Land and Environment Court New South Wales

• Medium Neutral Citation: Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119
• Hearing dates: 21 October 2010
• Decision date: 11 July 2011
• Jurisdiction: Class 5
• Before: Pepper J

Decision

The Court makes the following orders:

(1) Walker is fined the sum of $200,000;

(2) under s 257B of the Criminal Procedure Act 1986 Walker is to pay the prosecutor's costs of the proceedings as determined under s 257G of that Act; and

(3) the exhibits are to be returned.

• Catchwords: ENVIRONMENTAL OFFENCES: sentence - unlawful clearing of native vegetation - consideration of objective and subjective factors - extent of environmental harm -whether earlier disturbance to the land is a factor mitigating the penalty to be imposed - whether offence committed intentionally or recklessly - whether commission of offence commercially motivated
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A; Criminal Procedure Act 1986 ss 257B, 257G; Fines Act 1996 s 6; Native Vegetation Act 2003 ss 3, 6, 9, 12, Div 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; Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38; 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; Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 277 ALR 611; Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182; Director-General, Department of Environment Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256; Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30; Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233; Director-General, Department of Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100; Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; Director-General, Department of Environment and Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200; Environment Protection Authority v Barnes [2006] NSWCCA 246; Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255; Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269; Environment Protection Authority v Hanna [2010] NSWLEC 98; Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299; Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24; Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189; Gordon Plath of Department and Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386; Graham v R [2009] NSWCCA 212; Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348; Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289; Plath v Glover [2010] NSWLEC 119; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Rahme v R (1989) 43 A Crim R 81; Thomson v Hawkesbury City Council [2009] NSWLEC 151; Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
• Category: Principal judgment
• Parties: Director-General, Department of Environment and Climate Change (Prosecutor); Walker Corporation Pty Ltd (Defendant)
• Representation: Mr S Rushton SC with Ms S Callan and Ms M McMahon (Prosecutor); Mr J Ireland QC with Mr J Maston and Mr C Burgess (Defendant); Department of Environment and Climate Change (Prosecutor); Colin Biggers and Paisley (Defendant)
• File Number(s): 50040 of 2008

JUDGMENT

Introduction

1 In Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 (" Walker (No 2) "), the Court found, through its contractor, Environmental Land Clearing Pty Ltd ("ELC"), the defendant, Walker Corporation Pty Limited ("Walker") guilty of an offence contrary to s 12(1) of the Native Vegetation Act 2003 ("the NVA") of clearing seven species of native vegetation.

2 Section 12 of the NVA creates a strict liability offence as follows:

12 Clearing requiring approval

(1) Native vegetation must not be cleared except in accordance with:

(a) a development consent granted in accordance with this Act, or

(b) a property vegetation plan.

(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

3 This judgment determines the appropriate sentence to be imposed on Walker for the commission of the offence. Having regard to the objective circumstances of the commission of the offence and the subjective circumstances of Walker, the Court imposes a fine of $200,000 and orders that Walker pay the prosecutor's costs of the proceedings.

Factual Findings Relevant to the Imposition of the Sentence

4 In Walker (No 2) the Court found beyond reasonable doubt pursuant to s 44 of the NVA that Walker having engaged and instructed ELC, a purported specialist in environmental land clearing, to "tidy up" a property it had purchased in late March of 2005 by clearing vegetation that comprised, amongst other things, "small undergrowth", had caused ELC to carry out unlawful clearing of native vegetation contrary to s 12(1) of the NVA ( Walker No 2 at [304]-[307]).

5 In so finding, the Court rejected the submission that Walker either had permitted ELC to carry out the work that resulted in the commission of the offence (at [308]-[309]), or that it was vicariously liable for the clearing carried out by ELC (at [311]-[318]).

6 The Court did not accept the submission of Walker that it had simply relied on the specialist expertise and experience of ELC, and that by engaging ELC it was exonerated from liability. Rather, the Court found that ELC carried out the clearing in accordance with, and directly as a result of, Walker's instructions (at [295]-[303]).

7 Essentially, sometime after its acquisition in 2005, a decision was made by Walker to clear up the property. Walker engaged ELC to carry out the work. ELC held themselves out to be specialist in environmental clearing but this proved to be no more than having in their possession specialist equipment for land clearing and did not, as it transpired, extend to any particular specialised knowledge of what could be lawfully cleared under the NVA.

8 The work involved keeping the undergrowth at bay, clearing and spraying blackberries, removing car bodies, maintaining existing tracks, maintaining existing fence lines, maintaining dams, reducing the tree line by approximately 50m around the whole site and removing several clumps of trees in the middle of the site (at [26]-[27]). "Small regrowth" was to be removed, which, according to Mr Benjamin Fife from Walker, meant small trees that "looked like" they had "recently grown" (at [28]).

9 The areas to be cleared were identified by Walker by Mr Fife driving around the property with Mr Dave Humphreys (of ELC) and indicating to him the areas he wanted cleared (at [30]).

10 Mr Humphreys directed Mr Alan Mills (of ELC) to engage in "underscrubbing" of the property but not "clearing". Mr Mills believed this to include the removal of regrowth, lantana, blackberries, scrub and small trees. That is to say, trees of three or four feet in height. Large trees were to be left, which is what occurred (at [33]-[38]).

11 Mr Michael Black (also from ELC) visited the property on two occasions and observed the clearing taking place, including the removal of the groundcover vegetation (at [41]).

12 Mr Fife attended the site a couple of times and was satisfied with the progress of the work (at [42]).

13 In response to a request from Walker in August of 2006 to engage in further clearing, Mr Humphreys expressed his concerns to, and sought confirmation from, Mr Black about the extent of the clearing requested. Mr Black subsequently confirmed that the clearing was "ok" after speaking to Mr Fife (at [45]). However, prompted by the concern expressed by Mr Black, Mr Humphreys organised, with Mr Fife's authorisation, Keystone Ecological Pty Ltd ("Keystone") to conduct a vegetative site assessment. An assessment was done and the report was completed in mid August 2006 ("the 2006 Keystone report"). The 2006 Keystone report was given to ELC and it was emailed to Walker (at [45]-[50]).

14 The report raised a number of concerns about the clearing that had been undertaken to date, including that all of the work carried out up until the date of the report "could be illegal" and that an expert assessment should be obtained to ascertain, in effect, the non-protected regrowth that could be lawfully cleared and the protected regrowth that could not (at [291]). Walker made no comment on the report (at [292]).

15 The clearing recommenced in about October 2006 after reassurances and instructions from Mr Fife to do so, and after halting temporarily, continued until January 2007 (at [53]-[55]).

16 The Court found that prior to the clearing work undertaken by ELC, there had been disturbance of the vegetation on the land in the form of fire, grazing, logging and dieback due to earlier salt water irrigation contamination (at [101]). However, this disturbance was found to be "minor".

17 The Court found that the activities undertaken by ELC on the property constituted "clearing" for the purposes of s 12(1) of the NVA (at [101]).

18 The Court also found that what had been cleared was not only vegetation, but constituted "native vegetation" having regard to the definition of that term in s 6 of the NVA. In particular, the Court found that the underscrubbed shrubs, understorey plants and small trees, comprised seven species of "indigenous" (s 6(2) of the NVA) vegetation that was not "regrowth" for the purposes of s 9(2) of the NVA (at [106]-[247]).

19 The Court also found that the clearing was not permitted under Div 3 of the NVA insofar as the extent and location of the blackberry clearing - blackberries had been declared to be a noxious weed throughout New South Wales - had not been demonstrated sufficiently for the clearing to constitute routine agricultural management activity. Similarly the clearing by ELC in and around the dams on the property, the farm roads, the track and the permanent fences was not for routine agricultural management activity; neither were the cattle that continued to be agisted and grazed on the property a continuation of existing grazing practices; and nor was the property cleared as a consequence of Walker permitting the activity of sustainable grazing (at [250]-[261]).

Applicable Legal Principles in Determining Sentence

Purposes of Sentencing

20 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purpose of imposing a sentence on the offender includes:

3A Purposes of sentencing

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

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

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

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

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

(f) to denounce the conduct of the offender,

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

Correct Approach to Sentencing

21 It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the defendant ( Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

22 Section 21A of the CSPA further identifies matters that the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)).

23 The correct method of sentencing is the instinctive synthesis method having regard to all of the relevant objective and subjective circumstances surrounding the commission of the offences ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

24 In so doing, the Court must not take facts into account in a manner that is adverse to Walker unless those facts have been established beyond reasonable doubt. But, if there are circumstances that the Court proposes to take into account in favour of Walker, it is enough that those circumstances are proved on the balance of probabilities ( R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

Objective Considerations

25 The primary factor the Court must consider when determining sentence is the objective gravity or seriousness of the offence. This is determined by consideration of the upper most limit of a sentence that is justified as appropriate or proportionate to the gravity of the crime in light of its objective circumstances ( Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354), and the lower limit of the offence by allowing for consideration of the subjective factors of the matter to produce a proportionate range that reflects the objective gravity of the offence ( Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [50] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [46]).

