Chamwell Pty Limited v Strathfield Council

[2007] NSWLEC 96

Reported Decision: (2007) 151 LGERA 92

Land and Environment Court

of New South Wales

CITATION:

Garrett v Williams, Craig Walter [2007] NSWLEC 96

PARTIES:

PROSECUTOR
Stephen Garrett

DEFENDANT
Craig Walter Williams

FILE NUMBER(S):

50015; 50016; 50017 of 2005

CORAM:

Preston CJ

KEY ISSUES:

Environmental Offences :- destroy Aboriginal objects - damage Aboriginal place - pleas of guilty - restorative justice intervention by Court prior to sentence - restorative process of victim/offender mediation - voluntary participation by Aboriginal people of area in which offences occurred and offender in restorative conference assisted by trained facilitator - relevance to sentencing considerations

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 5(1), s 21A(2), s 21A(3), s 22(1), s 23
National Parks and Wildlife Act 1974 (NSW) s 2A(1), s 84, s 90(1)-(5), Pt 6.

CASES CITED:

Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006);
Douar v The Queen (2005) 159 A Crim R 154;
R v Gallagher (1991) 23 NSWLR 220;
R v MAK; R v MSK [2006] NSWCCA 381 (30 November 2006);
R v Thomson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING:

28/09/2006, 29/09/2006, 05/10/2006, 09/10/2006, 10/10/2006, 14/12/2006

 
DATE OF JUDGMENT: 

27 February 2007

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms E Fullerton SC with Mr T Howard
SOLICITORS
Department of Environment and Conservation

DEFENDANT
Mr P Clay (barrister)
SOLICITORS
Herbert Geer & Rundle

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

27 FEBRUARY 2007

50015, 50016 and 50017 OF 2005

STEPHEN GARRETT V CRAIG WALTER WILLIAMS

JUDGMENT

1 HIS HONOUR: The Aboriginal people have inhabited the country around Broken Hill in far western New South Wales for tens of thousands of years. Evidence of their habitation continues today. There are artefacts scattered across the countryside. The artefacts include evidence of quartz stone quarrying, working and tool manufacture, such as stone blades, flakes, cores or flaked pieces. There are ovens and food processing equipment including grinding dishes and mortar and pestle type equipment. But the most tangible evidence to the Aboriginal people is the country itself and its landscape features. Prominent amongst the landscape features is what European settlers named the Pinnacles. The Pinnacles are three unusual pointy hills that dominate the skyline south of Broken Hill. To the Aboriginal people, the Pinnacles are central to a living Bronze Wing Pigeon story line.

2 The importance to the Aboriginal people of the country around the Pinnacles was recognised in 1996 by a declaration that the Pinnacles be an Aboriginal place protected under the National Parks and Wildlife Act 1974 (NSW).

3 The rocks and landforms that are important to the Aboriginal people have also attracted the interest of geologists and miners. The geology of the Broken Hill area is rich with valuable base metals particularly silver, lead and zinc. The area has become one of Australia’s most important mining areas.

4 One of the mines established was Pinnacle Mines. As the name suggests, it is based in and around the Pinnacles. Pinnacle Mines is operated by the eponymous Pinnacle Mines Pty Limited. Pinnacle Mines mine, crush, separate and process ore extracted from the Pinnacles area. Pinnacle Mines sells the processed ore to the smelter at Port Pirie, in South Australia.

5 In 2003, Pinnacle Mines constructed a private rail siding to load and transport its ore by rail to Port Pirie. During construction, a number of artefacts, in two scatters or deposits, were destroyed. The two scatters or deposits of artefacts are termed Aboriginal objects under that Act. The destruction of the Aboriginal objects constituted offences against s 90(1) of the National Parks and Wildlife Act 1974. I will refer to these two offences as the railway siding offences.

6 In 2004, Pinnacle Mines was undertaking mineral exploration on the southern slopes of the Middle Pinnacle, one of the three hills that make up the Pinnacles. The exploration was carried out by the excavation of a series of pits called costeans along a known or expected strike line of ore bearing rock formations. One of the costeans was excavated across the boundary of the declared Aboriginal place. The damage to the Aboriginal place also constituted an offence against s 90(1) of the National Parks and Wildlife Act 1974. I will refer to this offence as the costean offence.

7 Mr Williams, the sole director and secretary of Pinnacle Mines, has pleaded guilty to the railway siding offences and the costean offence. A sentence hearing has been held. In the course of that sentence hearing, by consent of the prosecutor and the defendant, a restorative justice conference has been held with representatives of the Aboriginal community, who might be considered to be victims of the offences.

8 The Court now needs to determine the appropriate sentence for the defendant for the railway sidings offences and the costean offence.

Commission of the offences
The rail siding offences

9 In 2002, Pinnacle Mines lost the contractual right to use another mining company’s railway siding for the loading of its processed ore for transportation to the smelter at Port Pirie. For a while, Pinnacle Mines transported its ore by road. This was expensive and caused financial hardship to Pinnacle Mines.

10 In early 2003, the defendant reached agreement with an adjoining pastoral leaseholder to subdivide and then purchase one of the subdivided parts of that leaseholder’s pastoral lease, being Western Lands Lease 6193. The defendant proposed to construct Pinnacle Mines’ own rail siding on the subdivided part. This subdivision and change of purpose of the lease and construction of the rail siding required the approval of the relevant government department, formerly known as the Department of Land and Water Conservation. That department advised that a statement of environment effects would be required to accompany any application for its approval.

11 The defendant engaged Ms Melinda Fletcher to prepare a statement of environmental effects. Ms Fletcher determined that one of the potential impacts that would need to be assessed is the impact on any Aboriginal objects or Aboriginal place. Ms Fletcher subcontracted an archaeologist Ms Sarah Martin, to conduct an archaeological survey of the area upon which the railway siding was proposed to be constructed.

12 On 19 March 2005, Ms Martin provide to Ms Fletcher her report entitled “Preliminary archaeological survey of the proposed Pinnacles railway development, near Broken Hill, NSW”. Table 1 of that report is a record of the archaeological data identified by Ms Martin, with identification numbers of N1 to N33 given to identified cultural sites. Table 1 also lists the artefacts found at each of those identified cultural sites.

13 Relevant to the rail siding offences are sites N16 and N17. These two sites are located proximately to one another, to the south of the subsequently constructed railway tracks of the rail siding.

14 Table 1 records site N16 as being located at GPS coordinates 529993 and 6456479; being 30m by 30m in area; containing 5 blades, 7 flakes, 1 block, 2 clear bipolar split cores, 2 clear unsplit and 2 lenticular artefacts; and being of an open campsite type. Site N17 was recorded as being located at GPS coordinates 530028 and 6456486; being 2m by 2m in area; containing 3 clear quartz blades; and being of an open campsite type.

