Land and Environment Court New South Wales

• Medium Neutral Citation: Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102
• Hearing dates: 8 June 2011
• Decision date: 08 June 2011
• Jurisdiction: Class 5
• Before: Pepper J

Decision

The orders of the Court are as follows: 

 

(1) the Forestry Commission is convicted of the offence against s 175(1)(a) of the NPWA as charged;

 

(2) the Forestry Commission is to pay the amount of $5,600 to the Office of Environment and Heritage, Department of Premier and Cabinet for the purposes of the following project, namely, to engaging a consultant or other contractor to undertake the following work at the Smoky Mouse monitoring sites in the South East Forests National Park, as set out in the Smoky Mouse Species Management Plan in the Eden Region IFOA (Forests NSW/SECC, 2008):

 

1. to deploy two to three remote cameras at 15 monitoring sites in September 2011, for a three year period (eight days per annum);

2. to download, assess and collate the camera data for each of the three years (two weeks per annum;

3. to undertake vegetation plot monitoring on three of those sites per year, for three years ( two days per annum); and

4. to provide data entry and analysis of the vegetation plot data (two to three weeks per annum); and

5. the Forestry Commission is to pay DECCW's legal costs agreed in the sum of $19,000.

 

• Catchwords: ENVIRONMENTAL OFFENCES sentence - contravening a condition of a threatened species licence - consideration of objective and subjective factors - likely environmental harm caused by the offence - effect of prior convictions - relationship between guilty plea and expression of remorse
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23; Forestry Act 1916, s 7; Forestry and National Park Estate Act 1998, ss 33, 34, 35; National Parks and Wildlife Act 1974, ss 2A, 133(4), 175, 194, 205(1)(d); Protection of the Environment Administration Act 1991, s 6(2); Threatened Species Conservation Act 1995, ss 3, 10(3)
• Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234; Cameron v R [2002] HCA 6; 209 CLR 339; Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683; Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; 172 LGERA 52; Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; Director-General, National Parks and Wildlife Service v Wilkinson [2002] NSLWEC 171; Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200; Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71; Environment Protection Authority v Hanna [2010] NSWLEC 98; Environment Protection Authority v Huntsman Corp Australia Pty Ltd [2011] NSWLEC 39; Environment Protection Authority v New South Wales (Department of Environment, Climate Change and Water) [2010] NSWLEC 67; (2010) 174 LGERA 19; Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299; Georgopolous v R [2010] NSWCCA 246; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189; Markarian v R [2005] HCA 25; (2005) 228 CLR 357; Mickelberg v R (1984) 13 A Crim R 365; Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246; Morris v Department of Environment and Climate Change [2008] NSWLEC 309; Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; Signato v R [1998] HCA 74; (1998) 194 CLR 656; Veen v R (No 1) (1979) 143 CLR 458
• Category: Principal judgment
• Parties: Director General, Department of Environment, Climate Change and Water (Prosector); Forestry Commission of New South Wales (Defendant)
• Representation: COUNSEL: Mr Andrew Macdonald (Prosector); Mr M R Gracie (Defendant); SOLICITORS: Office of Environment and Heritage, Department of Premier and Cabinet; (Prosector); Forestry Commission of New South Wales (Defendant)
• File Number(s): 50108 of 2011

EX TEMPORE JUDGMENT

Introduction

1 The defendant, the Forestry Commission of New South Wales ("the Forestry Commission") has pleaded guilty to an offence against s 175(1)(a) of the National Parks and Wildlife Act 1974 ("the NPWA"), in that between 29 April 2009 and 21 May 2009 inclusive it contravened a condition attached to a licence ("the threatened species licence") it held under Pt 6 of the Threatened Species Conservation Act 1995 ("the TSCA"), contrary to s 133(4) of the NPWA.

2 Section 133(4) of the NPWA states that:

The holder of a licence or certificate (whether issued under this Act or under Part 6 of the Threatened Species Conservation Act 1995 ) shall not contravene or fail to comply with any condition or restriction attached to the licence or certificate under this Act or Part 6 of the Threatened Species Conservation Act 1995 .

3 Section 175 of the NPWA creates an offence as follows:

175 General offence and penalties

(1) A person who:

(a) does that which by this Act (Parts 2, 3 and 5 excepted) the person is forbidden to do, or

(b) fails or neglects to do that which by this Act (Parts 2, 3 and 5 excepted) the person is required or directed to do,

is guilty of an offence against this Act.

 

4 In pleading guilty to the charge, the Forestry Commission has admitted that during the relevant period it carried out a specified forestry activity, namely, bush fire hazard reduction burning in an exclusion zone, being the Smoky Mouse exclusion zone, in compartment 717 of Nullica State Forest. In doing so, the Forestry Commission breached condition 5.1(a) of its threatened species licence contained in the Integrated Forestry Operations Approval ("the IFOA") for the Eden Region.

5 The Forestry Commission is now before the Court for sentencing.

Factual Background to the Offence

6 The background facts in this matter were not in dispute and were contained in a comprehensive statement of agreed facts with an agreed bundle of documents, which included: a map showing the four coupes of the Nullica State Forest (coupe 1 being the Smoky Mouse exclusion zone); a map showing the Smoky Mouse exclusion zone; a map of the burn plan for compartment 717; a map showing the estimated area burnt in compartment 717; and photographs of the burnt area.

7 In addition, the agreed bundle of documents included a copy of the Eden IFOA (without appendices) as it existed at the time of the offence, a copy of the Smoky Mouse Species Management Plan ("Smoky Mouse SMP") and a copy of the threatened species licence as it existed at the time of the offence.

The Forestry Commission

8 The Forestry Commission is constituted under the Forestry Act 1916. Section 7 of the Forestry Act provides that the Forestry Commission is a corporation.

9 The Forestry Commission is responsible for sustainably managing native and planted forests for a wide range of economic, environmental and social values. The Forestry Commission employs 330 staff who manage approximately 2.1 million ha of public native forests. In 2009 the Native Forests division of the Forestry Commission conducted harvesting operations in 26,000 ha and hazard reduction burning operations in 42,000 ha of public native forests, all of which were subject to TSCA licence conditions.