26 The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set ( Rawson at [46] and Graham v R [2009] NSWCCA 212 at [43]-[44]).

27 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 Rawson at [48]):

(a) the nature of the offence;

(b) the maximum penalty for the offence;

(c) the objective harmfulness of Walker's actions;

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

(e) Walker's reasons for committing the offence;

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

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

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

Nature of the Offence

28 A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalties provided by the statute in question, the offender's conduct would offend against the legislative objectives expressed in the statutory offence ( Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]).

29 The objects of the NVA in s 3 of that Act are as follows:

3 Objects of Act

The objects of this Act are:

(a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and

(b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and

(c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and

(d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and

(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,

in accordance with the principles of ecologically sustainable development.

30 As Preston J observed in the context of an offence against s 12 of the NVA ( Rae at [17]-[19]):

17 One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining consent from the regulatory authority. The application for consent involves undertaking an environmental impact assessment of the clearing for which consent is sought. The statutory provisions requiring prior environmental impact assessment and consent are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including ecologically sustainable development. The discussion in Bentley v BGP Properties Pty Ltd at [65]-[71], [168], [169], although concerning the regulatory scheme under the Threatened Species Conservation Act 1995 (NSW) and the National Parks and Wildlife Act 1974 (NSW), is equally apposite to the Native Vegetation Act 2003 .

18 There is a need for the upholding of the regulatory system under the Act. The system depends on persons, first, taking steps to ascertain when consent is required to clear native vegetation, secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna: see Cameron v Eurobodalla Shire Council at [72]-[77]; Garrett v Freeman (No 5) at [68]; Director-General, Department of Environment and Climate Change v Wilton at [77]; Director-General, Department of Environment and Climate Change v Hudson at [76]; Pittwater Council v Scahill at [46].

19 Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.

31 The actions of Walker in clearing native vegetation on its property without consent under the NVA clearly offend against the legislative objects expressed in s 3 of that Act.

Maximum Penalty

32 The maximum penalty for an offence by a corporation in breach of s 12 is a fine of $1,100,000 (10,000 penalty units).

33 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). In Markarian v The Queen (at [31]) the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the Court.

34 The imposition of a monetary penalty of this order of magnitude demonstrates the seriousness with which offences against the NVA are viewed by the legislature ( Rae at [22]).

Environmental Harm Caused by the Unlawful Clearing

35 The extent of the environmental harm caused by Walker's commission of the offence occupied the majority of the submissions on sentence before the Court.

36 At the very outset a dispute arose concerning the findings the Court made as to the area of land cleared by Walker. In Walker (No 2) the Court noted that the area claimed to have been cleared was approximately 23ha (at [4]). Walker is correct in its submission that no finding was made in those explicit terms. Rather, a finding was made by the Court (at [101]) that "the activities that were undertaken by ELC during the charge period constituted 'clearing' as that term is defined under the Act" and that, as the evidence of Ms Sharne Ridge demonstrated (at [67]), the areas cleared by ELC on the property were those identified by Ms Ridge in polygons within shapefiles (at [67]). It was this area that was approximately 23ha. While it is correct that no specific statement was made by the Court as to the area it found had been cleared by ELC, a fair reading of the reasons of the Court at [4], [8], [67] and [101] reveals an acceptance of the assertion by the prosecutor that 23ha was cleared by ELC.

37 However, even if no such finding was made by the Court in Walker (No 2) , the prosecution read in these proceedings an affidavit of Ms Ridge sworn 22 June 2010, which attached an ASIC Current and Historical Extract as at 15 June 2010, promotional material downloaded from the Walker website and an Espreon Online Information System LPI NSW Owner/Lessee Inquiry" for Walker dated 21 June 2010.

38 Relevantly, Ms Ridge was cross-examined on her estimate of the area of land cleared by Walker and the assistance that she had provided Mr Ken Turner on the two site visits he undertook to the property in 2007. Her cross-examination by Mr John Ireland QC on behalf of Walker reaffirmed that the area cleared by Walker was approximately 23ha:

Q. Do you remember in that memorandum you recorded the instruction that it was the Department's position that about 25 hectares of land had been cleared by Walker Corporation?

A. Yes, that was our estimation at the time.

Q. I just want to ask you about the basis of that estimate. That was done by some sort of measurement process in which you took part?

A. At that time, that was prior to the site visit being conducted, that was an estimation based on the observation report that we received that led us to believe that there may have been some clearing occurring on the Walker land.

Q. I just wondered what was the origin of that figure. I can show you the memorandum with your Honour's permission. I'm showing Ms Ridge a copy of her memorandum of 2 February 2007 which is annexure B to the affidavit of Mr Turner of 23 June 2008, just to remind you of that?

A. Thank you.

Q. I've actually marked it but ignore that. Do you see there's a reference there to 25 hectares?

A. Mm-hmm.

Q. I just want to clarify, at that stage in February 2007, what was the basis of that figure that you were providing to Mr Turner?

A. I believe it was based on the report that we received that clearing had occurred and the area of the part of the property on which the person who observed the clearing and reported it to us had observed clearing being undertaken.

Q. Thank you, could I have that back. Did you yourself subsequently to February 2007 do any measurements?

A. Yes, I did.

Q. And are they the ones dealt with in your affidavit in 2008?

A. They are, they are.

Q. Were they the polygons that you produced?

A. Yes.

Q. And they're referred to in her Honour's judgment that there were some adjustments made for leeway from fencing and the like?

A. There was.

Q. I think all of those added up together to about 23, I think, hectares?

A. That's what I recall.

Q. At that time?

A. Yeah.

Q. When you made those adjustments, is that right?

A. Yes.

Q. And that was the basis of that calculation?

A. It was.

Q. The 23 hectare calculation was the consequence of the preparation of the polygons that her Honour records?

A. Yes.

39 This evidence was consistent with the information she had provided to Mr Ken Turner, a terrestrial ecologist with the then Department of Environment, Climate Change and Water ("DECCW"), in a memo dated 2 February 2007, annexed to one of Mr Turner's affidavits (his affidavit affirmed 23 June 2008, read at the trial), which was also referred to during Mr Turner's cross-examination at the sentence hearing.

40 Accordingly, and in order to resolve any lingering doubt, I find beyond reasonable doubt, that Walker cleared 23ha of land on the property.

41 It follows that in assessing the extent of the environmental harm that was caused by the unlawful acts of Walker, the Court may have regard to the fact that 23ha of land was cleared.

42 For the purpose of assessing environmental harm, the prosecutor relied on three affidavits (affirmed 24 September 2008, 29 June 2010 and 6 September 2010) of Mr Turner. At the hearing on sentence it was agreed by the parties that each affidavit should be provisionally admitted subject to relevance (although this practice ought generally to be eschewed: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 277 ALR 611 at [19]-[20] and [135]). Walker had made a number of objections to the opinions expressed by Mr Turner in his affidavits, particularly his 2008 affidavit, on the basis that his opinions concerning the value of the native vegetation offended the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 to the extent that they extended to observations concerning the conservation value of the vegetation cleared under the Threatened Species Conservation Act 1995, the National Parks and Wildlife Act 1974 ("the NPWA") and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBCA"). Each of those Acts, Walker submitted, contained offences of a significantly more serious character than the offence with which it had been charged and found guilty under s 12 of the NVA (see, for example, s 118D of the NPWA or s 18A of the EPBCA).

43 The principle in De Simoni states that where an indictment does not refer to particular circumstances of aggravation, a judge imposing sentence may have regard to such circumstances only if they would not render the accused liable to a greater punishment under a different offence. The principle was applied by Pain J in Director-General, Department of Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 (at [43]).

44 A corollary of this principle is that it is not permissible to take into account, as a matter in aggravation, facts that relate to an offence that is more serious than that for which the offender is to be sentenced, that would have warranted a conviction for a more serious offence, or that would have rendered the accused liable to a more serious penalty than that which is prescribed for the offence in respect of which he or she has been found guilty (Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [50] and McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 at [39]).

