 |
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Preston J
6 February 2006
50074 of 2003
J R BENTLEY V BGP PROPERTIES PTY LIMITED
JUDGMENT
HIS HONOUR:
1 The obligation for conservation of threatened species in New South Wales was introduced by the Threatened Species Conservation Act 1995 (NSW) (“the TSC Act”). The TSC Act itself and through amendments to the National Parks and Wildlife Act 1974 (NSW) (“the NPW Act”), provides for the listing of species as threatened species (which category comprises endangered species and vulnerable species) and the prohibitions on harming or picking listed threatened species except with prior approval of a competent regulatory authority.
2 A species of plant, with the scientific name of Tetratheca juncea and the common name of Black-eyed Susan, has been listed as a vulnerable species under the TSC Act. A vulnerable species is one which the Scientific Committee established under the TSC Act considers is likely to become endangered in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate: s 14 of the TSC Act.
3 A key circumstance and factor threatening Tetratheca juncea is habitat clearance. Habitat clearance results in direct destruction of individual plants, fragmentation of populations of plants and reduction of the range and distribution of the species. Other threats are competition from weeds, inappropriate fire regimes and impact from the plant pathogen Phytophora cinnamomi.
4 Between 1 August 2001 and 7 December 2001, the defendant, BGP Properties Pty Limited, was responsible for the slashing, clearing and excavation of land at Redhead in the local government area of the City of Lake Macquarie. In doing so, it damaged thousands of plants of the vulnerable species Tetratheca juncea.
5 As a consequence, the defendant has been charged with picking a threatened species contrary to s 118A(2) of the NPW Act.
6 The defendant has pleaded guilty to the charge. The Court’s task is to determine the appropriate sentence for the defendant’s crime.
The charge
7 The defendant, BGP Properties Pty Limited, is charged with the offence that:
“between 1 August 2001 and 7 December 2001 at Redhead in the State of New South Wales, Hugh Charles Gordon, whilst acting in his capacity as an agent or a person concerned in the management of the defendant, or at the direction or with the consent or agreement of a director of the defendant, did pick a threatened species, being a plant, to wit,
Tetratheca juncea
, contrary to s 118A(2) of the
National Parks and Wildlife Act
, 1974, as a consequence of which, pursuant to section 175A of the Act, the defendant is taken to have contravened the same provision.
Particulars: Land on which
Tetratheca juncea
located: Lot 1 DP 42613 and Lot 4 DP 248860.”
The defendant’s plea of guilty
8 On 25 September 2003, the defendant filed a notice of appearance by its solicitor, Mr P Hines.
9 On 18 December 2003, the defendant was represented by Mr P Larkin, of counsel, instructed by Mr P Hines, solicitor. The defendant entered and the Court accepted the defendant’s plea of guilty to the charge.
10 Subsequently, on 10 August 2005, Mr P Hines, solicitor, filed a notice of ceasing to act for the defendant. No other solicitor has been retained by the defendant.
11 On 6 July 2005, a receiver manager was appointed to the defendant.
12 On 30 August 2005, the Supreme Court of New South Wales appointed a liquidator, Mr R J Porter of Moore Stephens, Chartered Accountants, to the defendant. The liquidator was appointed after the Chief Commissioner of State Revenue commenced winding up proceedings against the defendant for unpaid land tax and interest on the unpaid tax.
13 On 30 September 2005, the prosecutor’s solicitor wrote to the Official Liquidator seeking its consent to continuation of the proceedings.
14 On 4 October 2005, the Official Liquidator responded by letter saying that although he could not provide written consent for the continuation of the proceedings and that leave of the Supreme Court of New South Wales would be required, nevertheless he did consent to the prosecutor proceeding against the company and the letter could be tendered to the Supreme Court as evidence of his consent.
15 On 17 November 2005, the Supreme Court of New South Wales granted leave under s 471B of the Corporations Act 2001 (Cth.) to proceed against the defendant in these proceedings (No. 50074 of 2003).
16 Section 471B of the Corporations Act 2001 (Cth.) provides relevantly:
“While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:
(a) a proceeding in a court against the company or in relation to property of the company; or
(b) enforcement process in relation to such property;
except with the leave of the Court and in accordance with such terms (if any) as the Court imposes”.
17 Under s 58AA of the Corporations Act 2001 “court” means “any court” and “Court” means, relevantly, “the Supreme Court” of New South Wales.
18 The plea entered by the defendant on 18 December 2003 was made by the defendant’s counsel who acted as the agent for the defendant. That guilty plea constituted an admission by the defendant of all of the elements of the offence. At no time after entering the guilty plea has the defendant sought the leave of the Court to withdraw its plea of guilty and leave has not been granted. There is no evidentiary basis for the Court to proceed otherwise than that the guilty plea of the defendant was validly entered and remains on foot.
19 The appointment of a liquidator to the defendant does not affect the validity or currency of the defendant’s plea of guilty.
Proceeding ex parte against the defendant
20 The proceedings were instituted against the defendant on 31 July 2003 by way of summons No. 50074 of 2003 issued by the Court. The summons and order required the defendant to attend the Court on 11 September 2003. The prosecutor applied for such an order pursuant to s 246 of the Criminal Procedure Act 1986 (NSW) (“the CP Act”).
21 Since 11 September 2003, the proceedings against the defendant have been adjourned by this Court on a number of occasions.
22 On 25 August 2005, the proceedings were fixed by the Court for hearing. On that occasion, the defendant appeared by its agent, Mr Hugh Gordon, who by this date had been appointed the sole director of the defendant. The date fixed for hearing was 21 November 2005. A related prosecution against Mr Gordon personally (No. 50070 of 2003) was also fixed for hearing on 21 November 2005.
23 On 18 November 2005, the prosecutor’s solicitor sent a facsimile to the Official Liquidator informing him that the Supreme Court had granted leave for these proceedings No. 50074 of 2003 to continue and that this Court had fixed the proceedings for hearing on sentence on 21 November 2005.
24 On 21 November 2005, the Official Liquidator responded by letter stating:
“Please be advised that I do not intend to be represented at any forthcoming hearing in the Land and Environment Court. I will adhere to any decision of the Court provided that no orders are made against me personally. Please do not hesitate to hand this correspondence up to the Court if required”.
25 On 21 November 2005, both the prosecution against Mr Gordon (No. 50070 of 2003) and against the defendant (these proceedings No. 50074 of 2003) were called for hearing. Mr Gordon appeared for himself in proceedings No. 50070 of 2003. However, there was no appearance for the defendant in these proceedings No. 50074 of 2003.
26 The Court directed that the two proceedings should be heard separately, but consecutively. The Court first heard proceedings No. 50070 of 2003. The hearing commenced on 21 November 2005 and continued on the next day, 22 November 2005. Mr Gordon continued to appear for himself in those proceedings. Ex tempore judgment was delivered in those proceedings at the conclusion of the hearing on 22 November 2005: Bentley v Gordon [2005] NSWLEC 695 (22 November 2005).
27 These proceedings, No. 50074 of 2003, were then called on for hearing. There was still no appearance for the defendant. Mr Gordon, a director of the defendant, was still in attendance in the Court by reason of his being there for the first proceedings heard, namely No. 50070 of 2003. Due to the lateness of the hour on the day, the hearing of these proceedings No. 50074 of 2003 was adjourned to 5 December 2005.
28 On 24 November 2005, the prosecutor’s solicitor sent a facsimile to the Official Liquidator advising him that the hearing had been adjourned to 5 December 2005.
29 On 5 December 2005, at the hearing, there was no appearance for the defendant.
30 Notwithstanding the non-appearance of the defendant at the hearing, the Court has power to convict and sentence the defendant in its absence.
31 Section 41 of the Land and Environment Court Act 1979 (“LEC Act”) provides that Part 5 of Chapter 4 of the CP Act applies to proceedings in Class 5 of the Court’s jurisdiction. Section 41 took effect from 7 July 2003. The section was inserted by the Justices Legislation Repeal and Amendment Act 2001 (NSW) (s.4, Schedule 2, 2.132[3]).
32 Section 250 of the CP Act (which is in Part 5 of Chapter 4) confers power on the Court to proceed to hear and determine the matter in the absence of the defendant:
“If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned) the court may, if satisfied that the order was served on the accused person:
(a) proceed to hear and determine the matter in the absence of the accused person…”.
33 The defendant has not appeared on a day to which the hearing has been adjourned (5 December 2005) by an order under s 246 (which appears under Division 2).
34 In Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147 (10 June 1999), this Court proceeded ex parte against a company in liquidation pursuant to section 49 of the LEC Act. Section 250 of the CP Act is the successor to s 49 of the LEC Act, which was amended by the Justices Legislation Repeal and Amendment Act 2001 (s. 4, Schedule 2. 2.132[3]).
35 The Court can and should proceed to hear and determine the proceedings, notwithstanding the absence of the defendant.
The offence provisions
36 Section 118A(2) of the NPW Act at the time of the commission of the offence provided:
“A person must not pick any threatened species, population or ecological community, being a plant.”
37 A “threatened species” in the NPW Act has the same meaning as in the TSC Act: s 5(1) of the NPW Act. A “threatened species” in the TSC Act means:
“a species specified in Part 1 or 4 of Schedule 1 or Schedule 2”: s 4(1) of the TSC Act.
38 Schedule 1 of the TSC Act lists endangered species, populations and ecological communities. Schedule 2 lists vulnerable species.
39 Tetratheca juncea is listed as a vulnerable species under Schedule 2 of the TSC Act.
40 To “pick” a native plant including a threatened species means to “gather, pluck, cut, pull up, destroy, poison, take, dig up, remove or injure the plant or any part of the plant”: s 5(1) of the NPW Act.
41 Section 175A of the NPW Act provides that a corporation is liable for a contravention of the Act by a director, manager, employee or agent of the corporation. Section 175A provides:
“(1) If a person contravenes any provision of this Act or the regulations:
(a) while acting in the capacity of a director, a person concerned in the management, or an employee or an agent, of a corporation, or
(b) at the direction or with the consent or agreement (whether express or implied) of such a director, person, employee or agent,
the corporation shall be taken to have contravened the same provision.
(2) A corporation may be proceeded against and convicted under a provision pursuant to subsection (1), whether or not the director, person, employee or agent has been proceeded against or convicted under that provision.
(3) Nothing in this section affects any liability imposed on a person for an offence committed by the person against this Act or the regulations”.
42 Contravention of s 118A(2) of the NPW Act is an offence: s 175(1) of the NPW Act.
43 The penalty to be imposed for an offence against s 118A(2) of the NPW Act is the penalty provided for in that Act: s 4(1) of the Crimes (Sentencing Procedure) Act 1999.
44 The penalty prescribed in s 118A(2) of the NPW Act differs depending upon whether the plant picked is an endangered species or a vulnerable species. For a vulnerable species, the penalty is 500 penalty units or imprisonment for one year or both: s 118A(2), paragraph (b) under the heading Penalty.
45 Currently, there is an additional penalty of 50 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence. However, at the time the offence in this case was committed, between August to December 2001, the additional penalty did not apply.
46 Hence for this defendant, the penalty is limited to 500 penalty units or imprisonment for one year or both: see s 19(1) of the Crimes (Sentencing Procedure) Act 1999.
47 A penalty unit is the equivalent of $110: s 17 of the Crimes (Sentencing Procedure) Act 1999. Hence, 500 penalty units equates to $55,000. This is the maximum penalty: s 18(1) of the Crimes (Sentencing Procedure) Act 1999.
48 There are a number of statutory defences to a prosecution for an offence against s 118A(2) specified in s 118A(3) of the NPW Act. These include the accused proving that the act constituting the alleged offence:
(a)
was authorised to be done and was done in accordance with a licence granted under ss 120, 131, 132, 132A or 132C of the NPW Act or under Part 6 of the TSC Act (s 118A(3)(a) of NPW Act) or;
(b) was essential for the carrying out of:
(i) development in accordance with a development consent within the meaning of the
Environmental Planning and Assessment Act
1979, or
(ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or
(iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part (s 118A (3) (b) of NPW Act).
