Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd

[2017] NSWLEC 54

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54
Hearing dates:	11 August 2016
Date of orders:	12 May 2017
Decision date:	12 May 2017
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	See [97]
Catchwords:	ENVIRONMENTAL OFFENCES: Unlawful clearing of native vegetation – pleas of guilty by company and individual – sentencing principles – environmental harm – other objective and subjective factors – fines imposed – costs agreed.
Legislation Cited:	Corporations Act 2001 Crimes (Sentencing Procedure) Act 1999 Native Vegetation Act 2003
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Cameron v The Queen (2002) 209 CLR 339 Camilleri’s Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Chief Executive, of the Office of Environment and Heritage v Newbigging [2013] NSWLEC 144 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Director General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; [2009] NSWLEC 4 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No.2) [2011] NSWLEC 149 Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) [2016] NSWLEC 120 Environment Protection Authority v Orange City Council [1995] NSWLEC 103 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 Hoare v R (1989) 167 CLR 348; [1989] HCA 33 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Morton v R [2014] NSWCCA 8 Muldrock v R [2011] HCA 39 Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v AB [2011] NSWCCA 229 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Dib [2003] NSWCCA 117 R v Dodd (1991) 57 A Crim R 349 R v Olbrich (1999) 199 CLR 270 [1999] HCA 54 R v O’Neill [1979] 2 NSWLR 582 R v Rahme (1989) 43 A Crim R 81 R v Rushby [1977] 1 NSWLR 594 R v Stambolis [2006] NSWCCA 56 R v Thomson, R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Chief Executive of the Office of Environment and Heritage (Prosecutor) Gerardus Johannes Jacobus Kurstjens (Defendant) Topview Brisbane Pty Ltd (Defendant)
Representation:	Counsel: Mr E C Muston, SC with Ms B E M Anniwell, barrister (Prosecutor) Mr S M Littlemore, QC with Ms P M Lane, barrister (Defendants) Solicitors: Office of Environment and Heritage (Prosecutor) Mills Oakley Lawyers (Defendants)
File Number(s):	2016/1538692016/155307

Judgment

Introduction

1. In this case, an individual and a company, having pleaded guilty to environmental offences, are before the Court to be sentenced.

2. The Defendant Gerardus (or “Gerrit”) Kurstjens is the guiding mind of a group of family companies and a family trust (Nimbus 4 Pty Ltd – Tp16, L41 to p17, L9).

3. The Defendant Topview Brisbane Pty Ltd (“Topview”) is a Queensland-based farming company within that group (search in Exhibit P4), and operates on land owned by/in the group.

4. Kurstjens is the secretary and sole director of Topview. He was born in the Netherlands in 1944, and is said to be “deficient” in the English language (Tp17, L40, and subs par 28). He is also said to have lived, and had interests, in a number of countries (Tp18, LL38 – 40, and subs par 42).

5. Both Kurstjens and Topview have been charged with a total of six offences involving the clearing of native vegetation on various lands in the Moree area.

6. I was to hear all six matters on a defended basis – indeed, a hotly defended basis (see Tp19, L41 – p20, L24) – over a period of 15 or more days, commencing on 14 June 2016.

7. However, the parties agreed, on that date, that only the two cases presently before the Court would proceed, and the Defendants pleaded guilty to the charges involved in both of them (matters 14/50659 and 14/50660, now 2016/153869 and 2016/155307, respectively, concerning the property known as “Beefwood”).

8. Directions about expert conferencing and other evidence were made, and the sentencing hearing was fixed for 1 – 2 days, commencing 11 August 2016.

9. In each of the two cases the Prosecutor seeks a conviction and a fine, and, across the two cases, the Defendants have agreed to pay the Prosecutor’s costs of $185,000.

10. The maximum fine at the time of commission of the offences was $1,100,000 each, indicating the seriousness with which Parliament viewed them: Bentley v BGP Properties Pty Limited (“Bentley”) (2006) 145 LGERA 234; [2006] NSWLEC 34

11. There is very little factual dispute remaining between the parties, nor much dispute about the relevant sentencing considerations, only about the application of those sentencing principles to those facts (Tp4, LL21 – 25).

12. The remaining four cases against the Defendants have been stood over for mention at the time of delivery of this judgment, and it is expected that they will all be dismissed/withdrawn, by consent (Tp2, LL33 – 34). (Matters 14/50661, 50662, 50053 and 50054, now 2016/153870, 155308, 153967, and 154042 respectively.)

The Charges

13. In matter 2016/153869 (formerly 50659/2014), Kurstjens was charged that:

1.   ... between about 7 March 2011 and 5 September 2012 inclusive (the Period), at or near Moree in the State of New South Wales, he committed an offence against section 12 of the Native Vegetation Act 2003 (the Act), by reason of section 45(1) of the Act, in that:

(a)   he was, throughout the Period, a director of Topview Brisbane Pty Ltd (A.C.N. 097 049 851) (the Corporation), and

(b)   the Corporation cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or a property vegetation plan.

