Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales

[2017] NSWLEC 132

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132
Hearing dates:	21 August 2017
Date of orders:	05 October 2017
Decision date:	05 October 2017
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [92]
Catchwords:	SENTENCE – offence under the National Parks and Wildlife Act 1974 (NSW) – breach of a threatened species licence – failure to conduct a thorough search for rocky outcrops – plea of guilty – offence in the middle range of objective seriousness – whether offence committed intentionally or recklessly – defendant’s prior criminal record – need for general and specific deterrence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A National Parks and Wildlife Act 1974 (NSW), ss 2A, 133(4) (repealed), 205 Protection of the Environment Operations Act 1997 (NSW), ss 193, 194 Threatened Species Conservation Act 1995 (NSW) (repealed), s 3
Cases Cited:	Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 Environmental Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) (2010) 174 LGERA 19; [2010] NSWLEC 67 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Ex parte Newman; Re Fisher and McInerny [1969] 1 NSWR 538 Garret v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Ibbs v R (1987) 163 CLR 447; [1987] HCA 46 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Plath v O’Neill [2007] NSWLEC 553; (2007) 174 A Crim R 336 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 PF v R [2017] NSWCCA 179 R v H (1980) 3 A Crim R 53 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Veen v R (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Chief Environmental Regulator of the Environment Protection Authority (Prosecutor) The Forestry Corporation of New South Wales (Defendant)
Representation:	Counsel: D K Jordan (Prosecutor) I J Hemmings SC with J McKelvey (Defendant)   Solicitors: Office of Environment and Heritage (Prosecutor) The Forestry Corporation of New South Wales (Defendant)
File Number(s):	2016/00160206
Publication restriction:	No

Judgment

1. The defendant, The Forestry Corporation of New South Wales (‘Forestry Corporation’), has pleaded guilty to an offence under the now repealed s 133(4) of the National Parks and Wildlife Act 1974 (NSW) (‘Parks Act’). The conduct the subject of the offence occurred between about 5 June 2013 and 7 October 2013 inclusive, at or near Bemboka, New South Wales. Specifically, Forestry Corporation failed to comply with condition 5.2(a)(xiv) attached to a licence (‘threatened species licence’) in effect issued under Part 6 of the now repealed Threatened Species Conservation Act 1995 (NSW) (‘Threatened Species Act’) by failing to conduct a thorough search for rocky outcrops in Compartment 2330, and particularly the rocky outcrop near Map Grid of Australia 1994 (‘MGA94’) Zone 55 Easting 716400, Northing 5946000 (‘Rocky Outcrop’).

2. The Chief Environmental Regulator of the Environment Protection Authority (‘EPA’) commenced proceedings on 7 October 2015, and Forestry Corporation pleaded guilty to the charge on 17 June 2016. The task before the Court therefore is to determine the appropriate sentence.

Background

3. A Statement of Agreed Facts (‘Agreed Facts’) was filed by the EPA on 16 August 2017, which I summarise below.

4. Glenbog State Forest is located within the Eden Region, and has an area of approximately 11,000ha. It has been mapped in a manner incorporating a number of “compartments”, each being an area of forest designated for forestry management purposes, principally for the cutting and removal of timber. Compartment 2330, the relevant compartment for present purposes, has an area of approximately 156.8ha.

5. Forestry Corporation conducts forestry operations in Glenbog State Forest under the authority of the Integrated Forestry Operations Approval for the Eden Region (‘Forestry Approval’) granted under Part 5B of the Forestry Act 2012 (NSW) (‘Forestry Act’).

Threatened Species Licence Conditions

6. Section 68U of the Forestry Act provides that any person carrying out forestry operations under a Forestry Approval is taken to hold a threatened species licence under the Threatened Species Act, which is to be enforced in the same way as any other threatened species licence issued under the Threatened Species Act.

7. Accordingly, Appendix B to the Forestry Approval contains the terms of the threatened species licence, which applies to Compartment 2330. Relevantly, the preamble to the threatened species licence provides:

This licence is issued to the Forestry Commission of New South Wales and any person carrying out forestry operations defined in the Integrated Forestry Operations Approval (IFOA) under Part 4 of the Forestry and National Parks Estate Act 1998 of which this licence is Annexure B.

...

This licence authorises the conduct of forestry operations on SFNSW estate within the Eden Region (as shown on Map 1 of the IFOA) that are likely to result in:

1.   Harm to a threatened species (being an animal) or protected fauna;

2.   The picking of a threatened species (being a plant) or a protected plant; or

3.   Damage to the habitat of a threatened species.

...

8. Condition 5.2(a)(xiv) of the threatened species licence provides:

(a)   An adequately trained person must conduct a thorough search for, record and appropriately mark the following threatened and protected species features during or before the marking-up of a compartment.