15 Map 1 plots the archaeological data by GPS coordinates. Site N16 and N17, being located so proximately, are not separately shown on Map 1. Instead, Map 1 shows at the location of the GPS coordinates of sites N16 and N17, a single triangle symbol depicting, according to the legend, “campsite/workshops”.

16 On 20 March 2003, Ms Fletcher inspected the proposed rail siding area with the defendant. She advised the defendant that “cultural sites” had been identified “within the whole bank and creek area” and that the defendant “will need to go through the process of applying to Parks and Wildlife for a permit to remove or destroy Aboriginal artefacts”. Ms Fletcher did not show the defendant the identified cultural sites to which she referred.

17 On 1 April 2003, Ms Fletcher sent the statement of environmental effects to the defendant and the Department of Land and Water Conservation. In the statement of environmental effects, Ms Fletcher noted at p 22 that Aboriginal sites had been identified within the proposed railway siding zone and that consent of the Director-General of National Parks and Wildlife would be required under s 90 of the National Parks and Wildlife Act 1974 to damage or destroy Aboriginal objects.

18 Figure 9 of the statement of environmental effects at p 23 shows the location of cultural sites within the proposed railway siding development zone. This is a computer generated diagram which appears to be based on Map 1 of Ms Martin’s archaeological report. Unfortunately, the diagram has been displayed at such a large size as to cause pixelation, making identification of the location of the site difficult. Nevertheless, there is a single site located in the relative position of the locations of sites N16 and N17.

19 The defendant read a copy of each of Ms Martin’s archaeological report and Ms Fletcher’s statement of environmental effects prior to causing the construction of the railway siding. He was therefore aware that Aboriginal objects had been identified in the proposed railway siding zone. The defendant said he inspected the railway siding area before any work commenced. He says he did not see Aboriginal objects of the type or frequency that he had seen at other sites.

20 The defendant contracted an earthmoving company to undertake the earthworks for the construction of the railway siding. The earthmoving company was not informed by the defendant of the existence of Aboriginal objects. Construction of the railway siding commenced in May 2003 and was completed September 2003.

21 The defendant did not apply for or obtain consent under s 90(2) of the National Parks and Wildlife Act 1974 from the Director-General of National Parks and Wildlife for the destruction of the Aboriginal objects.

22 These facts establish that the defendant, without first obtaining the consent of the Director-General of National Parks and Wildlife, knowingly caused the destruction of Aboriginal objects, being the two deposits of Aboriginal objects at each of sites N16 and N17.

Costean offence

23 A costean is an open trench excavated across a known or expected strike of rock formations to expose fresh rock for inspection, logging rock types, measuring strike and dip directions for the rock and for sampling of mineralised zones.

24 The excavation of costeans is an exploration method which has been used at Pinnacle Mines for 100 years. Over 100 costeans are estimated to have been excavated at Pinnacle Mines. Commencing in 2002 and continuing into the second half of 2004, the defendant supervised a program of excavating costeans within the mining leases using a hydraulic excavator owned by Pinnacle Mines.

25 At the time of supervising the program of excavation of costeans, the defendant was aware of the designation of the Pinnacles as an Aboriginal place. The defendant had been aware of the declaration of the Aboriginal place at least since 1998, when the Department of Mines provided him with a copy of the notice of declaration of the Aboriginal place published in the Government Gazette dated 5 July 1996. In particular, the defendant was aware, prior to the carrying out of the program of excavations in the second half of 2004, that the Aboriginal place extended in a 250m radius from the trig point located on the Middle Pinnacle. Unfortunately, the trig point on the Middle Pinnacle is not located at the highest point on the Middle Pinnacle but is located on the northern slope.

26 In about late October 2004 or early November 2004, the defendant instructed an excavation contractor to excavate a costean from a point which he knew to be on or proximate to the boundary of the Aboriginal place in the vicinity of the Middle Pinnacle on the southern slope. The excavation contractor excavated the costean. The costean was between 100 and 150 metres in length, about 1.2 metres deep and about 0.5 metres wide.

27 As I have noted, a costean is an open trench across a known or expected strike of rock formations to gain data on mineralised zones in the rock formation. Once that data has been collected, the excavated trench is filled in. Accordingly, the trench is a temporary excavation.

28 The greater portion of this particular costean was excavated within the boundaries of the Aboriginal place.

29 Prior to the costean being excavated, the defendant attempted to estimate to where the 250m radius from the trig on the Middle Pinnacle would extend on the southern slope of the Middle Pinnacle where the costean was to be excavated. The defendant says he measured 50 metres at a time with a measuring tape. However, the defendant indicated that the estimate was difficult because the 250 metre radius from the trig point on the Middle Pinnacle was defined in terms of a horizontal measurement, but on the ground, the defendant’s measurement required him to walk up and over the peak of the Middle Pinnacle. This is because the trig point is on the northern side of the Middle Pinnacle while the costean was to be excavated on the southern side.

30 The defendant says that, having estimated the relevant boundary of the Aboriginal place, he placed two pegs on points which he believed to be on or outside of the border of the Aboriginal place, that is about 250m from the trig point of the Middle Pinnacle measured horizontally.

31 The defendant met with the excavation contractor each morning during the period the contractor was excavating costeans. At his meeting with the contractor on the second morning of that part of the operation in which this particular costean was excavated, the defendant observed that the contractor had not followed a direct line between the two pegs the defendant had placed, but rather had followed a track along the contour of the hill and had proceeded to excavate in a line which the defendant knew to be encroaching into the Aboriginal place.

32 The defendant, having observed that the excavator contractor had commenced excavation of part of the costean in a line which the defendant knew to be within an Aboriginal place, did not direct the contractor to stop excavating the costean. Instead, the defendant directed the contractor to continue excavating the costean to its designated length along the track along the contour of the hill. The defendant did not instruct the contractor that there was an Aboriginal place at that location.

33 The defendant did not apply for or obtain consent under s 90(2) of the National Parks and Wildlife Act 1974 authorising the damage to the Aboriginal place caused by the excavation of the subject costean.

34 These facts establish that the defendant, without first obtaining the consent of the Director-General of the National Parks and Wildlife Service, knowingly caused damage to the Aboriginal place (being the declared Pinnacles area).

From commencement of the prosecutions to the sentence hearings

35 The prosecutions for the railway siding offences and the costean offence were commenced simultaneously on 20 May 2005. The first return of the proceedings before the Court was on 19 August 2005. The proceedings were adjourned successively to 16 September, 11 November and 17 November 2005 and 17 January 2006 at the request of the prosecutor to allow further time for the prosecutor to file and serve all of its evidence.

36 On 17 January 2006, the Court noted that the defendant entered pleas of guilty in each proceeding. However, on 10 February 2006, by consent of the prosecutor and defendant, that order noting the defendant’s entry of pleas for guilty was revoked and the Court instead noted that the defendant entered a plea of not guilty in each proceeding. Notwithstanding this formal note, the Court was informed by the defendant that there may still be a change of plea to guilty.