14. In matter 2016/155307 (formerly 50660/2014), Topview was charged that:

1. ... between about 7 March 2011 and 5 September 2012 inclusive, at or near Moree in the State of New South Wales, it committed an offence against section 12 of the Native Vegetation Act 2003 (the Act), in that it cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or a property vegetation plan.

15. The two summonses gave particulars identical in three respects:

(a)   Place of offence:

At or near the property “Beefwood”, Newell Highway, near Moree, including Lot 1 in Deposited Plan 710734, Parish of Mount Pleasant, County of Stapylton, in the Moree Plains local government area.

(b)   Native vegetation:

The native vegetation cleared included:

(i)   Alectryon oleifolius (Rosewood),

(ii)   Acacia pendula (Myall),

(iii)   Acacia oswaldii (Miljee),

(iv)   Geijera parviflora (Wilga),

(v)   Casuarina cristata (Belah),

(vi)   Maireana microphylla (Eastern Cottonbush),

(vii)   Vachellia farnesiana (Mimosa Bush), and

(viii)   Rhagodia spinescens, (Thorny Saltbush).

...

(d)   Date on which evidence of the offence first came to the attention of an authorised officer:

Evidence of the offence first came to the attention of an authorised officer, being Janet Sternbeck, on 29 August 2012.

16. A fourth particular – “(c) Manner of breach” – was specific to each case.

17. Against Topview it said:

Employees and/or agents and/or person acting under the direction of the Defendant cleared native vegetation by means of machinery including a bulldozer.

but, against Kurstjens, it merely substituted the word “corporation” for the word “Defendant”.

Native Vegetation Act 2003

18. The objects of the Native Vegetation Act 2003 (“the NV Act”)are set out in s 3:

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

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

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

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

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

in accordance with the principles of ecologically sustainable development.

19. As the Prosecutor noted (subs par 16), those objects are served by the prohibition of clearing, for which no approval has been granted.

20. Section 12 provides:

Clearing requiring approval

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

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

(b)   a property vegetation plan.

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

(3)   It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

Note. An offence against this section 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 45.

21. Section 45 provides:

Liability of directors etc for offences by corporation—offences attracting executive liability

(1)   For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation:

(a) section 12,

(b)   section 37 (5),

(c)   section 38 (4).

(2)   A person commits an offence against this section if:

(a)   a corporation commits an executive liability offence, and

(b)   the person is:

(i)   a director of the corporation, or

(ii)   an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c)   the person:

(i)   knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii)   fails to take all reasonable steps to prevent or stop the commission of that offence.

Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.

(3)   The prosecution bears the legal burden of proving the elements of the offence against this section.

(4)   The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

(5)   This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.

(6)   This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.

(7)   In this section:

director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.

reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:

(a)   action towards:

(i)   assessing the corporation’s compliance with the provision creating the executive liability offence, and

(ii)   ensuring that the corporation arranged regular professional assessments of its compliance with the provision,

(b)   action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,

(c)   action towards ensuring that:

(i)   the plant, equipment and other resources, and

(ii)   the structures, work systems and other processes,

relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,

(d)   action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

Sentencing Principles

22. I discussed, and analysed, at length, the well-known and well-accepted general principles of environmental sentencing, in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko (“Magdalene”) [2013] NSWLEC 210, and do not see the need to repeat any more than the main relevant points here.

23. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (“the CSP Act”) lists the purposes of imposing a sentence on an offender. Relevantly to the present case, they include:

(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,

...

(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.

24. Preston Ch J stated, in Director-General of the Department of Environment and Climate Change v Rae (“Rae”) [2009] NSWLEC 137, the principles of sentencing relevant to offences against s 12 of the NV Act.

25. Significantly, His Honour said (at [8] to [19], and [42] to [50], many citations omitted):

8   The sentence of the court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his just deserts. The sentence must deter the offender from committing similar offences in the future.

9   Most importantly, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. The purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law: ...

...

11   The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits, with the expectation of a concomitant increase in the capital value of the land. ...

12   On land used or proposed to be used for purposes of agriculture, clearing of native vegetation might be intended to increase the grazing productivity (such as increasing pasture and stocking rate), change from a financially lower yielding to a financially higher yielding agricultural use (such as from grazing to cropping) or facilitate more practical and cost effective operations, including of machinery and equipment, also with the expectation of an increase in the capital value of the land. Sentencing courts have repeatedly noted that offenders have cleared native vegetation for commercial gain: ...