49 Application for a licence under Part 6 of the TSC Act, or a development consent under Part 4 or an approval under Part 5 of the Environmental Planning and Assessment Act 1979 involves environmental impact assessment by the applicant in the application (including a species impact statement where the proposed action is likely to significantly affect threatened species, populations or ecological communities or their habitats) and by the relevant regulatory authority in considering the application: see for licences under Part 6 of the TSC Act, ss 92, 94, 94A, 95, 97 and 98 of TSC Act, for development consents under Part 4, ss 78A, 79B, 79C of the Environmental Planning and Assessment Act 1979, and for approvals under Part 5, ss 111, 112, 112A, 112C, 112D, 112E, 113, 114, 115 of the Environmental Planning and Assessment Act 1979.
50 However, as the defendant has pleaded guilty, none of these defences are relevant in this case.
The statutory scheme in which the offence provision occurs
51 The offence provision of s 118A(2) of the NPW Act was introduced into the NPW Act by the TSC Act.
52 The TSC Act, as its long title pronounces, is “an Act to conserve threatened species, populations and ecological communities of animals and plants”. The objects of the TSC Act are stated in s 3 to be:
“(a) to conserve biological diversity and promote ecologically sustainable development, and
(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and
(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and
(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations, and ecological communities, and
(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and
(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management”.
53 The TSC Act achieved these objects partly by the provisions in the substantive text of the statute but also by amendments of other statutes, including, importantly, the NPW Act.
54 Section 152 and Schedule 4 of the TSC Act effected considerable amendments to the NPW Act. Of relevance to these proceedings:
(a) definitions of “vulnerable species”, “threatened species” and “species”, each consonant with those in the TSC Act, were introduced (Schedule 4, [1]);
(b) a new definition of “pick” was substituted (Schedule 4, [5]); and
(c) a new Part 8A concerning threatened species, populations and ecological communities and their habitats, and critical habitat was inserted (Schedule 4, [86]). Part 8A comprised the offence provisions, including s 118A prohibiting harming or picking threatened species, populations or ecological communities without prior approval of a competent regulatory authority.
55 The NPW Act was further amended by the National Parks and Wildlife Amendment Act 2001 (NSW). Section 3 and the Schedules to that Act effected the amendments. Schedule 3 concerned amendments to the provisions relating to licensing and offences. An additional penalty for each animal harmed or whole plant picked in contravention of s 118A was introduced (Schedule 3 [25]-[28]). Schedule 4 inserted an objects provision into the NPW Act, s 2A. Section 2A provides in part:
“(1) The objects of this Act are as follows:
(a) the conservation of nature, including, but not limited to, the conservation of:
(i) habitat, ecosystems and ecosystem processes, and
(ii) biological diversity at the community, species and genetic levels, and
(iii) landforms of significance, including geological features and processes, and
(iv) landscapes and natural features of significance including wilderness and wild rivers…
(2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development”.
56 The “principles of ecologically sustainable development” are defined to be the principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991 (Schedule 4, [2]). These principles are described as involving the four principles of the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity and improved valuation, pricing and incentive mechanisms.
57 Ecologically sustainable development is fundamental to meeting the needs of the present and future generations. It is a touchstone, “a central element”, in decision-making relating to planning for and development of the environment and the natural resources that are the bounty of the environment: Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 (7 April 2004) at [178]; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at 271 [110], 262 [113].
58 The conservation of biological diversity and ecological integrity is one of the pillars of ecologically sustainable development.
59 Biological diversity means:
“the diversity of life and is made up of the following 3 components:
(a) genetic diversity – the variety of genes (or units of heredity) in any population,
(b) species diversity – the variety of species,
(c) ecosystem diversity – the variety of communities or ecosystems”: s 4(1) of the the TSC Act.
60 At a macro level, ecological integrity involves conservation of the ecological processes that keep the planet fit for life. They “shape climate, cleanse air and water, regulate water flow, recycle essential elements, create and recreate soil, and enable ecosystems to renew themselves”: IUCN, UNEP, WWF, Caring for the Earth: A Strategy for Sustainable Development, Oxford University Press, 1992 at p. 9.
61 Maintaining ecological integrity involves maintaining ecosystem health. Ecosystems become unhealthy if their community structure (species richness, species composition or food web architecture) or ecosystem functioning (productivity, nutrient dynamics, decomposition) has been fundamentally upset by human pressures: M Begon, C R Townsend and J L Harper, Ecology: From Individuals to Ecosystems, 4th ed, Blackwell Publishing, 2006, p. 645.
62 Maintaining ecological integrity also involves maintaining ecosystem functioning and ecosystem services. Ecosystem functioning is “the sum total of processes such as the cycling of matter, energy, and nutrients operating at the ecosystem level”: R A Virginia and D H Wall, “Ecosystem Function, Principles of” in S A Levin (ed), Encyclopaedia of Biodiversity, Academic Press, 2001, Volume 2, p. 345. Ecosystem services are “the wide array of conditions and processes through which ecosystems, and their biodiversity, confer benefits on humanity; these include the production of goods, life support functions, life-fulfilling conditions, and preservation of options”: G Daily and S Dasgupta, “Ecosystem Services, Concept of”, in S A Levin (ed), Encyclopaedia of Biodiversity, Academic Press, 2001, Volume 2, p. 353.
63 The conservation of threatened species is an essential action in the conservation of species diversity, and hence of biological diversity, and of ecological integrity.
64 The resultant statutory scheme effected by the TSC Act, including the amendments to the NPW Act, includes the following matters:
(a) the identification and classification of species, populations and ecological communities that are threatened (Part 2 of TSC Act);
(b) the listing of species, populations and ecological communities so identified and classified as threatened species, populations and ecological communities under the schedules of the TSC Act (Schedule 1 being for endangered species, populations and ecological communities and Schedule 2 for vulnerable species) (Part 2 of TSC Act);
(c) the identification and classification of processes that threaten or have the capability to threaten the survival or evolutionary development of species, population or ecological communities (Part 2 of TSC Act);
(d) the listing of threatening processes so identified and classified as key threatening processes under Schedule 3 of the Act (Part 2 of TSC Act);
(e) the identification of habitat that is critical to the survival of endangered species, populations and ecological communities (Part 3 of TSC Act);
(f) the declaration of habitat so identified as critical habitat (Part 3 of TSC Act);
(g) the preparation of recovery plans for threatened species, populations and ecological communities to promote the recovery of the species, populations or ecological communities to a position of viability in nature, and the implementation of such plans (Part 4 of TSC Act);
(h) the preparation of threat abatement plans to manage key threatening processes to abate, ameliorate or eliminate the adverse effects of key threatening processes on threatened species, populations or ecological communities or to prevent species, populations or ecological communities that are not yet threatened, but could become threatened from becoming threatened, and the implementation of such plans (Part 5 of TSC Act);
(i) the prohibition on damaging threatened species, populations or ecological communities (by “harming” species, populations or ecological communities that comprise animals or by “picking” species, populations or ecological communities that comprise plants), except in certain limited circumstances (Part 8A of NPW Act);
(j) the relaxation of the prohibition by applying for and obtaining approval from a competent regulatory authority (such as a licence under Part 9 of the NPW Act or Part 6 of the TSC Act or development consent under Part 4 or approval under Part 5 of the
Environmental Planning and Assessment Act
1979) authorising the damaging of the threatened species, population or ecological community (Part 8A of NPW Act); and
(k) the requirement for prior assessment and study of the impacts of a proposed action likely to damage threatened species, populations or ecological communities, in accordance with prescribed procedures, and the submission of a written statement of such assessment and study, in the form and manner prescribed (such as species impact statement), as part of any application for approval to damage threatened species, populations or ecological communities (e.g. in Part 6 of TSC Act, Part 4 or Part 5 of
Environmental Planning and Assessment Act
1979 (NSW), depending on the approval sought).
65 The statutory requirements for prior environmental impact assessment and approval before carrying out any action likely to damage threatened species, populations or ecological communities are important linchpins of the statutory scheme for conservation of threatened species, populations and ecological communities: see similar comments in relation to the system of control of planning and development in Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 at 97 [35], Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24] and Council of Camden v Tax (2004) 137 LGERA 368 at 372 [28] and [29].
66 It is important to observe in this respect that the TSC Act and NPW Act remove the proprietary right of an owner or occupier of land to carry out action that damages threatened species, populations or ecological communities without approval of the competent regulatory authority. But owners or occupiers are permitted to obtain approval by the prescribed procedure: see the analogous comments in Lloyd v Robinson (1962) 107 CLR 142 at 154 and WA Planning Commission v Temwood Holdings Pty Limited (2004) 137 LGERA 232 at 251 [50], [51] and 268 [116]; [2004] HCA 63 at [50], [51], [116].
67 Requiring prior environmental impact assessment and approval is a key means of achieving ecologically sustainable development. It facilitates achievement of the principle of integration (“ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes”: s. 6(2) of Protection of the Environment Administration Act 1991 (NSW) adopted by s. 5(1) of NPW Act. See also Principle 4 of Rio Declaration on Environment and Development). If environmental considerations are to be an integral part of decision-making processes, it is necessary to assess the environmental impacts and risks associated with proposed activities. Environmental impact assessment is widely applied to predict the impacts of proposed activities on the environment.
68 Prior environmental impact assessment and approval are important components in a precautionary approach. The precautionary principle is intended to promote actions that avoid serious or irreversible damage in advance of scientific certainty of such damage. Environmental impact assessment can help implement the precautionary principle in a number of ways including:
(a) enabling an assessment of whether there are threats of damage to threatened species, populations or ecological communities;
(b) enabling an evaluation of the conclusiveness or certainty of the scientific evidence in relation to the threatened species, populations or ecological communities or the effect of proposed development on them;
(c) enabling informed decisions to be made to avoid or mitigate, wherever practicable, serious or irreversible damage to the threatened species, populations or ecological communities and their habitats; and
(d) shifting the burden of proof (evidentiary presumption) to persons responsible for potentially harmful activity to demonstrate that their actions will not cause environmental harm:
Conservation Council of South Australia v Development Assessment Committee and Tuna Boat Owners Association (No. 2)
[1999] SAERDC 86 (16 December 1999), [24] and [25] upheld in
Tuna Boat Owners Association of South Australia v Development Assessment Commission
(2000) 110 LGERA 1, at 6 [27] – [30]. See generally on the issue of the precautionary principle in environmental impact assessment, G Tucker and J Treweek, “The Precautionary Principle in Impact Assessment: An International Review” in R. Cooney and B. Dickson (eds)
Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use
, Earthscan, 2005, pp. 73-93.
69 The requirement for prior environmental impact assessment and approval enables the present generation to meet its obligation of intergenerational equity by ensuring the health, diversity and productivity of the environment is maintained and enhanced for the benefit of future generations.
70 Finally, prior environmental impact and assessment and approval can facilitate the internalisation of external environmental costs by including environmental factors in the valuation and costs of assets and services (such as in the price of allotments created by subdivision and development), by implementing the user pays or polluter pays principle (those who cause harm to the environment should bear the cost of containment, avoidance or abatement) and by ensuring that users of goods and services should pay prices used on the full life cycle costs of providing goods and services including the use of natural resources and assets (such as the full life cycle costs of maintaining reserved, existing habitat and of establishing and maintaining compensatory habitat of threatened species, populations and ecological communities).
71 Failure to comply with requirements for prior environmental impact assessment and approval results in the loss of opportunity to achieve these four pillars of ecologically sustainable development (being the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and the internalisation of external environmental costs).
The criminal procedure provisions
72 Proceedings for an offence against the NPW Act may be dealt with summarily before this Court: s 176(1) of the NPW Act. Such proceedings are assigned to Class 5 of the Court’s jurisdiction: s 21(i) of the LEC Act.