45 Walker therefore submitted that for the Court to take into account Mr Turner's views on the extent of the environmental harm caused by the clearing by receipt of evidence not confined to the seven species of native vegetation the subject of the conviction, but that also referred to the broader impact of the clearing on threatened species pursuant to other legislation such as the EPBCA, the NPWA or the TSCA, would be to offend these principles. This is because it would be akin to punishing Walker for offences relating to threatened species, threatened communities or endangered ecological communities of flora and fauna under these enactments, in respect of offences considerably more serious than the offence created by s 12(1) of the NVA.

46 But this evidence was not being tendered as evidence of an aggravating circumstance in the commission of the present offence and its receipt would not result in Walker being punished for a more serious offence for which it had not been charged. The purpose of the evidence was to demonstrate the extent of the environmental harm caused by the clearing of the seven species of native vegetation. This harm extended beyond the immediate removal of the seven species the subject of the charge insofar as it encompassed the short, medium and long term effects of the removal of the vegetation. To properly consider these effects, regard must be had not just to the impact on the local flora communities, but also on the local fauna. Thus it was in Rae that the Court considered the effect that the unlawful clearing of native vegetation had on the loss of biodiversity and the impact on fauna, including threatened and non-threatened species (at [29]-[34]). This was because the evidence was, as in the present case, highly relevant to the issue of assessing the harm caused by the commission of the offence.

47 It therefore follows from the reasoning above that Walker's objections to Mr Turner's evidence must be overruled.

48 In his 2008 affidavit, Mr Turner considered that the native vegetation cleared from the land was in good to very good condition. In his opinion the cleared vegetation contained a diversity of native plants species, contained very low densities of exotic plants, supported ongoing recruitment of all canopy trees species present and was of a mature age, with habitat elements important for a range of native fauna species.

49 Based in part on observations he made during his field inspections in 2007, Mr Turner considered that the subject area provided a suitable habitat for a number of threatened fauna species including the Koala, Powerful Owl, the Spotted-Tailed Quoll, Glossy Black-cockatoo, Speckled Warbler, Diamond Firetail, the Eastern Bent-wing Bat and Greater Broad-nosed Bat. The land also provided suitable habitat for the endangered invertebrate species Meridolum corneovirens (the Cumberland Land Snail). All of these threatened species had been recorded within the district surrounding the land.

50 In Mr Turner's opinion the land also contained native vegetation that matched two endangered ecological communities: first, the Shale/Sandstone Transition Forest, and second, the Cumberland Plain Woodland. Furthermore, the native vegetation on the property also contained and provided suitable habitat for a number of plant species recognised as being of national, state or regional conservation significance. The two endangered ecological communities have, according to Mr Turner, a very high conservation value at a landscape scale. This is due in part to very heavy clearing in the past of these two communities. Thus, as a consequence, the remaining areas of native vegetation on Cumberland Plain Woodland and Shale/Sandstone Transition Forest was of relatively high importance for the maintenance of remaining native biodiversity.

51 It was Mr Turner's view that the clearing of the native vegetation on the land involving mechanical tritters, which consisted of tree thinning and underscrubbing, resulted in the removal of large numbers of smaller trees and the above ground parts of virtually all understorey and shrub plants. In addition, the removal was accompanied by significant disturbance of the majority of ground cover plants with accompanying, albeit limited, surface soil disturbance and compaction.

52 Mr Turner opined that the changes to vegetation structure would have a number of immediate impacts on the native flora and fauna both in the cleared areas and surrounding areas, including the:

direct or indirect (eg. through starvation) deaths of individual reptiles, amphibians, birds, bats and ground and arboreal mammals, during and after clearing (see Johnson et al. 2007);

loss or disturbance of large areas of habitat for individual fauna that would previously have used subject areas for feeding, shelter and breeding, including loss/disturbance of:

understorey plants (essential shelter and breeding resource formany native bird species),

pollen and nectar from flowering shrubs (essential food resources for many fauna species),

foliage of grey gums Eucalyptus punctata (food source for Koalas),

dense shrub layer and groundcover (important part of foraging habitat for many native fauna);

death or direct physical damage to plants within cleared areas, including shredding of above-ground parts, compaction of soil around roots, and disruption to growth by covering with bark and woodchips;

greatly increased 'edge effects' on the health of remaining native vegetation within disturbed areas. These effects include greater solar redations, wind access, and evaporative stress at the edges of new areas of clearing;

increased potential for weed invasion through tract creation and ground disturbance; and

increased access for feral predators - in particular, fox predation impacts on native fauna (mammals, birds, reptiles, amphibians) are likely to be greater in areas where understorey has been cleared (Environment Australia 1999).

53 Mr Turner expressed the opinion that the clearing of the land was also likely to adversely contribute to cumulative impacts on habitat connectivity at a landscape scale. The clearing had degraded the habitat values of the forest block for a variety of native flora and fauna and if not remediated, the clearing would contribute to cumulative loss of connectivity for the movement of shale associated biota around the less over cleared margins of the Cumberland Plain.

54 Having said this, Mr Turner was of the opinion that notwithstanding the short term impacts of thinning and underscrubbing on the land, the land had very good potential for recovery in the medium term, provided that further disturbance, including grazing, was excluded for a minimum of five years. Mr Turner recommended that the natural regeneration be permitted to continue and that the cleared areas be protected from further disturbance including the slashing of regrowth, the development of exotic pasture and the exclusion of domestic grazing stock. Any areas of failure could be treated by direct seeding or tubestock planting of local provenance native plants. Weed control should be undertaken as required.

55 While in his 2008 affidavit Mr Turner gave evidence of the consequences of the clearing generally of native vegetation on the property, in his affidavit dated 29 June 2010, Mr Turner specifically referred to the impact of the clearing of the seven native plant species.

56 It was Mr Turner's opinion that the seven individual plant species were components of local and regional populations of these particular plant species, and therefore, contributed overall to the species' survival. The plants were also components of forest habitat for other flora and fauna species across the property. Further, the plants cleared were components of broad ecological communities recognised by characteristic combinations of plant species, substrate landforms and distributions.

57 However, Mr Turner went on to conclude that the conservation value of the individual plants species at the local level was minor. This was because the species were not restricted to the cleared areas and many individuals of these species were likely to survive in uncleared forest on the property and its surrounding areas. But considered more broadly, all of the seven plant species provided some element of habitat for other native species, including food and shelter for fauna species. For example, individual Eucalyptus crebra and Melaleuca nodsa provided large quantities of nectar and pollen for birds, mammals and invertebrates during flowering. Allocasuarina littoralis seeds were the preferred food of the Glossy Black-cockatoo and Exocarpos cupressiformis fruit had a succulent stem eaten by birds. All of the species of tree provided shelter and nesting sites for birds. Accordingly, all seven plant species contributed to habitat conditions through shading, moderating wind and producing leaf litter and soil organic matter.

58 Mr Turner did not resile from the opinion he expressed in his 2008 affidavit to the extent that he opined that the seven plant species were components of open forest habitat across the cleared areas and that this habitat was suitable for the nine threatened fauna species he referred to in that affidavit. In his opinion, the clearing of the plant species across the land degraded this area of habitat and contributed to cumulative loss for the native fauna species in the local area. Further, according to Mr Turner, the clearing of the seven listed plant species across approximately 23ha had a moderate impact on native biodiversity in the local area by degrading a relatively large block of habitat that had been in good to very good condition and was suitable habitat for a number of treated fauna species.

59 Again, however, it was his opinion that at a landscape scale the conservation of the seven individual plant species was limited. The particular species were not rare and all survived in native vegetation remnants across the Cumberland Plain. Further, none of the seven species were recognised as having national, state or regional significance and all of the seven species were widespread within other parts of New South Wales. Thus the clearing of scattered individuals of these seven plant species from the land was likely to have had a minor impact on the survival of the species at a landscape or regional scale.

60 Having said this, Mr Turner concluded that the clearing of the seven plant species from the land had degraded the habitat of a good condition block of forest and that if the clearing was not remediated it would have a moderate impact on native biodiversity at a landscape scale.

61 To the extent that the seven plant species were also components of two endangered ecological communities, the clearing of the seven plant species had degraded a relatively large and good condition remnants of these endangered ecological communities and, similarly, if not remediated, would contribute to a moderate impact on native biodiversity at a landscape scale.

62 Mr Turner was also of the view that the clearing of the seven species would generally impact upon the habitat of a number of other plant species recognised as been of national, state or regional conservation significance.

63 Finally, Mr Turner reiterated his earlier opinion that the soil disturbance caused by the clearing was relatively minor and that a protective mulch of native vegetation had been left on the ground surface. As a consequence, the clearing created little risk of erosion.