10 The Forestry Commission conducts forestry operations in the Nullica State Forest, near Eden, under the authority of the Eden IFOA granted under the Forestry and National Park Estate Act 1998 ("the FNPEA"). The forestry operations under the Eden IFOA are subject to the terms of the approval. Such operations under the IFOA are excluded from the requirements of certain environmental legislation.

11 Section 34 of the FNPEA relevantly provides:

34 Approval may set out terms of relevant licence

(1) An integrated forestry operations approval may set out the terms of any relevant licence. If the approval does so, any person carrying out forestry operations covered by the approval is taken to hold a licence in those terms under the relevant Act.

(2) Any such licence has effect, for all purposes, as a licence granted under the relevant Act...

12 Section 33 of the FNPEA provides that a relevant licence includes:

33 Licences to which Division applies

(1) This Division applies to any of the following licences for forestry operations covered by an integrated forestry operations approval:

...

(b) a licence under the Threatened Species Conservation Act 1995 ...

(2) Any such licence is referred to in this Division as a relevant licence .

(3) The Act under which such a licence is granted is referred to in this Division as the relevant Act .

13 Section 35(1) of the FNPEA provides:

35 Enforcement of relevant licence

(1) The terms of a relevant licence set out in an integrated forestry operations approval are to be enforced (subject to this Act) in the same way as any other licence under the relevant Act. However, the terms of a relevant licence set out in an integrated forestry operations approval cannot be varied, and the licence cannot be revoked, under the relevant Act.

Note. A contravention of the terms of a relevant licence makes the person carrying out the forestry operations liable for offences for which the licence provides a defence (eg damage to critical habitat of threatened species under the National Parks and Wildlife Act 1974 ; offence of polluting waters under the Protection of the Environment Operations Act 1997 ).

14 The Eden IFOA, in appendix B, also sets out the terms of the threatened species licence granted under Pt 6 of the TSCA.

Smoky Mouse

15 The now somewhat unfortunately named Smoky Mouse ( Pseudomys fumeus ) is a rare native mouse that was listed as endangered nationally under the Environment Protection and Biodiversity Conservation Act 1999, due to its population and distribution having been reduced to a critical level. In 1995, the Smoky Mouse was listed as endangered in New South Wales in Sch 1 of the TSCA. The Smoky Mouse was listed as endangered at the time of the offence.

16 Subsequently, on 24 September 2010, after the time of the commission of the offence but for reasons not related to the offence, the Smoky Mouse was changed to critically endangered. A copy of the Final Determination of the Scientific Committee was included in the agreed bundle of documents. The Final Determination noted that, although due to its ephemeral nature population size is hard to estimate, at that time the total number of mature Smoky Mice in New South Wales may have been less than 50 (at [12]).

17 There is little known about the Smoky Mouse's lifecycle, distribution and abundance or about the potential threats to the Mouse posed by forestry activities. In 1994, the first live Smoky Mouse was captured in Nullica State Forest. The species was initially detected in coupe 1 of compartment 717 of Nullica State Forest. Records of the species are restricted to a 11km by 6km area within Nullica State Forest and the adjacent South East Forests National Park. Additional surveys were carried out of compartment 717 in 2001 and 2008, but failed to detect further evidence of the species prior to the date of the offence.

Terms of the Threatened Species Licence Relating to the Smoky Mouse

18 The terms of the threatened species licence for the Eden Region that commenced in January 2000 included conditions that excluded forestry activity within 100 ha of the Smoky Mouse habitat.

19 In late 2005, the then Department of Environment, Climate Change and Water ("DECCW") commenced a review of the Smoky Mouse condition of the threatened species licence. DECCW recommended to the Forestry Commission that due to the sparse and unpredictable presence of the Smoky Mouse in Nullica State Forest conservation measures should be developed that focus on the identification and preservation of known Smoky Mouse habitat, rather than on known populations of the Smoky Mouse. At the time, DECCW also raised concerns about the cumulative impacts of logging and post-logging burns, including hazard reduction burning, on the long-term viability of the Smoky Mouse population and habitat.

20 As a result of the review, the Smoky Mouse conditions contained in the Eden IFOA were amended in March 2006. The amendments included a prohibition on specified forestry activities, including timber harvesting, road construction and hazard burning (conditions 5.1 and 6.8A), in key Smoky Mouse habitats within Nullica State Forest, referred to as "Smoky Mouse exclusion zones".

21 The IFOA was amended again in June 2008 to indefinitely exclude identified forest activities from the Smoky Mouse exclusion zones. A map of the Smoky Mouse exclusion zones in Nullica State Forest was included in the agreed bundle of documents. It identified the relevant Smoky Mouse exclusion zone within compartment 717.

22 The June 2008 amendments to the IFOA also gave effect to the Smoky Mouse SMP, which is directed at achieving the long-term objective of ensuring the ongoing presence of the Smoky Mouse. The Smoky Mouse SMP describes cross-tenure management and monitoring actions for the Smoky Mouse and its habitat within Nullica State Forest and the adjacent South East Forests National Park. The management and monitoring actions are directed at protecting the Smoky Mouse from wildfire; at maximising habitat values; and at managing hazard reduction burning in the planning area.

23 The Smoky Mouse SMP contained an action to facilitate a trial small-scale hazard reduction burn in a Smoky Mouse exclusion zone and an action to develop a Smoky Mouse fire management plan, which included appropriate planning, comprehensive pre-burn monitoring and extensive long-term research on the impacts of fire on the Smoky Mouse. However, the Smoky Mouse fire management plan was never developed and the consequent approval to undertake a burn trial was never granted.

24 Condition 6.8A and condition 5.1 of the threatened species licence provided as follows:

6.8A. Smoky Mouse Peudomys fumeus

...

b) A Smoky Mouse Exclusion Zone must be established for any area of land:

i. depicted in the Geographic Information System theme in ESRI shapefile format called "Smoky Mouse Exclusion Zones", in the sub-directory called " Smoky Mouse Exclusion Zones", on the CD-Rom lodged with the Department of Natural Resources and having the volume label "060210_1106" dated 10 February 2006; and

ii. further described in the corresponding metadata on the CD-Rom.

