comply with the Certificate. Inspector Briggs agreed to attend the Site in order to explain the intent of the Notice. He subsequently did so although the date upon which that occurred is not recorded. When Inspector Briggs attended the Property he spoke to Mr Lani, indicating the concern was a hazard from bushfire for the Barclay Marine buildings. He recalls showing Mr Lani the boundary line to the south of the Barclay Marine building, pointing to overhanging trees and indicating that a width of 20m from the fence line required hand clearing. It is accepted that the area so indicated does not accord with the red hatched or lozenge area shown on the map attached to the Bush Fire Hazard Reduction Certificate. The latter area is to the south of the area indicated by Inspector Briggs to Mr Lani.

Land clearing on 24 February 2011

15 At about 9.00am on 24 February 2011 Mr Mathew Bell and Mr Greg Pevitt, both officers of Great Lakes Council (the Council), attended the Property. There they saw Mr Lani driving a red tractor being used to clear vegetation on the Property as well as a bulldozer being driven by a contractor to the Defendant. The bulldozer was being operated with its blade on the ground surface, disturbing the soil and pushing over native vegetation. When asked to explain his actions, Mr Lani stated that he was doing work for the Rural Fire Service: that he had had conversations with Inspector Briggs and that Inspector Briggs had approved the work. He said "it is to protect Barclay Marine from bushfire."

16 A short time later, Inspector Briggs arrived. After a conversation with the Council Officers who first attended the Property, Inspector Briggs told Mr Lani that the clearing that he was doing extended far beyond that authorised under the Bush Fire Hazard Reduction Certificate. Mr Lani also told Inspector Briggs and the two Council Officers that he was also removing the weed lantana from the area.

17 After further conversation, which included a statement by Mr Lani that he was entitled to clear some of the area in accordance with a development consent earlier granted to him, Mr Pevitt directed that work cease as he was of the opinion that the work "was unlawful". Mr Lani immediately ceased operating his tractor to clear vegetation and immediately went to the operator of the bulldozer directing that all work cease. The Prosecutor accepts that no further clearing work was undertaken following the direction given by Mr Pevitt.

18 Later inspection of the Property revealed that clearing of vegetation had taken place within an area of about 0.52 hectares or 5200m2 identified by the polygon shown on the aerial photograph at Tab 1 of Exhibit C. While the area to be cleared conformably with the Bush Fire Hazard Reduction Certificate would have approximated 12262, the Defendant accepts that very little of the area of the polygon coincided with the area intended to be cleared in accordance with the conversation which Inspector Briggs had with Mr Lani prior to 24 February 2011 or the area shown in red hatching on the map attached to the Bush Fire Hazard Reduction Certificate.

19 The clearing carried out by the Defendant did not involve clear felling of all trees and vegetation within the polygon area. Rather, clearing was of groundcover and midstorey vegetation, while the larger trees that were felled were predominantly dead trees. A number of mature healthy trees were left in place. Tracks through the vegetation were cleared and the operation of both the bulldozer and tractor had clearly left the ground surface disturbed. The area within which clearing took place is described as comprising swamp forest vegetation.

20 Reference is made in the Statement of Agreed Facts to the presence of "fill" among retained trees in the polygon area. However, the Prosecutor accepts that there is no evidence of fill having been brought to the Property, the evidence of Mr Lani being that within the area upon which clearing was taking place, the existing sandy surface soil had been re-spread by him.

21 Inspection of the remnant vegetation in the area adjacent to the polygon area in which clearing had taken place revealed an intact Paperbark-Palm forest with an intact understorey of native species "albeit infested with lantana in part."

Factual foundation for the plea of guilty

22 The Prosecutor accepts that had clearing been undertaken in the area identified in the Bush Fire Hazard Reduction Certificate given to the Defendant on 10 February 2011 whether in the red hatched area shown on the plan attached to the Certificate or in a similar area immediately adjacent to the southern boundary of the Barclay Marine property, the Defendant would have a defence to the prosecution pursuant to s 118D(2)(b) of the National Parks and Wildlife Act. He accepts that in giving the Bush Fire Hazard Reduction Certificate, the Rural Fire Service had complied with Pt 5 of the EPA Act so that the provisions of s 118D(2)(b)(iii) would have been engaged.

23 However, as the work undertaken by the Defendant did not accord in area or location with either the terms of the Certificate or its intention, as explained by Inspector Briggs, the provisions of s 118D(4) were engaged such that the Defendant is "conclusively presumed" to know that the habitat damaged was the habitat of the nominated threatened species. The Defendant accepts that this is the case, acknowledging that damage to that habitat resulted from its failure to comply with the Pt 5 approval evidenced by the Bush Fire Hazard Reduction Certificate. It accepts that the work was not carried out by "hand clearing" and that the area that was the subject of clearing work, objectively judged, exceeded that which the Certificate contemplated.

Previous environmental assessment of the Property

24 Since 1992 there have been a number of development proposals for different parts of the Property, particularly for development on Lots 37 and 148. In 1995 and again in 1996 development consents were granted by the Council for filling to take place on parts of Lot 37, although the areas that were the subject of those consents were not the areas within Lot 37 that were being cleared by the Defendant in February 2011.

25 In 2007 use of part of Lot 37 for a discount department store was being investigated on behalf of Woolworths Limited. Consultants were retained by that company who prepared reports, copies of which were provided to the Defendant. A preliminary planning report prepared by Orogen Pty Limited (Orogen) in August 2007 for Woolworths stated that a population of Trailing Woodruff is located "in the central section of Lot 37". Whether that description identifies Trailing Woodruff as occurring in the area of the polygon which was the subject of clearing by the Defendant is not made apparent from that report.

26 A more detailed report was prepared by Orogen in February 2008. That report, entitled "Assessment of Vegetation and Community Conservation Significance" also related to Lot 37.

27 The 2008 Orogen report records the extent to which intrusive works have been carried out on Lot 37, including excavation of sand resources, the construction of drainage channels, the bunding of cells for receipt of dredge materials and the filling that has occurred on a small area of the Lot. It records that a "small number" of scattered Eucalypts, Melaleucas and Casuarinas occur in the "highly disturbed" areas of the Site. That remnant vegetation is also described as "heavily disturbed and isolated" but representing the only noteworthy native vegetation in the area proposed for development.

