Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3)
[2012] NSWLEC 56
•20 March 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56 Hearing dates: 16 - 23 February 2012 Decision date: 20 March 2012 Jurisdiction: Class 5 Before: Pain J Decision: The Defendant is convicted of the offence charged.
See additional orders at [162] of judgment.
Catchwords: SENTENCE - sentencing following plea of guilty to picking an endangered ecological community - objective factors - construction of Final Determination of Scientific Committee - whether expert reports prove extent of endangered ecological community cleared - whether aggravating factors in Crimes (Sentencing Procedure) Act 1999 apply to environmental offences at all and in light of later more detailed National Parks and Wildlife Act 1974 provisions - mitigating factors - whether early plea of guilty entitling defendant to discount on penalty - no remorse proved - imposition of orders for restoration, to support specified environmental project and for publication in newspaper Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 21A, s 22
Environment Protection and Biodiversity Conservation Act 1999
National Parks and Wildlife Act 1974 s 2A, s 8A, s 118A(2), s 175B, s 194, s 200, s 203, s 205
National Parks and Wildlife Amendment Act 2010
Native Vegetation Act 2003 s 12(1)
Native Vegetation Conservation Act 1997 (repealed)
Protection of the Environment Administration Act 1991 s 6(2)
Protection of the Environment Operations Act 1997 s 241
Threatened Species Conservation Act 1995 s 3, Pt 2, Sch 1 Pt 3, s 24(1)Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Butler v Attorney-General (Vic) (1961) 106 CLR 268
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182
Cameron v R [2002] HCA 6; (2002) 209 CLR 339
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22
Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194
Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182
Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102
Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227
Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232
Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119
Director-General Department of Environment and Climate Change v Wilton [2008] NSWLEC 297
Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402
Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80
Environment Protection Authority v Bituminous Products Pty Ltd [1999] NSWLEC 247
Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160
Environment Protection Authority v Sydney Water Corp Ltd, NSWLEC, Talbot J, 18 December 1996, unreported
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130
Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287
Garrett v Dennis Charles Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Garrett v Williams [2007] NSWLEC 56
Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434
Hoare v R [1989] HCA 33; (1989) 167 CLR 348
Kelly v Saadat-Talab [2008] NSWCA 213; (2008) 72 NSWLR 305
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
Muldrock v R [2011] HCA 39
Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66
Newcastle City Council v Pepperwood Ridge Pty Limited [2004] NSWLEC 218
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Plath v Fletcher [2007] NSWLEC 596
Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202
R v AB [2011] NSWCCA 229
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Koloamatangi [2011] NSWCCA 288
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pearson [2005] NSWCCA 116
R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13; [2002] Env LR 18
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511
Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; (2003) 132 LGERA 1
Sullivan v R; Skillin v R [2008] NSWCCA 296; (2008) 51 MVR 572
Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141
VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631Texts Cited: BJ Preston, 'Principled Sentencing for Environmental Offences', a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006
B Craze et al, Soil testing procedures Department of Conservation and Land Management
Department of Environment, Climate Change and Water "The Native Vegetation of the Sydney Metropolitan Catchment Management Authority Area" (2009) Department of Environment, Climate Change and Water NSW
DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths
M Tozer, "The native vegetation of the Cumberland Plain, western Sydney: systematic classification and field identification of communities" (2003) 8 Cunninghamia 1
Criminal Practice & Procedure NSW, LexisNexis AustraliaCategory: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor)
Kyluk Pty Limited (Defendant)Representation: Mr J Glissan QC (Prosecutor)
Mr S Littlemore QC with Ms P Lane (Defendant)
Office of Environment and Heritage (Prosecutor)
McGirr James Hall (Defendant)
File Number(s): 50604 of 2011
Judgment
Kyluk Pty Limited (the Defendant) pleaded guilty on 14 February 2012 to the offence that between about 11 June 2009 and 11 August 2009 contrary to s 118A(2) of the National Parks and Wildlife Act 1974 (the NPW Act) it picked plants that were part of an endangered ecological community (EEC), being "Shale/Sandstone Transition Forest in the Sydney Basin Region" (SSTF) as described in the Scientific Committee's Final Determination (the Final Determination). At the time of the offence SSTF was listed as an EEC in Sch 1 Pt 3 of the Threatened Species Conservation Act 1995 (the TSC Act).
In pleading guilty the Defendant admitted the essential elements of this offence as particularised in the summons filed 15 July 2011. The Defendant has admitted that between about 11 June 2009 and 11 August 2009, it picked plants forming part of the SSTF at Lot 24 DP700072, known as 561 Appin Road, Gilead (the property) in the following manner:
(a) it caused and/or permitted the picking of plants that were part of the SSTF at the property; and
(b) it was the landholder of land at which plants that were part of the SSTF were picked.
The offence is one of strict liability so that mens rea is not an element of the offence. This judgment considers the appropriate sentence for that offence. The parties' submissions, the evidence and the Statement of Facts refer to both picking and clearing. In this case there is no relevant distinction between the two terms.
Relevant legislation
The objects of the NPW Act, below, are to be achieved by applying the principles of ecologically sustainable development as provided for by s 2A(2):
2A Objects of Act
(1) The objects of this Act are as follows:
(a) the conservation of nature, including, but not limited to, the conservation of:
(i) habitat, ecosystems and ecosystem processes, and
(ii) biological diversity at the community, species and genetic levels, and
(iii) landforms of significance, including geological features and processes, and
(iv) landscapes and natural features of significance including wilderness and wild rivers,
(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:
(i) places, objects and features of significance to Aboriginal people, and
(ii) places of social value to the people of New South Wales, and
(iii) places of historic, architectural or scientific significance,
(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,
(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.
Section 118A(2) of the NPW Act states:
118A Harming or picking threatened species, endangered populations or endangered ecological communities
(2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community.
Penalty:
(a) in respect of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community-2,000 penalty units or imprisonment for 2 years or both, and an additional 100 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence,
(b) in respect of any vulnerable species-500 penalty units or imprisonment for 1 year or both, and an additional 50 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence.
Part 2 Div 2 of the TSC Act provides for listing of EECs by the Scientific Committee appointed under the TSC Act. Division 3 specifies the procedure for such listing. The Final Determination is made by the Scientific Committee and must be gazetted (s 24(1)(d) TSC Act). Part 3 of Sch 1 of the TSC Act lists EECs. An EEC referred to in the NPW Act has the same meaning as in the TSC Act. The objects of the TSC Act are set out in s 3 as follows:
3 Objects of Act
The objects of this Act are as follows:
(a) to conserve biological diversity and promote ecologically sustainable development, and
(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and
(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and
(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and
(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and
(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.
Part 15 s 194 (Div 2), 199, 200 and 205 (Div 3) of the NPW Act inserted by the National Parks and Wildlife Amendment Act 2010 commenced on 2 July 2010 after the date of the offence in 2009. These sections apply by virtue of the transitional provisions made at the time of the amendment and relevantly state:
194 Sentencing-matters to be considered in imposing penalty
(1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a) the extent of the harm caused or likely to be caused by the commission of the offence,
(b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence,
(c) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,
(e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area-the views of Aboriginal persons who have an association with the object, place or area concerned,
(g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee,
(h) whether the offence was committed for commercial gain.
(2) The court may take into consideration other matters that it considers relevant.
199 Orders generally
(1) Orders may be madeOne or more orders may be made under this Division against the offender.
(2) Orders are additionalOrders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.
(3) Other action not requiredOrders may be made under this Division regardless of whether any penalty is imposed, or other action taken, in relation to the offence.
200 Orders for restoration and prevention
(1) The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow):
(a) to prevent, control, abate or mitigate any harm caused by the commission of the offence, or
...
(c) to make good any resulting damage, or
(d) to prevent the continuance or recurrence of the offence.
(2) The court may order the offender to provide security to the court or to the Director-General for the performance of any obligation imposed under this section.
(3) An order under subsection (2) must specify:
(a) the amount of the security required to be provided, and
(b) the kind of security required to be provided, and
(c) the manner and form in which the security is to be provided.
...
205 Additional orders
(1) OrdersThe court may do any one or more of the following:
(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,
(b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct),
(c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit,
(d) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes,
(e) order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court,
(f) order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court.
The Local Court is not authorised to make an order referred to in paragraph (c) or (d).
(2) MachineryThe court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.
(3) Failure to publicise or notifyIf the offender fails to comply with an order under subsection (1) (a) or (b), the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify:
(a) the original contravention, its consequences, and any other penalties imposed on the offender, and
(b) the failure to comply with the order.
(4) Cost of publicising or notifyingThe reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender.
Section 21A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) relevantly states:
21A Aggravating, mitigating and other factors in sentencing
(1) GeneralIn determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factorsThe aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain,
(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender's vehicle.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
...
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
Final Determination under TSC Act
The Scientific Committee's Final Determination to list the SSTF in the Sydney Basin Bioregion as an EEC relevantly states:
The Scientific Committee, established by the Threatened Species Conservation Act, has made a Final Determination to list the Shale/Sandstone Transition Forest in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Part 3 of Schedule 1 of the Act. The listing of endangered ecological communities is provided for by Part 2 of the Act.
The Scientific Committee has found that:
1. Shale/Sandstone Transition Forest (SSTF) is the name given to the plant community characterised by the species assemblage listed in paragraph 4, which occurs on areas transitional between the clay soils derived from Wianamatta Shale and the sandy soils derived from Hawkesbury Sandstone on the margins of the Cumberland Plain. All sites are within the Sydney Basin Bioregion. (The community is identified and discussed in UBBS (1997) under the name Western Shale/Sandstone Transition Forest. Most of the UBBS Eastern Shale/Sandstone Transition Forest is attributable to Cooks River Clay Plain Scrub Forest.)
2. SSTF occurs or has occurred in the Bankstown, Baulkham Hills, Blue Mountains, Campbelltown, Hawkesbury, Liverpool, Parramatta, Penrith, and Wollondilly Local Government Areas (LGAs).
3. The floristic composition of the community includes species otherwise characteristic of, or occurring in, either sandstone or shale habitats. The structure of the community is forest or woodland.
4. SSTF is characterised by an assemblage of species:
[lists 106 species of plants]
Not all these species will be present in every single stand, and the total species list from all stands of the community is considerably larger than that listed above. Depending on the disturbance history of a particular site a proportion of the species may be present only in the soil seed bank.
