Land and Environment Court New South Wales

• Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52
• Hearing dates: 06/03/2012
• Decision date: 06 March 2012
• Jurisdiction: Class 5
• Before: Lloyd AJ

Decision

In relation to matter 50716 of 2011:

1.The Defendant is guilty of an offence against s 118A(2) of the National Parks and Wildlife Act 1974 as charged.

2.The Defendant is fined a total of $45,000.00

3.The Defendant must pay the Prosecutor's costs in the agreed sum of $26,000.00.

4.Within 28 days of these orders, the Defendant is to submit for approval to the Coffs Coast Area Manager of the National Parks and Wildlife Service a design for strainer posts and a gate to be erected at the junction of Basin Road and Track A in the plan in the agreed statement of facts with a sign saying "Trail closed for Rehabilitation".

5.Within 28 days of such approval, the strainer posts and gate are to be erected.

6.Within 28 days of these orders, the Defendant is to submit for approval to the Coffs Coast Area Manager of the National Parks and Wildlife Service, a five year plan for weed control in areas within Jaaningga Nature Reserve cleared by the Defendant to be undertaken by suitably qualified bush regenerators registered with the Australian Association of Bush Regenerators. This plan is to include a condition that a report on the weed control be provided to the Coffs Coast Area Manager of the National Parks and Wildlife Service ever 1 July and 1 February until 1 February 2017.

7.Within 28 days of these orders, the Defendant is to submit for approval to the Coffs Coast Area Manager of the National Parks and Wildlife Service a plan by a suitably qualified expert for the mitigation and/or prevention of soil erosion in Jaaningga Nature Reserve caused by the Defendant's clearing.

8.Within 90 days of such approval, the works specified in the plan must be carried out.

9.A Publication Order in the form of Annexure A to these orders be placed in the Saturday edition of the Coffs Harbour Advocate and the Bellinger Courier Sun within 28 days of these orders and the Prosecutor be notified of the publication within 28 days of such publication.

In relation to matter 50717 of 2011:

1.The Defendant is guilty of an offence against s 156(A)(1)(b) of the National Parks and Wildlife Act 1974 as charged.

2.The Defendant is fined $40,000.00.

• Catchwords: CRIMINAL LAW - environmental offences - plea of guilty - appropriate penalty
• Legislation Cited: National Parks and Wildlife Act 1974; Threatened Species (Conservation) Act 1995
• Cases Cited: Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683; R v Holder (1983) 3 NSWLR 245
• Category: Sentence
• Parties: Chief Executive, Office of Environment and Heritage (Prosecutor); Coffs Harbour Hardwoods Sales Pty Ltd (Defendant)
• Representation: S Berveling (Defendant); Peter Barley (Prosecutor); Fishburn Watson O'Brien (Defendant)
• File Number(s): 50716 of 2011; 50717 of 2011

EX TEMPORE Judgment

1 The defendant, Coffs Harbour Hardwood Sales Pty Limited, pleads guilty to one offence against s 118A(2)(a) of the National Parks and Wildlife Act 1974 in that on or about 3 August 2010 it picked twenty-one plants of a threatened species, namely, acacia chrysotricha - common name Newry Golden Wattle - at or near Urunga in the State of New South Wales.

2 The defendant also pleads guilty to an offence against s 156A(1)(b) of the same Act in that between about 3 August 2010 and 17 August 2010 inclusive it damaged vegetation on or in land reserved under the Act or acquired under Part 11 of the Act.

3 The maximum penalty available for an offence against s 118A(2)(a) is $220,000 plus $1,100 for each plant affected, which in this case amounts to $451,000. The maximum penalty for an offence against s 156A(1)(b) of the Act is $1.1 million.

4 The parties have helpfully and sensibly agreed on a statement of facts to which I now refer. The land on which the offence occurred is the Jaaningga Nature Reserve which covers an area of about 975 hectares of entirely forested land and is situated about twelve kilometres west of Urunga. The reason that the reserve was created was to protect a rare wattle which has the common name Newry Golden Wattle. Prior to being made a nature reserve, the reserve had been part of the Newry State Forest. The general purpose of reserving land as a nature reserve is set out in s 30J of the Act and it includes protecting areas containing unique species.

