Land and Environment Court New South Wales

• Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74
• Hearing dates: 3 June 2014
• Decision date: 18 June 2014
• Jurisdiction: Class 5
• Before: Pain J

Decision

1. The Defendant is convicted of the offence pursuant to s 118A(2) of the National Parks and Wildlife Act 1974 as charged.

2. Pursuant to s 205(1)(d) of the National Parks and Wildlife Act 1974 the Defendant is to pay $80,000 to the Campbelltown City Council for the purposes of the project "Restoration Works at Noorumba Reserve, Gilead Project" as detailed in Annexure A with the timetable for payment to be made within 14 days by agreement or order of the Court.

3. Pursuant to s 200 of the National Parks and Wildlife Act 1974 the Defendant must carry out restoration works at the property, 561 Appin Road, Gilead, in accordance with Annexure B subject to the amendment of the plan identifying the area to be restored in accordance with exhibit G as referred to at par 101 of this judgment and amendment of the period of remediation to 15 years.

4. The Defendant is to pay the Prosecutor's costs of this sentence hearing excluding the Prosecutor's costs in relation to Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56 as agreed or assessed.

5. The exhibits may be returned.

• Catchwords: SENTENCE - plea of guilty to picking an endangered ecological community - rehearing on remittal from Court of Criminal Appeal - agreed area of endangered ecological community cleared - extent of environmental harm - whether remediation order warranted given natural regeneration of cleared area - publication order not warranted
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A; Criminal Procedure Act 1986 s 215; Corporations Act 2001 (Cth) s 998; Environment Protection and Biodiversity Conservation Act 1999 (Cth); Fisheries Management Act 1994; National Parks and Wildlife Act 1974 s 2A, s 5, s 118A, s 156A, s 194, s 199, s 200, s 205, Pt 8A, Pt 15; National Parks and Wildlife Amendment Act 2010; Native Vegetation Act 2003 s 12; Native Vegetation Conservation Act 1997 (repealed); Protection of the Environment Operations Act 1997 s 241, Pt 8; Threatened Species Conservation Act 1995 s 3, s 24, Pt 2 Div 2, Pt 2 Div 3, Pt 3, Pt 4, Pt 5, Sch 1 Pt 3, Sch 3
• Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Bell v R (1981) 5 A Crim R 347; Bentley v BGF Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234; Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwood Sales Pty Ltd [2012] NSWLEC 52; Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56; Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194; Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227; Duncan v R (1983) 47 ALR 746; Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 229; Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287; Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115; Garrett v Williams [2007] NSWLEC 56; Giourtalis v R [2013] NSWCCA 216; Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189; Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8; Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532; Hoare v R [1989] HCA 33; (1989) 167 CLR 348; Markarian v R [2005] HCA 25; (2005) 228 CLR 357; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66; Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Scook [2008] WASCA 114; (2008) 185 A Crim R 164; R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300; R v Todd [1982] 2 NSWLR 517; R v Thomson; R v Houlton 92000] NSWCCA 309; (2000) 49 NSWLR 383; R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13; Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; (2003) 132 LGERA 1; Veen v R [1979] HCA 7; (1979) 143 CLR 458; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
• Category: Sentence
• Parties: Chief Executive, Office of Environment and Heritage (Prosecutor); Kyluk Pty Limited (Defendant)
• Representation: Mr J Glissan QC (Prosecutor); Mr S Littlemore QC with Ms P Lane (Defendant); Office of Environment and Heritage (Prosecutor); McGirr Lawyers (Defendant)
• File Number(s): 50604 of 2011

Judgment

Sentencing for offence of picking endangered ecological community

1 Kyluk Pty Limited (the Defendant) pleaded guilty on 14 February 2012 to the offence that between about 11 June 2009 and 11 August 2009 contrary to s 118A(2) of the National Parks and Wildlife Act 1974 (the NPW Act) it picked plants that were part of an endangered ecological community (EEC), being "Shale/Sandstone Transition Forest in the Sydney Basin Region" (SSTF) as described in the Scientific Committee's Final Determination (the Final Determination). At the time of the offence SSTF was listed as an EEC in Sch 1 Pt 3 of the Threatened Species Conservation Act 1995 (the TSC Act).

2 In pleading guilty the Defendant admitted the essential elements of this offence as particularised in the summons filed 15 July 2011. The Defendant has admitted that between about 11 June 2009 and 11 August 2009, it picked plants forming part of the SSTF at Lot 24 DP700072, known as 561 Appin Road, Gilead (the property) in the following manner:

(a) it caused and/or permitted the picking of plants that were part of the SSTF at the property; and

(b) it was the landholder of land at which plants that were part of the SSTF were picked.

3 The offence is one of strict liability so that mens rea is not an element of the offence. This judgment considers the appropriate sentence for that offence. The parties' submissions, the evidence and the Statement of Facts (SOF) refer to both picking and clearing. In this case there is no relevant distinction between the two terms.

4 This is the second judgment on sentence in this matter as Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56 (Kyluk (No 3)) was the subject of a successful appeal to the Court of Criminal Appeal (CCA) in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 (Kyluk CCA). The matter was remitted to the Court in accordance with the reasons of the CCA. Those reasons mean that the Prosecutor could not rely on the expert evidence of one witness previously considered by me in Kyluk (No 3) in holding that 12.54 ha of EEC was cleared.

National Parks and Wildlife Act 1974/Threatened Species Conservation Act 1995

5 The objects of the NPW Act, below, are to be achieved by applying the principles of ecologically sustainable development as provided for by s 2A(2):

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,

(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:

(i) places, objects and features of significance to Aboriginal people, and

(ii) places of social value to the people of New South Wales, and

(iii) places of historic, architectural or scientific significance,

(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,

(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.

6 Relevantly s 5 defines:

endangered ecological community means an endangered or critically endangered ecological community within the meaning of the Threatened Species Conservation Act 1995.

...

harm an object or place includes any act or omission that:

(a) destroys, defaces or damages the object or place, or

(b) in relation to an object-moves the object from the land on which it had been situated, or

(c) is specified by the regulations, or

(d) causes or permits the object or place to be harmed in a manner referred to in paragraph (a), (b) or (c),

but does not include any act or omission that:(e) desecrates the object or place, or

(f) is trivial or negligible, or

(g) is excluded from this definition by the regulations.

7 Section 118A(2) of the NPW Act states:

118A Harming or picking threatened species, endangered populations or endangered ecological communities

(2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community.

Penalty:

(a) in respect of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community-2,000 penalty units or imprisonment for 2 years or both, and an additional 100 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence,

(b) in respect of any vulnerable species-500 penalty units or imprisonment for 1 year or both, and an additional 50 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence.

8 Part 2 Div 2 of the TSC Act provides for listing of EECs by the Scientific Committee appointed under the TSC Act. Division 3 specifies the procedure for such listing. The Final Determination is made by the Scientific Committee and must be gazetted (s 24(1)(d) TSC Act). Part 3 of Sch 1 of the TSC Act lists EECs. An EEC referred to in the NPW Act has the same meaning as in the TSC Act. The objects of the TSC Act are set out in s 3 as follows:

3 Objects of Act

The objects of this Act are as follows:

(a) to conserve biological diversity and promote ecologically sustainable development, and

(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and

(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

9 Part 15 s 194 (Div 2), s 199, s 200 and s 205 (Div 3) of the NPW Act inserted by the National Parks and Wildlife Amendment Act 2010 commenced on 2 July 2010 after the date of the offence in 2009. These sections apply by virtue of the transitional provisions made at the time of the amendment and relevantly state:

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,

(f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area-the views of Aboriginal persons who have an association with the object, place or area concerned,

(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.

199 Orders generally

(1) Orders may be made

One or more orders may be made under this Division against the offender.

(2) Orders are additional

Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.

(3) Other action not required

Orders may be made under this Division regardless of whether any penalty is imposed, or other action taken, in relation to the offence.

200 Orders for restoration and prevention

(1) The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow):

(a) to prevent, control, abate or mitigate any harm caused by the commission of the offence, or

...

(c) to make good any resulting damage, or

(d) to prevent the continuance or recurrence of the offence.

(2) The court may order the offender to provide security to the court or to the Director-General for the performance of any obligation imposed under this section.

(3) An order under subsection (2) must specify:

(a) the amount of the security required to be provided, and

(b) the kind of security required to be provided, and

(c) the manner and form in which the security is to be provided.

...

205 Additional orders

(1) Orders

The court may do any one or more of the following:

(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,

(b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct),

(c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit,

(d) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes,

(e) order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court,

(f) order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court.

The Local Court is not authorised to make an order referred to in paragraph (c) or (d).

(2) Machinery

The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.

(3) Failure to publicise or notify

If the offender fails to comply with an order under subsection (1) (a) or (b), the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify:

(a) the original contravention, its consequences, and any other penalties imposed on the offender, and

(b) the failure to comply with the order.

(4) Cost of publicising or notifying

The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender.

Evidence

10 The Chief Executive, Office of Environment and Heritage (OEH) (the Prosecutor) tendered a SOF with numerous annexures (exhibit F). Following rulings on admissibility the SOF was admitted. Ellipses indicate material excluded by ruling or not pressed. "Omitted" in square brackets reflects the original statement tendered to the Court. It provides (excluding references to annexures) as follows:

BACKGROUND

The defendant

4 Kyluk is a property development company that is involved in purchasing and managing commercial and rural property in south-west Sydney. Mr Steven Michael Cenatiempo is a company director of Kyluk and is responsible for managing the properties owned by the company and the finances for the company. The other listed directors of the company are Mr Giovanni Cenatiempo and Ms Teresa Cenatiempo. ...

The Property

5 Kyluk is the registered proprietor of the Property, having purchased the Property on 13 February 2003. The Property is used by Kyluk for grazing cattle.

6 The Property is approximately 40.31 hectares in area and is within the Campbelltown local government area. The property is accessed by an existing right of carriageway on Lot 1 DP 70208, also known as Leafs Gully Road, which connects to Appin Road. A copy of an aerial photograph showing the property, Leafs Gully Road and Appin Road.

7 The Property is located approximately 5 km north of Appin on the Southern Tablelands of NSW. A creek-line is located inside the western boundary of the Property. To the north-east of the creek- line, the fall of the land within the Property is generally towards the south-west and west.