...

xiv. Rocky outcrops and cliffs;

...

9. The term “marking-up of a compartment” is not defined in the threatened species licence, however the Agreed Facts provide that this is the process by which tape, spray paint, or other materials are applied to trees or other prescribed features to guide forest workers during their operations in order to provide geographic limits to harvesting operations.

10. The term “rocky outcrop” is defined in the threatened species licence as follows:

“Rocky outcrop” means an area where rocks or exposed boulders cover more than 70% of an 0.1 hectare area (30 metres by 30 metres); OR areas with skeletal soils (areas with shallow soils where rocks are exposed), supporting heath or scrub (sometimes with occasional emergent trees); OR a combination of both. These sites may occur where the geology varies from the surrounding area (e.g. rhyolite outcrops). Rocky outcrops include, but are not limited to, all areas of FT “rock” (FT no. 234).

11. Relevantly, condition 5.11 of the threatened species licence provides:

5.11 Rocky Outcrops and Cliffs

(a)    Specified forestry activities are prohibited within areas of rocky outcrops and cliffs.

(b)    In addition, exclusion zones of at least 20 metres wide must be implemented around all rocky outcrops more than 0.1 hectare (approx. 30m x 30m), and all cliffs.

(c)    Exclusion zones of at least 40 metres wide must be implemented around all rocky outcrops more than 0.5 hectare.

(Note: it is not intended to exclude SFNSW from all areas that have a scattered or stony or rocky ground cover. Only those areas where rocks and exposed boulders cover greater than 70% of at least a 0.1 hectare area. Those areas that fall within the definition of Rocky Outcrops and Cliffs are considered to contain likely habitat for threatened flora and fauna.)

12. In the Agreed Facts the parties note that if a rocky outcrop is identified in the field, the outer edge of the outcrop is identified and the required 20m or 40m exclusion zone is measured with a laser rangefinder or hip chain and marked with fluorescent pink flagging tape.

13. The Rocky Outcrop is comprised of an area 0.27ha with 78% to 87% of that area covered by rocks and exposed boulders. The parties agree that the Rocky Outcrop is a rocky outcrop in accordance with the definition in the threatened species licence.

14. The threatened species licence relevantly defines “specified forestry activities” as follows:

“Specified forestry activities” means:

i.   Timber felling (excluding miscellaneous forestry operations);

ii.   Construction and operation of log dumps;

iii.   Construction and operation of snig tracks;

...

15. Condition 8.1 of the threatened species licence makes provision for compulsory pre-harvest surveys, namely ‘pre-logging and pre-roading’ surveys. In accordance with this condition a pre-logging and pre-roading survey report was undertaken by Forestry Corporation prior to commencing the harvesting operations, which comprised a desktop review on 20 February 2013 and a traverse of Compartments 2329, 2330 and 2335 by Forestry Corporation’s ecologist on 4 March 2013. Notably, the immediate area around the Rocky Outcrop was not searched for rocky outcrops, as it comprised very dense understory and shrub growth that impeded travel and masked the presence of holes, boulders and fallen logs (this type of undergrowth is colloquially referred to as ‘impenetrable understorey’). Accordingly, the Rocky Outcrop was not identified prior to harvesting as being a rocky outcrop.

16. Condition 3(a) of the threatened species licence requires Forestry Corporation to prepare planning documentation demonstrating operational planning that has taken into account the requirements of the licence. The planning documents must show all exclusion and buffer zones of the relevant harvesting plan operational map. A harvest plan was prepared Mr Shane Clohesy, a harvest planner employed by Forestry Corporation, and was endorsed by the harvest planning team leader on 31 May 2013 and by the Regional Manager on 3 June 2013. While the planning documentation identifies three rocky outcrops within Compartment 2330, it does not identify the Rocky Outcrop.

17. All pre-harvest compartment mark-up in Compartment 2330 was undertaken between 5 June 2013 and 24 October 2013 by Mr William Pryor, the supervising forest officer. Three rocky outcrops with exclusion zones were marked-up in this manner.

Harvesting Operations

18. Wilton Logging Pty Limited (‘Wiltons Logging’) carries out harvesting operations in State forests.

19. Prior to commencing operations, both Mr Pryor and Mr Brad Wilton, a faller and machine operator employed by Wiltons Logging, signed a document acknowledging that they had been briefed on the conditions of the harvest plan and understood the operational and control requirements. In conducting the harvesting operations, Wiltons Logging relied on the harvest plan and associated documentation, as well as the markings in the field.