5.1. Operational Requirements

a) For all exclusion zones implemented under the Conditions of this licence the following must apply (except where otherwise indicated in this licence):

i. All specified forestry activities are prohibited in exclusion zones...

25 The Definitions and Abbreviations section of the threatened species licence included the following definitions:

"Exclusion zone" means a protective area where specified forestry activities, unless excepted, are prohibited under the terms of this licence.

"Specified forestry activities" means:

...

vii. Bush fire hazard reduction work...

The Burn Incident

26 DECCW had issued a previous warning to the Forestry Commission in relation to breaches of licence conditions in the Smoky Mouse exclusion zones. On 15 January 2009, DECCW issued the Forestry Commission with a formal warning letter regarding breaches of the Smoky Mouse exclusion zones by the spreading of mining debris and the storing of harvesting machinery within a Smoky Mouse exclusion zone, which had resulted in damage to trees and vegetation. The letter relevantly requested that the Forestry Commission educate and inform all staff and contractors about the Smoky Mouse exclusion zones, management zones and requirements of the SMP prior to the commencement of forestry activities in adjacent areas.

27 Due to a wildfire and associated back burning activities occurring in late January and early February 2009 in a section of South East Forests National Park adjacent to coupe 717 of Nullica State Forest, the presence of logging slash (coarse and fine woody debris generated during logging operations) in the logged coupe (coupe 2) of compartment 717 was noted as a concern and the area was prioritised for hazard burning by the Forestry Commission.

28 On 19 March 2009, DECCW officers met with the Forestry Commission's Operations Manager Southern Region, Mr Marty Linehan, and the Commission's Regional Ecologist, Mr Peter Kambouris, to discuss the progress of the Smoky Mouse SMP. During the meeting, both DECCW and the Forestry Commission agreed that no prescribed burning was to occur within the Smoky Mouse exclusion zones until fire management plans were jointly developed between DECCW and the Forestry Commission.

29 The Forestry Commission's Forester, Mr Dean Payne, approved a Hazard Reduction Burn Plan ("the burn plan") for the logged coupe in compartment 717 of the Nullica State Forest on 9 July 2008. The burn plan included a map. The burn plan map included a reference to the Smoky Mouse exclusion zone in the legend. No other references to the Smoky Mouse exclusion zone were included in the burn plan map.

30 The actual area of the Smoky Mouse exclusion zone was not clear on the map because the zone was the same colour, namely, white, as the background colour of the map.

31 The hazard reduction burn was undertaken by two employees of the Forestry Commission, Mr Chris Farrell and Mr Jason Hardy, on 29 April 2009. Mr Farrell, who led the operation, was given a copy of the burn plan map, but due to the inadequate shading of the Smoky mouse exclusion zone he did not realise the presence of the zone and, therefore, did not put any measures in place to prevent the spread of the burn into the exclusion zone. Neither Mr Farrell nor Mr Hardy were given any other information from the Forestry Commission about the existence of the exclusion zone.

32 The burn was ignited within the logged coupe at the western edge of compartment 717 along the eastern side of Ben Boyd Road and along both sides of 717-3 Road to Log Dump C. Mr Farrell and Mr Hardy then left the site, which is standard and acceptable industry practice for low intensity fires in appropriate weather conditions, where exclusion zones are not present.

33 Mr Farrell returned on 6 May 2009. At that time, the burn had reached the western edge of the Smoky Mouse exclusion zone. Mr Farrell returned again on 13 May 2009, at which time most of the area compromising the Smoky Mouse exclusion zone had been burnt.

34 On 14 May 2009, DECCW officers Ms Jacquelyn Miles, Ms Shaan Gresser and Dr Linda Broome observed an active fire within the Smoky Mouse exclusion zone in compartment 717 of Nullica State Forest. The DECCW officers also observed that a logged coupe in compartment 717 had recently been burnt and was smouldering.

35 During this inspection and a subsequent inspection by DECCW officers, photos, contemporaneous notes and GPS recordings were taken of their observations.

36 Following the inspection, Dr Broome phoned the Forestry Commission's Regional Ecologist, Mr Kambouris, to notify him of the active fire within the Smoky Mouse exclusion zone. Mr Kambouris was unaware the fire was alight. He stated that Forestry Commission officers would be deployed to extinguish the fire and to inspect the Smoky Mouse exclusion zone.

37 On 15 May 2009, DECCW officers returned to the Smoky Mouse exclusion zone to inspect the burn. On the same day, Forestry Commission staff inspected the site and noted that the burn by this time had almost completely burnt the Smoky Mouse exclusion zone and was abating as it approached drainage lines bordering the zone. Consequently, no action was taken to extinguish the fire.

38 On 21 May 2009, the Forestry Commission again inspected the burn within the Smoky Mouse exclusion zone and confirmed the majority of the exclusion zone, in the excess of 90%, had been burnt. By this time, the fire had extinguished itself.

The Forestry Commission's Safety and Operation Procedures

39 The Forestry Commission's maps for harvest plans and burn plans were produced electronically using a GIS system that automatically uploaded spatial data relevant to the planning unit, including threatened species records and exclusion zone layers.

40 The Forestry Commission's Harvest Planners followed a documented procedure to ensure threatened species and exclusion zones were identified throughout the planning process. A checklist was followed to ensure all relevant values were considered.

41 At the time of the commission of the offence, although the burn plan correctly identified the boundaries of the relevant exclusion zones, it did so in such a way that the Smoky Mouse exclusion zone was obscured and thus the burn plan supervisor was not aware of the need to take steps to prevent the burn from extending into the Smoky Mouse exclusion zone. It follows that as a result, no measures were implemented to prevent the fire from entering the exclusion zone.

Post Incident Conduct of Forestry Commission

42 In response to the burn the Forestry Commission instigated a full investigation and review of procedures, which was completed on 2 June 2009. In a letter dated 14 August 2009, the Forestry Commission notified DECCW of the results of the Investigation Report.

43 The Report concluded that the primary reason for the burn being able to spread into the Smoky Mouse exclusion zone was the failure of the burn supervisor to identify from the burn plan map that an exclusion zone existed in coupe 1 of compartment 717 and therefore, no steps were taken to enforce the boundary of the burn.