5. Characteristic tree species in SSTF are; Eucalyptus punctata, Eucalyptus resinifera, one of the stringybarks (Eucalyptus globoidea, Eucalyptus eugenioides, Eucalyptus sparsifolia, Eucalyptus agglomerata). One or more ironbarks (Eucalyptus fibrosa, Eucalyptus crebra, Eucalyptus paniculata, Eucalyptus beyeriana) may be locally important
7. Species composition varies between sites depending on geographical location and local conditions (e.g., topography, relative influence of sandstone or shale).
8. SSTF provides habitat for a number of plant species recognised as being of national, state or regional conservation significance in UBBS (1997). These include:
[lists 46 species of plants]
9. SSTF generally occurs on soils derived from a shallow shale or clay material overlying sandstone, or where shale-derived materials has washed down over sandstone-derived substrate. Such sites are generally close to the geological boundary between the Wianamatta Shale and the Hawkesbury Sandstone.
10. SSTF occurs on plateaux and hillsides and at the margins of shale cappings over sandstone.
11. Many occurrences of SSTF are as linear stands, which may be as narrow as 20 metres. The small size and scattered distribution of the remnant stands of the community makes provision of a comprehensive map of occurrences impractical. Details of the distribution of many stands are provided in UBBS (1997).
12. Adjacent communities on shale soils are generally Cumberland Plain Woodland, while adjacent communities on sandstone soils are generally part of the Sydney Sandstone Complex (sensu Benson & Howell 1990).
14. A large proportion of the area where SSTF occurred in the past has been cleared for agriculture and urban development. Remnants are small and scattered. Identified threats include: clearing, physical damage from recreational activities, rubbish dumping, grazing, mowing and weed invasion.
15. In view of the small size of existing remnants the threat of further clearing and other threatening processes, the Scientific Committee is of the opinion that SSTF in the Sydney Basin Bioregion is likely to become extinct in nature unless the circumstances and factors threatening its survival cease to operate and that listing as an endangered ecological community is warranted.
Evidence
The Chief Executive, Office of Environment and Heritage (the OEH) (the Prosecutor) tendered a Statement of Facts with numerous annexures (exhibit F). Following rulings on admissibility the Statement of Facts was admitted. Ellipses indicate material excluded by ruling or not pressed. "Omitted" in square brackets reflects the original statement tendered to the Court. It provides (excluding references to annexures) as follows:
BACKGROUND
The defendant
4Kyluk is a property development company that is involved in purchasing and managing commercial and rural property in south-west Sydney. Mr Steven Michael Cenatiempo is a company director of Kyluk and is responsible for managing the properties owned by the company and the finances for the company. The other listed directors of the company are Mr Giovanni Cenatiempo and Ms Teresa Cenatiempo. ...
The Property
5Kyluk is the registered proprietor of the Property, having purchased the Property on 13 February 2003. The Property is used by Kyluk for grazing cattle.
6The Property is approximately 40.31 hectares in area and is within the Campbelltown local government area. The property is accessed by an existing right of carriageway on Lot 1 DP 70208, also known as Leafs Gully Road, which connects to Appin Road. A copy of an aerial photograph showing the property, Leafs Gully Road and Appin Road.
7The Property is located approximately 5 km north of Appin on the Southern Tablelands of NSW. A creek-line is located inside the western boundary of the Property. To the north-east of the creek- line, the fall of the land within the Property is generally towards the south-west and west.
MAPS AND AERIAL PHOTOGRAPHS
Maps and aerial photographs of the Property (showing vegetation at the Property before the date of the offence)
8The following maps and aerial photographs show the vegetation present at the Property at various stages before the date of the offence:
a.A copy of the aerial photographs, dated April 2008, January 2005, April 2003, November 2000, January 1998, April 1995, March 1992, February 1982, October 1977, April 1972, October 1965 and August 1956.
b.A copy of the aerial photograph of the Property available through Google Earth online dated February 2007.
c.A copy of the SPOT5 satellite image of the Property dated 11 June 2009.
Maps and aerial photographs of the Property (showing vegetation at the Property after the date of the offence)
9The picking of vegetation was carried out on the Property in approximately July and August 2009.
10The following maps and aerial photographs show the vegetation present at the Property at various stages after the date of the offence:
a.Aerial photographs showing the vegetation present at the Property as at 21 August 2009.
b.Aerial photographs showing the vegetation present at the Property as at 6 September 2009.
c.A copy of the aerial photograph of the Property available through Google Earth online dated 31 October 2009.
CHRONOLOGY
11The following section is a chronology of the relevant events related to the picking of vegetation at the Property.
12[Omitted].
13[Omitted].
14[Omitted].
29 July 2009: Observations from Mr Steven Jackson
15On 29 July 2009, Mr Steven Robert Jackson, an employee of AGL Energy Limited was driving down Leafs Gully Road and observed that there was no sign of any recent clearing on the Property.
7 August 2009: Email complaint to OEH
16On 7 August 2009, the Office of Environment and Heritage ("OEH") Environment Line email account received an email from an anonymous email address stating that: "Over the last couple of days there has been a lot of trees clearing on the land near where AGL is building a power station on off Appin Road at Gilead (Leafs Gully), this is supposed to be for Koala habitat". The email complaint was forwarded to OEH Senior Regional Operations Officer Melinda Hale, who subsequently advised Campbelltown City Council.
11 August 2009: Observation of clearing by Mr Steven Jackson
17On 11 August 2009, Mr Steven Robert Jackson, an employee of AGL Energy Limited was driving down Leafs Gully Road and noticed that vegetation of the Property had been extensively cleared. Mr Jackson observed an extensive area that had been almost completed cleared of vegetation, including large trees, bushes and grasses. The cleared vegetation had been pushed into windrows.
12 August 2009: Inspection of Property
18On 12 August 2009, Campbelltown City Council Officers Leslie Winch and Michael Plummer attended the Property and carried out an inspection. During the inspection, the Council Officers observed that:
a.Large scale land clearing works had recently been undertaken, involving the felling of trees and understorey, and the stripping of other vegetative material.
b.Felled trees and land clearing debris were left in piles, pushed into windrows across the cleared area of the land, and were present in the creek-line.
c.Photographs taken of the Property by the Officers on 12 August 2009.
19...
13 August 2009: Inspection of Property
20On 13 August 2009, OEH Officers Jennifer Byrne, Melinda Hale and Dennis Pascall and Campbelltown City Council Officers Michael Plummer and Grahame Dawson attended the Property at about 10:15am and carried out an inspection. During the inspection, the OEH and Council Officers observed that:
a.There was a "John Deere" backhoe fitted with an excavation arm and bucket located on the Property.
b.Trees and understorey vegetation had been pushed into a number of windrows located across the Property, including areas close to the creek-line.
c.There were large areas of bare soil and sandstone rock outcrops where the trees and understorey vegetation had been removed.
d.Photographs taken of the Property by the Officers on 13 August 2009.
21 [Omitted].
14 August 2009: Telephone conversation with Mr Cenatiempo
22At about 3:45pm on 14 August 2009, Officer Dawson received a telephone call from Mr Steven Cenatiempo. They had a conversation in words to the following effect:
Mr Dawson said:"Are you the owner of 561 Appin Road, Gilead?"
Mr Cenatiempo said:"Yes"
Mr Dawson said:"Why was the vegetation cleared"
Mr Cenatiempo said:"It was cleared because cows are going to be placed on the land and the main reason for clearing the land was for fire hazard reduction they have had a lot of fires in the past. Why what's wrong?"
Mr Dawson said:"You need council approval to remove one tree."
Mr Cenatiempo said:"I didn't know that."
Mr Dawson said:"Can you give Council an undertaking that no further clearing will be conducted?"
Mr Cenatiempo said:"Yes, no more work will be done."
Mr Dawson said:"Council is in the process of writing to you requesting information as to why the trees and vegetation was removed."
Mr Cenatiempo said:"Yes."
Mr Dawson said:"Who cleared the vegetation?"
Mr Cenatiempo said:"Its like I said it was cleared due to being a fire hazard."
Mr Dawson said:"Council's letter will also require that a meeting be arranged to discuss the land clearing with you."
Mr Cenatiempo said:"Yes."
Mr Dawson said:"I will relay the information to the council officers involved in this matter and advise them that you didn't know you required council approval to remove the vegetation due to fire hazard reduction, and that no further work will be conducted on the property."
23...
24...
25At about 12:48pm, Officer Dawson attended the business premises of Kyluk at 9 Lincoln Street, Minto NSW 2566 and hand delivered the letter to Mr Cenatiempo. Upon arrival, they had a conversation in words to the following effect:
Mr Dawson said:"Are you Michael Steven Cenatiempo?"
Mr Cenatiempo said:"Yes."
Mr Dawson said:"I have correspondence from Council regarding the land clearing at 561 Appin Road, Gilead." [Mr Dawson handed him the envelope].
Mr Cenatiempo said:"Ok." [Mr Cenatiempo opened the envelope]
Mr Dawson said:"Council recognises that you stopped all further work when instructed."
Mr Cenatiempo said:"Well I don't feel I did anything wrong."
Mr Dawson said:"When you read and absorb the information Council would like to meet with you about the land clearing."
Mr Cenatiempo said:"That's fine."
Mr Dawson said:"The contact details are on the Order and Prevention Notice."
Mr Cenatiempo said:"Yes, I will look at it and ring you."
Late August 2009: Kyluk engages Anderson Environmental Consultants Pty Ltd
26In late August 2009, Kyluk engaged Anderson Environmental Consultants Pty Ltd to provide advice on the preventative action required to stabilise the areas of cleared/disturbed land on the Property. Mr Jason Anderson of Anderson Environmental Consultants Pty Ltd gave advice to Mr Cenatiempo over the phone that in general mulching would reduce the risk of erosion. After being advised by Mr Cenatiempo that there was mulch already present on the Property, Mr Anderson recommended that Mr Cenatiempo spread the mulch over the area of cleared/disturbed land on the Property as an immediate measure.
27Kyluk subsequently engaged Green Waste Australia Pty Limited and Cockerill Contracting Pty Limited to mulch the vegetation that had been placed in windrows on the Property and to apply the mulch to the area of cleared/disturbed land on the Property. Green Waste Australia Pty Limited and Cockerill Contracting Pty Limited undertook this work from approximately 25 August 2009 until 9 September 2009. The total cost for the mulching works over this period was $32,262.50.
28...
29...
