Director-General, Department of Environment Climate Change and Water v Ian Colley Earthmoving Pty Ltd - [2010] NSWLEC 102

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Director General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102

PARTIES:
PROSECUTOR
Director General, Department of the Environment, Climate Change and Water
DEFENDANT
Ian Colley Earthmoving Pty Ltd

FILE NUMBER(S):
50072 of 2009

CATCHWORDS:
PROSECUTION :- sentencing - contractor cleared trees on instruction of landowner - landowner not prosecuted - early guilty plea - significant short term environmental harm as endangered ecological community cleared selectively - whether s10A(1) order of conviction without penalty appropriate - mitigating circumstances - capacity to pay a substantial fine considered

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 3A, 10A, 21A, 22
Criminal Procedure Act 1986 s 257G
Environmental Planning and Assessment Act 1979 s 125, 126(1)
Fines Act 1996 s 6
Local Government Act 1993
National Parks and Wildlife Act 1974 s 118A
Native Vegetation Act 2003 s 3, 11, 12, 19, 26, 36
Native Vegetation Regulation 2005 cl 20
Threatened Species Conservation Act 1995 Schedule 2
Blue Mountains Local Environmental Plan 1991

CASES CITED:
Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Blue Mountains Council v Tzannes [2009] NSWLEC 19
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Department of Environment & Climate Change v Sommerville; Department of Environment & Climate Change v Ianna [2009] NSWLEC 194
Director–General, Department of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t-as Jerilderie Earthmoving [2009] NSWLEC 182
Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530
Director General of the Department of the Environment and Climate Change v Wilton [2008] NSWLEC 297
Environment Protection Authority v Barnes [2006] NSWCCA 246
Garrett v Freeman (No. 5) [2009] NSWLEC 1; (2009) 164 LGERA 287
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hoare v R [1989] HCA 33; (1989) 167 CLR 348
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
R v Olbrich [1999] HCA 54; (1999) CLR 270
R v Rahme (1989) 43 A Crim R 81
R v Rushby [1977] 1 NSWLR 594
R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

CORAM:
Pain J

DATES OF HEARING:
17 June 2010

JUDGMENT DATE:
23 June 2010

LEGAL REPRESENTATIVES

PROSECUTOR
Ms G Furness
SOLICITOR
Department of Environment, Climate Change and Water
DEFENDANT
Ms P Lane
SOLICITOR
Hannaford Cox Connellan & McFarland

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Pain J
23 June 2010
50072 of 2009 Director General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd
JUDGMENT

Her Honour: The Defendant has pleaded guilty to a charge of an offence of clearing native vegetation without consent contrary to s 12 of the Native Vegetation Act 2003 (the NV Act). Section 12 states:
(1)Native vegetation must not be cleared except in accordance with:
(a)a development consent granted in accordance with this Act, or
(b)a property vegetation plan.

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

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

Regrowth vegetation meaning vegetation that has grown since 1990 can be cleared; Div 2 s 19.