44 Under the heading "Causal Factors" the Report specifically listed the following as the causes of the burn extending into the Smoky Mouse exclusion zone:

(a) the shading used to indicate a species exclusion zone did not stand out clearly on the burn plan map. The burn supervisor stated that he did not notice it and was not made aware of it until 15 May 2009;

(b) the burn planning process did not involve consultation with key harvesting and ecology staff;

(c) the handover of the burn plan from the planner to the burn supervisor did not involve a formal briefing that would highlight potential issues, such as the proximity of an exclusion area;

(d) at the time that the harvest plan for compartment 717 was written, the harvest planners did not routinely include a direction for logging crews to construct a bare earth break along the edge of their operations to ensure that the fire not leave the logged area;

(e) generally post-logging burns extinguish themselves as they reach the edge of the logged areas due to significant moisture differentials between logged and unlogged areas. However, in the present instance, the differential was not sufficient to achieve this outcome, with the fire taking several days to reach the boundary of coupes 1 and 2.

45 The Report noted that since the burn incident the Forestry Commission has undertaken the following measures to prevent a similar incident occurring in the future:

(a) post-logging burn planning will now be undertaken as part of the harvest planning process. This is to ensure that information relevant to burning is included in the harvest plan and vice versa;

(b) a critical boundaries component will be included in burn plans, with adjacent species exclusion zones being highlighted in the text as well as on the map;

(c) the shading tone previously used to indicate a species exclusion zone has been altered to red to ensure that the zone cannot be missed by staff in the field;

(d) any burn plans that require special care to avoid the possibility of fire entering exclusion zones will have a red sticker on the covering page. These such plans will require a formal briefing of the burn supervisor by the relevant fire officer; and

(e) the consultation process associated with planning for both broad area and post-logging burns will in future be more comprehensive, to ensure that all operational and environmental elements are covered. Before burning commences in any new season the annual burn plan will be reviewed and signed off by the Regional Management Team.

46 In addition, the evidence demonstrates that the Forestry Commission intends to implement additional monitoring over and above the requirements of the SMP in relation to compartment 717 as follows:

(a) historic vegetation monitoring sites within compartment 717 will be reassessed and monitored annually for a period of three years to record successional change;

(b) permanent photograph points will be established both within the burnt logged and unlogged areas and recorded seasonally for three years in conjunction with the existing vegetation plots;

(c) Smoky Mouse SMP monitoring sites 6 and 7 within the burnt area will be monitored seasonally to detect Smoky Mice presence aligned to successional habitat changes;

(d) if Smoky Mice are detected, the survey effort will change to the use of traps twice annually in order to assess population and breeding status; and

(e) should any Smoky Mice be trapped, the Forestry Commission will undertake radio tracking of select individuals in order to assess habitat utilisation following the burn event.

Sentencing Principles

47 The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"). They are:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

48 In determining the appropriate sentence the Court must consider the aggravating and mitigating factors, and other matters specified in s 21A of the CSPA.

49 Relevant mitigating factors in s 21A(3) of the CSPA to which the Court must have regard are as follows:

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity, ...

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), ...

(k) a plea of guilty by the offender (as provided by section 22), ...

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

50 A relevant aggravating factor in s 21A(2) of the CSPA that the Court must have regard to is:

(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(d) the offender has a record of previous convictions...

51 Sections 22 and 23 of the CSPA further relevantly provide:

22 Guilty plea to be taken into account

(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and

(c) the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence...

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:

...

(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender's assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, ...

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, ...

52 Since the commission of the offence the NPWA has been amended to include s 194. That provision sets out additional relevant matters to be taken into account upon imposition of a penalty under that Act. The provision is applicable to the present proceedings ( Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [14]).

194 Sentencing-matters to be considered in imposing penalty

(1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a) the extent of the harm caused or likely to be caused by the commission of the offence,

(b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence,

(c) the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,

(e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence...

(g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee,

(h) whether the offence was committed for commercial gain.

(2) The court may take into consideration other matters that it considers relevant.

53 The Court may also take into account the objects of the legislation that has been breached. The relevant objects of the NPWA in s 2A include the following:

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...

(2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development...

54 In addition, the relevant objects of the TSCA, under which the threatened species licence was granted, include the following:

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...

55 It is in this statutory context that a determination of the appropriate penalty to be imposed is made. The determination must reflect both the objective circumstances of the offence and the subjective of circumstances of the Forestry Commission ( Veen v R (No 1) (1979) 143 CLR 458 at 490). Ultimately, the penalty should be determined by an instinctive synthesis of all of the relevant objective and subjective considerations ( Markarian v R [2005] HCA 25; (2005) 228 CLR 357).

Objective Gravity of the Offence

56 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard include ( Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163], Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]):

(a) the nature of the offence;

(b) the maximum penalty for the offence;

(c) the objective harmfulness of the defendants' actions;

(d) the defendants' state of mind in committing the offence;

(e) the defendants' reasons for committing the offence;

(f) the foreseeability of risk of harm to the environment;

(g) the practical measures to avoid harm to the environment; and

(h) the defendants' control over the causes of harm to the environment.

Nature of the Offence

57 A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalty provided by the statute in question, the Forestry Commission's conduct offend against the legislative objectives as expressed by the statutory offence ( Rawson at [49]).

58 The objects of the NPWA include the promotion of the conservation of nature by applying the principles of ecologically sustainable development, including the conservation of habitat and the biological diversity at the community, species and genetic levels. The "principles of ecologically sustainable development" are defined to be the principles of the ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991. These include the precautionary principle, that of intergenerational equity, the conservation of biological diversity and principles of ecological integrity.

59 The conservation of threatened species has been described by Preston J in Bentley (at [63]) as "an essential action in the conservation of species diversity, and hence of biological diversity, and of ecological integrity".