37 On 16 February 2006, the defendant entered a plea of guilty to the costean offence but maintained the pleas of not guilty to the railway siding offences. Directions were made to prepare the proceedings for the railway siding offences for trial. On 31 March 2006, further directions were made.

38 On 20 September 2006, the defendant moved the Court to change his pleas to the railway siding offences and the Court accepted the defendant’s pleas of guilty to the railway siding offences. The previously entered plea of guilty to the costean offence was maintained. The trial for the railway siding offences that had been fixed for a week to commence on 25 September 2006 in Broken Hill was vacated. Instead, a sentence hearing for each of the railway siding offences and costean offence proceedings was fixed for 28 and 29 September 2006. Directions were made as to the filing and serving of evidence for the sentence hearings.

Restorative justice intervention

39 The sentence hearings proceeded on 28 and 29 September 2006 before me. Agreed statements of facts with attached documents were tendered for the railway siding offences and for the costean offences. The prosecutor read affidavit evidence of Ms Maureen O’Donnell, an Aboriginal elder and traditional owner of land in the Broken Hill area, concerning the offences and the emotional harm caused by their commission. The defendant gave both affidavit and oral evidence and was cross-examined. Other evidence was also tendered.

40 At the conclusion of the evidence of both the prosecutor and the defendant on 29 September 2006 but before submissions were made, I enquired of the prosecutor and defendant whether they had considered holding and participating in a restorative justice conference. To my knowledge, a restorative justice intervention had not ever been undertaken in criminal proceedings in this Court but the nature of these proceedings appeared to be appropriate for restorative justice processes, if the parties were agreeable.

41 A restorative justice programme, whether general or case-specific, uses restorative processes and seeks to achieve restorative outcomes. A “restorative process” can be defined as “any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator”: United Nations Office on Drugs and Crime (UNODC), Handbook on Restorative Justice Programmes, United Nations, New York, 2006, p 7. A “restorative outcome” is an agreement reached as a result of a restorative process. The agreement may include the offender making reparation or restitution: UNODC, p 7.

42 A restorative justice programme is based on five underlying assumptions:

“(a) that the response to crime should repair as much as possible the harm suffered by the victim;

(b) that offenders should be brought to understand that their behaviour is not acceptable and that it had some real consequences for the victim and community;

(c) that offenders can and should accept responsibility for their action;

(d) that victims should have an opportunity to express their needs and to participate in determining the best way for the offender to make reparation; and

(e) that the community has a responsibility to contribute to this process”: UNODC, p 8.

43 The objectives of a restorative justice programme include:

“(a) supporting victims, giving them a voice, encouraging them to express their needs, enabling them to participate in the resolution process and offering them assistance;

(b) repairing the relationships damaged by the crime, in part by arriving at a consensus on how best to respond to it;

(c) denouncing criminal behaviour as unacceptable and reaffirming community values;

(d) encouraging responsibility taking by all concerned parties, particularly by offenders;

(e) identifying restorative, forward looking outcomes;

(f) reducing recidivism by encouraging change in individual offenders and facilitating their integration into the community;

(g) identifying factors that lead to crime and informing authorities responsible for crime reduction strategy”: UNODC, pp 9-11.

44 In order for a restorative process to achieve its objectives, there must be:

“(a) an identifiable victim;

(b) voluntary participation by the victim;

(c) an offender who accepts responsibility for his/her criminal behaviour; and

(d) non-coerced participation of the offender”: UNODC, p 8.

45 A restorative justice intervention can be used at various stages in the criminal justice system but there are four main points:

(a) at the police level (or equivalent for environmental agencies with criminal investigation powers and officers) (pre-charge);

(b) prosecution level (post-charge, but usually before trial);

(c) at the court level (either at the pre-trial or sentencing stages); and

(d) corrections (as an alternative to incarceration, as part of or in addition to, a non-custodial sentence, during incarceration, or upon release from prison): UNODC, p 13.

46 In this case, the restorative justice process was initiated by the Court after the plea of guilty and before the sentences have been determined. Experience has shown this is an appropriate intervention point: C Benjamin, “Why is Victim/Offender Mediation Called Restorative Justice?”, a paper presented at the Australian Institute of Criminology, Restoration for Victims of Crime Conference, Melbourne, September 1999, p 6.

47 On the evidence at the sentence hearing, the four critical ingredients for a fully restorative process appeared to be satisfied:

(a) The offences in this case involved identifiable victims, being the Aboriginal people of the Broken Hill area for whom the Aboriginal place of the Pinnacles and the Aboriginal objects held special cultural significance. The evidence adduced at the sentence hearing revealed the emotional harm that the commission of the offences caused to the victims. Yet, they were alienated from the traditional criminal justice process.

(b) There was a reasonable prospect that the victims would want to participate in a restorative process, to have an opportunity to express their needs and to participate in determining the best way for the offender to make reparation.

(c) The evidence of the defendant revealed that he accepted responsibility for his criminal actions, showed remorse, had been alienated from the community by adverse media and for other reasons, and had a desire for re-integration into the community and with the Aboriginal people of the area.

(d) There was a reasonable prospect that the defendant would wish to participate in a restorative process.

48 The form of the restorative process that seemed most appropriate in this case was a restorative justice conference, essentially between the victims and the offender assisted by a trained facilitator. Such a conference is often referred to as “victim-offender mediation” (see UNODC, pp 17-18, and Benjamin (1999)) or “victim-offender reconciliation” (see N Serventy, “Crime, Shame and Ritual Re-integration: A New Model of Victim/Offender Reconciliation”) or “victim offender dialogue” (see G Bazemore and M Umbreit, “A Comparison of Four Restorative Conferencing Models” Juvenile Justice Bulletin, Feb 2001, at section on “Victim-Offender Mediation”).

49 The conference offers victims an opportunity to meet the offender in a safe, structured setting and engage in a mediated discussion of the crime. With the assistance of a trained facilitator, the victims are able to tell the offender about the crime’s physical, emotional or financial impact; receive answers to questions about the crime and the offender; and be directly involved in developing a plan for the offender to make reparation or restitution for harm caused to the victims: Bazemore and Umbreit (2001).

50 The process is different from mediation as practiced in civil disputes because the involved parties are in agreement about their respective roles in the crime. Further, the process should not be primarily focused on reaching agreement on reparation or restitution, although most conferences do in fact result in such agreement. Rather, restorative justice conferencing should focus on the process, striving to achieve a specific, interactive dynamic among the parties involved. Because of these fundamental differences with standard mediation, the terms “victim- offender conferencing” or “victim-offender dialogue” are increasingly used: Bazemore and Umbreit (2001).

51 To assist the parties in understanding restorative justice and the process of conferencing, I provided them with a copy of an article by Judge FWM McElrea, “The Role of Restorative Justice in RMA Prosecutions” in (2004) 12 (3) Resource Management Journal,1-15. Judge McElrea is a judge of New Zealand’s Environment Court but had extensive prior experience of restorative justice with youth offenders. He explains the use of restorative justice in prosecutions under the Resource Management Act 1991 (NZ): see also R M Fisher and J F Verry, “Use of restorative justice as an alternative approach to prosecution and diversion policy for environmental offences” (2005) 11 LGLJ 48.