13   The very high maximum penalties fixed by parliaments for offences of clearing native vegetation contrary to law are, to a significant extent, intended to act as a deterrent, a countervailing disincentive to the economic incentives to clear native vegetation illegally. The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the offender and also of other owners, occupiers and developers of land on which native vegetation occurs who might be tempted to clear illegally by the prospect that only light punishment will be imposed by the courts. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational.

...

15.    ... A fundamental consideration with particular relevance to environmental offences, is the degree by which, having regard to the maximum penalties by the statute in question, the offender's conduct would offend against the legislative objective expressed in the statutory offence ...

[His Honour then set out s 3 of the NV Act - see above at [18 ]]

17.   One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining consent from the regulatory authority ...

18.   There is a need for the upholding of the regulatory system under the Act. The system depends on persons, first, taking steps to ascertain when consent is required to clear native vegetation, secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna ...

19.   Offences which undermine the integrity of the regulatory system are objectively serious. ...

...

42 The offence against s 12(1) of the Act is a strict liability offence and mens rea is not an element of the offence. Nevertheless, the state of mind of an offender at the time of the offence can have an effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: ...

...

47   The criminality involved in the commission of offences is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence: ...

48   The carrying out of an offence to make a profit or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environmental protection licence, increases the seriousness of the crime. Offenders should not profit from crime: ...

...

50   Having regard to the nature and extent of the clearing, and the native vegetation cleared, a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. The extent of foreseeability of harm is a relevant objective circumstance of the offence: ...

26. Among the many leading and relevant cases cited by His Honour in Rae, in the paragraphs I have just quoted, are: Camilleri’s Stockfeeds Pty Ltd v Environment Protection Authority (“Camilleri”) (1993) 32 NSWLR 683; Cameron v Eurobodalla Shire Council (“Cameron”) (2006) 146 LGERA 349; and Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; [2009] NSWLEC 4, all of which are of some relevance to the present case.

27. Section 21A of the CSP Act identifies many factors, both aggravating and mitigating, which must be taken into account, such as the amount of environmental harm, and the motivation for the offending behaviour, but the task of the sentencing judge involves the “instinctive synthesis” of the objective and subjective circumstances of the offence and the offender: Markarian v R (2005) 228 CLR 357; [2005] HCA 25; Muldrock v R [2011] HCA 39.

28. Whereas the objective gravity of the offence establishes both an upper and a lower limit for the penalty, the subjective mitigating features should never produce a sentence that fails to reflect the gravity of the incident, or the objectives of punishment, which include both retribution and deterrence: Environment Protection Authority v Waste Recycling and Processing Corporation (“Waste Recycling”) (2006) 148 LGERA 299; [2006] NSWLEC 419, at [140], and R v Dodd (1991) 57 A Crim R 349.

29. Matters adverse to the interests of the Defendant must be proven beyond reasonable doubt, but those favourable to the Defendant must be proven only on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

30. See also Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; Hoare v R (1989) 167 CLR 348; [1989] HCA 33.

31. A plea of guilty amounts to an admission of liability by the Defendant in respect of each element of the offence charged: R v O’Neill [1979] 2 NSWLR 582, and see s 22 of the CSP Act. However, a Defendant is not to be punished for any acts for which he or it has not been charged: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (confirmed in R v Olbrich, supra).

32. Some guidance is available from the sentencing decisions in matters appropriately regarded as comparable to the case at hand. As Craig J observed in Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185, at [115]:

The principle of evenhandedness in sentencing requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered. However, care must be exercised in undertaking this task as the facts and circumstances, both objective and subjective that inform the imposition of a penalty in one case will inevitably differ from those facts and circumstances relevant to inform an appropriate penalty in the case under consideration.

33. Of those native vegetation cases which I myself decided in the past, I ought have regard now to Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No.2) (“Graymarshall”) [2011] NSWLEC 149 Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell (“Powell”) [2012] NSWLEC 129; Chief Executive, of the Office of Environment and Heritage v Newbigging (“Newbigging”) [2013] NSWLEC 144; and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull (“Turnbull”) [2014] NSWLEC 150.

34. Most of those, and at least 13 other similar cases, were usefully and thoroughly reviewed by Pepper J in Director-General, Department of Environment and Climate Change v Hudson (No 2) (“Hudson (No 2)”) [2015] NSWLEC 110

35. Care must also be taken to avoid “double punishment” in any situation where, as here, the Court is sentencing a one-person company and its dominant mind for the same criminal behaviour.

36. In Leichhardt Council v Geitonia Pty Ltd (No 7) (“Geitonia”) [2015] NSWLEC 79 (a first-instance decision not relevantly affected by a subsequent appeal decision in Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186), Biscoe J relevantly stated (at [52] to [63])

52   At the time of the offence, Mr Gertos was the sole shareholder and director of Geitonia and was its alter ego. Where an individual offender and the company that he owns are each being sentenced for the same offence, the fines to be imposed should be such as to avoid double punishment of the individual arising from the diminution in the individual’s valuable interest in the company to the extent of the fine imposed on the company.