28 August 2009: Inspection of Property
30On 28 August 2009, Campbelltown City Council Officers Grahame Dawson and Michael Plummer attended the Property at 11:15am and carried out an inspection. During the inspection the Council Officers observed that:
a.There were approximately 6 to 8 persons operating pieces of heavy machinery to mulch vegetation and spread the mulch at the Property.
b....
c.Photographs taken of the Property by the Officers on 28 August 2009.
31...
32...
29 August 2009: Inspection of Property
33On 29 August 2009, Campbelltown City Council Officer Russell Hart attended the Property and carried out an inspection. During the inspection Officer Hart observed there to be several large earthmoving and other plant machines on the Property, that appeared to be locked up and that no works were under way on the Property. Photographs taken of the Property by Officer Hart on 29 August 2009.
30 August 2009: Inspection of Property
34On 30 August 2009, Campbelltown City Council Officer Russell Hart attended the Property and carried out an inspection. During the inspection Officer Hart observed there to be several large earthmoving and other plant machines on the Property, that appeared to be locked up and that no works were under way on the Property. Photographs taken of the Property by Officer Hart on 30 August 2009.
31 August 2009: Inspection of Property
35On 31 August 2009, Campbelltown City Council Officer Michael Plummer attended the Property and carried out an inspection. During the inspection Officer Plummer observed there to [be] no works undertaken on the Property. Photographs taken of the Property by Officer Plummer on 31 August 2009.
36...
3 September 2009: Inspection of Property
37On 3 September 2009, Campbelltown City Council Officers Grahame Dawson, Leslie Winch and Mike Plummer attended the Property and carried out an inspection. During the inspection, the Council Officers observed that:
a.A number of male persons were observed operating machinery on the site, mulching the felled trees and undergrowth.
b.Photographs taken of the Property by the Officers on 3 September 2009.
38...
39...
7 September 2009: Inspection of Property
40On 7 September 2009, Campbelltown City Council Officer Grahame Dawson attended the Property at about 10:54am to carry out an inspection. During the inspection Officer Dawson observed that the machine previously used to mulch the vegetation was not being used and that no activity was being undertaken on the Property.
41...
8 September 2009: Inspection of Property
42On 8 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. From the road, Officer Plummer observed that:
a.There were several utility type vehicles on the property and 3 mechanical excavator type machines being used by 6 persons to mulch vegetation at the Property.
b.Photographs taken of the Property by Officer Plummer on 8 September 2009.
10 September 2009: Inspection of Property
43On 10 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. From the road, Officer Plummer observed that there was various machinery and mulched piles of vegetation located on the Property but that no works were being undertaken at the Property. Photographs taken of the Property by Officer Plummer on 10 September 2009.
16 September 2009: Inspection of Property
44On 16 September 2009, Campbelltown City Council Officer Michael Plummer attended the Property to carry out an inspection. Officer Plummer observed that apart from the "John Deere" backhoe, all other machinery had been removed from the Property.
45...
2 October 2009: Inspection of Property
46On 2 October 2009, Campbelltown City Council Officers Grahame Dawson and Michael Plummer attended the Property with Ms Teresa James to carry out an inspection of the Property. During the inspection, the Officers observed that:
a.Mulch had been spread in number of locations on the Property.
b.A number of trees damaged by the clearing works and that there had been disturbance to the sandstone rocks and boulders at the Property.
c.Vegetation had been pushed into the creek-line located at the Property.
d.Photographs taken of the Property by the Officers on 2 October 2009.
[omitted]
47[omitted].
10 September 2010: Notice for information and records
48On 10 September 2010, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 1 October 2010. Kyluk responded to the notice for information and records as follows:
a.On 1 October 2010, Kyluk provided its response to the notice by letter to OEH. In its response to the notice, Kyluk advised that it had no knowledge of the clearing.
8 October 2010: Notice to nominate a corporate representative
49On 8 October 2010, OEH issued a statutory notice requesting Kyluk to nominate a person to answer questions as Kyluk's corporate representative by 15 October 2010. In response to the notice Kyluk did the following:
a.On 14 October 2010, Kyluk advised by letter to OEH that it nominated Mr Cenatiempo as Kyluk's corporate representative.
7 December 2010: Notice to nominate time and place for interview
50On 7 December 2010, OEH issued a statutory notice requesting Mr Cenatiempo, as the corporate representative of Kyluk, to nominate a time and place to attend and answer questions by 21 December 2010. In response to the notice Kyluk did the following:
a.On 16 December 2010, Mr Cenatiempo issued a letter to OEH advising that the request to nominate a time and a place was not appropriate and not reasonable. Mr Cenatiempo also requested an extension of time to nominate a time and place of 14-21 days after the OEH's response to the letter was received by Kyluk.
b.On 16 December 2010, OEH issued a letter to Mr Cenatiempo advising that should he fail to nominate a time and place by 21 December 2010, that OEH would nominate a time and place to attend and answer questions.
c.On 20 December 2010, Mr Cenatiempo issued a letter to OEH advising that he nominated 8 February 2011 at the OEH offices in Sydney as the time and place to attend and answer questions.
d.On 23 December 2010, OEH issued a letter to Mr Cenatiempo advising that the time and place nominated was not reasonable in the circumstances and requested that he nominate an alternative time and place by 5 January 2011. OEH also advised that should he fail to nominate a time and place by 5 January 2011, that OEH would nominate a time and place to attend and answer questions.
e.On 4 January 2011, Mr Cenatiempo issued a letter to OEH advising that he nominated 26 January 2011 at the OEH offices in Sydney as the time and place to attend and answer questions.
f.On 10 January 2011, OEH issued a letter to Mr Cenatiempo confirming that he was to attend and answer questions at the OEH offices in Sydney on 27 January 2011 (due to the public holiday on 26 January 2011).
g.On 10 January 2011, Mr Cenatiempo issued a letter to OEH confirming that he was to attend and answer questions at his solicitor's offices in Sydney on 27 January 2011.
27 January 2011: Interview with Kyluk's corporate representative
51On 27 January 2011, Kyluk's corporate representative, Mr Cenatiempo, was interviewed under caution. During the interview, Mr Cenatiempo admitted that:
a.Mr Cenatiempo stated that he had no knowledge of the clearing taking place on the Property.
b.Mr Cenatiempo stated that during his inspection of the Property after the clearing he observed up to 20 trees cleared on the Property.
c.Mr Cenatiempo stated that he was aware that the removal of trees on the Property required council approval before works were undertaken to remove the trees.
9 February 2011: Notice for information and records
52On 9 February 2011, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 23 February 2011. Kyluk responded to the notice for information and records as follows:
a.On 23 February 2011, Kyluk advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that it requested a 14 day extension to the deadline.
b.On 24 February 2011, OEH advised by letter to Kyluk that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 2 March 2011.
c.On 1 March 2011, Kyluk provided its response to the notice by letter to OEH. In its response to the notice, Kyluk advised that it had no knowledge of the clearing taking place on the Property.
9 February 2011: Notice for information and records
53On 9 February 2011, OEH issued a statutory notice requesting Mr Cenatiempo (in his capacity as a director of Kyluk) to provide information and/or records in relation to any clearing occurring on the Property by 23 February 2011. Mr Cenatiempo responded to the notice for information and records as follows:
a.On 23 February 2011, Mr Cenatiempo advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that he requested a 14 day extension to the deadline.
b.On 24 February 2011, OEH advised by letter to Mr Cenatiempo that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 2 March 2011.
c.On 1 March 2011, Mr Cenatiempo provided his response to the notice by letter to OEH.
24 March 2011: Notice for information and records
54On 24 March 2011, OEH issued a statutory notice requesting Kyluk to provide information and/or records in relation to any clearing occurring on the Property by 1 April 2011. Kyluk responded to the notice for information and records as follows:
a.On 28 March 2011, Kyluk advised by letter to OEH that due to excessive work commitments and longer than expected time to retrieve information that it requested a 21 day extension to the deadline.
b.On 29 March 2011, OEH advised by letter to Kyluk that it had considered the request for an extension of time and extended the time to provide information and/or records in relation to any clearing occurring on the Property to 4 April 2011.
c.On 7 April 2011, OEH advised by letter to Kyluk that the time for compliance with the notice had now passed and that Kyluk was in breach of the notice. OEH advised that the obligation to comply with the notice nevertheless continued, even though the due date for compliance had now passed.
d.On 7 April 2011, Kyluk provided its response to the notice by letter to OEH.
6 May 2011: Notice to nominate time and place for interview
55On 6 May 2011, OEH issued a statutory notice requesting Mr Cenatiempo, as the corporate representative of Kyluk, to nominate a time and place to attend and answer questions by 20 May 2011. In response to the notice Kyluk did the following:
a.On 20 May 2011, Mr Cenatiempo issued a letter to OEH advising that he nominated 31 May 2011 at his solicitor's offices in Sydney as the time and place to attend and answer questions.
31 May 2011: Interview with Kyluk's corporate representative
56On 31 January 2011, Kyluk's corporate representative, Mr Cenatiempo, was interviewed under caution. During the interview, Mr Cenatiempo stated that:
a.Mr Cenatiempo stated that he had no knowledge of the clearing taking place on the Property.
b.Mr Cenatiempo stated that he didn't know why cleared had occurred on the Property.
Reports prepared by Anderson Environmental Consultants Pty Ltd
57Anderson Environmental Consultants Pty Ltd was engaged to provide various reports to Kyluk in relation to the clearing occurring at the Property. In total, Anderson Environmental Consultants prepared 4 reports for Kyluk:
a."Preliminary Erosion Control Works Plan, Assessment and Certification for 561 Appin Road Campbelltown City Council" (September 2009).
b."Long Term Erosion Control Plan for 561 Appin Road, Campbelltown City Council LGA" (October 2009).
c."Ecological Restoration Plan for 561 Appin Road, Gilead Campbelltown City Council LGA" (January 2010).
d."Flora and Fauna Assessment and Seven Part Tests of Significance for 561 Appin Road, Gilead Campbelltown City Council" (February 2010).
The current state of vegetation at the Property
58Kyluk has not undertaken any remediation works at the Property (with the exception of those works undertaken in response to the emergency order and prevention notice). Kyluk has at no stage submitted any development applications in connection with any remediation works proposed to be undertaken at the Property.
59...