MAPS AND AERIAL PHOTOGRAPHS

Maps and aerial photographs of the Property (showing vegetation at the Property before the date of the offence)

8 The following maps and aerial photographs show the vegetation present at the Property at various stages before the date of the offence:

a. A copy of the aerial photographs, dated April 2008, January 2005, April 2003, November 2000, January 1998, April 1995, March 1992, February 1982, October 1977, April 1972, October 1965 and August 1956.

b. A copy of the aerial photograph of the Property available through Google Earth online dated February 2007.

c. A copy of the SPOT5 satellite image of the Property dated 11 June 2009.

Maps and aerial photographs of the Property (showing vegetation at the Property after the date of the offence)

9 The picking of vegetation was carried out on the Property in approximately July and August 2009.

10 The following maps and aerial photographs show the vegetation present at the Property at various stages after the date of the offence:

a. Aerial photographs showing the vegetation present at the Property as at 21 August 2009.

b. Aerial photographs showing the vegetation present at the Property as at 6 September 2009.

c. A copy of the aerial photograph of the Property available through Google Earth online dated 31 October 2009.

CHRONOLOGY

11 The following section is a chronology of the relevant events related to the picking of vegetation at the Property.

12 [Omitted].

13 [Omitted].

14 [Omitted].

29 July 2009: Observations from Mr Steven Jackson

15 On 29 July 2009, Mr Steven Robert Jackson, an employee of AGL Energy Limited was driving down Leafs Gully Road and observed that there was no sign of any recent clearing on the Property.

7 August 2009: Email complaint to OEH

16 On 7 August 2009, the Office of Environment and Heritage ("OEH") Environment Line email account received an email from an anonymous email address stating that: "Over the last couple of days there has been a lot of trees clearing on the land near where AGL is building a power station on off Appin Road at Gilead (Leafs Gully), this is supposed to be for Koala habitat". The email complaint was forwarded to OEH Senior Regional Operations Officer Melinda Hale, who subsequently advised Campbelltown City Council.

11 August 2009: Observation of clearing by Mr Steven Jackson

17 On 11 August 2009, Mr Steven Robert Jackson, an employee of AGL Energy Limited was driving down Leafs Gully Road and noticed that vegetation of the Property had been extensively cleared. Mr Jackson observed an extensive area that had been almost completed cleared of vegetation, including large trees, bushes and grasses. The cleared vegetation had been pushed into windrows.

12 August 2009: Inspection of Property

18 On 12 August 2009, Campbelltown City Council Officers Leslie Winch and Michael Plummer attended the Property and carried out an inspection. During the inspection, the Council Officers observed that:

a. Large scale land clearing works had recently been undertaken, involving the felling of trees and understorey, and the stripping of other vegetative material.

b. Felled trees and land clearing debris were left in piles, pushed into windrows across the cleared area of the land, and were present in the creek-line.

c. Photographs taken of the Property by the Officers on 12 August 2009.

19 ...

13 August 2009: Inspection of Property

20 On 13 August 2009, OEH Officers Jennifer Byrne, Melinda Hale and Dennis Pascall and Campbelltown City Council Officers Michael Plummer and Grahame Dawson attended the Property at about 10:15am and carried out an inspection. During the inspection, the OEH and Council Officers observed that:

a. There was a "John Deere" backhoe fitted with an excavation arm and bucket located on the Property.

b. Trees and understorey vegetation had been pushed into a number of windrows located across the Property, including areas close to the creek-line.

c. There were large areas of bare soil and sandstone rock outcrops where the trees and understorey vegetation had been removed.

d. Photographs taken of the Property by the Officers on 13 August 2009.

21 [Omitted].

14 August 2009: Telephone conversation with Mr Cenatiempo

22 At about 3:45pm on 14 August 2009, Officer Dawson received a telephone call from Mr Steven Cenatiempo. They had a conversation in words to the following effect:

Mr Dawson said: "Are you the owner of 561 Appin Road, Gilead?"

Mr Cenatiempo said: "Yes"

Mr Dawson said: "Why was the vegetation cleared"

Mr Cenatiempo said: "It was cleared because cows are going to be placed on the land and the main reason for clearing the land was for fire hazard reduction they have had a lot of fires in the past. Why what's wrong?"

Mr Dawson said: "You need council approval to remove one tree."

Mr Cenatiempo said: "I didn't know that."

Mr Dawson said: "Can you give Council an undertaking that no further clearing will be conducted?"

Mr Cenatiempo said: "Yes, no more work will be done."

Mr Dawson said: "Council is in the process of writing to you requesting information as to why the trees and vegetation was removed."

Mr Cenatiempo said: "Yes."

Mr Dawson said: "Who cleared the vegetation?"

Mr Cenatiempo said: "Its like I said it was cleared due to being a fire hazard."

Mr Dawson said: "Council's letter will also require that a meeting be arranged to discuss the land clearing with you."

Mr Cenatiempo said: "Yes."

Mr Dawson said: "I will relay the information to the council officers involved in this matter and advise them that you didn't know you required council approval to remove the vegetation due to fire hazard reduction, and that no further work will be conducted on the property."

23 ...

24 ...

25 At about 12:48pm, Officer Dawson attended the business premises of Kyluk at 9 Lincoln Street, Minto NSW 2566 and hand delivered the letter to Mr Cenatiempo. Upon arrival, they had a conversation in words to the following effect:

Mr Dawson said: "Are you Michael Steven Cenatiempo?"

Mr Cenatiempo said: "Yes."

Mr Dawson said: "I have correspondence from Council regarding the land clearing at 561 Appin Road, Gilead." [Mr Dawson handed him the envelope].

Mr Cenatiempo said: "Ok." [Mr Cenatiempo opened the envelope]

Mr Dawson said: "Council recognises that you stopped all further work when instructed."

Mr Cenatiempo said: "Well I don't feel I did anything wrong."

Mr Dawson said: "When you read and absorb the information Council would like to meet with you about the land clearing."

Mr Cenatiempo said: "That's fine."

Mr Dawson said: "The contact details are on the Order and Prevention Notice."

Mr Cenatiempo said: "Yes, I will look at it and ring you."

Late August 2009: Kyluk engages Anderson Environmental Consultants Pty Ltd

26 In late August 2009, Kyluk engaged Anderson Environmental Consultants Pty Ltd to provide advice on the preventative action required to stabilise the areas of cleared/disturbed land on the Property. Mr Jason Anderson of Anderson Environmental Consultants Pty Ltd gave advice to Mr Cenatiempo over the phone that in general mulching would reduce the risk of erosion. After being advised by Mr Cenatiempo that there was mulch already present on the Property, Mr Anderson recommended that Mr Cenatiempo spread the mulch over the area of cleared/disturbed land on the Property as an immediate measure.

27 Kyluk subsequently engaged Green Waste Australia Pty Limited and Cockerill Contracting Pty Limited to mulch the vegetation that had been placed in windrows on the Property and to apply the mulch to the area of cleared/disturbed land on the Property. Green Waste Australia Pty Limited and Cockerill Contracting Pty Limited undertook this work from approximately 25 August 2009 until 9 September 2009. The total cost for the mulching works over this period was $32,262.50.

28 ...

29 ...

28 August 2009: Inspection of Property

30 On 28 August 2009, Campbelltown City Council Officers Grahame Dawson and Michael Plummer attended the Property at 11:15am and carried out an inspection. During the inspection the Council Officers observed that:

a. There were approximately 6 to 8 persons operating pieces of heavy machinery to mulch vegetation and spread the mulch at the Property.

b. ...

c. Photographs taken of the Property by the Officers on 28 August 2009.

31 ...

32 ...

29 August 2009: Inspection of Property

33 On 29 August 2009, Campbelltown City Council Officer Russell Hart attended the Property and carried out an inspection. During the inspection Officer Hart observed there to be several large earthmoving and other plant machines on the Property, that appeared to be locked up and that no works were under way on the Property. Photographs taken of the Property by Officer Hart on 29 August 2009.

30 August 2009: Inspection of Property

34 On 30 August 2009, Campbelltown City Council Officer Russell Hart attended the Property and carried out an inspection. During the inspection Officer Hart observed there to be several large earthmoving and other plant machines on the Property, that appeared to be locked up and that no works were under way on the Property. Photographs taken of the Property by Officer Hart on 30 August 2009.

31 August 2009: Inspection of Property

35 On 31 August 2009, Campbelltown City Council Officer Michael Plummer attended the Property and carried out an inspection. During the inspection Officer Plummer observed there to [be] no works undertaken on the Property. Photographs taken of the Property by Officer Plummer on 31 August 2009.

36 ...

3 September 2009: Inspection of Property

37 On 3 September 2009, Campbelltown City Council Officers Grahame Dawson, Leslie Winch and Mike Plummer attended the Property and carried out an inspection. During the inspection, the Council Officers observed that:

a. A number of male persons were observed operating machinery on the site, mulching the felled trees and undergrowth.

b. Photographs taken of the Property by the Officers on 3 September 2009.

38 ...

39 ...

7 September 2009: Inspection of Property

40 On 7 September 2009, Campbelltown City Council Officer Grahame Dawson attended the Property at about 10:54am to carry out an inspection. During the inspection Officer Dawson observed that the machine previously used to mulch the vegetation was not being used and that no activity was being undertaken on the Property.

41 ...

8 September 2009: Inspection of Property

42 On 8 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. From the road, Officer Plummer observed that:

a. There were several utility type vehicles on the property and 3 mechanical excavator type machines being used by 6 persons to mulch vegetation at the Property.

b. Photographs taken of the Property by Officer Plummer on 8 September 2009.

10 September 2009: Inspection of Property

43 On 10 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. From the road, Officer Plummer observed that there was various machinery and mulched piles of vegetation located on the Property but that no works were being undertaken at the Property. Photographs taken of the Property by Officer Plummer on 10 September 2009.

16 September 2009: Inspection of Property

44 On 16 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. Officer Plummer observed that apart from the "John Deere" backhoe, all other machinery had been removed from the Property.

45 ...

2 October 2009: Inspection of Property

46 On 2 October 2009, Campbelltown City Council Officers Grahame Dawson and Michael Plummer attended the Property with Ms Teresa James to carry out an inspection of the Property. During the inspection, the Officers observed that:

a. Mulch had been spread in number of locations on the Property.

b. A number of trees damaged by the clearing works and that there had been disturbance to the sandstone rocks and boulders at the Property.

c. Vegetation had been pushed into the creek-line located at the Property.

d. Photographs taken of the Property by the Officers on 2 October 2009.