...

62   In all the Australian avoidance of double penalty decisions to which I have referred, both the one man company and its man were fined substantial amounts. It was acknowledged ... that the “total” fines imposed on them should be appropriate in the circumstances of the case – a principle analogous to the totality principle. ...

63   On one view, a logical way to avoid double penalty in a case such as the present, where the individual is the sole shareholder and alter ego of his company (at least where the maximum statutory penalty for each is the same), is to impose a fine on the individual and only a nominal (or no) fine on his company. That would accord with the result under the United States Guidelines Manual. But none of the Australian authorities to which I have referred have taken (nor have they explicitly considered) that view. The explanation may lie in the proposition that avoidance of a double penalty is to be taken into account with other considerations, and that other considerations such as the sentencing objectives of deterrence, denunciation and punishment still require more than a nominal fine to also be imposed on the one man company. ...

37. I followed Geitonia in Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) (“Foxman”) [2016] NSWLEC 120, in which I held that Foxman (whom I fined a total of $250,000 for his three offences), rather than his companies (which I fined a total of $140,000 for their three), was the main offender, he being the author and chief manager of the offending waste scheme.

The Evidence

38. The parties agreed on a Statement of Agreed Facts (“SAF”), and several annexures to it (Exhibit P1), and on the separate tendering of other evidence, namely:

Exhibit P2:   A joint expert report, dated 14 July 2016, prepared by Darren Shelly, Wayne Moffitt, and Chris Hansen.

Exhibit P3:   Some extracts from the affidavit evidence filed by Shelly.

Exhibit P4:   The company search regarding Topview, to which I have already referred ([3]).

Exhibit D1:   Some extracts, especially Appendix 1, from a NSW Government “Landholder Guide” regarding the “Clearing of Invasive Native Species” Ministerial Order, 2015 (“the Order”).

39. I will return shortly ([46]) to the expert evidence, but Exhibit D1 makes clear that casuarina cristata (“belah”) and vachellia farnesiana (“mimosa”), both of which are nominated as “native vegetation” in particular (b) of the summonses ([15] above), are “invasive native species” (“INS”), in respect of which some clearing is, since that 2015 order, now permitted.

The Factual Evidence

40. The SAF (Exhibit P1) relevantly contains the following (some emphasis added):

INTRODUCTION

...

3.   The total area of "Beefwood" is approximately 2,947 hectares.

4.   "Beefwood" is owned by Mr Kurstjens, along with other members of his family, as joint tenants. Mr Kurstjens and his family members purchased "Beefwood" on 15 December 2006.

5.   At all material times, Mr Kurstjens was the sole director of Topview.

6.   Topview carried out the farming operations on "Beefwood" during the relevant period.

"CLEARING"

7.   Satellite images taken of "Beefwood" on 7 March 2011 (Tab A) and 22 October 2011 (Tab B) and a digital aerial photograph taken of "Beefwood" on 5 September 2012 (Tab C) are attached to the Statement of Agreed Facts.

8.   Approximately 1,660 individual items of woody vegetation were removed by the Defendants from "Beefwood" between 7 March 2011 and 5 September 2012 inclusive.

9.   These items of woody vegetation are depicted in the satellite image which appears behind Tab D.

10.   Of the 1660 individual items of wood vegetation identified, at least 1,000 items of woody vegetation were unlawfully cleared. Some vegetation on the Property was cleared pursuant to the routine agricultural management activities exemption or was clearing of regrowth.

11.   At all relevant times, there was no property vegetation plan, development consent or other approval given under the Act for the clearing on "Beefwood".

12.   In relation to the clearing:

(a)   Topview's employees and contractors cleared the vegetation on "Beefwood" during the relevant period;

(b)   directions for the clearing were given by Mr Kurstjens and the clearing did not go beyond the scope of Mr Kurstjens’ directions; and

(c)   a bulldozer was used when clearing.

"NATIVE VEGETATION"

13.   Darren Shelly, Compliance and Regulation Officer with the Office of Environment and Heritage (OEH), identified two woody vegetation communities were identified on the cleared areas of "Beefwood": Casuarina cristata (Belah) and Belah/Alectryon oleifolius (Rosewood). lThese woody vegetation communities were of varying densities.

14.   Of the plant samples taken from the cleared sites on "Beefwood", Rosewood and Acacia pendula (Myall) were present. While occurring in the region, Myall is a less common species than Belah and Rosewood.

15.   At the two sites surveyed, Mr Shelly observed Belah/Rosewood open woodland. At Plot 2, Mr Shelly observed a small patch of Rosewood seedlings coming from a cleared stem of a mature tree.