60On 23 November 2011, Campbelltown Officers Leslie Winch and Grahame Dawson attended the Property to carry out an inspection. The Officers observed that:
a.The previously cleared areas on the Property had been recolonised by a number of invasive weed species as well as some eucalypt species.
b.The regrowth seemed to be concentrated around the windrows; in the open areas the regeneration appeared to be mostly of grasses.
c.Photographs taken by the Officer on 23 November 2011.
61...
SHALE/SANDSTONE TRANSITION FOREST EEC
The nature and distribution of Shale/sandstone Transition Forest EEC
62In 1998, SSTF EEC was listed as an endangered ecological community on Part 3 of Schedule 1 to the Threatened Species Conservation Act 1995. In 2001, SSTF EEC was listed as a threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
63[omitted].
64SSTF EEC It is restricted to transitional sandstone and shale soils within the Sydney region, particularly at the edge of the Cumberland Plain in western Sydney. Approximately 9,642 ha of SSTF remain in intact condition comprising 21% of the pre-1750 extent. Only 420 ha or 4% of remaining SSTF EEC is protected on OEH estate. SSTF EEC provides habitat for a number of plant species of national, state and regional conservation significance.
65SSTF EEC is threatened by further loss and fragmentation of habitat. Clearing for agricultural land and residential development have led to increasingly isolated small remnants which are more susceptible to degradation, provide less habitat values and support fewer species. ...
Annexures to the Statement of Facts included consultant reports from Anderson Environmental Consultants Pty Ltd prepared to assist the Defendant comply with statutory notices from the Council. These outlined measures to be taken after the clearing event such as the spreading of mulch to reduce erosion.
Expert reports
In Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22 (Kyluk (No 1)) I determined on a voir dire to admit expert reports of Mr Tulau, Senior Environmental Scientist with the Soil Science Section at OEH, and Ms James, consultant botanist/ecologist, tendered by the Prosecutor.
Ms James
Exhibit TAJ-1 to Ms James' affidavit filed on 15 July 2011, her curriculum vitae, states that she specialises in vegetation survey, plant identification and conservation assessment. Until October 1998 she held the position of Identifications Botanist, Plant Sciences, National Herbarium of NSW, Royal Botanic Gardens. She holds a Bachelor of Science.
Exhibit TAJ-5 to Ms James' affidavit filed on 30 November 2011 states that Ms James visited the property on 2 October 2009 and 15 December 2010. She was instructed to provide her opinion as to the extent and size of the EEC picked on the property, the extent of harm/damage caused or likely to be caused by the clearing, and the significance of the EEC. In preparing her report she considered, among other things, a map "extent of cleared area" prepared by Ms Byrne dated February 2011 which was annexed to her report.
On 15 December 2010 Ms James undertook a foot survey across the property for approximately five hours in a selection of the areas surveyed in 2009 in order to provide information on changes that have occurred since 2009. Figure 1 identifies the approximate location of the survey areas and extent of clearing across the site and marks out the areas resurveyed in 2010. The resurveyed areas were selected to sample both EECs and their respective soils and different parts of the property, including close to the outer extent of alleged clearing. Ms James observed that regeneration of native species is occurring across much of the affected area except in patches where there is a deeper layer of mulch or highly compacted soil. The regenerating vegetation includes species characteristic of SSTF. The area of SSTF pre-clearing is more accurately calculated with information from soil analysis and GIS mapping by Ms Byrne. The area of SSTF cleared is estimated to be 12.54 ha.
Both the transitional soils and sandstone derived soils support SSTF. The sandstone derived soils close to the main creek line support a high sandstone form of the EEC which can occur on Hawkesbury sandstone derived soils and locally corresponds with Hinterland Sandstone Transition Grey Gum Forest and most commonly occurs on the fringes of the Cumberland Plain within the Campbelltown and Liverpool local government areas. Characteristic tree species occur close to the creek. The transitional soils support vegetation more consistent with Cumberland Shale Sandstone Ironbark Forest which is also a component of SSTF that occurs on the fringes of the Cumberland Plain. Sixty-five per cent of the species listed for the community are represented at the property within the transitional areas. Two publications Ms James referred to (M Tozer, "The native vegetation of the Cumberland Plain, western Sydney: systematic classification and field identification of communities" (2003) 8 Cunninghamia 1, and Department of Environment, Climate Change and Water "The Native Vegetation of the Sydney Metropolitan Catchment Management Authority Area" (2009) Department of Environment, Climate Change and Water NSW) identify both high and low sandstone influence communities as components of the SSTF. Ms James states that the distribution of these two forms (high and low sandstone influence communities) in the OEH mapping and the more detailed site inspection shown in Fig 2 were very similar. Figure 2 shows the approximate extent SSTF on the property, main extent of clearing in 2009 and location of soil pit sites. Ms James states that the Final Determination predates the publications she referred to and is less specific in relation to soils and sandstone influence although par 9 identifies that the EEC can occur on both shale and sandstone derived soils. The characteristic canopy species of the higher sandstone parts of the property are included in the listing provided in par 4 of the Final Determination.
In relation to environmental significance, Ms James states that SSTF has been listed as an endangered community at both state and national levels since 1998 and 2001 respectively. Approximately 9,642 ha of SSTF remain in intact condition comprising 21 per cent of pre-1750 extent. Only 420 ha or 4 per cent of remaining SSTF is protected on OEH estate. SSTF is a variable community with different forms that reflect varying sandstone influence and geographical location. The pre-clearing vegetation was of high conservation value. There is a history of disturbance at the property although significant clearing of vegetation only occurred twice including in 2009. The clearing in 2009 removed a significant proportion of the 17 years of growth of SSTF. The level of vegetation and species richness recorded in her inspections is consistent with this finding. The frequency and intensity of the clearing and the extent of soil disturbance are key factors in determining the success of regeneration and species richness. The impacts of clearing have been most significant on the extent and diversity of trees and shrubs. Tree cover prior to clearing, based on an aerial photograph taken in 2009, varied across the property but tree cover in December 2010 was significantly less. Tree and shrub regeneration is occurring but it is patchy and at lower densities than the original cover. These trees are likely to take almost 20 years to reach the size of the felled trees. Natural re-establishment of the pre-clearing tree cover will take significantly longer due to the extensive removal of trees (limiting regrowth) and seed held in capsules as well as soil disturbance and it is not assured unless the property is protected and managed appropriately.
Exhibit TAJ-7 to Ms James' affidavit filed on 20 December 2011 attaches a report dated 16 December 2011 prepared in response to a request by OEH in November 2011 to provide a supplementary report in relation to, among other things, the extent that SSTF will regenerate on the property and whether there is any evidence of steps taken to remediate the cleared areas on the property. On 30 November 2011 Ms James inspected the eastern end of the adjoining property for the first time and undertook a foot traverse within vegetation immediately adjacent to the subject property. From the road and across the fence line from the adjoining land, Ms James made the following observations: the shrub layer had regenerated across the property "within cleared areas and where under scrubbing has occurred", SSTF on sandstone influenced soils was regenerating, some grazing had recently occurred based on evidence of cow dung and condition of groundcover, there was no evidence of weed control with strong growth of noxious and environmental weeds including lantana, which was not previously recorded for the property and required urgent control. There was good connectivity of native vegetation between the site and the adjoining land.
Ms James states that it is likely the SSTF will "regenerate and recover sufficiently over 5 to 20+ years to re-establish a tree, shrub and ground layer providing no further clearing occurs. The composition and integrity of the regrowth is more difficult to determine". She expects that the clearing will encourage greater regrowth of more resilient species increasing the risk of species loss within the ground layer and smaller shrub layer and highlights that there are many references to the adverse impacts of clearing and soil disturbance on recovery ability, species diversity and integrity. Ms James notes that the specific requirements of individual species are complex and largely unknown, that slower growing shrubs dependant on regeneration from seed and more sensitive species are most at risk, and that weed invasion poses a major threat to regeneration.
Ms James states that the condition of SSTF (of both high and low sandstone influence) pre-clearing was moderate to good and observed that both forms of SSTF were subject to disturbance including through clearing of vegetation. She states that the likelihood of loss of vegetative rootstock and seed from the property as a result of disturbance is moderate for high sandstone influence SSTF and high for low sandstone influence SSTF. Ms James found that neither form is likely to return to its pre-clearing conditions. In relation to high sandstone influence SSTF this is "largely due to the extent and depth of mulch applied to the soil and invasion by exotic, weedy species". In relation to low sandstone influence SSTF she states, "Although low sandstone SSTF at the [property] appears to be regenerating well it is unlikely to return to pre-clearing species diversity particularly in wetter or more isolated sites ... due to loss of species, dense shrub regrowth and weed invasion. SSTF close to the western perimeter is more likely to recover due to a good source of available propagules and less soil disturbance." In her concluding paragraph, Ms James states that due to its inherent resilience SSTF has the potential to "condition similar to that of pre-clearing, however, this is likely to be limited by dense regrowth of woody shrubs, the extent and depth of mulch applied to the soil surface and lack of weed control during a critical period. Both short-term and long term impacts of the clearing including loss of biodiversity (flora and fauna) and degradation of ... SSTF..." Ms James assessed whether the offence was likely to significantly affect the EEC (seven part test under the TSC Act) and concluded that there was potentially a significant impact on the SSTF.
She made the following findings, among others, in conducting the seven part test. Firstly, "[r]egeneration is occurring within the SSTF and a form of the community is expected to persist at the [property] and, therefore, the clearing is unlikely to adversely affect the extent of the community." Secondly, the composition and structure of the SSTF was substantially modified reducing its "capability to recover pre-clearing species diversity and structural complexity. The original community has been replaced by an open and simplified environment with limited micro-climate and niche availability of plant and animal species. Resilient woody shrubs frequent at the [property] prior to clearing ... are likely to return at even greater intensities. Condition of the vegetation prior to clearing has been assessed as moderate to good ... Although SSTF at the [property] has been substantially and adversely modified, the local occurrence is unlikely to have been placed at risk of extinction."
Thirdly, "[a]lthough regeneration is occurring it will be several years before reasonable structure and complexity is re-established and some permanent damage is likely. High intensity clearing is known to result in reduced diversity as sensitive species are lost and the more resilient increase in frequency and cover ... Such loss of habitat is likely to be permanent unless a good tree canopy is allowed to re-establish ... SSTF at the [property] pre-clearing provided habitat for many plant and animal species including habitat for threatened species ..." Fourthly, "[t]he 2009 clearing has slightly increased fragmentation of SSTF in the north-east of the [property] with greater disconnection now between the main remnant (on the [property]) and similar vegetation on the adjoining block. This is of particular concern as the area is part of an important biodiversity corridor linking the Georges and Nepean Rivers ..."