64 Mr Turner was cross-examined. Mr Turner agreed that he had not been told at any stage that in the areas that were cleared there was extensive blackberry infestation. Mr Turner agreed that as a consequence, he did not take into account that what had been removed from the understorey areas included blackberry and that had he been told this fact that he would have taken it into account in his assessment of the impact of the clearing. Mr Turner also agreed that many of his opinions expressed in his 2008 affidavit were based on the impact of the clearing, not only on the seven individual species of native vegetation, but also on the associated effects of the clearing of those seven species.

65 Mr Turner concluded that as a consequence of the removal of the Allocasuarina littoralis from the property the Glossy Black-cockatoo was unlikely to starve. Likewise, the clearing of the individual seven species of native vegetation would not materially diminish any food resources for the koala.

66 In response to the evidence of Mr Turner, Walker relied on an affidavit of Mr Rodger Lembit affirmed 27 August 2010. Mr Lembit is an ecologist.

67 Mr Lembit undertook an inspection of the property on 27 July 2010. During the site inspection he visited the cleared areas on the land. Of the seven plant species identified as having been cleared during the course of his inspection he observed Allocasuarina littoralis, Eucalyptus crebra and Exocarpos cupressiformis. He also observed two species of Melaleuca, but did not observe any plants of the other three species of native vegetation. However, as he conceded, he did not conduct a systematic and targeted survey of the species across the property.

68 Mr Lembit's evidence may be summarised as follows:

(a) mature trees continued to exist within the cleared areas and the uncleared areas had a low proportion of trees capable of bearing hollows;

(b) there were signs of historic disturbance within the cleared area;

(c) the cleared areas had regenerated well since February 2007;

(d) there were very few weed species present within the cleared areas and with the exception of the Spear Thistle, the cleared areas had negligible levels of exotic plants, such that the condition of the regenerated cleared areas was comparable to the most intact remnants across the Cumberland Plain;

(e) the impact of the clearing had been to change the structure of the mid and ground layers within the effected area, however, this was a temporary change, likely to be evident for the medium term;

(f) the mulch layers had been broken down and had been colonised by native grasses, sedges, herbs and small shrubs and there were no areas of exposed mineral soil; and

(g) the level of impact on native biodiversity had been minor and the cleared areas remained in very good condition.

69 Mr Lembit disagreed with Mr Turner's assessment that the clearing of the seven plant species contributed to the cumulative loss of habitat for the nine identified fauna species and other native fauna species in the area. This was because, first, the sequence of aerial photographs covering the local area indicated that there had been a trend of recovery of areas of vegetation over the past 50 years. Second, habitat for several of the species extended across a wide area including land to the east and south of the property. Third, the implication that the clearing of the native vegetation that had occurred degraded habitat for each of the nine threatened species had not been established.

70 For example, koalas were a mobile species that could range across several kilometres daily to access trees upon which they feed. Further, Mr Lembit's observation of his field inspection showed that there was vigorous regrowth of young branches and leaves of eucalypts across the area and that any impact of clearing on the koala would have been temporary and of a minor scale.

71 A similar conclusion was reached in respect of the Spotted-tailed Quoll and the Powerful Owls. Although in relation to the latter species, Mr Lembit acknowledged that it was possible that the clearing may have had some impact on the Powerful Owl due to a loss of hollow bearing trees, including dead standing trees.

72 Because of the mobility of the Glossy Black-cockatoo, any impact on habitat by the clearing was temporary. The Speckled Warbler was rare in coastal New South Wales and in any event the impact of the clearing on potential habitat and breeding was temporary. The habitat conditions observed on the property in July 2010 were of high value for the Diamond Firetail with vigorous growth of native grasses, a primary food source for the species, and ample coverage to provide roosting opportunities and protection from predators. Accordingly, any impact of the clearing on this species was also temporary.

73 The Eastern Bent-winged Bat was also a mobile species, which roosts in caves, mines and tunnels. Because the property did not provide suitable roosting sites, the clearing was not likely to have had a degrading impact on the habitat of this species. Likewise the Greater Broad-nosed Bat was a mobile species, which utilised tree hollows for roosting. It was more commonly found in tall wet forests associated with gullies and river systems rather than the dryer woodlands, which were a feature of the property. Hence while it was possible that they ranged across the subject land searching for food, this was unlikely, and therefore, any impact of clearing on potential habitat for this species was likely to have been low. So too was any impact on the primary food resource for this species, which consisted of larger insects, including beetles.

74 Finally, the Cumberland Land Snail lives under a litter of bark, leaves and logs or shelters in loose soil around grass clumps. It is commonly found in wetter parts of the landscape, which were not characteristic of the property. While the riparian area on the property affected by the clearing provided potential habitat for this species, again any impact would have been, in the opinion of Mr Lembit, temporary.

75 Mr Lembit also cavilled with the opinion of Mr Turner that the land was in need of active remediation. In light of his recent observations of the property, it was his opinion that there was no need for systemic regeneration due to the extent of the natural regeneration that had occurred in the effected areas. In particular, Mr Lembit was of the opinion that there was no evidence that the existing grazing activity had impeded regrowth and there was no evidence of regrowth of blackberry plants within the cleared area. Consequently, there was no need for a weed monitoring program, provided spot treatment of Spear Thistle plants was undertaken.

76 Mr Lembit was also cross-examined. During the cross-examination he agreed that the failure by him to observe any plants of the other three species suggested that there had been no, or limited, regeneration by these species. In addition, he stated that the impact of the clearing on the structure of mid and ground layers within the affected areas was to change it temporarily within a time scale of five to 15 years. He also conceded that koalas were dependent upon mid-storey and ground cover for protection, which was important when dealing with a piece of land, such as the property in question, on the urban fringe.

77 By way of reply, in his affidavit dated 6 September 2010, Mr Turner admitted that he had not visited the property since March 2007. Nevertheless, Mr Turner took issue with Mr Lembit's conclusion that there had been a trend of recovery of areas of revegetation over the property in the past 50 years. It was Mr Turners' opinion, based on aerial photographs, that in the past 50 years the condition of many surviving vegetation blocks was likely to have been degraded by more intensive grazing and vegetation clearance. Accordingly, the recent clearing by Walker of the relevantly large block of good condition shale vegetation contributed to a cumulative loss of this habitat in the local area.

78 Mr Tuner also disagreed with Mr Lembit's conclusions in respect of the effect of the clearing on the habitat of the koala and the Glossy Black-cockatoo. Mr Turner stated that koalas would be unlikely to feed on regrowth from stumps of eucalyptus trittered to ground level due to risks of predation and that Mr Lembit's observation that he saw only flowers on the regenerating Allocasuarina littoralis, rather than the seed containing fruiting cones, indicating that roughly three and half years after clearing these regenerating plants had not yet replaced the Glossy Black-Cockatoo's feeding habitat cleared from the 23ha. Finally, Mr Turner reiterated his opinion that even light grazing could modify regeneration if animals selectively browse more palatable species. If the impacts of the clearing were to be minimised in the medium term, then grazing should be excluded from the cleared areas.

79 There can be no doubt that when asked to consider the specific impact of the clearing of the seven species of native vegetation, as opposed to the impact more generally of the clearing of vegetation on the property, Mr Turner's assessment of the environmental harm caused by the clearing became less pessimistic. Nevertheless, Mr Turner's opinions remained discordant with those expressed by Mr Lembit.

80 In my view, the opinions expressed by Mr Turner are to be preferred to those of Mr Lembit. This is because, first, while Mr Lembit was able to comment on the impact of the clearing three years after the event, Mr Turner was able to base his opinions on inspections of the property for extended periods (not just a five hour period as Mr Lembit did) at a time more proximate to when the clearing occurred. Second, Mr Lembit appeared to largely ignore the significance of the fact that the area comprised two ecological communities, namely, Cumberland Plain Woodland and Shale/Sandstone Transitional Forest, and the effect that the clearing had on these two communities. Third, Mr Lembit understated, in my view, the impact that the clearing had on the habitat of the fauna and other plant species identified by Mr Turner. So much so was, in effect, acknowledged by Mr Lembit in his cross-examination in respect of the habitat for koalas and the Black Glossy-cockatoo. Fourth, Mr Lembit conceded in cross-examination that the clearing would impact the ground and mid layers in the areas affected for a period of between five to15 years.

81 I also reject the suggestion advanced by both Mr Lembit and Walker in its submissions that the fact that the clearing of the native vegetation had degraded habitat for each of the nine threatened species had not been established, and therefore, could not form part of the Court's consideration of the environmental harm caused by the unlawful clearing. Plainly it had on the evidence before the Court.

82 Harm to the environment need not only be considered in terms of actual harm ( Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 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) 145 LGERA 234 (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.