20. Given the area surrounding the Rocky Outcrop was comprised of impenetrable understorey, in accordance with usual practice Forestry Corporation engaged an operator select methodology whereby Wiltons Logging was briefed about the difficulty in marking-up the area and was told to use their discretion when harvesting. Wiltons Logging was aware that if they came across a rocky outcrop while harvesting, they were to notify Forestry Corporation immediately. As noted in the Agreed Facts, invoking the ‘operator select’ methodology did not discharge Forestry Corporation’s duty to carry out a thorough search for rocky outcrops.

21. Specified forestry activities were undertaken in the area surrounding the Rocky Outcrop during July 2013. As supervising forest officer, it was Mr Pryor’s responsibility to check that the harvesting operations complied with the conditions of the threatened species licence.

22. The offence came to the attention of the EPA on or around 15 October 2013 following a report by a volunteer organisation known as the South East Forest Rescue. Forestry Corporation was thereafter made aware of the non-compliance with the threatened species licence.

Legislation

23. Forestry Corporation has been charged under the now repealed s 133(4) of the Parks Act, which provides:

133   Conditions and restrictions attaching to licences and certificates and variation of licences and certificates

...

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

Maximum penalty:

(a)   in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or

(b)    in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.

Note.  An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.

...

Evidence

24. The evidence in the proceedings comprised the Agreed Facts and its annexures, as well as two affidavits read by Forestry Corporation being the affidavit of Nicholas John Vaughan Roberts, Chief Executive Officer of Forestry Corporation, sworn 20 December 2016 and the affidavit of Lee John Blessington, the harvesting team leader for the South Coast area at the time of the offence, affirmed 23 January 2017. Mr Blessington also gave oral evidence at the hearing.

25. Mr Roberts acknowledged the offence and the surrounding circumstances, noting Forestry Corporation’s cooperation with the EPA and response to earlier notices issued pursuant to s 193 of the Protection of the Environment Operations Act 1997 (NSW), and expressing contrition on his own behalf and that of Forestry Corporation. Mr Roberts also set out the steps that Forestry Corporation has and will be taking to prevent further re-offending.

26. Mr Blessington gave evidence regarding the process undertaken for harvest planning of Compartment 2330, the EPA inspection and Forestry Corporation’s response, and the steps taken by Forestry Corporation since the offence to improve its practices.

Sentencing principles

27. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’), which provides:

3A   Purposes of sentencing

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

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

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

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

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

(f)    to denounce the conduct of the offender,

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

28. Relevantly, s 194 of the Parks Act sets out considerations that the Court is to take into account when sentencing, and provides:

194   Sentencing—matters to be considered in imposing penalty

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

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

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

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

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

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

(f)   in relation to an offence concerning an Aboriginal object or place or an Aboriginal area—the views of Aboriginal persons who have an association with the object, place or area concerned,

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

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

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

29. Both Forestry Corporation and the EPA agree that subss (c), (d), and (e) are relevant for the purpose of these proceedings, however the EPA submits that subs (h) is also relevant, while Forestry Corporation submits that subs (a) should also be taken into account.

30. It is clear and both parties accept that in determining the appropriate sentence, the Court is to have regard to both the objective circumstances of the offence and the personal circumstances of the defendant; see Veen v R (1979) 143 CLR 458 at 490; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71] and [168]-[171].

31. Further, s 21A of the Sentencing Act sets out the aggravating and mitigating factors that a Court is to consider in arriving at the appropriate sentence:

...

(2) Aggravating factors

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

...

(d)  the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

...

(g)  the injury, emotional harm, loss or damage caused by the offence was substantial,

...

(o)  the offence was committed for financial gain,

...

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors

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

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

...

(e)  the offender does not have any record (or any significant record) of previous convictions,

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

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

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

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

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

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

...

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

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

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

Objective circumstances

32. The circumstances that a Court may have regard to in determining the objective seriousness of an offence include the nature of the offence, the maximum penalty, the objective harmfulness of the offence, the defendant’s state of mind and reasons for committing the offence, the foreseeability of the risk of harm to the environment, practical measures to avoid harm to the environment, and the defendant’s control over the causes of harm (see Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]).

33. The EPA submits that, taking all these circumstances into account, the offence should be characterised as falling within the middle range of objective seriousness, whereas Forestry Corporation submits that the offence rather falls within the lower end of the range. For the reasons that follow I find the offence falls within the middle range of objective seriousness.

Nature of the offence

34. The relevant objects of the Parks Act are:

2A   Objects of Act

(1)  The objects of this Act are as follows:

(a)  the conservation of nature, including, but not limited to, the conservation of:

(i)   habitat, ecosystems and ecosystem processes, and

(ii)  biological diversity at the community, species and genetic levels...

...