Fifthly, "SSTF present at the [property] is one of the largest and most intact remnants in the local area and within a key biodiversity corridor linking the Georges and Nepean Rivers. It is critical to the long-term survival of the ecological community within this biodiversity corridor as well as to the corridor itself ... SSTF at the property provides potential habitat for several threatened flora and fauna." Sixthly, the offence comprises a key threatening process. Other threatening processes that are likely to have increased as a result of the offence include, among others: invasion by exotic perennial grasses, invasion and establishment of exotic vines and scramblers, loss of hollow trees, and removal of dead wood and dead trees.
Mr Tulau
Mr Tulau holds a Bachelor of Science majoring in soils and geomorphology and is currently a PhD candidate. His expert report (exhibit A) dated June 2011 arose from instructions provided by the Legal Services Branch on 11 November and 9 December 2010. Mr Tulau was asked to provide an expert opinion as to whether soils and landforms located at the property were consistent with those described in the Final Determination and the extent and area of soils and landforms present. On his inspection of the property on 15 December 2010 in the company of officers from the Department of Environment, Climate Change and Water (DECCW) (as it was then known), the Commonwealth Department of Sustainability, Environment, Water, Population and Communities and Ms James, Mr Tulau conducted a soil inspection of the six sites located by Ms James using GPS, photographed the soil, took basic field measurements and collected samples. He made observations concerning the extent of harm/damage caused or likely to be caused to soil and the property caused by the offence.
Mr Tulau requested particle size analyses for 14 samples submitted to the Department's Yanco Natural Resources Laboratory from the six sites using the methodology of B Craze et al, Soil testing procedures Department of Conservation and Land Management. Aerial photograph interpretation was carried out using photographs taken after the clearing and dated 21 August 2009 and 6 September 2009 to estimate the approximate boundaries of the different soil types taking into account the soil types at known sites, the occurrence of visually identifiable sandstone rock outcrop and the topography and elevation of the property. In relation to site 4 (located on a south west facing slope in the north-eastern part of the study area and on the northern side of the drainage line that runs through the study area) Mr Tulau concluded, "the soils at this site were largely derived from shale. However, it appears to be close to a sandstone source, and could also be characterised as a transitional soil." In relation to site 8 (located on a north-facing slope, and on the southern side of the drainage line) Mr Tulau concluded, "the soils at this site were largely derived from sandstone but are partly transitional to shale materials."
Mr Tulau compared the particle size analyses from the six sites to published results on particle size analyses from soils of known derivation and from similar landscapes from elsewhere in the Sydney Basin. Mr Tulau states that the results from Fig 9 (triangular particle size fraction diagram) and table 7 (summarising the type and abundance of coarse fragments identified using a hand lens) together with other field indicators indicate that the soils at site 4 are largely derived from shale but could also be characterised as transitional and those at site 8 are largely derived from sandstone but are partly transitional to shale. Figure 10 is an aerial photograph indicating the transitional area by showing the approximate boundaries of shale transitional (yellow dotted line) and sandstone transitional (orange dotted line) soils. The approximate boundary of cleared area is also demarcated by a thick green line. Mr Tulau estimated that the spatial extent of the areas of the property consistent with soils and landforms described in the Final Determination as an EEC is approximately 5 ha.
In cross-examination, Mr Tulau clarified that soil at site 4 is largely derived from shale, "but could perhaps better be characterised as transitional" as "it included sandstone gravels". The Defendant's counsel asked whether the qualification expressed about site 4 (of "perhaps" and "could be") also applied to site 8 and Mr Tulau replied, "Yes". Prior to being asked that question he said that soils at both sites were transitional, meaning they are "partly derived from one material, and partly derived from another material" and added, "it's very difficult to draw accurate boundaries, and there comes a time when you need to make a decision as to what the major constituent of the soils is".
Ms Byrne
In her affidavit dated 20 December 2011, Ms Byrne states that she has been employed as a regional operations officer by the OEH since 1 May 2008. On 26 August 2011 she drove along Leafs Gully Road, parked near the property, and took photographs from the property boundary. One of the photographs Ms Byrne took (exhibited to her affidavit in JRB-50) shows six cattle grazing vegetation on the property.
Mr Winch
The affidavit of Mr Winch dated 25 November 2011 states he has been employed as a tree management officer by Campbelltown City Council since June 1987. He is a certificate IV arborist and holds a certificate in horticulture and claims expertise in horticulture and in the identification and cultivation of native plants. In response to an email received on 11 August 2009 from the DECCW (as it was then known) regarding clearing, Mr Winch carried out an inspection of the property with another Council officer, on 12 August 2009. During the inspection Mr Winch observed that there had been complete devastation of the vegetation, there were cleared trees, undergrowth and debris in piles and windrows across large sections of the property, and there were felled trees and debris in the creek. Based on these observations, Mr Winch concluded that large scale clearing works had recently taken place on the property. He estimated that approximately six acres had been cleared. By making a rough estimation of the number of tree trunks in each windrow and of the number of windrows, Mr Winch estimated that between 5,000 and 7,000 medium to large trees had been removed. He identified specific trees in the windrows by examining the leaves and bark of the felled trees. He conducted a further inspection on 23 November 2011 with another Council officer to observe the regeneration on the property. He noted that the cleared areas had been recolonised by invasive weed species and that there were sapling eucalypt species.
Records of interview
The Prosecutor also tendered Mr Steven Cenatiempo's records of interview (ROIs) with officers of the OEH dated 27 January 2011 and 31 May 2011 (exhibit E). Mr Cenatiempo's ROI dated 27 January 2011 records that he was cautioned and that he objected to answering any questions on the ground that it might incriminate him. Mr Cenatiempo said he attended the interview as the nominated representative of the Defendant and that he has been a director for 15 to 20 years. He said if the role of day-to-day management of the property "had to fall on somebody" it would be him but he did not manage it on a daily basis. Mr Cenatiempo said he had responsibility for authorising work to be done on the property but if other directors wanted work done on the property, they would not have to ask him. He became aware of the clearing after receiving a telephone call from the Council. Afterward he inspected the property and observed that some (approximately 6 to 20) trees had been "pushed over". He did not authorise anyone to "push over" vegetation on the property and was not aware of anyone else in the company who would have authorised such action. Mr Cenatiempo said anything the Defendant did has always been done with development consent and they contacted "council to try to rectify the problem" and spent over "$20,000 on reports on how to fix the problem". Mr Cenatiempo knew the Defendant needed development consent to remove a tree in the way on a construction site which is what they did before touching trees on the Blaxland Road site where there were trees that were "in a pretty dangerous situation".
In his ROI dated 31 May 2011 Mr Cenatiempo stated he was unaware of clearing taking place before receiving the telephone call from Council. He denied that the clearing had been undertaken for grazing purposes, as stated in the report by Anderson Environmental Consultants dated January 2010.
Evidence of Defendant
The Defendant read the affidavit of Mr McGirr, solicitor, filed in Court on 22 February 2012 which includes a schedule summarising the costs incurred by the Defendant of carrying out mitigation works (including consultants' fees and the costs of mulching as advised by Anderson Environmental Consultants) pursuant to a notice issued by Campbelltown City Council. Copies of invoices were exhibited to his affidavit. These total $127,975.54.
Prosecutor's submissions
The nature of the offence should be considered in light of the objects in the statutory scheme, here the NPW Act and the TSC Act. The objects of the NPW Act in s 2A(1), s 2A(2) refer to the principles of ecologically sustainable development and are described in s 6(2) of the Protection of the Environment Administration Act 1991. Part 8A of the NPW Act creating a range of offences relating to threatened species, populations and ecological communities, and their habitats, was introduced by the TSC Act. The objectives of the TSC Act are set out in s 3. The nature of this statutory scheme under the NPW Act and TSC Act has been discussed in a number of cases (see for example Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51] - [71]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] - [55]).
Objective seriousness and aggravating factors
In determining the objective seriousness of an offence, it is relevant to consider the degree to which an offence undermines the legislative objectives. The offence should be treated as objectively serious because the Defendant's actions in picking plants that formed part of the SSTF:
(a) undermined the objects of the NPW Act and TSC Act, which aim to conserve nature (which includes habitat, ecosystems, ecosystem processes, biological diversity at the community, species and genetic levels).
(b) undermined the statutory scheme that provides for the conservation of EECs. In this regard, the courts have stated that offences of this type, which by their nature undermine the integrity of the regulatory system, have been treated by sentencing courts as objectively serious (see Rawson at [55]).
(c) runs contrary to the principles of ecologically sustainable development underpinning the statutory scheme, which place an emphasis on the need to assess the environmental impacts and risks associated with proposed activities and for prior environmental assessment (see Bentley at [65] - [71], [168] - [169]).
Environmental harm (NPW Act s 194(1)(a), CSP Act s 21A(2)(g))
The concept of "harm" has been considered in a number of environmental cases, which indicate that the concept is broad. It is not confined to actual harm. The potential risk of harm should also be taken into account: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. Harm is not confined to measurable harm, but can include a broader notion of harm to quality of life: see Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]. It can include harm to the environment and its ecology as harm to an animal or plant not only adversely affects that animal or plant but also affects biota that have ecological relationships to that animal or plant: see Bentley at [174]. In Environment Protection Authority v Waste Recycling and Processing Corporation at [147] Preston J stated:
Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.
Harm needs to be considered in both its spatial and temporal ambit: see R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13; [2002] Env LR 18 at [17]. The longer the harm continues the more serious it should be considered to be. The term "likely harm" means "a real or not remote chance or possibility regardless of whether it is less or more than a fifty percent chance" (see Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 at [44]).
The Prosecutor submits that the actual, likely and potential harm caused as a result of this offence indicates that the matter should be treated as objectively serious. The Prosecutor submits that in this case the environmental harm was so substantial as to amount to an aggravating factor for the purposes of s 21A(2)(g) of the CSP Act.