60 The offence created by s 175 of the NWPA has an important role in the overall statutory scheme of the NPWA in preventing contravention of that Act, and therefore, contravention of the objects of that Act. In addition, compliance with the NPWA is vital to achieving the objects of the TSCA, the Act under which the threatened species licence was granted. The relevant objects of the TSCA hindered by the commission of the offence include: the conservation of biological diversity, the promotion of ecologically sustainable development, the prevention of the circumstances and factors threatening the extinction of the Smoky Mouse and the promotion of the recovery and protection of the critical habitat of the Smoky Mouse, and the management of the processes that threaten the survival and evolutionary development of the Smoky Mouse.

61 The Forestry Commission's conduct in causing the burn to extend into the Smoky Mouse exclusion zone contrary to a condition of the licence it held under the TSCA undermined the protective regulatory schemes contained in both the NPWA and the TSCA and impeded the achievement of ecological sustainable development ( Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 at [4]).

Maximum Penalty

62 The maximum penalty for an offence against s 175 of the NPWA is $22,000 in the case of a corporation.

63 The maximum statutory penalty for the offence reveals the seriousness with which Parliament views such an offence (Rawson at [60]-[64]).

64 Having said this, the penalty for an offence against s 175 of the NPWA is exceedingly low compared to penalties for other environmental offences, particularly given the seriousness with which the community has come to view environmental offences. However, any increase in the penalty is a matter for Parliament and cannot affect the outcome of these proceedings other than in the manner discussed immediately above.

Environmental Harm

65 In assessing the seriousness of the harm to the environment caused by the commission of the offence against the NPWA, the Court is required to consider the extent of the harm caused or likely to be caused and the significance of the endangered population that was harmed or was likely to be harmed ( Bentley at [179]; Hunter Valley Property Management at [14]; Director General, National Parks and Wildlife Service v Wilkinson (2002) NSLWEC 171 at [91] and ss 194(1)(a) and (b) of the NPWA).

66 The harm to the environment must not only be considered in terms of actual harm, but must include the potential risk of harm ( Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]). As Preston J in Waste Recycling and Processing stated (at [145]-[147]):

145 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.

146 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 at [174].

147 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.

67 In relation to the likelihood of harm being caused by the commission of an offence, Preston J noted in Bentley that (at [175]):

Harmfulness needs to be considered not only in terms of actual harm but also harm that is likely to occur in the future as a result of the commission of the offence. The seriousness lies not only in the actual death or damage to ... the threatened species and their habitats at the time of commission of the offence but also in the potential for harm which the acts ... might entail: see Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 366.

68 At the time of the commission of the offence, the Smoky Mouse was classified as an endangered species. Section 10(3) of the TSCA provides that a species is eligible to be listed as endangered if in the opinion of the Scientific Committee "it is facing a very high risk of extinction in New South Wales in the near future".

69 The population of the Smoky Mouse in the exclusion zone was significant in terms of the overall State population of this species, given its endangered classification and because the only recent records of the species in New South Wales were restricted to the 11km by 6km area in Nullica State Forest and the adjacent South East Forests National Park.

70 The significance of the exclusion zone to the population of Smoky Mouse is further enhanced by the fact that, before the commission of the offence, coupe 1 of compartment 717 of the Nullica State Forest was the only known habitat of the Smoky Mouse in the northern section of the species distribution that had not been burnt or logged within the last ten years, thereby providing the Smoky Mouse with a potential refuge and food resources.

71 But there was no evidence before the Court of any actual direct harm caused to the Smoky Mouse by the commission of the offence. This was so notwithstanding that no recorded sightings of the Smoky Mouse have been detected in coup 1 of compartment 717 of Nullica State Forest following the burn. This is, however, consistent with previous failed attempts to detect the species in coupe 1 in 2001 and 2008.

72 Although, due to low numbers and sparse distribution, the reaction of the Smoky Mouse population to burning is not well understood, the evidence established that the burn had resulted in the following likely harm to the Smoky Mouse habitat:

(a) direct loss of potential foraging habitat;

(b) loss of potential nesting habitat;

(c) loss of potential recruitment for foraging and nesting habitat; and

(d) impacts on habitat connectivity at the local scale.

73 The Forestry Commission submitted that the impact of the burn was equivocal or "neutral" given the uncertainty of the impacts of the burn on the habitat of the Smoky Mouse and given the possibility that the long-term impact of the burn on the Smoky Mouse habitat could in fact be beneficial.

74 I do not agree. While I accept that the evidence does not disclose any long-term harm to the environment, in my opinion, the potential for a short-term adverse impact on the Smoky Mouse habitat was very real. I find beyond reasonable doubt that the burn caused likely environmental harm.

75 Having regard to, in particular, the endangered nature of the Smoky Mouse species and the sizable area (approximately 90%) of habitat affected by the burn, I therefore consider the environmental harm caused by the commission of the offence to be in the low to moderate range.

Foreseeability of Risk of Harm

76 The extent to which the Forestry Commission could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence is a relevant factor to be taken into account in the determination of sentence (s 194(1)(d) of the NPWA).

77 The Forestry Commission has held a threatened species licence under the Eden IFOA since January 2000, which included conditions excluding forestry activities within 100 ha of recorded Smoky Mouse habitat DECCW, therefore submitted that the Commission had been on notice of the presence of Smoky Mice in parts of the Nullica State Forest and of the need to protect them. This is correct.

78 DECCW further submitted that it had previously raised concerns with the Forestry Commission about the cumulative impacts of forestry activities, including hazard reduction burning on the long-term viability of the Smoky Mouse population and its habitat, and the need to need to prevent burning until an experimental burn plan had been developed.

79 In addition, DECCW had issued the Forestry Commission with a formal warning letter on 15 January 2009 in relation to apparent failures by it to comply with the threatened species licence in relation to the Smoky Mouse exclusion zones. In that letter, DECCW reminded the Forestry Commission of its obligation to comply with the requirements of the Smoky Mouse SMP and requested that the Forestry Commission educate staff and contractors about the SMP, about the exclusion zones and about all precautionary requirements prior to commencement of any forestry activities in or adjacent to these zones.

80 In relation to the foreseeability of harm, it is not necessary that the specific cause of the incident be foreseeable ( Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71).

81 The Forestry Commission's established procedures did not ensure that DECCW's forewarnings were appropriately dealt with. Nor were the precautions for an experimental burn in the SMP heeded. The offence, therefore, cannot be considered an unforeseen accident ( Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700).