73 In proceedings in Class 5 of the Court’s jurisdiction Part 5 of Chapter 4 of the CP Act applies: s 41 of the LEC Act.
74 The payment of any money ordered by the Court to be paid as a penalty or for costs is taken to be a fine within the meaning of the Fines Act 1996: s 254 of the CP Act.
The land
75 The land on which the clearing activities constituting the offence occurred comprises Lot 1 in DP 42613 and Lot 4 in DP 248860, known as 10a Cowlishaw Street, Redhead (“the land”). The land is 14 kilometres south of Newcastle on the eastern side of Lake Macquarie in the local government area of the City of Lake Macquarie.
76 The land forms part of a vegetated link between the Belmont Wetlands to the southwest and Awabakal Nature Reserve to the northeast.
77 The land is bounded to the east and south by the disused Redhead Coal Railway embankment. To the west and south are reserved lands zoned for open space and environment purposes associated with the Jewells Swamp. Jewells Swamp is a wetland of high national, regional and local conservation significance. It is listed under State Environmental Planning Policy No. 14 – Coastal Wetlands. The soil landscape, hydrology and drainage lines connect the land and Jewells Swamp: T A James, G R Sainty and F J Bravo, Clearing of Native Vegetation – Lots 1 and 4 Cowlishaw Road, Redhead, Report to the NSW National Parks and Wildlife Service and Lake Macquarie City Council, August 2002, p. 5 (Exhibit B).
78 The land has an area of approximately 44 hectares.
The threatened species
79 Ms Deborah Stevenson, an environment protection officer with the Department of Environment and Conservation and formerly a senior threatened species officer with the NSW National Parks and Wildlife Service, gave evidence in relation to Tetratheca juncea, its description, location and habitat, key threats, reasons for listing as a vulnerable species and the significance of a sub-population of the species on the land. Ms Stevenson’s affidavit of 28 November 2005 appended various scientific reports on the species.
Description
80 Tetratheca juncea is a slender, spiralling shrub with mature stems to 80 centimetres long. It may form single clumps with a number of flowering stems that emerge at one point from a single root stock or there may be plant clumps separated above the ground with connected roots. The flowers have four petals and range in colour from white through to pink to dark purple, with a black centre or eye. The latter characteristics of a black eye has resulted in the common name of Black-eyed Susan.
Location
81 Tetratheca juncea is endemic to New South Wales. The species is confined to the northern portion of the Sydney Basin Bioregion and the southern portion of the North Coast Bioregion. Extant populations are located from Bulahdelah in the north to the Wyong area in the south, extending inland as far as Maitland and Kurri Kurri. Most populations occur in the local government areas of Wyong and Lake Macquarie with isolated populations in the Newcastle, Port Stephens, Great Lakes and Cessnock local government areas.
Habitat
82 Tetratheca juncea occurs largely in coastal and subcoastal areas. It usually grows in low nutrient soils in hills and ridges and along creeks. It is associated with woodland and open forest dominated by various species of Eucalyptus and other tree species or with heath vegetation: Advice to the Minister for the Environment and Heritage (Cth.) from the Threatened Species Scientific Committee (“TSSC”) on amendments to the list of the threatened species under the Environment and Protection and Biodiversity Conservation Act 1999 (“the EPBC Act”), 7 September 2005, p. 1 of 9.
Key threats
83 Key threats to Tetratheca juncea include:
“ habitat loss and degradation (e.g. from land development, mining and timber harvesting activities);
· competition from weeds;
· inappropriate fire regimes;
· impacts from the plant pathogen Phytophora cinnamomi”: Advice to the Minister for the Environment and Heritage (Cth.), supra, p. 8 of 9.
Priority recovery and threat abatement actions
84 The advice to the Minister for the Environment and Heritage (Cth.), noted that the priority recovery and threat abatement actions required for Tetratheca juncea are to:
“ protect and restore priority sites;
· minimise further fragmentation of the species’ habitat;
· assess the likely impact of Phytophora cinnamomi on the species and develop appropriate management protocols;
· investigate and develop a suitable fire regime; and
· identify important populations and activities that may have an adverse impact on them”: supra, p. 8 of 9.
85 An important population of Tetratheca juncea is one that is necessary for the species’ long term survival and recovery. This included populations that are, first, “key source populations for dispersal” and secondly, “populations that are necessary for maintaining genetic diversity”. In the second respect, the four sub-populations of Tetratheca juncea which have greater than 1000 plant clumps each, are populations that are necessary for maintaining genetic diversity. One of these four sub-populations is the Jewells Swamp/Redhead subpopulation, which includes the land in this case: Advice to the Minister for the Environment and Heritage (Cth.), supra, p. 8 of 9.
Reasons for listing as a vulnerable species
86 Tetratheca juncea was originally listed on the CSIRO’s Rare or Threatened Australian Plants (ROTAP) list as a vulnerable species. It had a conservation code of 3VCa. This code indicated that the species has:
(a) a geographic range in Australia of greater than one hundred kilometres (the “3”);
(b) a vulnerable conservation status which means that the species, whilst not presently endangered, nevertheless is at risk over a longer period (20-50 years) of disappearing through continued depletion, or which occurs on land whose future use is likely to change and threaten its survival (the “V”);
(c) at least one population in a national park, other proclaimed conservation reserve or in an area otherwise dedicated for the protection of flora, but nevertheless the species may not be adequately conserved within the reserve as reflected by the conservation status (such as vulnerable) assigned to it (the “C”); and
(d) a size class of all reserve populations of 1000 plants or more within a conservation reserve (the “a”).
87 Ms Stevenson notes that the numbers and distribution of the species had declined and the coastal lands upon which it occurred were subject to intense development pressure.
88 Tetratheca juncea was subsequently listed as a vulnerable species on Schedule 2 to the TSC Act when the legislation came into force on 1 January 1996, on the basis of its ROTAP status.
89 Tetratheca juncea was listed in July 2000 as vulnerable on the schedule to the Environment Protection and Biodiversity Conservation Act (1999) (Cth.) because, in Ms Stevenson’s words, “the species has a restricted extent of occurrence, its habitat was severely fragmented and subject to ongoing loss and fragmentation, and this had led to a continuing decline in sub-population numbers”.
90 Tetratheca juncea has a disjunct distribution comprising a series of sub-populations. Historical herbarium records show that sub-populations once occurred from Botany Bay to Broken Bay in the Sydney region north through the Central Coast and Lower Hunter to Bulahdelah on the lower North Coast of New South Wales. The Sydney sub-populations are now extinct due to clearing and development of their habitat. This has reduced the range and total population size of Tetratheca juncea.
91 The New South Wales Scientific Committee, established under the TSC Act, reviewed the conservation status of Tetratheca juncea in 2002 using existing sub-population data from across the species range and information about known threats to the sub-populations. The Scientific Committee decided that the vulnerable listing was appropriate based on the restricted area of occurrence of the species and the fragmented nature of the remaining sub-populations together with predicted declines in the quality and extent of its habitat due to an expansion.
92 A similar decision to retain a vulnerable listing for Tetratheca juncea was recently made on 7 September 2005 by the Commonwealth Threatened Species Scientific Committee in their review of its conservation status. In that review, the TSSC judged the species as vulnerable based on the criteria of a restricted and fragmented distribution (criterion 2) and limited population size and decline in numbers or distribution (criterion 3).
93 In respect of criterion 2, the TSSC stated:
“
Tetratheca juncea
has a small extent of occurrence (estimated to be between 1594 and 1861 km2) and is severely fragmented (i.e. most individuals are found in small and relatively small sub-populations). The species is known to consist of approximately 239 sub-populations with 83% of the sub-populations consisting of fewer than 50 individuals.
Tetratheca juncea
occurs in coastal areas subject to high population growth and associated land development pressures…
Tetratheca juncea
has a limited geographic distribution that is precarious for the survival of the species. The species has a restricted extent of occurrence, is severely fragmented and is subject to ongoing loss and fragmentation of habitat and a continuing decline in the number of populations”: Advice to the Minister for Environment and Heritage (Cth.)
supra
p. 4 of 9.
94 In respect of criterion 3, the TSSC stated:
“The total population size of
Tetratheca juncea
is estimated to be between 9,881 and 11,893 plant clumps (approximately 10,000 individuals).
The estimated total number of mature individuals is limited. Given the severely fragmented distribution of the species’ distribution and the fact that
Tetratheca juncea
occurs in coastal areas subject to high population growth and associated land development pressures, it is considered likely that the continuing decline of both the number of sub-populations and individuals is likely to occur.”: Advice to the Minister for the Environment and Heritage (Cth.), s
upra
, p. 4 of 9.
Ownership and development of the land
95 The land was originally owned by Mr Hugh Gordon. Mr Gordon purchased the land in February 1997 from Pacific Seaboard Transport and Finance Corporation Pty Limited which retained a mortgage over the land. On 26 September 2000, after Mr Gordon encountered financial difficulties, Pacific Seaboard Transport and Finance Corporation Pty Limited exercised its power of sale as mortgagee and sold the land to the defendant, BGP Properties Pty Limited.
96 In March 2001, the defendant appointed Mr Gordon as its project manager for the land. Mr Gordon’s responsibilities involved “the direction of sub-consultants,…the day to day control of the site and the development of future development plans”.
97 Mr Gordon had general instructions from the defendant to undertake work necessary to prepare and lodge rezoning applications and development applications seeking development consent to develop the land.
98 Mr Gordon was relevantly acting at the time of commission of the offence between 1 August and 7 December 2001, as a person concerned in the management or as an agent of the defendant.
99 Whilst Mr Gordon did not seek the express approval of the defendant for the specific clearing activities, Mr Gordon stated the defendant was generally aware of the activities undertaken on the land by Mr Gordon.
100 The defendant paid for the equipment used in clearing the land and for the flora and fauna assessments of the land undertaken as part of the development application process.
101 The clearing activities that constituted the offence occurred between 1 August and 7 December 2001. Towards the end of that period, on 26 November 2001, the defendant lodged a development application for a plant nursery and industrial storage on the land.
102 Shortly afterwards, on 2 January 2002, the defendant lodged an integrated development application seeking development consent to sub-divide the land into 54 lots for industrial use. The parts of the site proposed for such development were the parts that had been cleared previously, including by the clearing activities in August to December 2001.
103 The development application was subsequently amended. The development application was ultimately the subject of an appeal to this Court in Class 1 of its jurisdiction. The Court refused the integrated development application and dismissed the defendant’s appeal. Amongst the reasons for doing so were the adverse ecological effects development of the land would have on a threatened ecological community on the land, the Sydney freshwater wetland ecological community, and on the threatened species Tetratheca juncea. Approval of the development would have been contrary to the attainment of ecologically sustainable development, including the precautionary principle: see BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237.
104 Mr Gordon was appointed sole director of the defendant on 2 November 2004.
The incident
105 Between 1 August 2001 and 7 December 2001, the defendant, through Mr Gordon, caused vegetation to be cleared in a number of areas at the land. In the course of investigating the incident, the different areas where clearing occurred were labelled A through to E. I will refer to each of the sites using these labels. There were also a number of tracks.
106 The total area of native vegetation cleared at the land during the offence period was approximately 19.05 hectares, comprising 18.21 hectares of interconnected cleared areas and 0.84 hectares of tracks.
Site A
107 Site A is in the north-eastern part of the land. The southern portion of the land borders an area of Tetratheca juncea habitat. Clearing in site A involved picking Tetratheca juncea plants in the southern portion of site A. The vegetation in site A was slashed using a tractor with a flail mower, being cleared to just above ground level. This occurred between September 2001 and the end of November 2001.
108 On 25 October 2001, officers from the National Parks and Wildlife Service (“NPWS”), including Ms Deborah Stevenson, inspected the land with Mr Gordon. During that inspection Mr Gordon told the NPWS officers that the vegetation in site A had been cut with a tractor and flail mower about three weeks prior to the inspection. Mr Gordon claimed the vegetation had been cleared by an unnamed contractor supervised by himself. However, Mr Gordon later admitted that he had supervised control and done the clearing work in that part of the land.
