Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V

[2024] NSWLEC 140

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140

Hearing dates:

18 and 21 June 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [162]

Catchwords:

SENTENCE — Environmental offences — Offences under s 12(1) of the Native Vegetation Act 2003 (NSW) — Clearing of native vegetation without consent — Substantial harm caused for land converted to cropland — Clearing of the remainder area of land caused low harm — Foreseeable risk of environmental harm — Offences committed for financial gain — State of mind in committing offences reckless and negligent — Objective seriousness near the mid to low range of seriousness — Subjective circumstances of the defendants — Previous good character — No remorse demonstrated — Guilty pleas — Need for both specific and general deterrence — Determination of appropriate penalties — Fines imposed with moiety to prosecutor — Orders as to costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Criminal Procedure Act 1986 (NSW), s 257B

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Fines Act 1996 (NSW), ss 6, 122

Native Vegetation Act 2003 (NSW), ss 3, 6, 7, 12, 22, 45

Native Vegetation Regulation 2013 (NSW), cl 38

Protection of theEnvironment Administration Act 1991 (NSW), s 6

Threatened Species Conservation Act 1995 (NSW)

Cases Cited:

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141

Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54

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

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 Anthony Guy Murphy [2019] NSWLEC 120

Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241

Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 253

Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159

Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111

Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd [2020] NSWLEC 47

Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314

Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90

Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119

Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31

Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190

Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18

Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42

Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1

R v DP [2019] NSWCCA 55

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131

StephenGarrett v Dennis Charles Williams [2006] NSWLEC 785; (2006) 160 LGERA 115

Turnbull v Chief Executive of the Office of Environment & Heritage [2018] NSWCCA 229

Category:

Sentence

Parties:

In proceedings 2019/00195296; 2019/00195383:
Chief Executive, Office of Environment and Heritage (Prosecutor)
Kurstjens Onroerend Goed AU B.V. (ACN 621 329 299) (Defendant)

In proceedings 2019/00195405:
Chief Executive, Office of Environment and Heritage (Prosecutor)
Gerardus Johannes Jacobus Kurstjens (Defendant)

In proceedings 2019/00195427:
Chief Executive, Office of Environment and Heritage (Prosecutor)
Beefwood 1 Pty Ltd (ACN 156 209 040) (Defendant)

In proceedings 2019/00195470:
Chief Executive, Office of Environment and Heritage (Prosecutor)
Beefwood 2 Pty Ltd (ACN 156 210 847) (Defendant)

Representation:

In proceedings 2019/00195296; 2019/00195383; 2019/00195405; 2019/00195427; 2019/00195470:
Counsel:
J Single SC with Z Shahnawaz (Prosecutor)
R A Coffey (Defendants)

Solicitors:
Department of Planning and the Environment (Prosecutor)
Gadens (Defendants)

File Number(s):

2019/00195296; 2019/00195383; 2019/00195405; 2019/00195427; 2019/00195470

Publication restriction:

Nil

Judgment

Nature of proceedings and outcome

1. “Beefwood Farms”, a grain growing and cattle grazing agribusiness operation in the district of Moree, is operated by Gerardus Johannes Jacobus Kurstjens through three companies controlled by him being, Kurstjens Onroerend Goed AU B.V., Beefwood 1 Pty Ltd, and Beefwood 2 Pty Ltd.

2. On 24 June 2019, the Chief Executive, Office of Environment and Heritage (‘prosecutor’) commenced proceedings by way of five summons against Mr Kurstjens and each of the companies relating to three land clearing events in 2017 contrary to s 12(1) of the Native Vegetation Act 2003 (NSW) (‘NV Act’) at “Beefwood Farms”.

3. On 15 February 2023, the defendant in each matter, Gerardus Johannes Jacobus Kurstjens, Kurstjens Onroerend Goed AU B.V. (in relation to two offences), Beefwood 1 Pty Ltd, and Beefwood 2 Pty Ltd, pleaded guilty to each offence as charged.

4. A sentence hearing has been held and the Court’s task is to determine and impose an appropriate sentence in relation to each offence.

5. For the reasons that follow, I have found that it is appropriate that each defendant be convicted of the offence against s 12 of the NV Act as charged and that each be fined and ordered to pay the prosecutor's costs.

Outline

6. These reasons for judgment are structured as follows. First, I will note the salient background facts, most of which are uncontroversial as a result of a detailed statement of facts agreed between the parties. I will then record the specific offence provisions and the sentencing considerations I am to apply. I will record the further evidence marshalled in my consideration of the detailed written and oral submissions received by the Court – remaining conscious that although there is some overlap between both the sentencing considerations and the facts in relation to each offence, the Court is imposing sentences in relation to five separate offences.

The offences

7. At the time of the clearing events the NV Act was in force. The regulatory scheme created by the NV Act was designed to prevent broadscale clearing (being the clearing of any remnant native vegetation or protected regrowth) and offences against s 12 of the NV Act are strict liability offences. Section 12 provided:

(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 [Environmental Planning and Assessment Act 1979 (NSW)] for a contravention of that Act.

…

8. Mr Kurstjens “operated” and “controlled” the relevant companies that formed Beefwood Farms and is liable by way of s 45 of the NV Act as a director of a company which has offended against s 12 of the NV Act.

9. The defendants have pleaded guilty to five offences against s 12 of the NV Act as follows:

1. Kurstjens Onroerend Goed AU B.V. pleaded guilty to clearing an area of 136ha (referred to in the evidence and submissions as Section 1) on Lot 12 in DP 1163015 and part of Lot 20 in DP 817727 within the area known as “Prairies South”, which clearing occurred from about 9 February 2017 to 30 June 2017 (‘Offence 1’).

2. Kurstjens Onroerend Goed AU B.V. pleaded guilty to clearing an area of 98ha (referred to in the evidence and submissions as Section 2) on Lot 11 in DP 1163015 and part of Lot 20 in DP 817727, which clearing occurred from about 31 July 2017 to 4 August 2017 (‘Offence 2’).

3. Gerardus Johannes Jacobus Kurstjens (being a director of Kurstjens Onroerend Goed AU B.V., a company who committed an offence against s 12 of the NV Act) pleaded guilty to clearing an area of 98ha (referred to in the evidence and submissions as Section 2) on Lot 11 in DP 1163015 and the northern part of Lot 20 in DP 817727, which clearing occurred from about 31 July 2017 to 4 August 2017 (‘Offence 3’).

4. Beefwood 1 Pty Ltd has pleaded guilty to clearing an area of 211ha (referred to in the evidence and submissions as Section 3) on Lot 1 in DP 710734, which clearing occurred from about 6 August 2017 to 16 August 2017 (‘Offence 4’).

5. Beefwood 2 Pty Ltd has pleaded guilty to clearing an area of 211ha (referred to in the evidence and submissions as Section 3) on Lot 1 in DP 710734, which clearing occurred from about 6 August 2017 to 16 August 2017 (‘Offence 5’).

10. In pleading guilty to the five offences the subject of this judgment, each defendant has admitted that the clearing that occurred on the property was of remnant “native vegetation” (as defined in the NV Act), and such clearing was not done in accordance with any development consent granted in accordance with the NV Act or property vegetation plan approved under the NV Act. The defendants admit that they carried out or were legally responsible for the carrying out of the clearing.

Evidence

11. The Court received a statement of agreed facts dated 17 June 2024 (‘Agreed Facts’). The prosecutor relies upon a valuation document titled “Desktop Market Update – 30 July 2016 ‘Prairie South’, Moree NSW” prepared by Lachlan Higgins, Senior Valuer, Rural and Agribusiness of Colliers International; various correspondence between 15 June 2017 and 26 December 2017 involving Wayne Moffit; a Ministerial Order dated 14 November 2014 declaring species of native vegetation as “invasive species” for specified land captured by the NV Act; and the NSW Police Force criminal history of Gerardus J Kurstjens.

12. The defendants read the affidavits of Philip Martin affirmed 14 February 2024; Benjamin Philip Swain sworn 1 March 2024; Maria Mato Elizabeth Kurstjens affirmed 6 March 2024; Dale Foster affirmed 22 May 2024; Maurice William Hayes affirmed 22 May 2024; Jeremy Matthews affirmed 22 May 2024, Gerardus Johannes Jacobus Kurstjens affirmed 20 June 2024; and Pamela Susan Kurstjens-Hawkins affirmed 23 February 2024.

Background

13. Prior to the period of the offences the subject of this judgment, unlawful clearing had taken place on part of the property (in particular on Lot 1 in DP 710734) between about 7 March 2011 and 5 September 2012. Mr Kurstjens and a company he controlled, being Topview Brisbane Pty Ltd, had carried out the clearing, and were both prosecuted in the Land and Environment Court for the unlawful clearing of native vegetation. Following a sentence hearing on 11 August 2016, Sheahan J, on 12 May 2017, ordered the defendants to pay a total of $342,500 in fines and costs whereby, Mr Kurstjens’ share of the $157,500 fine was $118,125: Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54 (‘Topview’).

14. During the period of the offences the subject of this judgment, Kurstjens Onroerend Goed AU B.V., Beefwood 1 Pty Ltd, and Beefwood 2 Pty Ltd (‘defendant companies’), were the registered owners of the land where the unlawful clearing occurred. Mr Kurstjens operated Beefwood Farms through the defendant companies which were controlled by him. He was the director of each of the defendant companies and the person responsible for the operational decisions. At all times, clearing decisions and directions were made by Mr Kurstjens.