The offence was committed between 21 November 2007 and 5 January 2008 at or near Lots 14 and 166 in DP 755435 near Lue, NSW, (the property) which is near Mudgee. Native vegetation cleared was Eucalyptus ablens, Eucalyptus melliodora, Eucalyptus Bridgesiana, Eucalyptus Molluccana, Eucalyptus Mircrocarpa, Eucalyptus cannonii, Eucalyptus laevopinea, Eucalyptus macrorhyncha, Angophora floribunda and Eucalyptus blakelyi. The Defendant by an employee cleared native vegetation by means of machinery including a bulldozer.
A plea of guilty means that the Defendant has admitted the essential elements of the offence. The offence is one of strict liability.
Statement of Agreed Facts
The Statement of Agreed Facts (SOAF) states that the Defendant is an earthmoving business of which Mr Ian Colley is the sole director. It owns a number of D6 and D12 bulldozers, trucks and trailers for transporting these to work sites. It employed 18 people at the time of the offence. The property where the clearing occurred was owned by Kenneth John Smithwell. He contacted Mr Colley in November 2007 to discuss the construction of dams on the property and the clearing of vegetation. Mr Smithwell had received a report made under the Local Government Act 1993 identifying the need for the removal of noxious plants.
Paragraph 7 of the SOAF states:
Around 8 November 2007 Mr Colley visited the property to discuss the proposed work with Mr Smithwell. Mr Smithwell sought advice on the possible location of two farm dams to be constructed on the property. Mr Smithwell requested Mr Colley to clear native vegetation in order:
(i)to clear the noxious weeds blackberry, briar and St Johns Wort;
(ii)for access to the property; and
(iii)to clear “non-protected regrowth” under the NV Act.
Around 21 November 2007 Mr Colley sent his employee David Bell to the property to do the work. He gave oral instructions to follow the direction of Mr Smithwell. He should only get back to Mr Colley if he had queries such as problems with the equipment. Mr Colley’s usual practice was that the persons hiring the bulldozer would direct the work. He did not give Mr Bell any oral or written instructions about the clearing of native vegetation or what was required to ensure compliance with the NV Act. Mr Colley arranged for a D6 bulldozer to be trucked to the property.
Shortly after 21 November 2007 Mr Bell commenced work on the property in the D6 bulldozer. While carrying out the work Mr Bell cleared native vegetation, pushed over vegetation for fence lines and constructed two dams. Mr Colley was not present on site to oversee the way in which Mr Bell carried out the work. Neither Mr Bell nor his employer made any independent inquiries or sought independent confirmation of the lawfulness of the clearing under the NV Act.
Just prior to Christmas 2007 John Lydiard observed that a number of trees on the property had been cleared. Mr Lydiard observed a D6 bulldozer on the property which was subsequently identified as that of the Defendant.
Over the next two weeks Mr Lydiard observed further trees on the property being pushed down by the bulldozer. He also observed two dams being constructed.
Some time in February or March 2008 Mr Lydiard had a conversation with Mr Colley in words to the following effect:
Mr Lydiard: Hello Ian, its John Lydiard. What’s the process for clearing land, clearing excess vegetation? If the farmer gets into trouble for clearing excess vegetation do you get into trouble too?
Mr Colley: I guess so.
Mr Lydiard: Do you have to fill out paper work? Do you specify to the farmer what he clears and what permits he needs?
Mr Colley: Basically, we do what the farmer asks us to do.
In around August 2008 Mr Smithwell commenced burning the felled vegetation.
Environmental harm
One hundred and twenty-eight trees were removed from across the property during the offence period. These trees were not non-protected regrowth within the meaning of the NV Act and compliance with the NV Act was required before they could be cleared. An affidavit of David John Geering, Threatened Species Officer of the Prosecutor, sworn 24 September 2009, identifies the results of his inspection of the property in October 2008. Preliminary identification of every tree species on the property was confirmed by further examination of samples taken of these trees and included Angophora floribunda, Eucalyptus moluccana, Eucalyptus Albans, Eucalyptus melliodora, Eucalyptus blakelyi, Eucalyptus macrorhyncha, and some uncertain hybrid species. He states several bird species listed on Sch 3 [clarified as meaning Sch 2 by counsel] of the Threatened Species Conservation Act 1995 (the TSC Act) were also identified while collecting botanical data, and included various numbers of Grey-crowned Babblers, Speckled Warblers, Hooded Robins and Diamond Firetails.
