Chief Executive of the Office of Environment and Heritage v Turnbull - [2023] NSWLEC 137

Land and Environment Court

New South Wales

Medium Neutral Citation: Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137
Hearing dates: 19 and 20 June 2023
Date of orders: 08 December 2023
Decision date: 08 December 2023
Jurisdiction: Class 5
Before: Duggan J
Decision:
See paragraph 93

Catchwords:
SENTENCING – environmental offence – s 12 of the Native Vegetative Act 2003 (NSW) – clearing native vegetation – significant actual and likely harm caused to the environment – reasonable foreseeability of harm – whether offence carried out as planned criminal activity and for financial gain – high mid-range of objective seriousness – no real contrition or remorse – prior convictions – whether defendant suffered extra-curial punishment – specific deterrence not warranted – fine not reduced due to capacity to pay pursuant to s 6 of the Fines Act 1996 (NSW) – monetary penalty imposed – legal costs

Legislation Cited:
Crimes (Sentencing and Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Fines Act 1996 (NSW)
National Parks and Wildlife Act 1974 (NSW)
Native Vegetation Act 2003 (NSW)
Threatened Species Conservation Act1995 (NSW)

Cases Cited:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Carl v R [2023] NSWCCA 190
Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (2017) 227 LGERA 290
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 Leda Management Services Pty Ltd [2013] NSWLEC 111
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121
Environment Protection Authority v Albiston [2020] NSWLEC 80
Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71
Environment Protection Authority v Hughes [2019] NSWLEC 108
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Garrett v Williams (2006) 160 LGERA 115
Garrett v Williams [2007] NSWLEC 56
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Hewitt v R (2007) 180 A Crim R 306
Jehad Jodeh v R [2011] NSWCCA 194
Markarian v R (2005) 228 CLR 357
Merrick v R [2017] NSWCCA 264
NCR Australia v Credit Connection [2005] NSWSC 1118
R v De Simoni (1981) 147 CLR 383
R v Visconti [1982] 2 NSWLR 104
R v Yildiz (2006) 160 A Crim R 218
Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229
Xiao v R (2018) 96 NSWLR 1

Category: Sentence
Parties: Chief Executive of the Office of Environment and Heritage (Prosecutor)
Grant Wesley Turnbull (Defendant)
Representation:
Counsel:
T Howard SC and M McAuliffe (Prosecutor)
D Brezniak (Defendant)
Solicitors:
Office of Environment and Heritage (Prosecutor)
Cole and Butler Solicitors (Defendant)

File Number(s): 2016/151113
Publication restriction: No

JUDGMENT

Nature of proceedings

On 1 February 2023, the Defendant, Grant Wesley Turnbull (the Defendant) pleaded guilty to an offence that from about 1 January 2014 to 20 August 2014, he committed an offence against s 12(2) of the now repealed Native Vegetation Act 2003 (NSW) (the NV Act) by clearing native vegetation otherwise than in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan (PVP).
By Amended Summons filed 8 February 2023, the Prosecutor, the Chief Executive of the Office of Environment and Heritage (OEH or the Prosecutor) seeks the following orders:

That the Defendant be dealt with according to law for the commission of the offence;

An order that the Defendant pay the Prosecutor’s costs; and

Such other orders as the Court in its discretion sees fit to make.

Facts

The parties rely upon an extensive Agreed Statement of Facts (ASOF) filed on 4 May 2023 (Exhibit A), as extracted below. The ASOF was amended at pars 21 and 26 by consent during the hearing.

1   The defendant is Grant Wesley Turnbull.
2   Since 31 January 2012, the defendant has at all times been the owner (registered proprietor) of the property known as ‘Colorado’. The contract entered into by Mr Turnbull to purchase ‘Colorado’ was exchanged in September 2011. The defendant has had management of Colorado at all times since November 2011 and throughout the charge period. The defendant conducted farming activities, including cropping, on parts of Colorado until the sale of the property in December 2020.
3 The defendant has pleaded guilty to one offence contrary to section 12(2) of the Native Vegetation Act 2003 (NSW) (the NV Act) that between about 1 January 2014 and about 20 August 2014, he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or a property vegetation plan.
4   The conduct which is the subject of the charge resulted in the clearing of 508ha of native vegetation. The defendant personally, and by direction of others, cleared the native vegetation which was not in a low condition and consisted of a relatively large well connected remnant.
The Property ‘Colorado’
5   The property known as Colorado comprises Lots 1 and 17 in Deposited Plan 755998 and is located on County Boundary Road at Croppa Creek, near Moree, New South Wales (Colorado). Colorado was formerly named ‘Lockeil’.
6   Colorado is adjacent to a property known as ‘Strathdoon’, comprised of Lot 2 in Deposited Plan 621439, at County Boundary Road, Croppa Creek, New South Wales (Strathdoon).
7   Colorado is approximately 1,527 hectares in size.
The use of ‘Colorado’ and nature of the vegetation present before the defendant purchased it
8   Prior to the defendant's purchase of Colorado (2011/2012), the property had primarily been used for the grazing of cattle. Approximately 86% of the property was uncropped and comprised predominantly native vegetation comprising native trees, native shrubs and native groundcover.
9   Some clearing of native vegetation on the property had occurred prior to the defendant purchasing it.
10   Prior to 1975, two areas in the southern part of the property were cleared of native vegetation to allow for cultivation.
11   Between 1975 and 1985, further clearing of trees occurred in a strip approximately 120 metres wide, adjacent to the boundary of the adjoining property, Strathdoon.
12   Between 1985 and 1991, further clearing of trees occurring in a triangular area approximately 600 metres wide at the base, adjacent to the southern boundary of the property and extending to approximately 500 metres north.
13   On the approximately 86% of the area of Colorado which had not been the subject of this past clearing, native vegetation was present in the form of trees, shrubs, vines, mistletoes, and groundcover, varying in structure from woodland or open forest to scattered trees or, in places, thickets of scrub, with a predominately native understorey. Further details about the species present is included in the section of these facts under the heading “Environmental Harm” below.
The purchase of Colorado by the defendant
14   The sale of Colorado to the defendant was completed on 31 January 2012, following exchange of contracts in September 2011.
15   The defendant's intention in purchasing Colorado was to clear the property of native vegetation in order to convert it from a grazing property into a farm to be used for the growing of commercial crops.
The November 2011/January 2012 Clearing (not the clearing the subject of the present offence)
16   The first tranche of clearing of native vegetation carried out on Colorado in furtherance of the defendant's plan to convert Colorado into a cropping property was carried out with the consent of the departing owner of the property in the period after exchange of contracts but before completion of the sale of the property to the defendant, between about 1 November 2011, and about 18 January 2012
17   This first tranche of clearing of Colorado was undertaken by Ian Turnbull (the late father of the defendant), and a contractor, Ivan Mass, engaged by Ian Turnbull (November 2011/January 2012 Clearing). The defendant was part of the decision making in respect of the clearing carried out during this period by Ian Turnbull and Ivan Mass.
18   The clearing was carried out by bulldozer. Trees were pushed over and formed into piles.
19   The main species of trees cleared were Brigalow, Belah, Poplar Box, Western Rosewood, Wild Lime, with smaller numbers of Wild Orange, Warrior Bush, Myall and Whitewood. The density of trees varies from sparse to very sparse and were of a significant age, many being original trees, which had developed significant hollows. The area included an endangered ecological community of open woodland Brigalow.
20   Approximately 421ha of ‘Colorado’ was cleared during this period and subsequently ploughed, sprayed with herbicide, and sown with wheat and barley. Those crops were harvested in the late spring of 2012. The process of ploughing, spraying, sowing, and harvesting of commercial crops was repeated in 2013 and again in 2014.
21   This involved the unlawful clearing of native vegetation. In total, the area of native vegetation that was unlawfully cleared during this first tranche of clearing was 29.9 hectares, comprising the removal of a minimum of approximately 2708 trees.
22   On 27 March 2012, the defendant was interviewed by an officer of the Office of Environment and Heritage (OEH) and an officer of the Environment Protection Authority in respect of the November 2011/January 2012 Clearing. As a result of that interview the defendant was aware that the investigators regarded the carrying out of clearing on Colorado which had occurred in the period between about 1 November 2011 and about 12 January 2012 to be in breach of the NV Act.
23 On 13 December 2012, Ian Turnbull was charged with one offence contrary to section 12 of the NV Act in relation to the November 2011/January 2012 Clearing. On 17 May 2013, Ian Turnbull entered a plea of guilty to the single offence and on 19 September 2014, he was convicted and sentenced in the Land and Environment Court.
The August 2012/January 2013 Clearing (not the clearing the subject of the present offence)
24   Between about 18 August 2012, and about 5 January 2013, the defendant carried out or authorised the carrying out of a second tranche of clearing of native vegetation on Colorado (August 2012/January 2013 Clearing). The clearing was carried out in order to allow cropping and prepare the area for broadscale cultivation. The clearing involved pushing over of trees and other woody plants using a bulldozer and the pushing of felled vegetation into stacks and windrows. The felled vegetation was later burnt.
25   In total, the area of native vegetation which was unlawfully cleared was 103.6 hectares, involving the removal of approximately a minimum of 1,086 trees as well as large quantities of other types of native vegetation including native understory plants and groundcover.
26 On 25 June 2014, the defendant was charged with one offence contrary to section 12 of the NV Act in relation to the August 2012/January 2013 Clearing. On 31 July 2015, the defendant entered a plea of guilty to the single offence. On 24 October 2017, the defendant was convicted and sentenced in the Land and Environment Court for the August 2012/January 2013 Clearing.
The 2014 Clearing (the subject of the present offence)
27   Between about 1 January 2014 and about 20 August 2014, the defendant carried out and authorised the carrying out of further clearing of native vegetation on Colorado (the 2014 Clearing). This is the clearing the subject of the present offence.
28   The total area of Colorado over which native vegetation was unlawfully cleared by the defendant was 508 hectares. The clearing comprised the removal of a minimum of approximately 4,430 trees, as well as other types of native vegetation including understory plants and groundcover. The vegetation which was not in a low condition and consisted of a relatively large well-connected remnant.
29   Attachment A to these facts is a marked up aerial photo depicting Colorado and, amongst other things, the areas cleared in the 2014 Clearing. These areas are grouped into a number of polygons which have been labelled B1, B2, C1, C2, C3, C4, C5 and C6. Each of the polygons are labelled in Attachment A.
30   The clearing was carried out in order to allow cropping and to prepare the cleared areas for broadscale cultivation.
31   This third tranche of clearing, carried out in addition to the earlier two tranches of clearing described above, effectively completed the defendant's plan upon purchasing Colorado in 2012 to covert it from a grazing property into a cropping property.
32   The clearing involved pushing over trees and other woody plants using a bulldozer and the pushing of vegetation into stacks, burning the stacks, further raking to remove sticks and other felled vegetation, ploughing to destroy groundcover and small woody plants and then follow up ploughing to create a seedbed suitable for the sowing of crops.
33   The OEH received a report on 4 March 2014 that clearing had re-commenced in the north western area of Colorado. An OEH Compliance and Regulation Officer drove to the property on 6 March 2014 and observed clearing activity.
34   On 31 July 2014, a tractor or bulldozer with a large blade at the front and metal teeth at the rear was observed on Colorado in area C4 Colorado (see attachment A), moving large amounts of felled woodland into piles on the property. Ten to 20 piles of timber were observed on the property over a distance of about one to two kilometres. Several piles of timber were ablaze.
35   On 4 August 2014, a tractor or bulldozer with a large blade at the front was again observed on the property in area C4, moving large amounts of felled trees into piles.
Area 81
36   Between 6 January 2014 and 14 May 2014, an area of 218ha of native vegetation, labelled B1 was cleared from the north-western corner of Colorado. This area was subsequently cultivated for the growing of crops.
37   Approximately 1027 trees were cleared from area B1 ranging in density from mid-dense (50% to 80% crown cover) to sparse (20% to 50% crown cover). The trees had previously been undisturbed between 19 August 1975 and 6 January 2014.
38   On 10 September 2014 area B1 had been sown to a cereal crop.
Area 82
39   Between the dates of 6 January 2014 and 14 May 2014, an area of 2.6ha of native vegetation, labelled B2 was cleared from the south-eastern corner of Colorado. Prior to the clearing tree cover ranged in density from mid-dense (50% to 80% crown cover) to sparse (20% to 50% crown cover).
40   In his affidavit dated 22 January 2015, prepared for the Class 4 proceedings, the defendant stated that he cleared a number of trees for a driveway at the entrance to the property and along fence lines as part of routine agricultural management activities. On 20 August 2014, area B2 had been sown to a wheat crop.
Areas C1, C2, C3, C4, C5, and C6
41   Between 14 May 2014 and 20 August 2014, and area of 286ha, consisting of areas C1, C2, C3, C4, C5, and C6, was totally cleared of native vegetation.
42   The combined area contained approximately 3403 trees ranging in density from mid-dense (50% to 80% crown cover) to sparse (20% to 50% crown cover). All of them were cleared. The trees had previously been undisturbed between 19 August 1975 and 14 May 2014.
43   Preparations for crop sowing of C4, C5 and C6 were underway on 10 September 2014.
Areas C3 and C4 and the Class 1 Merit Appeal Proceedings
44   Areas C3 and C4 total 198ha and are almost entirely located within a 279ha area (the Remediation Area) which the defendant was directed to remediate by the Land and Environment Court in merit appeal proceedings in which the defendant had appealed against a statutory direction issued to him under s 38 of the NV Act to carry out work to repair damage and rehabilitate land affected by the November 2011/January 2012 Clearing (Merit Appeal Proceedings).
45   Areas C3 and C4 were not themselves areas that had been cleared as part of the November 2011/January 2012 Clearing. Rather, the greater parts of those areas were identified by the Court in the Merit Appeal Proceedings as appropriate areas for remediation to compensate for the clearing of native vegetation which had been unlawfully carried out over other parts of Colorado during the November 2011/January 2012 Clearing.
46   On 10 June 2014, during the hearing of the Merit Appeal Proceedings before Preston CJ the defendant gave sworn evidence. The defendant stated, among other things:
a.   When he purchased Colorado his purpose and intention was not just to add to his farming portfolio but to create more cropping areas.
b.   He was part of the decision making in respect of the November 2011/January 2012 Clearing.
c.   He had been a farmer for over 20 years in 2011.