82 Having regard to the proximity of the Smoky Mouse exclusion zone to the other coupes of compartment 717, I find that it was foreseeable, even absent any previous warnings from DECCW, that harm to the environment could be caused, or would be likely to be caused, by the conduct of the Forestry Commission giving rise to the commission of the offence.

Practical Measures to Prevent the Harm

83 A factor bearing upon the objective gravity of an offence is the practical measures that may have been taken to prevent, control, abate or mitigate the harm to the environment (s 194(1)(c) of the NPWA).

84 There were several practical measures set out in the statement of agreed facts, that could have been taken to make the operational staff of the Forestry Commission aware of the exclusion zone, and to prevent, control or mitigate the harm to the environment. These included:

(a) ensuring that the shading tone used to indicate species exclusion zones stood out against the background of the burn plan map;

(b) including additional burn exclusion warnings on operational maps and with harvesting and burn plans;

(c) ensuring that the burn planning process involved consultation with harvesting and ecology staff;

(d) ensuring that the hand-over of the burn plan from the planner to the burn supervisor involved a formal briefing highlighting potential issues, such as species exclusion zones;

(e) ensuring that all species exclusion zones had mineral earth control lines between the burn area and the exclusion zone;

(f) instructing harvesters to include a bare earth break along the edge of their operations to contain any subsequent burns;

(g) ensuring all staff were educated and informed about species exclusion zones prior to the commencement of forestry activities within or adjacent to these zones; and

      (h)     including a requirement in the burn plan that whenever a fire was likely to, or did, burn beyond                area designated in the burn plan, that suppression action be immediately implemented or any                escape  from  the designated area be reported to the Forestry Commission.

85 DECCW further submitted that these corrective actions would have been relatively inexpensive and easy to implement, and therefore, would not have been onerous for the Forestry Commission to put into place.

86 The Forestry Commission has subsequently implemented the above measures, along with additional monitoring measures, in order to prevent environmental harm occurring from similar incidents in the future.

87 I find that there were a number of measures that the Forestry Commission could have undertaken to prevent the harm from occurring.

Control Over Causes

88 As the authority responsible for conducting forestry operations in the Nullica State Forest, as well being the employer of all staff carrying out forestry operations in the area, the Forestry Commission had control over the operations within compartment 717 of Nullica State Forest. This included the control over the development of the burn plan for, and the implementation of hazard reduction burning in, compartment 717 (ss 194(1)(e) and (g) of the NPWA).

Reasons for Committing the Offence

89 A factor by which the objective seriousness may be augmented is the reason for its occurrence. In this case, it was submitted by the Forestry Commission, and which I accept, that the offence was not committed intentionally or deliberately. In addition, I find that the Forestry Commission gained no commercial advantaged by the commission of the offence (s 21A(2)(o) of the CSPA and s 194(1)(h) of the NPWA).

Conclusion on Objective Circumstances

90 Having regard to the nature of the offence; the low maximum penalty; the extent of likely harm to the environment; the practical measures able to have been taken to prevent the harm; the failure of the Forestry Commission to control, abate or mitigate the harm; the reasonable foreseeability of harm likely to be caused by the commission of the offence; the extent to which the Forestry Commission had control over the causes giving rise to the offence, and the absence of any deliberate or commercial motive in committing the offence, I find that the offence committed is of low to moderate objective gravity.

Subjective Circumstances of the Forestry Commission

91 The Court in considering the appropriate penalty to impose must take into account any mitigating or aggravating factors specific to the Forestry Commission (s 21A(2) and (3) of the CSPA).

Prior Criminality

92 The Forestry Commission has been prosecuted for eight prior offences under environmental legislation. Prior criminality can be taken into account as an aggravating factor in the determination of sentence pursuant to s 21A(2)(d) of the CSPA.

93 The Forestry Commission was charged with an offence of polluting waters in 1992, resulting from logging operations and road construction in Oakes State Forest near Dorrigo, contrary to s 16 of the Clean Waters Act 1970. The offence was proven but no conviction was entered against the Forestry Commission.

94 In 1995, the Forestry Commission was convicted of three breaches of conditions of the Commission's pollution control licence in Nullum State Forest, contrary to s 17D of the Pollution Control Act 1970. These offences included a failure to properly construct road drainage structure; the felling of a tree into a filter strip; and the failure to install sediment traps. The Commission was fined $25,000.

95 In 1996, the Forestry Commission was convicted of three breaches of conditions of the Commission's pollution control licence in Colymea State Forest, contrary to s 17D of the Pollution Control Act 1970, including two failures to properly construct the gutters of a logging road and placing soil into a filter strip. The Commission was fined $30,000.

96 In 2003 the Forestry Commission was convicted of another offence of polluting waters. The offence occurred in Chichester State Forest and involved soil and sediment from a collapsed portion of a dirt road being washed into a water course, contrary to s 120 of the Protection of the Environment Operations Act 1997. The Commission was fined $30,000.

97 DECCW submitted that the prior criminality of the Forestry Commission should be taken into consideration as an aggravating factor.

98 The Forestry Commission, while accepting that the prior offences could be taken into account by the Court in determining the appropriate sentence, submitted that very little weight should be attributed to these offences given that the offences were all pollution related offences that had scant similarity with the present offence and because the passage of time had rendered the prior convictions somewhat stale.

99 In Baiada (at [50]) and Waste Recycling and Processing Corp (at [196]), the Court held that prior offences of a different nature and arising out of different circumstances that do not demonstrate a pattern of conduct of disregard for environmental laws ought to be given little weight in any determination of sentence.

100 It is true that all eight offences arose out of circumstances materially different from the commission of the present offence and were in breach of different environmental statutes than the one in consideration. Further, all of the offences occurred more than eight years ago, with the most recent offence occurring in 2003. However, in my view, the number of convictions suggests either a pattern of continuing disobedience in respect of environmental laws generally or, at the very least, a cavalier attitude to compliance with such laws. I would attribute more weight to these past convictions than that suggested by the Forestry Commission.