[omitted]

47 [omitted].

10 September 2010: Notice for information and records

48 On 10 September 2010, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 1 October 2010. Kyluk responded to the notice for information and records as follows:

a. On 1 October 2010, Kyluk provided its response to the notice by letter to OEH. In its response to the notice, Kyluk advised that it had no knowledge of the clearing.

8 October 2010: Notice to nominate a corporate representative

49 On 8 October 2010, OEH issued a statutory notice requesting Kyluk to nominate a person to answer questions as Kyluk's corporate representative by 15 October 2010. In response to the notice Kyluk did the following:

a. On 14 October 2010, Kyluk advised by letter to OEH that it nominated Mr Cenatiempo as Kyluk's corporate representative.

7 December 2010: Notice to nominate time and place for interview

50 On 7 December 2010, OEH issued a statutory notice requesting Mr Cenatiempo, as the corporate representative of Kyluk, to nominate a time and place to attend and answer questions by 21 December 2010. In response to the notice Kyluk did the following:

a. On 16 December 2010, Mr Cenatiempo issued a letter to OEH advising that the request to nominate a time and a place was not appropriate and not reasonable. Mr Cenatiempo also requested an extension of time to nominate a time and place of 14-21 days after the OEH's response to the letter was received by Kyluk.

b. On 16 December 2010, OEH issued a letter to Mr Cenatiempo advising that should he fail to nominate a time and place by 21 December 2010, that OEH would nominate a time and place to attend and answer questions.

c. On 20 December 2010, Mr Cenatiempo issued a letter to OEH advising that he nominated 8 February 2011 at the OEH offices in Sydney as the time and place to attend and answer questions.

d. On 23 December 2010, OEH issued a letter to Mr Cenatiempo advising that the time and place nominated was not reasonable in the circumstances and requested that he nominate an alternative time and place by 5 January 2011. OEH also advised that should he fail to nominate a time and place by 5 January 2011, that OEH would nominate a time and place to attend and answer questions.

e. On 4 January 2011, Mr Cenatiempo issued a letter to OEH advising that he nominated 26 January 2011 at the OEH offices in Sydney as the time and place to attend and answer questions.

f. On 10 January 2011, OEH issued a letter to Mr Cenatiempo confirming that he was to attend and answer questions at the OEH offices in Sydney on 27 January 2011 (due to the public holiday on 26 January 2011).

g. On 10 January 2011, Mr Cenatiempo issued a letter to OEH confirming that he was to attend and answer questions at his solicitor's offices in Sydney on 27 January 2011.

27 January 2011: Interview with Kyluk's corporate representative

51 On 27 January 2011, Kyluk's corporate representative, Mr Cenatiempo, was interviewed under caution. During the interview, Mr Cenatiempo admitted that:

a. Mr Cenatiempo stated that he had no knowledge of the clearing taking place on the Property.

b. Mr Cenatiempo stated that during his inspection of the Property after the clearing he observed up to 20 trees cleared on the Property.

c. Mr Cenatiempo stated that he was aware that the removal of trees on the Property required council approval before works were undertaken to remove the trees.

9 February 2011: Notice for information and records

52 On 9 February 2011, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 23 February 2011. Kyluk responded to the notice for information and records as follows:

a. On 23 February 2011, Kyluk advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that it requested a 14 day extension to the deadline.

b. On 24 February 2011, OEH advised by letter to Kyluk that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 2 March 2011.

c. On 1 March 2011, Kyluk provided its response to the notice by letter to OEH. In its response to the notice, Kyluk advised that it had no knowledge of the clearing taking place on the Property.

9 February 2011: Notice for information and records

53 On 9 February 2011, OEH issued a statutory notice requesting Mr Cenatiempo (in his capacity as a director of Kyluk) to provide information and/or records in relation to any clearing occurring on the Property by 23 February 2011. Mr Cenatiempo responded to the notice for information and records as follows:

a. On 23 February 2011, Mr Cenatiempo advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that he requested a 14 day extension to the deadline.

b. On 24 February 2011, OEH advised by letter to Mr Cenatiempo that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 2 March 2011.

c. On 1 March 2011, Mr Cenatiempo provided his response to the notice by letter to OEH.

24 March 2011: Notice for information and records

54 On 24 March 2011, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 1 April 2011. Kyluk responded to the notice for information and records as follows:

a. On 28 March 2011, Kyluk advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that it requested a 21 day extension to the deadline.

b. On 29 March 2011, OEH advised by letter to Kyluk that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 4 April 2011.

c. On 7 April 2011, OEH advised by letter to Kyluk that the time for compliance with the notice had now passed and that Kyluk was in breach of the notice. OEH advised that the obligation to comply with the notice nevertheless continued, even though the due date for compliance had now passed.

d. On 7 April 2011, Kyluk provided its response to the notice by letter to OEH.

6 May 2011: Notice to nominate time and place for interview

55 On 6 May 2011, OEH issued a statutory notice requesting Mr Cenatiempo, as the corporate representative of Kyluk, to nominate a time and place to attend and answer questions by 20 May 2011. In response to the notice Kyluk did the following:

a. On 20 May 2011, Mr Cenatiempo issued a letter to OEH advising that he nominated 31 May 2011 at his solicitor's offices in Sydney as the time and place to attend and answer questions.

31 May 2011: Interview with Kyluk's corporate representative

56 On 31 January 2011, Kyluk's corporate representative, Mr Cenatiempo, was interviewed under caution. During the interview, Mr Cenatiempo stated that:

a. Mr Cenatiempo stated that he had no knowledge of the clearing taking place on the Property.

b. Mr Cenatiempo stated that he didn't know why cleared had occurred on the Property.

Reports prepared by Anderson Environmental Consultants Pty Ltd

57 Anderson Environmental Consultants Pty Ltd was engaged to provide various reports to Kyluk in relation to the clearing occurring at the Property. In total, Anderson Environmental Consultants prepared 4 reports for Kyluk:

a. "Preliminary Erosion Control Works Plan, Assessment and Certification for 561 Appin Road Campbelltown City Council" (September 2009).

b. "Long Term Erosion Control Plan for 561 Appin Road, Campbelltown City Council LGA" (October 2009).

c. "Ecological Restoration Plan for 561 Appin Road, Gilead Campbelltown City Council LGA" (January 2010).

d. "Flora and Fauna Assessment and Seven Part Tests of Significance for 561 Appin Road, Gilead Campbelltown City Council" (February 2010).

The current state of vegetation at the Property

58 Kyluk has not undertaken any remediation works at the Property (with the exception of those works undertaken in response to the emergency order and prevention notice). Kyluk has at no stage submitted any development applications in connection with any remediation works proposed to be undertaken at the Property.

59 ...

60 On 23 November 2011, Campbelltown Officers Leslie Winch and Grahame Dawson attended the Property to carry out an inspection. The Officers observed that:

a. The previously cleared areas on the Property had been recolonised by a number of invasive weed species as well as some eucalypt species.

b. The regrowth seemed to be concentrated around the windrows; in the open areas the regeneration appeared to be mostly of grasses.

c. Photographs taken by the Officer on 23 November 2011.

61 ...

SHALE/SANDSTONE TRANSITION FOREST EEC

The nature and distribution of Shale/sandstone Transition Forest EEC

62 In 1998, SSTF EEC was listed as an endangered ecological community on Part 3 of Schedule 1 to the Threatened Species Conservation Act 1995. In 2001, SSTF EEC was listed as a threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

63 [omitted].

64 SSTF EEC It is restricted to transitional sandstone and shale soils within the Sydney region, particularly at the edge of the Cumberland Plain in western Sydney. Approximately 9,642 ha of SSTF remain in intact condition comprising 21% of the pre-1750 extent. Only 420 ha or 4% of remaining SSTF EEC is protected on OEH estate. SSTF EEC provides habitat for a number of plant species of national, state and regional conservation significance.

65 SSTF EEC is threatened by further loss and fragmentation of habitat. Clearing for agricultural land and residential development have led to increasingly isolated small remnants which are more susceptible to degradation, provide less habitat values and support fewer species. ...

11 Annexures to the SOF included consultant reports from Anderson Environmental Consultants Pty Ltd prepared to assist the Defendant comply with statutory notices from Campbelltown City Council (the Council). These outlined measures to be taken after the clearing event such as the spreading of mulch to reduce erosion. This SOF set out above is in the same terms as in Kyluk (No 3). An additional paragraph was added for this rehearing which referred to an attachment 29A (exhibit G). Following negotiations between the parties it was agreed that the area of SSTF EEC cleared was 5 ha and that this was located within the area marked with a black line on exhibit G. In the absence of that agreement it would have been difficult for the Prosecutor to prove on the evidence permissible following the CCA decision where the area of SSTF EEC cleared was located. The evidence of the Prosecutor was otherwise the same as in Kyluk (No 3) except for expert evidence that cannot now be relied on.

Expert evidence of Ms James

12 Ms James' expert evidence remains unchanged from Kyluk (No 3). Exhibit TAJ-1 to Ms James' affidavit filed on 15 July 2011, her curriculum vitae, states that she specialises in vegetation survey, plant identification and conservation assessment. Until October 1998 she held the position of Identifications Botanist, Plant Sciences, National Herbarium of NSW, Royal Botanic Gardens. She holds a Bachelor of Science.

13 Exhibit TAJ-5 to Ms James' affidavit filed on 30 November 2011 states that Ms James visited the property on 2 October 2009 and 15 December 2010. She was instructed to provide her opinion as to the extent and size of the EEC picked on the property, the extent of harm/damage caused or likely to be caused by the clearing, and the significance of the EEC. In preparing her report she considered, amongst other things, a map "extent of cleared area" prepared by Ms Byrne dated February 2011 which was annexed to her report.

14 On 15 December 2010 Ms James undertook a foot survey across the property for approximately five hours in a selection of the areas surveyed in 2009 in order to provide information on changes that have occurred since 2009. Figure 1 identifies the approximate location of the survey areas and extent of clearing across the site and marks out the areas resurveyed in 2010. The resurveyed areas were selected to sample both EECs and their respective soils on different parts of the property, including close to the outer extent of alleged clearing. Ms James observed that regeneration of native species is occurring across much of the affected area except in patches where there is a deeper layer of mulch or highly compacted soil. The regenerating vegetation includes species characteristic of SSTF. The area of SSTF pre-clearing is more accurately calculated with information from soil analysis and GIS mapping by Ms Byrne. The area of SSTF cleared is estimated to be 12.54 ha. (I note that the Prosecutor cannot prove this area of 12.54 ha of SSTF following Kyluk CCA.)