47   On 25 June 2014, Preston CJ handed down the Court's judgment in the Merit Appeal proceedings. A proposed remediation area was identified by way of an attachment to the Court's judgement comprising a marked up aerial photo showing the proposed remediation area. As may be discerned, the proposed remediation area identified by the Court included almost the entirety of Areas C3 and C4, being part of the area identified by Preston CJ as a “high priority offset area”.
48   Area C3 was cleared between 1 July 2014 and 17 July 2014.
49   Area C4 was cleared between 17 July 2014 and 2 August 2014.
50   On 31 July 2014, final orders were made in the Merit Appeal Proceedings and the Remediation Area was identified by way of an attachment to the Court's judgement. The Remediation area is reproduced in Attachment A to these facts and varied slightly as compared to the proposed remediation area. On the same date as the final orders were made a witness observed a bulldozer moving felled woodland in Area C4.
51   In total, native vegetation was unlawfully cleared over an area of about 198 hectares within the Remediation Area, amounting to approximately 66% of the total area of the Remediation Area.
No Property Vegetation Plan, Development Consent or Approval
52 Native vegetation may be cleared in accordance with a development consent granted in accordance with the NV Act, or in accordance with a property vegetation plan (PVP).
53   At no time, was a PVP or any other development consent granted to the defendant or any other person to permit the clearing of any native vegetation on Colorado.
The Defendant's PVP Application
54   Sometime prior to 12 October 2012, the defendant retained a company, First Steps Environmental, to prepare and manage an application on his behalf for a PVP which would apply to the whole of Colorado.
55   On 23 October 2012, an initial PVP application was submitted by the defendant to the Border Rivers Gwydir Catchment Management Authority (CMA). The application listed the total area of Colorado as 1533 hectares, that the proposed activity the subject of the application was for broad-scale clearing, and that the proposed cleared land would be used for wheat farming. In the application, the defendant stated that he had not previously lodged a clearing application in the past or inquired regarding vegetation management/Clearing under SEPP 46, (1995) Native Vegetation Conservation Act (1997) or Native Vegetation Act (2003). The application was signed by the defendant. Immediately above the defendant's signature, the application said, “/ understand that most successful Property Vegetation Plans are registered on title and that submitting this PVP Plan does not constitute approval to clear remnant or protected regrowth native vegetation as defined by the Native Vegetation Act 2003.”

56   The application sought approval to clear a total area of 558ha. The total area was made up of four areas identified as Activity 1, 2, 3 and 4 which were identified on a map included in the application. The map is Attachment B. The areas over which the defendant sought approval are substantially the same as those cleared during the 2014 Clearing.
57 In response to the application on 19 April 2013, CMA officers attended Colorado to collect data to process the defendant's application. During the site visit, the defendant and employees of CMA confirmed the areas which were the subject of the application to clear native vegetation. The CMA officers confirmed with the defendant that the property was presently under an OEH investigation and consequently they would not be able to issue a draft PVP (where possible) until the investigation and any associated court proceedings were resolved. The CMA officers also discussed how the NV Act operated, and specifically advised the defendant:
a.   The difference between regrowth and remnant native vegetation;
b.   The ‘improve or maintain’ requirements between clearing and offsets for approving clearing via the Native Vegetation Assessment Tool;
c.   Circumstances in which clearing cannot be approved - Endangered Ecological Communities that are not in Low Condition, vegetation types that are greater than 70% cleared, and Mitchell Landscapes that are greater than 70% cleared; and
d.   The possibility of a Continuing Use PVP based on the historical use of the property.