5 The Newry Golden Wattle is classified as endangered under schedule 1 of the Threatened Species (Conservation) Act 1995 and is found in and near the reserve. The principal threats to the survival of the wattle in nature as nominated by the Scientific Committee are logging activities and weed invasion. The population of wattle in and near the reserve is estimated to be at least 14,000 plants.

6 The reserve may be approached by a number of roads including Basin Road, which enters the reserve in the northeast, traverses the reserve and exits in the northwest. On Basin Road, on the left shoulder when entering the reserve from the northeast, there is a large National Parks and Wildlife sign which says "Jaaningga Nature Reserve." The sign is not however on the boundary of the reserve but is approximately 100 metres inside the boundary.

7 The defendant company is one of a group of companies that produces hardwood flooring, electricity poles and other timber products for building. It has a logging team that sources timber from a variety of locations in the surrounding region, including from private property. The directors of the company in August 2010 were Mr Gary Robert McCarthy and Mr Henry David McCarthy. Mr Bill McCarthy is a director of associated companies within the group and describes himself as the procurement manager for the defendant company. At the relevant time the defendant employed Mr Bob Hall as a bush boss who directed logging operations on its behalf.

8 Mr Mark Grebert owns a property with the street address 122 Basin Road via Urunga. It abuts the reserve which lies to its south. Mr Claude Bambini owns the neighbouring property to the west of the Grebert property. This land also shares its southern boundary with the reserve.

9 A private native forestry property vegetation plan exists in relation to Mr Grebert's property which allows for some clearing of the native vegetation on that property. Mr Grebert came to an agreement with the defendant that it would selectively log part of his property. Mr Hall and Mr Bill McCarthy did a prelogging inspection before work began. This was in late July 2010. Mr Grebert has said that he told Mr Hall and Mr McCarthy that there was a boundary with the reserve to the south of his property. Mr Grebert showed the private native forestry property vegetation plan to Mr Hall and Mr McCarthy which shows the boundary of the property, but it does not show that the neighbouring area to the south is nature reserve.

10 The logging began on or about 3 August 2010. There was no suitable flat area on Mr Grebert's property to pile the logs so a paddock on Mr Bambini's property was chosen as the log dump and loading area, and Mr Grebert obtained permission from Mr Bambini to use his paddock for that purpose. The trucks had to have access to the log dump and the most obvious access was from Basin Road.

11 Before the logging operation began, Mr Hall together with employees Mr Wall and Mr Hicks looked at maps showing property boundaries, house locations, gullies and streams. Although the defendant company was aware that there was a public land tenure of some sort on the other side of Mr Grebert's property, Mr McCarthy neither made any enquiries himself nor instructed any of his staff to do so.

12 The company did not properly identify the land boundaries of the Grebert property before logging operations began and it was approximately one week into the operation before the property boundary was properly marked. Without having first made any attempt to formally locate the boundary, Mr Hall found a blazed tree and nearby surveyor's peg near Basin Road at a point where he thought the south-eastern corner of the Grebert property was. In an attempt to find the southern boundary of the Grebert property, Mr Hall drove a bulldozer westward off Basin Road from a point close to where he identified the tree blaze and surveyor's peg. At this time Mr Hall was driving within the reserve, albeit that he did not know that he was doing so. This track has been referred to in the evidence as track B.

13 In driving the bulldozer along this track, Mr Hall scraped a new trail, uprooted vegetation and soil which was in his path, and pushed it into piles beside the track. The track had been taken back to bare earth. Before the passage of this bulldozer there was no visible trail through this section of the reserve.

