Director-General, Department of Environment and Climate Change v Hudson (No 2)

[2015] NSWLEC 110

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110
Hearing dates:	4, 5, 17 and 21 June 2013
Date of orders:	10 July 2015
Decision date:	10 July 2015
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	See orders at [247]
Catchwords:	ENVIRONMENTAL OFFENCES: unlawful clearing of native vegetation – failure to comply with a statutory notice to provide information and materials – conviction upheld on appeal – sentence overturned on appeal – sentencing principles – objective factors – serious environmental harm – subjective factors – no plea of guilty – totality principle – extra-curial punishment – liability for costs on remitter – liability for costs at first instance.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3, 3A, 21A, 22, 23 Criminal Appeal Act 1912, ss 2, 5AA, 5AB,12, 17 Criminal Procedure Act 1986, ss 257B, 257G Fines Act 1996, s 6 Land and Environment Court Act 1979, s 6 National Parks and Wildlife Act 1974, s 118D Native Vegetation Act 2003, ss 3, 11, 12, 19, 20, 22, 36 Noxious Weeds Act 1993
Cases Cited:	Alameddine v The Queen [2006] NSWCCA 317 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cessnock City Council v Quintaz Pty Ltd [2010] NSWLEC 3; (2010) 172 LGERA 52 Christodoulou v R [2008] NSWCCA 102 Connell v Santos NSW Pty Ltd [2014] NSWLEC 1; (2014) 199 LGERA 84 Corbyn v Walker Corporation [2012] NSWLEC 75; (2012) 186 LGERA 442 D’Anastai v Environment Protection Authority [2010] NSWLEC 260; (2010) 181 LGERA 412 Garrett On Behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 265 Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 2 Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100; (2010) 173 LGERA 366 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Director-General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200 Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19 Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Gardner [1997] NSWLEC 169 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Orica Australia Pty Ltd (the Hexavalent Chromium Incident) [2014] NSWLEC 106 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 225 A Crim R 113 Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche [2013] NSWLEC 191 Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273 Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gore v The Queen; Hunter v The Queen [2010] NSWCCA; (2010) 208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lee v Office of Environment and Heritage [2012] NSWLEC 9 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 Chief Executive, Office of Environment and Heritage v Kyluck Pty Ltd (No 4) [2014] NSWLEC 74 Chief Executive of Office of Environment and Heritage v Newbigging [2013] NSWLEC 144 Chief Executive of the Office of Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115 Chief-Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Morgan (1993) 70 A Crim R 368 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category:	Sentence
Parties:	Director-General, Department of Environment and Climate Change (Prosecutor) John Ross Hudson (Defendant)
Representation:	Counsel: Mr E Muston and Mr C Brown (Prosecutor) Mr P King (Defendant)   Solicitors: Office of Environment and Heritage Legal Services Branch (Prosecutor) Hicksons Lawyers (Defendant)
File Number(s):	50014 and 50035 of 2008

TABLE OF CONTENTS

Second Hearing of Sentencing Proceedings	[1]
Decision at First Instance Before Lloyd J	[3]
Proceeding Before the Court of Criminal Appeal	[7]
Issues to be Determined	[16]
Events Prior to the Unlawful Clearing	[19]
Mr Hudson’s Dealings with Mr Sattler	[46]
The Unlawful Clearing Event	[54]
Events Following the Clearing	[59]
The Failure to Comply with the Notice	[75]
Evidence of Mr Hudson	[77]
Sentencing Principles	[86]
Objective Circumstances of the Offences	[93]
Nature of the Offences	[94]
Maximum Penalties	[102]
Environmental Harm Caused by the Commission of the Offences]
State of Mind of Mr Hudson	[131]
Reasons for Offending	[150]
Foreseeability of the Risk of Harm	[155]
Practical Measures Available to Mr Hudson to Avoid or Mitigate the Harm	[158]
Control Over the Causes of the Harm	[164]
Conclusion on Objective Gravity	[168]
Subjective Considerations	[170]
Lack of Prior Criminality	[173]
Good Character	[174]
Likelihood of Re-offending	[175]
Demonstrated Remorse	[176]
Early Guilty Plea	[182]
Assistance to Authorities	[183]
Agreement to Pay the Prosecutor’s Costs	[185]
Extra-Curial Punishment	[189]
Conclusion on Subjective Considerations	[198]
The Appropriate Sentence to be Imposed on Mr Hudson	[199]
Deterrence	[200]
Denunciation and Retribution	[205]
Consistency in Sentencing	[206]
Sentencing Trends for Native Vegetation Clearing Offences	[209]
Sentencing Trends for the Notice Offence	[211]
The Application of the Totality Principle	[213]
Conclusion on Appropriate Penalty	[215]
Capacity to Pay Fines Imposed	[219]
Costs	[222]
Costs of These Sentence Proceedings	[224]
Costs of Proceedings Before Lloyd J	[225]
Orders	[248]

Judgment

Second Hearing of Sentencing Proceedings

1. In summonses dated 26 February and 24 June 2008 respectively, the defendant, Mr John Hudson, was charged with the commission of two offences contrary to the Native Vegetation Act 2003 (“the NVA”), namely:

1. first, the clearing of native vegetation otherwise than in accordance with a development consent or a property vegetation plan (“PVP”), in contravention of s 12 of the NVA (matter number 50014 of 2008, “the unlawful clearing offence”):

12   Clearing requiring approval

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

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

(b)     a property vegetation plan.

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

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

2. second, the failure to comply with a notice issued under s 36(2) of the NVA to the extent that he was capable of complying with it in contravention of s 36(4) of that Act (“the Notice”) (matter number 50035 of 2008, “the notice offence”):

36   Power to obtain information

(2)     The Director-General may, by notice in writing served on a person, require the person:

(a)     to give to an authorised officer, orally or in writing signed by the person (or, if the person is a corporation, by a competent officer) and within the time and in the manner specified in the notice, any relevant information of which the person has knowledge, or

(b)     to produce to an authorised officer, in accordance with the notice, any document containing relevant information.

…

(4)     A person must not, without reasonable excuse:

(a)     fail to comply with such a notice to the extent that the person is capable of complying with it, or

(b)     in purported compliance with such a notice, give information or an answer to a question, or produce a document, knowing that it is false or misleading in a material particular.

2. Initially, Mr Hudson pleaded not guilty to both offences.

Decision at First Instance Before Lloyd J

3. On 11 February 2009, Lloyd J convicted Mr Hudson in respect of each offence. His Honour fined him $400,000 for the unlawful clearing offence and $8,000 for the notice offence (Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256) (“the primary proceedings”).

4. Relevantly for the purpose of this appeal, his Honour made the following findings of fact in respect of Mr Hudson’s liability for the unlawful clearing offence:

1. that clearing had occurred on the subject land (“Yarrol”) during the charge period (at [16]);

2. that the vegetation cleared was “native vegetation” within the meaning of the NVA (at [24]);

3. that no development consent or PVP was granted to Mr Hudson to undertake the clearing of native vegetation (at [28]);

4. that Mr Hudson authorised the carrying out of the clearing insofar as he personally instructed the earthmoving contractors as to which areas to clear on Yarrol (at [29]). But, that he sought to justify this clearing “on the basis that it was approved by Ms Elizabeth Savage and otherwise undertaken to control the noxious weed Lippia” (at [31]);

5. that the clearing was not permitted under any of the exceptions contained in Div 2 of the NVA. That is to say, it was neither groundcover (s 20) nor regrowth (s 19) (at [34] and [35] respectively);

6. that 14 ha of the clearing was for a routine agricultural management activity (“RAMA”), namely, the construction, operation and maintenance of rural infrastructure (ss 11(1) and 22 of the NVA) (at [46]);

7. that at the time of the clearing, Lippia was a locally controlled weed and was subject to a weed control order (at [53]);

8. that Mr Hudson’s clearing did not constitute, however, the removal of a noxious weed as required under a weed control order, and therefore, the removal of the Lippia was not a RAMA (at [55]):

9. that, in any event, the clearing exceeded the minimum extent necessary for the carrying out of the activity (s 22(2)(a) of the NVA) (at [56]); and

10. that Ms Savage had not authorised the clearing (at [58]). In this regard, Lloyd J stated that (at [58]):

58   Ms Savage accepts that she and Mr Hudson had a number of discussions about whether and to what extent Mr Hudson could clear vegetation on Yarrol. Ms Savage contemporaneously recorded the advice she gave on the subject in correspondence sent by her to Mr Hudson. Ms Savage’s letter of 9 December 2004 to Mr Hudson included the following statement: “However, native trees and shrubs of greater than ten years of age must be retained on the land”. In her letter to Mr and Mrs Hudson of 13 February 2006 regarding routine agricultural management activities on Yarrol, Ms Savage states (inter alia): “On all areas, remnant trees ie, trees that have grown prior to 1/1/1990 must be retained”. I reject the submission that Ms Savage authorised the clearing that occurred. The evidence is to the contrary.

5. In respect of the notice offence, Lloyd J found that the Notice was personally served on Mr Hudson; that none of the information and documents sought in the Notice had been provided by Mr Hudson; and that Mr Hudson did not give any reasonable excuse as to why he had not complied with the notice (at [68]).

6. Finally, his Honour made a costs order in favour of the prosecutor, the Director-General of the (then) Department of Environment and Climate Change (“DECC”), pursuant to s 257B of the Criminal Procedure Act 1986 (“the CPA”).

Proceeding Before the Court of Criminal Appeal

7. On 3 March 2009, Mr Hudson filed a notice of appeal against the conviction and sentence in the Court of Criminal Appeal pursuant to s 5AB of the Criminal Appeal Act 1912 (“the CAA”).

8. The first ground of appeal advanced by Mr Hudson was that a miscarriage of justice had occurred in the primary proceedings as a result of the Court’s acquiescence to Mr Hudson’s application that he be represented by a legally unqualified person, namely, Mr Walters. Mr Hudson argued that the right of appearance of a non-qualified agent provided for by s 63(1) of the Land and Environment Court Act 1979 (“the LEC Act”) did not extend to proceedings in Class 5 of the Court’s jurisdiction, and that the Court had no residual discretion to allow Mr Walters to appear.