A report of Mr Ian Cole, Senior Natural Resources Officer with the Prosecutor, was provided on the environmental impact of the clearing based on field sheets, photographs and investigative samples taken by compliance officers on field trips to the property in August and October 2008. Based on this information he concludes that about 29 ha of woodland vegetation has been thinned by about 60 per cent. Many large trees were removed as seen in 44 burnt and 5 unburnt stacks of trees. There is a much reduced cover of native overstorey species in the cleared area. Only 35 large trees were retained. There is a high degree of certainty that the important overstorey trees cleared on this site are more than 30 years old and existed on the site before 1990. Some of the species identify the community as a White Box-Yellow Box-Blakely’s Red Gum (Box Gum) woodland endangered ecological community (EEC) in this bioregion. These tree species have a high ecological value as they offer potential habitat for a wide range of native animals including several threatened species. Large mature trees are essential for the presence of nesting hollows for native birds and bats. It is likely that 60 per cent of habitat has been removed. The habitat for threatened species is inadequately represented in conservation reserves in the region.
Loss of this vegetation also affects the connectivity of the vegetation in the region. Prior to the clearing the property represented one of the less cleared and agriculturally modified areas in the district. Clearing has not reduced the size of the overall remnant and the distance to the next “stepping stone” habitat remains the same. The significant thinning of trees increases the likelihood of future fragmentation of habitat by ensuring stands become old and moribund with no capacity to regenerate. There has been a loss of structural layers and there is a lack of tree species regeneration.
There is greater abundance of weeds on disturbed soils and a loss of leaf litter and fallen timber. The clearing has negatively impacted on the condition of the native vegetation remaining on the property. Negative impacts have been caused by the removal of dead trees and large trees of hollow bearing age, younger cohorts of trees essential to ensuring replacement of older trees as they senesce and die, and the removal of coarse woody debris and litter.
This ecological community generally has been drastically reduced in area and highly fragmented within all bioregions because of clearing for cropping and pasture improvement. Remnants are subject to varying degrees of threats including clearing. The only mitigating factor is the proximity of the property to large intact remnants where all the woodland habitat is still available for utilisation by fauna.
The clearing has not caused any significant soil erosion hazard and there is no evidence of siltation, salinity risk or adverse effects on water quality in adjacent streams or rivers.
Mr Colley, director
An affidavit of Ian Harvey Colley, sole director of the Defendant, sworn 29 April 2010 identifies the usual practices of the company at the time of the offence were to hire out bulldozers and the operators took instructions from the farmers. An annexed financial report prepared by Lawrence Bennet Portelli Pty Ltd, chartered accountants, states that the financial position of the company reflects poorly with the balance sheet for financial year ended 30 June 2009 showing total liabilities well exceeding total assets. The financial report opines a view of “the company as being in severe financial hardship” and “[a]ny additional financial burden in the current trading environment will add consideration towards the entity becoming insolvent and forced into being wound up”. The current accounts showing year-to-date profits were not reviewed and no opinion is expressed for the current financial year.
The affidavit states Mr Colley was aware generally of a law concerning the clearing of trees on farms and of problems with the clearing of native vegetation but only by word of mouth or casual conversation. Work for farmers was a small part of the Defendant’s work. Since the offence he has made inquiries about the rules about clearing of native vegetation and he and his employees are now conscious of the need to be careful when doing clearing work. Since the offence he has also minimised the amount of hiring of machinery to farmers undertaken by the Defendant. He has implemented a training schedule for his employees through TAFE NSW in occupational health and safety and environmental matters, commencing at some time prior to March 2010 and due for completion in late 2010. Other work has been done for another farming family who attest to the good work and knowledge of conservation of the Defendant’s employees. Three commercial testimonials annexed to the affidavit describe Mr Colley’s company as a competent earthmoving contractor with an ability to deliver responsible and quality services. There is no indication within any of the testimonials that they were drafted in contemplation of these proceedings. There is also a statement from the NSW Rural Fire Service (Far West Rural Fire Service) attesting to the contribution of Mr Colley and his staff and machinery in assisting with recent fire management activities. Mr Colley left school at fifteen, is a poor reader and his wife handles all the company paper work. He attended the interview with the Prosecutor on 14 July 2006. He was not aware that further documents or information was required of him by the Prosecutor such as a response to the s 36 notice for documents and information.
Mr Colley gave oral evidence that he was very sorry for what had occurred and had taken steps to ensure that no such offence would occur again.
Sentencing considerations
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) states the purpose for which the Court may impose a sentence on the Defendant:
(a)to ensure that the offender has been 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; and
(g)to recognise the harm done to the victim of crime and the community.