14 Mr Hall then drove the bulldozer south through the reserve, up a ridge line from the proposed log dump site on Mr Bambini's land to Basin Road. Again Mr Hall says that he did not know the land was a reserve. The length of this trail is approximately 700 metres and is referred to as track A in the evidence. The purpose of this work was to create a log haulage route suitable for semi-trailers. The route was taken along an old fire trail that appears not to have been used for over ten years and was regrowing with shrubs, small trees and grass prior to the clearing. Again it was taken back to bare earth.

15 Along the way, Mr Hall turned left and drove the bulldozer to the east off track A, downhill approximately sixty metres into uncleared natural bush in order to try to find the boundary. In doing so he made a short side trail scraped to bare earth. This is referred to as track C in the evidence. Mr Hall also cleared areas to the side of track A which were used as car parks and passing bays. In addition there were approximately eighteen smaller areas to the side of track A which were cleared to accommodate the piles of vegetation and topsoil which had been removed to clear and form track A.

16 From 3 August 2010 until 16 August 2010 there were more than twenty logging truck movements and other traffic using track A. Each truck and vehicle movement southward into the reserve along Basin Road over this time passed the large Jaaningga Nature Reserve sign with the National Parks and Wildlife Service logo upon it that identified the reserve. During the course of the logging operation both Mr Hall and Mr Wall became aware of the sign.

17 A proper attempt to establish the location of the southern boundary of the Grebert property was made about a week after the commencement of logging operations. During the course of the logging operation it became clear, at least to Mr Hall and Mr Wall, that tracks A, B and C were all in the reserve. No alternative means of removing the logs was attempted. In all approximately 4,000 square metres of the reserve, predominantly in the form of tracks, was cleared to bare earth by a bulldozer during this logging operation. No sediment controls had been put in place. In interview Mr Hall agreed with the proposition that given the nature of the topography it would have been usual practice to put in sedimentation controls.

18 I turn now to the evidence of environmental harm. It is agreed that twentyone of the wattles were impacted by the incident, thirteen killed and eight damaged comprising eleven mature and ten immature individuals. Those killed were mainly immature individuals. This represents loss and damage of approximately 0.15 per cent of the total current known population of the wattle. It is not known exactly how many wattles are within the reserve but it is likely to be approximately 1,000 of the total known population of about 14,000.

19 The potential for recruitment into the population of the wattle has been reduced due to the loss of reproductively mature individuals. The wattle first flowers and produces seed at five to six years with its seed production increasing with age. It may take ten to fifteen years to set sufficient seed into the soil seed pool so as to replace the seeding capacity of those plants lost during the incident. Due to the disturbance to vegetation there is also the potential for further weed spread into the reserve by exotic plants such as lantana and broadleafed paspalum.

20 There was an additional impact on thirty native plant species within the reserve as a result of the logging operation including damage, logging and death to many large trees including tallowwood, blackbutt, ironbark, forest oak, turpentine and white mahogany. Many additional species of smaller shrubs, forbs and native grasses also suffered damage or death within the reserve as a result of the bulldozer's passage.

21 A survey in September and November 2011 revealed that a total of seventyeight native species were regenerating at the sites originally surveyed. The plant which was regenerating most prolifically was the small native pastel flower with 360 plants, but the second and third most numerous were the weeds lantana and broad-leafed paspalum.

22 In addition to the environmental harm which I have described, I now turn to other sentencing and penalty considerations. Again the Court has been assisted by written submissions filed by both parties which have been supplemented by oral submissions. In turning to the question of penalty there are a number of important considerations. One of those considerations in considering the objective seriousness of the offence is the purpose for the establishment of nature reserves as expressed in the National Parks and Wildlife Act . That Act of course has as its objectives a number of matters including the conservation of nature, including but not limited to the conservation of habitat, ecosystems and ecosystem processes, and the biological diversity at the community, species and genetic levels.

23 The purpose of reserving land as nature reserves is to identify, protect and conserve areas containing outstanding, unique or representative ecosystems, species, communities or natural phenomena so as to enable those areas to be managed in accordance with sub-s (2): s30J(1). Subsection 30J(2) states:

A nature reserve is to be managed in accordance with the following principles:

(a) the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena.