15. Since January 2007, Beefwood Farms (through one of the companies controlled by Mr Kurstjens) employed Glen Coughran as a full-time resident farm manager. His role was to manage Beefwood Farms together with the Kurstjens family and his responsibilities included growing crops on the farming land, setting crop rotations, varieties, fertiliser, disease, and pest management on Beefwood Farms.

16. Since 2013, crop advice has been provided by agronomist, Stuart Thorn of MCA Agronomy Pty Ltd. Mr Thorn provided recommendations about nutrition, disease, and weed control, and mostly engaged with Mr Coughran.

17. Periodically between 2013 to 2018, ecological advice including advice on clearing, was provided by Wayne Moffit, environmental consultant for 28 South Environmental.

Sections of clearing within the offences

18. For concision, an overview map highlighting Sections 1, 2 and 3, shows the broad areas that the prosecutor alleges have been cleared is annexed to this judgment as annexure “A”.

Section 1

19. Section 1 is the location of the clearing the subject of proceedings 2017/00196296 (‘Offence 1’) and covers Lot 12 in DP 1163015 and part of Lot 20 in DP 817727 within the area known as “Prairies South”. At the time of the offence, both lots were owned by Kurstjens Onroerend Goed AU B.V., a foreign company registered in Australia.

20. In total, 136ha of remnant native vegetation was cleared in Section 1 comprising 106ha from Lot 12 in DP 1163015 and 30ha from Lot 20 in DP 817727. Out of the 136ha of native vegetation cleared in Section 1, 62.21ha has been converted to cropland.

21. The remnant native vegetation cleared from Section 1 was PCT 55 Belah Woodland and the unlawful clearing removed trees, shrubs, and groundcover. With the exception of the area that was converted to cropland, the clearing did not remove all of the treed areas from Section 1 – some trees were retained.

22. The clearing felled and cleared the following species of native vegetation from Section 1:

1. Three species of tree being, Alectryon oleifolius – Western Rosewood, Atalaya hemiglauca – Whitewood, and Casuarina cristata – Belah.

2. Six species of shrub being, Apophyllum anomalum – Warrior Bush, Enchylaena tomentosa – Ruby Saltbush, Eremophila debilis – Amulla, Rhagodia spinescens – Thorny Saltbush, Sclerolaena calcarata – Redburr, Sclerolaena muricata – Black Rolypoly.

3. Six species of grass and grass-like vegetation being, Enteropogon acicularis – Curly Windmill Grass, Eriochloa crebra – Cup Grass / Tall Cupgrass, Panicum decompositum – Native Millet, Panicum effusum – Hairy Panic, Sporobolus caroli – Fairy Grass, Sporobolus creber – Slender Rat's Tail Grass.

4. 19 species of forb being, Boerhavia domini – Tarvine, Calotis cuneata var. cuneata – Mountain Burr-Daisy, Desmodium campylocaulon – Creeping Tick-trefoil, Einadia nutans subsp. Nutans – Climbing Saltbush, Einadia polygonoides – Knotweed Goosefoot, Einadia trigonos – Fishweed, Euphorbia drummondii – Caustic Weed, Goodenia fascicularis – Mallee Goodenia, Hibiscus trionum – Flower-of-an-hour, Leiocarpa brevicompta – Flat Billy-buttons, Lepidium spp., Minuria integerrima – Smooth Minuria, Oxalis perennans, Portulaca oleracea – Pigweed, Sida corrugata – Corrugated Sida, Sida trichopoda – High Sida, Solanum esuriale – Quena Capparis lasiantha – Nepine, Convolvulus erubescens – Pink Bindweed, Convolvulus graminetinus.

5. And one “Other” species being Amyema cambagei – Needle-leaf Mistletoe.

23. Although the above species were cleared and felled and were harmed or destroyed in Section 1, a diverse and viable plant community assemblage remains and has not been removed, destroyed, or rendered non-viable.

Section 2

24. Section 2 is the location of the clearing the subject of proceedings 2017/00195383 (‘Offence 2’); and 2019/00195405 (‘Offence 3’).

25. At the time of the offences, Lot 11 in DP 1163015 and Lot 20 in DP 817727 were owned by Kurstjens Onroerend Goed AU B.V., with Mr Kurstjens, the director.

26. During the charge period, 98ha of native vegetation was cleared in Section 2 comprising 72ha being cleared in “shed paddock”, an area to the east of the section with 23.52ha converted to cropland, and 26.08ha being cleared in “cow paddock”, an area to the west of the section.

27. The parties agree that the evidence does not permit the Court to hold, beyond reasonable doubt, that the environmental harm resulting from the clearing of Section 2 would not be any greater irrespective of the classification of the plant community type (‘PCT’) in Section 2. The experts agree that native vegetation was cleared and that the clearing involved mostly groundcover with some trees.

28. The clearing felled and cleared the following species of native vegetation from Section 2:

1. Six species of tree being, Acacia pendula – Weeping Myall / Boree, Alectryon oleifolius – Western Rosewood, Atalaya hemiglauca – Whitewood, Casuarina cristata – Belah, Eucalyptus populnea – Bimble Box, Eucalyptus populnea subsp. Poplar – Bimble Box.

2. 12 species of shrub being, Atriplex leptocarpa – Slender-fruit Saltbush, Atriplex semibaccata – Creeping Saltbush, Atriplex vesicaria – Bladder Saltbush, Enchylaena tomentosa – Ruby Saltbush, Eremophila debilis – Amulla, Maireana microphylla – Small-leaf Bluebush, Myoporum montanum – Western Boobialla, Rhagodia spinescens – Thorny Saltbush, Salsola australis, Sclerolaena calcarata – Redburr, Sclerolaena muricata – Black Rolypoly, Vachellia farnesiana – Yellow Mimosa.

3. 13 species of grass and grass-like vegetation being, Chloris truncate – Windmill Grass, Cyperus bifax – Downs Nutgrass, Enneapogon truncates – Bottlewashers, Enteropogon acicularis – Curly Windmill Grass, Eriochloa crebra – Cup Grass / Tall Cupgrass, Juncus flavidus, Panicum decompositum – Native Millet, Panicum effusum – Hairy Panic, Rytidosperma bipartitum – Wallaby Grass, Sorghum leiocladum – Wild Sorghum, Sporobolus caroli – Fairy Grass, Sporobolus creber – Slender Rat's Tail, Sporobolus mitchellii – Rat's Tail Couch.

4. 47 species of forb being, Minuria leptophylla, Neptunia gracilis – Sensitive Plant, Oxalis perennans, Portulaca oleracea – Pigweed, Pycnosorus globosus – Drumsticks, Rhodanthe diffusa subsp. leucactina, Sida corrugate – Corrugated Sida, Sida trichopoda – High Sida, Solanum esuriale – Quena, Stemodia glabella, Trachymene spp. – Trachymene, Tribulus micrococcus – Spineless Caltrop, Wahlenbergia communis – Tufted Bluebell, Marselea drummondii – Common Nardoo, Arthropodium fimbriatum, Asperula conferta – Common Woodruff, Brunoniella australis – Blue Trumpet, Bulbine glauca – Rock Lily, Calotis cuneata var. cuneata – Mountain Burr-Daisy, Calotis cuneifolia – Purple Burr-Daisy, Calotis lappulacea – Yellow Burr-daisy, Calotis scapigera – Tufted Burr-daisy, Calotis spp., Cotula australis – Common Cotula, Cullen tenax – Emu-foot, Daucus glochidiatus – Native Carrot, Desmodium campylocaulon – Creeping Tick-trefoil, Einadia nutans subsp. Nutans – Climbing Saltbush, Einadia polygonoides – Knotweed Goosefoot, Einadia trigonos – Fishweed, Euchiton sphaericus – Star Cudweed, Euphorbia drummondii – Caustic Weed, Geranium solanderi – Native Geranium, Goodenia fascicularis – Mallee Goodenia, Haloragis aspera – Rough Raspwort, Hibiscus brachysiphonius – Low Hibiscus, Leiocarpa brevicompta – Flat Billy-buttons, Leiocarpa websteri, Lotus cruentus – Red-flowered Lotus, Mimulus gracilis – Slender Monkey-flower, Mimulus prostrates – Small Monkey-flower, Minuria integerrima – Smooth Minuria, Capparis lasiantha – Nepine, Convolvulus erubescens – Pink Bindweed, Grona varians – Slender Tick-trefoil, Glycine latifolia, Rhynchosia minima.

1. And one “Other” species being Amyema lucasii – Yellow-flowered Mistletoe.

29. Although the above species were cleared and felled and were harmed or destroyed in Section 2, a diverse and viable plant community assemblage remains and has not been removed, destroyed, or rendered non-viable.

Section 3 (highlighted in blue)

30. Section 3 is the location of the clearing the subject of proceedings 2017/00195427 (‘Offence 4’); and 2017/00195470 (‘Offence 5’).

31. At the time of the offences, Beefwood 1 Pty Ltd and Beefwood 2 Pty Ltd owned Lot 1 in DP 710734 as tenants in common, with Beefwood 1 owning a two-thirds share and Beefwood 2 owning a one-third share, with Mr Kurstjens, the director.

32. During the charge period, 211ha of native vegetation was cleared in Section 3. The clearing involved mostly groundcover with some trees and the native vegetation cleared was PCT 55 Belah Woodland in various conditions.