16.   Belah, Rosewood and Myall existed as native vegetation species present in New South Wales prior to 26 January 1788.

RESPONSE TO SECTION 36 NOTICE

17. On 11 April 2014, Topview responded [through solicitors McCullough Robertson] to a notice [(fols 97 – 103)] issued by OEH under s.36 of the Act. A copy of that response is behind Tab E.

RELEVANT EVENTS PRIOR TO CLEARING

18.   Mr Kurstjens knew that a property vegetation plan or development consent was required to clear the native vegetation lawfully.

Letter from Nelson Keane & Hemmingway (sic) Lawyers

19.   On 23 August 2010, Mr Kurstjens received a letter from Nelson Keane & Hemmingway (sic) Lawyers to Mr Kurstjens in relation to the "clearing of timber" on "Beefwood".

20.   A copy of that letter [also] appears behind Tab E.

41. It appears to be common ground that the area of land on which the clearing of the 1660 items of woody vegetation – including 1000 items unlawfully – occurred between 7 March 2011 and 5 September 2012, was 270 ha (Tp3, L7). Some of the remaining 660 items removed are not of concern to the Court – they may have either been covered by a regrowth exemption, or been cleared during “routine agricultural management activities” (Tp4, LL9 – 15).

42. Relevant questions asked in the s 36 notice, mentioned in the SAF (at 17), and the answers provided (tab E), are as follows:

(b) ...

(iv)   why the clearing or work in connection with the clearing (as defined above) was undertaken;

(A)   Cleaning work including the removal of ashes and logs burned by the previous owner, clearing of non-protected regrowth and clearing of certain groundcover.

(B)   Removal and redesign of farm infrastructure including boundary fences and internal fences, repair erosion, wash out from bore drains.

(C)   To make the farm more sustainable and environmentally sound.

(D)   To carry out environmental works including repairing erosion and removing noxious weeds including Bathurst Burr and Noogoora Burr.

(E)   Safety reasons due to the risk of damage to the aerial crop sprayer or ground crop sprayer when carrying out spraying activities in areas close to trees.

(F)   To prevent damage to farm property and equipment resulting from tree stumps and debris.

...

(e) ...

(iv)   what was the name, address and telephone number of the person or persons from whom advice was sought.

(A)   Tim Lyne, the real estate agent handling the sale of the property. Phone: [phone] Mobile: [phone] Email: tim.moree@raywhite .com Address: Ray White Rural Moree, 157 Balo Street, Moree NSW 2400.

(B)   Mr Douglas Butcherine, Solicitor, Nelson Keane and Hemingway Lawyers. Phone: [phone]. Address: 22 Church Street, Dubbo NSW 2830.

(C)   Mr Roger Fitzgerald, neighbour. Mobile: [phone] Address: 7 Nepean Place, Macquarie ACT 2614.

43. Tab E of the SAF also contains some documents which McCullough Robertson attached to their s 36 response (SAF 17). They comprise various tax invoices (fols 106 – 114); “Info Sheet 6” on “Native Vegetation Management in NSW”, indicating “What clearing does not require approval?” (fol 115); and a letter dated 23 August 2010 to the Defendant Kurstjens, from solicitors Nelson, Keane & Hemingway (fols 116 – 117), which states:

I have been in touch with the Lands Department to ascertain the best method to discover what rules apply to clearing of the potential agricultural land on your property "Beefwood".

It seems that the Catchment Management Authority is the appropriate body and in particular the authority which controls the "Moree" area is Border Rivers Gwydir Catchment Management Authority. This authority has offices in various towns and I have spoken to the person responsible for administration of the clearing who is Sheridan Taylor and discussed the position with her.

Ms Taylor did not enquire on the identity of my client and at this stage the Authority is not aware for whom I am acting.

The information I gathered can be summarised as follows:

1.   The right to clear is essentially a "self assessment" in that the land owner is to gather the required evidence and make a decision if the land clearing is justified.

2.   This obviously has some risks and you must be careful to be as accurate as possible in assessing your rights to clear land.

3.   If land was cleared since 1990 a permit to clear was required and if the land was fully cleared since that time you can continue to clear regrowth to permit cropping.

4.   If the land was fully cleared since 1990 you can clear the regrowth but if the land was only "thinned” then you do not have the right to clear the rest of the standing timber. The diagram which you supplied to me seems to indicate that the land was fully cleared.

5.   However it is still necessary to establish that the clearing was done since 1990 and in your case it would be necessary to ascertain from the previous owner when the clearing was done.

6.   You might consider if it is possible to obtain this information from the previous owner and it would be valuable if the previous owner had some records of when the clearing was done or indeed if a permit was obtained.

My impression from my communication with the relevant officer is that provided reasonable evidence is available that (sic) the scrutiny of the clearing will not be too restrictive.