The Prosecutor submits that factors (a), (b), (e), (f) and (g) are most relevant in this case. The relevant statutory scheme which has been breached must be considered in determining the seriousness of the offence. The objects of the NV Act are stated in s 3 to be:
The objects of this Act are:

(a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and
(b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and
(c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and
(d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and
(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development.

As the Prosecutor submitted, the prohibition on clearing of native vegetation unless consent from the regulatory authority is obtained is an important means of achieving these objects. In this way environmental assessment of the proposed clearing can be carried out. Failure to comply with these provisions undermines the Act’s objectives, see Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [65]-[71] applying also to the NV Act per Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [17]. In order for the NV Act to operate effectively this scheme must be upheld.

Proportionality of punishment is an important sentencing principle to which I will refer in this case. An appropriate sentence is to be determined after consideration of the objective and subjective circumstances bearing in mind that:
…a basic principle of sentencing law is that a sentence…imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).
per Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

Objective gravity of the offence

In determining the objective gravity of the offence, the circumstances of the offence in this case to which the Court may have regard include: the nature of the offence; the maximum penalty for the offence; the harm caused to the environment by commission of the offence; the state of mind of the offender for committing the offences; the offender’s reason for committing the offences; the foreseeable risk of harm to the environment by commission of the offence; the practical measures to avoid harm to the environment; and the offender’s control over the causes of harm to the environment per Rae at [14].
Maximum penalty
At the time of the commission of the offence the maximum penalty prescribed by Parliament was 10,000 penalty units or $1,100,000 and a further daily penalty of 1,000 penalty units or $110,000: see s 12(2) of the NV Act which refers to s 126(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The Court is also to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.
Harm to the environment
Prosecutor’s submissions
The woodland community cleared is EEC which has high ecological value, offering potential habitat for a wide range of native animals including several threatened species. Probably, conservatively the clearing has removed 60 per cent of the habitat for bird and bat species as well as for over 4350 individual reptiles and frogs.
Identified on the property the subject of the clearing were several bird species listed as vulnerable on Sch 2 of the TSC Act, namely the Grey-crowned Babbler, the Speckled Warbler, the Hooded Robin and the Diamond Firetail.
The clearing has incrementally increased vegetation fragmentation in the area, connectivity in the locality has been further incrementally reduced and it has removed a small area of habitat for threatened species inadequately represented in conservation reserves in the region. The clearing has negatively impacted on the condition of the native vegetation remaining on the property.

The risk of surface erosion has not been significantly increased by the clearing under investigation, nor has the clearing significantly affected the salinity risks. The clearing will not have a significant adverse effect in the long term on vegetation regeneration of most species.

Defendant’s submissions

The Defendant’s counsel submitted that although the clearing caused harm, the harm is capable of remedy and is not of lasting or significant local consequence having regard to the presence of a large stand of uncleared vegetation in proximity to the vegetation that was cleared. Mr Cole relied on field samples and photographs taken after the vegetation had been burnt. The landowner Mr Smithwell burned the vegetation about nine months after the clearing.
The Defendant’s counsel submitted that any environmental harm was not long-term as Mr Cole’s report refers to the regenerative capacity of the vegetation not being affected on a long-term basis. Regeneration of many species will occur slowly naturally over time. Further he was not asked to distinguish between the impact of the clearing of the trees by the Defendant compared with harm resulting from the burning of the fallen timber which the landowner carried out some months later. His report is based on field sampling and photographs taken after the burning. His report identifies that there were 44 burnt stacks and 5 unburnt stacks of felled timber. Accordingly the entirety of the impacts identified in his report should not be taken into account as against the Defendant. A number of the impacts he identifies such as the loss of hollow-bearing trees are attributable to the burning rather than the clearing. The burning diminished the possibility of regeneration, with photographs in the SOAF showing impacts of burning on regenerating plants. The Defendant should not be penalised for environmental impacts he did not cause.
Finding on environmental harm
The loss of such a large number of trees which form part of an EEC is a substantial environmental impact in the short-term for the reasons give by Mr Cole, summarised above. He estimates a 60 per cent loss of habitat trees across 29 ha of woodland, a sizeable area. Those impacts are identified by him with the knowledge that the felled vegetation had been burnt, a matter submitted by the Defendant’s counsel as resulting in a greater level of environmental harm than simply the clearing undertaken by the Defendant’s employee. The Defendant’s submission appears to be justified in part in relation to the negative impacts of burning on regeneration of vegetation. The Defendant’s counsel identified photographs which show that the burning of felled timber was adversely impacting on some of the vegetation regenerating around the piled up stacks. The Defendant’s counsel also submitted that the hollows in the trees would have continued to be available for habitat if the trees had not been burnt. That hollows in felled trees which are not burnt continue to be habitat that is as good as that in trees that are alive and standing is debateable. The balance of impacts identified by Mr Cole are related to the felling of trees and are significant.
The long-term impacts are minimised by the presence of undisturbed similar woodland nearby according to Mr Cole, a fortuitous circumstance not resulting from the actions of this Defendant or the landowner. As the Defendant is not the landowner he has no ability to mitigate the harm, such as by complying with a remediation notice.