83 In the present case, the environmental harm encompassed not just the immediate aftermath of the clearing, but also included the indirect, individual and cumulative adverse impacts of the clearing on the flora and fauna that were identified by Mr Turner, including both the endangered species of flora and fauna identified by Mr Turner, together with the two endangered ecological communities.

84 By reference to the sampling methodology adopted by Mr Turner in his 2008 affidavit, which demonstrated, with the exception of Eucalyptus crebra , low numbers of the seven species found in the cleared and uncleared sampled plots, Walker argued that there was no acceptable evidence of the quantum of clearing of any of the seven species other than at very low levels. Further, even if it was found that 23ha had been cleared by Walker, this would not assist in determining the quantum of the clearing of the seven species the subject of the charge. Rather, it was the submission of Walker that when the evidence of Mr Turner was analysed on a species per area basis in relation to the cleared plots that were sampled, at its highest there was only direct evidence of 0.44ha of the seven species of native vegetation having been cleared.

85 Walker is correct in its submission that it is impossible to accurately calculate how many hectares of the seven species of native vegetation that it actually cleared. Put another way, it is not the case that 23ha of the seven species of native vegetation listed in the summons were cleared by Walker and I have not taken this into account in determining the appropriate sentence to be imposed on Walker.

86 But while the precise amount of the seven species cleared by Walker cannot be ascertained, the Court is nevertheless permitted to draw an inference, based on the available evidence, which includes the evidence of Mr Turner and Mr Lembit, as to the environmental impact of the commission of the offence. That is to say, while the quantum of the specific species of native vegetation cleared is a relevant matter for the Court to consider - and because in the present circumstances this cannot be precisely ascertained any doubt must be resolved in favour of Walker - this is but one component of the overall environmental harm that the Court must determine has been caused by the commission of the offence.

87 Walker also submitted that the Court should have regard to the fact that the clearing took place on land that had been subject to past disturbance by way of grazing, past clearing, logging and saline contamination. The land was also infested with blackberries, which had been classified as a noxious weed.

88 In some cases the pre-existing state of the environment affected by the commission of an environmental offence is relevant to the assessment of the extent of the environmental harm caused by the unlawful act to avoid the defendant being made responsible for the environmental harm inflicted by others ( Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 at [12]-[15]). Ecolab concerned an oil spillage into a creek that had been previously contaminated. This permitted an inference that the creek did not originally support a substantial diversity of macroscopic aquatic life, which was a matter that operated in the defendant's favour in the assessment of the environmental harm caused by the spill.

89 However, Ecolab does not stand for, as was suggested by Walker, the proposition that because the land unlawfully cleared by it had been previously disturbed this was a factor mitigating the penalty to be imposed ( Ecolab at [14], Waste Recycling Corp at [149] and Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 at [70]).

90 Accordingly, while the Court takes into account the prior disturbance on the land in assessing the environmental damage exacted by the commission of the offence, the fact of the earlier disturbance cannot reduce Walker's penalty, especially given the evidence of Mr Turner to the effect that the remnant endangered ecological communities upon the property where the clearing occurred were in good condition and that overall, the clearing degraded the habitat of the flora and fauna he identified.

91 Given the evidence of Mr Turner and Mr Lembit, the latter of whom had recently visited the property, the Court has no difficulty finding that remediation of the site is possible and that if maintained, the environmental harm caused by the clearing will be temporary in the medium term. Indeed, as the evidence of Mr Lembit demonstrated, the cleared land is already in the process of regeneration.

92 In this regard, Walker tendered a quote from Australian Environmental Services Pty Ltd dated 20 September 2010, for the spraying of Spear Thistle on the property for the sum of $800 per day. A cover letter from Walker's solicitors accompanying the quote disclosed that the spraying was to start on 21 September 2010. This was the only recommended remediation that Walker proposed to carry out.

93 In having regard to the evidence of Mr Turner and Mr Lembit, I find beyond reasonable doubt that there was actual environmental harm caused by the unlawful clearing of medium or moderate seriousness, but not "significant" seriousness as contended for by the prosecutor. In arriving at this conclusion I have particularly taken into account the fact that, in Mr Turner's opinion, the conservation value of the seven species was minor at the local and landscape scale, the fact that with remediation, the harm was temporary, notwithstanding the moderate five to 15 year impact of the clearing on the biodiversity of the area, including on the nine species of fauna identified by Mr Turner and the two endangered ecological communities, the fact that limited soil erosion was occasioned by the clearing, and the fact that the cleared areas are regenerating.

Walker's State of Mind

94 The offence is one of strict liability which means that mens rea is not an element of the offence. But the state of mind of Walker is relevant to assess 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 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], Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 at [53] and Scahill at [69]). So too an offence that is premeditated ( Rae at [43]).

95 The prosecutor submitted that the offence was committed deliberately or recklessly by Walker and in a manner that was premeditated. It relied on the fact that although Mr Fife did not instruct Mr Humphreys with any specificity as to what vegetation the clearing was to include:

(a) the acts of Mr Fife were those of Walker (at [277]);

(b) Mr Fife nevertheless gave instructions to ELC to "tidy up" the property by keeping undergrowth, which included "small regrowth", at bay, by clearing the blackberries, by reducing the tree line by 50m around the whole site and by removing several clumps of large trees (at [26]-[28]);

(c) Mr Fife had driven around the property with Mr Humphreys pointing out the areas to be cleared (at [30]);

(d) Mr Fife did not take any steps to satisfy himself as to what could be lawfully removed (at [30]);

(e) Mr Fife was aware that there were no existing approvals for the work to be undertaken (at 31]);

(f) Mr Fife was aware of the machines used to clear the land (at [37] and [43]);

(g) Mr Fife was aware of the existence of the NVA but not its contents;

(h) Mr Fife visited the site after the clearing commenced and on each occasion expressed satisfaction with the progress of the works ([284] and [286]);

(i) Mr Fife received the 2006 Keystone report, which he authorised, and made no comment on its content, irrespective of the fact that the report identified a number of matters that ought to have caused Walker concern with respect to the clearing that had been carried out to date and the clearing proposed to be carried out in the future (at [49]-[50] and [291]);

(j) notwithstanding the receipt of the 2006 Keystone report, Mr Fife approved the resumption of clearing in October 2006 (at [53]); and

(k) Mr Fife's instructions were sufficient to amount to a direction to do any act that would lead by all physical necessity to the clearing of native vegetation. That is to say, Walker caused the unlawful clearing to take place (at [317]).

96 Walker, by contrast, rejected the assertion of the prosecutor concerning its state of mind, arguing that it was Mr Fife's "imperfect understanding of the NV Act which was the cause of the clearing of the seven species by ELC", and therefore, "the clearing was inadvertent". Walker relied on the fact that ELC held itself out as a specialist environmental clearing company and that it was because of Mr Fife's lack of understanding of the operation of the NVA that he authorised Mr Humphreys of ELC to commission the 2006 Keystone report, which Walker paid for.

97 It is correct that at no point did Walker specifically direct ELC to clear the seven species of native vegetation the subject of the charge. In this sense it cannot be concluded that the actions of Walker were deliberate, intentional or premeditated. In coming to this conclusion I have considered the inaction by Walker after the receipt of the 2006 Keystone report. In my view, the report did not affix Walker with sufficient knowledge of the consequences of its actions that would permit a finding of this state of mind to the requisite standard. That is to say, that if Walker proceeded with further clearing it would be clearing native vegetation.

98 However, in light of all the factual matters referred to above, I have no hesitation in finding beyond reasonable doubt that both before, but most certainly after, the receipt of the 2006 Keystone report, Walker's instructions to clear the property were in reckless disregard of whether or not native vegetation would be unlawfully removed. This state of mind is an aggravating circumstance of the conduct constituting the offence that increases the objective seriousness of the offence ( Scahill at [69] and [79]; Rawson at [99]-[100]; Plath v Glover [2010] NSWLEC 119 at [45] and Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50]).

99 The fact that Walker engaged ELC as purported specialists in environmental clearing does not militate against the above finding (see the reasons given in Walker (No 2) at [295]-[302]), especially after the receipt of the 2006 Keystone report.

Reasons for Committing the Offence

100 The criminality involved in the commission of the offence is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence ( Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237]; Gittany at [140]; Rae at [47]).

101 The prosecutor urged upon the Court a finding that Walker had committed the offence for financial gain inasmuch as it sought to improve the capital value of the land. If proven, this reason for committing the offence would increase its objective seriousness ( Gittany at [141]; Bentley at [246]-[247]; Scahill at [82]; Hudson at [78] and Rae at [49]). In particular the prosecution relied on the following passages from Rae (at [11]-[12]):

11 The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits, with the expectation of a concomitant increase in the capital value of the land. Examples where sentencing courts have noted that clearing was undertaken for commercial gain include: Director General of National Parks and Wildlife v Wilkinson & Anor ; Director General of Department of Land and Water Conservation v Wilkinson [2002] NSWLEC 171 at [92]; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [70]; Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [141] Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [246], [247].