You might please let me know if you consider it possible to gather information from the previous owner which might assist you with the matter.

The Expert Evidence of Harm

44. Central to the sentencing task is the concept of harm.

45. As the Chief Judge noted in Waste Recycling (at [145] – [147]):

145    Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and [Bentley] at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.

146    Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: [Bentley] at [174].

147    Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously.

46. The expert ecological material in the present case (Exhibits P2 and P3), as noted in [38] above, embraces the findings and opinions of Darren Shelly, an officer of the Prosecutor, Wayne Moffitt, director of “28 South Environmental”, and Chris Hansen, director of “ECOSM”.

47. The Court acknowledges their eminent qualifications (CVs attached to Exhibit P2) to express the opinions in their material. Their evidence speaks for itself.

48. They identify the vegetation present prior to the subject clearing (p6), and discuss the “intactness” of that vegetation (pp7 – 8). Notwithstanding their “differences”, they “agree” (at p7, emphasis added) that:

... thinning prior to 2006 has resulted in transforming the woody vegetation in the south west of 'Beefwood' from Belah woodland to Belah open woodland, and this has caused a loss of ecological values. However, ecological values remained (i.e. Belah open woodland) and these values were lost when the clearing the subject of this prosecution took place. Based on aerial photography since 1958, we agree that here (sic) has been no substantive change in the character of vegetation over the remaining 2/3 of the area the subject of this prosecution.

49. They further agree (p8) that:

... that the cleared area was largely comprised of native species. There was only a small degree of weed infestation, which was primarily restricted to the northern boundary of the clearing area adjoining the property access road and associated tracks;

but that:

... it is not possible to make definitive statements about the actual presence or absence of threatened plants;

and also (p9):

... it is not possible to make definitive statements about the actual presence or absence of threatened fauna;

nor would “the clearing area” have “contained habitat critical to” the lifecycle of such fauna.

50. They conclude (pp9 – 11) that:

... the clearing has resulted in habitat loss for a number of the identified species. Due to the status of most of the species as Vulnerable under the Threatened Species Conservation Act 1995 (TSC Act) we agree that the degree of harm is greater than an impact on more common species, but less than an impact on species of higher conservation status under the Act (e.g. Endangered and Critically Endangered).

We agree that in a landscape subject to such a high degree of clearing any habitat that remains is of value. We agree that the clearing area supported habitat of more ordinary value for threatened fauna, rather than being an area of especially high value supporting a high density and diversity of habitats critical to the species' lifecycle (such as would occur on timbered watercourses).

Connectivity and Remnancy

We agree that the clearing has caused further fragmentation in an already fragmented landscape, but dispersal habitats and corridors of particular importance such as timbered watercourses and wetlands have not been affected.

... the clearing has removed vegetation from the central portions of a larger remnant area, and so affected vegetation continuity across the larger remnant – in turn causing fragmentation. The impacts on fauna will vary across (and within) fauna groups. For mobile species (birds and bats) occupying very large home ranges that include agricultural landscapes, the impact will be small. The impact will be greater for mobile species occupying smaller home ranges, and it is likely that the clearing has displaced a part of some local populations.

...

In and of itself, the clearing event and associated habitat fragmentation is unlikely to have caused the local extinction of any species' population, but we acknowledge that it is the cumulative effect of many such small clearing events that leads to species declines at the landscape scale.

51. Shelly (pp11 –12) finds a “moderate-high degree of environmental harm”, while Moffitt and Henson agree the harm is “moderate”.

52. All three experts agree (p12) that “there is need for remediation”, but Shelly notes (Exhibit P3, p37 – emphasis added) that:

Remediation is not viable over all the area cleared (270ha). However, targeting remediation to re-establishing connective corridors and enhancing the extent of remaining remnant vegetation will act to maintain habitat connectivity across the extensively cleared local region.

Conclusion on harm caused

53. Counsel for the parties have agreed with the experts that “moderate” environmental harm was caused by the offending clearing conduct (Tp9, LL42 – 44). The “residual ecological value” of the affected land was “lost” (Tp10, LL12 – 14).

54. However, I accept that the affected land was not “pristine” at the time of the offence (Tp20, L49 – p21, L1). See Chief Executive, Office of Environment and Heritage v Rummery (“Rummery”) (2012) 192 LGERA 314; [2012] NSWLEC 271, at [92], and also Newbigging, at [62]: Prior disturbance does not exculpate an offender in a vegetation clearing case, and I accept that, at the time of the offending, the subject site was “only in moderate condition” (Tp20, L49).

55. The finding of the Court in respect of environmental harm is a key consideration in respect of the objective considerations required for the instinctive synthesis the Court is required to undertake ([27] above).