State of mind of the offender/reasons for committing the offence

The offence under s 12(1) of the NV Act is a strict liability offence and mens rea is not an element of the offence. However, the state of mind of an offender at the time of the offence can have an effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Garrett v Freeman(No. 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68], [356]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [75]; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [69].
The Prosecutor’s written submissions stated that the sole director of the Defendant, Mr Colley, was generally aware that there were laws about native vegetation. He did not give any instructions about the NV Act to his employee who carried out the clearing. He was not present on the site and did not oversee the way in which the employee carried out the work. He did not make any independent inquiries or seek any independent confirmation of the lawfulness of the clearing. In oral address these submissions were clarified to mean that Mr Colley was careless in not checking with the farmer employing his company whether the necessary permits or consents required under the NV Act were held by him.
The Defendant submitted that the offence was not intentional as is clear from the evidence of Mr Colley who is the controlling heart and mind of the company. The Defendant’s employee was instructed by the landowner Mr Smithwell as can be seen from the SOAF. The Defendant is less culpable than the landowner who arranges for and directs the land clearing. The offence was not premeditated, as Mr Colley attests that he discussed clearing of fence lines and construction of two dams with Mr Smithwell. The Defendant is not usually engaged in land clearing. The failure to make inquiries or give directions about clearing native vegetation to employees or to oversee the work might have been careless but was in accordance with the Defendant’s usual commercial practice and does not support a finding of high culpability. The SOAF par 7 identifies the tasks which Mr Colley understood Mr Smithwell wanted him to carry out. None of these suggest that any breach of the NV Act was likely given the exemptions for routine agricultural activities in that Act.
The Defendant submitted that the NV Act does not differentiate between the landholder or the operator of the bulldozer in relation to liability under s 12(1). The objectives of the Act are more particularly directed to the preservation of native vegetation on private land and impose obligations on landholders to obtain consent for clearing as only landholders can apply for property vegetation plans under s 26 of the NV Act. Persons who let out machinery for hire for use in clearing have a limited degree of control over the clearing activities undertaken by landowners.
Finding
The Prosecutor has agreed in the SOAF, and Mr Colley’s affidavit identifies, that Mr Smithwell the landowner was to instruct the Defendant’s employee who undertook the clearing work. Mr Colley provided no instructions to his employee as to how the work was to be done. This is the only prosecution launched by the Prosecutor in relation to the clearing the subject of the offence as Mr Smithwell has not been prosecuted. The Prosecutor submitted that the fact there was no prosecution of the landowner was not relevant to the consideration of this matter. Given that Mr Smithwell is the person who asked that work which involved clearing of vegetation be done on his land and stands to gain financially from the illegal clearing activity, it being to facilitate the use of his property for agricultural purposes, that is a relevant matter when assessing the state of mind of Mr Colley, the sole director of the Defendant, and its overall culpability.