9. The second ground of appeal was that a miscarriage of justice had occurred because Mr Walters had failed to mount a coherent legal defence on behalf of Mr Hudson, namely, that of honest and reasonable mistake of fact. That is to say, that Mr Hudson had honestly and reasonably believed, on the basis of advice from a catchment officer at the Border Rivers-Gwydir Catchment Management Authority (“the CMA”), Ms Elizabeth Savage, that he had been authorised by the CMA to clear the land in the manner in which he did.

10. On 11 May 2012, the Court of Criminal Appeal dismissed the appeal insofar as it related to Mr Hudson’s conviction for both offences (Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207).

11. In response to the first ground of appeal, the Court found, however, that the primary judge had not erred by permitting Mr Walters to appear in circumstances where no objection had been taken by either party (at [68]). The Court of Criminal Appeal also held that, properly construed, s 63 of the LEC Act did not prohibit the Court granting leave for an agent to appear in Class 5 proceedings. That section’s purpose was not to impose a limitation on the power of the Court to regulate its own proceedings (at [65]).

12. In relation to the second ground of appeal, the Court of Criminal Appeal found that to the extent there was a mistake on the part of Mr Hudson in relation to what he believed he was allowed to clear, it was a mistake of law, and not fact (at [76]).

13. But the Court of Criminal Appeal quashed the penalties imposed by Lloyd J. The Court held that the primary judge had erred in failing to ensure that the part of the proceedings that had dealt with the question of sentence had been conducted fairly by Mr Walters, and that as a result Mr Hudson had lost the opportunity to put before the Court matters which could have mitigated the penalty imposed (at [98]). That is to say, in circumstances where Mr Walters’ submissions on sentence were “plainly inept” and should have “confirmed to the trial judge…that Mr Walters was quite incapable of representing the appellant”, the judge should have “ensured that the appellant knew that he was exposed to significant pecuniary penalties, and of his right to make submissions and to adduce evidence in mitigation of the penalty” (at [94]–[95]). The Court of Criminal Appeal held that there was a real prospect that this error had resulted in a miscarriage of justice.

14. Because a preponderance of the evidence sought to be tendered on appeal was inadmissible, the Court of Criminal Appeal was unable to determine an alternative sentence (at [100]–[102]). Therefore, the Court remitted the proceedings to this Court pursuant to s 12(2) of the CAA for the purpose of determining the appropriate penalty to be imposed upon Mr Hudson.

15. Mr Hudson applied for special leave in the High Court of Australia but the High Court refused to grant such leave, holding that there was no reason to doubt the conclusion of the Court of Criminal Appeal that there had been no miscarriage of justice with respect to conviction because Mr Hudson could not have succeeded in his defence even if he had been competently represented (Hudson v Director-General, Department of Environment and Climate Change and Water [2012] HCA Trans 364).

Issues to be Determined

16. Having regard to the scope of the remitter, the issues to be determined in these proceedings are:

1. first, what is the appropriate sentence to be imposed in respect of each offence; and

2. second, who should bear the liability of the costs of the rehearing on sentence, and of the proceedings before Lloyd J.

17. I have determined that the appropriate sentence for the commission of the offences is a penalty of $318,750 for the contravention of s 12 and $1,275 for the contravention of s 36(4) of the NVA.

18. With respect to costs, Mr Hudson is to pay the prosecutor’s costs of these sentencing proceedings. With respect to the proceedings before Lloyd J, Mr Hudson is to pay half of the prosecutor’s costs of those proceedings.

Events Prior to the Unlawful Clearing

19. The events below are not in dispute. To the extent that there were some conversations involving Mr Hudson that were contentious and were not the subject of agreement between the parties, I have excluded these from the Court’s consideration on the basis that to include them in the absence of their content being properly tested (although Mr Hudson gave oral evidence before me, the other parties to the contestable conversations were not available for cross-examination) could result in unfairness. These conversations were not, in any event, discussions of great moment upon which central findings of fact were required in the determination of Mr Hudson’s sentence.

19. Mr Hudson and his wife, Mrs Lynn Hudson, are the owners of a property called “Yarrol” in the Moree Plains local government area, which they purchased on 15 January 2004.

20. Yarrol is a 2,126 ha property located off the Gingham Road, approximately 60km west of Moree. It has historically been used for sheep and cattle grazing. Yarrol comprises:

1. Lots 1, 2, 24 and 27 of DP 750519;

2. Lots 16 and 23 of DP 750465; and

3. Lot 1 of DP 652083.

22. Between 30 January 1995 and 16 February 2006, Ms Savage was employed by the New South Wales Department of Natural Resources (and its predecessor departments), as an officer engaged in vegetation management and other duties. In this role she assessed clearing applications made under the NVA and the Native Vegetation Conservation Act 1997 (“the NVCA”).

23. From 16 February 2006 to at least 25 January 2008, Ms Savage was employed by the CMA. Between 16 February 2006 and 7 September 2006, Ms Savage was a Property Vegetation Plan and Projects Catchment Officer and, in this role, she assessed applications for PVPs under the NVA.

24. Mr Hudson had a meeting with Ms Savage on 7 December 2004 at Yarrol, during which they spoke about potential clearing of vegetation on the property. Mr Hudson’s neighbour, Mr Cameron Adams, also attended the meeting. No inspection of Yarrol occurred on this occasion because it was flooded.

25. During the meeting, Mr Hudson, Mr Adams and Ms Savage had the following conversation:

Adams:    The Egrets bred near your western boundary above the waterhole in 1995.

Adams:    In the late 1990s on Lynworth the ibis bred between my two dams and along the channel on Yarrol.

Savage:    The ibis and egrets also bred south of the channel.

Hudson:    Very interesting.

Savage:    We have identified where the waterbirds have bred since 1995, and you have agreed that your activities will only take place on non-sensitive areas and areas not identified as important habitat.

Hudson:    Yes.

. . .

Hudson:    I need to fix this Lippia problem. What can I do? The areas have regrowth Black Wattle and dead trees among the Lippia.

Savage:    Lippia is not native vegetation. It is a noxious weed, and where it occurs and forms more than 50% of the groundcover, people are able to clear it off. If the area has been cleared previously, the regrowth less than 10 years old may be removed. Dead trees do not come under the Act, and may be managed. I’ll send you some brochures that give guidance for types of management.

26. During the meeting Ms Savage handed Mr Hudson a number of information pamphlets on clearing exemptions, including for regrowth, under the NVCA.

27. On 9 December 2004, Ms Savage sent Mr Hudson a letter which included the following information:

My advice is to undertake clearing on areas previously cleared and retain an uncleared buffer zone around the Gingham Waterhole and Gingham Channel. All vegetation must be retained back 20 metres from the water, by law. It is probably wise to stay back further with your activities. The dead trees near the channel were used by the waterbirds for nesting. Clearing dead trees beyond the 20 metre restricted zone back from the channel is not in contravention of the clearing laws. However, the presence of the dead trees should not impact too much on pasture or crop growth, so I advise that dead trees be left in the landscape back from the channel, at least 200 metres. Some regrowth saplings form linkages between the Bimble Box trees in the open Coolabah areas. I suggest that the saplings be kept to form a corridor for Koalas to safe [sic] from Foxes and pigs and move through the Bimble Box clumps and on to the River Red Gums growing on the north bank of the Waterhole.

Lippia is not a native plant, so on land where Lippia is greater than 50% of the groundcover, the Native Vegetation Conservation Act 1997 does not apply. However, native trees and shrubs of greater than ten years of age must be retained on the land.

28. Ms Savage was telephoned by Mr Hudson prior to 9 January 2006 and they had this conversation:

Hudson:   Can you come out and tell me what I can do so I can get rid of the noxious weeds. I’m mainly concerned about the Lippia.

Savage:   OK, I’ll bring my PVP Developer and we’ll have a look at what we can do.

29. On 9 January 2006, Ms Savage inspected vegetation at Yarrol with Mr Hudson. At a location at the far west of the property, they had the following conversation:

Hudson:    I want to clear this clump of Coolabah because it’s right in the middle of the cultivation. I’d like to increase the area of my cultivation.

Savage:    I’ll get some API to determine whether it is regrowth.

30. Mr Hudson indicated to Ms Savage with his hand two clumps of Budda (False Sandalwood) to the east of the clump of Eucalyptus Coolabah (“Coolabah”) and said:

Hudson:   Would the use of exemptions be the same on those clumps (he indicated with his hand in the direction of the clumps).

Savage:   It’s the same as the areas north of the waterhole that we looked at. You can manage the Galvanised Burr and saplings regrowth post-1990. The remnant trees will have to stay.

Hudson:   I see.

31. At another site Mr Hudson and Ms Savage discussed the removal of vegetation in these terms:

Hudson:   I want to clear this vegetation.

Savage:   These are some post-1990 regrowth Budda (ph) and eucalypts which could be removed, as well as the Galvanised Burr, Lippia and Saffron Thistle.

Hudson:   Ok.

32. Ms Savage also spoke to Mr Hudson about Saffron Thistle and Galvanised Burr. She referred him to the Council Weeds Officer, Mr Mike Kane, to obtain further advice in relation to management of noxious weeds and said:

Savage:   It’s best to talk with Mike Kane direct at Moree Plains Shire Council about Saffron Thistle and Galvanised Burr management actions.

Hudson:   Yes I will.

33. At an area at the south of the property, where there were coppiced Coolabah trees, they had this conversation:

Hudson:    I want to remove some of the regrowth so I can cultivate the land to manage the Lippia.

Savage:    You can remove the post 1990 regrowth but if among the groups of trees you found pre-1990 remnant larger ones then those will have to remain.

Hudson:    Ok.

. . .

Savage:    You can remove the storm damaged trees from your track if they pose imminent risk to persons or property [Ms Savage indicated to him storm damaged vegetation which was lying on the ground].

Hudson:    Good.

34. At another location further south on the property, Ms Savage said to Mr Hudson:

Savage:    Even though the post 1990 Casuarina could possibly be managed under the legislation, I would like you to keep as many sapling of Casuarina as possible for future recruitment. They are very important habitat for the birds, including the Glossy-black Cockatoo.

Hudson:    Ok.

35. In relation to clearing vegetation, including Black Wattle, Coolabah and Casuarina cristata (“Belah”), east of an irrigation channel running down the centre of the property (“the Gingham Channel”), Ms Savage and Mr Hudson had this conversation:

Savage:    If you’re absolutely sure that the vegetation is regrowth, based on what you’ve been told, it would appear that the Black Wattle is the same age on the eastern side of the drain as the west. The vegetation like the Coolabah that is pre-1990 will have to stay.