28 Two further matters of present relevance are recorded in the Orogen report of February 2008. The occurrence of Trailing Woodruff is said to be "confirmed adjoining the subject site" but specific searches failed to detect the species within the area proposed for the Woolworths development. A reading of that section of the report, in context, suggests that the area "adjoining the subject site" is intended to refer to an area within Lot 37 but precisely where is not indicated.

29 Secondly, the February 2008 report indicates that "the site" provides habitat for, among other species, the Squirrel Glider. The report indicates that the value of the habitats is limited "due to occurrence of only a small number of hollow bearing trees and the disturbed nature of the site" (at [3.2.4]). According to the author, that limited habitat would be used for foraging purposes.

30 By letter dated 4 February 2009, the Defendant was advised by Coastplan Consulting that fieldwork by ecological consultants would be undertaken as part of the process in assessing the Pipers Creek Precinct for the purpose of carrying out a local environmental study as a precursor to the preparation of a local environmental plan. The brief for that work had been issued by the Council. It would appear that the Pipers Creek Precinct included Lot 37. The purpose of the letter from Coastplan was to identify that radio-tracking of threatened arboreal mammals may be required. In that context, the letter also indicated that spring surveys carried out by ecological consultants identified the occurrence of the Squirrel Glider in the area with the "strong possibility that the species will be captured and such studies will be required."

31 Subsequently, a report was prepared for Coastplan Consulting by Conics. That report is entitled "Terrestrial Flora and Fauna Study, South Forster". The area assessed included Lots 37 and 148. Trailing Woodruff is identified as the species "of highest conservation significance" identified within the study area as it is said to be the only known population of that species "in the locality". In relation to that species, the report continues (at [5.1.1]):

"The population of the species recorded within the study site occurs in the eastern boundary of the subject site, which is subject to edge effects and is prone to ongoing deleterious impacts. As the population is only small (less than 10 plants), without this ongoing management, this species is likely to become extinct onsite."

The location of the Trailing Woodruff is marked on an aerial photograph attached to the report. That location would appear to be a short distance to the south of the boundary between Lot 37 and the Barclay Marine building. Its location would appear to be within the area cross hatched in red on the map or the "lozenge" area attached to the Bush Fire Hazard Reduction Certificate issued to the Defendant.

32 The Conics Report of June 2009 also identified Squirrel Gliders as being present within the "subject site". Relevantly, the report said this (at [5.2.1]):

"The subject site was found to be utilised by a number of Squirrel Gliders, which were captured in the Swamp Sclerophyll forests of the subject site. The radio tracking results determined that the majority of the sites habitats are utilised by the species however that the site only forms part of the home ranges of a number of the study animals. As such the study determined that habitats outside the study area are known habitat for the species and that the individuals of this species on the subject site are considered to be part of a metapopulation known to occur in the Forster area ... .

Based on the study it is clear that the majority of the central forest remnant should be retained and linked to other habitat areas to the west and south of the site. The utilization of the single trees and the recorded movements between separated scattered trees also suggests that future revegetation and landscaping for movement purposes can be limited to single trees however that important corridor and foraging areas such as in the Pipers Creek foreshore should be enhanced and managed for conservation purposes."

The plan attached to the Conics Report shows two locations in which a Squirrel Glider was captured in proximity to the polygon area that was the subject of clearing by the Defendant in February 2011. Five other locations in which the Squirrel Glider was captured during the survey period are identified as being some distance removed from the polygon area.

33 By letter dated 8 July 2009, the Council responded to a request from Mr Lani to clear a section of vegetation on Lot 37 immediately adjoining the boundary of the property occupied by Barclay Marine. By its letter, the Council authorised Mr Lani to clear within 3m of the boundary fence line directly to the south of the Barclay Marine complex. It was estimated that the area to be cleared would be approximately 10m in length. The letter continued:

 

"As per our conversation I have received advice from Council's Senior Ecologist, Mat Bell, in respect of clearing or underscrubbing the rest of the small portion of land. I am advised by Mr Bell that there is a State and National threatened species, being Asperula Asthenes on the land. I am instructed by Mr Bell that it is not within the three (3) metres that I have allowed you to clear for the purposes of maintaining the boundary fence, however, Mr Bell considers underscrubbing the rest of the property in the immediate vicinity of Graham Barclay Marine is inappropriate without a Section 95 Certificate being issued by the Department of Environment and Climate Change.

So before any clearing other than the agreed three (3) metres for the boundary fence, you do require, prior to underscrubbing, a Section 95 Certificate issued by the DECC.

Please do not clear any land without obtaining that Certificate first."

34 All of the material to which I have referred makes clear that the two threatened species identified in the charges against the Defendant were present on those parts of the Property that comprised Lots 37 and 148 and I so find. Further, as the reports and other documents were either provided or directed to the Defendant, I am satisfied beyond reasonable doubt that the presence or likely presence of those threatened species on the Lots that I have identified was made known to the Defendant. However, it must be recognised that Lots 37 and 148 have a substantial area and together comprise by far the largest portion of the Property. This observation has relevance because of the generality of the observations made in the various reports of the presence on or use of those Lots by the two threatened species.

Sentencing considerations

35 The sentence imposed by the 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 offender (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).

36 The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). Those purposes are identified as being:

"(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."

37 In fulfilling the purposes identified in s 3A of the CSP Act, the Court is enjoined by s 194 of the National Parks and Wildlife Act to consider a number of matters when imposing a penalty for an offence under that Act. The section provides:

"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 ... threatened species ... 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 froj 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."

38 Before turning to consider the matters identified in s 194, it is appropriate to make observations of a more general nature pertaining to the imposition of a penalty.

39 When determining an appropriate sentence, the Court is to apply what has been described as the instinctive synthesis method whereby the objective circumstances of the offence are to be weighed with the subjective circumstances of the defendant (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [72]). When undertaking this process, facts adverse to the defendant are not to be taken into account unless those facts have been proved beyond reasonable doubt. Facts or circumstances favourable to the defendant are to be taken into account if established on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

40 The objective circumstances attending the commission of an offence are essential to be considered and assume primary importance in determining an appropriate penalty. The objective gravity of the offence not only establishes the upper limit of an appropriate penalty but also a lower limit beneath which the penalty should not go. Subjective mitigating features should never produce a sentence that fails to reflect the gravity of the incident or the objectives of punishment which include both retribution and deterrence (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140]).