52 After taking instructions, the defendant’s counsel indicated that the defendant was prepared to participate in a restorative justice process and the prosecutor agreed to facilitate such a process. The sentence hearing was adjourned to allow the parties the opportunity to consider the arrangements that would need to be made, including identification of a trained facilitator and the directions that would need to be made for a restorative justice process intervention including, identification of the victims and request for their voluntary participation in the process.

53 On 9 October 2006, the parties agreed on an experienced restorative justice facilitator, Mr John McDonald of ProActive ReSolutions, to facilitate a restorative justice conference between the defendant and appropriate representatives of the Aboriginal people to whom the area in and around the Pinnacles has a special cultural significance. The defendant offered to pay the fees and disbursements of Mr McDonald (which were estimated to be around $11,000 for 4 days preparation and conferencing). The Court made orders appointing Mr McDonald as the facilitator for the restorative justice conference process and that the defendant pay Mr McDonald’s fees and disbursements. The Court listed the proceedings for a directions hearing on 10 October 2006 for the purpose of the appointed facilitator, Mr McDonald, attending the Court to assist it in the making of appropriate directions for the restorative justice conference.

54 On 10 October 2006, the Court made the following directions:

“1. By 4.00pm on 11 October 2006, the prosecutor is to provide Mr McDonald with a copy of each of the agreed statements of facts together with its attachments tendered in these proceedings.
2. By 4.00pm on 13 October 2006 the parties are to provide Mr McDonald with any written nominations or submissions with respect to the identity of persons who the parties consider to be appropriate representatives to take part in the restorative justice conference.
3. The court appointed facilitator, Mr John McDonald, is to facilitate a restorative justice conference between the defendant and appropriate representatives of Aboriginal people to whom the area in and around the Pinnacles has a special cultural significance by not later than 17 November 2006.
4. By 24 November 2006, Mr McDonald is to provide a report of the outcome of the restorative justice conference to the parties.
5. By 24 November 2006, the defendant is to provide a copy of Mr McDonald’s report to my associate.
6. The parties are to file and serve written submissions on sentence by Friday, 8 December 2006.
7. The proceedings are listed for submissions on sentence at 10.00am on 14 December 2006.
8. The parties have liberty to restore on 24 hours written notice.”

55 The parties and Mr McDonald undertook the preparations for the conference in accordance with the directions. The restorative justice conference took place on 10 November 2006 in Broken Hill. The conference lasted just over six hours.

56 Mr McDonald undertook three days of preparation before the conference. Mr McDonald consulted an extensive range of persons during preparation. These included representatives of the Broken Hill Local Aboriginal Land Council (some of whom subsequently attended the restorative justice conference); archaeologists (Ms Martin and Ms McIntyre-Tamwoy who had been subsequently engaged by the defendant to carry out further archaeological Aboriginal heritage work); representatives of the New South Wales Attorney-General’s Department (including persons concerned with crime prevention, Aboriginal community justice and Aboriginal programs); representatives of Broken Hill Aboriginal community justice; representatives of the prosecutor, the Department of Environment (the area manager and the solicitors); representatives of Pinnacles Mines (including the defendant and the defendant’s lawyers); and representatives of the Department of Primary Industries (a regional environment officer).

57 Mr McDonald undertook face to face interviews with potential participants. Mr McDonald explained that he undertook these interviews with participants before the conference in order to:

“- to establish contact and give each person an opportunity to talk openly and confidentially about the situation with a neutral third party;
- to establish each person’s perspective on the events;
- to determine who should be involved in the Conference;
- to clarify for each participant the Conference process;
- to confirm that each participant was willing to attend;
- to answer any questions people might have about the Conference” (p 4 of Mr McDonald’s report).

58 Mr McDonald stated that the conference was designed to “acknowledge and transform existing conflict into a plan for future cooperation by allowing the participants to:

- hear from the defendant exactly what had taken place;

- hear from the victims how people were affected;

- determine what can be done to repair any harm and prevent future offences” (p 4 of Mr McDonald’s report).

59 Mr McDonald noted that at the conference, the defendant, on his own behalf and that of Pinnacle Mines, apologised to Maureen O’Donnell on behalf of the Broken Hill Local Aboriginal Land Council for the offences committed under s 90(1) of the National Parks and Wildlife Act. Ms O’Donnell accepted this apology.

60 Mr McDonald noted that both the defendant and the representatives of the Broken Hill Aboriginal Land Council were cooperative and respectful throughout the conference process.

61 Mr McDonald noted that prior to the conference, neither Ms O’Donnell, the chairwoman of the Broken Hill Aboriginal Land Council nor the defendant, although both long-term residents of the Broken Hill area, had met each other. The restorative conference enabled a constructive dialogue to be established between these persons. Representatives of the Broken Hill Aboriginal Land Council were able to share information about the Aboriginal objects and the Aboriginal place and their significance to the Aboriginal people of the area. The defendant was able to share information about Pinnacle Mines’ operations and the business issues confronting the defendant.

62 Mr McDonald noted that the offences and the issues surrounding the further development and working of Pinnacle Mines are important to both parties and the manner in which the parties interacted with each other suggests that they are committed to a reasonable resolution (p 7 of Mr McDonald’s report). The defendant and representatives of the Broken Hill Local Aboriginal Land Council reached preliminary agreement for ongoing collaboration between themselves. Mr McDonald noted that the heads of agreement included:

“- The Land Council and Craig Williams have agreed to seek solutions to prevent offences such as the ones before the Court, from happening again in the Pinnacle Mines area.
- Craig Williams offered to pay travel, accommodation and living expenses for Maureen O’Donnell and one other to fly to Sydney and be present in the Land and Environment Court on 14 December for sentencing in relation to the two offences. This was accepted by Maureen O’Donnell.
- A visit to and tour of the Mine site by the Land Council prior to the sentencing hearing will be arranged by both parties.
- The Land Council and Craig Williams will get together in the Land Council office in Oxide Street, Broken Hill, or by phone if a suitable time cannot be arranged, to go through the ProActive ReSolutions’ Report and to initiate ongoing interaction between the Land Council and Pinnacle Mines, prior to the Sentencing Hearing.
- Maureen O’Donnell, once she has visited the Mine site and in consultation with Craig Williams, may arrange for two people to look at the area proposed for further development within the existing mine lease.
- Should the parties agree to work together and form a Voluntary Conservation Agreement, Craig Williams has agreed to provide the Land Council with a second-hand four wheel drive vehicle so that they can access the Pinnacle Mines area.
- In the event that the mine were to expand its operation, after due process has been observed, the Land Council, and Craig Williams on behalf of Pinnacle Mines, have agreed to work together to access grants to teach eligible Aboriginal people the skills necessary to work at Pinnacle Mines” (p 2 of Mr McDonald’s report).