…

Savage:   The Coolabah will need to stay if it is pre-1990. You shouldn’t touch anything bigger than 1 foot in diameter at breast height. I know what the growth rates for trees ten years of age are, from my work on planted native trees on Moree. On average, for Coolabah, the ten year trees are about 19 centimetres – about eight inches dbh. One was 32 cms dbh and 8 metres tall, but most were 9-10 metres tall…it depends on the rainfall or flooding.

Hudson:    Yes, that’s fine by me.

Savage:    Belah is an important plant. You need to retain the mature Belah, and also to retain some smaller Belah that was regrowth in the open spaces, so that we can have Belah on the property in the future.

Hudson:    Ok.

Savage:    The Belah is important habitat for the birds, especially Glossy Black Cockatoos.

Hudson:    Ok.

36. At the conclusion of the inspection, Ms Savage and Mr Hudson returned to the house at Yarrol. Ms Savage entered some information into the PVP developer on her laptop computer and she and Mr Hudson discussed a clump of Coolabah at the western boundary of the property on Billy’s Paddock in these terms:

Savage:    The clearing can’t be approved. I’ll get the API done to determine the age of the Coolabah. There are other PVP options for the whole property we can explore – such as a continuing use PVP or INS [Invasive Native Species] PVP or have the regrowth date reset.

Hudson:    Thank you.

…

Savage:    You don’t need a continuing use PVP for some of the work you want to do. You can rely on the RAMAs if you like. You can scrape back the Lippia and remove trees that you are quite certain are post 1990, in areas that have been cleared before. You don’t need a PVP for that.

Hudson:    Ok.

Savage:   When you are clearing for regrowth you shouldn’t be touching any trees bigger than a foot diameter at breast height. It it’s bigger than a foot leave it alone. (I indicated to him what I meant with my hands.)

Hudson:   Ok.

Savage:   You can use the RAMAs for fence lines, tracks, noxious weeds, regrowth that is post-1990 and imminent risk. You can scrape back the Lippia.

Hudson:   Ok.

37. Ms Savage proceeded to give general advice to Mr Hudson during the inspection in these terms:

Savage:   Don’t touch anything that is pre-1990 in age.

Hudson:   Ok.

38. While at the house, Ms Savage and Mr Hudson marked up a map of the property’s boundary and of paddocks the subject of a continuing use PVP. The map was before the Court.

39. Ms Savage did not mark on this map which vegetation was pre-1990 and which was post-1990.

40. On 10 January 2006, Ms Savage obtained advice from a colleague to the effect that a clump of Coolabah at the western boundary of the property on Billy’s Paddock had been present prior to 1990. Thereafter, she and Mr Hudson had this conversation:

Savage:    The clump of Coolabah in Billy’s Paddock is likely to be pre-1990, but we can organise for the regrowth date to be checked and allow clearing, but you’ll have to wait until that process is completed.

Hudson:    Thank you.

41. On 13 February 2006, Ms Savage and another CMA officer, Ms Karen Schubert, attended the house at Yarrol and spoke to Mr Hudson. Ms Savage gave Mr Hudson a bundle of native vegetation fact sheets and explained the content of the fact sheets to Mr Hudson. On this occasion, Ms Savage and Mr Hudson had the following discussion:

Hudson:    I want to exercise my exemptions under the Native Veg Act and excluded activities on the Channel Paddock and the locations we have discussed.

Savage:    Ok, I’ll put something to you in writing regarding your proposed exempt activities.

Savage:    I want you to leave a lot of the juvenile Belahs regarding your proposed exempt activities.

Hudson:    Ok.

Hudson:    I want to know what I can tell the dozer driver to do.

Savage:    Read the information package I’ve just given you. It will tell you in there what you can clear for fence lines, regrowth and other exemptions. You can make your own self-assessment. If you hit any snags then please give me a call.

Hudson:    Ok.

Savage:    You need to assess the widths of the trees to determine the age of the trees. You can’t clear trees that are older than 1 January 1990.

42. Following this meeting, Ms Savage sent Mr Hudson a letter dated 13 February 2006, which included the following information:

Thank you for your enquiry on 13th February 2006, and over the last 2 years, regarding use of Routine Agricultural Management Activities on “Yarrol”.

I have provided information relevant to your enquiry – a set of native vegetation Facts sheets.

You have notified me of your intention to exercise exemptions and excluded activities on the Channel Paddock, and at other locations on the property. There are extensive areas over the property that comprise remnant trees in the canopy, and regrowth in the understorey. As “Yarrol” has been a grazing property for many years, the groundcover comprises mainly introduced grasses and forbs – Barnyard Grass, Liverseed Grass and medics. There is a noted absence of native groundcover. Lippia is a non-native noxious weed, and dominates extensive areas. The groundcover therefore is regarded as non-native on the areas we examined together over the last 2 years and today with Karen Schubert.

●   On all areas, remnant trees ie, trees that have grown prior to 1/1/1990 must be retained.

●   Boundary fencelines have a maximum clearing distance on your side of the fence to 10 metres.

●   Permanent internal fences – total width of clearing 10 metres.

●   Roads/tracks – 6 metres in width.

●   Imminent risk – the removal of storm damaged trees that pose a risk to yourself and your stock or infrastructure.

●   Construction timber – must be used on “Yarrol”, within 18 months of cutting, and must not be trees with hollows.

● You have made your own assessment that in places, Lippia dominates the groundcover, and therefore removal of the Lippia – an exotic plant is excluded from the Native Vegetation Act 2003. I have inspected several sites and have taken photographs and transect records.

●   Dead trees do not come under the jurisdiction of the Act and so they may be removed.

●   Sapling trees and shrubs that have regrown since 1/1/1990 in an area previously legally cleared may be managed.

●   Areas of vulnerable land near prescribed streams have special conditions attached to them and I have given you a copy of the vulnerable land policy. You have volunteered to restrict current activities to areas not closer than 200 metres of the Gingham Watercourse and Gingham Waterhole. These areas are to be managed in the future, using low impact machinery to manage noxious weeds, and direct planting of grasses.

I will explore the possibility to obtain formal consent for you in the future for the clearing of the 5 hectare fenceline Coolabah regrowth clump growing in Billys Paddock. As that clump can be identified in the 1985 air photo, the trees are regarded as remnant by the definitions.

43. Ms Savage also gave Mr Hudson a manila folder to be provided to the contractor retained by Mr Hudson to carry out clearing work on Yarrol. The folder was likely to have contained copies of the NVA fact sheets that Ms Savage had previously provided to Mr Hudson and a copy of her letter dated 13 February 2006.

44. On 29 November 2006, Mr Hudson contacted Ms Savage by telephone and asked her:

Hudson:    Can you tell me if any of the RAMAs or exemptions have changed?

Savage:    None of the RAMAs or exemptions have changed. I’ll send you some information sheets and a letter setting out your request.

45. Thus on 30 November 2006, Ms Savage sent Mr Hudson four fact sheets and a letter, the latter of which contained the following information:

Thank you for your enquiry on 29 November 2006, regarding clearing for fence lines, farm tracks, clearing post 1990 regrowth and managing areas affected by Lippia that are no longer classified as native grasslands.

Please find enclosed information relevant to your enquiry.

●   NV Act 2003 Information sheets.

●   Maps of “Yarrol”.

Please refer to fact sheets number 6 for definitions of regrowth; 7c for RAMAs for tracks and fencelines; 11 for clearing on vulnerable land; and 12 for assessment of groundcover.

Mr Hudson’s Dealings with Mr Sattler

46. Mr Hudson also had dealings with Mr Paul Sattler in relation to conducting improvement works at Yarrol. Mr Sattler was an independent contractor assisting the CMA to develop an incentive program to encourage landholders to enter into nature conservation agreements for areas of high natural value on their properties.

47. On 31 May 2006, Mr Sattler received a document entitled “Tender Outline” which had been signed by Mr Hudson. In the Tender Outline, Mr Hudson proposed to manage an area of 323ha on the Gingham Channel on Yarrol for nature conservation for a period of five years.

48. In mid to late 2006, Mr Sattler telephoned Mr Hudson and said:

Sattler:    Your tender is likely to be successful but we will need to talk more about the proposed management conditions.

Hudson:    What do you suggest?

Sattler:    While the planting of exotic grasses might compete with Lippia, we’re talking about a nature conservation area not an improved pasture. I’ve spoken to professor Wal Whalley about how we should deal with the Lippia and he has said it should be smothered with water or heavy grass cover. Seems unlikely we are going to be able to smother the Lippia on your place with water at the moment.

Hudson:    That’s for bloody certain.

Sattler:    Grass cover is difficult because the Lippia gives off chemicals which prevent other grasses from growing. But where the Lippia is not particularly dense, you should be able to establish a swath of native grasses by decreasing grazing pressure for a time. When you do go back to grazing the area, you will need to carefully manage it to stop the Lippia taking over again. It would be best to crash graze these areas for short periods and maintain as best you can a full ground cover of both standing and trampled grass to smother the Lippia.

Hudson:    I suppose that’s what I got to do then.

49. In early December 2006, Mr Sattler visited Mr Hudson’s property. He did not inspect the property, or the proposed conservation area, but instead spoke to Mr Hudson in the house on Yarrol. He had the following discussion with Mr Hudson:

Sattler:    Have you had a chance to think about this Lippia issue? I’m willing to recommend your tender but only if the price is reduced from $22,200 to $11,000 as the costs of your proposed pasture is not appropriate. As I said to you on the phone the other day, you can’t use a bobcat mulcher and plant competitive exotic pasture grasses in the conservation area. But I am happy to recommend the $11,000 for the fencing works and the track you are going to put into the south of the wetlands. Once this is done, you’d have to deal with the Lippia by careful, short term grazing management.

Hudson:    That’s ok…I was told that the National Parks might be interested in the place to purchase for a park.

Sattler:    I don’t know anything about that but by keeping the wetlands in good condition by not introducing exotic pastures species you might be preserving your options for any sale to the National Parks are interested [sic] in the future.

Hudson:    Yeah will you sort out the rest of the tender arrangements?

Sattler:    I’ll finalise the conservation agreement and send it through to you to sign and submit to the CMA.

50. In late 2006 or early 2007, Mr Sattler received a telephone call from Mr Hudson:

Hudson:    When’s this agreement going to be finalised? I need to be paid for the dozer work to clear the track south of the channel. There is a dozer still on the property and it will be expensive to get it back to do the track and fence work at some later time.