Objective circumstances

Maximum penalty

41 As I have earlier indicated, the maximum penalty for an offence against s 118D(1) of the National Parks and Wildlife Act is $110,000 (1,000 penalty units) or imprisonment for one year or both. While imposition of the maximum penalty is reserved for the worst or most reprehensible case for which the penalty is prescribed, that maximum reflects the seriousness with which Parliament and, by extension, the general community, regards an offence of damaging habitat of a threatened species, knowing it to be such habitat. While the Prosecutor accepts that the offences here are not of a kind that would attract a maximum penalty, that maximum provides the measure by which the gravity of the offence should be judged (Camilleri Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Nature of the offence

42 Important to the assessment of the objective seriousness of the offence is a consideration of the degree to which the Defendant's conduct offends the legislative objects of the National Parks and Wildlife Act. Those objects are expressed in s 2A of that Act. By subsection (1) of that section those objects relevantly include:

"(a) The conservation of nature, including, but limited to, the conservation of:

(i) habitat, ecosystems and ecosystem processes, and

(ii) biological diversity at community, species and genetic levels,

... ".

43 Damage occasioned to the habitat of the Squirrel Glider and Trailing Woodruff by the actions of the Defendant were antithetical to the achievement of the legislative objects to which I have referred. This observation is of significance when it is appreciated that by reason of the various ecological assessments that had been carried out on Lots 37 and 148, the potential presence of each of these threatened species of those Lots had been made known to the Defendant.

Harm to the environment of the Squirrel Glider

44 The predominant vegetation type within the polygon area in which clearing took place is described as a "Swamp Paperbark-Palm (+/-Swamp Oak and Swamp Mahogany) Forest". This also describes the vegetation type in the area immediately adjoining the area in which clearing took place. The main tree species identified as present in the overstorey or canopy were Melaleuca quinquenervia (paperbark) and Livistona australis (Cabbage palm), with Casuarina glauca (Swamp oak), Eucalyptus robusta (Swamp mahogany) and Acacia maidenii (Maiden's wattle) occurring as scattered individuals.

45 As Squirrel Gliders will feed on nectar and pollen from a broad range of tree and shrub species, it is expected that they will use these species found on the Property with the exception of the Swamp oak. Apparently healthy specimens of each of the identified overstorey species were left standing in the polygon area although the stockpiles of cleared vegetation did reveal dead specimens of these species.

46 The Squirrel Glider is also known to feed on honeydew, being the secretions of sap-sucking insects, manna, insects, spiders and possibly sap. Thus, it is expected that Lot 37 offered good habitat for Squirrel Gliders due to the range of tree and shrub species present.

47 Further, the Squirrel Glider is known to favour winter flowering tree species as an important component of its habitat. Swamp mahogany which, as I have said, occurs on Lot 37 is one such species. It is important because it produces large flowers in winter, a significant source of nectar and pollen for the Squirrel Glider.

48 As I have indicated, apart from their primary use of overstorey or canopy trees for foraging, use of some midstorey vegetation for access to nectar or pollen is also likely. It was this mid and lower storey of vegetation that were the principal species cleared by the Defendant.

49 A number of upper canopy species in the Forster area have been documented as providing denning for the Squirrel Glider. Use of those trees for denning has been dependant upon the existence of tree hollows. While four den trees were detected and reported in the Conics Report of 2009, no trees with hollows providing denning were identified among the dead, felled trees as a result of the clearing undertaken by the Defendant. However, it is accepted that the removal of those trees that were cleared by the Defendant reduced the chance of trees reaching an age where they could develop hollows having the potential to form a denning site.

50 The home range of Squirrel Gliders centred on Lot 37 is not known. However, based on studies in other areas, it is expected to be in the order of 13 hectares. The extent of this range is thought to be a product of the altered and limited extent of habitat available in areas close to the developed urban areas of Forster.

51 Estimating the number of Squirrel Gliders on Lot 37 is agreed to be difficult. One of the reasons for this difficulty is that the available habitat is less than 100m wide. The survey reported in the Conics 2009 Report showed that there are at least four Squirrel Gliders using the remnant vegetation in the vicinity of the polygon area cleared by the Defendant.

52 Lot 37 is located close to several other remnant areas that provide a tenuous link across to Booti Booti National Park. Given that there are a number of areas of remnant native vegetation on the verge of the Forster urban area, the Prosecutor contends and the Defendant accepts it to be likely that Squirrel Gliders occur in many of these remnants. Both parties accept that the local population of Squirrel Gliders is likely to approximate between 40 and 60. Both parties also accept that such a population will have a high probability of extinction over the long term of approximately 100 years but may be able to persist for several decades, particularly if active land management is applied to those areas that support habitat.

53 As clearing of areas occur, habitat areas become fragmented. This, in turn, leads to increasingly poor connectivity between tree canopies. There is a limit to the distance over which the species can glide. This fragmentation coupled with the disruption to connectivity is one of the reasons for likely extinction of the species in this area. While the removal of dead mature canopy trees clearly has no consequence for foraging animals, the removal does have an impact upon the maintenance of connectivity necessary to assist the survival of the species.

54 Further, understorey and midstorey clearing in an area that is proximate to urban development has a twofold consequence. First it more readily allows the invasion of exotic weeds although, as I have earlier recorded, the area was already experiencing infestation from lantana, one of the weed species that was being cleared by the Defendant. Second, and perhaps more importantly, the understorey clearing more readily provided access to the area by domestic animals. Predation of Sugar Gliders by domestic cats is known to be a regular occurrence and there is no reason to believe that the Squirrel Glider would not equally be preyed upon by cats who, by virtue of the clearing, would have easier access to the area in question.

55 Taking all these matters into account as they relate to the habitat of the Squirrel Glider, it is possible to summarise the harm occasioned by the Defendant's clearing of the polygon area. Accepting that it is not possible to provide a quantitative statement of impact upon the local population of Squirrel Gliders and accepting that there is no evidence that any Squirrel Glider was directly harmed, harm can nonetheless be identified as involving:

(i) reduction in the vegetation available for future foraging by the local Squirrel Glider population;

(ii) reducing the potential for future den sites; and

(iii) increasing competition among local Squirrel Gliders for the limited and diminishing foraging resources available within the Forster area.