58 The defendant then showed the CMA employees around Colorado before they collected data on the vegetation present. At the completion of the site inspection a CMA employee advised the defendant that a threatened ecological community in high condition had been identified in addition to vegetation types that are greater than 70% cleared (in locations other than Colorado). The defendant was told that his PVP cannot meet the “improve or maintain” environmental outcomes required under the NV Act.
59 Following the site inspection, on 16 May 2013, the CMA wrote to the defendant to ‘outline reasons why your application for broad scale clearing on ‘Colorado’ would not be successful’'. The letter went on to state that:
Given the nature of the vegetation found within the Activity Sites (i.e. Threatened Ecological Community in high condition, and >70% cleared vegetation types) and the intended land use associated with your PVP application (i.e. broadside clearing for cropping), the PVP application cannot be approved for broad-scale clearing as the vegetation is considered as 'over cleared' and cannot meet the ‘improve or maintain’ environmental outcomes test of the Native Vegetation Act 2003 (NV Act).

60   On 17 May 2013, the defendant's PVP application was marked refused and a PVP for Colorado was not issued.
The Defendant's Commonwealth Application
61   In or around December 2012, the defendant submitted a referral to the Australian Department of the Environment, (the Department) pursuant to the Environmental Protection and Biodiversity Conservation Act 1999 (Cth), indicating that the defendant ‘would like to convert areas currently used for grazing into cropping land' (Commonwealth Application). Amongst other things, the referral indicated that ‘Clearing activities will be undertaken as soon as State and Federal approvals (if required) have been given.’ And that ‘the works will take approximately 12 weeks to complete.’
62   The total area sought to be cleared was 558ha. This area was comprised of four areas identified as Polygon 1, 2, 3 and 4 and which were identified on a number of maps supporting the application. Attachment C depicts the polygons. The areas sought to be cleared by the defendant are substantially the same as those cleared during the 2014 Clearing.
63   During his evidence in the Merit Appeal Proceedings the defendant stated that he read the Commonwealth Application carefully. The application was signed by the defendant and acknowledged that it was “complete, current and correct”. The Commonwealth Application included the following information:
a.   The landowner says that koalas have increased in number on the property in the last few years. He also said that they occur in the Bimble box (Eucalyptus populnea) and river red gum (E. camaldulensis) communities, close to water, but have been observed sheltering in Belah (Casuarina cristata) forest.
b.   Brigalow (Acacia harpophylla dominant and co-dominant) - Four polygons have been identified within the study area where the criteria for this threatened ecological community (TEC) are met.

64   The Commonwealth Application was accompanied by a report prepared by First Steps Environmental who completed a study of Colorado. The First Steps Environmental report included the following information:
a.   The proposed clearing areas are mostly open scrubland with low regrowth of desert lime (Citrus glauca) and scattered mature trees of various species. The ground layer within the retained brigalow/belah remnant areas is sparse due to a dense leaf litter layer and competition with the tree layer. The ground layer within the regrowth and woodland areas is chiefly comprised of native grasses and Chenopods. All areas examined had a healthy ground cover of native species or leaf litter.
b.   Two threatened ecological communities were identified within the study area, ‘Brigalow (Acacia harpophylla dominant and co-dominant)’ and ‘Weeping Myall Woodlands’.
c.   During the survey, two koalas were observed feeding on Brigalow (Acacia harpophylla).

65   On 19 December 2012, the Department wrote to the defendant and stated that there was presently insufficient information to allow the Department to consider all the relevant issues in respect of the proposed action as contained in the defendant's referral and requested that the defendant provide further information.
66   Subsequently, the defendant and the Department exchanged further correspondence. In the course of that correspondence the Department advised the defendant that the proposed action ‘is likely to have a significant impact on [threatened species and communities] protected by the EPBC Act’, including a significant impact arising from 'Removal of a significant proportion of habitat for an important population of koalas (Pharscolarctos cinereus); and potential impacts on the ecological community brigalow (Acacia harpophylla dominant and co-dominant)’.
67   On 27 April 2014, the defendant withdrew the EPBC referral application for converting grazing land to cropping ‘due to the uncertainty surrounding the outcomes of the legal case currently underway in relation to [the property].’
68   The defendant's EPBC Act referral and proposed action were withdrawn, and no consent was provided by the Department for the proposed action at the property.
The Class 4 Proceedings
69 The clearing of native vegetation the subject of the present offence was the subject of civil enforcement (Class 4) proceedings against the defendant instituted by the OEH in the Land and Environment Court in September 2014. The OEH sought, among other things, a declaration that between 5 January 2013 and 31 July 2014 the defendant cleared native vegetation on Colorado in contravention of section 12 of the NV Act; and an order pursuant to section 41(5) of the NV Act that the defendant be restrained from clearing, or causing, or permitting the clearing of native vegetation on the property in contravention of the Act; and orders requiring him to remediate the area he had unlawfully cleared (Class 4 Proceedings).
70   In those Class 4 proceedings, the defendant admitted clearing native vegetation, but disputed the extent of the clearing (the nature of the dispute being identified in the Court's judgment in the Class 4 proceedings). Mr Turnbull relied upon expert reports commissioned by and on his own behalf to seek to establish that at most 29.4 ha of land which were cleared by him and that the area of Native Vegetation so cleared extended no further than this. Mr Turnbull's assertion that 29.4 ha was cleared was rejected by the Court.
71   The Class 4 proceedings were heard by Craig J, on 3 to 6 March 2015, and on 30 and 31 March 2015. In an affidavit sworn on 22 January 2015 for the Class 4 Proceedings, the defendant deposed:
a.   That he accepted that clearing occurred within areas C3 and C4 after Preston CJ delivered his judgment. The Defendant stated the clearing was as a result of miscommunication with his father, for which he was responsible. The Defendant stated that he was not on Colorado when this further clearing occurred.
b.   The following at [4]:
“I also refer to the expert report of Dr Ross Jenkins of niche environment and heritage, which I read in draft before swearing this affidavit. With the benefit of legal advice, I accept Dr Jenkin's opinion to the effect that 29.4ha of native trees and shrubs were cleared on “Colorado” within the areas marked B1, B2, C1, C2, C5 and C6 and that such clearing occurred in breach of section 12 of the Native Vegetation Act.”

72   The defendant gave evidence on 3 March 2015 and stated, amongst other things:
a.   There were successive years of clearing on Colorado which have been done in accordance with a plan that was held by the defendant.
b.   He had personally performed some clearing by driving a tractor.
c.   During the time he was giving evidence on 10 June 2014 in the Remediation Proceedings:
i.   Further clearing under his management was taking place on Colorado.
ii.   The defendant knew exactly where the clearing was taking place on the property, which was approximately the C5 area.

d. The clearing undertaken between January 2013 and July 2014 had “almost” achieved all of the clearing sought in his PVP application.

73   The Court (Craig J) handed down its judgment in the Class 4 proceedings on 3 June 2016. His Honour accepted the case of the Applicant that the larger area as claimed by it had been cleared. The Court made orders, including to the effect that:
a. The defendant was restrained from clearing, or causing or permitting the clearing, of native vegetation on Colorado in contravention of the NV Act.
b.   The defendant was required to carry out certain remedial works which were set out in annexure B to the judgment.
c.   To carry out the remedial works which were ordered by Preston CJ in the Merit Appeal Proceedings.

74   The current proceedings were commenced while the Court was reserved in respect of Class 4 Proceedings, being after Mr Turnbull called a case and gave evidence.
75   A legal challenge by Mr Turnbull to the use of his admissions in the Class 4 proceedings and as to whether the instant proceedings could be stayed was dismissed by the NSW Court of Criminal Appeal in Turnbull v Office of Environment and Heritage [2021] NSWCCA 190.
Environmental Harm
76   The native vegetation cleared on Colorado during the offence period varied in structure from woodland or open forest to scattered trees or, in places, thickets of scrub, with a predominately native understorey. The main species of trees cleared were:
a.   Brigalow (Acacia harpophyl/a),
b.   Belah (Casuarina cristata),
c.   Western Rosewood (Alectryon oleifolius),
d.   Wild Lime (Citrus glauca),
e.   Poplar Box or Bimble Box (Eucalyptus populnea ssp bimbil),
f.   Smaller numbers of Wild Orange (Capparis mitchellii),
g.   Warrior Bush (Apophyllum anomalum),
h.   Myall (Acacia pendula),
i.   Budda (Eremophila mitchellii),
j.   Wilga (Geijera parviflora), and
k.   Red Olive Plum (Elaeodendron australe).

77 These are all native species and constitute native vegetation under the NV Act. The three most prominent large trees in the cleared area were:
a.   Brigalow (Acacia harpophylla),
b.   Belah (Casuarina cristata), and
c.   Poplar Box (Eucalyptus populnea ssp bimbil).

78   Groundcover in the areas cleared during the 2014 Clearing were chiefly comprised of remnant native vegetation and were in excellent condition in the months prior to and at the time of clearing. Prominent grasses included:
a.   Queensland Blue Grass (Dichanthium sericeum),
b.   Windmill Grass (Chloris truncate),
c.   Slender Windmill Grass (Chloris divaricata), and
d.   Fairy Grass (Sporobolus caroli).