24 The fact that the wattle in this case is a threatened species also calls into consideration the Threatened Species (Conservation) Act 1995 and the objects of that Act, which are self-evidently to conserve biological diversity and promote ecologically sustainable development, and to prevent the extension and promote the recovery of threatened species, populations and ecological communities amongst other objects.

25 There are a number of considerations in sentencing which apply specifically to these offences as set out in sub-s 194(1) of the National Parks and Wildlife Act . It is necessary to consider each of those and then to consider the other matters required to be considered under the Crimes (Sentencing Procedure) Act 1999.

26 In considering the statutory considerations set out in s 194 of the National Parks and Wildlife Act, the first is the extent of harm caused or likely to be caused by the commission of the offences. It is accepted that in this case there are two offences to consider. I refer to the fact that the Newry Golden Wattle is an endangered species under the Threatened Species (Conservation) Act . In order to be listed under this category, the Scientific Committee must assess according to the criteria under that Act whether a species is facing a very high risk of extinction in New South Wales in the near future as determined in accordance with criteria prescribed by the regulations.

27 It is an agreed fact, as I have noted, that the offence will have a significant impact on the population of the wattle in the nature reserve. Though there is some sign of regeneration in some of the damaged plants, the damage is to at least seventeen plants, many of them mature trees, and it seems to be terminal. Again it is an agreed fact that it may take as long as ten to fifteen years to replace the lost seeding capacity and return to the status quo. The prosecutor's expert witness is of the opinion that the removal of 29 trees is significant, an opinion with which the defendant does not agree. Having regard to the number of trees in the reserve, I do not regard the impact as significant. I have referred to the fact that some 4,000 square metres within the nature reserve has been cleared right back to bare earth and some thirty native species, including some regarded as rare or threatened, were damaged or killed along with shrubs and native grasses. It is also agreed that it would have been the usual practice to have put in sedimentation controls to mitigate likely erosion and this was not done, with resultant potential for harm. The clearing allows for weed infestation in the cleared areas and, as I have noted, this has now occurred.

28 I accept, as the defendant points out, that the twenty-one wattles that were impacted by the incident represents loss and damage of approximately 0.15 per cent of the current known population of 14,000 approximately plants. The defendant also points out that the total cleared area of 4,000 square metres, predominantly tracks, represents 0.041 per cent of the reserve.

29 The next consideration under s 194 of the Act is the significance of the reserve land and the threatened species. The significance of the Newry Golden Wattle is of course largely established by status and an endangered rather than vulnerable species, and it is noted that there are very higher concerns in the structure of the Threatened Species (Conservation) Act. I accept the prosecutor's submission that the purpose of establishing a nature reserve places it in the upper levels of the hierarchy of reserved land. Such areas are especially given over to the protection of outstanding or unique species.

30 The next consideration under s 194 is the practical measures which may have been taken to prevent, control, abate or mitigate the harm. It is, as I noted, an agreed fact that the defendant could have properly established the boundary before doing any work on or adjacent to Mr Grebert's property. The defendant knew there was a boundary close to the logging area but did not try to establish where it was other than by the highly destructive means of driving a bulldozer along a path where it was thought to be. It is said that the defendant may not have logged Mr Grebert's property if there was no other way to cart the logs out; and if there was no alternative route other than through the reserve, the defendant may well have chosen not to do the work.

31 The next consideration under s 194 is the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence. I note that it is not alleged that the defendant knew that the Newry Golden Wattle was in the reserve, but it is self-evident that driving a bulldozer through the bush would have damaged trees and soil. Much of the country through which Mr Hall drove was uncleared natural bush and the old logging trail was only part of the cleared area. In those circumstances I accept that the possibility of harm was more foreseeable.