56 It is noted that this harm is consistent with a number of the key threatening processes for threatened species identified in Sch 3 to the Threatened Species Conservation Act which include:

 

(i) clearing of native vegetation;

(ii) infection of native plants by Phytophthora cinnamomi;

(iii) invasion of native plant communities by exotic perennial grasses; and

(iv) loss of hollow-bearing trees.

57 Potential harm to the habitat of the Squirrel Glider is no doubt evident from what I have already stated. While accepting that there is no evidence of any Squirrel Glider being directly harmed by clearing, the potential for that harm to have occurred existed by reason of the clearing having taken place without any regard to the presence of Squirrel Gliders at the time. Moreover, by clearing the understorey and midstorey vegetation, the predation by domestic animals, particularly cats, is increased.

58 Having stated the actual and potential harm in the terms that I have, it is necessary that I identify other matters relevant to the assessment of the overall significance of this harm.

59 First, compliance with the Bush Fire Hazard Reduction Certificate would have involved clearing, albeit "hand clearing", of understorey vegetation and possibly some of the midstorey vegetation. The Prosecutor accepts that this clearing would have involved potential damage to the habitat of the Squirrel Glider, particularly if the area cleared had conformed to the "lozenge" area shown on the map to the Bush Fire Hazard Reduction Certificate. However, as would be obvious, the area likely to be so damaged would, at a maximum, be only about 25 per cent of the area identified in the polygon, said to approximate 5,200m2.

60 Second, as I have already indicated, the Prosecutor accepts that there is no evidence of any hollow bearing trees having been felled by the Defendant, with the result that there is no evidence that any den of the Squirrel Glider was destroyed.

61 Third, the area in which clearing took place was far from pristine, as is evidenced by the description of "intrusive works" in the 2008 Orogen Report and referred to at [27] above.

62 In assessing environmental harm, the Prosecutor submitted that guidance was to be found in the observations of Lloyd J in Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 at [92] where his Honour said:

"It matters not if the proposed activity would not harm the actual habitat of a particular threatened species which inhabits the area. Rather, damage refers to an impairment or injury to the environment per se and its functioning as the habitat of the threatened species, making it less valuable, in the sense of worthiness, for the (sic) their kind. I note that most dictionary definitions of "damage" tend to cross-refer to the concept of "harm" and both expressions tend to be characterised in terms of a diminution in usefulness or value. I am prepared to adopt the same concept in applying the term "cause damage" as used in s 118D(1). The mere known presence of a threatened species on the land, in my opinion, is sufficient - if a person wishes to conduct any activity that interferes with the habitat, he or she must first carry out an assessment of any risks or damage being caused by the proposed activity."

63 I accept, with respect, that his Honour's observations are, in principle, apt to be applied to the present case. Of course, they do not dictate the level of seriousness that I should assign to the harm occasioned to the habitat of the Squirrel Glider in the present case.

64 Overall, I accept that the harm to the habitat of the Squirrel Glider is objectively serious. Where it falls within the category of seriousness will be addressed in due course.

Environmental harm to Trailing Woodruff

65 I have already referred to the fact that the clearing undertaken in the polygon area on the Property primarily involved understorey and midstorey clearing. It is the understorey or groundcover clearing that has particular relevance to Trailing Woodruff.

66 Following the clearing work undertaken on 24 February, much of the area was devoid of understorey and groundcover vegetation. This area was observed to be suitable habitat for Trailing Woodruff, described as "damp sites" often associated with riparian vegetation. Trailing Woodruff had been recorded on or near the Property in the National Parks and Wildlife database. It will be recalled that it was identified as occurring proximate to the polygon area in the Conics Report of 2009.

67 As earlier recorded, one of the persons attending the Property on 24 February was the Council's Senior Environmental Officer, Mr Mathew Bell. He returned to the Property on 3 March 2011 where he met two officers of the Prosecutor. He went to a tree that he had photographed in 2010 which, at the time of the photograph, had a Trailing Woodruff plant growing next to it. I infer that in March 2011 that plant was no longer present although there is no evidence that in the stockpile of cleared material any Trailing Woodruff plant was observed to have been removed. Indeed, inspection of the Property on that date revealed three Trailing Woodruff plants on the Property at two locations, those plants found to be growing at the base of a Livistona australis tree and twining up a Melaleuca quinquenervia tree.

68 The Statement of Agreed Facts (Exhibit B) indicates that some 10 to 12 plants had previously been observed in the area. The evidence does not establish beyond reasonable doubt that all of these plants were found to be growing within the polygon area and, perhaps more importantly, the evidence does not permit a finding to the requisite standard that Trailing Woodruff plants had, in fact, been removed as a result of the Defendant's clearing activity on or about 24 February 2011.

69 The Prosecutor accepts that had clearing taken place within the "lozenge" area identified in the plan attached to the Bush Fire Hazard Reduction Certificate, it would almost certainly have resulted in the loss of Trailing Woodruff identified in the 2009 Conics Report, assuming that plant still to have been there in February 2011. However it contends, and I accept, that by the actions of the Defendant there was environmental harm to the habitat of Trailing Woodruff by:

(i) clearing and removal of vegetation that comprises part of the habitat of the plant;

(ii) the spreading and re-levelling of soil on top of the understorey of that habitat;

(iii) the potential damage to any Trailing Woodruff plant in the path of that clearing.

This potential for harm assumes significance having regard to the identification of the population of Trailing Woodruff on the Property as being the only known population of that species in the Forster area.

70 Having regard to these matters, I consider that harm to the habitat of Trailing Woodruff should, like harm to the habitat of the Squirrel Glider, be regarded as serious.

Remediation

71 The Prosecutor claims and the Defendant accepts that damage caused to the habitat of each of the two species in question is readily possible and practically achievable. While remediation would require the preparation of a detailed remediation plan by an appropriately qualified environmental consultant, the strategy is said to involve adjustment of presently graded soil levels and use of seed stock from endemic, indigenous native plant species present in areas immediately adjacent to the polygon area in order to regenerate the latter area. The Defendant accepts responsibility for rehabilitation in accordance with the parameters promulgated by the Prosecutor.

72 While the Defendant's acceptance of responsibility for rehabilitation is a matter which has consequences later to be addressed, the fact that remediation is readily possible and practically achievable is important in assessing the ultimate seriousness of environmental harm. Harm that is short term and capable of being remedied will be regarded as less serious and generally attract a lower penalty than harm that is permanent or long lasting (Camilleri Stock Feeds Pty Ltd v Environment Protection Authority at 701; Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 at [158].