12 On land used or proposed to be used for purposes of agriculture, clearing of native vegetation might be intended to increase the grazing productivity (such as increasing pasture and stocking rate), change from a financially lower yielding to a financially higher yielding agricultural use (such as from grazing to cropping) or facilitate more practical and cost effective operations, including of machinery and equipment, also with the expectation of an increase in the capital value of the land. Sentencing courts have repeatedly noted that offenders have cleared native vegetation for commercial gain: see, as examples, Piva v Brinkworth (1992) 59 SASR 92 at 96; Minister for the Environment and Heritage v Greentree (No. 3) [2004] FCA 1317; (2004) 136 LGERA 89 at [65] and see also [47], [48], [59] and [61]; Director-General Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [51], [76]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [78]; Lamattina & Anor v Gould [2009] SASC 130 at [3], [17] and [19]; Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 at [39] and [68].

102 The basis of the proffered finding, it was submitted, was an inference that Mr Fife perceived the native vegetation on the property to be a real impediment to its rezoning and future development, and that the clearing was effected to overcome this perceived impediment. The only evidence upon which the Court was invited to draw this inference was the fact that Mr Fife had instructed Mr Humphreys to "tidy up" the site and that this was to be a "long term project" over the next 15 years and that "hopefully land zoning would be change in that period of time" (at [279]-[280]). It was Mr Humphreys' understanding that the company was involved in building housing estates and it was his "assumption" that Walker "was making the area larger for that purpose" (at [280]). There was also unchallenged evidence at the trial that Walker's purpose in purchasing the property was to form part of a larger land bank.

103 The understandings and assumptions of Mr Humphreys are, however, too tenuous to find beyond reasonable doubt that Walker's motives at the time of the unlawful clearing were commercially based. No direct evidence came from Mr Fife to this effect and absent any cogent evidence of this character I decline to make such a finding. While I acknowledge and endorse the observations made by Preston J in Rae , it remains the fact that in the present case there was insufficient evidence before the Court for it to infer with any degree of comfort the motive attributed to Walker by the prosecution. Although there was evidence that in clearing the vegetation Walker was seeking to engage in "property maintenance", without more, this cannot be equated with the clearing of native vegetation for commercial gain.

Foreseeability of the Risk of Harm to the Environment

104 The extent of foreseeability of harm is a relevant objective circumstance of the commission of the offence (Camilleri's at 699-700 and Rae at [50]). Having regard to the nature and extent of the clearing, I find that Walker could have reasonably foreseen the risk of harm to the environment caused, or likely to be caused, by the unlawful clearing of native vegetation. This foresight was rendered all the more acute by the receipt of the 2006 Keystone report.

Practical Measures Walker Could Have Taken to Prevent the Risk of Environmental Harm

105 Walker, as owner of the property, could and should have refrained from engaging and instructing ELC to clear the vegetation on the property unless and until consent had been obtained authorising the clearing of native vegetation, or unless and until measures were put in place to ensure that during the 'tidying up' and underscrubbing of the property no native vegetation was removed. That is to say, only non-native vegetation was cleared, for example, the blackberries.

106 To the extent that Walker submitted that it had no reason to doubt the competency of ELC to carry out the work lawfully, even assuming for present purposes this was the position prior to the receipt of the 2006 Keystone report, this view could not reasonably have been maintained after the receipt of the 2006 Keystone report.

Control Over the Causes of the Harm to the Environment

107 It was Walker's submission that it had no, or at the very least, limited, control over the causes of the harm to the environment. This was because of, first, Mr Fife's imperfect understanding of the operation of the NVA, and second, Mr Fife's confidence and reliance in ELC.

108 I do not agree. At all times it was Walker, through Mr Fife, who instructed ELC where to clear, how much to clear (the 50m perimeter) and what to clear, namely, the removal of "small trees that look like they've grown recently" and undergrowth. It was Mr Fife who visited the site to monitor the progress of the work and who never expressed dissatisfaction with what he observed. It was also Mr Fife who instructed ELC to recommence clearing after the receipt of the 2006 Keystone report.

109 Accordingly, I find beyond reasonable doubt that Walker had at all times control over the causes of the harm to the environment occasioned by the commission of the offence.

Conclusion on Objective Circumstances

110 Having regard to the nature of the offence; the high maximum penalty; the extent of harm to the environment; the practical measures available to Walker to prevent the harm; the reasonable foreseeability of the risk of environmental harm likely to be caused by the commission of the offence; the extent to which Walker had control over the causes that gave rise to the environmental harm, and the absence of any deliberate commercial motive in committing the offence, I find that the offence committed is one of moderate objective gravity.

The Subjective Circumstances of Walker

111 A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat and Rae at [55]. See also s 21A(3) of the CSPA).

112 The subjective circumstances of Walker to be considered relevantly include:

(a) any prior criminal record;

(b) any plea of guilty;

(c) any contrition and remorse;

(d) Walker's good character, if any;

(e) any cooperation with, and assistance to the regulatory authorities; and

(f) the financial means of Walker.

Prior Criminality

113 Walker has no prior convictions for any environmental offences (s 21A(3)(e) of the CSPA).

Prior Good Character of Walker

114 I accept, absent any evidence to the contrary, that Walker, a company incorporated in 1973, is, but for the commission of this offence, of good character (s 21A(3)(f) of the CSPA).

Plea of Guilty

115 Clearly Walker did not plead guilty to the offence and no discount can be applied to the penalty imposed (ss 21A(3)(k) and 22 of the CSPA).

Contrition and Remorse

116 No contrition or remorse has been expressed by Walker for the commission of the offence (s 21A(3)(i) of the CSPA).

Assistance by Walker to the Prosecution

117 There is no evidence of any cooperation or assistance given by Walker to the prosecutor (ss 21(A)(3)(m) and 23 of the CSPA).

Conduct of Walker Following Conviction

118 However, the Court notes and takes into account the fact that Walker has carried out the solitary remediation measure recommended by Mr Lemit, namely, the removal of Spear Thistle from the property.

Costs

119 Walker does not oppose an order that it pay the prosecutor's reasonable costs. These costs, it must be acknowledged, although not quantified are likely to be considerable.

120 The payment of a prosecutor's costs is an aspect of punishment (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]; Rae at [68]). There is no question that this Court is empowered to order a defendant to pay the prosecutor's costs as specified or as may be determined under s 257G of the Criminal Procedure Act 1986 (see s 257B of that Act).

121 In Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Biscoe J noted that in this jurisdiction an order for costs against a defendant is routinely made. Thus his Honour opined (at [50]):

Consequently, payment of the prosecutor's costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences. Therefore, of itself, it does not generally seem to be a reason for reducing a penalty in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence. Something more would seem to be required.

122 I do not construe his Honour's comments as resiling from the general principle stated in Barnes that the payment of a prosecutor's costs may be considered in the determination of the appropriate penalty, including as a factor that acts in reduction of any penalty imposed. I have therefore taken this factor into account.

Capacity to Pay a Fine

123 Barnes also stands as authority for the proposition that payment of the prosecutor's costs may also impact on the financial means of a defendant to pay a fine (at [66]-[70], which is a consideration under s 6 of the Fines Act 1996 (see Rahme v R (1989) 43 A Crim R 81 at 87, Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [95]-[96] and Leppington at [49]).

124 There is no evidence before the Court that would suggest that Walker would be unable to pay any monetary penalty imposed by the Court (s 6 of the Fines Act 1996). Rather, the material attached to the 2010 affidavit of Ms Ridge indicates a contrary position.

Conclusion on Subjective Considerations

125 The subjective considerations of Walker do not operate to mitigate the penalty to be imposed to any material degree.

The Appropriate Sentence to be Imposed on Walker

126 The imposition of a sentence serves a number of purposes. As s 3A of the CSPA indicates, these purposes include retribution and denunciation, as well as deterrence, both specific and general.

Deterrence

127 A significant component in the determination of any penalty for the commission of a criminal offence, particularly the unlawful clearing of native vegetation, is that of deterrence ( Rae at [8]-[9]). One of the purposes of the Court imposing a sentence is to prevent crime by deterring both the offender and any other person from committing similar offences (s 3A(b) CSPA).