35. Also relevant are the objects of the Threatened Species Act, which were set out in s 3:

3   Objects of Act

The objects of this Act are as follows:

(a)  to conserve biological diversity and promote ecologically sustainable development, and

(b)  to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

...

36. As noted above at [7], the threatened species licence is Appendix B to the Forestry Approval, and is specifically incorporated into the terms of the approval. In carrying out its forestry operations, Forestry Corporation is required to “give effect to the principles of ecologically sustainable forest management” (cl 7 of the Forestry Approval) and “the principles of best practice that apply to the operations concerned” (cl 8 of the Forestry Approval). The EPA submits that the threatened species licence specifies in a section titled “Intents” that this ‘best practice’ is to be achieved through conducting "operational and pre-logging and pre-roading surveys to assess presence of species requiring species-specific or site-specific conditions”.

37. The threatened species licence is issued subject to conditions and requirements, and provides a defence to acts that would otherwise constitute an offence under the Parks Act.

38. The EPA submits that this legislative framework establishes a pathway for Forestry Corporation to perform authorised logging operations in an ecologically sustainable manner in specified areas, and provides for sanctions if the operations are not compliant with the licence.

Maximum penalty

39. The maximum penalty available for an offence under s 133(4) of the Parks Act is 2000 penalty units, or $22,000.

40. Relying on R v H (1980) 3 A Crim R 53, EPA submits that the maximum penalty available for an offence is a “public expression” by Parliament of the seriousness of the offence. While the EPA accepts that the maximum penalty is to be imposed for the worst category of cases within the relevant offence, the EPA submits that this does not mean that a lesser penalty should be imposed for an offence simply because it is possible to envisage a worse case, see Ibbs v R (1987) 163 CLR 447; [1987] HCA 46; Veen v R (No 2) (1998) 164 CLR 465; [1988] HCA 14. Accordingly, the EPA submits that the present case falls within the mid-range of category of cases.

41. In contrast, Forestry Corporation submits that the imposition of the maximum penalty is necessarily reserved for the worst case; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [31]. Further, Forestry Corporation submits that the fact that penalties for offences under the Parks Act range from 5 penalty units to 10,000 penalty units is indicative that the offence the subject of these proceedings is objectively more serious than some offences and less serious than other offences under the Parks Act.

Environmental Harm

42. The extent of environmental harm caused by the offence was agreed by the parties in the Agreed Facts, and was described as follows:

(i)     a total of 52 trees were felled at EPA Location 1;

(ii)    there was machinery disturbance at EPA Location 1. Within the rocky outcrop there was very minor impacts where minor outcrops were crushed or otherwise damaged by machinery or trees that had been felled. The impacts in the buffer zone were more extensive, however these impacts were relatively minor and comparable to similar impacts which occur naturally through treefall, wildfire and the effects on rocks as trees grow from saplings to mature trees;

(iii)    the impact on vegetation in 0.24ha of forest is minor in the context of the extent of similar forests;

(iv)    the impacts on threatened species habitats appear to have been relatively minor, however, the incident has resulted in major modification to the habitats within almost the entirety of EPA Location 1 and the 20m buffer, including the removal of the majority of the canopy trees and substantial modification to the understorey, and to a lesser extent, groundcover vegetation which will affect, at least in the short term, the foraging and sheltering habitats available to the fauna that are either resident within EPA Location 1 or which may occur there from time to time;

(v)     the diameters of the stumps that remain at EPA Location 1 indicate that the trees were not particularly large, suggesting that the felled trees were probably not hollow bearing;

(vi)    there is no evidence of sediment movement at EPA Location 1;

(vii)   overall, the localised impacts of EPA Location 1 is considered relatively minor in the context of the extent of similar forests and habitats within Glenbog State Forest and contiguous forests, and in the context of the impacts associated with historic and ongoing logging within Glenbog State Forest and other forests within the region, including within adjoining areas in Compartments 2330 and 2335; and

(viii)   the impacts at EPA Location 1 are likely to take in the order of probably hundreds of years to diminish to negligible levels given the intensity of recent and historic logging operations at EPA Location 1.

43. Both parties submitted that it is important to recognise that the offence charged does not relate to the actual clearing within the exclusion zone, which would, as Forestry Corporation notes, constitute a breach of a different condition of the threatened species licence (condition 5.11).

44. The EPA submits that although there is no evidence of harm or likely harm to the environment, pursuant to Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234, it is open to the Court to take into account the possibility of harm if the conduct is repeated. The EPA relies on the comments of Preston CJ of LEC at [175], where his Honour stated:

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 Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366.