15 Both the transitional soils and sandstone derived soils support SSTF. The sandstone derived soils close to the main creek line support a high sandstone form of the EEC which can occur on Hawkesbury sandstone derived soils and locally corresponds with Hinterland Sandstone Transition Grey Gum Forest and most commonly occurs on the fringes of the Cumberland Plain within the Campbelltown and Liverpool local government areas. Characteristic tree species occur close to the creek. The transitional soils support vegetation more consistent with Cumberland Shale Sandstone Ironbark Forest which is also a component of SSTF that occurs on the fringes of the Cumberland Plain. Sixty-five per cent of the species listed for the community are represented at the property within the transitional areas. Two publications Ms James referred to (M Tozer, "The native vegetation of the Cumberland Plain, western Sydney: systematic classification and field identification of communities" (2003) 8 Cunninghamia 1, and Department of Environment, Climate Change and Water "The Native Vegetation of the Sydney Metropolitan Catchment Management Authority Area" (2009) Department of Environment, Climate Change and Water NSW) identify both high and low sandstone influence communities as components of the SSTF. Ms James states that the distribution of these two forms (high and low sandstone influence communities) in the OEH mapping and the more detailed site inspection shown in Fig 2 were very similar. Figure 2 shows the approximate extent of SSTF on the property, the main extent of clearing in 2009 and location of soil pit sites. Ms James states that the Final Determination predates the publications she referred to and is less specific in relation to soils and sandstone influence although par 9 identifies that the EEC can occur on both shale and sandstone derived soils. The characteristic canopy species of the higher sandstone parts of the property are included in the listing provided in par 4 of the Final Determination.

16 In relation to environmental significance, Ms James states that SSTF has been listed as an endangered community at both state and national levels since 1998 and 2001 respectively. Approximately 9,642 ha of SSTF remain in intact condition comprising 21 per cent of pre-1750 extent. Only 420 ha or 4 per cent of remaining SSTF is protected on OEH estate. SSTF is a variable community with different forms that reflect varying sandstone influence and geographic location. The pre-clearing vegetation was of high conservation value. There is a history of disturbance at the property although significant clearing of vegetation only occurred twice including in 2009. The clearing in 2009 removed a significant proportion of the 17 years of growth of SSTF. The level of vegetation and species richness recorded in her inspections is consistent with this finding. The frequency and intensity of the clearing and the extent of soil disturbance are key factors in determining the success of regeneration and species richness. The impacts of clearing have been most significant on the extent and diversity of trees and shrubs. Tree cover prior to clearing, based on an aerial photograph taken in 2009, varied across the property but tree cover in December 2010 was significantly less. Tree and shrub regeneration is occurring but it is patchy and at lower densities than the original cover. These trees are likely to take almost 20 years to reach the size of the felled trees. Natural re-establishment of the pre-clearing tree cover will take significantly longer due to the extensive removal of trees (limiting regrowth) and seed held in capsules as well as soil disturbance and it is not assured unless the property is protected and managed appropriately.

17 Exhibit TAJ-7 to Ms James' affidavit filed on 20 December 2011 attaches a report dated 16 December 2011 prepared in response to a request by OEH in November 2011 to provide a supplementary report in relation to, among other things, the extent that SSTF will regenerate on the property and whether there is any evidence of steps taken to remediate the cleared areas on the property. On 30 November 2011 Ms James inspected the eastern end of the adjoining property for the first time and undertook a foot traverse within vegetation immediately adjacent to the subject property. From the road and across the fence line from the adjoining land, Ms James made the following observations: the shrub layer had regenerated across the property "within cleared areas and where under scrubbing has occurred", SSTF on sandstone influenced soils was regenerating, some grazing had recently occurred based on evidence of cow dung and condition of groundcover, there was no evidence of weed control with strong growth of noxious and environmental weeds including lantana, which was not previously recorded for the property and required urgent control. There was good connectivity of native vegetation between the property and the adjoining land.

18 Ms James states that it is likely the SSTF will "regenerate and recover sufficiently over 5 to 20+ years to re-establish a tree, shrub and ground layer providing no further clearing occurs. The composition and integrity of the regrowth is more difficult to determine". She expects that the clearing will encourage greater regrowth of more resilient species increasing the risk of species loss within the ground layer and smaller shrub layer and highlights that there are many references to the adverse impacts of clearing and soil disturbance on recovery ability, species diversity and integrity. Ms James notes that the specific requirements of individual species are complex and largely unknown, that slower growing shrubs dependent on regeneration from seed and more sensitive species are most at risk, and that weed invasion poses a major threat to regeneration.

19 Ms James states that the condition of SSTF (of both high and low sandstone influence) pre-clearing was moderate to good and observed that both forms of SSTF were subject to disturbance including through clearing of vegetation. She states that the likelihood of loss of vegetative rootstock and seed from the property as a result of disturbance is moderate for high sandstone influence SSTF and high for low sandstone influence SSTF. Ms James found that neither form is likely to return to its pre-clearing conditions. In relation to high sandstone influence SSTF this is "largely due to the extent and depth of mulch applied to the soil and invasion by exotic, weedy species". In relation to low sandstone influence SSTF she states, "Although low sandstone SSTF at the [property] appears to be regenerating well it is unlikely to return to pre-clearing species diversity particularly in wetter or more isolated sites ... due to loss of species, dense shrub regrowth and weed invasion. SSTF close to the western perimeter is more likely to recover due to a good source of available propagules and less soil disturbance." In her concluding paragraph, Ms James states that due to its inherent resilience SSTF has the potential to "condition similar to that of pre-clearing, however, this is likely to be limited by dense regrowth of woody shrubs, the extent and depth of mulch applied to the soil surface and lack of weed control during a critical period. Both short-term and long term impacts of the clearing including loss of biodiversity (flora and fauna) and degradation of ... SSTF..." Ms James assessed whether the offence was likely to significantly affect the EEC (a seven part test under the TSC Act) and concluded that there was potentially a significant impact on the SSTF.

20 She made the following findings, amongst others, in conducting the seven part test. Firstly, "[r]egeneration is occurring within the SSTF and a form of the community is expected to persist at the [property] and, therefore, the clearing is unlikely to adversely affect the extent of the community." Secondly, the composition and structure of the SSTF was substantially modified reducing its "capability to recover pre-clearing species diversity and structural complexity. The original community has been replaced by an open and simplified environment with limited micro-climate and niche availability of plant and animal species. Resilient woody shrubs frequent at the [property] prior to clearing ... are likely to return at even greater intensities. Condition of the vegetation prior to clearing has been assessed as moderate to good ... Although SSTF at the [property] has been substantially and adversely modified, the local occurrence is unlikely to have been placed at risk of extinction."

21 Thirdly, "[a]lthough regeneration is occurring it will be several years before reasonable structure and complexity is re-established and some permanent damage is likely. High intensity clearing is known to result in reduced diversity as sensitive species are lost and the more resilient increase in frequency and cover ... Such loss of habitat is likely to be permanent unless a good tree canopy is allowed to re-establish ... SSTF at the [property] pre-clearing provided habitat for many plant and animal species including habitat for threatened species ..." Fourthly, "[t]he 2009 clearing has slightly increased fragmentation of SSTF in the north-east of the [property] with greater disconnection now between the main remnant (on the [property]) and similar vegetation on the adjoining block. This is of particular concern as the area is part of an important biodiversity corridor linking the Georges and Nepean Rivers ..."

22 Fifthly, "SSTF present at the [property] is one of the largest and most intact remnants in the local area and within a key biodiversity corridor linking the Georges and Nepean Rivers. It is critical to the long-term survival of the ecological community within this biodiversity corridor as well as to the corridor itself ... SSTF at the property provides potential habitat for several threatened flora and fauna." Sixthly, the offence comprises a key threatening process. Other threatening processes that are likely to have increased as a result of the offence include, among others: invasion by exotic perennial grasses, invasion and establishment of exotic vines and scramblers, loss of hollow trees, and removal of dead wood and dead trees.

Ms Byrne

23 In her affidavit dated 20 December 2011, Ms Byrne states that she has been employed as a regional operations officer by the OEH since 1 May 2008. On 26 August 2011 she drove along Leafs Gully Road, parked near the property, and took photographs from the property boundary. One of the photographs Ms Byrne took (exhibited to her affidavit in JRB-50) shows six cattle grazing vegetation on the property.

Mr Winch

24 The affidavit of Mr Winch dated 25 November 2011 states he has been employed as a tree management officer by Campbelltown City Council since June 1987. He is a certificate IV arborist and holds a certificate in horticulture and claims expertise in horticulture and in the identification and cultivation of native plants. In response to an email received on 11 August 2009 from the DECCW (as it was then known) regarding clearing, Mr Winch carried out an inspection of the property with another Council officer, on 12 August 2009. During the inspection Mr Winch observed that there had been complete devastation of the vegetation, there were cleared trees, undergrowth and debris in piles and windrows across large sections of the property, and there were felled trees and debris in the creek. Based on these observations, Mr Winch concluded that large scale clearing works had recently taken place on the property.

Records of interview

25 The Prosecutor also tendered Mr Steven Cenatiempo's records of interview (ROIs) with officers of the OEH dated 27 January 2011 and 31 May 2011 (exhibit E). Mr Cenatiempo's ROI dated 27 January 2011 records that he was cautioned and that he objected to answering any questions on the ground that it might incriminate him. Mr Cenatiempo said he attended the interview as the nominated representative of the Defendant and that he has been a director for 15 to 20 years. He said if the role of day-to-day management of the property "had to fall on somebody" it would be him but he did not manage it on a daily basis. Mr Cenatiempo said he had responsibility for authorising work to be done on the property but if other directors wanted work done on the property, they would not have to ask him. He became aware of the clearing after receiving a telephone call from the Council. Afterward he inspected the property and observed that some (approximately 6 to 20) trees had been "pushed over". He did not authorise anyone to "push over" vegetation on the property and was not aware of anyone else in the company who would have authorised such action. Mr Cenatiempo said anything the Defendant did had always been done with development consent and they contacted "council to try to rectify the problem" and spent over "$20,000 on reports on how to fix the problem". Mr Cenatiempo knew the Defendant needed development consent to remove a tree in the way on a construction site which is what they did before touching trees on the Blaxland Road site where there were trees that were "in a pretty dangerous situation".