101 In addition to the above convictions, DECCW had undertaken the following enforcement action against the Forestry Commission in relation to potential breaches of the threatened species licence and other environmental licences (in the following list a reference to "Region" is a reference to an administrative division of the Forestry Commission):

(a) on 30 January 2007, DECCW issued a Penalty Infringement Notice ("PIN") to the Forestry Commission's Southern Region for contravening conditions of the threatened species licence by placing logging debris against a marked recruitment tree in Mogo State Forest;

(b) on 9 November 2007, DECCW issued two PINs to the Forestry Commission's Upper North East Region for contravening conditions of the threatened species licence by failing to protect wombat burrows in Butterleaf State Forest;

(c) on 12 December 2007, DECCW issued a PIN to the Forestry Commission's Lower North East Region for contravening conditions of the threatened species licence by felling a tree from within a riparian filter strip in Lansdowne State Forest; and

(d) on 5 January 2009, DECCW issued a PIN to the Forestry Commission's Western Region for contravening conditions of a licence under s 120 of the NPWA by harvesting trees of the largest size class in Pilliga East State Forest.

102 The Forestry Commission has not admitted guilt in relation to any of these PINs.

103 Given the number of offences the Forestry Commission has been convicted of and in light of the additional enforcement notices issued against it, I find that the Forestry Commission's conduct does manifest a reckless attitude towards compliance with its environmental obligations. I, therefore, find the prior criminality of the Forestry Commission to be a relevant aggravating factor to be taken into account in the determination of the appropriate penalty to be imposed in these proceedings.

Early Guilty Plea

104 The Forestry Commission advised DECCW of its intention to plead guilt on 3 May 2011 and informed the Court of its intention to plead guilty on 13 May 2011, being the first occasion it appeared represented in the matter.

105 In the context of the prosecution being commenced shortly before a change in the New South Wales Government, and the necessity of briefing the new Government of a prosecution occurring between two government agencies, the parties agree, and I find, that the Forestry Commission pleaded guilty at the first available opportunity and should be afforded the full 25% discount for the utilitarian value of the plea of guilty ( R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the CSPA).

Assistance to the Prosecutor

106 The Forestry Commission has at all times cooperated fully with the prosecutor. Although, the Forestry Commission was not aware of the burn, upon notification by DECCW, the Forestry Commission inspected the site the very next day. The Forestry Commission proceeded to carry out a full investigation into the incident and a review of its procedures, which culminated in the completion of the Investigation Report, which it provided to DECCW. The Forestry Commission also cooperated with DECCW in the completion and filing of the statement of agreed facts (ss 21A(3)(m) and 23 CSPA).

Good Character

107 With the exception of the earlier convictions, the Forestry Commission has demonstrated to the Court evidence of good character that should be taken into account as a mitigating factor (s 21A(3)(f) of the CSPA).

108 In addition to introducing and following procedural measures designed to address the deficiencies in the Forestry Commission's processes that led to the commission of the offence, the Forestry Commission has also implemented additional monitoring over and above the requirements of the SMP. The cost of these measures is $10,000.

Contrition and Remorse

109 The contrition or remorse of a defendant is able to be taken into account as a mitigating factors in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA).

110 In this case, the Forestry Commission initially made no expression of contrition or remorse, other than the plea of guilty. It did so, counsel for the Commission told the Court, because it believed that its plea of guilty was sufficient ( Signato v R [1998] HCA 74; (1998) 194 CLR 656 at [22] and Cameron v R [2002] HCA 6; (2002) 209 CLR 339 at [65]).

111 I do not read these authorities as unequivocally standing for the proposition that a plea of guilty, without more, is a sufficient expression of remorse or contrition for the purpose of sentencing. In any event, the statements made in each decision were not made in the context of s 21A(3)(i) of the CSPA. Thus in Georgopolous v R [2010] NSWCCA 246, the Court of Criminal Appeal stated (at [49]) the following:

49 In my opinion a plea of guilty may by inference amount to evidence of remorse for the purpose of the section but it will rarely be sufficient to meet the pre-conditions for it to be used as a mitigating factor. The plea is simply an admission by the offender of the facts that form the elements of the offence. The court is entitled to act upon the plea regardless of the reason why the offender made the admissions inherent in the plea of guilty. The offender is bound by the plea even if, as appears to be the case here, the offender does not in fact believe he is guilty: see Wong v DPP [2005] NSWSC 129; 155 A Crim R 37. Provided that the offender intended by the plea of guilty to make the relevant admissions, it does not matter why he made those admissions.

112 This decision has been endorsed and followed in this Court. In Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 Biscoe J stated (at [12] and see also similar sentiments expressed by myself in Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; 172 LGERA 52 at [107] and Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200 at [54(c)]):

12 What is the significance of a plea of guilty? It is an admission of the elements of the offence and an acknowledgement of guilt for the offence: Georgopolous v R [2010] NSWCCA 246 at [49], [1], [17]. It is a mitigating factor listed in s 21A(3)(k). A plea of guilty and the timing of the plea are required to be taken into account by the Court which must give reasons if they do not attract a lesser penalty: s 22. The utilitarian value of a plea of guilty generally attracts a discount in the range of 10-25 per cent depending primarily on the timing of the plea: R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160]. A plea of guilty may by inference amount to evidence of remorse but, of itself, will rarely be sufficient to meet the pre-conditions of s 21A(3)(i) for remorse to be used as a mitigating factor: Georgopolous at [49]. Remorse is a mitigating factor but only if the offender shows he is truly remorseful by satisfying those pre-conditions.

113 As a consequence, the Forestry Commission sought leave to adduce further oral evidence of remorse from Mr Dean Anderson, the Director of Native Forrests at the Commission. Leave was not opposed by the prosecutor and was granted by the Court. Mr Anderson apologised on behalf of the Forestry Commission and expressed the Commission's regret at the commission of the offence. Mr Anderson also gave evidence of the measures the Commission had taken to ensure improved compliance with environmental laws to avoid the commission of any further offences in the future. I accept as genuine the remorse and contribution expressed by Mr Anderson on behalf of the Forestry Commission.