The evidence is that the incident caused actual harm in that there was clearing, damage and modification to trees, shrubs, grasses, groundcovers, herbs and soil forming part of the SSTF at the property (see par 18 and par 20 of the Statement of Facts and section 7.3 at p 21 in TAJ-5). The exact number of whole plants affected by or concerned in the offence is unknown, however, it is estimated that between 5,000 - 7,000 medium to large trees were affected by or concerned in the offence (see exhibit C, affidavit of Mr Winch at par 17). The harm in this respect is substantial, given that the area and number of plants affected by the commission of the offence is large (see section 7.2 at p 21 in TAJ-5, see section 3.2 at p 6 in TAJ-5, see section iv at p 21 in TAJ-7). The picking has resulted in loss to the structure and ecological function of the SSTF at the property (see section 7.5 at p 21 in TAJ-5). The harm in this respect is substantial (see section iv at p 21 in TAJ-7, see section 7.5 at p 21 in TAJ-5) given that it is likely to take up to 20 years for the SSTF at the property to restore complex ecological function (see section 7.5 at p 21 in TAJ-5). The picking has resulted in an increase in weed species at the property and within the area forming part of the SSTF at the property (see section 5.3.3 at p 17 in TAJ-5, see section 4.2.2 at p 12 in TAJ-7, see section 4.2.3 at p 13 in TAJ-7). The picking has reduced the potential habitat of flora and fauna in the Gilead area (see section 5.3.2 at page 16 in TAJ-5, see table 3 at p 16 in TAJ-5). The picking has modified the hydrology and drainage along the creek-line located within the SSTF at the property (see section 5.3.4 at p 17 in TAJ-5). The picking of SSTF on the property has led to greater fragmentation of the SSTF (see section iv of p 22 in TAJ-7).
The incident also caused potential harm in that the picking had the potential to cause indirect harm to the flora and fauna species that have ecological relationships with SSTF (see section v of p 22 in TAJ-7, see section 7.4 at p 21 in TAJ-5). The picking resulted in large areas of soil and land being exposed, including soil and land in the area of the creek-line. In the absence of the mulching works undertaken by the Defendant in response to the prevention notice issued by Campbelltown City Council under the Protection of the Environment Operations Act 1997, this may have caused soil erosion on the cleared/disturbed land left exposed by the picking and works on the property (see attachments 25 and 26 of the Statement of Facts).
There are a number of cases heard after the insertion of s 194 of the NPW Act where this Court has applied the mandatory considerations (both aggravating and mitigating factors) set out in s 21A of the CSP Act in addition to the mandatory factors in s 194(1) of the NPW Act. See for example, Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 at [14] - [18] (where the Court also considered that harm to the environment could be an aggravating factor for the purposes of s 21A(2)(g)); Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 at [48] - [52]; Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [60] - [61]; Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 at [78] - [81] and Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [54] - [55].
Significance of EEC harmed (s 194(1)(b))
The evidence also indicates that the SSTF that was harmed was a significant stand of EEC due to:
(a) The size of the SSTF at the property, being 12.54 ha. The SSTF at the property is one of the largest and most intact remnants of SSTF in the local area and is part of a local occurrence of SSTF (see section v of p 22 in TAJ-7). In total, only 9,642 ha of SSTC remains in intact condition, comprising 21 per cent of pre-1750 extent. Only 420 ha or 4 per cent of remaining SSTF is protected on OEH estate (see section 4.1 at p 11 in TAJ-5, see section v of p 22 in TAJ-7).
(b) The condition of the SSTF at the property, which was assessed as moderate to good (see section iv at p 21 in TAJ-7, see section 4.2.2 at p 11 in TAJ-7, see section 4.2.3 at p 12 in TAJ-7).
(c) The connectivity provided by the SSTF at the property, resulting from the fact that the SSTF was located in a key biodiversity corridor linking the Georges and Nepean Rivers and its position between other stands of SSTF on adjoining properties (see section iv at p 22 in TAJ-7, see section v at p 22 in TAJ-7, see section 4.9 at p 13 in TAJ-5).
(d) The SSTF at the property provides potential habitat for threatened flora and fauna (see section v of p 22 in TAJ-7, see section 7.4 at p 21 in TAJ-5, see section 7.7 at p 22 in TAJ-5, see section 4.5 at p 12 in TAJ-5). The SSTF has been identified as having significant conservation value in that it contains "Core Habitat" and "Support to Core Habitat"; contains "Preferred Koala Habitat"; has been assessed as having a "high" and "medium" biodiversity assessment; contains priority habitat for Grassy Box Woodland; contains the Cumberland Koala linkage (see section 4.3 at p 12 in TAJ-5, see section 4.9 at p 14 in TAJ-5, see section 7.7 at p 22 in TAJ-5, see section v of p 22 in TAJ-7).
The practical measures available to prevent, control, abate or mitigate the harm (s 194(1)(c))
There were a number of practical measures that could have been taken to avoid the harm that occurred. The Defendant could have made inquiries with Campbelltown City Council or the OEH regarding the need to obtain approval and then obtained that approval before clearing vegetation on the land, or made inquiries of a consultant on the lawfulness of clearing vegetation or whether approval was required. Mr Cenatiempo knew that the removal of trees required council approval (see par 51c of the Statement of Facts). If the Defendant had made such inquiries, the legitimate inference given that previous studies had identified SSTF being present on the property is that it would have been aware that SSTF was present on the property.
In relation to commercial gain, this is a relevant factor under s 194(1)(h) of the NPW Act as well as an aggravating factor under s 21A(2)(o). A commercial motive for the picking the subject of the offence has been established, given the use of the property for grazing purposes. I take that matter into account under s 194(1)(h) of the NPW Act.
State of mind
The offence is one of strict liability. As submitted by the Prosecutor, the Defendant's state of mind is relevant to assessing the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed (Rae at [42]; Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and [356]; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [75]; Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 at [53] and Scahill at [69]). The circumstances surrounding the offence are unknown. The person who undertook the clearing on behalf of the Defendant is not known nor how the clearing came about. The Prosecutor submitted that inquiries should have been made before clearing was commenced by someone on the Defendant's behalf and the failure to do so was negligent (inadvertent) or possibly reckless (advertent). Reliance was placed on Mr Cenatiempo's statement in an ROI that he was aware that council permission was required for the removal of trees because of a tree preservation order in a development consent context. His counsel submitted this could not be relied on to infer that he was aware that tree clearing on a rural property required consent.
In Ianna I held that the failure to make inquiries absent any evidence from the Prosecutor establishing that the landholder not making inquiries was taking the risk of committing an offence inadvertently, was not negligent. I held similarly in Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 at [39] - [42]. Having given this matter further consideration, I consider that in theory landholders of rural property undertaking land clearing of native vegetation are negligent if they fail to make proper inquiries about whether proposed clearing is permissible. The Acts in question here have been in operation since 1974 (NPW Act) and 1996 (TSC Act). This SSTF has been listed as an EEC under the TSC Act since 1998 and picking prohibited since then. Section 12(1) of the Native Vegetation Act 2003 which came into force in December 2005 prohibits clearing native vegetation and a similar offence existed since January 1998 in the Native Vegetation Conservation Act 1997 (repealed). There have been a number of prosecutions and publication orders made by this Court in land clearing offences under these Acts and native vegetation protection legislation. In order to make a finding of negligence or recklessness however there must be some awareness of the fact of clearing on the part of the person charged to underpin a finding of failure to make inquiries. There is none identified in this case. Knowledge of tree preservation orders by Mr Cenatiempo does not fill in that gap for the Prosecutor. The evidence does not establish negligence or recklessness in this case.
Conduct after the offence
The Prosecutor submitted the Defendant was unco-operative and misleading after the offence. Such matters must be proved beyond reasonable doubt if these are to be found against the Defendant. Requests for extensions of time to provide information to the Prosecutor were relied on but do not alone establish misleading behaviour. In the absence of evidence establishing how the clearing came to take place the Prosecutor has not proved that Mr Cenatiempo lied in the ROIs when he said he did not know how the clearing took place. The Prosecutor has not established conduct adverse to the Defendant's interests after the offence.
Conclusion on objective seriousness
The objective seriousness of this matter in light of the significant environmental harm caused to the SSTF, the foreseeability of harm, the exercise of control by the Defendant as owner, and that the clearing was for commercial gain suggest this matter is of moderate to severe objective seriousness.
Subjective circumstances
Section 21A(3) of the CSP Act specifies mitigating factors that are to be taken into account pursuant to s 21A(1)(b) where these are relevant and known to a court.
Guilty plea CSP Act s 21A(3)(k), s 22
An early plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10 - 25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300.
The Defendant submitted a plea of guilty was entered at the earliest opportunity suggesting the maximum discount in penalty should be considered. The plea of guilty at that stage did not necessitate the preparation of more evidence by the Prosecutor as that had to be prepared in any event. The Prosecutor pointed to the plea of guilty being entered at the hearing as suggesting that an early plea was not entered and the maximum discount was not therefore warranted.
The history of the proceedings must be considered. These commenced on 15 July 2011, were listed for first mention on 26 August 2011 and stood over to 16 September for a plea or mention. On that date the matter was again stood over to 30 September 2011. On that date it was further stood over to 7 October 2011 for a plea or mention and the Court noted that if a plea was not entered on the next occasion the matter would be set down for a defended hearing. On 7 October 2011 for the Court set down the matter on the assumption of a defended hearing of ten days commencing on 13 February 2012. The Prosecutor was ordered to file and serve all of its evidence on liability by 25 November 2011. On 25 November 2011, the Prosecutor sent a letter to the Defendant's solicitors enclosing copies of seven affidavits and advising that additional evidence relating to sentence would be served as soon as it had been finalised. On 21 December 2011, the Prosecutor sent a letter to the Defendant's solicitors enclosing copies of two affidavits, one of Ms James affirmed 16 December 2011 together with exhibit TAJ-7 (being evidence on sentence) and one of Ms Byrne affirmed 19 December 2011 (noting that this affidavit was identical to an affidavit previously served with the exception of par 41 - 50 of the affidavit). The Defendant entered a plea of guilty on 14 February 2012 after the parties sought an adjournment of the matter on the first day of hearing (13 February 2012).
The Defendant argued that the first reasonable opportunity to plead was on 14 February 2012 after the plea bargain was offered by the Prosecutor on 10 February 2012 and cited Holley in support. In Holley the defendants sought a 25 per cent discount for pleading guilty at the third mention of the summons because it was the first reasonable opportunity to plead. The parties agreed that there was no loss of utility in the plea of guilty being entered on the third occasion because an affidavit which was filed between the first and second mentions (but which only one of the defendants had received) needed to be filed in any event and dealt with issues of sentencing, not liability. Lloyd J was referred to Cameron v R [2002] HCA 6; (2002) 209 CLR 339; R v Borkowski [2009] NSWCCA 102; (2006) 225 CLR 130, Sullivan v R; Skillin v R [2008] NSWCCA 296; (2008) 51 MVR 572 and Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77. Lloyd J concluded at [89] that the defendants should receive the benefit of a 20 per cent discount because the affidavit in question pertained to sentencing, not liability, the evidence on which had been filed and served.