79   They are all native species. The only prominent non-native woody plant that was cleared was African Boxthorn (Lyciumferocissimum). It generally grew beneath trees and significant infestations were typically localised and comprised 1 - 2% of the vegetation that had been cleared by biomass.
80   Three vegetation communities were identified in the areas cleared by the 2014 Clearing. They are:
a.   Brigalow - Belah open forest/Woodland (VCA ID 35) -Area Bl.
b.   Belah Woodland (VCA ID 55) - Areas C1, C2, C5 and C6.
c.   Poplar Box - Belah woodland (VCA ID 56) - Area C3 and C4.

Over clearing in the region
81   The clearing which is the subject of the offending involved vegetation types that are already over cleared vegetation types within an over cleared landscape in this region.
82   The OEH maintains a Vegetation Information System which is a database that lists vegetation types and the percentage of clearing in each catchment. The database records that the percentage cleared of each of the three vegetation types in the Border Rivers-Gwydir Catchment, where Colorado is located, is:
a.   Brigalow - Belah open forest/ woodland (VCA ID 35) = 90% cleared.
b.   Belah woodland (VCA ID 55) = 85% cleared.
c.   Poplar Box - Belah woodland (VCA ID 56) = 80% cleared.

83   Substantial broad-scale clearing involving these three communities has occurred in the Catchment, particularly in the Croppa Creek and Northstar Districts, since the estimates were published. Therefore, it is likely that these estimates of the overall percentage of these communities cleared in the Border Rivers-Gwydir Catchment are now higher than the published figures above.
Endangered ecological community
84   The cleared vegetation type present in areas C1, C2, C5 and C6 were characterised as ‘Brigalow - Belah open forest/woodland’, with a grassy groundcover dominated by native species. This is an endangered ecological community as listed in the Threatened Species Conservation Act 1995 (NSW). The reason this community is endangered is because most areas of Brigalow have been cleared to make way for agriculture. Brigalow once covered huge areas in central and southern Queensland and smaller areas in northern New South Wales but is now mostly restricted to narrow strips along roadsides.
Habitat loss
85   The conservation value of native vegetation takes into account its capacity to support a diversity of fauna. In general, loss of habitat and the food resources within the habitat resulting from broad-scale clearing of native vegetation, depending on the location and condition of that habitat, may have a severe impact on local populations of some resident species of wildlife. In particular, territorial birds and animals that are displaced by a sudden loss of food resources and habitat have little prospect of establishing territories in adjacent areas, which are generally already fully occupied. The impacts are expected to be even greater if the clearing causes fragmentation of habitat so that the more vulnerable species of wildlife can no longer move through the landscape in safety. In that case isolated populations can become extinct.
86   The impacts of clearing are greater in over-cleared landscapes. The accumulated impact of the clearing on some species of fauna could be substantial because, with the exception of Colorado and Strathdoon, most properties in the district had already been cleared and are used entirely for the growing of field crops, so remnant vegetation is confined to roadsides, watercourses and other narrow strips.
87   The clearing of Areas B1 and C1-6 has created small fragments of native vegetation surrounded by cropped land. Examples of these fragments are found near the western edge of the property near Area C6, on the northern boundary of Area C4 and on the eastern edge of Area B1. These fragments are likely to be too small to support population of some fauna species which cannot readily cross the intervening cropping land, resulting in their loss from these fragments.
88   The clearing of Areas C3 and C4 in particular has reduced the size and width of the area of vegetation which had previously been retained adjacent to Mount Pleasant Creek thereby constricting its corridor value. Additionally, this corridor has been isolated from the strip of Brigalow - Belah Woodland in the south of the Colorado.
89   The removal of the remnant vegetation in Area C4 has increased the gap between the vegetation retained along Mount Pleasant Creek and the vegetation along County Boundary Road from 100m prior to clearing to 400m. This is likely to prevent species of fauna from crossing that gap thereby increasing their susceptibility to the effects of fragmentation which include creating isolated populations, inbreeding depression and vulnerability to catastrophic events.
90   It is likely that a significant number of the trees, particularly Poplar Boxes, felled on Colorado contained hollows. Loss of hollow-bearing trees causes extreme long-term damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to form, with prominent hollows mainly confined to trees over a hundred years old.
Likely impact of the clearing on the local population of Koalas
91   At the time of the 2014 Clearing the Koala (Phascolarctos einereus) was a threatened species. It is now listed as endangered in the Biodiversity Conservation Act 2016 (NSW).
92   The 2014 Clearing has had, or is likely to have had, a highly significant effect on the population of Koalas on the property and on surrounding properties.
93   Koalas are highly territorial with complex social interactions, and they are known to be severely impacted by the clearing of native vegetation constituting their habitat.
94   In August 2012, OEH Ecologist, Dr Nadolny, observed Koalas on Colorado. Despite only inspecting a small proportion of the Koala habitat that was present on Colorado and Strathdoon, Dr Nadonly observed six Koalas during the August 2012 inspection. All were on Poplar Boxes, adjacent to newly cleared areas on the Properties. Koala scats were consistently present under Poplar Box trees and occasionally under Belah trees.
95   Prior to the subject clearing a large area of Koala habitat had been removed on Colorado by the November 2011/January 2012 Clearing and August 2012/January 2013 Clearing events.
96   The clearing the subject of the present offence of Areas B1 and C1-6 comprise the final stage of clearing on Colorado which has seen the available Koala habitat reduced to a narrow strip along part of Mount Pleasant Creek and small isolated fragments and narrow strips of native vegetation. The best Koala habitat on Colorado is now either side of the creek line where the larger Poplar Box occur. About half of this has been retained, however it has become isolated from other areas of suitable habitat and is not of sufficient size to maintain a viable population of Koalas in the long term.
Likely impact of clearing on other threatened species
97   The Grey-crowned Babbler (Pomatostomus temporalis tempora) was a threatened species at the time of the clearing. It remains listed as listed threatened in the Biodiversity Conservation Act 2016 (NSW). Individuals of this species were also observed on Colorado prior to the subject offending. The Grey-crowned Babbler was likely to have utilised the vegetation that has since been cleared on Colorado.
98   In addition to the Koala and Greycrowned Babbler species, the following threatened species are likely to have occurred in the area cleared by the 2014 Clearing:
a.   Spotted Harrier (Circus assimilis);
b.   Painted Honeyeater (Grantiella picta);
c.   Varied Sittella (Dapoenositta chrysoptera);
d.   Hooded Robin (south-eastern form) (Melanodryas cucul/ata cucullata);

e.   Little Eagle (Hieraaetus morphnoides);
f.   Glossy Black-Cockatoo (Calyptorhynchus lathami); and
g.   Turquoise Parrot (Neophema pulchella).

The areas referred to in the ASOF were identified in Annexure A to those facts as follows:

Statutory provisions

At the time of the offence, the relevant statutory provision creating the offence was s 12 of the NV Act which provided:

12   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.

At the relevant date the penalty for the commission of such offence was provided for in s 126 of the Environmental Planning and Assessment Act 1979 (NSW). At the date of the offence, the maximum penalty for an offence committed was $1,100,000.

Sentencing principles

The purposes of sentencing

The purposes of sentencing are contained at s 3A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (CSP Act) as follows:

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.

Statutory matters required to be taken into account in sentencing

For the purposes of sentencing in this matter the following factors as provided for in s 21A of the CSP Act are relevant:

21A    Aggravating, mitigating and other factors in sentencing
(1)    General In determining the appropriate sentence for an offence, the court is to take into account the following matters—
(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
…
(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,
…
(n)   the offence was part of a planned or organised criminal activity,
(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 –
…
(f)   the offender was a person of good character,
(g)   the offender is unlikely to re-offend,
…
(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 or Division 1A),
…
(m) assistance by the offender to law enforcement authorities (as provided by section 23),
…

It is to be noted that where a Prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence, beyond a reasonable doubt the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor, it must be established on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].

Objective seriousness of the offence

The determination of an appropriate sentence is to be undertaken bearing in mind that:

A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [162].

The primary factor to be considered in sentencing is the objective seriousness of the offence. The objective seriousness of the offence fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 (Waste Recycling) at [139]-[140].
The objective gravity of the offence is to be judged by two principal components: the precise acts or omissions of the offender; and the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 at [22].
The Prosecutor submitted that the objective seriousness of the offending conduct fell within the upper range of objective seriousness. The Defendant submitted that having regard to the environmental harm (actual and likely) occasioned by the offending conduct, and agreed in the ASOF, it was open to the Court to find “considerably serious environmental harm” (Tcpt, 20 June 2023, p 95(15)) but that the objective seriousness of the offending would not be found to have been at the upper range of objective seriousness or aggravated by the matters identified by the Prosecutor.

Nature of offences and maximum penalty

In considering the nature of the offence a consideration of the stated objects of the relevant legislative regime is a relevant consideration: Garrett v Williams (2006) 160 LGERA 115 (Garrett) at [89]. The stated objects of the NV Act were provided in s 3 as:

3   Objects of Act
The objects of this Act are:
(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.

The manner in which such objectives were to be achieved by the legislative regime was considered by Preston CJ of LEC in Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (2017) 227 LGERA 290 at [25] in the following terms:

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 approval for clearing of native vegetation, either in the form of a development consent or a property vegetation plan that permits the clearing of native vegetation. The application for and the grant of either form of authority involves undertaking a type of environmental impact assessment of the proposed clearing and the environmental outcomes that are likely to be achieved if the clearing takes place. The statutory provisions requiring prior environmental impact assessment and approval for the clearing of native vegetation are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including achieving the principles of ecologically sustainable development.