26 In his ROI dated 31 May 2011 Mr Cenatiempo stated he was unaware of clearing taking place before receiving the telephone call from Council. He denied that the clearing had been undertaken for grazing purposes, as stated in the report by Anderson Environmental Consultants dated January 2010.

Defendant's evidence

27 The Defendant relied on fresh evidence not before me in Kyluk (No 3). The Defendant tendered media articles printed on 6 February 2014 from the Sydney Morning Herald website titled "Developer fined for clearing koala habitat" dated 23 March 2013, the Campbelltown-Macarthur Advertiser titled "Landmark clearing penalty over Appin land" dated 27 March 2012 and Koalaland titled "Developer fined for clearing koala habitat" dated 28 March 2012 (exhibit 1).

28 The Defendant read the affidavit of Dr Rodney Armistead, ecologist, affirmed 2 June 2014 attaching his curriculum vitae (annexure A) and his expert report prepared on 2 June 2014 (annexure B). Dr Armistead states in his report that his survey verified the National Parks and Wildlife Service (NPWS) mapping conducted in 2002 identifying the presence of moderate to good quality SSTF at the study area in Fig 1 of his report, an identified area along the creek line. The vegetation in the study area was generally structurally rich and contained SSTF species (predominantly high sandstone influence) including eucalyptus punctata and E. crebra in the tree canopy, kunzea ambigua, acacia trinervata and bursaria spinosa in the shrub layer, pratia purpurascens, dichondra repens and microlaena stipoides in the ground layer.

29 The Defendant also tendered a copy of Fig 1 in Dr Armistead's report superimposed with the agreed cleared area of SSTF EEC delineated in exhibit G (exhibit 2).

30 The Defendant read the affidavit of Mr Paul McGirr, solicitor for the Defendant, sworn on 2 June 2014. Mr McGirr states the costs and disbursements paid by the Defendant to McGirr Lawyers in relation to the original hearing totalled $189,562.10 for legal costs and experts' fees (par 2). The costs and disbursements paid by the Defendant to McGirr Lawyers in relation to the proceedings before the CCA were $68,244.25 on account of legal costs and disbursements (par 3). The total amount spent by the Defendant on both proceedings was $257,806.35 (par 3).

31 The Defendant read the affidavit of Mr Steven Cenatiempo sworn on 2 June 2014. He is a director of the Defendant and has been since the incorporation of the Defendant (par 1). Mr Cenatiempo did not witness any clearing on the Defendant's land in 2009 (par 2). When the Defendant had been charged and he was satisfied of the incident, he instructed the Defendant's solicitor to enter a guilty plea as soon as practicable (par 3). Mr Cenatiempo expressed contrition on behalf of the Defendant for the offence (par 4). It was never the intention of the Defendant to contravene any environmental legislation and the Defendant wishes to apologise for causing any environmental harm (par 5).

32 Mr Cenatiempo states that the main reason for clearing the property was for fire hazard reduction and afterwards it was intended to graze a small herd of cattle on the cleared land (par 6).

33 Mr Cenatiempo states measures taken by the Defendant to ensure that it does not offend environment protection laws include resolving that all work, whether pastoral, agricultural or domestic, proposed to be carried out on the property be first disclosed to the Defendant's solicitors for their advice as to the relevant controls and no such work is to be carried out without a clear statement from the Defendant's solicitors that the work is lawful (par 7).

34 Since the clearing in 2009 no work has been done in relation to the vegetation on the property. The area has been allowed to regenerate (par 8). Mr Cenatiempo had a 5 ha area along the creek line surveyed by R S Canceri Pty Ltd which was annexed to his affidavit (par 9). Mr Cenatiempo also attached photographs 1 to 7 which he took on 28 and 29 May 2014 of regenerated vegetation along the main creek line (par 10). Mr Cenatiempo observes that the area of the main creek line is now in a similar condition to that before the clearing and that most of the mulch has become integrated with the ordinary leaf litter (par 11).

35 Mr Cenatiempo gave oral evidence. In examination in chief Mr Cenatiempo stated that he took the photographs attached to his affidavit and that he had been involved in discussions concerning the agreement reached of the SSTF EEC cleared area delineated on exhibit G. He stated that photographs 1, 2 and 3 were taken in the area delineated in exhibit G. Photograph 4 was taken on the edge of the area delineated in exhibit G moving south. Photographs 5 and 6 were taken outside the area delineated in exhibit G.

36 In cross-examination regarding photographs 1 to 3 Mr Cenatiempo stated that the area has regrown with saplings, shrubs and smaller trees. The other larger trees were not felled. Concerning par 8 of his affidavit Mr Cenatiempo stated that the property has been left to regenerate on its own, no work has been done on it including no weed control. From September 2012 cattle were reintroduced onto the property, were free to roam and the area was not fenced. Mr Cenatiempo did not witness the clearing in 2009 and was a director of the Defendant at the time. The Defendant is a family business. He does not know who directed the clearing, it was not him. The reason for the clearing was fire hazard reduction. There was no direction by the Rural Fire Service to clear the property. The Defendant raised cattle on the property before 2009. There were no cattle on the property during the clearing.

37 In re-examination Mr Cenatiempo stated that the date cattle were reintroduced onto the property was 9 September 2012. It was a good season for grass that year and the previous year. The cattle graze mainly on grass, Mr Cenatiempo has not seen the cattle graze on anything but grass. Mr Cenatiempo does not know for sure who ordered the clearing. He believes that it was his father, who has since died. His father would not discuss the clearing. Prior to the clearing Mr Cenatiempo and his father had discussed the risk of bushfire but had not resolved to do anything.

Purposes of sentencing

38 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) states the purposes for which the Court may impose a sentence on a defendant as:

(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.

39 The Court must apply the instinctive synthesis approach to sentencing by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] unanimously following Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant: see Veen v R [1979] HCA 7; (1979) 143 CLR 458 at 490; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 - 473, 490 - 491. The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Veen (No 2) at 472, 485 - 486, 490 - 491, 496; Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

40 The Court may take facts into account in a way that is adverse to the Defendant's interest if they have been proved beyond reasonable doubt. It may take facts into account in a way that is favourable to the Defendant if they have been proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27].

Objective seriousness of the offence

Nature of the offence

41 The statutory scheme giving rise to the offences should be considered in light of the objects of the NPW Act and the TSC Act given the link between the two schemes with the listing process for EECs in the TSC Act and the offences for harming these specified in the NPW Act. The Prosecutor's submissions are accepted and are as follows.

42 The objectives of the NPW Act and TSC Act are given effect by Pt 8A of the NPW Act which creates a range of offences relating to threatened species, populations and ecological communities, and their habitats. Part 8A of the NPW Act plays an important role in the statutory scheme created under the NPW Act and TSC Act, which aims to conserve threatened species, populations and ecological communities, and their habitats by:

(a) identifying and listing species, populations and ecological communities that are threatened (Pt 2 of TSC Act and Sch 1 of the TSC Act);

(b) identifying and listing threatening processes that have the capability to threaten the survival or evolutionary development of species, population or ecological communities (Pt 2 of TSC Act and Sch 3 of the TSC Act);

(c) identifying habitat that is critical to the survival of endangered species, populations and ecological communities and declaring the habitat as critical habitat (Pt 3 of TSC Act);

(d) preparing recovery plans for threatened species, populations and ecological communities (Pt 4 of TSC Act);

(e) preparing threat abatement plans to manage key threatening processes to abate, ameliorate or eliminate the adverse effects of key threatening processes on threatened species, populations or ecological communities (Pt 5 of TSC Act)

(f) prohibiting damage to threatened species, populations or ecological communities except in certain limited circumstances (Pt 8A of NPW Act);

(g) relaxing the prohibition where a person has, following the carrying out of an environmental impact assessment, applied for and obtained approval from a competent regulatory authority authorising the damaging of the threatened species, population or ecological community (Pt 8A of NPW Act).

43 In determining the objective seriousness of an offence, it is relevant to consider the degree to which an offence undermines the legislative objectives. The Defendant's actions in picking plants that formed part of the SSTF EEC:

(a) Undermined the objects of the NPW Act and TSC Act, which aim to conserve nature (which includes habitat, ecosystems, ecosystem processes, biological diversity at the community, species and genetic levels).

(b) Undermined the statutory scheme that provides for the conservation of EEC. In this regard, the courts have stated that offences of this type, which by their nature undermine the integrity of the regulatory system, have been treated by sentencing courts as objectively serious (see Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [55]).

Maximum penalty

44 In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701:

The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided...

..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

45 The maximum penalty is $220,000 (2,000 penalty units) or imprisonment for two years or both, and an additional $11,000 (100 penalty units) for each plant picked. As submitted by the Prosecutor, this maximum penalty demonstrates the seriousness with which Parliament views such an offence. By prescribing an additional penalty for each individual plant harmed, Parliament has indicated that the objective gravity of the offence increases with the number of whole plants affected by or concerned in the action constituting the offence (Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [91] - [96]). I note that the Prosecutor has not adduced evidence establishing beyond reasonable doubt the number of plants of SSTF picked.

46 Offences must be assessed as to their level of criminality so that the relative seriousness is determined in relation to the worst case for which the maximum penalty is provided, see Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312.

47 Section 194(1) of the NPW Act specifies matters to be considered when imposing a penalty.

Environmental harm s 194(1)(a)/significance of EEC s 194(1)(b)

48 Section 194(1)(a) refers to the extent of harm caused or likely to be caused by the commission of the offence. As the significance of the EEC is relevant to s 194(1)(b) and informs the level of harm in subsection (a) I will consider these two subsections together.