Sattler:    I can’t give you approval for the dozer to start the track or fence line. It depends upon you signing an agreement with the CMA. Once that agreement’s in place, you can then submit an account for the agreed track and fence work to the CMA and, if it’s in accordance with the agreement, they should reimburse you for it.

Hudson:    Can you hurry it up?

51. Shortly after this conversation, Mr Sattler sent an unsigned version of a management agreement between Mr Hudson and the CMA (including a number of schedules to that agreement) to Mr Hudson (“the management agreement”).

52. A copy of the management agreement was signed by Mr and Mrs Hudson on 21 March 2007. It detailed a budget of $11,000 for the construction of new fences and gates, the clearing of tracks, and to undertake Lippia management by means of strategic grazing. Management undertakings included in the agreement comprised the management of areas for their high vegetation and biodiversity conservation, a track to be opened up to manage the wetlands, fencing to be installed to allow strategic grazing management of the wetlands, maximizing groundcover to encourage the smothering of the Lippia, as well as the monitoring of the Coolabah woodland, the Balah woodland, the Lignum area and the Black-Wattle Lippia area.

51. Both Ms Savage and Mr Stephen Beaman, a Compliance Officer with the DECC, received a copy of the management agreement by facsimile.

The Unlawful Clearing Event

54. Sometime between November 2006 and March 2007, Mr Daniel Keenan and Mr Ray Christiansen, earthmoving contractors engaged by Mr Hudson, used bulldozers and chains to fell or uproot trees located on a 486 ha area of land at Yarrol.

55. Mr Hudson personally instructed Mr Keenan and Mr Christiansen as to the areas he wanted them to clear. These instructions were given orally, by reference to a map, and in the case of at least part of the cleared area, by Mr Hudson physically marking out the area on a quad bike and a bulldozer.

56. In Mr Keenan’s affidavit sworn 15 April 2013, he deposed to the fact that on the night before he commenced the clearing work he had a telephone conversation with Ms Savage where the area to be cleared was discussed. He also deposed to arriving at Yarrol on the morning of 12 February 2007 and Mr Hudson handing him a manila folder which Ms Savage had left for him and which contained a map “which shows you where you can clear and where you can’t clear”. Also included in the folder was a document containing information regarding the clearing of Lippia and a document showing the dimensions of fence lines which could be cleared.

57. After he had read the documents, Mr Hudson showed him around the area to be cleared on his quad bike. As far as Mr Keenan was concerned, he did not clear any land contrary to the map or Ms Savage’s instructions. Mr Keenan was not required for cross-examination.

58. According to the observations and surveys of his inspection of Yarrol on 17 May 2007, Mr Beaman estimated that approximately 486 ha of native vegetation had been cleared over five lots on Yarrol, namely, parts of Lots 1, 27 and 24 in DP 750519, and parts of Lots 16 and 23 in DP 750465. The clearing occurred to the north and south of the Gingham Channel.

Events Following the Clearing

59. On 3 April 2007, Mr Daryl Albertson, an employee of the Department, was working in the Gingham Channel and noticed the clearing. He informed Mr Glen Turner, a vegetation officer employed by the DECC.

60. On 11 April 2007, Mr Albertson, Mr Turner and Mr Neal Foster flew over Yarrol and observed the extent of the clearing. Photographs of the clearing taken by Mr Foster during this flight were before the Court.

61. On 17 April 2007, Mr Hudson contacted Mr Albertson by telephone and discussed issues relating to an environmental water release which was expected to pass through Yarrol at about that time. During the call, the following was said:

Hudson:    Did you get up into the air to look at the water while I’ve been away?

Albertson:    Yes, I took the opportunity to accompany DNR officers on a flight they had organised over the area.

Hudson:    What did you see?

Albertson:    I saw where the ECA water had got to, the amount of Water Hyacinth on ‘Yarrol Waterhole’ and elsewhere, and also the clearing done at Yarrol.

Hudson:    The clearing on Yarrol is all OK and I have only cleared what I’m allowed to. I’ve had people out there over the past three years measuring things and that Lippia is everywhere through the place. I’ve left those trees for the birds and everything was done right.

Albertson:    My main concern is that clearing may have taken place in the historical Ibis rookeries.

Hudson:    The birds haven’t been touched, I’ve left those trees for the birds like I was told to.

Albertson:    You mean the tall Belah trees where the Egrets nested in the past, on the southern side of the channel, about half way along?

Hudson:    Yes, that’s them.

Albertson:    Well no, it’s my view that the black wattle trees with the Lignum underneath that is where the known Ibis breeding areas were. The large breeding area was along the northern side of the channel and a smaller area on the southern side, just downstream from the Belah trees you left.

…

Hudson:    I was told that the Ibis nested only in the Lignum in the channel.

Albertson:    No, I’m sure the known Ibis breeding areas on Yarrol are where the black wattle trees and Lignum were on both sides of the channel.

Hudson:    Well if I’ve done that, I am sorry, I wouldn’t have done it if I knew where they were. I’m sorry, I suppose they will grow back.

Albertson:    Well the DNR compliance officers will be investigating the clearing, it’s a matter for them to deal with.

Hudson:    I’ve got maps and documents for the clearing.

Albertson:    That’s good that you’ve got those things, because the DNR officers will want to look at them when they come out to talk to you.

62. On 18 April 2007, Mr Hudson contacted Mr Beaman by telephone and said:

Hudson:    I have been speaking with Daryl Albertson. Daryl said that I should speak to you as soon as possible. He said that I was being investigated for land clearing and that I might be in trouble over what’s gone on at Yarrol.

Beaman:    I have only received an allegation that clearing of native vegetation has occurred on Yarrol. I cannot comment at this stage. I will need to investigate the matter more thoroughly to determine if there is an issue.

Hudson:    I apologise if I have done anything wrong. I had been informed by professionals that clearing, ploughing and sowing to sorghum was the only way to deal with the Lippia problem.

Beaman:    Who are these professionals you just referred to?

Hudson:    Paul Slatter has been talking to me about Lippia control. He reckons I need to clear and plough to control Lippia … and Liz Savage has been on the property. It’s all above board. I apologise if I’ve done anything wrong.

63. Mr Hudson agreed to meet Mr Beaman and stated that he would contact him the following week to arrange an appointment.

64. In April 2007, Mr Hudson had a telephone conversation with his local State Member of Parliament, Mr Kevin Humphries, where he stated:

Humphries:    Hi John, if you want someone to talk to about the whole incident then I’m happy to come and have a chat.

Hudson:    I’m concerned about the government investigating the clearing I’ve done on my property. I don’t think I’ve done anything wrong. I’ve been locked out of my part of the country.

Humphries:   Have you been charged with anything?

Hudson:    No, I can’t use it, I’ve been restricted. I’ve got correspondence to say that if I use the identified area I will be fined significantly. We could be fined $115,000 each.

…

Hudson:    We have to de-stock. This is putting me in a difficult situation financially. I believe that I have been unfairly treated and that my rights are being abused.

Humphries:    OK. I know the property and the area and so I’d be happy to come out and meet with you and the family.

Hudson:    Yeah I’d like to meet you to explain. The compliance people have been flying over my property and they’ve got state and federal police involved. They’ve been out to Yarrol and to my property at Mitchell in Queensland and they’ve turned the place upside down.

65. A subsequent telephone conversation between Mr Kevin Humphries and Mr Hudson was to this effect:

Hudson:    I did the clearing to manage the Lippia. I’ve done nothing wrong. I’ve been working with Liz Savage to do farm planning and to work out what I could and couldn’t do with the idea of getting that country back to pasture for cattle grazing.

…

Humphries:    Did you know it was a sensitive area in terms of the waterhole and bird breeding?

Hudson:    Yeah.

66. Mr Beaman spoke to Mrs Hudson on 24 and 26 April 2007. On both occasions, Mrs Hudson told Mr Beaman that Mr Hudson was out of mobile range because he was seeking cattle agistment in the Charters Towers area. Mrs Hudson’s diary records the following on 26 April 2007: “John at Yarrol…Steve Beaman rang – told him John at Charters Towers for agistment”.

67. In early to mid May 2007, Mr Humphries visited Mr Hudson and his wife at Yarrol. On one occasion Mr Hudson said, “I have been working with Liz Savage from the CMA for well over the past 2 years. Liz Savage gave me a map of what I could clear and what I had to set aside. Have a look at this”. Mr Hudson then showed Mr Humphries a map. To the best of Mr Humphries’ recollection, the map Mr Hudson showed him was a photocopy of a plan of Yarrol with vegetation on it. The map had areas that had been circled around a waterhole and around several large clumps of trees.

68. Mr Hudson indicated to Mr Humphries that, “these are the areas that need to be set aside for fauna access and vegetation around the waterhole and through the block”. He also said in relation to some areas on the map, “I was told I could clear these areas”. The map had some cross-hatching on it. To the best of Mr Humphries’ recollection, there was no area indicated on the map to be disturbed south of the waterhole.

69. During this visit Mr Humphries and Mr Hudson had the following conversation:

Hudson:    I was told by Liz Savage not to leave intermittent trees but clumps and corridors of vegetation for managing Lippia. I was told that I needed to take the area out.

Humphries:    You know I don’t believe in indiscriminate clearing.

Hudson:    I was just trying to take on the Lippia.

Humphries:    OK, so how did this come about.

Hudson:    I got a dozer in there for about 10 days.

Humphries:    When you bought the property were you aware of any covenants on the property?

Hudson:    I don’t believe I’ve done anything wrong. I’ve been acting under advice. I left more vegetation than I was required to leave along the waterhole. I got advice and some paperwork that shows everything I did was right. If I’ve done anything wrong I am keen to rectify it, but I’m in the dark as to what’s gone wrong.

…

Hudson:    The local landholders and CMA have been to Yarrol to give me advice and discuss what I could do. The advice I was given was the best way to do it was by returning the area to natural grassland – to clear it, farm it and seed it.

…

Hudson:    We were able to clear what we cleared for Lippia management. We want to get that land back to natural grassland for our cattle production.

…

Hudson:    We left more than we were told we could take out.

70. On 8 May 2007, Mr Beaman had a telephone discussion with Mrs Hudson and informed her that he intended to take an investigation team onto Yarrol on 16 May 2007. Mrs Hudson indicated that she and Mr Hudson wanted to be present on that occasion and that they would meet Mr Beaman at the gate of Yarrol at 2.30pm.