45. The EPA further submits that the Court is to take into account the potential risk of harm, relying on Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]. Accordingly, the EPA submits that while there is no actual direct harm to the environment, this does not mean that the breach of the threatened species licence should not be taken seriously. The EPA submits that Forestry Corporation’s failure to search, record and mark-up the areas subject to the licence as required, is contrary to the aims of the licence, and has undermined the protective regulatory scheme contained in the Parks Act and impeded the achievement of ecologically sustainable development (see Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 (‘Smoky Mouse’) at [57]-[61] per Pepper J).

46. In relation to the harm caused, Forestry Corporation submits that while it is accepted that it will take hundreds of years for the area to recover, this is a product of the time it takes for trees to re-grow and ought not be overstated. Further, while Forestry Corporation accepts that harm also includes the potential or risk of harm, not merely actual harm (see Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 102; (2006) 148 LGERA 299 at [145]), it disputes the EPA’s submission that the Court should also consider the possibility of harm if the conduct is repeated. Forestry Corporation submits that this is a misreading of Preston CJ of LEC’s comments in Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [175], and rather his Honour’s comments in that case go to potential latent harm that has not yet been discovered, not the possibility of a repeated offence.

47. In the circumstances, Forestry Corporation submits that the harm caused is minor and ought to be characterised at the low end of the spectrum.

48. Although there is no actual direct harm, I find that Forestry Corporation’s failure to search, record and mark-up areas in accordance with the licence has undermined the protective regulatory scheme contained in the Parks Act and the Forestry Act. As stated in Smoky Mouse at [58]-[61], compliance with the Parks Act is essential to achieving the objects of the Act, as well as the objects of the threatened species licence, being broadly the conservation of biological diversity, the promotion of ecological sustainable development, and the conservation of habitat.

Practical measures and control over causes

49. The EPA submits that the Forestry Approval sets out the measures that should have been taken to prevent, control, abate or mitigate the harm caused by the offence. Further, the EPA submits that the foreseeability of harm, in that the trees adjacent to the specified rocky features might be harmed, was plain.

50. In response, Forestry Corporation submits that it did take some practical measures to avoid the risk of foreseeable harm, noting that it is agreed between the parties that those involved in pre-harvest planning and compartment mark-up (being both Forestry Corporation employees and Wiltons Logging employees) had relevant training, extensive experience, were aware of the threatened species licence conditions and understood the protocols for compartment mark-up.

51. It is clear and Forestry Corporation accepts that it had control over the circumstances giving rise to the offence.

52. I accept that Forestry Corporation did take certain measures to ensure compliance with the threatened species licence, and it is not clear on the evidence before me what further practical steps could have been taken by Forestry Corporation given the impenetrable understorey surrounding the Rocky Outcrop. In circumstances however where the offence relates to a failure to conduct a thorough search, it is clear that this obligation has not been discharged.

State of mind

53. The EPA submits that Forestry Corporation acted recklessly, and that pursuant to s 21A(1)(c) of the Sentencing Act, this raises the level of culpability and affects the relative seriousness of the offence. The EPA further submits that the reckless nature of Forestry Corporation’s conduct is evidenced by its adoption of the ‘operator select’ method (noted at [20] above), which has no statutory or licence basis, and was adopted by Forestry Corporation to save time and effort. The EPA further submits that the fact that such a method relies on removing vegetation until a rocky feature is visually sighted contemplates a substantial risk that the exclusion zone will be compromised.

54. Forestry Corporation submits, relying on R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], that where an offence is alleged to have been committed intentionally, recklessly or negligently the facts must be established beyond a reasonable doubt, and this has not been made out. Forestry Corporation submits that there is no evidence as to the offence being carried out intentionally or recklessly, given that, as a matter of fact, the operator select method was a search methodology that it had put in place in an attempt to comply with condition 5.2(a)(xiv). Accordingly, Forestry Corporation submits that there is no evidence indicating the requisite standard of an ‘indifference to obvious risk’ such that it could be found to be criminally negligent, see Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 (‘Orica’) at [147].

55. I find that the EPA has failed to demonstrate beyond reasonable doubt that Forestry Corporation committed the offence intentionally, recklessly or negligently. I so find having regard to the operator select method, which has not been shown to be inherently faulty or inappropriate, although it does appear to attempt to delegate primary responsibility for compliance with condition 5.2(a)(xiv) in a way that is not permissible, in that Wiltons Logging were briefed “about the difficulty in marking-up [an] area and were told to exercise discretion” in performing the harvesting operations. However, in any event it was agreed that invoking the operator select method did not discharge Forestry Corporation’s duty to carry out a thorough search for rocky outcrops, and I find that the evidence does not establish the degree of carelessness required to show such a disregard for the objects of the statute or an indifference to obvious risk (see Orica at [147]).

Commercial gain

56. The EPA submits that s 194(1)(h) of the Parks Act was a relevant consideration to be taken into account, being whether the offence was committed for commercial gain.