49 The Prosecutor submitted that the offence occurred in the context of the clearing of a total of 12.54 ha of vegetation consistent with the floristic composition set out in the Final Determination for SSTF EEC as found in the evidence of Ms James. The clearing beyond the area of 5 ha of SSTF should be considered when assessing the harm caused by the offence. Harm is broader than actual harm and includes the potential risk of harm, Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. Harm needs to be considered in its spatial and temporal ambit so that the longer the harm continues the more serious the harm per R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13 at [17]. Likely harm means a real or not remote chance or possibility regardless of whether it is less or more than a fifty percent chance per Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44]. Actual harm was caused as there was clearing, damage and modification to trees, shrubs, grasses, groundcovers, herbs and soil forming part of the SSTF EEC across 5 ha. The exact number of trees cleared is unknown but large scale clearing occurred. The loss to the structure and ecological function of the SSTF EEC at the property is substantial. Ms James evidence is that it is likely to take up to 20 years for the SSTF to be restored to complex ecological function (TAJ-5 at 5.3.1 and 7.5). Weed species have increased at the property within the SSTF EEC and beyond (TAJ-5 at par 5.3.3, TAJ-7 at par 4.2.2 and 4.2.3). Habitat in the Gilead area has been reduced by the removal of vegetation and bush rock (TAJ-5 par 5.3.2 and table 3, TAJ-7 par 4.3 and par 5.4.2(c)(iv) of appendix 1). The hydrology and drainage along the creek line within the SSTF EEC has been modified (TAJ-5 par 5.3.4). The clearing resulted in further fragmentation of the SSTF EEC exacerbated by the removal of the surrounding vegetation (TAJ-7 par 5.4.2(d)(iv)-(v) of appendix 1). Potential for harm arises because of the potential for harm to the flora and fauna species that have an ecological relationship with SSTF EEC (TAJ-7 par 5.4.2(d)(v) of appendix 1 and TAJ-5 par 7.4) and to the surrounding 7.54 ha of land previously vegetated by species consistent with SSTF including through the spread of exotic species (TAJ-5 par 5.3.4 and 7.5). Soil erosion could also be caused (TAJ-7 par 5.4.2(c)(iv) appendix 1).

50 The Defendant submitted that the only area the Court can consider is the 5 ha of SSTF EEC agreed by the parties, not the wider area of 12.54 ha still contended to be relevant by the Prosecutor. The clearing occurred five years ago so that any potential harm must have manifested itself as actual harm by now. The potential for harm was in the loss of habitat for species and erosion, in relation to which measures were implemented. The evidence of Dr Armistead is that the SSTF EEC species regenerating are of moderate to good quality. There is no evidence that potential for harm has been realised. Substantial habitat remains as seen in the photographs taken by Mr Cenatiempo. There is evidence of beneficial regrowth from Dr Armistead in the study area along the main creek line which includes the area agreed to be cleared SSTF EEC in exhibit G. Mr Cenatiempo says the area is now in similar condition to that occurring before the clearing work was conducted.

51 The Defendant also submitted that Ms James said that "the main creek line ... has a stronger sandstone influence [than adjoining land which is SSTF] and is not directly comparable to it" and she assumes that its pre-clearing condition was "moderate to good". Further, she says that regeneration and recovery of the SSTF is "likely" to "regenerate and recover sufficiently over 5-20+ years to re-establish" in the absence of further clearing (TAJ-7 par 3.3.1, 4.1, 4.2). Ms James also says that the presence of high density shrubs in the area she originally identified is likely to impede regeneration but that the "SSTF area along the main gully [is] less likely to be affected by high density shrubs". The Court should find the area has substantially regenerated and that any harm from clearing was short-lived.

Finding on harm/ significance of EEC cleared

52 Harm is defined in the NPW Act in the context of harm to an object or place which is not a definition directly relevant to the consideration required under s 194. Given the similarity in wording between s 194(1)(a) and s 241(1)(a) of the Protection of the Environment Operations Act 1997 (the PEO Act) with the former introduced as part of Pt 15 to make offences under the NPW Act "broadly consistent" with Pt 8 of the PEO Act (according to the explanatory notes for the National Parks and Wildlife Amendment Bill 2010), I consider the interpretation of "harm" in PEO Act prosecutions should apply to NPW Act prosecutions. As submitted by the Prosecutor, "harm" has been considered in a number of cases indicating that the concept is broad and not confined to actual harm but includes the potential risk of harm. Preston J in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 229 stated at [145] - [147]:

Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.

Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174].

Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously.

53 The Scientific Committee's Final Determination to list the SSTF as an EEC in 1998 states in par 15 that the small size of the remaining remnants and the threat of further clearing and other threatening processes mean that this EEC is likely to become extinct unless these threatening processes cease. The listing of SSTF as an EEC alone confirms its significance (see also Garrett v Williams [2007] NSWLEC 56 at [26]). It was listed as endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in 2001.

54 Further the affidavit evidence of Ms James attests at par 16 to the significance of the SSTF, its extent in the Sydney basin and places the area cleared in this context. Only four per cent of SSTF is protected on the OEH estate. Her evidence also confirms the loss in this locality is significant (at par 21 - 22). She states that the SSTF at the property was "one of the largest and most intact remnants in the local area", that it is "significant within a key biodiversity corridor linking the Georges and Nepean Rivers", and that "it is critical to the long-term survival of the ecological community within this biodiversity corridor as well as to the corridor itself". Ms James states that the clearing increased fragmentation of SSTF and disconnection between the main remnant of SSTF on the property and vegetation on adjoining land. The SSTF also "provided habitat for many plant and animal species including habitat for threatened species".

55 While I am considering 5 ha of EEC cleared rather than 12.54 ha that is still a substantial area of EEC cleared given its paucity and the risk of extinction due to fragmentation. That risk is exacerbated by the Defendant's clearing. While Ms James' evidence was prepared in the context that she considered 12.54 ha of EEC had been cleared I do not consider that undermines her evidence as to the environmental significance of the SSTF EEC in general. The clearing of the SSTF by the Defendant was an identified key threatening process in the Final Determination of the Scientific Committee.

56 Actual harm was caused at the time of the clearing given the level of destruction which took place in the agreed 5 ha of EEC. This is reflected in the SOAF at par 18 and 20 and par 7.1-7.3 of TAJ-5 which refer to clearing and damage to trees, shrubs, grasses and groundcovers, herbs and soil forming part of the SSTF EEC. The issue in relation to actual harm is whether this is long term. The Defendant's submission that any harm was potential only because the area would and is regenerating does not recognise the nature of harm arising immediately from clearing with the destruction of aspects of the ecological system that existed prior to the clearing. Until the EEC has fully regenerated which Ms James estimates will occur over 5 to 20 years environmental harm continues as a result of this offence. The Defendant's argument is based in large part on the natural ability of the SSTF to regenerate as I considered in Kyluk (No 3) at [148]. As I identified in the context of damage to fish habitat offences under the Fisheries Management Act 1994 in Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227 such an interpretation does not achieve the objects of the TSC Act and NPW Act which are aimed at the preservation of EEC, inter alia, as already identified above at par 5 and 8.

57 As the Prosecutor submitted, there is also potential harm because the clearing has the potential to cause indirect harm to flora and fauna species that have an ecological relationship with the SSTF EEC, at 5.4.2(d)(v) of Appendix 1 to TAJ-7 and par 7.4 of TAJ-5. There is also potential for indirect harm to the surrounding 7.54 ha of land that was previously vegetated by species consistent with SSTF, including through the spread of exotic species (par 5.3.4 and 7.5 TAJ-5). There was also potential for soil erosion on the disturbed land exposed by the clearing (par 5.4.2(c)(iv) Appendix 1 TAJ-7), although it appears to be accepted by the Prosecutor that measures to reduce erosion were implemented by the Defendant.

58 Ms James' evidence of harm identified in TAJ-5 and TAJ-7 was based on visits to the cleared area in 2009 and 2010. Some five years have passed between the clearing in 2009 and this sentencing process. There is now evidence before the Court of regeneration in the agreed area of 5 ha of SSTF EEC as detailed in the report of Dr Armistead and the affidavit and photographs of Mr Cenatiempo. The agreed area of cleared SSTF EEC of 5 ha is 60 per cent less than the area of 12.54 ha considered in Kyluk (No 3). The Defendant also relied on Ms James' evidence in TAJ-7 in relation to the SSTF along the creek line being moderate to good before clearing and less likely to be affected by high density shrubs.

59 The Defendant submitted that weed infestation has not taken place as seen in Mr Cenatiempo's photographs essentially seeking to rebut the Prosecutor's submission based on Ms James' observations in 2009 and 2010 of increased weed species at par 5.3.3 of TAJ-5 and par 4.2.2 and 4.2.3 of TAJ-7. Mr Cenatiempo has no qualifications in botany or ecology and his evidence that the area is now similar to before the clearing is at best a lay person's view of bush rather than an informed ecological opinion. That photographs at 1 and 3 attached to the affidavit showing saplings growing does confirm some regeneration is occurring as Dr Armistead's report also states. The photographs do not establish that no weeds are present. Nor can they represent the whole 5 ha area cleared. Dr Armistead does not comment on the presence or absence of weeds at all. In these circumstances I accept Ms James' evidence of the problems caused by weed infestation.

60 I consider substantial environmental harm has been caused by the offence albeit less than in Kyluk (No 3) given the smaller area of SSTF EEC to be regarded as cleared. That harm is ongoing but will diminish over the next fifteen years if the regeneration of the EEC continues successfully given the estimation of up to twenty years being required for complete regeneration to occur. I do not consider I can accept the Prosecutor's submissions that a further 7.54 ha of EEC like vegetation has been cleared as relevant to the consideration of environmental harm caused given the state of the evidence following Kyluk CCA and the agreed facts which are the basis for this sentencing matter.

Section 194(1)(c) practical measures that may be taken to prevent harm/s 194(1)(d) foreseeability of harm

61 The Prosecutor submitted that there were clearly practical measures which could and should have been taken, namely making proper inquiries, to avoid the harm and that consequently the harm was foreseeable. In Kyluk CCA the Court held at [130]:

Section 194(1)(d) is neither exclusively dependent upon the actual knowledge of an offender nor the objective circumstances of the offending. The question that must be asked is to what extent (if any) a reasonable person in the position of the offender could have foreseen the harm caused or likely to be caused by the commission of the offence?

62 It is necessary to evaluate the Prosecutor's submissions in relation to s 194(1)(c) and (d) together in light of the above finding of the CCA in relation to s 194(1)(d) because the Prosecutor essentially relied on the same possible preventative actions for both subsections.