71. On the evening of 15 May 2007, Mr Beaman had a further telephone discussion with Mrs Hudson to confirm that he would attend Yarrol the following day. Mrs Hudson said that she and Mr Hudson would be present at the gate as arranged.

72. Mr Beaman, Mr Turner and Dr Chris Nadolny, a Senior Resource Officer (ecologist) employed by DECC, attended Yarrol at 2.30pm on 16 May 2007. They waited at the gate until 4.30pm. Mr and Mrs Hudson never arrived.

73. On 17 May 2007, Mr Beaman, Mr Turner and Dr Nadolny again attended Yarrol. Neither Mr nor Mrs Hudson were present at the property. On this occasion an inspection of the cleared area was nevertheless undertaken.

74. Thereafter, Mr Hudson did not voluntarily provide any assistance to DECC in connection with the investigation into the clearing.

The Failure to Comply with the Notice

75. On 9 October 2007, the Notice (dated 27 September 2007) was personally served on Mr Hudson pursuant to s 36(2) of the NVA. The Notice required Mr Hudson to provide specified information and/or documents to Mr Jason Bentley at the specialist Investigations Unit of the DECC by no later than 5pm on 19 October 2007. It gave the address to which that information was to be sent.

76. As was found by Lloyd J in the primary proceedings, none of the information or documents requested in the Notice were received by Mr Bentley, nor was any reasonable excuse provided by Mr Hudson in those proceedings as to why he failed to comply with the Notice.

Evidence of Mr Hudson

77. Mr Hudson swore two affidavits that he relied upon in these sentencing proceedings, on 9 March 2010 (“the first affidavit”) and 10 April 2013 (“the second affidavit”), respectively.

78. Mr Hudson’s first affidavit deposed to the following:

1. that he understood, on the basis of conversations between himself and Ms Savage, that Ms Savage was empowered to authorise land clearing in the State and that she could issue these authorisations directly to the landowner;

2. that he believed, on the basis of the conversations referred to above, that the only feasible way to get rid of the Lippia was to plow and clear the infested areas of all vegetation and to plant crops;

3. that he believed that at the meeting on 9 January 2006, Ms Savage had given him authorisation to take out single large trees provided he left a “corridor” of old and young trees;

4. that at that meeting Ms Savage had given him some documents, including two separate maps which set out the boundaries of the clearing that he believed that she had authorised. The maps were attached to his affidavit;

5. that he believed that maps given to him at the property on 13 February 2006 by Ms Savage in two manila folders, one for him and one marked “for the Contractor”, indicated what he was and was not allowed to clear;

6. that he believed that the requirement to retain all “remnant” trees pursuant to the NVA, as explained to him in a letter from Ms Savage after the 13 February 2006 visit, could be met by leaving corridors of old and young trees and that Ms Savage had authorised the clearing on this basis;

7. that on the evening before the clearing began, Mr Hudson telephoned Ms Savage to ask her to come to Yarrol to check that all the clearing was being undertaken properly and that she had stated that she was confident that his clearing contractor, Mr Keenan, knew what he was doing and that she was not able to come to the property;

8. that he gave Mr Keenan one of the maps that Ms Savage had given to him, and that he instructed Mr Keenan only to clear within the areas that he had marked on the map;

9. that he marked out for Mr Keenan the area to be cleared using Mr Keenan’s bulldozer and his own quad bike;

10. that he had instructed Mr Keenan not to clear the Belah and that he had marked out the first part of the clearing on Mr Keenan’s bulldozer;

11. that he checked on the clearing from time to time. On one occasion, he told Mr Keenan that he had “gone a bit heavy there. You shouldn’t have taken so much”;

12. that at no time did Mr Hudson’s first legal representative, Mr Walters, ask Mr Hudson about his ability to pay a penalty;

13. that he and his wife had been the subject of considerable local and national media attention as a result of the commission of the clearing offence; and

14. that he had conducted the clearing to remove the Lippia, and that he believed that he had permission to undertake the clearing.

79. Mr Hudson’s second affidavit deposed to the following matters:

1. that he genuinely believed that he was authorised to clear the land;

2. that since the commission of the offences, Yarrol had been the subject of a remediation order and that much of the vegetation on the cleared land had regrown;

3. that he had incurred significant economic losses as a result of carrying out the remediation order, especially because he had to transport cattle from Yarrol to Queensland and because of his inability to use all of his property for grazing and sowing crops. In particular, he estimated that he had incurred additional expenses of $101,255, and had incurred lost profits of approximately $1,419,320. No objective material was provided, however, to verify these claims;

4. that he and his wife had been the subject of local and media attention and had received hate mail;

5. that he regretted that his actions had harmed the environment and that he believed in the preservation of Australia’s natural heritage; and

6. that he had taken steps to preserve natural heritage in the many years he has been a farmer. This included, for example, as a member of the local Landcare Queensland group and that prior to 2007 he permitted bird watchers onto his property to watch the birds. Finally, he relied on the fact that at his property in Queensland he had installed a $300,000 water pipeline system on the property to preserve water and to stop bore water from being wasted.

80. The cross-examination of Mr Hudson relevantly revealed that (T70.4-114.46):

1. before the clearing the land was unproductive because of the Lippia infestation;

2. the CMA had asked him to clear the land in order to remove the Lippia;

3. he believed that clearing the Lippia was in the public interest;

4. in addition to clearing the Lippa, he wanted to clear the land in order to use it as a viable grazing property and make the land productive in order “to grow grass”;

5. he understood that he needed permission to clear native vegetation;

6. he understood, and had discussed with Ms Savage, that there were exemptions under the NVA for clearing for RAMAs;

7. he understood, and had discussed with Ms Savage, that there were exemptions under the NVA for the clearing of post-1990 regrowth;

8. he had understood Ms Savage’s letter, received by him after the meeting on 13 February 2006, to mean that no trees that had grown prior to 1 January 1990 could be cleared;

9. he believed that Ms Savage had told him that all the vegetation on his property was post-1990 regrowth;

10. he had not looked at aerial photographs of Yarrol depicting the state of the vegetation prior to 1990. He had sought, however, to determine the age of the vegetation across the land he had cleared by asking “some of the old hands”;

11. that he and Ms Savage had traversed the areas on Yarrol to be cleared to look at the size of the trees to be removed;

12. that he did make an attempt to identify trees on Yarrol that were greater than a foot in diameter before the clearing;

13. that Ms Savage had told him in January 2007 that DECC would like him to clear the older trees and to leave vegetation corridors for animals, and that as a consequence, he left a corridor measuring 1km by 2km to compensate for large trees that were removed;

14. that he inspected the clearing work carried out by Mr Keenan “every couple of days”;

15. that at the time he undertook the clearing he was not taking advantage of the regrowth exemption in the NVA;

16. that his intention in clearing the land was to bring it back to productivity. In other words, once it was cleared “I would be able to see stock running on it”. His goal was to run fat cattle, and that “at the end of the day if it was more productive it must be more profitable”;

17. that shortly before receiving the letter from Ms Savage on 13 February 2006, he had telephoned Ms Savage and told her that he wanted to exercise his exemptions under the NVA;

18. that he believed that Mr Sattler had asked him to clear the vegetation he had cleared for the purpose of removing the Lippia as part of a “trial run”, because poisoning the Lippia was not an option as the poison would flow into the Murray Darling River and into the main waterways;

19. that he submitted the tender to Mr Sattler for the purpose of obtaining funding for works that he proposed to undertake south of the Gingham Channel;

20. that included in the tender was his suggestion to use a bobcat mulcher to remove the Lippia and then plant grasses for the purposes of “economic and environmental gain”;

21. that Mr Sattler had told him that one way of controlling the Lippia south of the Gingham Channel was through carefully managed or strategic grazing;

22. that Mr Sattler had also told him that Lippia could only be eradicated by clearing and plowing;

23. that he believed that the management agreement with Mr Sattler covered building a fence, maintaining a track, and managing the Lippia;

24. that he was paid $11,000 for the works carried out under the management agreement with Mr Sattler. However, in re-examination he contradicted this evidence by saying that he was paid $3,000;

25. that he did not believe there were any conservation areas on Yarrol;

26. that as a matter of course he sought “permission to do everything”;

1. that in clearing the land he believed he was helping DECC;

2. that he was “diddled” profits as a result of the land being “locked up” after the commission of the offences;

3. that the costs and expenses referred to in his second affidavit were costs and earning which he attributed to his inability to use the land in its cleared state;

4. that he knew that the areas of land near the waterhole on Yarrol which were potentially important for water bird breeding activities and that therefore he did not clear them;

5. that he did not have a conversation with Ms Savage in January 2006 about clearing the land but leaving vegetation corridors. Rather there had been a discussion with Ms Savage and Mr Cameron Adams in December 2004 about areas where water birds had been breeding in the past; and

6. that Mr Keenan could not find the manila folder that Mr Hudson had given to him.

81. In addition to the affidavit of Mr Keenan referred to above, Mr Hudson relied on transcript of the cross-examination of Mr Keenan in what appeared to be separate but related proceedings (on 21/09/10 at T20.20-20.36). During this questioning, Mr Keenan stated that Mr Hudson had told him that he had wanted the clearing undertaken for the purpose of controlling Lippia. Furthermore, that one of the most cost efficient ways of controlling the weed was to “remove the vegetation from the ground, disturb the ground by farming it and then probably sort of crop it for a couple of years” (T20.30).

82. Mr Hudson also relied upon transcript of the cross-examination of Ms Savage on 24 September 2010 in what also appeared to be separate but related proceedings, where she agreed that Lippia was a “serious problem” in certain farming areas west of Moree (T4.38), and that on 3 December 2003, she had sent Mr Hudson a brochure containing information about the weed, together with a landholder’s plan of management (T4.41-5.16).

83. Finally, Mr Hudson furnished the Court with testimonials from Mr Ronald Dixon, Mr Brendan Wade and Mr Warren Wilson. Although all three referees attested to Mr Hudson’s capacity for hard work, his livestock knowledge and his community involvement, it does not appear that any of them had been informed that Mr Hudson had been found guilty of the offences with which he had been charged, or indeed that he had been charged with any offences whatsoever.