109 Mr Gordon was aware at the time of the clearing of site A that there was Tetratheca juncea habitat immediately to the south of site A.
110 Mr Gordon claimed slashing was undertaken in site A to reduce the volume and height of the native vegetation, to enable access to or through that area, to establish a boundary between that particular area and areas considered as habitat of threatened species and as part of on site investigations necessary to provide sufficient information to support a development application or a rezoning application.
111 When Mr Gordon was asked about the irregular shape of the clearing in site A, Mr Gordon claimed the shape was determined to the west by a forested area, to the south by what Mr Gordon determined was the boundary of the Tetratheca juncea habitat and to the east by the fact that the area was too wet for Mr Gordon to use the clearing equipment in that area.
112 Mr Gordon identified the vegetation communities in the areas around site A and established the boundaries of the area to be cleared.
Site B
113 Site B is in the central section of the northern half of the land. The whole of site B was Tetratheca juncea habitat at the time of the clearing. Clearing in that area involved picking Tetratheca juncea throughout the cleared site. Vegetation at site B was cut to a low height above the ground by a tractor and flail mower. Vegetation that was uprooted was left in situ.
114 Mr Gordon supervised and authorised the work. The extent of the clearing in that site was determined by Mr Gordon based on what he told investigators he believed to be the transition between dry heath communities and Tetratheca juncea habitat.
115 After the clearing, NPWS officers including Ms Stevenson observed Tetratheca juncea plants along the entire perimeter of site B.
116 Mr Gordon claimed site B was cleared to lower the density of bitou bush, for weed control especially along the sewer line, to provide clear access into the northern part of site B between the Tetratheca juncea habitat, to delineate the Tetratheca juncea habitat areas and as an investigation area for potentially useable land. Vegetation cut in site B was left in situ.
117 In a record of interview after the clearing Mr Gordon identified site B as an area where Tetratheca juncea may have been picked.
Site C
118 Site C is generally south-west of site B in the central section of the land. It extends from the western boundary of that part of the land across the central section of the land. The south-eastern section of site C, being in the central portion of the land, is Tetratheca juncea habitat.
119 Clearing in that area involved picking Tetratheca juncea. Site C was cleared around the same time as sites A and B. Vegetation was removed from site C with a tractor and a flail mower, being cleared to just above ground level by Mr Gordon. In parts of site C, instead of using the tractor and flail mower, Mr Gordon used a 12 tonne excavator. He claimed this was in areas that were heavily weed infested.
120 Mr Gordon authorised and undertook the clearing work. Mr Gordon marked the boundaries of the area to be cleared.
121 After some vegetation was removed from site C, there were remnants of vegetation scattered across the site. In some areas the vegetation was piled in wind rows. The picking left areas of bare mineral earth. In other areas, the vegetation was cut to a low height above the ground. When inspected on 9 November 2001 there were heavy vehicle track marks in the soil on site C and an area was seen that had been excavated to about 1 metre deep with water pooled in it.
122 After the clearing, NPWS officers including Ms Stevenson observed Tetratheca juncea plants along the northern and eastern edges of site C. In parts of site C, Mr Gordon claimed there was a heavy weed infestation. In other parts of site C, Mr Gordon identified areas as Tetratheca juncea habitat. Mr Gordon claimed he did not clear those areas on the basis that they contained clumps of Tetratheca juncea.
123 In another part of site C, there is an area used as an airstrip. This area had been cleared prior to the offence period. In yet another part of site C, there were car bodies and motor bikes that had been illegally dumped on the site. Finally, there are a number of test pits that were dug by Mr Gordon.
124 Mr Gordon claimed site C was cleared as part of the same site investigations as were carried out with sites A and B to delineate areas of threatened species habit and to effect weed control.
Site D
125 Site D is in the southern area of the land. The prosecutor does not allege that Tetratheca juncea was picked by the defendant during the offence period in site D. Its relevance is simply as a control for subsequent investigations.
Site E
126 Site E is in the north-western corner of the land. Site E is bounded to the north and west by the land’s boundary. The eastern section of site E is Tetratheca juncea habitat. Clearing of site E involved picking Tetratheca juncea in the eastern section of site E. Tetratheca juncea plants were observed along the eastern edge of site E after the clearing. Vegetation was cleared from site E in September and October 2001. Vegetation in site E was removed using an excavator.
127 Mr Gordon authorised and did the clearing work.
128 Vegetation cleared from that area was left in situ with remnants of vegetation scattered across the site. The picking left areas of bare mineral earth exposed across that site.
129 Prior to the clearing Mr Gordon himself identified what he considered to be the boundary of Tetratheca juncea habitat along the eastern edge of site E.
130 On 1 November 2001, NPWS officers, including Ms Deborah Stevenson, saw heavy vehicle track marks in site E and a number of Tetratheca juncea plants near the eastern edge and within the disturbed areas on the eastern side of site E.
131 Mr Gordon claimed site E was cleared as part of the site investigations to establish land capability, to establish boundaries between threatened species habitat, and because of weed infestation in an area that had been previously disturbed through sand mining.
Tracks
132 Prior to clearing sites A to E, Mr Gordon had created some tracks at the site using machines to clear vegetation. Mr Gordon claimed this was to establish the existence of different communities of threatened species. Other tracks at the land were in existence before the commencement of the period of the offences, that is, before 1 August 2001. However, prior to clearing sites A to E, Mr Gordon traversed all the existing tracks at the land with machinery.
133 At least one track created by Mr Gordon between sites A and B between 1 August 2001 and 7 December 2001 involved picking Tetratheca juncea with those plants being cut to make the track.
Purposes of sentencing for environmental offences
134 Section 3A of the Crimes (Sentencing Procedure) Act 1999 states the purposes for which the Court may impose a sentence on the defendant to be 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 crime in the community.”
135 In Veen v R (No 2) (1988) 164 CLR 465 at 476, Mason CJ, Brennan, Dawson and Toohey JJ stated:
“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”
136 Section 3A of the Crimes (Sentencing Procedure) Act 1999 commenced on 1 February 2003. It applies to the determination of a sentence thereafter for an offence, whenever committed, unless before 1 February 2003 the Court has convicted the person being sentenced of the offence or the Court has accepted a plea of guilty to the offence and the plea has not been withdrawn: cl 45(2) of schedule 2 of the Crimes (Sentencing Procedure) Act 1999.
137 In this case, the offences were committed between 1 August 2001 and 7 December 2001, that is, before 1 February 2003. However, the Court has not convicted the defendant of the offences before 1 February 2003. The defendant entered a plea of guilty on 18 December 2003. However, this is after 1 February 2003. Accordingly, s 3A applies to the determination of the sentence for the defendant.
138 In this case, the purposes in paras (a), (b), (e), (f) and (g) of s 3A are of particular relevance.
139 The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598.
140 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J.
141 The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and important components of it such as threatened species, must be complied with.
142 This message has added urgency in relation to the need to achieve ecologically sustainable development. As the Chief Justice of the Republic of Kenya recently stated:
“There is therefore a clear correlation between the rule of law, good governance and development. In the field of environmental law, sustainable development is only achievable if there is compliance with the environmental law. It is the role of the courts to ensure this compliance and support good governance for the sustainable development for the welfare of our generation and for generations to come”: Speech by the Honourable Mr Justice J. E. Gicheru, Chief Justice of the Republic of Kenya on the Official Opening of the Kenya National Judicial Colloquium on
Environmental Law and Access to Environmental Justice
, Mombasa, Kenya, 10 January 2006, p. 3.
143 The sentence of the Court is an important denunciation of the conduct of the defendant. A court, by its sentence, must show its denunciation of the crime committed. The moral outrage of the community must be taken into account: R v Nichols (1991) 57 A Crim R 391 at 295; Inkson v R (1996) 88 A Crim R 334 at 344-346, 352 and 355-357. In Inkson v R (1996) 88 A Crim R 334 at 345, Underwood J observed:
“On the issue of denunciation or retribution, the community delegates to the court the task of identifying, assessing and weighing the outrage and revulsion that an informed and responsible public would have to criminal conduct. The court’s duty is to take that into account in the sentencing process. If the court fails to responsibly discharge the duty that has been entrusted to it by the community, public confidence in the system of justice will be eroded”.
144 In R v Geddes (1936) 36 SR (NSW) 554 at 555; (1936) 53 WN (NSW) 157 at 158, Jordan CJ stated:
“The function of the criminal law being the protection of the community from crime, the judge should impose such judgment as, having regarding to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others”.
145 The informed and responsible public views the protection of the environment seriously. The longevity, extent and comprehensiveness of the response of the international, national and state communities to identify, assess and address environmental degradation is testament to the seriousness with which the issue is viewed.
146 In relation to the conservation of biological diversity and ecological integrity, the response has included:
(a) at international level, international conventions including the Convention on Biological Diversity and soft law such as the Rio Declaration on the Environment and Development;
(b) at national level, statutes such as the former
Endangered Species Protection Act
1992 (Cth.) and the current
Environment Protection and Biodiversity Conservation Act
1999 (Cth.) and policies including the National Strategy for Ecologically Sustainable Development and the National Strategy for the Conservation of Australia’s Biodiversity; and
(c) at State level, statutes such as the
National Parks and Wildlife Act
1974 (NSW), the former
Endangered Fauna (Interim Protection) Act
1991 (NSW) and the current TSC Act and policies such as the New South Wales Biodiversity Strategy.
147 Critical to the conservation of biological diversity and ecological integrity is the conservation of threatened species, populations and ecological communities. That is shown by the objects of the TSC Act quoted earlier in the judgment. The statutory scheme introduced by the TSC Act is designed to ensure the conservation of threatened species, populations and ecological communities. Of utmost importance is the prohibition on damaging threatened species, populations or ecological communities without prior environmental impact assessment and approval by a responsible regulatory authority: see judgment above (paragraphs 64-71).
148 The offence provisions, including s 118A(2) of the NPW Act, are themselves designed to warn potential offenders of the seriousness with which the community views conduct which contravenes these requirements to protect threatened species, populations and ecological communities, to deter persons from such conduct and to punish those who nevertheless persist in engaging in such conduct.
149 The Court must be alive to considerations of this kind and, by the sentence it passes, show its abhorrence of crimes against the environment and significant components of it such as threatened species, populations and ecological communities.
150 The level of sentencing sends out messages about attitudes to crimes. In the United Kingdom, a sub-committee of the House of Commons Environment Audit Committee, studied and reported on Environmental Crime and the Courts (Stationery Office, London, 2004). One of the principal concerns of the Committee was “the fact that the level of sentences given in courts – principally magistrates’ courts – for environmental crimes was too low for them to be effective either as punishment or as a deterrent”: para 15.
151 The Environmental Justice Project conducted a similar review, being particularly concerned to assess the extent to which the United Kingdom’s civil and criminal law systems satisfied the requirements of the Aarhus Convention (the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters). Hatton, Castle & Day summarised the findings and recommendations of the Environmental Justice Project: C Hatton, P Castle and M Day, “The environment and the law does our legal system deliver access to justice? A review” (2004) 6(4) Environmental Law Review 240. They found that fines for environmental offices are “too low”, both to act as an appropriate deterrent to offenders and to be proportionate to the environmental impact caused by the offence: supra, pp 259-261. In these circumstances, Hatton, Castle and Day concluded:
“It is clear that many determined and persistent offenders do not respond to fines. As such, the criminal system risks failing to meet the basic requirements of the Aarhus Convention, in that the penalties imposed are neither ‘adequate’ nor ‘effective’ to address environmental and wildlife crime”:
supra
, p 264.
152 They recommended that in sentencing for environmental crime courts should place particular emphasis on “the environmental impact of an offence and the level of fine should reflect any economic gain arising from the offence”: supra, p 264.
153 Watson also reviewed sentences of courts for environmental crime: M Watson, “Environmental Offences: the Reality of Environmental Crime” (2005) 7(3) Environmental Law Review 190. He referred to sentences for wildlife crime, including damaging roosts for bats, and stated that:
“Property developers are obliged to protect or relocate the habitats of endangered species. It is generally easier – and much less expensive – to destroy them”:
supra
at 198.