63 I considered this question in Kyluk (No 3) at [120] in relation to the Defendant's state of mind (whether intentional, reckless or negligent behaviour resulted in the offence) and at [103] in relation to s 194(1)(c) and did not accept the Prosecutor's similar submissions in relation to either issue. The Prosecutor has essentially repeated its earlier submissions but agreed in the course of the hearing that on the present evidence before the Court it was not able to satisfy the test identified by the CCA in Kyluk CCA at [130] in relation to whether the harm was foreseeable by establishing circumstances suggesting that the Defendant or a reasonable person in its position should have made inquiries of relevant authorities before clearing. It follows that I cannot find, given the evidentiary vacuum, that the Defendant failed to implement a practical measure of making inquiries before the clearing.

64 I know nothing about the circumstances of the picking of EEC beyond the SOF. Paragraph 56 of the SOF records that Mr Cenatiempo stated he had no knowledge of the clearing taking place on the property and did not know why clearing had occurred. This was confirmed in his oral evidence. In these circumstances the Prosecutor bears the onus of proof, to the criminal standard, of facts which would support the submission that this Defendant failed to make inquiries per R v Olbrich and there is no such evidence.

65 This conclusion is underlined by the need to apply the test identified by the CCA at [130] in relation to subsection (d). For example, the Prosecutor submitted in support of its arguments that studies had been done to identify the EEC on the property by the NPWS and DECCW (par 4.3, 4.9 TAJ-5). No information is supplied by the Prosecutor of whether these studies were publicly available or disseminated to the public so that it could assert they were before the public in a manner which suggested that a reasonable person should have been alerted to the need to make inquiries. While ignorance of the law is no excuse, that is not in issue in this context. The Prosecutor asks the Court to find there is duty on landholders to make inquiries without adducing any evidence to support a submission that a reasonable person in the Defendant's position could be expected to do so.

66 The steps taken after the clearing to mitigate harm should also be considered in relation to s 194(1)(c). Following the clearing, the Defendant undertook such mitigating steps as spreading mulch to reduce possible erosion as identified in the Anderson Environmental Consultants' reports (SOF par 57 - 58, attachments 25 - 28). These reports and actions were prepared and taken in response to a statutory notice issued by Campbelltown City Council to the Defendant.

Section 194(1)(e) extent of control of Defendant

67 The Defendant company is the owner of the land and one of its directors Mr Cenatiempo was responsible for managing the property. It had control over the activities on the property which gave rise to the offence.

Section 194(1)(h) offence committed for commercial gain

68 The Prosecutor emphasised that the offence was committed for commercial gain, a relevant factor referred to in s 194(1)(h), being to enhance the grazing use of the property and relied on Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [11] - [12].

69 As the Defendant submitted the evidence demonstrates that the main reason for the clearing was the reduction of fire hazard, as stated by Mr Cenatiempo in his ROI (SOF par 22) and in his affidavit in par 6.

70 I accept the Defendant's submissions at par 15 of its counsel's written submissions that clearing on agricultural land is not invariably motivated by commercial purposes. The evidence does not establish that, although grazing was intended to occur on the property at some stage after the clearing, commercial activity was the reason for the clearing work (see Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwood Sales Pty Ltd [2012] NSWLEC 52 at [33], [35]).

Defendant's state of mind

71 The offence is one of strict liability. The Defendant is a corporation so that its state of mind must be determined by considering those in the company who are its directing mind, here Mr Cenatiempo who represents the Defendant as its director. As submitted by the Prosecutor, the Defendant's state of mind can be relevant to assessing the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed (Rae at [42]; Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and [356]; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [75]). The precise circumstances surrounding the offence are unknown. The SOF does not identify the person who undertook the clearing on behalf of the Defendant or how the clearing came about. Mr Cenatiempo does not say how it came about in his affidavit and in oral evidence said he did not know who caused the clearing to happen but it may have been his father who is now deceased. He agreed there was no direction from the Rural Fire Service to clear the land for bushfire hazard reduction purposes. The Prosecutor submitted that inquiries should have been made before clearing was commenced by someone on the Defendant's behalf and the failure to do so was negligent (inadvertent) or possibly reckless (advertent). Reliance was placed on Mr Cenatiempo's statement in an ROI that he was aware that council permission was required for the removal of trees because of a tree preservation order in a development consent context. The Defendant's counsel submitted this could not be relied on to infer that he was aware that tree clearing on a rural property required consent. I have referred to the issue of whether inquiries should have been made above at par 63. My finding in Kyluk (No 3) at [120] continues to apply and I repeat it.

72 In Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 I held that the failure to make inquiries absent any evidence from the Prosecutor establishing that the landholder not making inquiries was taking the risk of committing an offence inadvertently, and was not negligent. I held similarly in Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 at [39] - [42]. Having given this matter further consideration, I consider that in theory landholders of rural property undertaking land clearing of native vegetation are negligent if they fail to make proper inquiries about whether proposed clearing is permissible. This SSTF has been listed as an EEC under the TSC Act since 1998 and picking prohibited since then. Section 12(1) of the Native Vegetation Act 2003 which came into force in December 2005 prohibits clearing native vegetation and a similar offence existed since January 1998 in the Native Vegetation Conservation Act 1997 (repealed). There have been a number of prosecutions and publication orders made by this Court in land clearing offences under the NPW Act and native vegetation protection legislation. In order to make a finding of negligence or recklessness however there must be some awareness of the fact of clearing on the part of the person charged to underpin a finding of failure to make inquiries. There is none identified in this case. Knowledge of tree preservation orders by Mr Cenatiempo does not fill that gap for the Prosecutor. There is no evidence brought forward by the Prosecutor to establish intentional action, negligence or recklessness in this case.

Finding on objective seriousness

73 Mr Winch's evidence is that large scale clearing occurred. Ms James evidence identifies the extensive nature of the clearing that she examined. Clearing 5 ha of SSTF EEC resulted in substantial environmental harm in the short term which harm will continue in the timeframe of 5 to 20 years identified by Ms James until the area has been remediated satisfactorily. The circumstances are at the high end of the low range of objective gravity for this kind of offence.

Other sentencing considerations

General deterrence

74 Section 3A(b) of the CSP Act states that one of the purposes for a court in imposing a sentence is to prevent crime by deterring offenders. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359:

The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

75 This has been identified as an important consideration in offences of this kind. See Bentley v BGF Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139] - [144]; Rae at [9] - [13]; Calman at [51] - [52]; Rawson at [173].

Specific deterrence

76 The Prosecutor submitted there is a strong need for specific deterrence as the Defendant continues to own the property and is engaged in purchasing and managing commercial and rural properties (SOF par 4 and 5). The Defendant submitted that the Defendant is a family company where the controlling mind of the company Mr Cenatiempo has been deterred by the charge of this offence. It was submitted that there was no need to amend corporate procedures and policies, which is what specific deterrence for companies was intended to achieve.

77 Despite being the operational director and manager of the Defendant's properties Mr Cenatiempo was unable at the time of the offence and in his evidence for this sentencing hearing to state how the clearing came to take place. This suggests changes do need to be made by the Defendant if another offence is to be avoided. There is need for specific deterrence given these circumstances but I take into account also that practical measures have been put in place to prevent the possibility of any further offence. Any clearing proposals will first be checked with the Defendant's solicitors.

Subjective circumstances

78 Section 21A(3) of the CSP Act specifies mitigating factors that are to be taken into account pursuant to s 21A(1)(b) where these are relevant and known to a court.

Guilty plea CSP Act s 21A(3)(k), s 22

79 An early plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10 - 25 per cent: R v Thomson; R v Houlton 92000] NSWCCA 309; (2000) 49 NSWLR 383, R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300.

80 The Defendant submitted a plea of guilty was entered at the earliest opportunity suggesting the maximum discount in penalty should be considered. The plea of guilty at that stage did not necessitate the preparation of more evidence by the Prosecutor as that had to be prepared in any event. The Prosecutor pointed to the plea of guilty being entered at the hearing as suggesting that an early plea was not entered and the maximum discount was not therefore warranted. I considered various authorities and the progress of this matter up to the plea of guilty in Kyluk (No 3) at [126]-[135] and concluded that a 15 per cent discount was warranted. For the reasons already given in that judgment I consider that discount is appropriate.

Not a planned activity CSP Act s 21A(3)(b)

81 The Defendant submitted that the offence was not a planned or organised activity, a mitigating factor referred to in s 21A(3) of the CSP Act.

No prior convictions CSP Act s 21A(3)(e)

82 The Defendant submitted that it had no prior convictions and this is not disputed by the Prosecutor.

Unlikely to reoffend CSP Act s 21A(3)(g)

83 Mr Cenatiempo attests in his affidavit to the future measures to be taken by the Defendant before undertaking any further clearing, namely getting advice from the Defendant's solicitors. Given this evidence I consider it is unlikely the Defendant, a family company, will reoffend.

Remorse and contrition CSP Act s 21A(3)(i)

84 Mr Cenatiempo attests to the expression of remorse on behalf of the Defendant in his affidavit at par 4-5. The Defendant has also agreed to the area of 5 ha cleared and its location on the property, another indication of remorse demonstrated through action. I agree with the Defendant's counsel that the Prosecutor would have had difficulty establishing the area of SSTF EEC cleared on the basis of the evidence before the Court as a result of Kyluk CCA. This also demonstrates remorse.

Delay in sentence

85 The Defendant submitted the Court must take into account that it is sentencing for an offence which occurred some five years ago and is stale. The Court must take into account the rehabilitative effect on the company of the delay, which is not in any sense attributable to any fault on its part: see Bell v R (1981) 5 A Crim R 347; Duncan v R (1983) 47 ALR 746 at 749; R v Todd [1982] 2 NSWLR 517 at 519-520 (see most recently, Giourtalis v R [2013] NSWCCA 216 at [1784]).

86 Bathurst CJ cites Todd in Giourtalis at [1784] as follows:

... the well-known passage from the judgment of Street CJ in R v Todd (1982) 2 NSWLR 517 at 519-520, approved by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59:

" ... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

87 Further, Bathurst CJ at [1790] quoted with approval Buss JA in R v Scook [2008] WASCA 114; (2008) 185 A Crim R 164, a case involving market manipulation in contravention of s 998(1) of the Corporations Act 2001 (Cth), as follows:

[57] The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA. ...

[58] First, delay is not, of itself, a mitigating factor.

...

[61] Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.

[62] Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.

[63] Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:

(a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or

(b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.

[64] Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.

[65] The guiding principles I have stated are not intended to be exhaustive or inflexible.