84. Overall I found the oral evidence of Mr Hudson to be confusing, contradictory and on many occasion evasive. Examples of relevant inconsistencies included:

1. whether or not he was relying on the regrowth exemption in the NVA when he cleared the land;

2. whether or not a conversation took place in January 2007 between himself and Ms Savage to the effect that he should leave a corridor of vegetation when clearing;

3. whether Mr Sattler had told him to manage the Lippia through selective grazing or through clearing and plowing the land;

4. whether or not he had been paid $11,000 or $3,000 under the contract of management with Mr Sattler;

5. whether or not he understood that there were conservation areas on Yarrol, for example, the areas of land near the Gingham Channel and waterhole where waterbirds bred; and

6. whether or not he had been told by Ms Savage and that we was therefore aware that there was pre-1990 vegetation on Yarrol that had to be preserved when removing the Lippia.

85. It is therefore difficult to place any real weight on his testimony in the absence of any objective verification of his evidence.

Sentencing Principles

86. The purposes of sentencing an offender are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the CSPA”). Relevant sub-sections of that Act include:

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

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

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

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

(f)    to denounce the conduct of the offender,

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

87. The sentence imposed by the Court must reflect, and be proportionate to, both the objective elements of the offence and the subjective factors relating to Mr Hudson and his conduct (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 (“Orica”) at [80]; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 at [21]; Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

88. The instinctive synthesis method is the appropriate approach to sentencing. That is, a weighing up of all of the relevant factors of the offence which act to aggravate and mitigate the sentence imposed (Orica at [81]; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

89. Section 21A of the CSPA lists relevant subjective factors that may be taken into account on sentencing, including aggravating factors at s 21A(2) and mitigating factors at s 21A(3). Factors potentially applicable to these proceedings include ss 21A(2)(g) and (o) and 21A(3)(e), (f), (g), (h) and (i).

90. In sentencing proceedings, a Court may not take into account any factor that is adverse to the defendant unless it have been proven beyond reasonable doubt. By contrast, factors in the defendant’s favour may be taken into account if they can be proven on the balance of probabilities (R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]; Gore v The Queen; Hunter v The Queen [2010] NSWCCA; (2010) 208 A Crim R 353 at [27] and [105]).

91. When assessing the objective gravity of an offence, the Court establishes the upper limit of the appropriate penalty but also the lower limit beneath which the penalty should not go. Mitigating factors should not produce a sentence that fails to reflect the gravity of the offending incident or the objectives of punishment, which include both retribution and deterrence (Orica at [87], Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [44] and Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140]).

92. Importantly, the sentence imposed must also deter both the specific offender and the general community from committing similar environmental offences (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [9] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[141] and [153]-[155]).

Objective Circumstances of the Offences

93. The principal factor to which the Court must have regard is the objective gravity of the offence. This involves a consideration of the following factors: the nature of the offences; the maximum penalty for the offences; the environmental harm caused by the commission of the offences; Mr Hudson’s state of mind in committing the offences; Mr Hudson’s reasons for committing the offences; the foreseeability of the risk of harm to the environment by the commission of the offences; the practical measures available to Mr Hudson to avoid harm to the environment; and Mr Hudson’s control over the causes of harm (Orica at [93]; Bentley at [163]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]).

Nature of the Offences

94. Objective and subjective factors must be considered in the context of the legislative framework which establishes the offences (Orica at [88]; Bentley at [169] and Environment Protection Authority v Aargus Pty Ltd; Kariotoglou;Kelly [2013] NSWLEC 19 at [53]). A consideration of the objects of that statute helps to elucidate the reasons for enacting the offence (Orica at [89]; Rae at [15]; Connell v Santos NSW Pty Ltd [2014] NSWLEC 1; (2014) 199 LGERA 84 at [59]).

95. The extent to which the incident offends against the objectives enshrined in the Act, having regard to the offence’s maximum penalty, is a major consideration in assessing the objective seriousness of an offence (Rae at [15] and Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89]).

96. The objects in s 3 of the NVA are:

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

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

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

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

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

in accordance with the principles of ecologically sustainable development.

Unlawful Clearing Offence

97. In Rae, Preston J explained how the clearing of native vegetation without consent is contrary to the objectives of the NVA (at [17]–[19]):

17    One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining consent from the regulatory authority. The application for consent involves undertaking an environmental impact assessment of the clearing for which consent is sought. The statutory provisions requiring prior environmental impact assessment and consent are linchpins of the Act. An offence against such provisions thwarts the attainment of the objects of the Act, including ecologically sustainable development. The discussion in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [65]-[71], [168], [169], although concerning the regulatory scheme under the Threatened Species Conservation Act 1995 and the National Parks and Wildlife Act 1974, is equally apposite to the Native Vegetation Act 2003.

18    There is a need for the upholding of the regulatory system under the Act. The system depends on persons, first, taking steps to ascertain when consent is required to clear native vegetation, secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna: see Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349, 355-356 at [72]-[77]; Garrett v Freeman (No. 5) [2009] NSWLEC 1 at [68]; (2009) 164 LGERA 287; Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [76]; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at 299 [46].

19    Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.

98. In short, the central mischief that the NVA seeks to avoid is the clearing of native vegetation without the permission of the relevant authority in order to preserve and protect it (see also Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 at [14]).

99. The actions of Mr Hudson in directing his contractors to clear native vegetation on Yarrol without first applying for, and obtaining, development consent, or a PVP, offends against, and erodes the attainment of, the legislative objectives expressed in s 3 of the NVA (Humphries at [16]). The actions of Mr Hudson are, for example, plainly inconsistent with the principles of ecologically sustainable development (Rae at [20], Bentley at [67] – [71], [169] – [171] and Humphries at [19]).

Notice Offence

100. The offence created by s 36(4) of the NVA serves the important purpose of aiding regulatory authorities with their investigations into potential and actual offences against the Act. The section requires the timely provision of information to authorities so that they are best able to manage and ameliorate the harm caused by the commission of the offence, prevent the commission of further harm, and investigate and prosecute breaches of the NVA. Failing to provide this information is an impediment to the efficient and effective operation of the NVA and is incompatible with the statutory scheme and the objects of the Act.

101. As was stated by the Court in Cessnock City Council v Quintaz Pty Ltd ([2010] NSWLEC 3; (2010) 172 LGERA 52 at [66], quoted with approval in D’Anastai v Environment Protection Authority [2010] NSWLEC 260; (2010) 181 LGERA 412 at [45]):

66 …The purpose of provisions of the character of s 193 is to enable an authorised regulatory officer to carry out an investigation in the nature of an inquiry in connection with any matter within the responsibility of the authority that appointed the officer (Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373 at [30]-[39].

Maximum Penalties

102. The maximum penalty reflects the seriousness with which Parliament views the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, Plath v Rawson at [67] and Humphries at [21]).

103. The maximum penalty for an offence against s 12 of the NVA is $1.1 million.

104. By contrast, the maximum penalty for an offence against s 36(4) of the NVA is $11,000.

Environmental Harm Caused by the Commission of the Offences

Unlawful Clearing Offence

105. The environmental harm caused by the commission of an environmental offence is a fundamental consideration when determining the objective seriousness of that offence.

106. The concept of harm is broad and includes the potential or risk of harm, and not just actual harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [175]). Harm can be direct, indirect, or cumulative, and “activities that contribute incrementally to the gradual deterioration of the environment… should also be treated seriously” (Waste Recycling at [147]).

107. Harm can include harm to the environment and its ecology. Harm to fauna and flora not only adversely affects that specific animal or plant, it also affects other biota that have ecological relationships to that animal or plant (Waste Recycling at [146] and Bentley at [174]). If the environmental harm is severe, this can be an aggravating factor under s 21A(2)(g) of the CSPA, which increases the objective seriousness of the offence.

108. The prosecutor relied on a report produced by Dr Nadolny dated 5 June 2008, who gave evidence as to the environmental harm caused by the clearing. Most of the content of this report was not disputed by Mr Hudson, who did not require him for cross-examination.

109. It was agreed that:

1. an examination of aerial photographs of Yarrol taken between 1967 and 2007 revealed that between 1967 and 2005 (and with the exception of a small area which would appear to have been cleared between 1977 and 1985), no clearing was observed to have occurred on the portion of Yarrol that was cleared by Mr Hudson in late 2006 and/or early 2007;

2. scientific investigations of the cleared area undertaken by Dr  Nadolny and Mr Todd Soderquist (an ecologist employed by DECC) revealed that the vegetation cleared from Yarrol consisted of native woody vegetation and native trees of various sizes and ages. The main species of fallen trees on the cleared area were Coolabah, Acacia stenophylla (“River Cooba”) and Belah;

3. the threatened species recorded on the property during a visit on 29-31 May 2008 that were dependent on hollow-bearing trees (generally eucalypts), included the Glossy Black Cockatoo, Barking Owl, Turquoise Parrot, Brown Treecreeper and Little Pied Bat. However, several other hollow-dependent threatened species could also have been present at the site, as well as many taxa that were not currently listed as threatened;

4. the loss of hollow-bearing trees causes damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to inhabit, with prominent hollows mainly confined to trees over a hundred years old. The Glossy Black Cockatoo, in particular, requires very large hollows that will only be present in very old large trees, generally over 60 cm diameter of breast height;

5. the loss of food resources included the loss of specific resources required by individual species, such as the loss of casuarina seeds, which are a major food source of Glossy Black Cockatoos, caused by partial clearing of the stands of Belah, and the loss of small arboreal mammals, which are eaten by the Barking Owl. In addition, there was also a loss of more general resources, including a large diversity of insects dependent on the cleared eucalypts, acacias and Belahs;

6. small trees such as River Coobas, produce protection for small woodland birds;

7. parts of the cleared area were also used as rookery for several important species of waterfowl including the:

1. Straw-necked Ibis;

2. Sacred Ibis;

3. Glossy Ibis;

4. Intermediate Egret; and

5. Nankeen Night Heron;

8. the Straw-necked Ibis, while breeding in restricted areas of wetlands, such as those present on Yarrol, range widely and are prominent birds on the tablelands and slopes of New South Wales;

9. a significant proportion of the cleared area contained vegetation that fitted the description of an endangered ecological community (“EEC”), namely, the Coolabah-Black Box Woodland of the northern riverine plains of the Darling Riverine Plains and Brigalow Belt South bioregions; and

10. while the under-storey in the EEC had been degraded by an infestation of Lippia, the over-storey vegetation had been in relatively good condition prior to the clearing. In particular, the over-storey Coolabah trees were generally healthy and had comprised a fair proportion of large old trees with hollows.