63 Mr McDonald provided a copy of his report to the parties and to the Court. The sentence hearings resumed on 14 December 2006. Mr McDonald’s report was tendered by consent as evidence in the sentence hearings. Also tendered was a document outlining discussions between the defendant and Ms O’Donnell, describing the further progress as follows:

“1. Maureen O’Donnell has visited the mine site in consultation with Craig Williams.
2. Maureen O’Donnell and Craig Williams have met since the site visit to discuss moving forward in a cooperative manner, including:
(a) fostering indigenous employment opportunities;

(b) establishing a Wilykali Pinnacles Heritage Trust to which Mr Williams would donate
(i) a four wheel drive truck type of vehicle to the value of $20,000;
(ii) a trailer to the value of $3,000;
(iii) a quad bike to the value of $8,000; and
(iv) provide a fuel card to the value of $100 per month or $1,200 per annum;
(c) Wilykali people will be involved in any salvage operations associated with further s 90 consent applications, where applicable;
(d) The Cultural Heritage Archaeological Management Plan prepared by Susan McIntyre-Tamwoy will be used by Mr Williams and Ms O’Donnell as a preliminary basis in their work towards the development of a Voluntary Conservation Agreement;
(e) Ms O’Donnell and Mr Williams will continue to work with the facilitator, John McDonald to formalise any agreements going forward, if necessary.”

Determining the appropriate sentence

64 The Court in order to determine the appropriate sentence needs to consider the relevant circumstances of the offences and the offender, keeping in mind the relevant purposes for which the Court may impose a sentence in this case. The fact of and the results of the restorative justice intervention can be taken into account in this sentencing process, but the restorative justice intervention is not itself a substitute for the Court determining the appropriate sentence for the offences committed by the defendant.

Objective circumstances of the offences

Maximum penalty

65 The maximum penalty for each of the offences is, for an individual such as the defendant $5,500 or imprisonment for 6 months or both: s 90(1) of the National Parks and Wildlife Act.

66 The prosecutor did not submit that the circumstances of these offences and of this offender make imprisonment a proper sentencing option.

Objective harmfulness of offences

67 The conservation of places, objects or features of cultural value within the landscape, including places, objects or features of significance to Aboriginal people, is an express object of the National Parks and Wildlife Act: s 2A(1)(b)(i). Informed and responsible members of the public view the protection and preservation of cultural heritage seriously. The scheme provided for under Part 6 of the National Parks and Wildlife Act plays a critical role in achieving that objective. In particular, when a person wishes to cause destruction or damage to Aboriginal objects or places to which the provisions of Part 6 apply, that person is obliged to observe due process by making an application for a consent to destroy or damage which, if refused, is subject to review on appeal by the Minister: s 90(3)-(5).

68 Causing destruction or damage to Aboriginal objects or places without first obtaining consent undermines the integrity of the system for the preservation of cultural heritage under Part 6 of the National Parks and Wildlife Act.

69 By causing destruction to the Aboriginal objects and causing damage to the Aboriginal place in this case, the defendant has undermined one of the express objects of the Act, namely to preserve objects, places and features of cultural significance to Aboriginal people, and, in the circumstances of this case, the discrete cultural heritage of the Aboriginal people of Broken Hill and surrounding areas.

70 In relation to the railway siding offences, the harm caused is the loss of two deposits of Aboriginal artefacts. As I have noted earlier, the deposits at N16 and N17 are proximately located and indeed were plotted on the maps in both Ms Martin’s archaeological report and Ms Fletcher’s statement of environment effects as being at a single location. Further, they represent two of thirty three deposits of artefacts identified by Ms Martin in and around the railway siding development zone.

71 Mr Simon Holdaway and Mr Neville Baker, two archaeologists engaged by the prosecutor and defendant who conferred and produced a joint expert report which was tendered at the sentence hearings, noted that in assessing the archaeological record a landscape perspective is required, whereby each part has significance for understanding the whole. They considered sites N16 and N17 are likely to be part of a single distribution of artefacts that extended beyond the area covered by the railway siding and borrow pit. This broader area is the broader Pine Creek catchment proximate to the Pinnacles. They agreed that N16 and N17 should not be considered as two separate sites, contrary to what Ms Martin had suggested.

72 Mr Holdaway and Mr Baker agreed that the destruction of the artefacts at sites N16 and N17 theoretically diminishes the potential for a complete assessment of the significance of the archaeological record and a landscape scale. It is not possible to quantify the extent of the diminution because the archaeological parameters are uncertain.

73 Ms Maureen O’Donnell, a traditional owner and Aboriginal elder of the land around Broken Hill, and chairperson of the Broken Hill Local Aboriginal Land Council, gave evidence concerning the destruction of the Aboriginal objects and the damage to the Aboriginal place. In relation to the Aboriginal objects, Ms O’Donnell stated that she had walked around the proposed railway siding site and observed evidence of Aboriginal habitation, including Aboriginal artefacts. Ms O’Donnell expressed her concern in her affidavit as to any destruction of Aboriginal artefacts as follows:

“I believe that moving Aboriginal artefacts destroys them by taking them away from their resting place. We are taught not to take artefacts away from their original place. If artefacts have to be moved, it should be done in consultation with Aboriginal people and where possible by Aboriginal people.
I believe that the Aboriginal artefacts at the railway siding are very important to the Aboriginal people because of their spiritual and teaching value”.

74 In relation to the Aboriginal place, by reason of the declaration of part of the Pinnacles as an Aboriginal place, the Pinnacles necessarily are of significance. A place cannot be declared under s 84 of the National Parks and Wildlife Act as an Aboriginal place, unless the place, in the opinion of the Minister, “is or was of special significance with respect to Aboriginal culture”.

75 The Pinnacles are of significance to Aboriginal people particularly because they are tied to the Bronze Wing Pigeon story. Although the archaeologists, including Ms Martin, gave evidence of the significance of the Pinnacles, perhaps the most authentic evidence is that of Ms O’Donnell who summarised the significance in these terms:

“I have knowledge of the Pinnacles Aboriginal Place near Broken Hill. My knowledge of the Pinnacles came from my teaching by my family and Aboriginal elders. The Pinnacles is tied to the Marnbi Bronze Winged Pigeon story. I was told that the pigeon flew to the Pinnacles from South Australia where it was wounded, dropping its blood and feathers indicating that there is gold and silver in the area. The Pinnacles area was a large gathering place for Aboriginal people from the Broken Hill and surrounding area, including South Australia. Aboriginal people used to camp along the surrounding creeks, trade and dance and feed together at the Pinnacles. The Pinnacles and the whole area surrounding the Pinnacles is a spiritual ground. There is still evidence of Aboriginal use of the Pinnacles, including stone tools and camp ovens. The Pinnacles area is very significant to the Wilykali and other Aboriginal people. It is also very significant to the Ancestors before us who have gone to their resting place. I do not know when the Pinnacles was last used by Aboriginal people but the story lives on today. I have visited the Pinnacles and spoken about the Pinnacles.”