33. The clearing felled and cleared the following species of native vegetation from Section 3:

1. Two species of tree being, Alectryon oleifolius – Western Rosewood, and Casuarina cristata – Belah.

2. Six species of shrub being, Atriplex leptocarpa – Slender-fruit Saltbush, Enchylaena tomentosa – Ruby Saltbush, Geijera parviflora – Wilga, Rhagodia spinescens – Thorny Saltbush, Sclerolaena calcarata – Redburr, Sclerolaena muricata – Black Rolypoly.

3. 10 species of grass and grass-like vegetation being, Aristida ramose – Purple Wiregrass, Cyperus bifax – Downs Nutgrass, Digitaria divaricatissima – Umbrella Grass, Enteropogon acicularis – Curly Windmill Grass, Eriochloa crebra – Cup Grass / Tall Cupgrass, Juncus flavidus, Panicum effusum – Hairy Panic, Paspalidium caespitosum – Brigalow Grass, Sporobolus caroli – Fairy Grass, Sporobolus creber – Slender Rat's Tail Grass.

4. 24 species of forb being, Sida corrugate – Corrugated Sida, Sida trichopoda – High Sida, Solanum esuriale – Quena, Swainsona luteola – Dwarf Darling-pea, Tetragonia tetragonioides – New Zealand Spinach, Wahlenbergia communis – Tufted Bluebell, Marselea drummondii – Common Nardoo, Calotis cuneata var. cuneata – Mountain Burr-Daisy, Cotula australis – Common Cotula, Cullen tenax – Emu-foot, Desmodium campylocaulon – Creeping Tick-trefoil, Einadia polygonoides – Knotweed Goosefoot, Erodium crinitum – Blue Crowfoot, Goodenia fascicularis – Mallee Goodenia, Haloragis aspera – Rough Raspwort, Leiocarpa brevicompta – Flat Billy-buttons, Lobelia concolor – Poison Pratia, Mimulus gracilis – Slender Monkey-flower, Minuria integerrima – Smooth Minuria, Minuria leptophylla, Oxalis perennans, Portulaca oleracea – Pigweed, Rumex brownie – Swamp Dock, Capparis lasiantha – Nepine.

5. And one “Other” species being Amyema cambagei – Needle-leaf Mistletoe.

34. Again, while the above species were cleared and felled and were harmed or destroyed in Section 3, a diverse and viable plant community assemblage remains and has not been removed, destroyed, or rendered non-viable.

The clearing

35. The clearing events were not carried out in accordance with any development consent and there was no authority or approval to clear under any Act. Further, the clearing was not carried out in accordance with a property vegetation plan, and the clearing was not clearing of regrowth vegetation only.

36. Section 22 of the NV Act was in force at the time of the offences which permitted clearing for routine agricultural management activities. Under the Native Vegetation Regulation 2013 (NSW) (‘NV Regulation’), certain activities were declared routine agricultural management activities for the purpose of the NV Act. Clause 38 of the NV Regulation provided that the Minister could declare by order, any species of native vegetation to be an “invasive species” for specified land and permit the clearing of such species as “routine agricultural management activity” subject to specified conditions.

37. Pursuant to cl 38 of the NV Regulation, on 14 November 2014, the Minister at the time, by Ministerial Order, declared mimosa (Vachellia farnesiana) to be an invasive native species for the Moree Local Land Services area (the area where the subject offences occurred) (‘Ministerial Order’).

38. The clearing in each of Section 1, Section 2 and Section 3 was not carried out in accordance with the Ministerial Order. As a result, the clearing was not carried out for routine agricultural management activities.

Sentencing considerations

39. The purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is a need for the Court through the sentence it imposes to denounce unlawful conduct; to hold the offender accountable for its actions and to ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291 at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 (‘Plath v Rawson’) at [168].

40. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) sets out the purposes of sentencing and relevantly provides:

3A   Purposes of sentencing

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

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

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

…

(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.

41. Section 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offender, including relevant factors in aggravation under s 21(A)(2) and relevant factors in mitigation under s 21A(3). Relevant to the submissions made in these proceedings, s 21A provides:

…

(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,

…

(o)   the offence was committed for financial gain,

…

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

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

…

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

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

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

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

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

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

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

(k)   a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

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

…

42. Before considering the various sentencing factors and remaining conscious that there are five separate offences involving four defendants in relation to three different clearing events before the Court for sentencing, I note four matters.

43. First, the Court’s task is to determine the sentence that should be imposed on each of Mr Kurstjens and the defendant companies in relation to the relevant offences. In arriving at the appropriate sentences, the Court may not take into account facts adverse to the interests of each of the defendants unless those facts have been established beyond reasonable doubt. However, if there are circumstances in favour of the defendants that the Court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

44. Second, the appropriate sentence in relation to each offence needs to reflect, and be proportionate to, the objective seriousness of each offence and the subjective and mitigating circumstances of the defendants.

45. Third, the appropriate sentence in relation to each offence is to be arrived at by an instinctive or intuitive synthesis of all the relevant objective and subjective circumstances: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37]-[39] (Gleeson CJ, Gummow, Hayne, Callinan JJ) at [70] (McHugh J) (‘Markarian’).

46. Fourth, in relation to offences involving clearing of native vegetation specifically, in Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 (‘Rae’), Preston CJ of LEC stated at [13]:

“…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.”

Objective circumstances of the offences

47. The primary factor to be considered in sentencing is the objective gravity or seriousness of the offence which fixes both the upper and lower limits of proportionate punishment – the upper, because a sentence should never exceed that which can be identified as proportionate to the gravity of the particular offence; and the lower, because allowance for the subjective factors 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; [2006] NSWLEC 419 (‘Waste Recycling’) at [139]-[140].

48. The objective circumstances relevant to each offence are: first, the nature of the offence; second, the maximum penalty; third, the environmental harm; fourth, the foreseeability of the risk of environmental harm; fifth, the practical measures to prevent environmental harm; sixth, the control over the causes giving rise to the offence; seventh, the defendant’s intentions in committing the offence; and eighth, the defendant’s financial gain from committing the offence: Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [51].

Nature of the offences

49. The extent to which a defendant’s conduct offends against the legislative objectives expressed or inherent in the specific offence provision is fundamental in the assessment of objective seriousness for environmental offences: StephenGarrett v Dennis Charles Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89]; Rae at [15].

50. The objects contained in s 3 of the NV Act identify the purpose of creating the offence against s 12 of the NV Act with which the defendants have been charged. The objects 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.

51. I find, that each defendant’s conduct in each offence did not provide for, encourage or promote the management of native vegetation (and that when the land in Sections 1 and 2 was converted to cropland, it was done in a way that was akin to broadscale clearing) in circumstances where no environmental impact assessment was conducted prior to the clearing and no advice was sought from any expert as to the clearing. As such, the conduct was contrary to the objectives of the NV Act, the principles of ecologically sustainable development, and undermined the integrity of the regulatory system – all of which are objectively serious.

Maximum penalty

52. Each offence against the NV Act carries a maximum penalty in the amount of $1,100,000.

53. The maximum penalty for the statutory offence reflects the public expression by Parliament of the seriousness of an offence and provides a “sentencing yardstick” for the offences before the Court: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]; Markarian at [31].

54. The sentencing court is “to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category”: R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].

Harm to the environment

55. For the three sections of clearing, there is uncertainty about the number of times areas identified as having “residual native vegetation” had been ploughed since 16 August 2017 and, this uncertainty affects the assessment of harm as areas ploughed more frequently are likely to have more restricted community vegetation assemblages.

56. The parties agree that with the exception of the areas converted to cropland, cumulative harm is difficult to determine because the experts did not know the nature and extent of approved, unapproved and unexplained clearing of native vegetation on the defendants’ landholding since the offending.

57. The parties agree that “Extinction debt”, a term used to describe the ongoing loss of species from fragmented landscapes after the original loss and fragmentation of habitat, may be an ongoing influence on the land. Losses may also result from habitat changes that are unrelated to fragmentation, which reduce breeding success and recruitment of specific species.

58. The parties agree that the clearing may have impacted the following threatened species, which were potentially present in each of the cleared areas:

Name	Scientific	TSC Act status	EPBC Act status	Occurrence
Slender Darling Pea	Swainsona murrayana	Vulnerable	Vulnerable	Likely to occur
Cyperus conicus	Endangered	Potential to occur
Creeping Tick- Trefoil	Desmodium campylocaulon	Endangered	Found in all sections
Blue Grass	Dichanthium setosum	Vulnerable	Vulnerable	Potential to occur
Finger Panic Grass	Digitaria porrecta	Endangered	Potential to occur, but threats to species are mainly associated with agriculture
Eastern Pygmy Possum	Cercartetus nanus	Vulnerable	Potential to occur
Koala	Phascolarctos cinereus	Vulnerable	Vulnerable	Likely to occur
Stripe-Faced Dunnart	Sminthopsis macroura	Vulnerable	Potential to occur
Five-Clawed Worm Skink	Anomalopus mackayi	Endangered	Vulnerable	Potential to occur
Pale-Headed Snake	Hoplocephalus bitorquatus	Vulnerable	Vulnerable	Potential to occur
Grey-Crowned Babbler	Pomatostomus temporalis temporalis	Vulnerable	Found in Section 2 East and West
Speckled Warbler	Chthonicola sagittata	Vulnerable	Potential to occur
Australian Painted Snipe	Rostratula australis	Endangered	Endangered	Potential to occur
Diamond Firetail	Stagonopleura guttata	Vulnerable	Potential to occur
Masked Owl	Tyto novaehollandiae	Vulnerable	Potential to occur
Eastern Grass Owl	Tyto longimembris	Vulnerable	Potential to occur, but no known habitat mapped
Little Eagle	Hieraaetus morphnoides	Vulnerable	Potential to occur, although likely to only utilise the site as part of an extended foraging range
Scarlet Robin	Petroica boodang	Vulnerable	Potential to occur - no mapped occurrences at site but records from 5km away
Spotted Harrier	Circus assimilis	Vulnerable	Potential to occur
Varied Sittella	Daphoenositta chrysoptera	Vulnerable	Potential to occur
Dusky Woodswallow	Artamus cyanopterus cyanopterus	Vulnerable	Potential to occur
Australian Bustard	Ardeotis australis	Endangered	Potential to occur - in the predicted range
Bush Stone- Curlew	Burhinus grallarius	Endangered	Potential to occur - in the predicted range
South Eastern Glossy Black Cockatoo	Calyptorhynchus lathami	Vulnerable	Vulnerable	Potential to occur
Pied Honeyeater	Certhionyx variegatus	Vulnerable	Known to occur
Grey Falcon	Falco hypoleucos	Endangered	Potential to occur - in the predicted range
Painted Honeyeater	Grantiella picta	Vulnerable	Vulnerable	Found in trees adjacent to Section 1
Square-Tailed Kite	Lophoicinia isura	Vulnerable	Potential to occur
Hooded Robin	Melanodryas cucullate cucullate	Vulnerable	Potential to occur
Black-Chinned Honeyeater	Melithreptus gularis gularis	Vulnerable	Potential to occur
Turquoise Parrot	Neophema pulchella	Vulnerable	Potential to occur
Barking Owl	Ninox connivens	Vulnerable	Potential to occur
Corben's Long- eared Bat	Nyctophilus corbeni	Vulnerable	Vulnerable	Potential to occur, within the OEH species profile predicted range
Yellow-Bellied Sheath-Tailed Bat	Saccolaimus flaviventris	Vulnerable	Found in woodlands adjacent to all cleared areas Likely to only utilise the site as part of an extended foraging range as there is no roosting habitat on site
Little Pied Bat	Chalinolobus picatus	Vulnerable	Found in woodlands adjacent to all cleared areas Likely to only utilise the site as part of an extended foraging range as there is no roosting habitat on site
Northern Free- Tailed Bat	Ozimpos lumsdenae	Vulnerable	Found in woodlands adjacent to all cleared areas Likely to only utilise the site as part of an extended foraging range as there is no roosting habitat on site

59. Further, the parties agree on the potential impacts to specific species in each section as follows:

Section 1

60. Within Section 1, 62.21ha was cleared and cropped to remove all native vegetation. This area that was converted to cropland in Section 1 has had a permanent loss of its biodiversity values. Areas converted from native vegetation to cropping will have resulted in a loss of habitat for native flora and fauna, including some threatened species.

61. In the remainder of the area of Section 1 (being 73.8ha) which was cleared, while many trees were removed, the woodland community still remains, albeit in a much more open structure. Thinning or canopy removal affects abiotic conditions such as sunlight and shade and physical elements such as tree hollows, leaf litter and availability of food is likely to have impacted native species.

62. The clearing of trees was largely confined to clearing of Belah trees in Section 1. A small number of Rosewood and Poplar Box trees may also have been cleared. Tree hollows would have been present in Section 1 and while Rosewood and Poplar Box have abundant hollows, Belah does not form hollows easily, so it is likely that some, but not an abundance of, trees with hollows were cleared.

63. Trees have been cleared in Section 1 from the following size classes (diameter at breast height (‘dbh’)): less than 5cm, 5-9cm, 10-19cm, 20-29cm, 30-49cm and 50-79cm. Approximately 25% of the trees cleared were large trees, which for PCT 55, are any trees greater than 30cm dbh. The impact to PCT55 in Section 1 resulted in cumulative habitat loss and is likely to have removed habitat for some threatened species.

60. The area of greenspace (or patch size and distance between patches) is important for local occurrences of a viable local population of threatened species. Reducing either has the potential to cause ecological harm.

61. Creeping Tick Treefoil (Desmodium campylocaulon) is a species of forb present in Sections 1 to 3 that is listed as endangered under the Threatened Species Conservation Act1995 (NSW) (‘TSC Act’). The species has likely been lost from the land converted to cropland in Sections 1 to 3. As the species regrows after disturbance, it is likely to have regenerated in the remainder of the area following clearing and rainfall.

62. Belson's Panic (Homopholis belsonii) is listed as endangered under the TSC Act and vulnerable under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). It was not found during surveys of the section but could potentially occur in areas of Belah Woodland. It has a patchy distribution and is not abundant in farmlands however if the species occurred in the northern portion of Section 1 that was converted to cropland, it would likely have been removed from that area.

63. Glossy Black Cockatoo (Calyptorhynchus lathami lathami) is listed as vulnerable under the TSC Act. The species is known to occur in the wider locality and some feeding and resting habitats are present in Belah Woodland in Section 1. The clearing likely resulted in the loss of potential feeding and resting habitat within cleared areas, with permanent loss in the area converted to cropland. There was a reduction in the availability of feeding and shade resources in the uncleared areas in Section 1.

64. Hooded Robin (Melanodryas cucullate cucullate) is listed as vulnerable under the TSC Act. The species is known to occur in the wider locality and some feeding and resting habitats are present in woodland in each of Sections 1, 2 and 3. The clearing resulted in the loss of potential habitats in all sections, and permanent loss in the area in Sections 1 and 2 which were converted to cropland. The clearing resulted in the reduction of the availability of feeding and shade resources in the uncleared areas.

65. Grey-crowned Babbler (Pomatostomus temporalis temporalis) is listed as vulnerable under the TSC Act. This species was found on and around Sections 1 and 2. It is a relatively adaptable species that persists where woodland trees remain. It is unlikely to have been significantly affected in areas not converted to cropland but would have had its habitat values removed in the area converted to cropland.

66. Painted Honeyeater (Grantiella picta) is listed as vulnerable under the TSC Act. This species of honeyeater was observed around the locality, including within trees close to Section 1, where it feeds in forms of mistletoe that occur in Belah and Weeping Myall. The species may have lost habitat within trees that were cleared from the northern portion of Section 1. There is therefore a likelihood that the species lost habitats across Section 1, especially in the areas of the northern portion of Section 1 where clearing occurred, and land was converted to cropland. This contributed to a cumulative loss of habitat for the species in the locality, although other such habitats remain in the southern portion of Section 1, surrounding roadside areas, in trees around Section 2, and in Belah trees within Section 3.

67. Five-clawed Worm Skink (Anomalopus Mackayi) is listed as endangered under the TSC Act and vulnerable under the EPBC Act. This small burrowing skink can live in association with cracking clay soils which occur in all three sections. It is a highly cryptic species which is known to occur in the district and some habitats in Sections 1 to 3 contained soils of the appropriate type. Clearing of Belah Woodland and the conversion of land to cropland in Section 1 may have removed habitat for the species. There has been a potential impact to the habitat of this species because of the clearing, particularly in the land converted to cropland in the north of Section 1 and during the unknown times uncleared areas were ploughed. Further, disturbance of native vegetation within Sections 2 and 3 where cracking clay soils occur may have impacted habitat and possibly harmed or eliminated fauna. Since there has been widespread regeneration of ground stratum habitats in each of Sections 1, 2 and 3 following rainfall, habitats would remain in these sections for the skink, but it is unknown if the skink occurred before the clearing took place, and it is unknown how abundant it would have been.

68. Further, the clearing in Section 1 resulted in a change from dense to open woodland which changed the species assemblage of some threatened species. For example, larger insectivorous bats can use more open areas including grasslands as they have a wider wingspan and larger bodies to emit sound and navigate. These include Yellow-bellied Sheath tailed-bat (Saccolaimus flaviventris) (listed as vulnerable under the TSC Act) and White Striped Sheath-tailed Bat (Austronomus australis) recorded on Beefwood Farms, and Northern Free-Tailed Bat (Ozimpos lumsdenae). Smaller insectivorous bats such as the Little Pied Bat (Chalinolobus gouldii), listed as vulnerable under the TSC Act (and recorded on Beefwood Farms) can only “see” in treed areas as they have small bodies and little voices and cannot see where the gaps between the trees are greater than 50m.

69. Threatened woodland birds are similarly suspectable to changes in community assemblages (including higher risk of predation, reduced feeding, resting resources, and ability to recruit or disperse), cannot use cropland, and may be affected by changes in habitat complexity in the uncleared areas.

70. The parties agree, and I find, first, that the environmental harm from the clearing of 62.21ha of land which was converted to cropland has been substantial; and second, the environmental harm from the clearing of the remainder (being 73.8ha) of Section 1 has been low.

Section 2

75. Within Section 2, 23.52ha was cleared to remove all native vegetation and converted to cropland. The area that was converted to cropland has had a permanent loss of its biodiversity values. All areas converted from native vegetation to cropland resulted in a loss of habitat for native flora and fauna, including some threatened species.

76. In the remainder of the area of Section 2 which was cleared (being 74.48ha), tree clearing was extremely limited.

77. In many cases, PCTs in NSW have overlapping species composition within the PCT descriptions. In the case of Section 2, many species from Belah Woodland, Weeping Myall Woodland, Poplar Box Woodland and natural grasslands overlap. Notwithstanding the identity of the PCT cleared, most of the vegetation within Section 2 was native vegetation for the purposes of the NV Act. Some vegetation communities mapped in Section 2 were consistent with threatened ecological communities listed under relevant NSW legislation.