The offence is one of strict liability and carries the maximum penalty of $1,100,000. The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offence as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 359; and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

The extent of the harm caused or likely to be caused to the environment by the commission of the offence

The extent of the harm caused or likely to be caused to the environment by the offending can increase the seriousness of the offence: Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 at [20]. The concept of harm in the context of environmental offences is broad, extending to both actual and potential harm: Waste Recycling at [145]-[149].

Prosecutor’s submissions

The Prosecutor contended that the offence has caused a high level of actual environmental harm and a high level of likely harm to the environment.
In determining the extent of actual harm, the Prosecutor contended that in respect of native vegetation clearing, the number of trees cleared was not, on its own, determinative of the assessment of the harm. It noted that in Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 at [37] Preston CJ of LEC said:

The significance of the number of trees removed needs to be evaluated in the context of the vegetation type in which the trees occur. The vegetation types of woodland and open woodland, by definition, have lower average densities (numbers) of trees per hectare than forest vegetation types, and hence will have greater space between trees. Hence, removal of a particular number of trees over a given area will have materially different effects if the vegetation type is a woodland or open woodland than a forest; it may result in the total or almost total clearance of the land in a woodland or open woodland but only partial clearance in a forest.

In the current case, the Defendant cleared a significant number of trees, in the order of 4,430 trees, which trees grew in woodland and open forest communities which ranged in density from mid-dense (50% to 80% crown cover) to sparse (20% to 50% crown cover). The Defendant also cleared native understory plants and groundcover.
The vegetation was not in a low condition and consisted of a relatively large well-connected remnant. The tree species cleared were as agreed in the ASOF at par 76 in [3] above.
Groundcover in the areas cleared during the third tranche of clearing were chiefly comprised of remnant native vegetation and were in excellent condition. Prominent grasses included those identified in the ASOF at par 78 in [3] above.
In addition, the Defendant cleared three vegetation communities as identified in the ASOF at par 80 in [3] above.
The clearing in areas C1, C2, C5 and C6, removed vegetation which was characterised as ‘Brigalow-Belah open forest/woodland’. This was an endangered ecological community as listed in Pt 3 of Sch 1 of the Threatened Species Conservation Act1995 (NSW) at the relevant time.
The reason this community is endangered is because most areas of the vegetation community had been cleared to make way for agriculture.
The conservation value of native vegetation takes into account the capacity of native vegetation to support a diversity of fauna. As identified in the ASOF at pars 85-90 in [3] above, it is likely that there was harm occasioned to the habitat in the locality as a consequence of the clearing.
In addition, as identified in the ASOF at pars 91-96 in [3] above, it was likely that the clearing had an adverse effect on the local community of koalas.
In addition to the threatened koala species, there were a number of other threatened species as identified in the ASOF at pars 97-98 in [3] above that would likely have been adversely affected by the clearing.

Defendant’s submissions

The Defendant, by the admissions in the ASOF admitted the extent of the actual and likely harm to the environment. It was accepted by the Defendant’s counsel during the course of the Defendant’s submissions at Tcpt, 20 June 2023, p 95(9-16) that:

HER HONOUR: … But what I'm trying to understand is from your client's point of view, just dealing with the environmental harm, not the aggravating features or his state of mind for the moment, where does the defendant say I should find objectively this sits in that framework?
BREZNIAK: Your Honour, on behalf of Mr Turnbull it's accepted that the facts disclose admissions to considerably serious environmental harm.

Findings on environmental harm

In light of the admitted harm, I find that there was significant actual and likely harm caused by the clearing the subject of the charge. I find that such harm was, due to its nature and extent, and that the extent of the harm (actual and likely) caused by the offending was substantial and was an aggravating feature of the offending within the meaning of s 21A(2)(g) of the CSP Act.
In making such findings I note that some of the harm occasioned was as the result of the clearing of an endangered ecological community and that some of the likely harm to habitat included habitat of threatened species. In that respect, I take into account that the vegetation cleared was of value to the local environment and not of low or poor quality. I do not take into account the fact that the vegetation was cleared contrary to the provisions of s 118D of the National Parks and Wildlife Act 1974 (NSW) as to do so would be to offend the principle outlined in R v De Simoni (1981) 147 CLR 383.

Reasons for committing the offence and state of mind of the offender

An offence against s 12(1) of the NV Act is an offence of strict liability. A strict liability offence does not require the presence of an intention to commit the offence in order for an offender to be guilty of the conduct. However, as has been observed, a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [123].

Prosecutor’s submissions

The Prosecutor submitted that the Defendant’s state of mind was an aggravating feature of the offending in that it was done intentionally, as part of a planned criminal activity and for the purposes of financial gain: s 21A(2)(n) and (o) of the CSP Act.
The Prosecutor submitted that the clearing for which the Defendant was charged completed the plan held by the Defendant at the time he purchased the property to remove native vegetation to make way for broadscale cropping. The following evidence establishes beyond reasonable doubt that the Defendant intentionally cleared an area of 508 hectares of native vegetation:

The Defendant's intention in purchasing Colorado was to clear the property of native vegetation in order to convert it from a grazing property into a farm to be used for the growing of commercial crops.

The Defendant, during his evidence on 10 June 2014 during the Merit Appeal Proceedings, stated that when he purchased the property his intention was not just to add to his farming portfolio but to create more cropping areas.

The Defendant stated or agreed during his evidence in the Class 4 proceedings on 3 March 2015 that:

He was part of the decision-making team that made the decision to clear the land from October 2011, being the first tranche of clearing;

It was part of the business plan in purchasing the property to clear the land;

At the time of exchanging contracts for the purchase of the property it was already within contemplation that the Defendant would be turning the property into a cropping property;

In respect of the first tranche of clearing, it was important that clearing started in October 2011, before the exchange of contracts, so that the cleared areas could be cropped in the 2012 season; and

There were successive years of clearing on Colorado which have been done in accordance with a plan that was held by the Defendant.

Each of the three tranches of clearing were carried out or authorised by the Defendant.

The Defendant's PVP Application and Commonwealth Application sought to clear substantially the same areas as those cleared during the clearing in 2014. Both applications were submitted at about the time that the second tranche of clearing was taking place and more than 12 months before the clearing the subject of the charge commenced.

The evidence set out above demonstrated that the Defendant:

Sought consent to clear the native vegetation;

Did not receive that consent; and

Nevertheless, cleared the areas which are currently the subject of charge.

It is submitted that the evidence establishes beyond reasonable doubt that:

When the Defendant purchased the property, he planned to clear it of native vegetation;

The Defendant's plan was implemented by the clearing which took place under his direction and was ultimately achieved by the clearing the subject of the charge; and

The Defendant's intention to clear the land persisted despite an investigation by the OEH into the first tranche of clearing, the rejection of his PVP Application, the withdrawal of his Commonwealth Application, and the orders and draft orders of the Court which directed the Defendant to remediate areas he had cleared.

At the time the clearing the subject of the charge was carried out, the Defendant was aware he was prohibited by law (that is, by the NV Act) from carrying out that clearing without approval under the Act and in the knowledge that he did not have, and was not likely to be able to obtain, such approval. As such, it is submitted that he acted in defiance of the law in pursuit of his commercial objective to convert the property into a property suitable for commercial cropping.

Defendant’s submissions

The Defendant submitted his state of mind was not an aggravating feature of the offending and that the Court would not accept that the offending was undertaken for the purposes of financial gain or as part of a planned criminal activity.
The Defendant submitted that:

He was working from the information and understanding from that information in the Native Vegetation Regulation “What's new for Landholders?” and his belief that the clearing undertaken was in accordance with that factsheet and the legislation.

In support of this fact is the following:

Letter (email) from the Defendant to his lawyer dated 13 May 2014;

Letter (email) from the Defendant to his lawyer dated 29 May 2014;

Managing Invasive Native Scrub – Native Vegetation Act 2003 Info Sheet 9;

Photos of aerial view of vegetation 1968-2004; and

Evidence given by the Defendant in the Class 4 proceedings.

Findings on Defendant’s state of mind

Having regard to the evidence and the submissions I accept that the Defendant’s state of mind is relevant to the determination of an appropriate sentence in this matter. The Defendant had the assistance from time to time of relevant experts advising him as to the need or otherwise to obtain approval to clear the parts of the vegetation on the land. That assistance should have caused the Defendant to at the least make enquiries of those persons as to whether consent was required to undertake the clearing the subject of the charge. In light of past advice and experience the Defendant ought to have been aware that the native vegetation was of such quantity and value that an approval to clear the land was required.

To the extent that the Defendant submits that there had been a change in the legislation (or at least he understood that such change had occurred) that would mean that consent was not necessary, he relied upon the statements in a Fact Sheet issued by the relevant department. Yet when pressed counsel for the Defendant was unable to identify any part of the text of the Fact Sheet that would have reasonably given rise to such an understanding. Further, the Defendant’s evidence given in the Class 4 proceedings did not provide a foundation for that asserted belief.
In the circumstances, I find that the Prosecutor has established beyond reasonable doubt that at the time of the offending the Defendant acted recklessly with a disregard for whether consent was required to clear the native vegetation the subject of the charge and that this is an aggravating factor that adds to the objective seriousness of the offending conduct.