 

73 The evidence does not reveal a timeframe within which the proposed remediation works would be likely to achieve a return to habitat of the kind that existed at the date of commission of the offences. Assuming that those remediation measures are taken in a timely fashion, it will clearly be some years before the previous position is achieved.

74 On the evidence, the greater impact from the actions taken by the Defendant is upon Trailing Woodruff. The habitat of the Squirrel Glider was less affected by the actions of the Defendant than was habitat for Trailing Woodruff. It can therefore be expected that pending the successful rehabilitation of the area, environmental harm to the habitat of Trailing Woodruff will be greater than that to the continuing use of the area by Squirrel Gliders. Indeed, no evidence has been adduced from which I could conclude that use by Squirrel Gliders of either the polygon area or the greater area of Lot 37 has changed following commission of these offences in February 2011.

75 Taking account of all these matters I conclude that the environmental harm to the Squirrel Glider by reason of damage to its habitat is at the lower end of the scale of seriousness, having regard to the potential impact rather than the actuality, while environmental harm to the habitat of Trailing Woodruff is in the middle range of seriousness.

Practical measures

76 The Prosecutor submits that had an appropriate assessment process been undertaken by the Defendant, that process is likely to have prevented or at least mitigated the harm caused by the clearing works that were undertaken. Those measures that are identified as being practical measures to be undertaken were:

(i) an environmental impact assessment prior to carrying out any clearing work;

(ii) the seeking of development consent for those works under the provisions of the EPA Act; and/or

(iii) paying regard to the environmental assessment reports that had been provided to the Defendant between 2007 and 2009, being the reports to which I have earlier referred.

77 Further, the Prosecutor submits and the evidence establishes that the Defendant was familiar with the need for and the process to be followed in seeking development consent for any development work on its land. It had, over the years, sought a number of development consents; it had been involved in proceedings in this Court concerning development of its land and it had received the letter from the Council dated 8 July 2009 to which I have earlier referred in which the Council had given limited approval to clear close to the boundary with the Barclay Marine property but had otherwise cautioned against any further clearing without further approval from the Department of Environment and Climate Change.

78 There is no doubt that the matters identified by the Prosecutor reflect practical measures that could have been taken to address the harm that in fact occurred by the actions of the Defendant in February 2011. However, against the generality of those propositions must be considered the particular circumstances that pertained at the time.

79 First, the Bush Fire Hazard Reduction Certificate received by the Company indicated that environmental assessment had been undertaken for the work that was the subject of that Notice. Second, bushfire hazard reduction works constituted development of a kind that did not require any development consent under the LEP. While the fact that no consent was required engaged the provisions of Pt 5 of the EPA Act, assessment under that Part was the assessment said to be undertaken by the Rural Fire Service when issuing the Bush Fire Hazard Reduction Certificate.

80 The third matter of present relevance emerged from the evidence given before me by Inspector Briggs. He acknowledged in evidence that it was environmentally appropriate to carry out significant hazard reduction works on Lot 37 in proximity to the land and buildings occupied by Barclay Marine. Significantly, Inspector Briggs recalled telling Mr Lani, prior to the commencement of any clearing work, that according to the records of the Rural Fire Service there were no threatened species within the area required by the Certificate to be cleared. While acknowledging that the area that was in fact cleared by the Defendant exceeded the area either intended to be cleared by Inspector Briggs or the area identified as the "lozenge" area on the plan attached to the Notice, the area cleared did, at least in part, extend into those areas considered by the Rural Fire Service to present a potential bushfire hazard. In those circumstances, the failure by the Defendant to have implemented the practical measures identified by the Prosecutor was understandable, if not entirely excusable.

81 This head of consideration does not lead, in the present case, to the overall attribution of seriousness of the offence which, in other circumstances, it might well do.

Foreseeability of risk of harm

82 Observations made in relation to the practical measures to prevent, control, abate or mitigate harm are also relevant to this head of consideration. As the Prosecutor submits, there was ample material in the possession of the Defendant from the various ecological reports that had assessed the Property to indicate the prospect of threatened species being present within the area cleared by the Defendant. As a consequence of these reports, it is submitted that harm to the environment of these species could not be regarded "as unforeseen or unintended accident". I accept that to be so.

83 Nonetheless, in weighing this head of consideration for the purpose of determining penalty, I cannot ignore the advice given to the Defendant, through Mr Lani, by Inspector Briggs. While, with hindsight, impact upon the habitat of the two threatened species ought to have been considered when the area beyond that indicated by Inspector Briggs was entered for the purpose of carrying out clearing work, it was so proximate to the area intended for clearing, it is at least explainable, if not excusable, that the extent of impact upon habitat of the species was thought to be covered by the "authority" afforded for that work by the Bush Fire Hazard Reduction Certificate.

Commercial gain

84 It is an agreed fact that the Defendant had a number of development proposals for the Property, including Lots 37 and 148, and that, over the years, he had obtained development consents permitting some activities on his land. Proposals for development of part of the Property by Woolworths, being the proposals leading to the environmental assessment reports to which I have earlier referred, not only evidence his wish to develop the land but also support, so it is submitted, the proposition that Mr Lani is a seasoned property developer, well aware of the limitations imposed upon the development of his land by the ecological values demonstrated by the earlier reports.

85 Having regard to these facts and circumstances, the Prosecutor submits that the clearing work was undertaken to assist in achieving the long term development potential of the Property and was therefore work undertaken for financial gain. Reference is made to the observations of Preston CJ in Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 where his Honour said at [11]:

 

"11. The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits with the expectation of a concomitant increase in the capital value of the land."

86 The Prosecutor accepts that these observations were made in the context of an offence under the Native Vegetation Act 2003 but submits that those principles equally apply to the offences in this case.

87 The inference that the Prosecutor seeks to have drawn from the identified facts and circumstances does not prove the Defendant's purpose beyond reasonable doubt. The Prosecutor bears an obligation to prove facts adverse to the interests of the Defendant to the criminal standard (R v Olbrich at [27]). It has not done so and I do not find that the offences were committed for commercial gain.