154 Watson continued that:
“Sentences tend to be lenient. This discourages future prosecutions. Environmental offenders can perhaps be forgiven that ‘crime pays’. The ‘economic calculus’ must change”:
supra
, p 199
155 In conclusion, Watson stated:
“But environmental crime will remain profitable until the financial costs to offenders outweigh the likely gains. The anticipated net benefit of environmental crime to offenders much become negative…Degrading the environment must become economically irrational:
supra
, pp 199, 200.
156 The importance of the Court bearing in mind the economic realities of development of or that affects the environment and the need for the Court to impose a sentence which changes the “economic calculus” for those contemplating such development, was emphasised by Mahoney JA in Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 359-360. Although said in the context of pollution, the dicta is of general relevance to environmental offences generally:
“In determining the fine appropriate to an offence of pollution, two things are to be borne in mind: the seriousness with which the community regards pollution of this kind; and the purposes sought to be achieved by the imposition of fines in cases such as these.
The community has adopted a stern policy against pollution. The legislative scheme requires that proper, and strict, precautions be taken by those whose activities may cause proscribed pollution. The quantum of the fines which may be imposed evidences this: for the present offence, a maximum fine of $125,000 was available. The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.
That leads to the second matter. The argument in this appeal has at least suggested that the Court, in assessing the penalty, should take into account the serious effect which fines of this order of severity will have upon the operations of those engaged in the cotton growing industry. I do not doubt that the Court must take into account the impact of a particular fine upon a particular defendant. But that consideration does not stand alone.
The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur.
Precautions may be costly. The cost of precautions to avoid pollution will no doubt become accepted, in due course, as an ordinary cost of operating in an industry where, absent precautions, pollution may occur. The legislature was no doubt conscious of the effect which increased costs may have in a market; what I have said is expressed in general terms and is, of course, subject to the circumstances of each case. But I believe legislation of this kind contemplates that, in general, the cost of preventing pollution will be absorbed into the costing of the relevant industries and in that way will be borne by the community or by that part of it which uses the product which the industry produces. In assessing the quantum of a fine considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the cost of precautions be undertaken. As the learned judge indicated, in the present case, in order to prevent pollution of the river, it was necessary, inter alia, that the company delay spraying until the conditions were appropriate for it. No doubt that delay costs money. Ordinarily, the fine to be imposed should be such as to make it worthwhile that costs of this kind be incurred.
I do not mean by this that the legislature saw the legislation as providing, by payment of a fine, a licence to pollute. In the end, the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventive measures. In addressing the fine in an individual case, it is proper to bear in mind the economic realities upon which such legislation is based”.
157 By a court taking such factors into account, it promotes the achievement of ecologically sustainable development. The fourth pillar of ecologically sustainable development is the internalisation of external environmental costs. Ecologically sustainable development requires accounting for the short term and long term, external environmental impacts of development. One way in which of doing so is by adoption of the user pays or polluter pays principle: J Moffet and F Bregha, “The Role of Law Reform in the Promotion of Sustainable Development”, (1997) 6 Journal of Environmental Law and Practice 1 at 7.
158 Retribution for the harm which has been done by an offender will also be an important aspect of sentencing in environmental offences. The community must be satisfied that the offender is given his just desserts. Public confidence in the administration of justice depends, at least, to some extent, on the courts not failing to have regard to the community’s persistently punitive attitude towards the sentencing of offenders: Ryan v R (2001) 206 CLR 267 at 282-283 [46].
The purpose of sentencing hearing
159 The plea of guilty admits only the elements of the offence: R v O’Neill [1979] 2 NSWLR 582 at 588. It does not admit any matter of aggravation or deny any matter of mitigation not covered by the offence: R v Jobson [1989] 2 QdR 464 and Law v Deed [1970] SASR 374 and R v Olbrich (1999) 199 CLR 270 at 281 and 291-292.
160 In order to determine the appropriate sentence, the Court must determine the facts for the purpose of sentencing, the criminality and culpability of the defendant and the nature and characteristics of the defendant.
Approach to sentencing
161 A basic principle of sentencing law is that the sentence must reflect both the objective circumstances of the offence and the personal or subjective circumstances of the defendant: Veen v R (No 1) (1979) 143 CLR 458 at 490 and Veen v R (No 2) (1988) 164 CLR 465 at 472. This is the principle of proportionality.
Objective circumstances
162 “A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances”: Hoare v R (1989) 167 CLR 348 at 354.
163 Amongst the objective circumstances that the Court may consider are:
(a) the maximum penalty for the offence;
(b) the objective seriousness of the offence having regard to its peace in the statutory scheme;
(c) the harm caused to the environment, and particularly the components of the environment harmed in the short and long term by the commission of the offence;
(d) the state of mind of the offender in committing the offence;
(e) the foreseeability of the risk of harm;
(f) the practical measures to avoid foreseeable risk of harm; and
(g) the reasons for commission of the offence.
Maximum Penalty
164 The first of the objective circumstances relevant to determining the gravity of the crime is the maximum statutory penalty. “The maximum penalty available for an offence reflects the public expression of Parliament of the seriousness of the offence.”: Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698. See also R v Oliver (1987) A Crim R 174 at 174, R v H (1980) 3 A Crim R 53 at 65, Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Hansford v His Honour Judge Neesham [1995] 2 VR 233 at 236.
165 As I have noted above (paragraphs 44, 46 and 47), at the time of commission of the offences the maximum penalty for an offence against s 118A(2) of the NPW Act was $55,000 and one year imprisonment or both. Although the maximum penalty prescribed for the offence is intended for cases falling within the worst category of cases for which the penalty is prescribed (see Ibbs v R (1987) 163 CLR 447 at 451-452), as was noted in Veen v R No 2 (1988) 164 CLR 465 at 478:
“That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.” See also
Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority
(1993) 32 NSWLR 683 at 698.
166 As I also noted earlier in the judgment (paragraph 45), Parliament has increased the penalties for an offence against s 118A(2) of the NPW Act by providing for an additional penalty of 100 penalty units ($11,000) for each whole plant of an endangered species and 50 penalty units ($5,500) for each whole plant of a vulnerable species. This additional penalty can increase the maximum penalty dramatically where large numbers of individuals of a threatened species of a plant are picked. In the present case, for example, where 2,400 clumps (which could indeed comprise an even larger number of individual plants) of Tetratheca juncea were picked, the maximum additional penalty would be $13,200,000.
167 Fortunately for the defendant in this case, the offence was committed between 1 August to 7 December 2001, prior to the legislative amendments introducing the additional penalties coming into operation. Hence, these additional penalties are not applicable to the defendant.
Objective seriousness of the offence
168 Earlier in the judgment (at paragraphs 51-71), I have explained the statutory scheme in relation to threatened species, populations and ecological communities introduced by the TSC Act and the key role that the offence provisions including s 118A(2) play in that scheme.
169 The offence created by s 118A(2) of the NPW Act has an important function in the overall statutory framework of prohibiting the picking of threatened species, populations or ecological communities that comprise plants, except if approval (such as a licence) is sought (including prior environmental impact assessment) and obtained and any picking occurs strictly in accordance with the terms of any such approval. Compliance with this regulatory scheme is vital if the objects of the TSC Act, which introduced the offence provisions, are to be achieved. The offence under s 118A(2), objectively viewed in this framework, is serious.
170 The circumstances of the commission of the offence by the defendant also are serious. The defendant, by carrying out the activities of slashing, clearing and excavating the land, which have materially damaged the threatened species Tetratheca juncea, has hindered the attainment of the objects of the TSC Act by:
(a) not conserving biological diversity and not promoting ecologically sustainable development (contrary to object (a));
(b) not preventing the circumstances and factors threatening the extinction of
Tetratheca juncea
and by impeding the recovery of the species (contrary to object (b));
(c) carrying out processes that threaten and have the capability to threaten, the survival and evolutionary development of
Tetratheca juncea
(contrary to object (d)); and
(d) failing to ensure that the impact of the activities affecting
Tetratheca juncea
was assessed properly or at all (contrary to object (e)).
171 By carrying out these activities, the defendant has thwarted the attainment of ecologically sustainable development (itself an object of the NPW Act) by:
(a) failing to comply with the precautionary principle, including by failing to carry out prior environmental impact assessment and to obtain approval from a competent regulatory authority before carrying out the activities and by failing to discharge the burden of proving that the activities will not cause environmental harm;
(b) failing to ensure intergenerational equity by ensuring that the health, diversity and productivity of the environment on the land, including the threatened species
Tetratheca juncea
and its habitat, is maintained and enhanced for the benefit of future generations;
(c) failing to conserve biological diversity and ecological integrity, as further explained later in the judgment; and
(d) failing to ensure the internalisation of environmental costs arising from the activities, that is by the defendant taking responsibility for all the environmental costs, including from the damage to the threatened species
Tetratheca juncea
and its habitat, arising from the activities rather than shifting those costs to the community.
172 The offence committed by the defendant is, therefore, serious.
Environmental harm
Seriousness of environmental harm
173 Another objective circumstance relevant to determining the seriousness of the crime is the objective harmfulness of the defendant’s actions.
174 Harmfulness in the case of s 118A(2) of the NPW Act involves the adverse impacts on the threatened species, here, Tetratheca juncea. It also includes harm to the habitat of the threatened species and to other biota that have ecological relationships to the threatened species, such as fauna that are pollinators of a threatened species of plant.
175 Harmfulness needs to be considered not only in terms of actual harm but also harm that is likely to occur in the future as a result of the commission of the offence. The seriousness lies not only in the actual death or damage to the plants of the threatened species and their habitats at the time of commission of the offence but also in the potential for harm which the acts constituting the picking of the plants might entail: see Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 366.
176 The culpability of the defendant depends in part on the seriousness of the environmental harm. In Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 701, Kirby P, said:
“In environmental matters the Court has previously exercised its discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.”
177 If the harm is substantial, this objective circumstance is an aggravating factor: see s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. It is a factor to be taken into account in determining the appropriate sentence.
178 The significant extent of the harm caused to a threatened species was considered to be an aggravating factor by Lloyd J in Director General, National Parks and Wildlife Service v Wilkinson (2002) NSWLEC 171 (27 September 2002) at para 91.
Significance of population of threatened species
179 In assessing the seriousness of the harm caused by the commission of the offence, the significance of the population or subpopulation of the threatened species is relevant.
180 In this case, the population of Tetratheca juncea within the Lake Macquarie region is of State and national significance. It is the largest known population and represents a stronghold for the species at present.
181 Ms Stevenson notes:
“The majority of
Tetratheca juncea
sub-populations on the Central Coast, Lower Hunter and Lower North Coast are located on private property on coastal or sub-coastal lands which are subject to increasing development pressure and threats associated with this such a vegetation clearing, soil disturbance, weed invasion, rubbish dumping and frequent fire.
Recent estimates (Payne 2000 and Hogbin 2002) of a total population size for
Tetratheca juncea
are between 9,645 and 11,892 plants which exist in 250 sub-populations. The majority of these sub-populations comprise 50 or fewer plants. Twenty-two sub-populations comprise more than 100 plants and only a handful of sub-populations [in fact, four] comprise more than 400 plants”.
182 It is worth emphasising that, as this species is indigenous only to Australia, and furthermore endemic only to New South Wales, these population estimates are therefore the maximum population estimates for this species in the world.
183 The sub-population of Tetratheca juncea on the site at Redhead is the largest recorded and is of extremely high conservation significance. Prior to the clearing, there were 7,000 clumps of Tetratheca juncea on the site.
184 The significance of the sub-population of Tetratheca juncea on the site is further enhanced by the fact that there are two other sub-populations on nearby sites. Preservation of proximate sub-populations of threatened species is important because, as a group, the sub-populations provide stepping stones to promote pollination and achieve outcrossing. In short, it enhances genetic diversity, a critical component for the conservation of biological diversity.