110. Dr Nadolny further stated that while the control of noxious weeds may constitute a RAMA, the damage Mr Hudson had caused to the existing woody vegetation on Yarrol exceeded the requirements of managing Lippia pursuant to that RAMA.

111. Further, Dr Nadolny opined that most of the Coolabah and Belah felled on the property had grown well before 1990, with many of the Coolabah trees being more than 100 years old.

112. Overall, Dr Nadolny described the clearing as “extensive” and “broadscale”.

113. Mr Beaman’s evidence (at paragraph 56 of his affidavit sworn 25 February 2006) was that “the clearing appeared to be comprehensive with only a handful of trees remaining upright within the cleared landscape.” He supported this evidence with a number of photographs taken on 17 May 2007, showing the great majority of the taller woody vegetation having been felled by the clearing, with the exception of a clump of Belah at Billy’s Paddock and some trees along the eastern fence line.

114. Mr Beaman was cross-examined extensively, during which he relevantly stated that:

1. he was not aware that Lippia infested the majority of the land. He was aware, however, of a prevalence of the weed at certain locations an Yarrol, particularly closer to the Gingham Channel but that the Lippia was, at the time that he observed it, “fairly intermittent” (T42.20);

10    In the last mentioned case, Mansfield J stated at [47]:

“It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation. The amount of the pecuniary penalty needs to demonstrate that such conduct will not be tolerated by the court.”

204. Likewise with respect of the contravention of s 36(4) of the NVA, it is important to send a message to the community that a failure to provide authorities with information and material when requested to do so by force of statute, has the tendency to undermine the proper operation of the Act, and is a criminal offence.

Denunciation and Retribution

205. The imposition of an appropriate sentence serves the purpose of ensuring that retribution and denunciation are properly addressed. The sentence of this Court is a public denunciation of the conduct of Mr Hudson. It ensures that he is held accountable for his actions and is adequately punished (Rae at [8]–[9], and ss 3A(a) and (e) of the CSPA). Accordingly, I also take these elements of sentencing into account.

Consistency in Sentencing

206. Another relevant consideration is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offences in question in these proceedings (Gittany at [179]–[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence having regard to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that forms part of that range (Gittany at [182] quoting R v Morgan (1993) 70 A Crim R 368 at 371).

207. Of course care must be taken because each case is different and a sentence imposed in one case does not demonstrate the limits of a sentencing judge’s discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365; Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).

208. The pattern of sentencing against which the present case falls to be determined is established through an examination of the recent sentencing cases dealing with breaches of ss 12 and 36(4) of the NVA, or, where appropriate, analogous offences.

Sentencing Trends for Native Vegetation Clearing Offences

209. A survey of some of the more recent decisions of this Court for the commission of the unlawful clearing offence include the following cases:

1. in Turnbull, the defendant was fined $140,000 for the unlawful clearing of eight species of native vegetation, one of which was an EEC, over an area of 38.7ha. The clearing also involved the removal of trees which provided habitat for koala colonies. The environmental harm was deemed to be significant, the offence was committed recklessly, the clearing was motivated by profit, the defendant demonstrated no remorse and the utilitarian value of the plea of guilty was reduced by his conduct during the sentence hearing;

2. in Humphries, a monetary penalty of $67,500 was imposed, together with an order for costs, on the defendant. Mr Humphries had deliberately unlawfully cleared nearly all of the native vegetation within 89 ha, including an EEC, in order to increase the profitability of his land. The commission of the offence caused actual environmental harm of medium seriousness. Mr Humphries pleaded guilty to the offence and expressed genuine remorse for his actions. He cooperated fully with the prosecuting authorities;

3. Chief Executive of Office of Environment and Heritage v Newbigging [2013] NSWLEC 144 concerned the unlawful clearing of at least 60.06 ha, including 834 trees. The environmental harm was substantial. The defendant pleaded guilty but his cooperation with the authorities was equivocal and there was little demonstration of remorse. The defendant was order to pay of $112,000 plus costs;

4. in Chief-Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129, 65ha of native vegetation, which provided habitat for a range of fauna, was cleared for commercial gain and the offence was found to be of moderate objective gravity. The defendant entered an early guilty plea, but did not show any remorse or make any attempt to remediate the land. The defendant was penalised $120,000;

5. Kennedy involved the clearing of 32 ha, resulting in moderate environmental harm. The clearing was carried out intentionally and for the purposes of commercial gain, but was later remediated. The defendant expressed very little remorse, did not co-operate with authorities, and was penalised $40,000;

6. in Corbyn the unlawful clearing of 7.1 ha caused moderate environmental harm. The offence was innocently committed. Most of the relevant subjective factors in mitigation were present, although the defendant did not express remorse. A fine of $80,000 was imposed;

7. in Rummery, the clearing of 289 ha caused moderate to substantial environmental harm because of the extensive tree removal and the adverse impact on an EEC. The clearing was not for commercial gain. The defendant expressed genuine remorse, co-operated with authorities, had no prior convictions, was of good character, was unlikely to re-offend and pleaded guilty at the second mention of the matter. He was penalised $80,040, which was reduced on appeal to $66,000 in Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428;

8. in Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149, the defendant company cleared 38 ha of mature to late mature vegetation, of which 2 ha was listed as an EEC and in which there were likely to be threatened species of fauna. The area was deliberately cleared for commercial gain. There was no evidence of any contrition or remorse. The defendant entered no plea, did not appear in Court, but had no prior convictions. The offence was found to be of high objective gravity. The defendant was fined $200,000;

9. in Walker Corporation (No 4) [2011] NSWLEC 119, the defendant was fined $200,000 for clearing of 23 ha, in which there were seven species of indigenous vegetation and two EECs. The environmental harm was of moderate seriousness. The defendant had no prior convictions, did not plead guilty, expressed no contrition or remorse, and provided no assistance to the authorities;

10. Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 involved the unlawful clearing of 166 ha, in which there were two vegetation communities present and the habitat of threatened species. The vegetation cleared was of high ecological value. Mr Linklater expressed considerable remorse for the clearing, was of good character, pleaded guilty, did not commit the offence for commercial gain, provided assistance to the authorities and was found to be unlikely to re-offend. He was ordered to pay a fine of $82,000;

11. in Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200, the clearing of 22 ha was found to be selective in nature and of low to moderate objective gravity. The vegetation was of high conservation value at a local scale, but of low conservation value at a landscape scale. The corporate defendant pleaded guilty, co-operated with authorities, was of good character, and expressed remorse. A penalty of $30,150 was imposed;

12. the clearing offence was deemed to be of low objective gravity in Director-General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102. In that case 29 ha were cleared, and while there was a substantial environmental impact caused by the commission of the offence, the long-term impact was mitigated by the presence of similar vegetation nearby. The defendant’s culpability was reduced because its instructions had not been followed in carrying out the clearing. It also had very limited capacity to pay a fine. It was fined $5,000;

13. in Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100; (2010) 173 LGERA 366, a $100,000 penalty was imposed for a clearing offence classified as low to moderate objective gravity. An area of 10 ha was cleared. The defendant acted recklessly, did not plead guilty, but had no prior convictions and expressed some remorse;

14. the decision of Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 concerned the clearing of 12 ha of native vegetation, which caused substantial environmental harm, but was mitigated by the retention of canopy trees. The defendant was a bankrupt, spoke limited English, was elderly, and had a very limited capacity to pay a substantial penalty. He had no prior convictions, pleaded guilty, and was otherwise of good character. He was fined $5,000;

15. in Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 a single species of vegetation was cleared resulting in reasonably substantial levels of environmental harm. The clearing was undertaken for commercial gain, but the defendants’ subjective circumstances were in the defendants’ favour. The culpability was low became the defendants did not know that the clearing required development consent. The two defendant landholders and the one defendant clearing contractor were fined $22,000 each; and

16. in Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 the defendant deliberately cleared 215 ha for commercial gain. There was a high degree of environmental harm, the harm was foreseeable and the defendant had control over it. However, the defendant pleaded guilty, had no prior convictions, expressed remorse and assisted the authorities wherever possible. A fine of $160,000 was imposed.

210. In determining the appropriate sentence for the unlawful clearing offence, I have considered the sentences imposed by these decisions (and the decisions referred to and discussed within those cases) and had regard to the particular facts and circumstances of the offences and the offenders involved.

Sentencing Trends for the Notice Offence

211. This is the first known conviction of s 36(4) of the NVA.

212. By analogy, however, regard may be had to other environmental statutes where an offence of failing to comply with a notice to furnish information and records. Thus in Quintaz, Mr McCudden was charged with failing to comply with a statutorily issued notice to provide information and records to an authorised officer under s 211 of the Protection of the Environment Operation Act 1997. The maximum penalty for a breach of that provision was $250,000. Mr McCudden was fined $21,000 after a discount of 30% was applied having regard to the low to medium objective grativity of the offence, his guilty plea, his good character, his expression of remorse and his low likelihood of reoffending in the future.

The Application of the Totality Principle

213. It is the Court’s role to impose a sentence that reflects the overall criminality of the offender (Orica at [246]; Lee v Office of Environment and Heritage [2012] NSWLEC 9 at [67] and Gittany at [196] and [199]-[200]). The operation of the totality principle was explained recently in Orica as follows (at [224]-[228]):

224    The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences. In R v Holder; R v Johnston [1983] 3 NSWLR 245, Street CJ explained the application and policy underpinnings of the totality principle as follows (at 260B-E):

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

225    The High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 relied on the following passage from DA Thomas, Principles of Sentencing (2nd ed) (1979) at pp 56-57 (at 62 to 63 of Mill):

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

226    This was echoed by the High Court in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 (at [18]) and the Court of Criminal Appeal in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 (at [11] and [13]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.

227    The principle will most often be invoked when an offender is being sentenced at the one time for multiple offences arising out of common or related criminal acts. However, the principle may still be applied when sentences are imposed at different times and even by different judges (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [99] and Mill at 64).

228    Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Plath at [222]). The identified risk is that, if "sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences" (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46] and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v MSK at [18]).

214. In the present proceedings, the commission of the notice offence was, in my opinion, although temporally separate, nevertheless part of a continuous course of conduct insofar as the Notice was issued to Mr Hudson in order to investigate the unlawful clearing of Yarrol. This justifies the application of the totality principle (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]) and I am satisfied that it should apply to the determination of the appropriate penalty to be imposed for the commission of the two offences.