88 I am reinforced in this conclusion by other evidence militating against the inferences that the Prosecutor seeks to have drawn. There is no evidence that work was undertaken on the Property prior to receipt of the Bush Fire Hazard Reduction Certificate. Indeed, Inspector Briggs attended the Property shortly prior to 24 February in order to explain the requirements of that Certificate to Mr Lani. It is not suggested that he observed any clearing work then having been undertaken.

89 Further, the Defendant tendered in evidence the record of interview conducted between Mr Lani and officers of the Prosecutor. Answers recorded in that record of interview indicate that the work undertaken by the Defendant, through Mr Lani, was only undertaken in response to the Bush Fire Hazard Reduction Notice. No evidence to contradict those responses was provided.

90 Those responses are consistent with the objective circumstances that pertained at the time. It will be remembered that the Certificate was given to the Defendant under cover of a letter from the Rural Fire Service that not only required compliance within one month, but also indicated that a failure to comply would render the Defendant liable to a fine.

 

Defendant's state of mind

91 The offences with which the Defendant has been charged under s 118D(1) of the National Parks and Wildlife Act are offences of strict liability. As a consequence, mens rea is irrelevant to the determination of the commission of the offence. However, a strict liability offence that is committed intentionally or negligently will be objectively more serious than one that is committed unintentionally or non-negligently (Rae at [42]-[46]). The Prosecutor submits that the present offences were committed intentionally as a consequence of which the offences should be regarded as being serious.

92 Consideration of this submission by the Prosecutor is very much related to the prior submission that the offence was conducted for commercial gain. In the circumstance where the directing mind of the Defendant was Mr Lani, he being the only active director of the Defendant, it may be taken that his purpose and motive in undertaking the work is that which should be attributed to the Defendant, a family proprietary company (Bernard Elsey Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1969] HCA 46; (1969) 121 CLR 119 at 121).

93 I have already found that Mr Lani's motive in undertaking the clearing work that is the subject of the present charges, was to meet the obligation imposed upon the Defendant by the Bush Fire Hazard Reduction Certificate. Mr Lani accepts that his response was over zealous in that he undertook work beyond the area that the Certificate required but did so in the belief that he was complying with that Certificate. So to indicate was his immediate response when first confronted by officers of the Council on 24 February 2011. It is accepted that he was not carrying out clearing work "by hand", a fact that he says, at age 82, was beyond him. Nonetheless he was endeavouring to address what he believed was a serious bushfire hazard identified by the Certificate issued to the Defendant. He also acknowledged that while undertaking the clearing work he also sought to remove an invasive exotic weed in the form of lantana. It is not in dispute that the weed was present on this area.

94 In his record of interview, Mr Lani also stated that although he had been aware that Squirrel Gliders used the Property from time to time and that Trailing Woodruff had been found on the Property in the past, he had no knowledge that either species was present on the section of the Property that he was clearing.

95 There is objective evidence to support some of these matters. I have already referred to the statement by Inspector Briggs to Mr Lani indicating that there were no threatened species in the area intended by the Rural Fire Service to be cleared. Inspector Briggs also gave evidence that the Notice was given at the height of the bushfire season when there was a very heavy fuel load on the Property that presented a significant bushfire hazard to the property of Barclay Marine. That hazard was identified to Mr Lani.

96 While I accept that Mr Lani took no step to ensure that the area of clearing was confined to either the area 20m wide adjacent to the boundary with Barclay's Marine or confined to the area indicated by the "lozenge" on the plan attached to the Bush Fire Hazard Reduction Certificate, I am satisfied that in carrying out the work on the Property within the polygon area, he did so in the belief that he was carrying out bushfire hazard reduction work as required of the Defendant by the Rural Fire Service. True it is that "hand clearing" was not utilised but the intended purpose of the requirement to reduce the fuel load within the area was what informed his actions. Immediately upon being informed by officers of the Council on 24 February that the area being cleared exceeded that required to be cleared in accordance with the Bush Fire Hazard Reduction Certificate, he ceased all clearing and did not thereafter resume any work within the area.

 

Conclusion on objective circumstances

97 Having regard to the matters to which I have adverted, I consider that the offences fall at the low end of the range of medium seriousness for the offences charged. In so concluding I take particular account of the evidence that an important but relatively small area of the Property was cleared of some but not all habitat; that remediation is readily possible and practically achievable; that mature trees remain to provide foraging habitat for the Squirrel Glider and some Trailing Woodruff plants remain in the area. Having regard to the circumstance that clearing was principally confined to groundcover and some midstorey vegetation, the offence directed to the habitat of Trailing Woodruff was more serious than the offence directed to the habitat of the Squirrel Glider.

Subjective considerations

Prior record

98 On 18 May 2012 the Defendant and Mr Lani were each convicted of an offence against s 118D(1) of the National Parks and Wildlife Act. Those offences, to which each of them pleaded guilty, occurred between 3 July 2008 and 1 July 2009 when some clearing of vegetation occurred on Lot 37 and soil filling within that area also took place. The area then in question was not the same area that is the subject of the present charges. Although there was disagreement as to the total area affected by the clearing and filling undertaken in 2008/2009, evidence from the Prosecutor suggested that in total it was about 0.99 hectares (Chief Executive of the Office of the Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115. Mr Lani was charged as a director of the Defendant in accordance with s 175B(1) of the National Parks and Wildlife Act.

99 In the circumstances, the Defendant cannot claim, in mitigation, that it has no prior convictions. However, this does not mean that the sentence, otherwise appropriate, is increased by reason of that conviction. In this context it is relevant to notice that at the time of commission of the present offences, no proceedings had been commenced against either the Defendant or Mr Lani arising out of the events that had occurred on Lot 37 between July 2008 and July 2009.

Plea of guilty

100 In imposing an appropriate sentence, I am required to take into account the fact that the Defendant has pleaded guilty: CSP Act, s 22. The plea of guilty was entered at the second mention at a time when the Prosecutor had not provided all of the evidence upon which it proposed to rely in order to establish commission of the offence. The Prosecutor accepts that the plea was entered at an early opportunity and that it had significant utilitarian value. I accept this concession as being appropriate and propose to allow a full discount of 25 percent to reflect the Defendant's early plea of guilty.

Co-operation and assistance

101 As I have earlier recorded, upon request being made to Mr Lani to cease any clearing activities, he did so immediately, and did not thereafter resume that activity. Further, the Prosecutor acknowledges that the Defendant, through Mr Lani, cooperated with the investigation of the offences including submission to an interview which was recorded and extended over a period of nearly two hours. Further, through his legal advisors, he has cooperated in preparing detailed statements of agreed facts in respect of each offence, including concessions as to the nature of potential harm occasioned by the actions of the Defendant.