Planned criminal activity/offending for financial gain

Prosecutor’s submissions

The Prosecutor submitted that the offence was carried out as part of a planned criminal activity and for financial gain and that each of these features aggravated the objective seriousness of the offending conduct. It submitted:

The aggravating feature provided by s 21A(2)(n) of the CSP Act must not be taken into account if the degree of planning is an “inherent characteristic” of the offence but may be taken into account where the degree of planning exceeds that which is inherently characteristic of the offence: R v Yildiz (2006) 160 A Crim R 218 at [37].

The expression “organised criminal activity” in s 21A(2)(n) of the CSP Act includes activity that is carried out by just one person, concerning which that person engages in planning or preparation: Hewitt v R (2007) 180 A Crim R 306 at [25]. Offences carried out over a sufficiently long period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of the section, even if the organisation is not complicated: NCR Australia v Credit Connection [2005] NSWSC 1118 at [76).

In respect of the current matter, the Defendant exchanged contracts for the purchase of the property in September 2011. At that time, the property was primarily used for grazing. Approximately 86% of the land was uncropped and comprised predominately native vegetation. At least by September 2011, the Defendant planned to clear the property of native vegetation. The plan was held from late 2011 until the completion of the clearing on about 20 August 2014. The plan was executed during the first, second and third tranches of clearing. In respect of the clearing the subject of the charge, the plan was laid bare by the Defendant in the PVP and Commonwealth Applications.

The Defendant's planning far exceeded that which is inherent in the offence and thus attracts the application of s 21A(2)(n) of the CSP Act.

The land clearing engaged in by the Defendant was one course of conduct over a continuing period.

Section 21A(2)(o) of the CSP Act provides that an offence will be aggravated if it is committed for financial gain. Financial gain does not need to be the only purpose of the offending to enliven s 21A(2)(o) of the CSP Act: Environment Protection Authority v Albiston [2020] NSWLEC 80 at [118]. The aggravating feature will be made out even if the conduct is ultimately unprofitable: Environment Protection Authority v Hughes [2019] NSWLEC 108 at [98].
In Garrett Preston CJ of LEC at [121] said:

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 environment protection licence increases the seriousness of the crime. Offenders should not profit from crime [citations omitted].

In the current matter, the Defendant purchased the property on 31 January 2012 for $3,258,905.69. At the time 86% of the land was not suitable for cropping.
Registered NSW property valuer, John Ewing, was engaged by the Prosecutor to provide an expert opinion in respect of the value of the property. Mr Ewing states that there is a difference between the value of grazing and cropping land in the Moree region. As of January 2012, grazing land did not exceed $1,850 per hectare, whereas cropping land ranged from $3,000 to $4,000 per hectare.
The property was sold by the Defendant on 17 December 2020 for $9,700,000. It is Mr Ewing's opinion that as of December 2020, grazing land in the Moree region did not exceed a value of $4,000 per hectare while cropping land ranged from $8,500 to $9,000 per hectare. Mr Ewing estimated the value of the property at the time it was sold in December 2020 as $6,245,000 if it was primarily grazing land.
The Prosecutor does not seek to quantify any profit that may have been made by the Defendant as a result of the clearing in 2014. Rather, it is submitted that the evidence establishes there was a difference between the price of cropping and grazing land when the property was bought and sold by the Defendant. Further, the Defendant knew of that difference, which, in addition to the agricultural benefits of cropping land, motivated his offending.
In respect of the Defendant's knowledge, in 2014 the defendant owned three properties in the Croppa Creek area, in addition to Colorado, which were largely used for wheat farming. Across the four properties the defendant had approximately 2,000 hectares of land under crop for wheat in 2014. The Defendant gave evidence in the Class 4 proceedings that a grazing property in the Moree region, “is not sustainable”.
The Prosecutor submitted that the evidence of the Defendant's understanding of the value of cropping land, his view that a grazing farm was “not sustainable”, and his achieved plan to convert the property from a grazing property to a cropping property, establish beyond reasonable doubt that the Defendant committed the offence for financial gain.

Defendant’s submissions

The Defendant submitted that the Prosecutor had not established beyond reasonable doubt that the offending was committed as part of a planned criminal activity nor that it had been carried out for financial gain. He submitted that:

The Defendant was merely carrying out the activity of agricultural pursuits and that as such it was not demonstrating a plan beyond ordinary agricultural activities;

The Defendant was a cultivator and not a grazier so the nature of the activities was consistent with the nature of his agricultural experience rather than a plan to undertake criminal activity to achieve a greater financial gain; and

To the extent that any “planning” was involved in the offending conduct such planning was an inherent characteristic of the offending conduct and is therefore not permitted to be considered as aggravating such conduct.

Findings on planned criminal activity/financial gain

As to the contention that the offending was part of a planned criminal activity, I reject the submission of the Prosecutor. In so far as there was a plan to clear the land such was nothing more than a plan incidental to the achievement of an action. What is required in order for the action to be an aggravating feature as comprising part of a planned or organised criminal activity involves matters of degree. As was observed in Xiao v R (2018) 96 NSWLR 1 at [107] such matters of degree relate to: the comparison being between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this case, in light of my finding of recklessness and the evidentiary burden cast upon the Prosecutor the degree of planning would fall at the end of the scale towards opportunistic or ill-considered rather than premeditated. Accordingly, I find that the Prosecutor has failed to establish beyond reasonable doubt that the criminal activity was part of a planned or organised criminal activity and therefore will not take this factor into account on sentence as an aggravating feature.
As to the Prosecutor's submission that the offending was carried out for financial gain, this submission relies heavily upon the evidence that grazing land was worth less in the marketplace than land put to cultivation. Whilst I accept that it was the Defendant's intention to cultivate the land and that the clearing was undertaken to achieve that end, I am not satisfied beyond reasonable doubt that the criminal activity was undertaken either solely or in part to achieve a financial gain in respect to an increase in land value. The uncontested evidence is that the Defendant was not a grazier and that he and his family had undertaken agricultural activities in the form of cultivation for many years. The fact that the land was purchased to permit an increase in land available for the cultivation practices accords with the farming skill of the Defendant. Whilst land may be worth more if available to cultivation rather than grazing that could equally be the by-product of the desire of the Defendant to utilise his skill rather than a desire to achieve a purely financial gain in property prices or a financial return for the exploitation of that skill. Accordingly, I find that the Prosecutor has failed to establish beyond reasonable doubt that the criminal activity was undertaken for financial gain and therefore do not consider that factor as an aggravating feature of the offending.

Reasonable foreseeability of the harm caused or likely to be caused by the commission of the offences

The Prosecutor submitted that a reasonable person would foresee the risk of harm caused or likely to be caused by the subject clearing. It was observed that the Defendant was repeatedly provided with information about the ecological value of the land cleared by the clearing in 2014. For example, the Defendant was advised that the vegetation on the property formed part of an “over-cleared” landscape and that his PVP Application could not be approved. As a consequence of the first tranche of clearing the Defendant was directed, and then ordered to remediate parts of the property. The proposed remediation area was identified by Preston CJ of LEC as a “high priority offset area”. On that basis, the value and extent of harm would have been reasonably foreseeable.
I accept the Prosecutor’s submissions that the extent of actual harm or likely harm was reasonably foreseeable.

Conclusions on objective seriousness

Having regard to the findings above, I consider the offending to be in the high mid-range of seriousness due to the extent of harm (actual and likely) to the environment and the Defendant’s state of mind in the carrying out of the offence.

Subjective circumstances of the offender

Contrition and remorse

The totality of the material brought before the Court as to the Defendant’s contrition and remorse was the statement in the Defendant’s written submissions that:

Grant Turnbull gave a full account of himself and his actions in the class 4 proceedings as has been set out above in these submissions.
The defendant Grant Turnbull understands the possible sentences to be imposed for a case of this kind. He is, it is submitted, regretful and contrite. Grant Turnbull has fully absorbed the public interest in punishment for an offense of this kind. It is the not the first criminal offence for Grant Turnbull, but he is unlikely to reoffend.

The issue of contrition and remorse was raised with the Defendant’s counsel with the following exchange at Tcpt, 20 June 2023, p 96(41)-97(18):

BREZNIAK: Yes, but also, respectfully, if your Honour looks at the evidence of Mr Turnbull in the proceedings, which is the questions and answers he gave, many of the answers that he gave to questions were quite surprising. They were against interest. They were questions and answers - I can take your Honour to them, where the answers are quite surprising in the sense of the degree to which Mr Turnbull accepted the responsibility for the offending.
HER HONOUR: Well, that comes back to the issue of contrition, and I will need you to take me to that because, to be frank, apart from your statement in your submissions, I don't see anything anywhere in any of the material, and I must say, including the most recent tender of exhibit 13 where Mr Turnbull still seems to be unhappy with the approach that the prosecutor was taking in relation to requiring the remediation, doesn't seem to show ostensible, apparent contrition. It seems to be, I had no choice. Once the decisions had been made and my appeals had been exhausted, I had no choice but to enter a plea of guilty.
BREZNIAK: I can't resist that conclusion that--
HER HONOUR: But if you say that in his evidence I would find some evidence of contrition in the class 4 proceedings, then I'm going to need you to take me to it directly and you can--
BREZNIAK: That will take time. I've got--
HER HONOUR: You can do that over after lunch if you like?
BREZNIAK: Yes.