76 Ms O’Donnell spoke of suffering emotional distress at seeing what she described as “drains” dug in a sacred place. Ms O’Donnell went to the Pinnacles on 19 November 2004 with officers of the National Parks and Wildlife Service. They drove in a four wheel drive up to the Middle Pinnacle. There she saw “what appeared to be big drains between the Middle Pinnacle and the other Pinnacle further away. One of those drains was close to the Middle Pinnacle. I didn’t count how many drains there were but I saw quite a few of them down the hill and on the flatter country as well”. Ms O’Donnell said she drove to one end of the drain closest to the Middle Pinnacle. She could not see the opposite end of the drain because it disappeared over the hill. She did not walk the length of the drain. Ms O’Donnell expressed her distress in her affidavit in the following terms:

“I was very upset with what I saw because the drains had been dug at a sacred place. I believe that the drains had damaged the Pinnacles sacred area because they would have disturbed the Aboriginal spirits and the story line of our teaching. I believe that the Aboriginal spirits would be very unhappy. I felt like the spirits were angry because the weather was awful that day. It was very cold and windy. The Pinnacles was serene and a place of beauty until the drains were dug.
I remember saying to Steve Millington words like ‘Look at this Steve, isn’t it terrible that they put in these drains. Feels like they put a big hole in my body’”.

77 I should note that although Ms O’Donnell refers to numerous drains between the Middle Pinnacle and another Pinnacle, quite a few down the hill and on the flatter country as well, only one costean was dug by the defendant in the declared Aboriginal place. The excavation of all other costeans or other drains outside the declared Aboriginal place cannot be considered by the Court to be part of the harm flowing from the commission of the offence by the defendant. I should also note that there is no evidence that all of the drains to which Ms O’Donnell refers were excavated by the defendant. Other mining companies carry out exploration and mining in the area. Indeed, Mr McDonald in the report of the restorative justice conference, notes that neighbouring mine operations are carried out by another company unrelated to the defendant and that the exploratory drill holes and samples in green plastic bags observed by Ms O’Donnell and other representatives of the Broken Hill Local Aboriginal Land Council on a tour of the Pinnacle Mines site were the work of the neighbouring mining company and not Pinnacle Mines as had been first thought.

78 The prosecutor submits the costean offence, on this evidence, has caused substantial harm.

79 The defendant submits that at least four circumstances lessen the harmfulness caused by the commission of the costean offence:

(a) The physical damage caused by excavating the costean into the declared Aboriginal place was repaired by filling the open trench after the mineralogical survey had been completed;

(b) All or a substantial part of the costean that crossed inside the Aboriginal place was in an area in the nature of a bush road or track;

(c) The incursion was all or substantially in an area that had been disturbed; and

(d) The damage was not at the heart of the Aboriginal place in the physical sense but very much at its periphery.

80 The defendant submits that the extent of physical damage must bear directly upon the extent of environmental harm. The defendant gives as an illustration that if one of the entire hills of the Pinnacles had been destroyed then both the physical and spiritual damage would be higher compared to an incursion at the periphery of the Aboriginal place.

81 In order to be an aggravating circumstance, the damage or harm must reach the threshold of being “substantial”: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The prosecutor bears the burden of establishing that the damage or harm is substantial to the criminal standard of beyond reasonable doubt.

82 I am not satisfied on the evidence that the damage or harm caused by the destruction of the particular artefacts in the deposits at N16 and N17 and the excavation of the single costean that is the subject of the costean offence, can be said to be “substantial” so as to be an aggravating circumstance for each offence. The evidence of the joint archaeological experts in relation to the railway siding offences does not permit a finding, beyond reasonable doubt, that the destruction of the artefacts at sites N16 and N17, has caused substantial damage or harm. In relation to the costean offence, the evidence of Ms O’Donnell lacks specificity in relation to the particular costean, the subject of the costean offence, making it difficult to find that the excavation of that costean by itself has caused substantial harm, as distinguished from the cumulative effect of digging drains throughout the broader area about which she did express deep concern. Further, the factors referred to by the defendant do operate to lessen the degree of harm. Together, these factors do not enable a finding, beyond reasonable doubt, that the excavation of the costean alone has caused substantial harm.

83 This conclusion is not meant in any way to undermine the significance of the Aboriginal objects in and around the Pinnacles area or indeed of the Pinnacles as a landscape feature to the Aboriginal people. I accept that these are significant to the Aboriginal people of this area. It is simply a finding that on the evidence before me it is not possible to find beyond reasonable doubt that the particular actions of the defendant have caused “substantial” harm.

State of mind of offender and reasons for commission of the offences

84 The prosecutor submits that the defendant knowingly caused, respectively, the destruction of the Aboriginal objects and damage to the Aboriginal place. The prosecutor submits that the Court would find that the defendant deliberately committed the offences and pursued commercial objectives. This is particularly apparent in relation to the offence of knowingly causing the destruction of the Aboriginal objects at the railway siding. The prosecutor refers to the defendant’s admission that the development proceeded without the necessary approval because of cost restraints but then said that he had no alternative but to proceed with the development because the company had to truck its ore to Port Pirie and this was sending the company broke.

85 The prosecutor submits in relation to the costean offence that the defendant had a commercial objective when, having become aware that the costean was being excavated within the Aboriginal place, he made a decision to continue to excavate further into the Aboriginal place rather than stopping, backfilling and redirecting the operation or ceasing altogether. The defendant’s motivation was to map ore bodies for the commercial advantage of his business operation.

86 The defendant acknowledges that he was aware that artefacts existed and were likely to occur in the railway siding area, and that the conduct of the construction of the railway siding was deliberate and intended. However, the defendant submits, this awareness is to be contrasted with an intention to commit the offence. The defendant submits that there was not a large measure of premeditation or extensive knowledge of the potential impacts of the activity.

87 In relation to the costean, the defendant submits that the offence was committed at the beginning of the second day. The circumstances in which the defendant found himself at that time were unplanned and not deliberate. The defendant’s knowledge of the potential impacts of the activity was less than it is today.

88 The defendant accepted that each of the offences was committed during the carrying out of commercial operation. The defendant accepted that the construction of the railway siding and the exploratory work in digging the costeans were all in furtherance of the commercial activity of the Pinnacles Mines. The defendant submits that in relation to the railway siding offences the offence is not the carrying out of the work but the failure to obtain consent. In relation to the costean offence, the defendant submits that there was no direct or indirect commercial advantage by completing the costean.

89 By his pleas of guilty, the defendant must be found to have committed the offences with the requisite mental element of the offences, namely knowingly causing the destruction of Aboriginal objects (for the railway siding offences) and knowingly causing damage to an Aboriginal place (for the costean offence). The commission of each offence with this mental state cannot be an aggravating circumstance because it is an element of the offence.