128 In Thomson v Hawkesbury City Council [2009] NSWLEC 151 I quoted Gittany in relation to the applicable principles with respect to deterrence as a component of an appropriate penalty for offences (Thomson at [114]). I adopt those principles for present purposes (see also Rae at [8]).

129 In Rae , specifically in the context of offences against s 12 of the NVA, Preston J stated the following with respect to deterrence (at [9]-[10]):

9 Most importantly, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. The purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law: see Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 ; (2006) 145 LGERA 189 at [103]-[106]; Director-General, Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 at [31]-[33]; Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77]; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 ; (2009) 165 LGERA 256 at [81]-[88]; and Pittwater Council v Scahill [2009] NSWLEC 12 ; (2009) 165 LGERA 289 at [45]; Lamattina v Gould (2009) 103 SASR 587 at [73] and Minister for Environment, Heritage and the Arts v Rocky Lamattina & Sons Pty Ltd (2009) 167 LGERA 219 (17 July 2009) at [47].

10 In the last mentioned case, Mansfield J stated at [47]:

It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation. The amount of the pecuniary penalty needs to demonstrate that such conduct will not be tolerated by the court.

130 Walker submitted that specific deterrence was not a relevant consideration. This was because the offence was an isolated incident for a company that had, until the commission of this offence, operated faultlessly since 1973.

131 While I have no material before me to suggest that Walker will reoffend (s 21A(3)(g) of the CSPA), given:

(a) Walker's desire to continue maintaining the property over the next 15 years in order to possibly utilise it as part of a housing estate;

(b) Walker's extensive land ownership in New South Wales as evidence by the material attached to Ms Ridge's 2010 affidavit referred to above; and

(c) the fact that Walker is engaged in a great number of property development projects.

I consider that there is a need for the imposition of specific deterrence in the determination of an appropriate penalty.

132 I am equally of the opinion that general deterrence is highly relevant. It is important in light of the aims of the NVA to prevent clearing of native vegetation absent consent ( Rae at [9] and Hudson at [81]). In Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 Pain J (at [52]) took judicial notice of long standing difficulties for authorities in managing uncontrolled native vegetation clearances in the state. Her Honour stated:

52 General deterrence is important in light of the aim of the NV Act to prevent clearing of native vegetation without consent; see Rae at [9], Hudson at [81]-[88]. That is important as I agree with the Prosecutor that I can take judicial notice of long standing difficulties for government in managing uncontrolled native vegetation clearances in NSW.

133 It is also fundamentally important to ensure that persons, be they corporate or individual, who engage third parties to carry out the clearing of vegetation on their land ensure that at all times the clearing is lawful. The objects and purpose of the NVA are not served by landowners absolving themselves of responsibility by hiring contractors, whether or not the contractors hold themselves out as specialists, to undertake the clearing.

Retribution and Denunciation

134 The penalty must be such so as ensure that retribution and denunciation, which are part of the purpose of sentencing (s 3A(a) and (e) of CSPA), are properly addressed. The sentence of this Court is a public denunciation of the conduct of the offender that must ensure that the offender is held accountable for his or her actions and is adequately punished ( Rae at [8]-[9] and Environment Protection Authority v Hanna [2010] NSWLEC 98 at [34]). Accordingly, I take these elements into account.

Consistency in Sentencing

135 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question ( Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range ( Gittany at [182]).

136 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion ( Axer at 365 and Cabonne Shire Council v Environment Protection Authority [2001] NSWCA 280; (2001) 115 LGERA 304 at 312).

137 Moreover, as the High Court had recently reminded sentencing courts in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 (at [53]-[54], footnotes omitted and emphasis added):

53 Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.

54 In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added) ...

138 The pattern of sentencing against which the present case falls to be considered was examined by Preston J in detail in Rae (at [77], [79]-[83], [86], and [88]-[91]). Given its relevance to the present case, I repeat his Honour's comprehensive analysis in full:

77 For the offence against s 12(1) of the Native Vegetation Act , the offence in the present case, there has been only one case to date, that of Director-General, Department of Environment and Climate Change v Hudson . The principal defendant was fined $400,000 and ordered to pay the prosecutor's costs. The objective gravity of the offence was high: the area of land cleared of native vegetation was large, some 486 hectares; the offence was committed deliberately and after the defendant had been told expressly by an officer of the relevant regulatory authority that native trees must be retained on the land; the offence was committed to make the land more available for agriculture and hence for commercial gain; the harm to the environment caused by the offence was substantial; and there was a need for both individual deterrence (to prevent the defendant from re-offending) and general deterrence (to send a message that provisions designed to further environmental interests of the State will be fully enforced). There were no mitigating factors: there was no plea of guilty; no assistance to the investigating or prosecuting regulatory authority; no expression of contrition or remorse; and there was no remediation or offer to remediate the environment harmed by commission of the offence. The defendant was, however, a first offender.

...

79 The current Act replaced the Native Vegetation Conservation Act 1997 (NSW). Section 17(1) made contravention of s 21(2) of the former Act an equivalent offence to that against s 12(1) of the current Act. The JIRS sentencing database reveals four sentencing decisions for an offence under the former Act. The first two cases in chronological order, namely Director-General, Department of Land and Water Conservation v Leverton Pastoral Company Pty Ltd [2002] NSWLEC 212 and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171, involved offences committed at a time when the maximum penalty was only 10% of the current maximum penalty, namely only $110,000.

80 In Leverton Pastoral Company , Talbot J imposed a "modest" fine of $5,000 and noted that the defendant had agreed to pay the prosecutor's costs. In addition, the defendant had entered into an agreement to remediate the land affected by the clearing. The objective circumstances of the offence and the mitigating, subjective circumstances of the offender were different in material respects to the present case. Nevertheless, even on its own facts, the fine in Leverton Pastoral Company does seem to be at the extreme lower end of the range of sentences for the offence of clearing native vegetation contrary to law. The sentence is not comparable and provides no guidance for the present case.

81 In Wilkinson , the offences were part of a set of eight charges relating to the conduct of the offender in clearing vegetation. Two of the charges were for clearing native vegetation contrary to s 21(2) of the Native Vegetation Conservation Act 1997 . The other six charges were for offences against s 118D(1) of the National Parks and Wildlife Act for damaging habitat of threatened species. The maximum penalty at the time for those offences was also $110,000. Lloyd J imposed a total penalty for all eight offences of $43,500. The fines for the two offences against s 21(2) of the Native Vegetation Conservation Act 1997 were $11,000 and $1,750. The defendant was ordered to pay the prosecutor's costs, in the agreed sum of $50,000, and the defendant entered into an agreement with the prosecutor to carry out remediation, conservation and management of vegetation on the property. The objective circumstances of the offence and the mitigating, subjective circumstances of the offender were also materially different to those in the present case. Again, the case, and the sentences imposed in that case, are not comparable.

82 The two more recent cases involving an offence against s 21(2) of the Native Vegetation Conservation Act 1997 , namely Director-General, Department of Environment and Climate Change v Taylor and Director-General, Department of Environment and Climate Change v Wilton , involved offences committed at a time when the maximum penalty had been increased to its current level of $1,100,000.

83 In Taylor , Lloyd J fined the defendant $20,000 and ordered the defendant to pay the prosecutor's costs. The objective circumstances of the crime were of moderate seriousness. The area of land cleared of native vegetation was approximately 30.5 hectares. The actual harm to the environment was held to be significant, including clearing vegetation comprising an endangered ecological community. Although there was some suggestion that the reasons for the defendant clearing the vegetation related to improving the grazing potential of the land, the Court did not make a positive finding as to the defendant's reasons. The defendant knew in a "roundabout way" that there was legislation regulating land clearing but denied knowledge of precise legislation or the department responsible for administering legislation regulating the clearing of vegetation. There were some mitigating, subjective factors personal to the defendant: no prior convictions; early plea of guilty; and some evidence of contrition and remorse, although the extent was tempered by untruthful and misleading statements made by the defendant in the investigation phase to the prosecutor. There was a need for general deterrence. Lloyd J considered that the appropriate penalty was a fine of $30,000, discounted by 33% for all mitigating factors, including the utilitarian benefit of the guilty plea and the remediation agreement, resulting in a fine of $20,000.

...