114 I also accept that the making of restitution or compensation provides, as in the present case, evidence of contrition and remorse ( Bentley at [258]; Mickelberg (1984) 13 A Crim R 365 at 370). As noted above, the Forestry Commission have implemented a number of restorative and ameliorative measures in response to the incident. These measures were effected at a substantial cost to the Forestry Commission.

Costs

115 DECCW sought that the Forestry Commission pay its costs, agreed in the sum of $19,000. It is appropriate to take these costs into account in determining the overall penalty to be imposed ( Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 at [139]).

Even-handedness

116 The principal of even-handedness in sentencing requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered. But care must be taken given the wide divergence of facts and circumstances leading to the imposition of specific penalties.

117 In this instance, this is the first prosecution in the Land and Environment Court for a breach of s 133(4) of the NPWA.

118 The only other case under s 133(4) of the NPWA to have been dealt with in this Court was Morris v Department of Environment and Climate Change [2008] NSWLEC 309. In that case, the Local Court fined the defendant $2,000, plus $70 court costs, in relation to breach of a licence to shoot kangaroos. Justice Sheahan upheld the sentence on appeal. The parties submitted, with which I agree, that this case has little comparative value. Not only were the facts materially different from those in the present case, but the case concerned an appeal of a sentence by the Local Court.

119 The Forestry Commission referred the Court to the decision in Environment Protection Authority v New South Wales (Department of Environment, Climate Change and Water) [2010] NSWLEC 67; (2010) 174 LGERA 19. That case concerned the discharge of effluent into a creek in contravention of a condition of an environment protection licence, namely, that it failed to operate equipment in a proper and efficient manner. No actual harm to the environment was caused by the breach and the likelihood of harm was low (at [38]). After reviewing decisions with similar findings of environmental harm, Pain J ordered the defendant to pay $80,000 to the Southern Rivers Catchment Management Authority for the purpose of riparian rehabilitation and exotic tree removal along the Thredbo River.

120 Again, I found this decision, and the authorities surveyed by her Honour therein, to be of limited assistance to the present determination before the Court. Those decisions all concerned a different legislative regime and were determined in the context of a maximum fine of $1 million for corporate defendants.

Deterrence

121 The penalty must be sufficient to deter others who, by oversight or inadequacy in process systems, risk committing an offence against the NPWA in the hope that should the oversight or inadequacy be exposed, only nominal penalties will be applied. There is also a need for the sentence to serve as a general deterrent to prevent others committing similar offences against the NPWA. Accordingly, penalties must be imposed that are substantial enough to encourage a corporation, such as the Forestry Commission, to adopt preventative procedures in order to avoid causing harm to the environment (Hunter Valley Property Management at [34]; Bentley ; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357).

122 The Forestry Commission submitted that in the circumstances of the present case, minimal consideration of either general or specific deterrence was warranted.

123 I do not agree. In this case, there is a need in determining the appropriate penalty to be imposed to have regard to both general and specific deterrence.

124 In respect of general deterrence, the deterrent effect of a fine must send a message to companies doing business near threatened species habitat to take care to ensure that damage to threatened species, especially those that are endangered, does not occur, and to ensure that the cost of not protecting threatened species is not simply incorporated as an ordinary cost of doing business ( Bentley at [141] and [211]).

125 In respect of specific deterrence, although, the Forestry Commission has undergone a review and upgrade of its procedures and monitoring processes to ensure such an incident does not occur again, I find that there is a need to include specific deterrence as a component of the penalty, especially given the prior history of the Forestry Commission in breaching environmental laws.

Denunciation and Retribution

126 The imposition of an appropriate sentence serves a number of purposes (s 3A of the CSPA), which includes ensuring that retribution and denunciation are properly addressed. The sentence of this Court is a public denunciation of the Forestry Commission and must ensure that the Commission is held accountable for its actions and is adequately punished ( Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at 127, at [8]-[9], Environment Protection Authority v Hanna [2010] NSWLEC 98 at [34], Bentley at [141] and ss 3A(a) and (e) of the CSPA). Accordingly, I also take these elements of sentencing into account.

Synthesis of Objective and Subjective Circumstances

127 The appropriate penalty for the commission of such an offence would ordinarily be a fine. The amount of the fine would be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and the offender (Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [37], [39] and [73]).

128 In so doing, the appropriate penalty to be imposed would, in my opinion, be a fine in the amount of $8,000. Discounted by 30%, taking into consideration all of the mitigating factors and the aggravating factor of the Forestry Commission this would result in a total fine of $5,600.

Orders

129 However, the prosecutor sought an order under s 205(1)(d) of the NPWA (although this provision came into force on 15 June 2010, that is after the commission of the offence in question, an order under Pt 15 Div 3 may be made in relation to the commission of an offence that occurred before the commencement of that Division: cl 68 of Sch 3 of the NPWA) that the Forestry Commission pay a specified amount to - in this case the amount of what would otherwise be imposed by way of fine - to the Office of Environment and Heritage, Department of Premier and Cabinet for the purpose of a specified environmental project, namely, to engage a consultant or contractor to undertake monitoring and analysis of the Smoky Mouse habitat at various sites in the South East Forests National Park. In my view such an order is appropriate. In this regard I note that the Forestry Commission did not cavil with this course.

130 The orders of the Court are as follows:

(1) the Forestry Commission is convicted of the offence against s 175(1)(a) of the NPWA as charged;

(2) the Forestry Commission is to pay the amount of $5,600 to the Office of Environment and Heritage, Department of Premier and Cabinet for the purposes of the following project, namely, to engaging a consultant or other contractor to undertake the following work at the Smoky Mouse monitoring sites in the South East Forests National Park, as set out in the Smoky Mouse Species Management Plan in the Eden Region IFOA (Forests NSW/SECC, 2008):

1. to deploy two to three remote cameras at 15 monitoring sites in September 2011, for a three year period (eight days per annum);

2. to download, assess and collate the camera data for each of the three years (two weeks per annum);

3. to undertake vegetation plot monitoring on three of those sites per year, for three years ( two days per annum); and

4. to provide data entry and analysis of the vegetation plot data (two to three weeks per annum); and

(3) the Forestry Commission is to pay DECCW's legal costs agreed in the sum of $19,000.

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Decision last updated: 21 June 2011