57. Forestry Corporation denies the submission that the offence was carried out for financial gain, submitting that there was no evidence to support such a finding, or any evidence that there was a cost-saving to be gained by failing to search the area around the Rocky Outcrop. Rather, Forestry Corporation submits that it adopted and implemented the operator select methodology because of the existence of impenetrable understorey, though it accepts that this methodology did not discharge its obligations under the threatened species licence.

58. I find that, although there may have been an element of ‘cost-saving’ in Forestry Corporation adopting the operator select method, there is no evidence that Forestry Corporation gained a commercial advantage by the commission of the offence.

Subjective circumstances

59. The subjective circumstances to which the Court should have regard are considered in Plath v O’Neill [2007] NSWLEC 553; (2007) 174 A Crim R 336 at [89]-[101] and set out in s 21A(3) of the Sentencing Act. As per R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], Forestry Corporation notes that such circumstances need only be proved on the balance of probabilities. Relevantly, as the EPA submits, relying on Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140], subjective mitigating features should never produce a sentence that fails to reflect the gravity of the offence or the objectives of sentencing.

Prior criminal record

60. The parties have set out in the Agreed Facts a list of penalty infringement notices (PINs) that have been issued to Forestry Corporation. The PINs relate to three separate categories, being pollute waters, breach of environment protection licence, and breach of threatened species licence, and span from 2003 to 2014. There were 49 PINs referred to in total, and as noted in the Agreed Facts, all PINs were paid by Forestry Corporation.

61. The Agreed Facts also sets out a number of proceedings that have been brought against Forestry Corporation in this Court. Forestry Corporation was the defendant in six separate proceedings spanning from 1992 to 2011 and relating to the same three categories identified above (being pollute waters, breach of environment protection licence and breach of threatened species licence).

62. The EPA submits, relying on Ex parte Newman; Re Fisher and McInerny [1969] 1 NSWR 538 at 539, that the Court should take into account the large number of PINs issued to Forestry Corporation. While there is some authority suggesting that PINs may not be relevant to sentencing, the EPA submits that this applies in circumstances where the previous PINs are unrelated to the facts of the offence before the Court (see e.g. Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125 at [110]; Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102). Given that 15 of the PIN events referred to in the Agreed Facts relate to breach of a threatened species licence, the EPA submits that the PINs are relevant, and the Court should place weight on the fact that they were all issued in a relatively recent time period (since January 2007) and indicate Forestry Corporation’s long history of non-compliance with threatened species licences.

63. The EPA submits that Forestry Corporation’s former convictions and PINs were considered an aggravating factor in Smoky Mouse (at [103]), and notes particularly the comment by Pepper J at [100] that:

...the number of convictions suggests either a pattern of continuing disobedience in respect of environmental laws generally or, at the very least, a cavalier attitude to compliance with such laws. I would attribute more weight to these past convictions than that suggested by the Forestry Commission.

64. Forestry Corporation submits that while the Court can take into account its prior convictions and PINs as an aggravating factor, the weight given to this consideration should be diminished given the circumstances, locations and timing of those other offences. Further, Forestry Corporation emphasises that these prior offences should be considered in the context of its management of approximately 2,000,000ha of State forests.

65. In relation to the PINs, Forestry Corporation accepts that the Court may take into account the number of PINs that relate to breaches of a threatened species licence, however notes that of the 15 relevant PINs, the most recent PIN in relation to the Eden Region (which has an area of 164,300ha) was issued in 2013, and there have been no PINs issued in respect of the Glenbog State Forest. Further, Forestry Corporation submits that none of the PINs issued for breaches of a threatened species licence relate to condition 5.2.

66. In relation to the prior convictions in this Court, Forestry Corporation submits that of the six convictions since 1992, only one related to a breach of a threatened species licence. Further, Forestry Corporation submits that the circumstances of these proceedings can be distinguished from those in Smoky Mouse, where the bushfire hazard reduction burning caused likely harm to the Smoky Mouse (an endangered species) because of lost habitat, which raised the objective seriousness in that case.

67. I find that Forestry Corporation does have a record of prior offences that should be taken into account in sentencing. While this is an aggravating factor, I do not find that, in the circumstances, this necessarily manifests a reckless attitude towards compliance with environmental obligations such as to be a significant aggravating factor.

Part of planned or organised criminal activity

68. Forestry Corporation submits and I accept that the circumstances of the offences, namely the misapplication of the operator select method and lack of intention on behalf of Forestry Corporation make clear that the offence was not planned or organised in the sense contemplated in s 21A(3)(b) of the Sentencing Act.