Counsel for the Defendant proceeded to identify what were characterised as admissions against interest in the transcript of evidence adduced in the Class 4 proceedings and relied upon those statements as evidence of contrition and remorse. After canvassing those parts of the transcript counsel for the Defendant summarised the submission at Tcpt, 20 June 2023, p 103(19-25) as:

… coming to the question of contrition, your Honour, the answers which I have identified go to an acknowledgement of the fact that there was native vegetation coupled with the acceptance by Mr Turnbull that the native vegetation he understood to be protected by the Act, and lastly, his acknowledgement of responsibility for the clearing in all relevant respects. My submission is that that's a foundation upon which to advance an argument that there was contrition.

As was recently observed in Carl v R [2023] NSWCCA 190 at [80]:

A proper construction of s 21A(3)(i) of the CSPA, requires an offender to provide evidence that he has accepted responsibility for his actions. The requirement to provide evidence of remorse does not equate with a requirement that an offender give evidence of remorse: see Butters, Jarrod Dean v R [2010] NSWCCA 1 at [16]–[17]; Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297 at [66]–[67]; AH v R [2020] NSWCCA 279 at [73]; Morrie Paul DOUMIT v R [2011] NSWCCA 134 at [19]; Sun v R [2011] NSWCCA 99 at [25], [31].

Accordingly, whilst s 21A(3)(i) of the CSP Act requires evidence of contrition and remorse that evidence need not be directly from the Defendant, however, it must be evidence. Therefore, the statement in the Defendant’s submission that the Defendant is regretful and contrite cannot on its own without evidence to support the submission justify a consideration of this factor as a mitigating factor. In this case, the evidence is said to arise from the fact that the Defendant gave evidence in other proceedings (which evidence was tendered on sentence in these proceedings) which comprised statements against interest. That is, that he made admissions as to his conduct. That evidence, however, is no more than an acceptance as to his responsibility in the offending. The statements against interest formed part of his evidence in defending proceedings for civil enforcement and were part of the matrix of factual circumstances necessary to determine the issues in those proceedings. Contrition and remorse are concepts that involve more than being sorry for the consequences of the criminal conduct. As was observed in Merrick v R [2017] NSWCCA 264 at [97]:

Remorse for a crime cannot be shown if the facts are not faced and if the criminality is not owned.

In this case, there is no evidence upon which I can be satisfied that the Defendant has faced the facts and owned his criminality. The statements against interest demonstrate a required participation in litigation and the need, when evidence is given under oath, to provide truthful answers. I do not regard the statements relied upon in this case as evidence of contrition or remorse.

Early plea of guilty – s 22 and s 21A(3)(k) of the CSP Act

The proceedings were commenced by summons on 15 April 2016. The plea was entered on 1 February 2023, 20 days before the proceedings were listed for trial a second time. During the period of nearly seven years between commencement and the plea, the proceedings have come before the Court on numerous occasions including having been fixed for trial on five occasions.
The Prosecutor submitted that the Defendant would be entitled to a discount of no more than 10% for the utilitarian value of his plea.
The Defendant submitted that it may be conceded that the Defendant did not – after rejection of his various applications to exclude his submissions – enjoy significant prospect of acquittal in these proceedings and until that final application was determined that position could not have been ascertained and a plea of guilty was not reasonable before that time. Notwithstanding the plea was entered a relatively short period before the date fixed for trial, the fact that a criminal trial of three weeks was, by reason of the plea of guilty, thereby averted.
In those circumstances, it is submitted that the Court would consider a discount well above the minimal indication of the prosecution submissions on this aspect.
The Defendant submitted that it was only once it became apparent that the interlocutory actions relating to the nature and scope of the evidence that would be able to be adduced by the Prosecutor was known that a plea of guilty was entered.
I note that in the chronology of actions in this matter that a period of almost one year elapsed after the determination of the High Court rejecting the Defendant’s application for leave to appeal was the plea of guilty entered. In the circumstances I do not accept that the plea was relevantly entered at the earliest or even a reasonably early stage of the proceedings. However, I do accept that the entry of the plea of guilty and the agreement of an extensive ASOF upon which the sentence hearing could proceed provided some utility in the plea. Accordingly, I accept the Prosecutor’s submission that a discount for the plea of 10% should be applied.
To the extent that the Defendant has agreed to the extensive ASOF containing sufficient admissions to permit the plea of guilty to proceed with some reduction in the volume of evidence I have also taken this into account in determining the utility of the entry of the plea of guilty and pursuant to s 21A(3)(m) of the CSP Act.

Prior convictions – s 21A(2)(d) of the CSP Act

The Defendant has a prior conviction: Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150; and Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229.
The prior conviction related to unlawful clearing of native vegetation which was found to have caused substantial harm. The Defendant was fined the sum of $140,000 and ordered to pay the legal and investigative costs of the Prosecutor.
Whilst I do not consider that the fact of the prior conviction permits a finding that the Defendant is of bad character, I do take into account the prior conviction as evidence relating to his knowledge of offending, state of mind, and need for specific deterrence.

Extra-curial punishment

The Defendant submitted in its written submissions that the sentence should take into account the fact that the Defendant has already suffered extra-curial punishment as a consequence of the offending. It was submitted at pars 63-65 of the Defendant’s written submissions that:

63. For one thing the non-curial punishment for the offending upon Mr Turnbull and his family in the loss of father, the public response to the circumstances of the death of Mr Turner and the consequences financial and personal really are matters proper for consideration as a serious detriment proper to evaluate in the sentencing.

64. In any event as Mr Odgers in his text Sentence 5th edition (p 477) observes:
Taking into account non-curial punishment in sentencing need not constitute endorsement or condonation. A sentencing Court may both condemn such punishment and accept that it has furthered a goal of sentencing in respect of the offender. According to justice to the offender requires that it be taken into account even while making it clear that it should not have occurred (and should not occur in the future).

65. It is to be remembered that for a detriment to be characterised as punishment does not require a subjective purpose to inflict punishment: Ashley v State of Westem (sic) Australia [2017] WASCA 131

It was further submitted at pars 74-79 of the Defendant’s written submissions that:

Consequences for Mr Turnbull (and family) of the inflicted fatal injuries upon Inspector Glendon Turner:
74.   The death of the compliance officer Glendon Turner on 29th July 2014 at the hand of Grant Turnbull's father Ian Turnbull was a tragedy for the Turnbull family as clearly it was for the family of Mr Glendon Turner.
75.   Grant Turnbull and his children including brothers and his mother endured with Ian Turnbull a trial before a jury, conviction, sentence in the Supreme Court of NSW of Imprisonment of Ian Turner for 35 years with a non-parole period of 24 years.
76.   Thereafter the illness and then death of Ian Turnbull in and during his imprisonment and all that followed including civil proceedings against the estate of Mr Ian Turnbull of which Mr Grant Turnbull was one of two executors.
77.   During the criminal trial of Mr Ian Turnbull evidence was adduced from members of the Turnbull family and others of the pressures, animosities and difficulties leading to the death of Mr Glendon Turner at the hand of Grant Turnbull's father.
78.   This was referred to by the sentencing Judge in his sentencing remarks on 23rd June 2016: R v (Ian) Turnbull [2016] NSWSC 847
79.   The offending the subject of the present charge ended at about the time of this tragedy. It is submitted that this is a consideration, also, as to the question of specific deterrence in these proceedings.

The Defendant’s submissions contended that the appropriate penalty to be imposed should be reduced in light of the extra-curial punishment endured by the Defendant as a consequence of the offending of his father. I reject this submission.
The principle that makes relevant the question of extra-curial punishment in sentencing is that care must be taken to ensure that an offender is not punished twice for the same offence: Jehad Jodeh v R [2011] NSWCCA 194 at [49]. The principle thereby focusses on extra-curial punishment that arises as a consequence of the offending for which the Defendant is being sentenced. The factors raised by the Defendant in this case do not arise as a consequence of his offending but rather the conduct of his father. Whilst the conduct of his father was undertaken against the background of the unlawful clearing on the land, the clearing was not the conduct for which the Defendant’s father was convicted. Such conduct is therefore not a risk to the Defendant of being punished twice for the same offending. I therefore do not take this matter into account as a deterrent factor or as evidence of the Defendant already suffering extra-curial punishment in the determination of the appropriate sentence.
Further, even if relevant, I would decline to take these matters into account as the consequence to the Defendant of his father’s criminal conduct would not be considered as “punishment” in the relevant sense but rather the natural and inevitable consequence of the circumstance of his father being convicted of the murder of Mr Turner.
Equally, I do not take into consideration the fact that the Defendant’s father was convicted of the murder of Mr Turner in the assessment of the appropriate penalty for the Defendant in the context of the present charges.