There is no doubt that the Defendant is strictly liable for the clearing offence as that is the way the NV Act is structured. It cannot obtain a necessary permit from the regulatory authority which enables lawful clearing of native vegetation to be carried out, only a landowner can do that. The Prosecutor submits that an entity in the Defendant’s position must ask the landholder if he or she has the necessary consent or refuse to do the work if it considers there is a problem with what is asked to be done. The business conducted by this Defendant is the hire of machinery and an operator of the machinery to do work directed by the person doing the hiring. The business of the company is not land clearing. I agree that these measures are those the Defendant must implement in order to avoid a similar offence in the future.
The issue arises in light of the SOAF of whether there was a failure to ask Mr Smithwell whether he had the necessary approval required by the NV Act for clearing. In par 7 of the SOAF Mr Smithwell identifies the work to be done as the building of two dams and clearing of native vegetation in order to clear noxious weeds, for access to the property and to clear non-protected regrowth under the NV Act. The meaning of access to the property was disputed. The Prosecutor argued this meant access across the property. The Defendant’s counsel submitted this meant access in and out of the property. Given this is a sentencing hearing, matters which are adverse to the Defendant must be established beyond reasonable doubt (R v Olbrich [1999] HCA 54; (1999) CLR 270 at [25] and [27]). The ordinary meaning of the words “access to the property” suggests the Defendant’s interpretation should be adopted in the absence of any further evidence of what was intended by these words. In other words a road in and out of the property.
As the Defendant’s counsel submitted exceptions are provided under the NV Act for routine agricultural activities. Under s 11 of the NV Act routine agricultural activities include the removal of noxious weeds and the construction of rural infrastructure such as dams and farm roads. The Native Vegetation Regulation 2005 cl 20 provides permissible buffer distances for clearing around roads and dams inter alia. Clearing within limited distances for all the purposes identified in par 7 of the SOAF is legal under the NV Act. Consequently there was no reason for Mr Colley to believe that there was any likelihood that clearing of vegetation in breach of the NV Act might arise and that he should ask if the necessary permit had been obtained.
That the clearing of trees selectively across most of the 29 ha of land the subject of the offence would occur, as seen in the aerial photograph at Tab B of the SOAF, could not have been known to this Defendant at the time work was requested.
On the basis of the SOAF it is not appropriate to find that the Defendant was careless in not making inquiries of the landowner as to whether he had the necessary permit to enable clearing of native vegetation. In these circumstances the Defendant’s culpability is low.
Foreseeability and risk of harm
The Prosecutor argued that having regard to the nature and extent of the clearing, and the native vegetation cleared, a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. The extent of foreseeability of harm is a relevant objective circumstance of the offence: Camilleri’s Stock Feeds at 700.
The Defendant submitted that there was a low degree of foreseeability as Mr Colley was not aware that the hire of the bulldozer would result in mature trees being knocked over. It can be inferred from the SOAF and Mr Colley’s evidence that the job which Mr Smithwell set for the driver was fundamentally different to that discussed with Mr Colley. Mr Colley could not have foreseen that the work would involve a significant number of mature trees being cleared.
I accept the Defendant’s submissions based on par 7 of the SOAF that the foreseeability of the harm caused for this Defendant was low in the circumstances.
Practical measures to prevent risk of harm
The Prosecutor submitted that the Defendant could have refrained from clearing the native vegetation on the property until it had made appropriate inquiries of Mr Smithwell and satisfied itself that all relevant approvals and consents were in place. I have already held above that based on the understanding of what Mr Smithwell requested as set out in the SOAF there was no reason for the Defendant to consider that there were going to be native trees felled in breach of the NV Act.
I agree with the Defendant’s submission that the prior conversation with Mr Smithwell concerning the nature of the job and the practice of deferring to the instructions of the farmer meant there were few practical measures that the Defendant could have taken to prevent the clearing which occurred on the day that the work was undertaken.
Control over causes
Mr Colley directed his employee to attend and carry out the work requested by Mr Smithwell. That resulted in the clearing of native vegetation on the property and harm to the environment. In the circumstances this Defendant had limited control over the causes which led to the environmental harm.
None of the matters set out in section 21A(2) of the CSP Act, being matters in aggravation, arise in this case.
Conclusion on objective circumstances
Having regard to the nature of the offence, the high maximum penalty, the degree of harm to the environment, the foreseeability of risk of harm to the environment by reason of commission of the offence, the existence of practical measures to avoid that risk of harm and the control over the causes of harm to the environment, the offence is considered to be of low gravity.