In Cameron v R at [19] - [20] the joint judgment of Gummow, Gaudron and Callinan JJ (Kirby J agreeing in a separate judgment, McHugh J dissenting) after referring to the common law requirement that an offender must not be penalised for pleading not guilty, stated:
... a plea of guilty may be taken into account in mitigation for the reason that a plea evidences a willingness to facilitate the course of justice ... the relevant question is not simply when the plea was entered but ... whether it was possible to enter a plea at an earlier time ... the question is when it would first have been reasonable for a plea to be entered.
Kirby J agreed with the majority and said at [75]
The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly.
In Sullivan at [16] - [17], Howie J (McClellan CJ at CL and Grove JJ agreeing) said:
... Clearly the applicant could have indicated a willingness to plead guilty to some charges early in the proceedings. He did not have to wait until the Crown was in a position to go to trial in order to enter into negotiations. If he chooses to wait to see what the Crown is going to do at trial then clearly the utilitarian value of the pleas is less. He knew what offences he had committed even if the Crown was not in a position to prosecute him for those matters. If the accused waits as a matter of tactics before entering negotiations with the Crown then so be it, but he does not obtain the advantage of the full utilitarian value of an early plea.
At the hearing of the application, counsel for the applicant submitted that the Judge should have taken into account that whole history of the matter including the various charges that the Crown laid at different times during the period of the prosecution that did not find their way on to the final indictment. In my opinion none of this history changes the situation that the applicant knew what offences he had committed and what he was prepared to acknowledge whether the Crown had chosen to charge him with those offences or not. It is not unusual for persons to acknowledge to the authorities guilt of offences uncharged against them in an effort to clear the record and, as a result, be rewarded with what is known as an Ellis discount. A discount of 15 per cent was more than appropriate to meet the situation in this case.
In Borkowski at [32] Howie J (McClellan CJ at CL and Simpson J agreeing) set out the following principles in applying the discount for the utilitarian value of a guilty plea:
1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].
2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].
3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.
4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.
5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the 'Ellis discount'; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.
6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291
7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.
8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.
9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56;Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.
...
12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.
In Gosford City Council Biscoe J accepted at [100] the parties' submissions that there was no loss of utility in the plea of guilty being entered on the second occasion the matter was before the Court because the affidavit the prosecutor filed and served between the first and second occasions related to environmental harm and would have been filed even if the plea had been entered on the earlier occasion. Biscoe J found there was no greater utility served if the defendant had pleaded guilty at the first mention. After referring to R v Thomson to the effect that the primary consideration is the timing of the plea and the secondary consideration is the complexity of the issues and length of the trial, his Honour discounted the sentence for the utilitarian value of the plea by 22 per cent.
This case is different to other cases considered to date in this Court in that the Court listed the matter in October 2011 for hearing for two weeks before the Defendant had received all the Prosecutor's evidence on liability and therefore before the Defendant had the opportunity to plead in light of that evidence. All the Prosecutor's evidence was served on the Defendant by 21 December 2011, with the evidence as to liability served by late November 2011. The Defendant submits that a reasonable opportunity to plead after all the Prosecutor's evidence on liability was served in this case meant the earliest opportunity to plead was at the hearing. The offence relies on complicated facts in relation to the identification of SSTF which required expert evidence to be considered. There is potential for some tension in the cases referred to above in relation to the discount arising from the timing of the plea between the first reasonable opportunity for a plea to be entered (Cameron v R) and the recognition of the utilitarian value of a plea in a discount of penalty emphasised in Sullivan and Borkowski. The latter cases emphasise that in order to attract a full discount the plea must be at the earliest opportunity not necessarily armed with all the evidence the prosecutor will rely on and not following a plea bargaining process, for example. These Court of Criminal Appeal cases including Borkowski (particularly in principles 8 and 9 set out at par 131 and the cases cited therein) emphasise that the full discount is directed to the utilitarian value of an early plea, resulting in a saving to the State of the expense of a trial.
A further consideration is the extent to which a contested sentence hearing is required to determine disputed questions of fact. As submitted by the Prosecutor, "If a defendant pleads guilty but puts a prosecutor to proof on certain factual issues and ultimately loses that dispute, the defendant is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require a contested sentence hearing: see R v AB [2011] NSWCCA 229 at [2] and [27] - [33]". These observations apply in this case given the lengthy voir dire and challenge to the Prosecutor's expert evidence concerning the extent of SSTF cleared by the Defendant.
The Court of Criminal Appeal decisions cited above do not support the Defendant's argument for a 25 per cent discount for entering a plea of guilty on 14 February 2012 as the timing did not result in a full measure of saving of Court time and expense. While recognising the need for a defendant o have a reasonable opportunity to plead and making allowance for that in this case, I do not consider a full 25 per cent discount is warranted, rather a discount of 15 per cent is warranted in all the circumstances.
Not a planned activity CSP Act s 21A(3)(b)
The Defendant submitted that the offence was not a planned or organised activity, a mitigating factor referred to in s 21A(3) of the CSP Act.
No prior convictions CSP Act s 21A(3)(e)
The Defendant submitted that it had no prior convictions and this is not disputed by the Prosecutor.
Unlikely to re-offend CSP Act s 21A(3)(g)
The Defendant's counsel submitted from the bar table that the Defendant is unlikely to re-offend (s 21A(3)(g)). There is no evidence from the Defendant to support such a finding on the balance of probabilities and I do not assume this matter in favour of the Defendant.
Remorse not demonstrated CSP Act s 21A(3)(i)
The Defendant's counsel expressed contrition from the bar table and also said it accepted responsibility by paying for works in accordance with the Anderson Environmental Consulting's reports. Section 21A(3)(i) states that remorse shown by the offender can lessen the relative seriousness of the sentence only if the "offender has provided evidence that he or she has accepted responsibility for his or her actions". In Newcastle City Council v Pepperwood Ridge Pty Limited [2004] NSWLEC 218 at [29] I stated, "It is desirable in my view that a director swear an affidavit for a corporate defendant if an expression of contrition is to be given serious weight by this Court. Accordingly I do not give the submission from the bar table by the Defendant's counsel much weight; see also Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [116] to similar effect. In relation to the works undertaken in response to a statutory notice, the measures were not voluntary. There is no evidence the Defendant has undertaken any remediation of the SSTF since the clearing/picking. There is no evidentiary basis for finding that remorse has been shown by this Defendant.
General deterrence
Section 3A(b) of the CSP Act states that one of the purposes for a court in imposing a sentence is to prevent crime by deterring offenders. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359:
The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.
This has been identified as an important consideration in offences of this kind. See Bentley at [139] - [144]; Rae at [9] - [13]; Calman at [51] - [52]; Rawson at [173].
Specific deterrence
Another purpose of sentencing is to deter the offender from committing similar offences (s 3A(b)). The objective circumstances of this case are serious in light of the environmental harm caused, the significance of the extent of SSTF cleared, and that the harm was foreseeable and measures could have been taken to avoid it. The Defendant is a company, has shown no remorse, has provided no evidence that it is unlikely to re-offend and undertook the clearing for commercial gain. Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, 'Principled Sentencing for Environmental Offences', a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006.) Specific deterrence should be reflected in the penalty for this Defendant.
Even-handedness
The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court. The Prosecutor provided a table of cases which referred to Ianna (13 ha of selective logging of EEC by individual, penalty $30,000, large legal costs, no knowledge of EEC listing), Garrett v Williams (2006) (45 trees on the first charge and 3 trees on the second charge, both deliberately committed knowingly and with premeditation, $150,000 fine for the first and $30,000 fine for the second charge), Plath v Fletcher [2007] NSWLEC 596 (33 trees, committed deliberately with knowledge that the vegetation was protected, $46,000 fine) and Garrett v Williams (2007) (2.9ha cleared knowingly and intentionally, $110,000 fine and 400 hours community service). I note that the amendments to the NPW Act allowing for the making of additional orders sought in this case (which came into effect in 2010) were not available in these cases.
In relation to the need for care in considering sentencing patterns, if any, I adopt the following reference to Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434 at [54] cited in Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 at [118]:
In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence " (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
Restoration order to be imposed
Under s 199(1) one or more orders under Pt 15 Div 3 may be made against an offender. The Prosecutor seeks a restoration order as provided for under s 200(1) of the NPW Act in the terms identified in attachment B to its submissions. Required actions identified include fencing an area, the exclusion of stock, a plan identifying the restoration area which extends beyond the area identified by Ms James as cleared of SSTF and a reporting obligation in a designated format. The term of the proposed order is 20 years, relying on evidence of Ms James that such a period is required.
The Defendant opposed such an order on several bases. Firstly, the harm caused was not so great as to warrant it. The Defendant argued that the SSTF is resilient and good at regenerating, based on Ms James' evidence and on the aerial photographs produced by the Prosecutor from 1956 to 2008. The photographs show two major clearing episodes before 1956 and between 1982 to 1992 and substantial regrowth thereafter. Secondly, the Defendant submitted that only subsection (c) "to make good any resulting damage" can apply as it operated retrospectively unlike subsection (a) which can only operate prospectively. The Defendant further argued that s 200(1)(c) "to make good any resulting damage" did not permit the making of a restoration order which resulted in improvement to the SSTF cleared. Only resulting damage can be the subject of a restoration order and the SSTF picked was of moderate quality only, according to Ms James' evidence. The Defendant cannot be required to restore the area to pristine condition. Thirdly, the order if made cannot apply to an area beyond that cleared which is the subject of the offence. To do so is not permitted by s 200.
Firstly, s 200 provides that the Court may make a restoration and prevention order to prevent, control, abate or mitigate any harm caused by the commission of the offence (ss (a)) and, under ss (c), to make good any resulting damage. The Defendant submitted that ss (a) only applied prospectively, unlike ss (c), and could not therefore provide a statutory basis for this restoration order. This construction was said to arise from the terms of the section and was the foundation for the argument that a restoration order could be made only in reliance on ss (c). Given the broad scope of ss (a) which refers to the control and mitigation of harm inter alia, which can require prospective action, I do not see any constructive reason why ss (a) should be so confined. A restoration order in this matter can be directed to the achievement of matters identified in ss (a) and (c). This finding means that a restoration order can address more than resulting damage on the assumption that there is some limitation in the scope of damage able to be repaired under ss (c).