90 In relation to the commercial motive, it is undoubtedly true, as the defendant concedes, that the actions that constituted the offences were done in the furtherance of the commercial operation of Pinnacle Mines. However, this alone does not establish that each of the offences were committed for a commercial motive.

91 In relation to the railway siding offences, the evidence established that there were financial reasons for the defendant carrying out the construction work which led to the destruction of the Aboriginal objects. Pinnacle Mines was suffering financial hardship because of the costs of transporting ore to Port Pirie by road. The earlier the railway siding could be constructed, the sooner the cost of road transportation could be abated. The defendant elected to carry out the activities of destroying the Aboriginal objects without first obtaining the consent of the Director-General of National Parks and Wildlife in order to save the time that would be involved in applying for and obtaining consent and the concomitant cost of road transportation that would be incurred in that time. There was also, of course, a risk that consent might not be granted at all, resulting in project redesign and further delay and cost. On this evidence, the defendant committed the railway siding offences for commercial advantage.

92 In relation to the costean offence, however, the commercial motive has not been established. Although the purpose of excavating costeans is to improve knowledge of the mineralogy of rocks in the area, which knowledge (depending on what data is obtained) might be used to the commercial advantage of Pinnacle Mines, there is no evidence that the continued excavation of the costean on the route that crossed into the Aboriginal place rather than along a route that avoided the Aboriginal place was intended to yield or actually did yield any commercial advantage to the defendant. I do not find that the defendant committed the costean offence for commercial reasons such as to make a profit or to save an expense.

Subjective circumstances of the defendant

Lack of prior criminality

93 The defendant has no prior convictions for environmental offences. The absence of a record of previous convictions is a mitigating factor: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Prior good character

94 The defendant tendered character references by three people, the Honourable Peter Black OAM MP, Mr Gary Radford OAM and Professor Ian Plimer.

95 The Honourable Peter L Black OAM, the member for Murray-Darling in the NSW Parliament, says that he has known Mr Williams for 20 years both in his capacity as Mayor of the City of Broken Hill (1980-1999) and as a State Member of Parliament in the seat of Murray-Darling (1999 to date). Mr Black notes that Mr Williams has provided financial support and supplied equipment to various organisations in Broken Hill over many years including the Miners’ Memorial, the Line of Lode Association, Broken Hill Historical Society, Country Music Festival and St Vincent de Paul. Mr Black notes that Mr Williams is held in high esteem by citizens generally.

96 Mr Black notes that he is aware that Mr Williams has pleaded guilty to the damage of two Aboriginal campsites and an Aboriginal place. He expresses his understanding that Mr Williams undertook earthworks around these areas and in doing so committed the offences. Mr Black expresses his opinion that Mr Williams “recent indiscretion” will not be repeated.

97 Mr Gary Radford OAM, a long time resident of Broken Hill and former managing director of Mineral, Mining Metallurgy Ltd, South Mine Broken Hill and manager of operations at Mineral, Mining Metallurgy stated that he has know Mr Williams for 40 years. He has also known Mr Williams’ father and grandfather. Mr Radford notes that he is aware Mr Williams has committed offences by carrying out earthworks and excavating costeans and that he has pleaded guilty to those offences. Mr Radford states that the offences are out of character for Mr Williams. Mr Radford notes that any penalty that may be imposed will serve as a major consequence for future earthworks that Mr Williams may carry out.

98 Professor Ian Plimer, Professor of Mining Geology at the University of Adelaide, states that he has know Mr Williams for some 40 years. Professor Plimer says that he, whilst at various universities, has brought scores of students and foreign visitors to the Pinnacle Mines as part of educating people about the incredibly complex geology of the Broken Hill district.

99 Professor Plimer notes that Mr Williams has always been most generous with his time, has allowed unfettered access to the mine, mill and surfacing workings, has allowed students and visitors to collect whatever samples they wish and has been helpful to amateur groups, such as the Mineralogy Society of Victoria, of which Professor Plimer is a patron, who have a passion for minerals and often have difficulty in gaining access to sites. Professor Plimer notes that visitors to the Pinnacles have always been interested in Mr Williams’ knowledge and love of history, especially mining history, his passion for the Pinnacles Mine and other Broken Hill mines, and his knowledge of the historical methods of mining and milling. Professor Plimer notes that Mr Williams’ interest in mining history is tangible as he and his family have made donations of equipment to a charity, the Line of Lode Association, which promotes mining history.

100 Professor Plimer notes that Mr Williams was involved in the rehabilitation of mining leases in Broken Hill by removing all the soluble lead materials which Mr Williams treated at the Pinnacle Mines. By the removal of this lead material and the subsequent covering of tailings and water soluble ore with mullock, there has been a significant decrease in lead-rich dust blowing onto South Broken Hill.

101 Professor Plimer states that he has been informed of the details of the litigation concerning the exploration associated with Pinnacle Mines and is aware that Mr Williams has pleaded guilty. Professor Plimer expresses the view that Mr Williams is most contrite.

102 In addition, Mr Williams has given sworn testimony himself, both in an affidavit and oral evidence, and was subject to cross-examination by the prosecutor. In that evidence, Mr Williams expresses regret that he failed to comply with the law. He recognises that what he did was wrong. He expresses his apology for the offence that he has caused. He states that this is the first time that he has ever caused damage to Aboriginal objects or an Aboriginal place. He says that neither he nor any company with which he is involved including Pinnacle Mines, has ever been convicted of any offence of an environmental nature.

103 Mr Williams notes that he has made contributions to help the Broken Hill and broader community. He has made financial donations and also donated equipment to the Miners Memorial at Broken Hill. He has donated equipment to the Line of Lode Association for its exhibit as part of the Miners Memorial national trust. He has donated equipment to the Broken Hill Historical Society and made financial donations to the Broken Hill Country Music Festival. He has donated a large amount of furniture to St Vincent de Paul. He has donated money to the Women & Children’s Hospital in Adelaide.

104 Collectively, this evidence establishes that Mr Williams was a person of good character prior to the commission of the offences. This is an established mitigating factor to be taken into account in determining the appropriate sentence for the offences: see s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999.

Plea of guilty

105 The defendant has pleaded guilty to each of the offences. The fact that the defendant has pleaded guilty is to be taken into account as a mitigating circumstance, both for the utilitarian value for the criminal justice system and, if applicable, as an expression of contrition and remorse: s 21A(3)(k) and s 22(1) of the Crimes (Sentencing Procedure) Act 1999 and R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 411 [115] – 412 [116], [122].

106 Courts are encouraged to quantify the utilitarian value of a plea of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160] but not to separately quantify the discount for remorse generally or as it is manifested by the plea of guilty R v MAK; R v MSK [2006] NSWCCA 381 (30 November 2006) at [43]-[45].

107 The utilitarian value of a plea of guilty is affected by the timing when the offender pleaded guilty: s 22(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 [154] - 419 [160].