185 Prior to being picked at the site, Tetratheca juncea was located generally in higher and drier parts of the site. These parts of the site were relatively undisturbed prior to the commission of the offence, with little weed infestation.
Adverse impacts
186 The defendant’s actions of slashing, clearing and excavation of vegetation at the site have had significantly adverse impacts on the subpopulation of Tetratheca juncea and on the species. These impacts may be summarised as: direct damage, fragmentation and loss of connectivity, impact on pollinators, weed infestation, edge effects, off road vehicles, increased frequency of fire and other impacts. I will deal with each impact.
Direct damage
187 The slashing, clearing and excavation of vegetation at the site by the defendant has caused the destruction, injury and removal of Tetratheca juncea plants. Tetratheca juncea plants were uprooted by the excavator, cut to just above ground level, crushed by heavy machinery and crushed by fallen vegetation. Using an excavator to clear areas of the site caused damage to or killed plants in those areas. In terms of plants that were slashed, the damage to those plants was greater the lower they were slashed. The vegetation slashed in sites A to E was slashed just above ground level.
188 Prior to the defendant’s actions in August to December 2001, there were 7,000 clumps of Tetratheca juncea in the sub-population on the site. As a result of the commission of the offence, 2,400 clumps were picked at the site. In the northern and central parts of the site a higher proportion of clumps were picked, namely, 34 per cent. The total area of native vegetation cleared on the site was approximately 19.05 hectares of a total site area of 44 hectares.
189 The impact is also significant by reference to the total population of the Tetratheca juncea in New South Wales (and hence Australia and the world). The most recent estimate is between 9,881 to 11,893 plant clumps: Advice to the Minister for the Environment and Heritage (Cth.) p 5 of 9 and Ms Stevenson’s affidavit of 28 November 2005, para 12. Taking the upper estimate of 11,893 clumps, the defendant’s actions in picking 2,400 clumps has directly damaged 20% of the total population of the species in the world.
Fragmentation and loss of connectivity
190 The picking of Tetratheca juncea at the site has caused fragmentation which could threaten the long term viability of the species on the site through genetic isolation. Ms Stevenson explained this impact:
“
Tetratheca juncea
has a severely fragmented distribution with most plants occurring in small, isolated sub-populations…Clearing of the species habitat for development has lead to loss of connectivity between sub-populations. This limits opportunities for cross-pollination or genetic exchange between isolated sub-populations because the pollinators…on which this exchange relies are unlikely to travel large distances across cleared land between these sub-populations. This lack of genetic exchange can have a deleterious impact on these sub-populations due to inbreeding depression which results in reduced genetic diversity and affects the ability of these sub-populations to adapt to environmental change.
In the ‘Lake Macquarie
Tetratheca juncea
Conservation Management Plan’, Payne (2000) talks about the importance of ‘stepping stone’ conservation. This involves conserving groups of adjacent sub-populations of
Tetratheca juncea
and ensuring that connectivity between them is maintained or enhanced to promote cross-pollination and genetic exchange.
The importance of the large
Tetratheca juncea
sub-population at Lot 1 DP 42613 and Lot 3 DP248860 Cowlishaw Street is underscored by the presence of another large sub-population of
Tetratheca juncea
in similar habitat on adjacent land at Fencott Drive. Cross-pollination and genetic exchange between these two large sub-populations would have been possible while the vegetation connecting them remained intact.
In my opinion, the clearing activities between 1 August 2001 and 7 December 2001 and subsequent disturbances at the property has reduced the connectivity between the
Tetratheca juncea
sub-population on the property and the sub-population at Fencott Drive by removing vegetation that provided habitat for their pollinators. This loss of connectivity is likely to limit genetic exchange between these sub-populations, reduce their genetic diversity and make them less able to cope with future environmental change: paras 20-23 of affidavit of Ms D A Stevenson of 28 November 2005.
Impact on pollinators
191 Picking of Tetratheca juncea on the site has also caused a reduction of the area of habitat of two species of native bees that are pollinators of Tetratheca juncea. This may have a negative effect on the genetic diversity within populations of Tetratheca juncea and will impact the long term viability of the sub-population of Tetratheca juncea at the site.
192 Ms Deborah Stevenson gave evidence that fragmentation of the Tetratheca juncea sub-population on the site is likely to make genetic exchange between the remaining plants more difficult because it removes habitat for the native bees which are responsible for pollinating the species.
193 Ms Stevenson explained that pollen extraction from Tetratheca juncea flowers requires vibration. Two species of native, sonicating bees are the pollen vectors. The bees extract pollen from the downward facing flowers of Tetratheca juncea by grasping the pollen bearing anthers and vibrating their body against them to dislodge the pollen. The bees then move from plant to plant transferring the pollen as they go.
194 Ms Stevenson notes that while Tetratheca juncea flowers are capable of self-pollination, this is likely to be an infrequent occurrence because the downward presentation of the flowers limits the opportunity for air-borne pollen to land on the stigma and fertilise it.
195 Ms Stevenson cited the study of C Driscoll, “Pollination ecology of Tetratheca juncea (Tremandraceae): Finding the Pollinators”, Cunninghamia (2003) 8(1): 133-140 as showing that seed production in Tetratheca juncea is much higher in plants that have out-crossed with other plants as a result of “buzz” pollination then in plants that have been self pollinated. Ms Stevenson notes that this is important in terms of the size of the seed bank and recruitment or recovery potential of Tetratheca juncea sub-populations following disturbance.
196 Ms Stevenson expressed the opinion that the clearing of the habitat in which Tetratheca juncea occurs has also affected the two native bee species that act as pollinators for Tetratheca juncea:
“The two native bee species observed pollinating
Tetratheca juncea
flowers are semi-social. One species nests in tunnels in the ground and suitably-textured soil. The other nests in hollow stems. These bees do not pollinate
Tetratheca juncea
exclusively. They rely on a suite of other suitable plant species, from which they take either nectar and pollen during different times of the year…. The soil and heath vegetation at Lot 1 DP 42613 and Lot 4 DP248860 Cowlishaw Street, Redhead provides suitable habitat for both of these native bees in terms of nests sites as well as year-round pollen and nectar sources.
In my opinion, the clearing activities between 1 August 2001 and 7 December 2001 and subsequent disturbances at the property has altered soil conditions as well as vegetation structure and composition making it less suitable as habitat for native bees. This is likely to lead to a decline in pollinator numbers on the property and hence the capacity for the large sub-population of
Tetratheca juncea
there to reproduce sexually.
In the absence of the appropriate native bees capable of “buzz” pollination,
Tetratheca juncea
plants can only reproduce asexually by underground rhizomal spread. The result is a largely clonal sub-population which contains little genetic diversity and is therefore less likely to be able to adapt to environmental change. This has implications for the longer-term viability of these clonal sub-populations”: paras 17-19 of Ms Stevenson’s affidavit of 28 November 2005.
Weed infestation
197 The picking of Tetratheca juncea at the site has significantly increased the density of weeds and the likelihood of invasion by weeds from adjoining disturbed areas into previously intact areas of native vegetation on the site. Several weed species including bitou bush (Chrysanthemoides monilifera) have since the clearing been recorded along the tracks created at the site during the period of the offence. The spread of weed seeds on tyres of machines, associated disturbance and the opening up of vegetation has increased potential for weed invasion.
198 Ms Stevenson gave evidence that the clearing activities and subsequent disturbances have opened up the vegetation at the property by removing the naturally dense understory and disturbing the soil’s surface. This has allowed weeds to establish in areas formerly inaccessible to them. These activities have encouraged fast growing native colonisers such as bracken fern (Pteridium esculentum) and blady grass (Imperata cylindrica) to establish disturbed areas at the expense of slower growing native species such as Tetratheca juncea.
199 Of particular concern to Ms Stevenson is the spread of bitou bush, a weed of national significance which is now invading areas of undisturbed heath vegetation as well as disturbed track edges and regenerating vegetation.
Edge effects
200 Picking of Tetratheca juncea at the site and the clearing of sites A to E and on the tracks of the site has altered the environmental conditions around the intact areas of Tetratheca juncea that remain at the site. This is known as edge effects. Edge effects can include an increase in soil temperature, increased exposure to winds, and increased transfer of dust, seeds, insects and diseases from adjoining areas. Edge effects can affect plants within 40 metres of the cleared areas of the site.
201 The clearing of the site has led to approximately 93 per cent of Tetratheca juncea plants remaining at the site after clearing now being exposed to edge effects.
202 Ms Stevenson also notes that the creation of edges in previously intact vegetation as a result of slashing and other forms of disturbance exposes the remaining vegetation, including Tetratheca juncea, to disease, desiccation and insect attack.
Off road vehicles
203 Ms Stevenson gave evidence that the defendant’s actions in the offence period and subsequent disturbances have allowed greater access to the site by off road vehicles. These vehicles are heavily utilising and expanding the network of tracks through the site. This has resulted in further fragmentation and degradation of the Tetratheca juncea subpopulation on the site through the direct destruction of dry heath / woodland vegetation, soil disturbance and the transport of weed propagules into the site on vehicle tyres.
Increased frequency of fire
204 Ms Stevenson gave evidence that enhanced access on to the site has led to incidents of arson on the site. Frequent fires would degrade the Tetratheca juncea subpopulation at the site and affect the ability of Tetratheca juncea to re-establish on the site. This is because Tetratheca juncea is sensitive to frequent fire. Further, frequent fires promote a dense understory of fire tolerant species such as blady grass (Imperata cylindrica) and bracken fern (Pteridium esculentum) that in turn excludes Tetratheca juncea.
Other Impacts
205 Ms Stevenson also identified that the defendant’s actions and subsequent disturbances have led to: the removal of the protective vegetation in which Tetratheca juncea occurs; soil compaction; altered surface drainage; destruction of the soil seedbank for Tetratheca juncea; disturbance of the moist fertile humic layers in the top soil and the introduction of weeds.
Conclusion on environmental harm
206 Cumulatively, these impacts on Tetratheca juncea and its habitat on this site caused by the defendant’s actions are very substantial and are an aggravating circumstance of the offence.
Defendant’s state of mind
207 The state of mind of the offender at the time of the offence can have the effect of increasing the seriousness of the crime. For that reason, it becomes an aggravating feature of the offence and is taken into consideration when assessing the objective gravity or circumstances of the offence.
208 A large measure of premeditation will make the offence more serious than where it is committed on the spur of the moment: R v Morabito (1992) 62 A Crim R 82 at 86.
209 The extent to which the offences were foreseen, negligent or the consequence of conduct which was intended will also be relevant: Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700.
210 Section 118A(2) of the NPW Act is not limited to preventing deliberate or negligent picking of threatened species of plants. It envisages that proper precautions must be taken to ensure that threatened species of plants are not picked. The comments of Mahoney JA in Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359-360 (quoted previously), are applicable to s 118A(2) of the NPW Act.
211 In the context of the conservation of threatened species, it is equally true to say that the object of the NPW Act is to prevent damage to threatened species and their habitat. Business must be arranged and precautions taken to ensure that damage to threatened species does not occur. The cost of taking precautions to avoid damaging threatened species must become accepted as an ordinary cost of doing business. So, too, therefore, in assessing the amount of a fine for an offence involving damage to threatened species, considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the costs of taking precautions to avoid damaging threatened species are undertaken.
212 In this case, the defendant, through its agent and project manager Mr Gordon, was aware of the existence of Tetratheca juncea on the site. Mr Gordon knew that slashing, clearing and excavating on this site might cause the picking of individual plants of Tetratheca juncea. The defendant’s actions were deliberate and planned.
Knowledge of Tetratheca juncea at the site
213 At the time of the offence, the defendant, through Mr Gordon, knew that the site contained a number of different species of flora and fauna. Mr Gordon told the NPWS investigator on 25 October 2001:
“I’ve got a detailed species list which is quite extensive. I mean, to put it into context there has been 201 native species of flora identified on the site.”