56. I turn now, therefore, to consider other relevant objective factors.

Other Objective Factors

57. The objective considerations, other than harm, to be factored into the sentencing task include the maximum penalty ($1.1M for each offender – see [10] above), the defendants’ state of mind, the reasons for committing the offence, the foreseeability of the harm caused, the degree of the defendants’ control over the causes of the harm, and the practical measures available to the defendants to mitigate that harm: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (at [46] – [48]).

58. The Prosecutor argues that the Defendants’ conduct was reckless, and that it was motivated by commercial gain (an aggravating factor under s 21A(2)(h) of the CSP Act).

59. In Rummery, Pepper J said (at [126]):

An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries ...

60. Proper inquiries would have revealed that at least two-thirds of the land which was cleared had not been cleared post 1990, such that its clearing “was potentially unlawful”, but no such inquiries appear to have been made (Tp6, L10 – p7, L13).

61. I am satisfied that the defendants’ behaviour was “reckless”, despite defence counsel’s colourful description of the Prosecutor’s submissions in this regard as “[groping] around in hyperbolic constructs” (Tp18, LL1 – 2). See Director General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30, at [50], and Newbigging, at [51].

62. Certainly, the defendants had total control of the offending behaviour, and had available to them the full range of practical measures to avoid harm.

63. By clearing native vegetation without any relevant approval, the defendants have directly undermined the legislative native vegetation regime, a factor to be considered in assessing the objective seriousness of the offences.

64. The only statutory “aggravating factor” made out in this case is that, in a somewhat equivocal sense, the offence was “committed for financial gain” (s 21A(2)(h)).

65. Clearing is normally done to improve the commercial prospects of agricultural land, even if motivated by “improving” the land for other, e.g. environmental, reasons: Rae (see [25] above).

66. The harm done to the environment was clearly foreseeable in this case.

67. The Prosecutor, on the other hand, denies that the Defendant’s behaviour should be partially excused because of subsequent legislative widening of the definition of permissible clearing (Tp4, L38 – p5, L1). “...[T]he prosecutor does not accept that those orders would have permitted a significant amount of clearing over and above the 660 items of woody vegetation for which the benefit has already been given” (Tp9, LL5 – 7).

68. The Prosecutor submits that the objective seriousness of the Defendants’ offences is “moderate to high”, and the Defendants concede that it is “moderate”.

69. The Court must then turn to subjective factors, and synthesise them with the objective factors I have considered above, before settling on the sentence to impose.

Subjective Considerations

70. Some relevant subjective factors are listed as “mitigating” considerations in s 21A(3) of the CSP Act.

71. Also, in Plath v Rawson (at [140]), Preston ChJ set out the "favourable" factors relevant to an offender, which may be taken into account within the limits set by reference to the objective gravity of the offence. This also was not intended to be an exhaustive list, but included:

• Lack of prior criminality (s 21A(3)(e));

• Prior good character (s 21A(3)(f));

• Plea of guilty to the offences (s 21A(3)(k), and s 22);

• Contrition and remorse (s 21A(3)(i)); and

• Assistance to authorities (s 21A(3)(m), and s 23).

72. It is to be noted that, again, the differences between the present parties are not so great – they concern only questions of contrition/remorse, the utilitarian value of the guilty pleas, and relative culpability, as between the corporate offender and its guiding mind.

73. The Defendants have apologised for their offences, and have agreed to participate/cooperate in remediation works (subs par 10, Tp11, LL25 – 34, and p19, LL17 – 19).

74. The Prosecutor, relying on the principles in Waste Recycling, discounts the Defendants’ expressions of remorse, and points out that any failure to co-operate in ordered remediation works can constitute a separate offence.

75. As Preston Ch J said, in Waste Recycling, at [203] – [204]:

203    Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms.

204    First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence: ...

76. I have some sympathy for defence counsel when he submits (Tp19, LL17 – 22):

... there's nothing else can be done but wait to do the remediation work, and that has to be agreed upon and negotiated upon and discussed, and experts have to be involved. They're willing to do that and to engage in that. It's hard to think what else could be done to demonstrate remorse and contrition beyond the plea and the undertaking to work on achieving that result.

77. The Defendants’ pleas of guilty had some utilitarian effect, regardless of their significance or otherwise as evidence of contrition. In the present case the pleas came on the eve of what promised to be a protracted trial, and so, despite lateness, entitle the Defendants to some “discount”: R v Thomson, R v Houlton (“Thomson”) (2000) 49 NSWLR 383; [2000] NSWCCA 309.

78. The Thomson discount has been the subject of many comments by subsequent benches of the Court of Criminal Appeal (“CCA”). I reviewed some of those decisions in Magdalene (see [122] – [129], and [269] – [277]).