Conclusion on Appropriate Penalty

215. Synthesising the objective circumstances of the two offences as mitigated by the subjective circumstances of Mr Hudson, and having regard to the existing pattern of sentencing, I consider that the appropriate penalty for the commission of each offences is a monetary penalty.

216. The appropriate penalty for the clearing offence contrary to s 12 of the NVA is $375,000, discounted by 15% to $318,750.

217. The appropriate penalty for the failure to comply with notice offence contrary to s 36(4) of the NVA is $2,000, discounted by 15% to $1,700.

218. Applying the totality principle to that the total monetary penalty reflects Mr Hudson’s overall criminality with respect to both breaches of the NVA, I consider it appropriate to reduce the penalty imposed for the notice offence by 25% to $1,275. This produces a total monetary penalty of $320,025.

Capacity to Pay Fines Imposed

219. Having assessed the amount of each fine that would otherwise be appropriate for these offences, it is necessary to determine whether Mr Hudson has the financial capacity to pay the fines (s 6 of the Fines Act).

220. Although one of the complaints raised by Mr Hudson in respect of the trial before Lloyd J was that he was not permitted to give evidence of his capacity to pay any fine imposed upon him by the Court, he did not avail himself of the opportunity to present any evidence in these proceedings that he would be unable to pay the fines proposed above.

221. In the absence of any financial records or other material that would support a finding that a substantial fine could impose a hardship on Mr Hudson, I am unable to adjust the amount of the fines that I have determined are otherwise appropriate. Although in his second affidavit Mr Hudson deposed to a considerable sum of money being paid to remediate the land, it is not known what, if any, impact the payment of this sum (assuming for present purposes I were to accept that this amount had in fact been paid) has had on his financial situation. I therefore do not take it into account for the purposes of determining Mr Hudson’s capacity to pay the fines imposed.

Costs

222. Section 257B of the CPA provides that:

257B When costs may be awarded to prosecutor

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if:

(a)    the court convicts the accused person of an offence, or

(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

223. If no agreement can be reached between the prosecutor and the defendant on the quantum of costs, the costs may be assessed pursuant to s 257G of the CPA:

257G Calculation of costs

The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined:

(a)     by agreement between the prosecutor and accused person, or

(b) if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004 (with or without modifications prescribed by the regulations).

Costs of These Sentence Proceedings

224. I know of no reason why the prosecutor should not be entitled, pursuant to s 257B of CPA, to its costs of the sentence hearing before me. I therefore propose to order that Mr Hudson pay these costs as agreed or as determined under s 257G of that Act.

Costs of Proceedings Before Lloyd J

225. In the primary judgment, Lloyd J made the following costs order:

226. The defendant must pay the prosecutor’s costs in accordance with s 257B of the Criminal Procedure Act 1986.

227. The Court of Criminal Appeal determined to remit the “the question of sentence” to this Court for redetermination (at [102]).

225. Section 12(2) of the CAA provides that:

12 Supplemental powers of the court

(2)    The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.

229. In remitting the “question of sentence” to this Court, the Court of Criminal Appeal “dismissed the appeal so far as it relates to conviction” in order 3, and, critically, in order 4, determined to “quash the penalties imposed by Lloyd J on 11 February 2009” (emphasis added). Order 5 formally remitted the proceedings to this Court “for the purpose of determining the appropriate penalty to be imposed on the appellant” (emphasis added).

230. The question, therefore, that arises in these proceedings, is whether the order by the Court of Criminal Appeal quashing “the penalties” included the costs order made by Lloyd J in the primary judgment.

231. The prosecutor submitted, that Mr Hudson should be ordered to pay the costs not only of these proceedings, but also the entirety of the proceedings before Lloyd J, including that portion of the proceedings before his Honour that concerned the determination of sentence.

232. The unfairness of this position is immediately apparent. Mr Hudson, having been successful in the Court of Criminal Appeal in overturning the sentence imposed by Lloyd J should not, in my opinion, be ordered to pay for that part of the hearing before his Honour, however minor it may have been.

233. An appeal from this Court to the Court of Criminal Appeal is brought under s 5AB of the CAA. Section 5AA prescribes the parameters of the appeal. Relevantly, it provides that:

5AA Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction

A person:

(a)    convicted of an offence, or

(b)    against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or

(c)    in whose favour an order for costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

234. The CAA does not define the term “penalty”. It does, however, defines the term “sentence” in s 2 as including (emphasis added):

Sentence means:

(a)   any order made by the court of trial on convicting a person of an offence, including:

(i)    any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order or home detention order and any sentence of imprisonment whose execution is suspended), and

(ii)    any community service order, and

(iii)    any good behaviour bond, and

(iv)    any fine,

imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999…

…

(h)   any order for the payment of costs made by the court of trial in respect of the person under Division 3 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986…

235. In respect of s 2(1)(h) of the CAA, the costs order in the primary proceedings was made pursuant to s 257B of CPA, which is contained in Div 4 of Pt 5 of Ch 4 of that Act, and not Div 3, the latter of which is concerned with “Trial procedure”. Cost can be ordered by a Court under Div 3 in circumstances where a prosecutor does not appear but the accused does. There appears to be no provision to order costs against an accused under Div 3.

236. The CSPA does not define what a “penalty" is. Rather, it equates the meaning of “sentence” with that of “penalty” in s 3 of that Act (emphasis added):

sentence means:

(a)    when used as a noun, the penalty imposed for an offence, and

(b)    when used as a verb, to impose a penalty for an offence.

237. In Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422, the Court of Criminal Appeal was required to determine whether a publication order was included within the definition of “sentence” in s 5AA of the CAA, and therefore, amenable to appeal under that provision. Relevantly, for present purposes, the Court of Criminal Appeal, first, drew a distinction between a “sentence”, which included a publication order, but not a costs order (as specified in s 5AA(1)(b) and (c) of the CAA) (at [112]). And second, held that, as defined, a “sentence” included any order, including a publication order, made by a court upon conviction (at [112]):

112 The first, and most simply exposed, flaw lies in overlooking the opening words of the definition of "sentence". A "sentence" is "any order made by the court of trial on convicting a person of an offence". The definition could stop there. The detailed individual subparagraphs that follow are illustrative of the kinds of orders that are included. They do not mark out the boundaries of the definition. The publication order was "an order made by the court of trial on convicting [the appellant] of the offence". It is therefore a "sentence" (or a component of a sentence) within s 5AA.

238. Applying this logic, a “sentence” would include any costs order made by the court appealed from.

239. In Harris, the costs order made by this Court at first instance was expressly set aside by the Court of Criminal Appeal because the appellant enjoyed a “very significant” measure of success in his appeal but by virtue of s 17(1) of the CAA he was not entitled to recover any costs of the appeal (at [103]).

240. In this instance, however, the Court of Criminal Appeal neither set aside the “sentence” of Lloyd J, nor the separate costs order made by him. Instead, as noted above, it set aside the “penalties” ordered by his Honour. Does, therefore, this encompass the costs order made his Honour?

241. Mindful of the admonishment of using definitions in one statute (that of “sentence” in the CSPA) as aids in the interpretation of another statute (viz, the term “sentence” in the CPA) to, in turn, assist in the proper construction of the scope of remitter orders of an appellate court, in my opinion, the better view is that by quashing the “penalties” ordered by Lloyd J, the Court of Appeal intended to include the costs order made by his Honour. This is because the costs were part of the “question of sentence” remitted to this Court for determination. The “sentence” included the costs and, consistently with the statutory definitions given to that word in the CAA and the CPA, the penalties imposed by Lloyd J.

242. My conclusion is reinforced by the proposition that although costs are ordered not to punish, but to compensate (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534), in criminal proceedings the payment of a prosecutor’s costs may nevertheless be seen as an aspect of the punishment or penalty imposed by a Court.

243. Thus in Barnes at issue was whether the penalty imposed by the court below was manifestly inadequate. The Court of Criminal Appeal held that the amount of costs payable by the defendant could be taken into account as part of the penalty imposed (at [88], emphasis added):

As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher.

The case stands for the principle that the payment of costs by a defendant is an aspect of punishment and can be considered by a court when fixing a monetary penalty (Harris at [100] and Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche [2013] NSWLEC 191 at [63]).

244. For these reasons, I am of the opinion that the Court of Criminal Appeal set aside the costs order made by Lloyd J when it quashed the “penalties” imposed by him.

245. However, if I am wrong, and it did not set aside this order, there is nothing preventing this Court, on the sentence remitter, vacating the costs order made by Lloyd J and remaking it. Therefore, in case the analysis above is incorrect, and as a matter of prudence, this is what I propose to do.

246. In terms of an appropriate costs order in respect of the proceedings before Lloyd J, the prosecutor is correct in its observation that very little of the time spent in those proceedings was occupied by the question of sentence. But having noted this, the Court is equally mindful of the fact that Mr Hudson enjoyed a measure of success before the Court of Criminal Appeal on the question of sentence, for which, by reason of s 17(1) of the CAA, no costs order in his favour could be made.

247. Therefore, doing the best that I can, I consider it to be just and fair that Mr Hudson pay only half of the prosecutor’s costs of the proceedings before Lloyd J. In my view, the Court has the power to apportion costs in this manner under s 257B of the CPA, but not under s 215(1) of that Act, which does not apply to summary proceedings before this Court (see s 170(1) of the CPA. Cf Chief Executive, Office of Environment and Heritage v Kyluck Pty Ltd (No 4) [2014] NSWLEC 74 at [105] which, in my respectful opinion, is in error in this regard).

Orders

248. For the reasons provided above, the Court orders that:

50014 of 2008

1. the defendant is fined the amount of $318,750;

50035 of 2008

2. the defendant is fined the amount of $1,275;

50014 and 50035 of 2008

3. pursuant to s 257B of the Criminal Procedure Act 1986 the defendant is to pay the prosecutor’s costs of the proceedings before me as agreed or as determined under s 257G of that Act;

4. the costs order made by Lloyd J on 11 February 2009 is vacated;

5. pursuant to s 257B of the Criminal Procedure Act the defendant is to pay half of the prosecutor’s costs of the proceedings before Lloyd J as agreed or as determined under s 257G of that Act; and

6. the exhibits are to be returned.

**********

Amendments

17 July 2015 - reformatted table of contents

Decision last updated: 17 July 2015