Deterrence, retribution and denunciation

The Prosecutor submitted that it was necessary to take into account the need for both specific and general deterrence in the sentencing of the Defendant. It submitted that the principle of general deterrence is of central importance in the sentencing of environmental offences: Axer at 359; and Garrett v Williams [2007] NSWLEC 56 at [43].
The Prosecutor submitted that the rationale relating to general deterrence in matters such as the present was elucidated in Rae at [13], where Preston CJ of LEC cited the need for penalties to ensure that offending is seen as economically irrational:

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.

It was contended that in this case, having regard to the circumstances surrounding the commission of the offence as outlined above, the need for the sentence to reflect the purpose of specific and general deterrence is stark.
The Defendant submitted that there was no need for specific deterrence in the present case as the Defendant due to the effects of an injury as the result of an accident that he suffered on 6 May 2018, no longer engages in any kind of farming.
As to matters relating to general deterrence, the Defendant highlighted the real purpose of general and specific deterrence. As to general deterrence it was noted that that the sentence should not exceed that which is warranted by objective seriousness of the offence.
With respect to specific deterrence, I accept the Defendant’s evidence and submissions that he is no longer participating in farming activities and is therefore unlikely to reoffend such that a need for specific deterrence would arise. Whilst the Defendant has already been convicted of an offence of a similar nature, such offending was part of the process of clearing upon which he embarked (as referred to above) and has been taken into account in that respect such that any further consideration of that conviction would in effect double count this factor in the determination of the appropriate penalty.
I accept the Prosecutor’s submissions that in cases such as the clearing of native vegetation that there is a need for general deterrence and the fixing of a fine that renders unlawful activity uneconomic assists in achieving the underlying purpose of sentencing namely achieves the purpose of sentencing. However, to the extent that I take the need for general deterrence into account it will be to the extent of fixing a penalty within the range reflected by the objective seriousness of the present offending conduct and not to exceed it.

Consistency in decision-making

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to ensure that there is a consistent approach to penalty. This approach, however, must also acknowledge that care must be taken in comparing cases where the circumstances of and facts relating to the offences may be quite different: R v Visconti [1982] 2 NSWLR 104; Axer at 365.
Having regard to the past sentences to which I have been referred I do not consider that there is demonstrated a pattern of sentencing which would require consideration.

Legal costs

The Defendant will be ordered to pay the Prosecutor’s legal costs of the proceedings. There is no indication of the quantum of such costs, but having regard to the extensive history of this matter I am prepared to accept that the sum will not be small. I will take that factor into account in determining the appropriate sentence.

Fines Act – capacity to pay

Section 6 of the Fines Act 1996 (NSW) (Fines Act) provides:

6   Consideration of accused’s means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—
(a)   such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b)   such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

The Defendant submitted that his capacity to pay any fine was a relevant consideration in the determination of any fine on sentence. The Defendant tendered a number of financial records comprising:

Transaction History of Suncorp Bank Internet Banking for Account QANAGCO – Business Premium – dated 1 May 2023 – 15 June 2023;

ANZ Business extra statement for Qanagco Pty Ltd;

Westpac Payment Record evidencing payment of funds to a solicitor’s trust account in the sum of $6,088,069.98;

Letter from Lisa Hewitt (ANZ) dated 31 August 2018;

Email from Lisa Hewitt to Sylvester Joseph dated 6 August 2019; and

Application in a proceeding in the Federal Circuit and Family Court of Australia which contained an application for the Defendant’s wife to be made trustee of certain real estate in Queensland and New South Wales.

With respect to the Defendant’s capacity to pay the following exchange occurred at Tcpt, 20 June 2023, p 125(19)-126(17):

HER HONOUR: What about the financial, the capacity to pay? Do you press a lack of capacity to pay?
BREZNIAK: Yes.
HER HONOUR: On what basis?
BREZNIAK: On the basis of the documents which I produced to the prosecutor, showing the transfer of money from the trust to the office.
HER HONOUR: Which isn't before me.
BREZNIAK: No.
HER HONOUR: And the prosecutor's made no admission. So, but that only deals with one account, even if that material was before me. I have no idea whether Mr Turnbull is employed, whether he earns an income, what is asset position is.
BREZNIAK: Well, I put the Court on instructions that he is the director of the trust and that all of his wealth and payment comes from that trust. Now, your Honour has no evidence of that.
HER HONOUR: But how can I understand from information regarding the means of the accused, because he has according to the Family Law material that you tendered, some interest in a number of properties. They don’t appear to be properties held by the trust. The trust didn’t hold the property the subject of the clearing the Colorado property, although it had some obligation to pay Mr Turnbull some wages, I don’t - he could be earning $1 million a year, he could be earning nothing, I don't know.
BREZNIAK: Well, the evidence, the bank statements are tendered as I indicated before, not only on the question on capacity to pay, but of the reason why the property was put on the market and sold, that is--
HER HONOUR: But again, I don’t - can't draw that from the material that Colorado was the only property that Mr Turnbull had. In fact, the evidence is to the contrary.
BREZNIAK: It was never my submission that Colorado was the only property. There are two other properties in the locality.
HER HONOUR: Well, there are more than two other properties. The family law proceedings show a property in Queensland and I think five other properties in New South Wales and this is all after Colorado was sold. Four properties in New South Wales and one in Queensland.
BREZNIAK: Well, I can indicate that I'm not able to advance beyond those submissions which I made in that respect.

The evidence adduced provides a very limited picture of some aspects of the financial position of a corporate entity. There is no explanation of the Defendant’s relationship with that entity, what it does or how the operation of that entity affects the Defendant’s financial position. There is no evidence relating to the Defendant’s financial position at all other than the evidence of some landholdings as referenced in the Family Law proceedings. Absent some explanation of this material to render it explicable to the financial position of the Defendant I am unable to accept that there is any evidence that the Defendant has limited capacity to pay a fine. I have considered the material tendered and the obligation cast by s 6 of the Fines Act and find that on the evidence I am not satisfied that the Defendant has a limitation on his capacity to pay a fine of any reasonable sum.

Appropriate sentence

The appropriate sentence is to be derived by an “instinctive synthesis” of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v R (2005) 228 CLR 357.
Taking into account the objective seriousness of the charges and the factors identified above I have determined that the appropriate sentence in this case includes the imposition of a monetary penalty and the additional orders relating to legal costs in the sum of $450,000 less 10% for the plea of guilty resulting in a fine of $405,000:

Orders

In proceedings 2016/151113 the Court makes the following orders:

The Defendant is convicted as charged;

The Defendant is fined the sum of $405,000;

The Defendant is to pay the Prosecutor’s legal costs of the proceedings in the amount as may be determined under s 257B of the Criminal Procedure Act 1986 (NSW); and

The exhibits are returned.

**********

Decision last updated: 08 December 2023

Medium Neutral Citation:	Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137
Hearing dates:	19 and 20 June 2023
Date of orders:	08 December 2023
Decision date:	08 December 2023
Jurisdiction:	Class 5
Before:	Duggan J
Decision:	See paragraph 93
Catchwords:	SENTENCING – environmental offence – s 12 of the Native Vegetative Act 2003 (NSW) – clearing native vegetation – significant actual and likely harm caused to the environment – reasonable foreseeability of harm – whether offence carried out as planned criminal activity and for financial gain – high mid-range of objective seriousness – no real contrition or remorse – prior convictions – whether defendant suffered extra-curial punishment – specific deterrence not warranted – fine not reduced due to capacity to pay pursuant to s 6 of the Fines Act 1996 (NSW) – monetary penalty imposed – legal costs
Legislation Cited:	Crimes (Sentencing and Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Fines Act 1996 (NSW) National Parks and Wildlife Act 1974 (NSW) Native Vegetation Act 2003 (NSW) Threatened Species Conservation Act1995 (NSW)
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Carl v R [2023] NSWCCA 190 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (2017) 227 LGERA 290 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 Leda Management Services Pty Ltd [2013] NSWLEC 111 Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 Environment Protection Authority v Albiston [2020] NSWLEC 80 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 Environment Protection Authority v Hughes [2019] NSWLEC 108 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Garrett v Williams (2006) 160 LGERA 115 Garrett v Williams [2007] NSWLEC 56 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Hewitt v R (2007) 180 A Crim R 306 Jehad Jodeh v R [2011] NSWCCA 194 Markarian v R (2005) 228 CLR 357 Merrick v R [2017] NSWCCA 264 NCR Australia v Credit Connection [2005] NSWSC 1118 R v De Simoni (1981) 147 CLR 383 R v Visconti [1982] 2 NSWLR 104 R v Yildiz (2006) 160 A Crim R 218 Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 Xiao v R (2018) 96 NSWLR 1
Category:	Sentence
Parties:	Chief Executive of the Office of Environment and Heritage (Prosecutor) Grant Wesley Turnbull (Defendant)
Representation:	Counsel: T Howard SC and M McAuliffe (Prosecutor) D Brezniak (Defendant) Solicitors: Office of Environment and Heritage (Prosecutor) Cole and Butler Solicitors (Defendant)
File Number(s):	2016/151113
Publication restriction:	No