32 The next consideration under the section is the extent to which the person who committed the offence had control over the causes which gave rise to the offence. Mr Hall, the bush boss, had worked for the defendant company for over twenty years, and I accept the submission that this bespeaks the level of trust and responsibility that the defendant placed in him. In addition, Mr Bill McCarthy, the procurement manager for the company, came to the site but gave no instructions which would have avoided the incident. I accept that the defendant had complete control over the causes giving rise to the offence.

33 The only other relevant consideration under s 194 is whether the offence was committed for commercial gain. In this respect it is self-evident that the offences were committed in the course of a commercial enterprise but not for commercial gain per se , that is, there was no specific proposal to log trees in the reserve. The offences occurred in the course of a commercial activity.

34 Then there are other considerations which bear on the question of sentencing and penalty. The fact that the Court may take other matters into account is expressly stated in s 194(2) of the Act. I accept the fact that although the defendant knew there was public land bordering Mr Grebert's property, it took no proper steps to establish where the boundary was or whose property it was. I accept the fact that the offence was committed negligently, which of itself increases the objective seriousness of the offence. Once the defendant knew where the property boundary was, it continued to use the logging trail that it had cleared, and in that sense it knew that it was in a nature reserve and its conduct thereafter was both wilful and deliberate. In taking the logs out, logging trucks must of necessity have driven past the National Parks and Wildlife sign on Basin Road.

35 The defendant points to a number of mitigating circumstances which I take into account. I have referred to the fact that I have accepted the submission that the offences were not committed for commercial gain but are properly to be regarded as offences in the course of a commercial activity. I accept the fact that, turning to the subject of circumstances of the defendant, it has engaged in the business of logging and production of wood products for over thirty-five years. It has fully co-operated with the prosecutor throughout the conduct of this matter in comprehensive records of interview, in the preparation and filing of an agreed statement of facts, and in the oral evidence of Mr Bill McCarthy, who gave evidence before me this morning and who expressly says that he is very sorry to have done this and that it was, as far as he was concerned, unintentional.

36 I accept that the defendant has expressed contrition and remorse as shown by Mr McCarthy's evidence, by its immediate and comprehensive assistance to the authorities, its guilty plea at the first available opportunity, and the presence of Mr Hall and Mr Bill McCarthy in the Court.

37 I also note that the defendant accepts the appropriateness of a remediation order which will be imposed, and I take into account in fixing the penalty the cost to the defendant of the remediation order which is said to be in the order of $12,500 to $17,500.

38 The purposes of sentencing under the Crimes (Sentencing Procedure) Act are well-known. They are:

(a) to ensure that the offender has been adequately punished for the offence;

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

(c) (not relevant);

(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, and

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

39 In this case the victim and the community are the threatened species involved and the community interest in preserving the threatened species and endangered species, and the purposes of having a nature reserve.

40 In the present case there is no need for any element of specific deterrent. However, the other considerations are relevant and I am prepared to take them into account. I take into account the fact that a fine must send a message to others in the timber industry that harming vegetation on reserved land without authorisation is just not acceptable. I also take into account the fact that the defendant does not have any record of previous convictions against this Act and, as I have said, that the defendant has agreed to both a remediation order and, in addition, a publication order. Moreover, the defendant also consents to an order to pay the prosecutor's costs in the agreed sum of $26,000.

41 In the present case the two offences arise out of the same course of conduct and there is a considerable overlap between them. In these circumstances the principle of totality applies. The principle of totality was usefully described by the president of the Court of Appeal, Kirby P, in Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683. In that case the president adopted what was said by Sir Laurence Street in an earlier case of R v Holder (1983) 3 NSWLR 245 at 260:

The principle of totality is a convenient phrase descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate in a broad sense the overall criminality involved in all of the offences and having done so will determine what if any downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all the offences.

42 In considering the totality of the criminality involved in all of the offences I have been referred to a number of other cases, none of which have identical facts to those in the present case, but they do indicate a range of sentencing which has occurred in what might be called generally land clearing cases. It is necessary to have regard to these when imposing a penalty since the Court has to have regard to what is called the principle of even-handedness. In considering the other cases to which I have been referred, only three of them are cases involving offences against s 156A of the Act but, as I have said, the facts in each case are different.