Character

69. Forestry Corporation submits that despite its prior convictions, the Court would find that, as demonstrated by the evidence of Mr Roberts, it is of good character for the purpose of s 21A(3)(f) of the Sentencing Act.

70. Despite this submission, I do not think that there is sufficient evidence regarding Forestry Corporation’s prior character (particularly given Mr Robert’s evidence goes more to contrition and remorse rather than character) and therefore do not take into account character as a mitigating factor. I do note however the matters outlined in [62]-[63] above.

Likelihood of re-offending

71. Forestry Corporation submits that it has taken substantial steps to avoid further breaches of condition 5.2 of the threatened species licence, particularly in respect of rocky outcrops. It relies on the affidavit of Mr Blessington affirmed 23 January 2017 which details the changes in operating procedures adopted since 2013, as well as the deployment of light imaging, detection and ranging (‘LIDAR’) technology which can be used to identify rocky outcrops despite vegetation and which has been deployed at substantial cost. Mr Blessington attests to LIDAR’s success in identifying previously unidentified rocky outcrops in pre-harvest planning, and Forestry Corporation submits that because of the changes to the standard operating procedures, the deployment of LIDAR technology and additional training, it is unlikely that it will breach condition 5.2(a)(xiv) again.

Contrition and remorse

72. Forestry Corporation submits and I accept that it has, through its CEO Mr Roberts, expressed its regret and remorse for the commission of the offence. As well as offering an apology to the community, the genuineness of this contrition is demonstrated, Forestry Corporation submits, through steps taken since the commission of the offence to avoid future offences, which includes Mr Roberts engaging with the regulator to clarify expectations and standards required under the threatened species licence and under the new Integrated Forestry Operations Approval that is in the process of being negotiated.

Early guilty plea

73. Forestry Corporation entered a plea of guilty to the offence on 17 June 2016. While the EPA accepts that Forestry Corporation’s plea of guilty is a mitigating factor as per ss 21A(3)(k) and 22 of the Sentencing Act, the EPA submits that the extent of the discount should reflect the fact that the plea was only entered after completion of service of the prosecution brief, and therefore it cannot be said that the plea was entered at the first opportunity. The EPA also notes that Forestry Corporation accepted that the Rocky Outcrop was a “rocky outcrop” as defined in the threatened species licence in letters to the EPA dated 8 August 2014 and 20 April 2015.

74. Relevantly, the EPA relies on PF v R [2017] NSWCCA 179 which states at [63]:

...The purpose of s 22 is to provide an incentive to offenders to enter a plea, rather than forcing the prosecution to prove its case at a trial. This provides a utilitarian benefit to law enforcement, as does the assistance in the prevention, detection or investigation of other offences, which is also rewarded, pursuant to s 23 of the Sentencing Procedure Act. As the Court recognised in R v Thomson and Houlton, this effect is maximised where the discount is quantified and the discount given is expressly indicated and recorded.

75. Forestry Corporation disputes the EPA’s submission that the plea was not entered at the earliest opportunity, submitting that rather the plea was entered at the first opportunity following the EPA completing its brief of evidence as to liability. In relation to the EPA’s submission that Forestry Corporation accepted the Rocky Outcrop was a “rocky outcrop” – Forestry Corporation submits that this is immaterial to the timing of the plea, as the offence charged relates not simply to the existence of a rocky outcrop, but rather to whether a “thorough search” was conducted. Forestry Corporation submits that there is a “genuine debate” as to what constitutes a thorough search, and that it was only upon receiving and assessing all of the EPA’s evidence that it could make a determination that a plea of guilty was appropriate.

76. Accordingly, Forestry Corporation submits that there is substantial utilitarian value in its plea of guilty, and accordingly the full discount should be applied as per s 22 of the Sentencing Act and R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

77. While I acknowledge that there is a utilitarian benefit in an early plea of guilty, I do not accept that Forestry Corporation’s plea was entered at the first available opportunity, and as such I find the appropriate discount is 20%.

Cooperation with authorities

78. The parties agree in the Agreed Facts that Forestry Corporation has cooperated with the EPA in its investigation of the offence and in preparing the Agreed Facts. Forestry Corporation further submits that the Agreed Facts properly contains numerous admissions contrary to its interests in order to ensure that the Court’s time is not wasted, and that this accordingly should be considered a mitigating factor pursuant to s 21A(3)(m) of the Sentencing Act.

Deterrence

79. The EPA made submissions in relation to both general and specific deterrence. Relying on Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [8]-[9], the EPA submits that sentences imposed for environmental offences must both deter the offender from committing a similar offence again, and also serve as a general deterrence for other members of the community who might otherwise be tempted to commit a similar offence if only a light punishment is imposed.

80. In relation to general deterrence, the EPA refers to Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) LGERA 234 at [139]-[141]:

[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.