Contrition and remorse

102 Neither Mr Lani nor any other officer of the Defendant gave evidence before me. It follows that there is no oral expression of contrition and remorse on behalf of the Defendant.

103 Mr C Ireland, who appeared for the Defendant, informed me from the Bar table that both Mr Lani and his wife, as directors of the Defendant, acknowledged the seriousness of the offences with which the Company was charged and wished, through him, to express their remorse. The fact of a conviction, so it is submitted, is seen by Mr Lani as a matter of "personal seriousness". The concern that Mr Lani has on behalf of the Defendant and the seriousness with which he regards commission of the offences is said to be manifest not only through the submission of Mr Ireland but by the presence in Court of both Mr and Mrs Lani throughout the sentence hearing.

104 Further, the remorse and contrition of the Defendant is said to be manifest not only from the cooperation with the Prosecutor to which I have referred, coupled with the pleas of guilty that have been entered, but also from the fact that the Defendant has agreed to bear the cost of preparation and implementation of an appropriate rehabilitation plan for the habitat of both the Squirrel Glider and Trailing Woodruff over the polygon area. That work will be the subject of orders that I will shortly make.

105 I accept that the expressions of regret and remorse articulated by Mr Ireland are consistent with the instructions that he has received. I will take that submission into account, together with the other matters that I have identified which are said to support the Defendant's contrition, although I am not satisfied that those matters fully meet the requirements of s 21A(3)(i) of the CSP Act addressing contrition and remorse.

106 Finally, in considering subjective circumstances I do not overlook those matters to which I have earlier referred pertaining to the circumstances in which the offending clearing work was undertaken. I accept that the motive for commencement of work was an anxious endeavour to reduce a bushfire hazard risk on the Property that had the potential to impact upon adjoining urban development. The terms in which the Bush Fire Hazard Reduction Certificate was given were most unsatisfactory as was the information conveyed to Mr Lani by Inspector Briggs. The uncertainty as to precisely where clearing was to be undertaken must be noticed as must the statement made by Inspector Briggs to Mr Lani that he was unaware of any threatened species in the area.

107 In so saying, I recognise that Inspector Briggs was not directing his observations to the entirety of Lot 37 but rather to an area proximate to the boundaries between Lot 37 and the property occupied by Barclay Marine. Although greater care should have been taken to ensure that clearing was restricted to an area identified by Inspector Briggs on the one hand or by the Bush Fire Hazard Reduction Certificate on the other, it is understandable that "authority" was seen to exist to remove existing vegetation within the area that, but for the actions of the Rural Fire Service, could not be cleared by the Defendant without some further approval.

The appropriate sentence

108 The imposition of a sentence serves a number of purposes. As the provisions of s 3A of the CSP Act indicate, these purposes include retribution and denunciation, as well as deterrence, both specific and general.

General deterrence

109 The need for general deterrence when fixing an appropriate penalty is an important consideration in the sentencing process. That penalty must be sufficient to deter others who, by oversight or by failure to adhere carefully to the requirements or conditions of any consent, approval or authority risk committing an offence against the National Parks and Wildlife Act in the hope that should that oversight or failure be exposed, only nominal penalties will be imposed.

110 I have earlier identified the objects expressed in s 2A of the National Parks and Wildlife Act that include the conservation of "habitat, ecosystems and ecosystem processes" as well as "biological diversity". Actions that are made in contravention of provisions of the Act formulated to give effect to these objects must be punished appropriately. It is therefore appropriate that the penalty now to be imposed includes an element of general deterrence.

Specific deterrence

111 The Prosecutor submits that the penalty imposed in these proceedings should involve specific deterrence being given "significant weight". The submission is supported by reference to the Defendant's knowledge that the threatened species that found the present charges were present on the Property with the possibility that they would be present or, in the case of the Squirrel Glider, use the polygon area that was cleared as habitat. Not only was this knowledge gained from the various environmental assessment reports to which I have earlier referred, together with correspondence received from the Council, but was also gained as a consequence of the involvement of Mr Lani in civil enforcement proceedings brought in this Court involving the unlawful use of land in the area both by grazing and by clearing and filling (Great Lakes Council v Big Island Forster Pty Limited [2007] NSWLEC 270; Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1). The experience of the Defendant as a land developer, evidenced by its various applications to the Council for development consent in respect of land holdings in Forster, including those made in respect of the Property, are also said to evidence the Defendant's general understanding of the need to seek and obtain all appropriate approvals before undertaking work on land.

112 There is substance in the Prosecutor's submission. However, unlike the position that pertained in the earlier litigation to which I have referred, authority to carry out some clearing on the Property was provided in the form of the Bush Fire Hazard Reduction Certificate. For reasons earlier stated, I am satisfied that this Certificate provided the impetus for the clearing work undertaken, albeit that the Defendant was not careful to observe closely the limitation on the area to be cleared that either the Certificate or the direction of Inspector Briggs authorised.

113 As a consequence, the force of the submission made by the Prosecutor needs to be tempered by the circumstance in which these particular offences were committed. Nonetheless, some element of specific deterrence needs to be reflected in the penalty so as to ensure careful adherence to the conditions of any authority given for works on the Property, having regard to the well-documented ecological value of that land.

Denunciation

114 One of the purposes identified in s 3A(f) of the CSP Act for imposing a sentence is to denounce the conduct of the offender. As Preston CJ has observed, this is an important consideration and the Court must by its sentence show its denunciation of the crime that has been committed: Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [143]).

Even-handedness

115 The principle of evenhandedness in sentencing requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered. However, care must be exercised in undertaking this task as the facts and circumstances, both objective and subjective that inform the imposition of a penalty in one case will inevitably differ from those facts and circumstances relevant to inform an appropriate penalty in the case under consideration.

116 The Prosecutor identified two cases that were said to provide guidance as to the appropriate penalty to be imposed in the present case. The first of those was Garrett v Port Macquarie-Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 at [312]). The defendant council in that case pleaded guilty to three offences against s 118D(1) of the National Parks and Wildlife Act arising from the same course of conduct, namely the construction of a road of about 1,000m in length through a wetland area. Approximately 2,000m2 of habitat was removed.