78. Creeping Tick Treefoil (Desmodium campylocaulon) occurred in Section 2 and was affected as described at [65] above.

79. White-fronted Chat (Epthianura Albifrons) is listed as vulnerable under the TSC Act. The species is known to occur in the wider locality and some feeding and resting habitats are present in woodland in Sections 1, 2 and 3. The clearing resulted in the loss of potential habitat in open country with low vegetation in Sections 2 and 3, with permanent loss in the areas converted to cropland. There has been a reduction on the availability of resources in the uncleared areas.

80. Hooded Robin (Melanodryas cucullate cucullate) is listed as vulnerable under the TSC Act. The species occurred in Section 2 and was affected as described at [68] above.

81. Grey-crowned Babbler (Pomatostomus temporalis temporalis) is listed as vulnerable under the TSC Act. The species occurred in Section 2 and was affected as described at [69] above.

82. Five-clawed Worm Skink (Anomalopus Mackayi) is listed as endangered under the TSC Act. The species occurred in Section 2 and was affected as described at [71] above.

83. Koala (Phascolarctos cinereus) is listed as vulnerable under both the TSC Act and the EPBC Act. Koala scats were found in Poplar Box around Section 2 in 2017. However, repeated surveys in this area by Cumberland Ecology in 2023 did not find evidence of Koala. While Sections 1 to 3 subject to the clearing lacked feed trees for Koala, Poplar Box, which is favoured by Koalas, occurs beside Section 2 east and west and Belah is recognised as a koala-use tree in this area. Removal of Belah may have removed some shelter habitat for Koala moving across the landscape. This may have contributed to cumulative loss of habitat for the species.

84. The parties agree, and I find, first, that the environmental harm from the clearing of the 23.52ha which has been converted to cropland has been substantial; and second, the environmental harm from the clearing of the remainder (being 74.48ha) of Section 2 has been low.

Section 3

85. Within Section 3, 211ha of native vegetation was cleared. Tree clearing was extremely limited, the clearing involved mostly groundcover. Cultivation occurred in Section 3, but it is unclear how many times the area was ploughed, and when the ploughing ceased. If native vegetation will now be retained in perpetuity, the clearing in Section 3 is likely to result in negligible harm to the environment.

86. Creeping Tick Treefoil (Desmodium campylocaulon) is listed as endangered under the TSC Act. The species occurred in Section 3 and was affected as described at [65] above.

87. Glossy Black Cockatoo (Calyptorhynchus lathami lathami) is listed as vulnerable under the TSC Act. The species is known to occur in the wider locality and some feeding and resting habitats are present in Belah Woodland in Section 3. There was negligible impact to potential habitats in Section 3 given the very little change to habitat complexity and the lack of tree clearing in this section.

88. White-fronted Chat (Epthianura Albifrons) is listed as vulnerable under the TSC Act. The species occurred in Section 3 and was affected as described at [79] above.

89. Hooded Robin (Melanodryas cucullate cucullate) is listed as vulnerable under the TSC Act. The species occurred in Section 3 and was affected as described at [68] above.

90. Five-clawed Worm Skink (Anomalopus Mackayi) is listed as endangered under the TSC Act. The species occurred in Section 3 and was affected as described at [71] above.

91. The parties agree, and I find, that the environmental harm from the clearing of Section 3 (being 211ha) has been low.

Conclusion on harm to the environment

92. 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].

93. In relation to Section 1 and Section 2 (Offences 1 to 3), although having two different classifications of environmental harm in the same section of land the subject of the same charge makes for a more complicated sentencing exercise, I have not taken an arithmetic approach, and have taken this fact into account by way of instinctive synthesis as part of the assessment of the objective seriousness of each offence.

94. Taking into account the evidence and the various matters that have been agreed between the parties and the fact that I consider that harmfulness needs to not only be considered in terms of actual harm but also that potential harm or risk of harm should be taken into account, I find beyond reasonable doubt:

1. For Offence 1: first, that the environmental harm from the clearing of 62.21ha which has been converted to cropland has been substantial; and second, that the environmental harm from the clearing of the remainder of Section 1 has been low;

2. For Offence 2: first, that the environmental harm from the clearing of 23.52ha which has been converted to cropland has been substantial; and second, that the environmental harm from the clearing of the remainder of Section 2 has been low;

3. For Offence 3: first, that the environmental harm from the clearing of the 23.52ha which has been converted to cropland has been substantial; and second, that the environmental harm from the clearing of the remainder of Section 2 has been low;

4. For Offence 4: the environmental harm from the clearing of Section 3 has been low; and

5. For Offence 5: the environmental harm from the clearing of Section 3 has been low.

Foreseeability of the risk of harm

95. The test for foreseeability was stated by the Court of Criminal Appeal in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 at [130]-[131]:

“[130] …The question that must be asked is to what extent (if any) a reasonable person in the position of the offender could have foreseen the harm caused or likely to be caused by the commission of the offence?

[131] The position of the offender involves a consideration of all the available evidence including what the offender actually knew or ought reasonably to have known…”

96. Having regard to the extent of the native vegetation cleared in each offence, I find that a reasonable person would foresee the risk of harm caused, or likely to be caused, by each clearing event. As such, I find, accepting the prosecutor’s submission, that in relation to each offence, it was foreseeable, and should have been foreseen by the defendants that clearing vegetation would cause harm to the environment.

Practical measures to prevent harm and control over the causes giving rise to the offences

97. I find that the defendants had complete control over the causes that gave rise to the offences and that it was Mr Kurstjens’ decision to undertake the clearing work. As he was the person who operates and controls the companies, I also find that the defendant companies were also in complete control over the clearing work.

98. While I accept that there was some difficulty faced by the defendants in obtaining assistance from the Local Land Services because of concerns of the Local Land Services over investigations in relation to the clearing of native vegetation on parts of the land (later determined in Topview), I find that there were practical measures available in relation to each offence that could have been taken by each defendant to prevent the harm. In particular, the defendants could have refrained from undertaking the clearing unless and until a development consent or an approved property vegetation plan had been obtained authorising the clearing or, at least, consulting experts (such as Mr Moffit), who had provided ecological advice to the defendants between 2013 and 2018.

Financial gain (reason for committing the offences)

99. The commission of an offence for financial gain can be taken into account as an aggravating factor under s 21A(2)(o) of the Sentencing Act if proven beyond reasonable doubt. Alternatively, if financial gain is relevant to the objective circumstances of the offending, if not found to be an aggravating factor, it cannot also be taken into account as part of the objective circumstances of the offending.

100. In considering the objective seriousness of each of the offences, it is sufficient for the Court to find that the clearing of native vegetation was one of the reasons for the clearing – it does not need to be the sole reason.

101. To the extent that the defendants submit otherwise, I do not consider that financial gain is an inherent characteristic of an offence against s 12 of the NV Act and I respectfully adopt the comments of Preston CJ of LEC in Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 at [46] and [49]:

“[46] …Whilst the motive for clearing native vegetation might often be financial gain, that does not make financial gain an inherent characteristic of the offence against s 12 of the NV Act. Financial gain is neither an element of the offence against s 12 of the NV Act nor an inherent characteristic of that kind of offence. For something to be an inherent characteristic of an offence, it needs to be “always present as a permanent and essential attribute of the thing under consideration”: Couloumbis v R [2012] NSWCCA 264 at [31] cited in Lee v R at [56].

…

[49] For the offence against s 12 of the NV Act, it is important to note at the outset that the offence is not simply clearing native vegetation, it is doing so without the authority of a development consent granted in accordance with the NV Act or a property vegetation plan approved under the NV Act. Whilst the motive for clearing native vegetation may often be financial gain, that motive does not drive committing the offence of clearing native vegetation without first obtaining the authority of a development consent or property vegetation plan for the clearing. Financial gain is, therefore, not an inherent characteristic of the offence of clearing native vegetation without or not in accordance with the authority of a development consent or property vegetation plan.”

102. The area converted to cropland in Section 1 was 62.21ha of the total of 136ha that was cleared or about 45% of the area. In Section 2, 23.52ha of the total of 98ha that was cleared was converted to cropland or about 24% of the area.

103. I accept the prosecutor’s submission that Mr Kurstjens was a director of Kurstjens Onroerend Goed AU B.V. when the Colliers International valuation was received. Further, this valuation was received prior to the clearing the subject of the offences and therefore it was known to the defendants that land converted from grazing to cropland would be more valuable. The inescapable inference is that the clearing (at least in relation to the areas that were later converted to cropland) was for financial gain. The Colliers advice covered the area of land the subject of Offence 1, and further, Mr Kurstjens was a director and was aware of the advice at the time of both the clearing in relation to all offences and the conversion of the land to cropland in Section 1 and Section 2. I find beyond reasonable doubt that that clearing in relation to Offence 1, Offence 2 and Offence 3 was undertaken for financial gain.

State of mind in committing the offences

104. An offence against s 12 of the NV is one of strict liability. No mental state is required for proof of its commission. However, a strict liability offence that is committed intentionally, recklessly, or negligently will be objectively more serious than one not so committed: Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137 at [32] citing Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123].

105. As explained by Preston CJ of LEC in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 at [51]-[53]:

“[51] A critical difference between the two mental states is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).

[52] Recklessness refers to the state of mind of the offender who, in clearing native vegetation, is aware of a risk that the particular consequence or circumstance, that the clearing will be done except in accordance with such lawful authority, is likely to result. The offender is reckless when he or she has knowledge or foresight of the likelihood of the consequence or circumstance occurring. The word “likely” conveys “the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent”: Boughey v The Queen (1986) 161 CLR 10 at 21.