214 In particular, Mr Gordon was aware, and had been since 1996 or 1997, that Tetratheca juncea was on the site and that the plant was a vulnerable species. At the time of clearing in sites A to E and clearing the tracks at the site, Mr Gordon had received advice from Mr Geoff Winning, a flora and fauna consultant, about how to identify Tetratheca juncea. In addition, the defendant, through Mr Gordon, had access to a number of reports identifying potential Tetratheca juncea habitat at the site. These reports included:
· Flora Assessment: Lots 1 and 4 Cowlishaw Road, DP 24886, Redhead NSW by Dr Anne Clements & Associates Pty Limited (April 1999) (the Clements report). Figure 7 of that report identifies the location of Tetratheca juncea habitat at the site.
· Report by Mr Robert Payne dated November 2000 entitled “Lake Macquarie Tetratheca juncea Conservation Management Plan Final”.
· Redhead natural area study prepared by Don Caldwell Consultants, Enviro Sciences Pty Limited, May 1991.
· Fauna Survey and Assessment 10A Cowlishaw Road, Redhead NSW by Dr Leong Lim, Countrywide Ecological Service (April 1998).
· Redhead Survey 24-25 September 1998 by Dr Arthur White (September 1998).
215 The Clements report had a detailed species list for areas of the site. Mr Gordon had been in possession of the Clements report since 1999, had read it on a number of occasions and had told NPWS investigators that he understood it. Mr Gordon did not agree with the boundaries that Dr Clements had established for Tetratheca juncea or with Dr Clements’ population estimates. Mr Gordon stated that he formed this opinion on the basis of Mr Winning’s work and his own knowledge of the site from “site investigation by traversing those areas, marking them with survey tape and establishing the boundaries by the use of a flail mower.”
216 Mr Gordon’s reliance on Mr Winning’s work needs to be qualified. Mr Gordon did not, prior to commencing the slashing, clearing or excavating on the site, request Mr Winning to map locations of Tetratheca juncea on the site or to prepare a report on the sub-population of Tetratheca juncea on the site. Subsequently, as part of the process of preparation of a development application, Mr Winning was requested and did prepare a report dated October 2001. However in preparation of that report, Mr Winning still did not survey any of the Tetratheca juncea habitat areas identified in the Clements report or do any other survey of Tetratheca juncea at the site.
217 What Mr Gordon did ask Mr Winning to do was to estimate the abundance of Tetratheca juncea in certain areas of the site that Mr Gordon himself had identified as containing Tetratheca juncea. These were areas that Mr Gordon had not already cleared. Mr Winning did not himself do any field work in the cleared areas.
Knowledge of obligation in relation to threatened species
218 At the time of the commission of the offences in August to December 2001, the defendant, through Mr Gordon, was aware that “there was an obligation on myself not to harm or cause harm to threatened species or their habitats.”
219 In relation to the clearing on the site, Mr Gordon told NPWS investigators on 25 August 2001, “(t)he activities have been a direct result of my independent judgment as to what we are entitled to do or what we have a duty to do under the various legislation.”
220 The defendant, through Mr Gordon, was aware of the need for a licence under s 91 of the NPW Act if they were to pick Tetratheca juncea but did not apply for a licence as Mr Gordon considered the clearing would not encroach on Tetratheca juncea.
Knowledge of potential impacts of activities
221 Around July 2001, Mr Gordon informed Mr Winning he intended to slash some areas of the site. Mr Winning suggested he should not do that as he thought that would need development consent. Mr Winning did not give Mr Gordon any advice prior to the clearing about which areas should or should not be cleared.
222 Mr Gordon relied on his own interpretation of what would be a “responsible and appropriate delineation” when deciding where to clear. In deciding where to slash, Mr Gordon stated that he:
“selected what I considered to be an appropriate boundary… I slashed that area in the knowledge that there would be a transition zone and that there would likely be individual plants, given the density and population numbers within the areas that we selected not to slash, but there may be individual plants outside of that area. But I considered, given the overall numbers and densities and the areas that we were preserving,…those individuals to be insignificant in terms of the habitat and certainly in terms of the viability of the long term population of the species on the site.”
223 When Mr Gordon was asked if he was aware of the presence of any threatened species in site A before the clearing had occurred, Mr Gordon stated:
“It’s likely that there may have been individual plants within the area of site A of
Tetratheca juncea
particularly along the transition or boundary area between A and the southern habitat.”
224 Mr Gordon claimed to have identified plants along the boundary with surveyor’s tape and to have not cleared or slashed in that area.
225 In relation to Tetratheca juncea generally, Mr Gordon stated:
“I took the view that the spirit of the legislation was about the preservation and enhancement of viable populations and my intentions in these activities were to protect and preserve those core areas and I concede that given the scale of the property and the scale of the population that it’s likely that I may have cut or picked individual plants…this may be a technical breach of the legislation but I don’t consider that in any way I have breached the spirit of the legislation.”
226 On 12 October 2001, during the period of the offence, Mr Wellington, a NPWS officer, spoke to Mr Gordon about the clearing. During the course of their conversation the following exchange occurred:
“Wellington: I’ve been contacted by a Lake Macquarie Council officer informing me that a breach of s 118 of the National Parks and Wildlife Act may have occurred. It was my understanding that a number of threatened species are recorded in the vicinity of the subject land. Are you aware of that?
Gordon: Yes, I knew there are
Tetratheca juncea
, Wallum Frogs, Squirrel Gliders on the property. I’ve had studies done.
Wellington: From what I have been told you have cleared some large areas and may have been causing harm to threatened species.
Gordon: Why don’t you let me be the judge of that. Don’t prejudge what I’ve done. I’ve avoided all threatened species.”
227 I find that the defendant, through Mr Gordon, was aware that Tetratheca juncea existed on the site and was likely to occur in the areas that he slashed, cleared or excavated, that such activities might cause the picking of individual plants of Tetratheca juncea and that the conduct of slashing, clearing or excavating was deliberate and intended.
Foreseeability of risk of harm
228 The extent to which the defendant could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence is also a relevant objective circumstance of the offence.
229 In Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700, Kirby P described the offences in that case in these terms:
”The offences were not "unforeseen, non-negligent and unintended accident[s]":
Majury v Sunbeam Corporation Ltd
[1974] NSWLR 659 at 664. Indeed, the evidence indicates that the offences were foreseen, to some extent negligent and, in part, the consequence of conduct which was intended.”
230 That statement is equally apposite to describe the offence in this case committed by the defendant.
Practical measures to prevent foreseeable risk of harm
231 The above finding that the risk of harm to Tetratheca juncea and its habitat by carrying out the activities of slashing, clearing or excavation of the land was foreseeable leads to the next sentencing consideration, namely the practical measures that could have been taken to prevent, control, abate or mitigate the foreseeable risk of harm.
232 The most obvious, readily available and practical measures that could reasonably have been taken were those required by the NPW Act itself, namely refraining from carrying out the activities of slashing, clearing or excavating the land unless and until approval for the activities has been sought (including by carrying out prior environmental impact assessment) and obtained from a competent regulatory authority.
233 The process of undertaking prior environmental impact assessment and obtaining approval would have enabled ecologically sustainable development: see paragraphs 56-71 of judgment above. It would have enabled, amongst other things:
(a) the identification of the location, habitat, numbers and significance of the threatened species
Tetratheca juncea
on the land and the threats to it;
(b) an analysis of the likely impacts of any proposed action on the threatened species and its habitat;
(c) the formulation of measures proposed to prevent, control, abate or mitigate any adverse effects of the proposed action on the threatened species and its habitat; and
(d) the adoption of a precautionary approach to the matters in (a)-(c) above.
234 If such an approach had been adopted, the damage to Tetratheca juncea by the commission of the offence by the defendant might have been avoided entirely. The environmental impact assessment process may have resulted in the defendant electing not to undertake the activities of slashing, clearing and excavating of the land at all. Alternatively, approval for the activities may not have been granted. This was the result when the defendant subsequently sought, but did not obtain, approval: see BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237.
235 Alternatively, any damage to the threatened species might have been lessened through the processes of environmental impact assessment and obtaining of approval with conditions preventing, controlling, abating or mitigating the harm. The mitigation measures might have included avoiding carrying out the activities on those parts of the land on which the bulk of the sub-population of the threatened species occurs, maintaining the habitat of the threatened species and of the pollinators of that species, maintaining connectivity with proximate sub-populations of the threatened species on other adjoining land, and abating threatening processes such as weed infestation, unauthorised vehicular access and inappropriate fire regimes.
236 The failure of the defendant to take the readily available and practical measures to prevent, control, abate or mitigate the foreseeable risk of harm to Tetratheca juncea and its habitat on the land increases the objective gravity of the offence.
Reasons for commission of offence
237 The criminality involved in the commission of the offence is also to be measured by reference to the reasons for its occurrence: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 366, per Badgery-Parker J. See also Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at para 92.
238 The defendant had a commercial purpose in carrying out the activities of slashing, clearing and excavating the land, which resulted in the picking of Tetratheca juncea.
239 On 27 October 2001, Mr Ian Fletcher, a development and compliance officer with Lake Macquarie City Council, inspected the land while a tractor was clearing a part of the land. In the course of that inspection Mr Fletcher had a conversation with Mr Gordon which included the following exchange:
“Fletcher: I have been conducting inquiries regarding alleged unauthorised land clearing and upon my return along Kalaroo Road I observed a tractor and slasher working in this area. What can you tell me about the work happening here?
Gordon: Yeah, we’re just carrying out weed and vegetation control and generally doing some ground maintenance, preparing the site for surveying. It’s all in preparation for the submitting of a development application to Council.”
240 Mr Gordon maintained the clearing was undertaken to control noxious weeds at the land, because of duties under the Bushfires Act 1949 (NSW) [in fact this Act was no longer in force at the time of commission of the offence having been repealed by the Rural Fires Act 1997 (NSW)], to clearly delineate the habitat of threatened species and to improve knowledge of the land with a view to pursuing some form of development at the land.
241 In relation to fire hazard reduction, the defendant did not seek or receive any authority to undertake the clearing under the Rural Fires Act 1979 (NSW).
242 In relation to weeds at the land, Mr Winning considered that there were not many weeds on the land at the time of the offence with the weeds being restricted to the south-west corner of the land and the edge of the railway line. Furthermore, during the site inspection of 30 October 2001, Mr Gordon said to Mr Jason Bentley, a NPWS investigator: “Obviously you didn’t think I would do all this for weed and fire management?”.
243 In respect of clearing for development purposes, Mr Gordon stated in an interview with Mr Jason Bentley the following:
“Bentley: I’ve been informed that one of the reasons that property was cleared was for accessibility for planning purposes. Do you wish to say anything about that?
Gordon: That was definitely one of the reasons for the activities, for establishing boundaries, establishing not only property boundaries but ecological community boundaries. It was our company’s intentions to establish some interim land use for the property as well as applying for a higher use under or through a rezoning application and we’ve been advised by council that we would need certain information with respect to land capability and flora and fauna assessment and reports that I have seen prepared by Q Properties I considered to be inaccurate and poorly prepared. This is predominantly due to the inaccessibility of the site and the inability of those consultants to properly access the site in a meaningful manner. So certainly some of the logic behind the clearing was to make certain areas of the site more accessible for site investigation and therefore planning purposes.”
244 At the time of the offence, Mr Gordon stated that one development scheme of the defendant was to create an “integrated residential development with a diversity of densities of housing on about 60% of the land with the remaining 40% being dedicated to the reserving of ecological assets”. Such a scheme would have required rezoning of the land.
245 Other development schemes proposed by the defendant did not require a rezoning. During the offence period, on 26 November 2001, the defendant lodged a development application with the Council for a plant nursery and industrial storage at the site. Within a month after the offence period, on 2 January 2002, the defendant lodged a development application to subdivide the land into lots for industrial use and storage. Parts of the land proposed for such use were parts that had been cleared and on which Tetratheca juncea had occurred. Other parts were where the species still occurred: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237.