117 Taking account of the principle of totality but prior to the application of any discounts, fines of $38,000, $19,000 and $9,500 respectively were imposed for those three offences. However, it is to be noticed that the road construction removed the totality of habitat within the 2,000m2 area which was found to be roosting and breeding habitat of at least one of the species and thus regarded as core habitat (at [89]). That is not the position in the present case. Foraging habitat remains for the Squirrel Glider while Trailing Woodruff was still found within the polygon area.

118 The second case to which reference is made by the Prosecutor is that which led to the conviction of the Defendant and Mr Lani on 18 May 2012 (reported as Chief Executive of the Office of Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115). As I have earlier indicated, that case involved damage to the habitat of the Squirrel Glider on Lot 37. Both the Defendant and Mr Lani were charged under s 118D(1) of the National Parks and Wildlife Act, the charge against Mr Lani personally being founded upon s 175(B)(1) of the Act. The offences arose from a single course of conduct.

119 The area of habitat affected in that case was approximately 9,900m2. It was accepted that the area had not been clear-felled, but that some foraging habitat for the Squirrel Glider had been removed. The Court also accepted that the work had not been carried out for commercial gain.

120 After applying the principle of totality and allowing discounts for an early plea of guilty, a fine of $13,000 was imposed upon the defendant and a fine of $10,000 imposed upon Mr Lani. Both were ordered to pay a proportion of the prosecutor's costs and also ordered to have prepared and then implement a remediation plan for the affected area, being a plan approved by the prosecutor.

121 While these two cases provide a guide to penalties appropriate for offences of the kind presently being considered, for reasons earlier stated they do not determine what that penalty must be. The circumstances attending the commission of the present offences, both objective and subjective, differ from those brought to bear upon penalty determined in those earlier cases.

Totality

122 As I have earlier recorded, the two offences with which the Defendant is charged arise from the single act of clearing that occurred on or about 24 February 2011. This circumstance requires the Court to have regard to the totality of the criminal conduct and to impose a penalty that reflects the totality of criminality involved in the commission of both offences: Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority at 702-703). The penalty that I impose reflects the circumstance that the two offences are connected in the manner described.

Costs

123 The Defendant has agreed to pay the Prosecutor's costs of these proceedings although the amount of those costs is not yet known. Unless agreement can be reached, those costs will need to be determined in accordance with s 257G of the Criminal Procedure Act 1986.

Conclusion on penalty

124 As I have earlier stated, the determination of an appropriate penalty involves an instinctive synthesis involving the weighing of the objective circumstances of the offence with the subjective circumstances of the Defendant. Having regard to the matters that I have discussed by reference to each of these elements and after applying the totality principle, I conclude that an appropriate penalty for damaging the habitat of Trailing Woodruff is $30,000 while the penalty for damaging the habitat of the Squirrel Glider is $15,000. However, the Defendant is entitled to a full discount of 25 percent for its early plea of guilty. Taking account of other mitigating factors, in particular the undertaking of remedial work for which the Defendant accepts responsibility, a total discount of 30 percent is appropriate. As a consequence, those fines become $21,000 and $10,500 respectively.

Orders

125 Apart from the quantum of penalty which I should impose, the parties are agreed on the form of orders that I should make. In particular, they are agreed on the form of orders directed to publication of the penalties imposed as well as the steps to be taken in order to plan for and undertake appropriate remedial measures for the Property. I accept these orders as being appropriate having regard to the provisions of s 205(1) of the National Parks and Wildlife Act.

126 Accordingly, I make the following orders:

Proceedings 50117 of 2013

1. The Defendant Bombala Investments Pty Limited is convicted of the offence as charged.

2. The Defendant is fined the sum of $10,500.

Proceedings 50118 of 2013

3. The Defendant Bombala Investments Pty Limited is convicted of the offence as charged.

4. The Defendant is fined the sum of $21,000.

In both proceedings 50117 and 50118 of 2013

5. Within 14 days of the date of these orders, the Defendant at its expense and pursuant to s 205(1)(a) of the National Parks and Wildlife Act, must cause a notice in the form of Annexure "A" to these orders to be placed within the first six pages in the Great Lakes Advocate newspaper at a minimum size of 10 centimetres by 20 centimetres.

6. Within 21 days of the date of these orders, the Defendant is to provide the prosecutor with evidence that the notice in Order 5 has been published.

7. Within three weeks of the date of these orders, the Defendant, pursuant to s 200(1)(d) of the National Parks and Wildlife Act, must retain consultants acceptable to the Prosecutor with the following expertise:

(a) a bush regenerator;

(b) an ecologist; and

(c) an expert with special knowledge of the threatened species Squirrel Glider (Petaurus norfolcensis).

8. Within 11 weeks of the date of these orders, the Defendant must cause the consultants to prepare a remediation plan for the area of 0.52 hectares on the map annexed to these orders relating to the land being Lot 37 in DP 1023220, Lot 148 in DP 651471 and Lot 33 in DP 850018 located near The Lakes Way, Forster, to include the following:

(a) regeneration of cleared vegetation;

(b) a timeframe for all actions proposed as part of the remediation plan implementation; and

(c) any other actions the consultants deem to be required to remediate the Property to correct the impacts of the offences.

9. Within 12 weeks of the date of these orders the Defendant must provide the remediation plan as produced in accordance with Order 7 above to the Prosecutor.

10. No later than 20 weeks after the date of these orders the Defendant must cause the consultants to carry out all works required by the remediation plan and in accordance with the time frame under the remediation plan.

11. The Defendant must provide copies to the Prosecutor of all retainers and instructions given to the consultants at the same time as they are given to the consultants.

12. In the event that any or all of the consultants are unable to continue to act pursuant to these orders, they may be replaced by the Defendant engaging a replacement consultant acceptable to the Prosecutor to perform the relevant functions under these orders.

13. Schedule 7 to the Uniform Civil Procedure Rules 2005 is directed to apply to the performance of the duties of the consultants as if they are parties' single expert witness in these proceedings.

14. Notwithstanding Order 13 above, the Defendant must pay the professional fees, costs and expenses of the consultants.

15. The Defendant must pay the Prosecutor's costs of both proceedings as determined in accordance with s 257G of the Criminal Procedure Act 1986 (NSW).

16. Exhibits may be returned.

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Annexure A - PDF

 

Decision last updated: 01 November 2013