[53] Negligence, in contrast, assesses the offender’s conduct not be reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances. In the context of s 12(1) of the NV Act, negligence refers to whether a hypothetical reasonable person in the position of the offender would have known or foreseen that the consequence or circumstance, that the clearing will be done except in accordance with the lawful authority of a development consent or a property vegetation plan, is likely to result. The issue is to be decided on an objective basis. What is to be considered is whether the risk of this consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.”

106. Mr Kurstjens is the director of the defendant companies and was responsible for all decisions related to the clearing. The defendant companies are taken to have the state of mind of Mr Kurstjens.

107. In relation to the areas that were converted to cropland, Mr Kurstjens knew development consent was required, and that he did not have consent. Mr Kurstjens could not have mistakenly believed that relying on the Ministerial Order for Invasive Native Species permitted him to rely on self-assessment as to whether clearing could be undertaken to change the use of the land. This is the basis for the more serious finding of recklessness.

108. The parties agree that in Section 1 (Offence 1), the clearing of 62.21ha was reckless and the clearing of the remaining 73.8ha was negligent. For Section 2 (Offence 2 and Offence 3), the parties agree that 23.52ha of clearing was reckless and the remaining 74.48ha was negligent. For Section 3 (Offence 4 and Offence 5), that the clearing of 211ha was negligent.

109. The parties acknowledged in written submissions that having two different states of mind, and as addressed above, two different classifications of environmental harm in the same section of land the subject of one charge makes for a more complicated sentencing exercise. The prosecutor submits, and I accept, that all that is required is the application of instinctive synthesis and that the various states of mind and environmental harm are assessed as part of the objective seriousness of each offence.

110. For the reasons above, and noting the agreement between the parties, I find beyond reasonable doubt that the offences were committed with the following mental states:

1. Offence 1: the clearing of 62.21ha in Section 1 and its conversion to cropland was reckless; the clearing of the remaining area (73.8ha) was negligent;

2. Offences 2 and 3: the clearing of 23.52ha in Section 2 and its conversion to cropland was reckless; the clearing of the remaining area (74.48ha) was negligent; and

3. Offences 5 and 6: the clearing of 211ha in Section 3 was negligent.

Conclusion on objective seriousness

111. Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it “…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender”, I consider that it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42]; Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [279]; Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42

112. Given the nature of the offences and the extent to which each of the offences offended the statutory objects, the high maximum penalty for the offences, the control over the causes that gave rise to the offences, the heightened state of mind from negligence – recklessness, and the environmental harm that flowed, I find that the objective seriousness of each of the offences is:

1. Offence 1 – the clearing of Section 1: mid-range objective seriousness;

2. Offence 2 – the clearing of Section 2: mid-range objective seriousness;

3. Offence 3 – the clearing of Section 2: mid-range objective seriousness;

4. Offence 4 – the clearing of Section 3: low objective seriousness; and

5. Offence 5 – the clearing of Section 3: low objective seriousness.

Subjective circumstances

Lack of prior convictions

113. None of the three defendant companies has a criminal history. However, as noted at [13]-[14] above, part of the land, specifically Lot 1 in DP 710734 (the land the subject of Offence 4 and Offence 5), has previously been cleared of native vegetation, whereby in Topview, Mr Kurstjens and his company, Topview Brisbane Pty Ltd pleaded guilty to, and were convicted of, offences against s 12 of the NV Act for unlawful clearing of native vegetation in 2016.

114. I note that the clearing in Topview involved the same landholding and companies in the same group of companies. Whilst it did not involve the same land as the offence with which Mr Kurstjens is charged (Offence 3) in these proceedings, it did involve the same land (Lot 1 in DP 710734) which is the subject of Offence 4 and Offence 5.

115. As noted in [28] above, the clearing in Section 2 involved four of the same types of native vegetation listed in the Topview summons to which Mr Kurstjens pleaded guilty, namely Alectryon oleifolius (Rosewood); Casuarina cristata (Belah); Vachellia farnesiana (mimosa bush); and Rhagodia spinescens (Thorny Saltbush).

116. The prosecutor submits, and I accept, that while the prior conviction is not being relied upon as an aggravating factor in relation to Mr Kurstjens pursuant to s 21A(2)(d) of the Sentencing Act, it is relevant to knowledge of the offending, state of mind, and the need for specific deterrence.

Previous good character

117. Pursuant to s 21A(3)(f) of the Sentencing Act, in determining an appropriate sentence the Court can take into account, is whether the defendant was a person of good character.

118. In Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18 (which concerned an offence contrary to s 91G of the Water Management Act 2000 (NSW)), Pritchard J gave less weight to good character “having regard to the nature of the offence and the importance of general deterrence in sentencing for the offence”. Her Honour cited Plath v Rawson at [148] and Environment Protection Authority v Gammasonics Institute for Medical Research Pty Ltd [2019] NSWLEC 190 at [63]-[64] as authorities in support of this approach.

119. There is no evidence that the defendant companies are of good character.

120. Pamela Kurstjens-Hawkins, Mr Kurstjens’ wife, gives evidence as to Mr Kurstjens’ background including the purchase of various farms in Australia since 2003, his “lifelong passion for new technology in farm machinery”, his motivation to address “environmental concerns”, and the manner in which he has operated various landholdings. She further deposes that Beefwood Farms contributes to the food supply of Australians and that they use innovative technology and promote the development of new farm technology.

121. Maria Kurstjens, Mr Kurstjens’ daughter, gives evidence that Mr Kurstjens was a “hardworking farmer”, and after the Topview case, was careful to do only what he was allowed to farm and, at 79 years of age, is respected by current and former employees, colleagues, and the farming community. While she speaks of steps her father takes to look after the land in regard to weed management, there is no evidence that any of the defendants retained any expert to assist them in learning from the experience of Topview, despite working closely with the expert, Mr Moffit. Further, as the prosecutor submits, despite being a director of Beefwood 1 Pty Ltd and Beefwood 2 Pty Ltd (whose offences concern the same land as involved in Topview), Ms Kurstjens does not speak to what those companies have done in relation to the offending, or what she, as a director, has done.

122. As noted above, there is no evidence as to good corporate character of the defendant companies. I accept the prosecutor’s submission that the references to research and development in the affidavit of Ms Kurstjens-Hawkins at pars (19) and (23), and the affidavit of Ms Kurstjens at pars (9)-(10), is general and that no conclusion can be drawn that the research has benefited the wider community other than been of commercial benefit to Beefwood Farms. I am not satisfied, on the balance of probabilities, as to the good corporate character of the defendant companies.

123. The affidavits of Mr Hayes, Mr Matthews, and Mr Forster, speak to the character and reputation of Mr Kurstjens, and not the defendant companies including that Mr Kurstjens is an honest and reliable person who conducts his business “with very high principles”, is “community minded”, and is “an excellent farmer”, with a “genuine desire to make a positive contribution to the industry”.

124. The prosecutor submits that the Court would derive little assistance determining the character of Mr Kurstjens from persons who have a business relationship with Mr Kurstjens and, while each affidavit speaks of Mr Kurstjens’ contributions to the farming and agricultural sector, this must be weighed against his now second conviction for clearing native vegetation. Despite this, I find that, apart from the prior offence, Mr Kurstjens is of prior good character.

Remorse for the offences

125. Genuine remorse is a further mitigating factor in determining an appropriate sentence however s 21A(3)(i) of the Sentencing Act provides that remorse shown by an offender for an offence will only be a mitigating factor if the defendant has provided evidence that it has accepted responsibility for its actions and has acknowledged the damage caused by the actions. However, until the receipt of Mr Kurstjens’ affidavit affirmed 20 June 2024 (the day before the sentence hearing), apart from participating in the process and agreeing to the Agreed Facts (which shows some contrition and remorse), there was no evidence that any of the defendants have shown any contrition or remorse.

126. In his evidence, Mr Kurstjens accepts that he did not provide any evidence until the day before for the sentence hearing but says that was not an attempt to hide from his responsibility having entered a plea of guilty in early 2023 which he states represents a clear acknowledgement of his responsibility. In his affidavit, Mr Kurstjens accepts the Agreed Facts particularly in relation to the terms regarding state of mind and the environmental harm. Mr Kurstjens now says that he sincerely regrets that he cleared Beefwood Farms unlawfully, and apologises on behalf of the defendant companies. He also apologises for the time, effort, resources, and costs that have been involved as a result of the clearing and states that he engaged an expert ecologist to help him understand the prosecutor's case.

127. The prosecutor submits, and I find, that there is little remorse or contrition in relation to the environmental harm caused by the offending. Despite this, I accept that the Court has now received “evidence” that Mr Kurstjens has accepted responsibility for his actions.

128. The prosecutor further submits that there is no evidence “going forward” of the circumstances that would avoid a repetition of the offences. Again, I note that Mr Kurstjens gives evidence that an expert will be retained to provide further advice.

129. In relation to the other defendants, I note that Ms Kurstjens, in her affidavit has not outlined what she intends to do if, as deposed by Mr Kurstjens, he passes over the control of the companies (and Beefwood Farms) to her in early 2025.

130. In taking all matters into account, I note the defendants’ participation in the agreement as to the facts and that there has been some acknowledgement by Mr Kurstjens of the offending, and that there has been scant acknowledgement (in the Agreed Facts, and at par (31) of his affidavit) of the environmental harm caused by the offending.