79. Since Magdalene, the CCA has decided, inter alia, Morton v R (“Morton”) [2014] NSWCCA 8, in which the Court held (at [32]):

The applicant's submission should not be upheld. It is based on an incorrect understanding of [Thomson]. This is clear from the analysis of Howie J (with whom Hoeben J agreed) in R v Stambolis [2006] NSWCCA 56 where his Honour said [inter alia]:

...

11   Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity.

...

13   In the present case there was no attention paid by the Judge to the real utilitarian value of the pleas of guilty or to the established authority of R v Dib [2003] NSWCCA 117 and numerous other cases holding that there is no entitlement to any particular discount even if the plea of guilty is at the first reasonable opportunity. I cannot understand why the Crown's representative would concede that which was not true, a concession that is often made apparently as part of an agreement with the defence. Even approaching the matter on the rationale preferred by the majority in Cameron v The Queen (2002) 209 CLR 339, by treating the discount as reflecting a willingness to assist the administration of justice, there was no such willingness evident in this case until May 2005."

80. The CCA went on to consider, in Morton, as I had in Magdalene, the decision in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, noting (at [34]) that the CCA’s remarks in that case had been endorsed by the CCA (including Bathurst CJ) in R v AB [2011] NSWCCA 229.

81. Here, the plea was entered as soon as some plea “arrangement” was offered (defence subs par 45). This was not, defence counsel submits, a case of “bowing to the inevitable”.

82. Mr Littlemore sought (subs 43, and Tp20, LL34 – 40) to make much of the reputational damage which would be caused to the Defendants by any conviction and penalty, as some form of extra-curial punishment, to be factored into a reduction of the sentence otherwise appropriate.

83. Mr Littlemore says, from the bar table, that Kurstjens has led “a blameless life” (Tp21, LL8 – 9), but there is no evidence before the Court of Kurstjens’s character, good or bad, nor of his reputation in the local area.

84. I accept that neither defendant has a record of environmental offending, and the Prosecutor has not submitted that there is a likelihood of their re-offending.

85. The Court is also conscious of the facts that (1) Kurstjens will be responsible to fund any penalty imposed on himself and/or his company, and that (2) he has already authorised counsel to commit the Defendants to a substantial costs order in favour of the prosecutor, and to co-operation in remediation of the site.

86. No submission has been made on the basis of limited means: R v Rahme (1989) 43 A Crim R 81.

87. I am prepared to allow a total “discount” of 12.5% in this case, as in Turnbull, for subjective factors, including the pleas (in Turnbull the plea of guilty was heavily qualified).

88. In terms of the relative culpability of the corporate and individual Defendants, I am satisfied that Kurstjens was personally responsible for the offending behaviour.

89. As the SAF notes, it was he who directed the operation, in its entirety, and the company simply undertook farming activities on the subject land, but without owning it.

90. Defence counsel conceded that the natural person has the higher degree of culpability/criminality in this case (Tp21, L23).

91. I consider the appropriate relativity is 3:1, Kurstjens c.f. Topview.

The Appropriate Sentences

92. In cases such as this, and Turnbull, where offenders have extensive holdings in a local area, there is a need for penalties that include elements of both specific and general deterrence. As I noted in Turnbull (at [179]), penalties:

... must be substantial enough to deter others, as well as himself, from clearing native vegetation, particularly in this area, where unlawful clearing appears to have been an ongoing concern for the community.

93. I have concluded that the Defendants’ offences are near the upper end of “moderate”, indicating a fine towards 20 to 25% of the maximum: Environment Protection Authority v Orange City Council [1995] NSWLEC 103.

94. There are two offenders, and one charge each, but a single offending enterprise.

95. I have had regard to the cases seen as comparable ([33] above), especially the $200,000 mark set by the more serious cases of Rae and Graymarshall, (see also Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119), and the $160,000 gross fine imposed in less serious cases, such as Turnbull.

96. I, therefore, arrive at a total fine of $180,000 in these matters, to be discounted by 12.5% (to $157,500), and apportioned 3:1 against the defendant Kurstjens (see Turnbull at [185] – [186]).

Orders

97. I, therefore, make the following orders:

1. In matter 2016/153869 (formerly 50659/2014):

1. The Defendant Gerardus Kurstjens is convicted of the charge brought against him in the summons.

2. The Defendant is fined the sum of $118,125.

2. In matter 2016/155307 (formerly 50660/2014):

1. The Defendant Topview Brisbane Pty Ltd is convicted of the charge brought against it on the summons.

2. The Defendant is fined the sum of $39,375.

3. Across the two matters the subject of Orders (1) and (2), the Defendants Gerardus Kurstjens and Topview Brisbane Pty Ltd are jointly and severally ordered to pay the Prosecutor’s costs in the agreed sum of $185,000.

4. All Exhibits may be returned, except Exhibit P1.

**********

Decision last updated: 12 May 2017