108 In relation to the costean offences, the defendant pleaded guilty after the prosecutor had completed filing and serving all of its evidence. There seemed to have been some glitch in relation to the proper recording of that plea of guilty. However, this does not materially affect the utilitarian value of the plea of guilty in relation to the costean offences. I would quantify the utilitarian value of the plea of guilty in relation to the costean offence at 25%.

109 In relation to the railway siding offences, there were pleas of not guilty maintained until a week before the trial. On the motion of the defendant, the pleas were changed to that of guilty. This did have a utilitarian benefit in saving a week long trial at Broken Hill. Nevertheless, it was a relatively late entry of the guilty plea. This affects the utilitarian value of the pleas of guilty. In the circumstances, therefore, the utilitarian value of the plea is less. I would quantify it at 15%.

Contrition and remorse

110 The defendant has expressed contrition and remorse not only for the offences but also for the harm caused to the Aboriginal people by the commission of the offences. This is manifest in the evidence Mr Williams gave. The defendant’s contrition and remorse is aptly summarised in the following statement from his affidavit of evidence:

“I regret that I committed the offences and I am sorry for the harm it has caused. I realise that it was foolish not to be vigilant and more respectful about the Aboriginal objects and the Aboriginal place. During the course of these proceedings I have learnt a significant amount about Aboriginal archaeology and the importance of the Aboriginal place. I have also realised how both Aboriginal objects and the Aboriginal place are more important to Aboriginal people than I had previously appreciated. I am seriously remorseful about what has occurred.”

111 Mr Williams gave evidence that he would make sure that such offences would not occur again. Mr Williams stated some of the measures he will do to ensure that the offences do not reoccur:

“To that end, I will ensure that I will get proper archaeological advice prior to undertaking any work where there is a risk of disturbance to or destruction of Aboriginal objects. If it is necessary, I will apply for a consent under s 90 of the National Parks and Wildlife Act before undertaking any work which is likely to result in the disturbance or destruction of Aboriginal objects. Also, if there is to be any additional work which is approaching the boundary of the Aboriginal place, I will ensure that that area is surveyed so as to ensure that the work does not take place within the Aboriginal place.
By taking those steps, I believe that I can confidently say that a situation such as the present will not arise again.”

112 Subsequently, the defendant did engage Ms Susan McIntyre-Tamwoy to undertake a comprehensive archaeological survey. Ms McIntrye-Tamwoy produced in November 2006 a report entitled “Aboriginal Archaeological Sites on the Pinnacles Mine & Pastoral Lease near Broken Hill NSW Stage 1 – Cultural Heritage Management and Archaeological Management Plan”.

113 Contrition and remorse is also evident from the defendant’s participation in the restorative justice conference. As I have set out, the defendant not only voluntarily participated in the conference, but also undertook to pay for the costs of the facilitator holding the conference and for the costs of the subsequent participation by representatives of the Aboriginal people, including their attendance at the further sentence hearing. The defendant expressed his apology to the victims of the offences, and has endeavoured to make reparation by the preliminary agreement and outcomes of the restorative justice conference. Collectively, these are indicative of the defendant’s genuine contrition and remorse, desire to make reparation for the harm he has caused and intention to ensure that the offences do not reoccur. These are mitigating factors: s 21A(3)(g) and (i) of the Crimes (Sentencing Procedure) Act 1999.

Assistance to authorities

114 The defendant cooperated with the authorities. He voluntarily participated in lengthy records of interview, including a videoed walk through interview on site explaining the activities that constituted the offences. The defendant has assisted in the settling of a statement of agreed facts and documents. This assistance operates to mitigate the offence: s 21A(3) and s 23 of the Crimes (Sentencing Procedure) Act 1999. It is probably best seen as forming a complex of interrelated considerations with the defendant’s pleas of guilty and expression of contrition and remorse: R v Gallagher (1991) 23 NSWLR 220 at 228.

Synthesis of objective and subjective circumstances

115 The appropriate penalty for each of the offences in this case is a fine. Imprisonment is not an appropriate sentence: s 5(1) of the Crimes (Sentencing Procedure) Act 1999 and Douar v The Queen (2005) 159 A Crim R 154 at 165 [70].

116 The appropriate amount of the fine for each offence should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances. In determining the amount of the fine regard must be had to the purposes for which a sentence may be imposed. These include ensuring that the defendant is adequately punished for each offence and is held accountable for his actions; denouncing the conduct of the defendant; deterring both the defendant and other persons from committing similar offences; and recognising the harm done to the community, particularly the Aboriginal community for whom the Aboriginal objects and the Aboriginal place have special significance: see s 3A(a), (b), (e), (f) and (g) of the Crimes (Sentencing Procedure) Act 1999.

117 I take into account the defendant’s participation in the restorative justice conference and the significant costs that the defendant has incurred in and as a result of that conference. I take into account the defendant’s offers, both monetary and equipment, to the Aboriginal people of the area that are an outcome of the conference process. I also take into account that the defendant has offered to pay the prosecutor’s costs of the proceedings, which may be substantial. All of these can be seen to be part of the overall punishment of the defendant: see Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006) at [78], [84].

118 In relation to the costean offence, I am of the view that a fine of $1,000 is appropriate. This should be discounted by 25% to take into account the utilitarian value of the plea of guilty, resulting in a fine of $750.

119 In relation to the railway siding offences, I consider that assessed individually the appropriate amount for the offence in relation to site N16 (comprising 19 artefacts) should be $750 and the appropriate amount in relation to the offence concerning site N17 (comprising 3 artefacts) should be $250. These should each be discounted by 15% for the utilitarian value of the pleas of guilty, giving $637 and $213 respectively. In aggregate, these amount to $850. However, I consider that the totality principle ought to be applied to determine the appropriate aggregate fine which is just and appropriate and reflects the total criminality involved with the commission of the railway siding offences.

120 Although the prosecutor chose to prosecute the defendant for his actions in relation to the deposits of artefacts at sites N16 and N17 in two separate proceedings, the evidence establishes that, in fact, the deposits should be considered properly to be one site. This was the evidence of the joint experts, Mr Holdaway and Mr Baker. It was also the way that both Ms Martin and Ms Fletcher mapped the deposits, namely at one site.

121 Accordingly, applying the totality principle, the aggregate amount for the railway siding offences should be reduced to $650 which better reflects the total criminality involved. The aggregate amount should be distributed as $450 in relation to offence concerning site N16 and $200 in relation to the offence concerning site N17.

Orders

122 For these reasons, the Court makes the following orders:

1. The defendant is convicted of each of the offences as charged.

2. The defendant is fined $750 in relation to the offence charged in proceedings no 50016 of 2005.

3. The defendant is fined $200 in relation to the offence charged in proceeding no 50015 of 2005.

4. The defendant is fined $450 in relation to the offence charged in proceedings no 50017 of 2005.

5. The defendant is to pay the prosecutor’s costs as agreed or assessed.

6. The exhibits may be returned.

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