131. In relation to Kurstjens Onroerend Goed AU B.V., other than pleading guilty and agreeing to certain Agreed Facts, there is no evidence that this defendant has shown any contrition or remorse as no director of that company has given evidence or has chosen to speak on behalf of the company.

132. In relation to Beefwood 1 Pty Ltd and Beefwood 2 Pty Ltd, again, other than pleading guilty and agreeing to certain Agreed Facts, there is no evidence that Beefwood 1 Pty Ltd or Beefwood 2 Pty Ltd have shown any contrition or remorse. Further, I accept that Ms Kurstjens is a director of both companies but has not given evidence on behalf of those companies of any contrition or remorse.

133. Furthermore, considering that remorse is better demonstrated through “the offender taking actions”: Waste Recycling at [203], I consider that there is no evidence that any action has been taken to rectify any harm caused, or likely to be caused, by the offence, and it is clear that the offences were not voluntarily reported, nor is there evidence that any action (apart from some reference in Mr Kurstjens’ affidavit regarding continuing to retain Dr Robertson to ensure that “offences are not committed again”) has been taken to try and address the causes of the various offences.

134. On the facts presently before the Court, I am not satisfied, on the balance of probabilities, that, apart from the matters noted above, remorse has been shown by any of the defendants for the environmental harm caused such that I do not find that remorse is able to be relied upon as a mitigating factor in determining an appropriate sentence for each offence.

Pleas of guilty

135. Pursuant to s 21A(3)(k) and s 22 of the Sentencing Act, the Court is required to take into account the fact and timing of the defendants’ pleas of guilty. The manner in which the Court considers any discount has been the subject of much judicial consideration: Plath v Rawson at [150]-[154].

136. The utilitarian value of the plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration in determining where in the range a particular case should fall is generally the timing of the plea and, in some cases, the timing in combination with other relevant factors may change the discount otherwise to be allowed: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [154]-[160]. The Court of Criminal Appeal in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 summarised the “principles of general application” at [32], which I adopt and do not repeat.

137. In relation to each of the present offences, the entry of the guilty pleas was not at an early opportunity in circumstances where the matters were commenced on 24 June 2019 and pleas were not entered until 15 February 2023 (in advance of the second listing of the hearing on liability). The matters were listed for hearing on four occasions and listed for directions on 11 further occasions before the pleas were entered. Taking into account the principles noted above, I consider that the timing of the pleas of guilty is to some limited extent explained by various circumstances, including the occurrence of various plea negotiations, and the decision of the prosecutor to withdraw two further charges against Mr Kurstjens as a director, and the completion of the prosecutor's evidence on 20 February 2023.

138. In relation to each of the offences, balancing the circumstances, in particular, the timing of the pleas, and the circumstances leading up to the entry of the pleas, I consider the discount to be afforded for the utilitarian value of each of the pleas of guilty should be 15%.

Assistance to the authorities

139. Section 21A(3)(m) of the Sentencing Act provides that in determining an appropriate sentence for an offence, assistance by the offender to law enforcement authorities can be accounted for as a mitigatory factor as provided for by s 23 of the Sentencing Act. Although the defendants participated in the process and agreed to the Agreed Facts, I remain conscious of the comments of the Court of Criminal Appeal in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358 (‘ACE Demolition’) at [96], that participation in an agreed statement of facts will not ordinarily fall within s 21A(3)(m) of the Sentencing Act and I do not consider that any of the defendants are entitled to any mitigatory benefit related to any assistance to the authorities.

Whether likely to reoffend

140. Section 21A(3)(g) of the Sentencing Act provides that in determining the appropriate sentence for an offence, the Court may take into account the fact that the offender is unlikely to reoffend.

141. Mr Kurstjens has now committed the same offence twice, and I find that there is little persuasive evidence of any specific actions he has taken to learn from his earlier mistakes subject to matters noted above. Further, although the Court has received evidence of his intention to pass the conduct of the farming enterprise to other members of his family, not only does he remain as a director of the other defendant companies, he also continues to operate and control those companies. I am not satisfied on the balance of probabilities that Mr Kurstjens and the defendant companies are unlikely to reoffend.

General and specific deterrence

142. I consider that the penalties imposed by the Court must serve as a general deterrent and the principle of general deterrence is of central importance in the sentencing for environmental offences. Persons will not be deterred from committing environmental offences by nominal fines and, deterrence is needed to uphold the integrity of the system of protecting and preserving native vegetation, and there is a need to send a warning to others who may be minded to breach the law in a similar way that such actions will be visited with significant consequence. It is also trite that any penalty imposed must be more than the cost of doing business: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[140].

143. With the above matters in mind, and conscious of, but not reciting, the principles summarised in Rae at [9]-[13], I find that general deterrence is a matter that should be given substantial weight in the present sentencing exercise in relation to each defendant.

144. Further, I consider that there is an important role for specific deterrence in the fixing of appropriate penalties for each of the offences. This is particularly so in relation to Mr Kurstjens (and the defendant companies which are controlled by him) because of his previous conduct (as recorded earlier in this judgment) and the fact that Beefwood Farms involves substantial landholdings in the district of Moree.

145. As such, while Mr Kurstjens is to be sentenced for one charge, there is clearly a need for specific deterrence in circumstances where he committed the offence following receiving judgment in the Topview proceedings. As recorded above, the hearing of the Topview sentence proceedings concluded on 11 August 2016 (although a judgment was not given until 12 May 2017), and the clearing the subject of the present offences commenced on about 9 February 2017 (in relation to Offence 1) and was completed by 16 August 2017 (in relation to Offence 5), with Offence 2, Offence 3 (the offence to which Mr Kurstjens has pleaded guilty) and Offence 4, all being committed between July and August 2017.

146. I do not consider the evidence and submissions of each of the defendants in relation to the state of their present landholdings (including the transfer of land relating to Offence 1, Offence 2, and Offence 3 to another company where Mr Kurstjens is a director) in NSW to be persuasive against a need for specific deterrence in relation to each defendant.

Capacity to pay a fine

147. In exercising my discretion to fix the amount of a fine, I am required by s 6 of the Fines Act 1996 (NSW) to consider:

1. such information regarding the means of each defendant as is reasonably and practicably available to the Court for consideration; and

2. such other matters as, in the opinion of the Court, are relevant to the fixing of that amount.

148. The defendants did not submit that they lack the means to pay a financial penalty. Accordingly, in fixing the amount of fines for each of the offences, I have little basis upon which to consider the means of the defendants.

Appropriate sentences for the offences

Evenhandedness and consistency in sentencing

149. In determining the appropriate penalty in relation to each offence, the Court should be consistent with any patterns of sentencing for like offences.

150. The prosecutor provided a schedule of comparable cases in relation to clearing of native vegetation under s 12 of the NV Act to assist the Court with achieving consistency in sentencing including: Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137; Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd [2020] NSWLEC 47; Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy [2019] NSWLEC 120; Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241; Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90; Office of Environment and Heritage v Swansbel (Pastoral) Pty Ltd [2019] NSWLEC 69; Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54; Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141; Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54; 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 Kennedy [2012] NSWLEC 159; Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119.

149. Conscious that the Court cannot determine the appropriateness of sentences by way of superficial comparison of sentences imposed on offenders who similarly cleared land, and that care must be taken when comparing cases as there may be many divergent facts and circumstances, I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders that led the sentencing court to impose the various sentences in each of the decisions to which I have been referred. I find the following to be of some assistance:

1. Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137 is a recent matter where the Court has passed sentence for an offence contrary to s 12 of the NV Act. The defendant pleaded guilty to clearing 508ha of native vegetation and the Court accepted that the defendant had acted recklessly at the time of the offending with disregard for whether a consent was required for the clearing. The Court found the offending to be in the high mid-range of seriousness due to the extent of the harm (actual and likely) to the environment and the defendant's state of mind in carrying out the offence. The Court determined that the appropriate sentence was $450,000 and taking into account a 10% discount for a guilty plea, imposed a fine of $405,000.

2. In Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54, the defendant pleaded guilty to an offence contrary to s 12 of the NV Act. The clearing totalled 500.8ha of native vegetation comprising predominantly sparse and very sparse isolated plants. The clearing was carried out by contractors. The clearing was found to fall within the middle of the mid-range of objective seriousness due to the nature of the environmental harm (found to be substantial) and that the offence was carried out for financial gain (development of the farming property). The Court considered the appropriate starting penalty was $450,000 and, allowing a 22.5% discount for an early guilty plea, imposed a fine of $348,750.

3. In Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 the defendant pleaded guilty to clearing 103.6ha of native vegetation. The primary judge concluded that the clearing caused a high level of irremediable environmental harm, and the land had been used by the defendant for growing crops since 2013. It was found that the defendant had no intention of restoring the lost vegetation or offering any compensation such as increasing biodiversity on other land. The defendant was found to be aware of the illegality of his conduct and had promised environmental officers he would cease clearing. The conduct was found to be deliberate and premeditated and the defendant foresaw the risk of the harm that eventuated. The defendant had no prior convictions including for environmental offences and was otherwise of good character. On appeal, the first instance sentence of a fine of $315,000 was found to be within the appropriate range and was not manifestly excessive.