246 Having regard to these facts, it is clear that an actuating reason for the defendant carrying out the activities of slashing, clearing and excavating the site which resulted in the picking of Tetratheca juncea was to prepare and submit a rezoning application and/or development application in order to use the land for a higher and better economic use. If a rezoning or development consent was achieved the value of the land would have increased significantly. The defendant therefore stood to profit from rezoning and development consent.
247 This deliberate, commercial reason for the commission of the offence is to be contrasted to the situation in Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 366 where there was an unprecedented error of omission, or the situation in other cases where the reason was simply an accident. Here, the reason was for commercial purposes and was deliberate and intended.
Conclusion on objective circumstances
248 Having regard to each of the matters relating to the objective gravity and circumstances of the offence that I have described above, the offence committed by the defendant should be considered as being at the upper end of the scale of seriousness. The additional evidence adduced by the prosecutor in these proceedings in relation to these matters has established a greater objective seriousness of the offence, compared to the evidence adduced, largely in an agreed statement of facts, in the earlier proceedings against Mr Gordon personally: see Bentley v Gordon [2005] NSWLEC 695 (22 November 2005).
Subjective circumstances of the defendant
249 A proportionate sentence does not only depend on the objective circumstances of the offence but also must be appropriate to the particular defendant. This requires the Court to take into account any personal mitigating factors present: Veen v R (No 1) (1979) 143 CLR 458 at 490, Veen v R (No 2) (1988) 164 CLR 465 at 472 and, R v Gallagher (1991) 23 NSWLR 220 at 222, 223, 229, 230 and 233.
250 The personal mitigating factors will include the nature or characteristics of the defendant and the defendant’s responses to the charges. The nature of the defendant includes his character and prior criminality. The defendant’s response to the charge includes contrition and remorse, co-operation with authorities, and any offer of compensation or restitution.
Lack of prior criminality
251 The defendant has no prior convictions for environmental offences. This lack of prior criminality is a factor in sentencing in this case. It influences both the choice of sanction and the severity of sentence: Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1983) 32 NSWLR 683 at 701 and s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
Plea of Guilty
252 The defendant has pleaded guilty to the offence. Section 22 of the Crimes (Sentencing Procedure) Act 1999 expressly requires:
“(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.” See also s 21A(2) (k) of the
Crimes (Sentencing Procedure) Act
1999.
253 A guideline judgment in respect of the discount for a plea has been given by the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383; 115 A Crim R 104. This judgment continues to have force in New South Wales despite the decision of the High Court in Wong v R (2001) 207 CLR 584 and R v Cameron (2002) 209 CLR 339, because of s 22 of the Crimes (Sentencing Procedure) Act 1999: see R v Sharma (2002) 54 NSWLR 300.
254 A plea of guilty is of utilitarian value and can also show contrition and remorse. In R v Thomson (2000) 49 NSWLR 383 at 419, Spigelman CJ held that:
“The utilitarian value for pleas in the criminal justice system should generally be assessed in the range of 10 to 25 per cent discount on sentence. The primary consideration in determining where in the range a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.”
255 In this case, the proceedings were commenced on 31 July 2003. The proceedings first came before the Court on 11 September 2003. The proceedings were stood over to 9 October 2003, 23 October 2003, 12 December 2003 and then 18 December 2003. On 18 December 2003, the defendant entered a plea of guilty. Accordingly, there was a period of about three months from the time the matters first came before the Court to the time the defendant entered a plea of guilty. An explanation for the adjournments during that three month period provided by the prosecutor is that the prosecutor was still completing its evidence.
256 In the circumstances, I am satisfied the defendant should be entitled to a discount reflecting the utilitarian value of the plea at the higher end of the range, namely, 20 per cent.
Contrition and remorse
257 The defendant’s plea of guilty entitles him to a discount reflecting the utilitarian benefit. In addition, however, if contrition and remorse is expressed, a defendant is entitled to a further discount: see s 21A(3)(i) of Crimes (Sentencing Procedure) Act 1999; Neal v R (1982) 149 CLR 305 at 315, Camilleri’s Stock Feeds v Environment Protection Authority (1993) 32 NSWLR 683 at 700 and Environment Protection Authority v Ampol (1995) 85 LGERA 443.
258 The making of restitution or compensation can also provide evidence of remorse and contrition. Where it occurs it justifies a reduction in sentence: Mickelberg (1994) 13 A Crim R 365 at 370 and s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.
259 In this case, however, the defendant has made no expression of contrition or remorse, other than by the plea of guilty, and has made no attempt to rehabilitate the land or to prevent further damage to the land since the clearing.
260 Ms Stevenson gave evidence that remedial action needs to be taken in order to prevent and to mitigate long term damage to the large and significant Tetratheca juncea sub-population at the land. Ms Stevenson stated the remediation of the land requires active management of the weed problem focusing on bitou bush and other aggressive weeds. A bushland management plan should be prepared for the land and the plan should be implemented by qualified and experienced bush regenerators. In addition to weed removal, some of the more disturbed areas on the property require assisted regeneration. The success or otherwise of such a regeneration programme would need to be monitored on a regular basis and the bushland management plan reviewed in light of the monitoring results.
261 In addition, Ms Stevenson stated that regular surveys of the Tetratheca juncea sub-population of the land should be undertaken to assess the response of the species to the rehabilitation works and there should be a report to the Department of Environment and Conservation’s Biodiversity Conservation Section.
262 Ms Stevenson stated access to the land needs to be actively managed, access points need to be identified and areas need to be securely fenced and monitored. The network of tracks through the land needs to be rationalised and only those tracks required for management purposes should be retained. Remaining tracks should be closed and re-vegetated.
263 None of these measures recommended as being necessary for the long term conservation of the sub-population of Tetratheca juncea have been undertaken or caused to be undertaken by the defendant. The defendant is the owner of the land and has power to undertake the measures.
264 Without intervention, the continuing adverse impacts that I have earlier described, such as weed infestation, off-road vehicles, more frequent fires and other impacts, will continue to affect adversely the sub-population of Tetratheca juncea on the land. There is a need for remedial action. The fact that the defendant has not taken remedial action or otherwise made any offer for restitution or compensation means that there can be no further reduction in the sentence for contrition and remorse that might otherwise be available if it had done these things.
Co-operation with regulatory authorities
265 The co-operativeness of a defendant is a matter to be taken into account in fixing penalty: Camilleri’s Stock Feeds v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701, Environment Protection Authority v Brir Pty Limited (1995) 85 LGERA 450, Environment Protection Authority v Ampol (1995) 85 LGERA 443 and s 23(1) of the Crimes (Sentencing Procedure) Act 1999.
266 The defendant, through Mr Gordon, has co-operated with the prosecutor in the investigation of the offence and in the early, interlocutory stages of the proceedings. However, there has been little other co-operation. Subsequent co-operation may have been impeded by the appointment of a liquidator to the defendant.
Conclusion on subjective circumstances
267 The subjective circumstances of the defendant are limited. The material matters are the absence of any prior conviction for an environmental offence and the plea of guilty. Other than these, there is little evidence of contrition and remorse or significant co-operation. The subjective circumstances of the defendant are materially less than those that were established in the case of Mr Gordon in the earlier proceedings: Bentley v Gordon [2005] NSWLEC 695 (22 November 2005), at paras 130-150.
Section 6 of the Fines Act 1996
268 Section 6 of the Fines Act 1996 provides:
“In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.”
269 The only information regarding the means of the defendant is that a liquidator has been appointed by the Supreme Court of New South Wales as a result of a failure by the defendant to pay land tax and interest thereon. The reasons for such failure are not in evidence.
270 In Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349, Stein J considered the significance of the fact that the corporate defendant in that case had ceased to trade. Stein J held at 353:
“Whether a person or company’s financial circumstances will sound in mitigation of penalty however will very much depend on the particular facts and circumstances…
So far as the company is concerned all I know is that it is no longer trading. It is difficult to see how its largely indefinite financial circumstances should mitigate the fine to any appreciable extent. It is not in receivership and could possibly trade again. In any event, the means of the company may not have the same impact on third parties as with an individual defendant.”
271 In Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 (15 March 2002), Lloyd J considered the issue of the utility of imposing a substantial penalty upon an impecunious defendant. Lloyd J stated at [16]:
“The purpose of a penalty is not only to act as a specific deterrent but to act as a general deterrent, that is, to discourage others who might be minded to commit similar or like offences in the future. I also must have regard to the seriousness of the offence in this instance. Having regard to all of these considerations I am of the view that a penalty being some 75 per cent of the maximum is appropriate. That is a penalty of $45,000.”
272 In the Environment Protection Authority v Emerald Peat Pty Ltd (In Liq) [1999] NSWLEC 147 (10 June 1999), the corporate defendant in that case was a company in liquidation. Talbot J held at [77]:
“The evidence discloses that the offence must be regarded, as I have said, as extremely serious, but notwithstanding the present impecunious state of the company’s financial affairs and the apparent lack of liquidity in so far as the ability to meet the commitment to a substantial fine is concerned, nevertheless a significant penalty for the offence and a further penalty for each of the 44 days during which the offence continued, is justified”.
273 Talbot J ordered the defendant to pay a total fine of $217,000 in that case.
274 The fact that the defendant is a corporation rather than a natural person, means that the factor of any hardship to the accused is less relevant. It may also be noted that any fine imposed by the Court on the defendant is not admissible to proof against an insolvent company: s 553B(1) of the Corporations Act. Accordingly, no creditor of the defendant will be disadvantaged by any fine imposed on the defendant.
275 The evidence of the defendant’s financial circumstances is also “largely indefinite”, as was the situation in Environmental Protection Authority and Capdate Pty Ltd (1993) 78 LGERA 349 at 353. It should not mitigate the fine to any appreciable extent.
The appropriate sentence
276 Accordingly, having regard to both the very serious, objective circumstances of the offence and the less significant, subjective circumstances of the defendant, the appropriate sentence is a fine in the amount of $40,000. This fine is greater than the amount fixed for Mr Gordon ($30,000) because the objectivity gravity of the offence committed by the defendant has been established on the evidence before the Court in these proceedings to be greater and conversely the subjective circumstances of the defendant on the evidence do not justify as great a mitigation of the sentence as was justified for Mr Gordon: see Bentley v Gordon [2005] NSWLEC 695 (22 November 2005).
Costs
277 The defendant should pay the prosecutor’s costs. Because the defendant has not appeared at the hearing and the liquidator has not otherwise taken an active role in the proceedings, no agreement as to costs payable by the defendant has been able to be achieved.
278 In the Environment Protection Authority v Truegain Pty Limited [2003] NSWLEC 277 (19 November 2003), Talbot J stated:
“Section 253(2) dictates that the costs payable by an accused person are to be determined by agreement between the prosecutor and the accused person, and if no such agreement can be reached, in accordance with the rules. Pursuant to s 3
“rules”
means rules made for the purpose of the Court to which the relevant provision applies. Part 16 of the Land and Environment Court Rules 1996 provides that in assessing and allowing costs the Court and the Registrar or Assistant Registrar as taxing officers are to act in accordance with Pt 52 and Pt 52A of the Supreme Court Rules 1970 (“the SC Rules”) so far as those Parts can apply. The Court is satisfied that Pt 52A of the SC Rules are relevant rules for the purpose of s 253(2)(b). Those rules provide machinery for the determination of the quantum of the prosecutor’s costs. The provisions of the Land and Environment Court Act 1979 previously relevant to costs were repealed by the recent amendments made to the Criminal Procedure Act. In the same way as the former s 52 of the Court Act required the Court to make a costs order at the time of conviction or acquittal, s 253(1) is in the same terms…”.
279 Talbot J made an order in general terms that the defendant pay the prosecutor’s costs of the proceedings. I propose to follow the same course.
Orders
280 The orders of the Court are therefore:
(1) The defendant is convicted of the offence as charged.
(2) The defendant is fined the sum of $40,000.
(3) The defendant is to pay the prosecutor’s costs of the proceedings.
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I certify that this and the 72 preceding pages are a true copy of the reasons for the judgment of The Honourable Justice B. J. Preston.
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Associate Date
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