86 In Wilton , Biscoe J fined the defendant $30,000 on one charge and $10,000 on another charge for clearing native vegetation on the eastern and western parts of the defendant's property respectively and ordered the defendant to pay the prosecutor's costs of $30,000 in total. The land cleared in the eastern part was between 13.1 and 13.5 hectares and 18.3 hectares in the western part. There was actual environmental harm caused by commission of the offence, but Biscoe J found it to be "relatively moderate", with no findings made that the clearing had adversely affected any threatened species, populations or ecological communi-ties. The defendant in Wilton cleared the land for the purpose of commercial planting and harvesting of trees for profit. The defendant believed that clearing the vegetation was exempted from needing development consent under the Act, but the Court found that the defendant made a "serious and careless error" in forming that belief. There were many mitigating, subjective factors in Wilton : no prior convictions; prior good character; full assistance to the prosecution; plea of guilty at the earliest available time; expression of remorse, acceptance of responsibility for his actions and acknowledgment of the damage caused; donation of the felled timber to charities; and compliance with a remediation order in respect of the western area cleared. In respect of the charge for clearing the eastern area, Biscoe J added $10,000 to the fine that was considered to be otherwise appropriate with the object of negating the net financial advantage that the defendant would otherwise obtain. The Court held that there was a need for general deterrence but not specific deterrence.

...

88 Prior to the enactment of the Native Vegetation Conservation Act 1997, clearing of native vegetation was regulated under State Environmental Planning Policies made under the Environmental Planning and Assessment Act . However, the statutory scheme, the maximum penalties and the approach to sentencing of the court were sufficiently different as to make the sentences imposed for offences under that regime offer no guidance to the court when sentencing for offences under the current Native Vegetation Act 2003 .

89 Finally, although concerning different statutory provisions in another jurisdiction, I also note the penalties imposed for clearing native vegetation in breach of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in Minister for the Environment and Heritage v Greentree (No 3) and Minister for the Environment, Heritage and the Arts v Lamattina .

90 In Greentree , the area cleared was about 100 hectares and had a significant effect on a declared Ramsar wetland. Sackville J imposed a civil pecuniary penalty of $150,000 on the individual and $300,000 on the corporation, and made an order for costs. Sackville J's decision was affirmed on appeal: Greentree v Minister for Environment and Heritage (2005) 144 FCR 388; 143 LGERA 1.

91 In Lamattina , the area cleared was 73.4 hectares and had a significant effect on the habitat of the Red-tailed Black Cockatoo, a listed threatened species. Mansfield J imposed a civil pecuniary penalty of $220,000 on the corporation and made an order for costs. In Lamattina , the clearing of the native vegetation also constituted an offence against s 26 of the Native Vegetation Act 1991 (SA). Both the corporation and an individual were charged with offences against the South Australian Act for clearing not only the area of 73.4 hectares that was the subject of the federal prosecution but also a further area of 274.8 hectares. The corporate defendant was fined in total $68,000 for the offences and the individual was fined $51,000: see Lamattina v Gould .

139 In Rae the defendant pleaded guilty to an offence under s 12(1) of the NVA. An area of 215ha was partially cleared, including an area of 155ha which was cleared of 95% of all trees. Most of the trees cleared were mature, with some in excess of 17m in height. In that case the defendant knew that he needed consent to clear but proceeded without it. The clearing was premeditated and intentionally carried out with the knowledge of its seriousness. The trees were cleared to improve the property by making it more viable for agricultural purposes and to increase its capital value. The native vegetation that was cleared had significant conservation status and contributed to biodiversity. The Court held that there was a high degree of environmental harm and the seriousness of this harm was considered an aggravating factor in sentencing. The defendant agreed to an order to remediate the site. Overall, the offence was considered to be of medium objective gravity. Mitigating factors considered included the absence of prior offences, the defendant's good character, the defendant's early guilty plea (although not at the earliest opportunity), the defendant's expression of contrition and remorse and the defendant's assistance in the investigation. A fine of $160,000 was imposed.

140 In Olmwood (No 2) the defendant was found guilty of clearing nine species of native vegetation across a 10.1ha property. While there was no specific level of environmental harm found by the Court, the Court nevertheless noted the loss of habitat for species reliant on the cleared vegetation and the fact that the clearing occurred in a coastal zone where the clearing of vegetation was of particular concern. The defendant was held to have acted recklessly but did not commit the offence for financial gain; the defendant had control over the causes of the environmental harm; the defendant expressed some remorse for its actions; and the defendant had no prior convictions. In the circumstances a fine of $100,000 was imposed.

141 In Calman the Court fined three defendants (two landowners and a contractor) the sum of $22,000 each for the unlawful clearing of 21ha of land, that included mature trees, contrary to s 12(1) of the NVA. In committing the offence the defendants acted neither deliberately nor recklessly, and moreover, were not negligent. Rather, the offences were committed without any knowledge that the clearing was illegal under any law. The defendants' culpability was assessed as low, however, the environmental harm caused was reasonably substantial. The defendants pleaded guilty, had no prior convictions, had expressed contrition and remorse and had agreed to a remediation order. The prosecutor's costs of $73,000 were significant and each defendant was ordered to pay a third of them.

142 In Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 the Court fined Mr Mura $20,000, but reduced it to $5,000 because of his poor financial circumstances, which most likely meant that he would be unable to pay the fine. In that case, approximately 12ha of native vegetation were cleared by use of a bulldozer that predominantly left the canopy trees in tact. The purpose of the clearing was to retain the landscape featuring canopy trees and replace scrub and groundcover with grasses to facilitate pasture improvement for the purpose of grazing cattle, thereby increasing its grazing yield and improving its value. Whilst the defendant was conscious of the possibility that consent might be required, the defendant's state of mind was that he had formed the impression that the authorities did not have any objection to the work about which he had informed them earlier.

143 In Director-General, Department of Environment Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 the defendant was fined $5,000 for the removal of 128 trees and the thinning of approximately 29ha of woodland vegetation. The tree species had a high ecological value and adversely impacted upon the habitat for bird and bat species, as well as a substantial number of individual reptiles and frogs. The clearing also negatively impacted on the condition of the native vegetation remaining on the property. The commission of the offence was not intentional and the culpability of the defendant was not assessed as high. The defendant pleaded guilty at the earliest available opportunity, voluntarily participated in an interview with the investigating authorities and expressed contrition and remorse. In addition, the defendant had very limited means to pay a substantial fine. As a consequence the defendant was fined only a nominal sum.

144 In Director-General, Department of Environment and Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200, the Court fined the defendant $30,150 for the negligent clearing of 22ha of native vegetation of high conservation value at a local scale, but of low conservation at a landscape scale. The defendant had cleared the land largely at the direction of a third party; had pleaded guilty; had provided assistance to the authorities both in terms of its cooperation in respect of the prosecution against it and in respect of a related prosecution arising out of the same facts; was of good character and had expressed its contrition and remorse.

145 Albeit concerned with a breach of s 118D(1) of the NPWA, the defendants in Gordon Plath of Department and Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 were fined $10,000 and $5,000 respectively, were ordered to undertake a restoration project and were ordered to publish a publication notice for damage caused to koala habitat. The defendants pleaded guilty, expressed contrition, cooperated fully with the prosecutor, were of good character with no prior convictions, had suffered extra-curial punishment, were found to be unlikely to reoffend and had agreed to pay the prosecutor's costs in the sum of $105,000.

146 More recently, in Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30, the defendant was fined $82,500 for the clearing of a total of 552ha of native vegetation, however, the real harm was the reckless clearing of 166ha of native vegetation outside an area authorised to be cleared. The vegetation on the property was of high ecological value, however, Mr Linklater expressed considerable contrition and remorse for the unlawful clearing, was otherwise of good character, did not clear the native vegetation for the purpose of making a profit, provided assistance to the authorities and was found to be unlikely to reoffend. Mr Linklater was also ordered to pay the prosector's costs in the amount of $23,000.

147 Walker submitted that the circumstances of this case were considerably more aligned to those in Calman or Colley.

148 Although the areas found to have been cleared in the present case are relevantly analogous to that in Calman and Colley , a number of distinguishing features warrant a considerably less lenient sentence than in either of those two decisions. First, in the present case Walker committed the offence recklessly and its culpability is measurably higher. Second, Walker did not plead guilty. Third, Walker has expressed no contrition or remorse for its unlawful acts. Fourth, Walker neither cooperated nor assisted the prosecuting authorities. Fifth, there is no evidence that Walker is of limited financial means.

Appropriate Penalty to Be Imposed

149 Synthesising both the objective circumstances of the offence as mitigated by the subjective circumstances of Walker and having regard to the existing pattern of sentencing, I consider that an appropriate penalty to be imposed is a fine in the sum of $200,000.

Orders

150 For the reasons articulated above, the Court makes the following orders:

(1) Walker is fined the sum of $200,000;

(2) under s 257B of the Criminal Procedure Act 1986 Walker is to pay the prosecutor's costs of the proceedings as determined under s 257G of that Act; and

(3) the exhibits are to be returned.

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Decision last updated: 13 July 2011