4. In Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90, the defendants pleaded guilty to clearing 264ha of native vegetation and clearing an additional 218 paddock trees from other areas of the property. The company, Traikaero Pty Ltd, owned the property on which the clearing took place and Mr Woods was the sole director of the company. The clearing took place over a period of five months and the Court found the defendants’ conduct was reckless, committed for financial gain, and caused actual environmental harm. The defendants could foresee the risk of harm caused and should have refrained from the clearing until, and unless, the clearing was authorised. The defendants did not have any prior convictions and Mr Wood was of good character. The Court considered the appropriate starting penalty for each defendant was $300,000 and, allowing a 22.5% discount for their guilty pleas, imposed a fine of $232,500. The Court also found that the aggregate fine of $465,000 ($232,500 each) should be reduced to $340,000 ($170,000 each) to take into account the nature of the relationship between the defendants.

5. In Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131 the defendants, Auen Grain Pty Ltd, and its sole director, Mr Greentree, were each found guilty of six offences against s 12 of the Native Vegetation Act 2003 (NSW) and two offences against s 60N of the Local Land Services Act 2013 (NSW). The 16 offences related to eight separate land clearing events including the clearing of native vegetation in a total area of 1,262ha. The Court found that the clearing was committed intentionally, for financial gain, and caused significant environmental harm. The defendants could foresee the risk of harm caused, had control over the clearing, and did not take steps to ameliorate the risk of harm caused by the clearing. The defendants had not previously been convicted of clearing of native vegetation under the same legislation and Mr Greentree was entitled to some mitigatory benefit based on previous good character. The defendants showed no remorse or contrition. The Court considered the appropriate (total) starting penalties (spread across the eight discrete offences for each defendant) were $1,490,000 for Auen Grain Pty Ltd and $1,410,000 for Mr Greentree. The penalties (for each offence) were further variously discounted for totality and the relationship between the defendants with final penalties amounting to $1,072,800 for Auen Grain Pty Ltd and $1,015,200 for Mr Greentree.

152. The sentences that I consider to be appropriate to impose on each defendant for each of the offences are not inconsistent with the sentences imposed in the above cases. While consistency in sentencing is important, a more appropriate yardstick against which each sentence should be compared is the maximum penalty (in the sum of $1,100,000) set by Parliament rather than the amounts of fines in earlier cases: Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72].

153. Taking into account the purposes of sentencing, and synthesising the differing objective circumstances of each separate offence including the level of objective seriousness noted at [112] above (considering the relationship between the offending in Offence 2 and Offence 3 and the single clearing event comprising Offence 4 and Offence 5), and the (sometimes differing) subjective circumstances of Mr Kurstjens and each of the defendant companies, I consider that, subject to matters considered later in this judgment, the appropriate monetary penalty for each defendant in relation to the five offences is set out below and, as considered above, I find that each penalty should be discounted by 15% for the utilitarian value of the plea of guilty. This makes each penalty:

1. Offence 1: $140,000 reduced by 15% to $119,000;

2. Offence 2: $100,000 reduced by 15% to $85,000;

3. Offence 3: $120,000 reduced by 15% to $102,000;

4. Offence 4: $90,000 reduced by 15% to $76,500;

5. Offence 5: $90,000 reduced by 15% to $76,500.

Totality

154. Where the Court is sentencing an offender for more than one offence, the totality principle may require consideration. As Preston CJ of LEC stated in Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 at [128] (in terms recently endorsed by Leeming JA in ACE Demolition at [108]-[111]):

“[128] The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. …”

155. As such, totality and aggregation are applicable when there is one defendant being sentenced for multiple offences. This is not the case here. While Offence 1 and Offence 2 have the same corporate defendant (Kurstjens Onroerend Goed AU B.V.), these offences concern different parcels of land with clearing occurring at different periods of time and of different types of vegetation. Further, Offence 4 and Offence 5 concern the same criminal conduct on the same parcel of land but with different corporate defendants.

156. I find that the penalties I have determined above in relation to Offence 1 and Offence 2 are just and appropriate in the circumstances and I consider that no adjustment should be made for totality.

157. In considering the appropriate penalty for the offending in relation to Section 3 (the subject of Offence 4 and Offence 5) (in relation to Beefwood 1 Pty Ltd and Beefwood 2 Pty Ltd), I note the evidence that those two corporate defendants owned the land as tenants in common, as detailed in the affidavit of Ms Kurstjens-Hawkins, as a result of arrangements involving two self-managed superannuation funds, which funds purchased Lot 1 in DP 710734 in shares of two thirds and one third to provide for shared ownership by the two defendants as corporate trustees.

158. While I do not consider that it is correct to consider the principle of totality in relation to Offence 4 and Offence 5 in circumstances where there are two discrete defendants, I nevertheless consider that it is appropriate to take into account the relationship between the companies and note that I have been informed (from the bar table) and accept that there is a difference in shareholders and directors between the two companies, I consider that it is just and appropriate to reduce the aggregate of the monetary penalties I have determined for Offence 4 and Offence 5 and while conscious that percentages can be artificial and not an especially natural way of determining whether the aggregate of the offending is just and appropriate, I reduce each by 30% taking into account the circumstances of the land ownership at the time of the offence given that the objective circumstances of each offence and the subjective circumstances of each offender are the same. As such, I consider the appropriate penalty for each of Offence 4 and Offence 5 is $53,550.

Costs

159. The defendants have agreed to pay the prosecutor's costs in all proceedings (on a joint and several basis) in the total amount of $250,000. I have considered each defendant’s agreement to pay costs in this amount (and manner) in my consideration of the appropriate penalties to impose on each of them and I make orders in each proceeding to reflect this agreement.

Moiety of fines

160. The prosecutor seeks an order under s 122(2) of the Fines Act 1996 (NSW) that half of each fine payable by each defendant be paid to the Department of Climate Change, Energy, the Environment and Water.

161. I consider that the power in s 122(2) of the Fines Act 1996 (NSW) is able to be exercised by this Court in proceedings where a fine or other penalty is imposed for a statutory offence, and I find that it is appropriate to exercise that power to direct that one half of the fine imposed in relation to each defendant be paid to the Department of Climate Change, Energy, the Environment and Water to compensate it for costs and expenses incurred during the investigation of the offences.

Orders

162. The orders of the Court are:

In proceedings 2019/00195296

1. Kurstjens Onroerend Goed AU B.V. is convicted of the offence contrary to s 12(1) of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00195296.

2. Kurstjens Onroerend Goed AU B.V. must pay a monetary penalty in the sum of $119,000.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Department of Climate Change, Energy, the Environment and Water.

4. Kurstjens Onroerend Goed AU B.V. is to pay pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the legal costs of the Department of Climate Change, Energy, the Environment and Water in the sum of $250,000.

5. In respect of Order (4), Kurstjens Onroerend Goed AU B.V. is entitled to credit in respect of that sum for any sum paid on behalf of the defendants in proceedings 2019/00195383; 2019/00195405; 2019/00195427; and 2019/00195470.

In proceedings 2019/00195383

1. Kurstjens Onroerend Goed AU B.V. is convicted of the offence contrary to s 12(1) of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00195383.

2. Kurstjens Onroerend Goed AU B.V. must pay a monetary penalty in the sum of $85,000.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Department of Climate Change, Energy, the Environment and Water.

4. Kurstjens Onroerend Goed AU B.V. is to pay pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the legal costs of the Department of Climate Change, Energy, the Environment and Water in the sum of $250,000.

5. In respect of Order (4), Kurstjens Onroerend Goed AU B.V. is entitled to credit in respect of that sum for any sum paid on behalf of the defendants in proceedings 2019/00195296; 2019/00195405; 2019/00195427; and 2019/00195470.

In proceedings 2019/00195405

1. Gerardus Johannes Jacobus Kurstjens is convicted of the offence contrary to s 12(1) of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00195405.

2. Gerardus Johannes Jacobus Kurstjens must pay a monetary penalty in the sum of $102,000.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Department of Climate Change, Energy, the Environment and Water.

4. Gerardus Johannes Jacobus Kurstjens is to pay pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the legal costs of the Department of Climate Change, Energy, the Environment and Water in the sum of $250,000.

5. In respect of Order (4), Gerardus Johannes Jacobus Kurstjens is entitled to credit in respect of that sum for any sum paid on behalf of the defendants in proceedings 2019/00195296; 2019/00195383; 2019/00195427; and 2019/00195470.

In proceedings 2019/00195427

1. Beefwood 1 Pty Ltd is convicted of the offence contrary to s 12(1) of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00195427.

2. Beefwood 1 Pty Ltd must pay a monetary penalty in the sum of $53,550.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Department of Climate Change, Energy, the Environment and Water.

4. Beefwood 1 Pty Ltd is to pay pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the legal costs of the Department of Climate Change, Energy, the Environment and Water in the sum of $250,000.

5. In respect of Order (4), Beefwood 1 Pty Ltd is entitled to credit in respect of that sum for any sum paid on behalf of the defendants in proceedings 2019/00195296; 2019/00195383; 2019/00195405; and 2019/00195470.

In proceedings 2019/00195470

1. Beefwood 2 Pty Ltd is convicted of the offence contrary to s 12(1) of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00195470.

2. Beefwood 2 Pty Ltd must pay a monetary penalty in the sum of $53,550.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Department of Climate Change, Energy, the Environment and Water.

4. Beefwood 2 Pty Ltd is to pay pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the legal costs of the Department of Climate Change, Energy, the Environment and Water in the sum of $250,000.

5. In respect of Order (4), Beefwood 2 Pty Ltd is entitled to credit in respect of that sum for any sum paid on behalf of the defendants in proceedings 2019/00195296; 2019/00195383; 2019/00195405; and 2019/00195427.

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Annexure A (129209, pdf)

Amendments

24 January 2025 - Typographical error in Order (2) of proceedings 2019/00195405.

Decision last updated: 24 January 2025