Secondly, the Defendant's argument against the imposition of an order because the harm did not warrant it is based in large part on the natural ability of the SSTF to regenerate. In the context of damage to fish habitat offences under the Fisheries Management Act 1994 in Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227 the defendants argued that if any damage was caused by the removal of woody debris or snags from the Murray River, it would be ameliorated over time because the large river system is dynamic and the supply of snags would be replenished over time. I stated at [185] that if the "defendants' submissions were adopted it is unlikely that any prosecutions would be able to establish that damage had occurred as the dynamic nature of the River environment would always allow the submission to be made that natural processes will replenish and overcome any change of habitat so that damage would be temporary at most or that no damage over time would be caused. Such an interpretation does not give effect to the protective objectives of the FM Act which would be severely undermined by such an interpretation." A similar finding should be made in this case that the Defendant's approach will not achieve the objects of the TSC and NPW Acts which are aimed at the preservation of EEC, inter alia, as already identified above at par 4 and 6.
There is expert evidence of harm caused to the environment as an immediate consequence of the clearing. Although Ms James observed that regeneration is occurring on the property and the local SSTF is unlikely to have been placed at risk of extinction, as summarised above at par 23, she identified invasion by weeds as a threatening process which is likely to have increased as a result of the offence and inhibit SSTF regeneration. Mr Winch also noted the presence of invasive weeds at par 29 above. While Ms James assessed the pre-clearing vegetation as "moderate to good", she notes it was of high conservation value (at par 17 above). She emphasises that the trees will take approximately 20 years to reach the size of the felled trees and "natural re-establishment of the pre-clearing tree cover will take significantly longer and it is not assured unless the property is protected and managed appropriately" (at par 17 and 19). She also states that neither SSTF form is likely to return to its pre-clearing condition, that the potential of SSTF to return to a condition similar to that of pre-clearing is likely to be limited by the lack of weed control during a critical period, among other things (at par 20), and that permanent damage to the SSTF stand is likely (at par 22). Ms James repeatedly highlights (at par 19 to 22) that the clearing affected the structure and composition of the EEC, that there is a loss of species diversity as the conditions are favourable to regeneration of resilient species while more sensitive species are at risk. I also refer to my comments above at par 101 - 102 in relation to the significance of the SSTF stand. The harm caused is substantial and Ms James expert evidence confirms the essentiality of positive restorative action to achieve some measure of regeneration.
Clearing is identified as a threatening process in par 14 of the Final Determination and other identified threats include weed invasion and grazing. Paragraph 15 states, "In view of the small size of existing remnants the threat of further clearing and other threatening process, the Scientific Committee is of the opinion that SSTF in the Sydney Basin Bioregion is likely to become extinct in nature unless the circumstances and factors threatening its survival cease to operate and that listing as an endangered ecological community is warranted." Not imposing a restoration order is not consistent with par 14 and 15 of the Final Determination.
Further, the argument that the SSTF was of medium quality only and the Defendant should not be required to restore the SSTF to a better condition than at the time of the offence is not consistent with the objective of the legislation being enforced. There is no guarantee that the restoration works will succeed in restoring the SSTF to any particular condition in any event. The argument is analogous to that made by some defendants in early water pollution cases to the effect that more pollution in an already polluted waterway does not result in as much harm to the environment: see for example Environment Protection Authority v Sydney Water Corp Ltd, NSWLEC, Talbot J, 18 December 1996, unreported; Environment Protection Authority v Bituminous Products Pty Ltd [1999] NSWLEC 247 at [15]). That argument was rejected in that context and should also be rejected here in relation to restoration requirements given the legislative objectives intended to be achieved.
I consider the harm which has resulted from this offence is substantial and the terms of s 200(1)(a) and (c) justify the making of a restoration order in the terms sought by the Prosecutor, subject to amendment of the area covered by the order. I consider accountability for one's actions and adequate punishment, which are two purposes of sentencing (s 3A(a) and (e)), can be achieved through the imposition of a restoration order.
In relation to whether the order can apply to a wider area than the area of SSTF cleared, the Prosecutor relied on Slack-Smith. The issue raised by the Defendant of whether a restoration order can apply to more than the cleared area the subject of the offence was not discussed in that case. The expert evidence in this case confirms that the boundaries of the SSTF are not precise and the evidence of Ms James (summarised at par 22 above) confirms the need for connectivity of the SSTF on the property with neighbouring lands. Some latitude in the boundaries of SSTF cleared and therefore requiring restoration is warranted given the necessary lack of precision. However the area of additional land beyond the area of SSTF cleared identified in the plan attached to the restoration order includes areas of Cumberland Plain Woodland allegedly cleared which were the subject of a separate charge which did not proceed. These should be excluded as there is no expert basis presented for why these areas should also be included in the restoration order. The plan attached to the restoration order otherwise attached as Annexure B to this judgment requires amendment before the order with the plan can be finally made.
Additional orders
The Prosecutor also seeks three publication orders pursuant to s 205(1)(a). In submissions made subsequent to the main hearing the Prosecutor identified that the first order sought is an order requiring publication of the publication notice provided with its submissions in the Sydney Morning Herald (SMH) and the Campbelltown-Macarthur Advertiser of a specified size and location in the newspapers. The second order requires the Defendant to provide to the Prosecutor within 14 days of publication a complete copy of the pages showing the notices in the newspapers.
The Defendant objected to that part of the first order which required it to publish in the SMH because this was not supported by any evidence of the Prosecutor justifying the necessity for such an order, was not the order made in proceedings of this kind to date, and the cost of publication was prohibitive. The Prosecutor relied on a similar order being made, with the consent of the defendant, in relation to a PEO Act offence in Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39. In five other prosecutions considered in the Court since the introduction of s 194 (identified above at par 40) the publication orders made required publication in local newspapers, see Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council and Plath v Hunter Valley Property Management Pty Limited.
I do not consider the Prosecutor has adequately justified why the Court should require publication in the SMH in addition to the local newspaper. I also take into account the parties' advice of the substantial cost. I will otherwise make the first and second publication orders sought by the Prosecutor which are otherwise unopposed by the Defendant. Denunciation of the conduct of the offender (s 3A(f) CSP Act) can be achieved through the imposition of a publication order.
An order under s 205(1)(d) to pay a specified amount to a specified organisation for a specified project for the restoration of the environment is also sought. Such an environmental services order can be made in addition to or instead of any penalty imposed (NPW Act s 199(2) or (3)). The Prosecutor submitted in this case no penalty could be imposed and instead an order should be made under s 205(1)(d) for the environmental services project identified in the Prosecutor's submissions. I consider an environmental services order under s 205(1)(d) in the terms proposed by the Prosecutor at attachment C to the written submissions ought be made instead of a fine being imposed. In light of the making of that order I consider I should make the third publication order sought that:
Pursuant to s 205(1)(a) of the NPW Act, all future public references by the Defendant to the payment towards the "Restoration Works at Noorumba Reserve, Gilead Project" shall be accompanied by the following passage:
Kyluk Pty Limited's contribution to the funding of the Campbelltown City Council's Restoration Works at Noorumba Reserve, Gilead Project is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of picking plants that formed part of an endangered ecological community, an offence against s 118A(2) of the National Parks and Wildlife Act 1974.'
The Defendant does not object to the making of that third publication order.
As submitted by the Prosecutor, the fact that the Defendant company incurred costs as a result of the offence in reducing the impact of clearing through the spreading of mulch in accordance with its consultant's reports is not relevant to my determination of the appropriate penalty: Sibelco at [101]. The Defendant incurred these costs in complying with a statutory notice issued by the Council. The invoices attached to Mr McGirr's affidavit relate to the work necessitated by the Council's statutory notices which related to mitigation of the effects of the clearing.
Taking into account the objective factors outlined above including the substantial harm caused and that a large number of trees were picked within the area identified as SSTF by Ms James, the picking was undertaken for commercial gain, the lack of remorse and in light of few mitigating factors, the appropriate penalty is $150,000. This should be discounted by 15 per cent in light of the Defendant's plea of guilty to $127,500. The imposition of a restoration order requiring long term financial commitment by the Defendant is an additional impost necessitated by the need to correct the harm caused by the offence. Instead of imposing a penalty I will impose an order under s 205(1)(d) in the terms outlined in attachment C to the Prosecutor's submissions being Annexure A to this judgment.
Legal and investigation costs
The Defendant should pay the Prosecutor's legal costs as agreed or assessed. While investigation costs were sought by the Prosecutor in brief written submissions, no evidence was presented to justify an order in the circumstances identified in s 203 of the NPW Act.
Orders
The Court makes the following orders:
1. The Defendant is convicted of the offence charged.
2. Pursuant to s 205(1)(d) of the National Parks and Wildlife Act 1974 the Defendant is to pay $127,500 to the Campbelltown City Council for the purposes of the project "Restoration Works at Noorumba Reserve, Gilead Project" as detailed in Annexure A with the timetable for payment to be made within 14 days by agreement or order of the Court.
3. Pursuant to s 200 of the National Parks and Wildlife Act 1974 the Defendant must carry out restoration works at the property in accordance with Annexure B subject to the amendment of the plan identifying the area to be restored in accordance with par 153 of this judgment.
4. Pursuant to s 205(1)(a) of the National Parks and Wildlife Act 1974:
(a) The Defendant, within 28 days of this order, is to place a notice in the Campbelltown-Macarthur Advertiser within the first six pages at a minimum size of 18cm x 12cm in the form of Annexure C.
(b) The Defendant, within 14 days of this order, is to provide to the Prosecutor a complete copy of the page of the publication in which the notice appears.
(c) All future public references by the Defendant to the payment towards the "Restoration Works at Noorumba Reserve, Gilead Project" referred to in order 2 shall be accompanied by the following passage:
"Kyluk Pty Limited's contribution to the funding of the Campbelltown City Council's Restoration Works at Noorumba Reserve, Gilead Project is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of picking plants that formed part of an endangered ecological community, an offence against s 118A(2) of the National Parks and Wildlife Act 1974."
5. The Defendant must pay the Prosecutor's costs of the proceedings as agreed or assessed.
6. The exhibits are to be returned.
Annexure A (PDF - 1.8MB)
Annexure B (PDF - 3MB)
Annexure C (PDF)
Decision last updated: 26 March 2012
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