81. In relation to specific deterrence, the EPA submits that Forestry Corporation’s prior criminality is a relevant consideration; see Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477; Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 at [34].

82. Forestry Corporation submits that there is no need for either general or specific deterrence in these proceedings, particularly given that since the introduction of the LIDAR technology, the chances of such an offence reoccurring are considerably low.

83. In relation to general deterrence, in cases such as this where the offence relates to a failure to take adequate precautions to prevent harm from occurring, it is important for the Court to impose penalties such that the penalty for failing to take adequate precautions outweighs the cost of taking those precautions in the first place: Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [156] (Preston CJ of LEC); Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 359 (Mahoney JA). Further, general deterrence has a particular role to play in prosecutions involving public authorities, with such defendants serving as an example to others given their environmental management responsibilities; see Garret v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [197]; Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) (2010) 174 LGERA 19; [2010] NSWLEC 67. Accordingly, I find that there is a need for general deterrence.

84. I am also satisfied that there is a need for specific deterrence notwithstanding Forestry Corporation’s submission regarding the low chances of such an offence reoccurring. As noted by Cowdroy J in Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 at [34]:

The Court is satisfied that an element for general and specific deterrence is warranted in view of two matters. Firstly, there have been prior convictions of the defendant for environmental offences as detailed above. Secondly, the nature of the undertaking of the defendant requires a high degree of care in the fulfilment of its operations. For this reason there is a need for specific deterrence to remind those in authority of a need to observe maximum safeguards for the environment.

Appropriate sentence

85. In determining the appropriate penalty the Court’s task is to take into account the objective circumstances of the offence and the subjective circumstances of Forestry Corporation, and to weigh these factors applying an instinctive synthesis approach: Markarian v R (2005) 228 CLR 357; [2005] HCA 25.

86. Relevantly, the EPA notes that in imposing a penalty, the Court is required to have regard to the principle of ‘even-handedness’ to ensure the sentence is not outside the general pattern of sentencing for similar offences; see R v Visconti [1982] 2 NSWLR 104.

87. Forestry Corporation similarly notes that reference to previous cases can be useful, however cautions as per Axer v EPA (1993) LGERA 357 of the difficulty in comparing one case on penalty with another given the divergence in facts and circumstances. Forestry Corporation submits that the Smoky Mouse decision provides a useful benchmark for the appropriate penalty in these proceedings, though this would indicate the upper limit, Forestry Corporation submits, as the objective seriousness in those proceedings was higher than that which would be appropriate in these proceedings.

88. I note that the parties have agreed in the Agreed Facts that Forestry Corporation will pay the EPA’s professional costs, which I was informed during the course of proceedings would amount to $65,000. Relevantly, Forestry Corporation submits that the quantum of the EPA’s costs may be considered in determining the appropriate penalty; see Environment Protection Authority v Barnes [2006] NSWCCA 246; Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123].

89. Adopting an instinctive synthesis approach and taking into account all the relevant circumstances, I find that the appropriate monetary penalty for the offence is $10,000. Discounted by 20% for the early plea of guilt, this results in a total fine of $8,000.

90. The EPA also seeks orders under s 205(1)(a) and (2) of the Parks Act that Forestry Corporation publish a notice in a specified form in the Bega District News. The parties have largely agreed on a form of the notice, however there was some disagreement regarding certain words. Importantly, publishing the prosecution and punishment of environmental offenders improves general deterrence, in that it demonstrates to the wider public the consequences of such conduct; see Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [242]; Environmental Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]. Accordingly I find it appropriate to make the publication order sought in the form set out in Annexure A.

91. Finally, I also find it appropriate that Forestry Corporation pay the EPA’s legal costs as agreed or assessed.

ORDERS

92. The Court orders:

1. The Forestry Corporation of New South Wales is convicted of the offence as charged.

2. The Forestry Corporation of New South Wales is fined $8,000 payable within 28 days of this Order.

3. Pursuant to section 205(1)(a) and (2) of the National Parks and Wildlife Act 1974 (NSW), The Forestry Corporation of New South Wales is to place a notice in the form of Annexure A in the Bega District News within the first 5 pages, at a minimum size of 18.6cm x 12.9cm, within 30 days of this Order.

4. Pursuant to section 205(2) of the National Parks and Wildlife Act 1974 (NSW), The Forestry Corporation of New South Wales is to provide to the Environment Protection Authority a complete copy of the page of the publication in which the notice appears within 14 days of the date of publication of the notice set out in Order (3).

5. The Forestry Corporation of New South Wales is to pay the Environment Protection Authority’s legal costs as agreed or assessed.

**********

Annexure A - Notice for Publication (66.9 KB, pdf)

Decision last updated: 09 October 2017