43 Doing the best I can, I have come to a view that the totality of the criminality in both offences in this case warrants a penalty of $120,000 having regard to the maximum penalties, and I am prepared to reduce that in view of the mitigating factors to which I referred to $85,000. This therefore is the total penalty which will be apportioned between the two offences.

44 It is then appropriate that I make the following formal orders:

1. In relation to matter 50716 of 2011:

1. The Defendant is guilty of an offence against s 118A(2) of the National Parks and Wildlife Act 1974 as charged.

2. The Defendant is fined a total of $45,000.00

3. The Defendant must pay the Prosecutor's costs in the agreed sum of $26,000.00.

4. Within 28 days of these orders, the Defendant is to submit for approval to the Coffs Coast Area Manager of the National Parks and Wildlife Service a design for strainer posts and a gate to be erected at the junction of Basin Road and Track A in the plan in the agreed statement of facts with a sign saying "Trail closed for Rehabilitation".

5. Within 28 days of such approval, the strainer posts and gate are to be erected.

6. Within 28 days of these orders, the Defendant is to submit for approval to the Coffs Coast Area Manager of the National Parks and Wildlife Service, a five year plan for weed control in areas within Jaaningga Nature Reserve cleared by the Defendant to be undertaken by suitably qualified bush regenerators registered with the Australian Association of Bush Regenerators. This plan is to include a condition that a report on the weed control be provided to the Coffs Coast Area Manager of the National Parks and Wildlife Service ever 1 July and 1 February until 1 February 2017.

7. Within 28 days of these orders, the Defendant is to submit for approval to the Coffs Coast Area Manager of the National Parks and Wildlife Service a plan by a suitably qualified expert for the mitigation and/or prevention of soil erosion in Jaaningga Nature Reserve caused by the Defendant's clearing.

8. Within 90 days of such approval, the works specified in the plan must be carried out.

9. A Publication Order in the form of Annexure A to these orders be placed in the Saturday edition of the Coffs Harbour Advocate and the Bellinger Courier Sun within 28 days of these orders and the Prosecutor be notified of the publication within 28 days of such publication.

45 In relation to matter 50718 of 2011:

1. The Defendant is guilty of an offence against s 156(A)(1)(b) of the National Parks and Wildlife Act 1974 as charged.

2. The Defendant is fined $40,000.00.

46 The exhibits may be returned.

47 I thank both counsel and solicitor for their assistance in this case.

**********

ANNEXURE A

PUBLICATION ORDER COFFS HARBOUR HARDWOODS SALES PTY LIMITED CONVICTED OVER ILLEGAL WORKS IN NATURE RESERVE On 6 March 2012 Coffs Harbour Hardwoods Sales Pty Limited (CHH) was convicted in the Land and Environment Court of two offences against the National Parks and Wildlife Act 1974 . In August 2010, as part of a legitimate logging operation on a neighbouring property, a CHH employee drove a bulldozer through Jaaningga Nature Reserve near Urunga. The apparent purpose was to locate the boundary of the area to be logged and to create a trail through the Nature Reserve to remove the logs. While driving the bulldozer through the Nature Reserve, over 1 kilometre of illegal track was created and 21 Newry Golden Wattles ( Acacia chrysotricha ), an endangered species listed under Schedule 1 of the NSW Threatened Species Conservation Act , were damaged or killed along with a number of other protected native trees and plants in the Reserve, leading to approximately 4,000 square metres of the Nature Reserve being cleared to bare earth. CHH pleaded guilty and was fined $85,000.00 with $26,000.00 costs and ordered to finance restoration and weed control works within the damaged area of the Nature Reserve. Coffs Harbour Hardwoods Sales Pty Limited was prosecuted by the Office of Environment and Heritage and was ordered by the Land and Environment Court to place this notice at CHH's expense.

Decision last updated: 20 March 2012