88 The applicability of such a principle to corporate defendants is unclear. All the cases cited above deal with individual defendants in which context the principle is more readily applicable. In any event, as identified at [58] of Scook, delay alone is not a mitigating factor. The delay in this sentencing matter arises from the normal operation of the criminal justice system, which alone is not a mitigating factor according to Scook at [61]. In relation to [62] of Scook, what rehabilitation of the Defendant could be adversely affected by the delay in sentence is not apparent. After taking initial mitigation measures which were ordered to be done, the Defendant has not undertaken any further mitigation measures for example. None of the matters in [63] and [64] of Scook apply here. I do not consider this is a relevant factor in sentencing this Defendant.

Costs incurred by Defendant

89 The Defendant submitted that the costs incurred by the Defendant to date as outlined in Mr McGirr's affidavit are very substantial and represent a penalty which is already punitive and acts as a deterrent. I have no information about the financial position of the Defendant against which to weigh up the large legal fees incurred in this matter and therefore whether they are a deterrent to this corporate defendant. The Defendant submitted that I took this matter into account in Ianna. The facts of that case were markedly different and I had evidence of Mr Ianna's limited financial means before me. I do not consider this is a relevant factor in sentencing in this case.

Evenhandedness

90 A principle of sentencing is consistency of sentencing where like cases receive like penalties. Consideration of similar cases can be of assistance in informing the range of penalty which is appropriate, subject always to the need to consider the individual circumstances of a particular case. A sentence in one case does not demonstrate the limits of sentencing discretion: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54].

91 The Prosecutor provided a table of cases and I referred to a number of these in Kyluk (No 3) at [143] which I adopt again here and do not therefore need to set out. Additional cases decided more recently since the introduction of amendments to the NPW Act providing for the making of additional orders over and above penalty follow.

92 In Coffs Harbour the offence charged under s 118A(2) was the picking of 21 Newry Golden Wattle plants, a threatened species. There was also an offence against s 156A(1)(b) of damaging vegetation on or in land reserved under the Act or acquired under Pt 11 of the NPW Act. A fine of $45,000 was imposed with prosecutor's costs of $26,000 for the s 118A offence and a fine of $40,000 for the s 156A (offence of damage to reserved land, with greater penalty (five times) of 10,000 penalty units for a company than s 118A). A remediation order (estimated at $12,500-$17,500) and a publication order were made. The penalty was apportioned between s 118A and s 156A offences. It was originally fixed at $120,000 but reduced due to mitigating factors to $85,000.

93 Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 involved two offences under s 118A of picking plants of endangered species by a council in which the first offence concerned the picking of 76 plants of the species grevillea obtusiflora and the second offence concerned the picking of one plant of the species phebalium bifidum. A total fine of $105,000 was imposed, $90,000 for the first offence and $15,000 for the second offence, plus costs of $25,000. A publication order was made. The penalty was reduced by 25 per cent for a guilty plea.

94 Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 clearing affected between 210 and 260 plants of an endangered species, an offence under s 118A. The offence was held to be of low objective gravity. A fine of $37,500 was imposed plus the prosecutor's costs of $19,911.82, and a publication order made. There was a 25 per cent discount for a guilty plea.

95 The size of the area of EEC cleared of 5 ha in this case is substantial and generally much larger than the cases summarised above. While the number of trees cleared cannot be determined precisely, as identified in Garrett v Williams [2007] NSWLEC 56 at [53] by Lloyd J, that should not be a basis for avoiding a penalty of sufficient severity given Mr Winch's evidence that large scale clearing occurred and Ms James' evidence of the nature of the clearing that she examined.

Remediation order warranted (s 200 NPW Act)

96 Under s 199 one or more orders under Div 3 of Pt 15 can be made (subsection (1)) and can be imposed in addition to a penalty (subsection (2)). Orders for restoration can be made under s 200. The Prosecutor submitted that a remediation order is warranted in light of Ms James' evidence and should extend over the 12.54 ha of cleared land referred to in her evidence. This is said to be necessary to ensure the remediation of the 5 ha SSTF EEC area cleared within the larger area, to maintain the previous biodiversity corridor and maintain the interconnectedness of the cleared SSTF with its surrounding environment. The regeneration that has occurred is not complete and no effort to control weeds has been made. Positive steps are still required such as active weed management and the exclusion of cattle from the area. The orders ordered previously by the Court should be made.

97 The Defendant submitted that there is no sentencing basis for extending any remediation order beyond the agreed area of 5 ha of SSTF EEC. Further, no remediation order is warranted given the evidence of Dr Armistead that shows current regeneration of moderate to good SSTF species. Weed infestation has not taken place as seen in Mr Cenatiempo's photographs rebutting the need for positive restorative action to achieve some measure of regeneration.

98 The power to make an order under s 200 to address harm caused by an offence is wide. I am not aware of any criminal matter where a remediation order made has extended beyond the area the subject of an offence. I have no difficulty accepting as a practical matter that remediation of an area is facilitated by the management of adjoining land. A different but related regulatory scheme was considered in Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; (2003) 132 LGERA 1. At [86] Talbot J recognised that a direction to carry out remedial work under the Native Vegetation Conservation Act 1997 could expand to cover land immediately adjoining the cleared area if necessary for maintaining the survival of remnant vegetation inter alia. Those were civil proceedings however and different standards of proof apply. Ms James' evidence was prepared on the basis of her understanding that the whole area of 12.54 ha was EEC but that is not a tenable position for the Prosecutor now. That the area of EEC is part of a biodiversity corridor and surrounded with flora consistent with the EEC is referred to in Ms James' evidence but that evidence is not directed to the issue before me in this criminal sentencing matter of what the extent of buffer around the agreed 5 ha area should be. It is unlikely that the Court would order an area of remediation that is greater than the area the subject of the offence in the absence of very clear evidence to establish the need for doing so. Such evidence is not before the Court.

99 I consider the need for a long period of regeneration of the agreed area of EEC cleared is confirmed by Ms James. That the regeneration has started according to Mr Armistead does not mean that it will continue for the necessarily long period of another 15 years (allowing for five years that have elapsed since the offence) without any active management to control weeds or exclude cattle. There is no guarantee that without any active management that the entire ecosystem will regenerate. Dr Armistead does not express a view on that matter. Ms James states that natural re-establishment of the pre-clearing tree cover is not assured unless the property is protected and managed appropriately (above at par 16). I consider the need to implement a remediation order is demonstrated by Ms James' evidence.

100 Clearing is identified as a threatening process in par 14 of the Final Determination and other identified threats include weed invasion and grazing. Paragraph 15 states, "In view of the small size of existing remnants the threat of further clearing and other threatening process, the Scientific Committee is of the opinion that SSTF in the Sydney Basin Bioregion is likely to become extinct in nature unless the circumstances and factors threatening its survival cease to operate and that listing as an endangered ecological community is warranted." Not imposing a restoration order is not consistent with par 14 and 15 of the Final Determination.

101 Substantial environmental harm was caused and to repair that damage a lengthy period of regeneration is necessary. To ensure that SSTF similar to that destroyed re-establishes, active management through weed removal and cattle exclusion is warranted. The area to be remediated must be the agreed 5 ha area shown on exhibit G. The remediation order attached to the Prosecutor's submissions will need to be redrafted accordingly and should run for 15 years.

Publication order not warranted (s 205 NPW Act)

102 The Prosecutor seeks a publication order as provided for in s 205(1)(a) of the NPW Act. There is no indication of where it is proposed that publication take place unlike in Kyluk (No 3) at [154] but I assume the same is proposed. The terms of the proposed order were provided by the Prosecutor. The purpose of a publication order is to alert the public to the offence and to improve the effectiveness of sentences as a deterrent per Environment Protection Authority v Waste Recycling. The Defendant relied on exhibit 1 to assert that the offence has already been well advertised including in the widely circulated Sydney Morning Herald in relation to the earlier quashed sentence. The publicity has fulfilled the objective of making publication orders more effectively than an advertisement.

103 Given the lengthy time since the offence committed in 2009 and the existing media attention given to the matter as found in exhibit 1 I do not consider a publication order is warranted for the reasons given by the Defendant's counsel.

Section 205(1)(d) order

104 The Prosecutor submitted that an environmental services project the same as referred to in Kyluk (No 3) could be the subject of an order under s 205(1)(d) of the NPW Act. The Defendant resisted the making of such an order as the overall seriousness of the environmental harm caused by the offence is much reduced given that 5 ha not 12.54 ha of cleared SSTF EEC is now before the Court. I consider such an order is appropriate.

Legal costs

105 The Defendant accepted it should pay some of the Prosecutor's legal costs as agreed or assessed but only those relating to this sentencing hearing. In other words it should not have to pay the costs arising from Kyluk (No 3). Under s 215(1) of the Criminal Procedure Act 1986 the Court can order such costs are payable if just and reasonable to do so. I will make the limited costs order sought by the Defendant as I consider that is just and reasonable.

Finding on penalty and orders

106 Given the lesser area of SSTF EEC cleared than I considered in Kyluk (No 3) the penalty should be less. The offence nevertheless warrants a sizeable penalty of $100,000 which I will reduce by 20 per cent given the Defendant's plea of guilty and expression of contrition to $80,000. The imposition of a restoration order requiring long term financial commitment by the Defendant is an additional impost necessitated by the need to correct the harm caused by the offence. Instead of imposing a penalty I will impose an order under s 205(1)(d) in the terms outlined in annexure A to this judgment.

Orders

107 The Court makes the following orders:

(1) The Defendant is convicted of the offence pursuant to s 118A(2) of the National Parks and Wildlife Act 1974 as charged.

(2) Pursuant to s 205(1)(d) of the National Parks and Wildlife Act 1974 the Defendant is to pay $80,000 to the Campbelltown City Council for the purposes of the project "Restoration Works at Noorumba Reserve, Gilead Project" as detailed in Annexure A with the timetable for payment to be made within 14 days by agreement or order of the Court.

(3) Pursuant to s 200 of the National Parks and Wildlife Act 1974 the Defendant must carry out restoration works at the property, 561 Appin Road, Gilead, in accordance with Annexure B subject to the amendment of the plan identifying the area to be restored in accordance with exhibit G as referred to at par 101 of this judgment and amendment of the period of remediation to 15 years.

(4) The Defendant is to pay the Prosecutor's costs of this sentence hearing excluding the Prosecutor's costs in relation to Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56 as agreed or assessed.

(5) The exhibits may be returned.

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Annexure A (PDF)

Annexure B (PDF)

 

Decision last updated: 25 June 2014