Deterrence

The sentence must ensure that the offender is held accountable for its actions and is adequately punished. The sentence must deter the offender from committing similar offences in the future. Further, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. Similar observations are made in the context of the NV Act in Director General of the Department of theEnvironment and Climate Change v Wilton [2008] NSWLEC 297 at [77] and in Rae at [8]-[9].

Order under s 10A(1) of the CSP Act?

The Defendant’s counsel submitted that the Court should consider making an order under s 10A(1) of the CSP Act which states:
(1)A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

According to the Defendant’s counsel, similar circumstances to this matter, albeit under different legislation, occurred in Department of Environment & Climate Change v Sommerville; Department of Environment & Climate Change v Ianna [2009] NSWLEC 194. The landowner and the contractor who carried out the work giving rise to the offence both pleaded guilty to the offence of picking plants which were part of an endangered ecological community in breach of s 118A(2) of the National Parks and Wildlife Act 1974. In that case the contractor was the subject of an order under s 10A(1) of the CSP Act due to his low culpability, difficult personal circumstances arising from the offence and limited means, inter alia. The landowner was convicted and a penalty imposed. Each defendant paid half the prosecutor’s costs.
In another case referred to by the Defendant’s counsel, Blue Mountains City Council v Carlon [2008] NSWLEC 296 an offence was committed under s 125(1) of the EP&A Act in that vegetation and trees were cleared from land without the necessary development consent from the council being obtained as required by the EP&A Act. The defendant contractor, who pleaded guilty, knocked down trees as part of a clean up operation. He believed at the time of the offence that the clean up operation had the consent of the council. He had that belief as a result of inquiries made of the landowner who requested him to do the work. An offence was committed because the knocking down of trees during the clean up operation did not have the necessary written council consent. The land in question was in a rural conservation zone under the Blue Mountains Local Environmental Plan 1991 and in a heritage conservation area. In light of his low culpability, the extenuating circumstances in which the offence was committed, his unblemished character, that while there was environmental harm the site was revegetating satisfactorily and his limited means, inter alia, an order under s 10A(1) was made. That he also had to pay the prosecutor’s costs of $20,000 was also taken into account in that decision. The landowner was separately prosecuted and the offence was found proved but no conviction was recorded and the proceedings were dismissed pursuant to s 10(1) of the CSP Act (Blue Mountains Council v Tzannes [2009] NSWLEC 19).
While the Defendant’s culpability is low, the number of mature trees from the EEC knocked down across the property is large and the short-term environmental harm significant. The conduct giving rise to the offence was a result of the Defendant’s usual operations and an activity for which it presumably received a fee (the evidence does not disclose how much). Deterrence is an important consideration as identified in both Carlon and Sommerville for those engaged in commercial activities which involve land clearing if only to a limited extent, as in this case. Given the significant level of environmental harm, I do not consider an order under s 10A(1) is appropriate in these circumstances.
A penalty should be imposed keeping in mind that sentencing must be proportional to the gravity of the offence which I have held to be low.

Subjective circumstances

The Court must also consider subjective factors including those set out under s 21A(3) of the CSP Act.

Plea of guilty s 21A(3)(k) and s 22(1)(a)

A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10-25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; and R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. The Defendant has pleaded guilty to the offence, a fact that the Court is required to take into account in determining the extent of any discount that should be given for a plea of guilty. The Court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: see s 22(1)(b).
The first return date of the summons was 5 February 2010 and the Defendant entered a plea of guilty when the matter was next before the Court on 5 March 2010. That was the first available opportunity he could do so having then sought legal advice. I consider he is entitled to the full discount for a plea of guilty.
Assistance to authorities s21A(3)(m)
The Prosecutor submitted that the Defendant voluntarily participated in an hour long interview on 14 July 2009. The Defendant has, with the exception referred to below, co-operated since then, including by agreeing to a statement of facts and evidence. The Defendant has not complied with the statutory notice issued under s 36 of the NV Act. Mr Colley explained in his affidavit the circumstances of the interview and the Defendant’s lack of response to the s 36 notice, which explanation I accept as reasonable.

Good character s 21A(3)(f)

The Defendant is of good reputation and character, as further attested to in references annexed to Mr Colley’s affidavit (although these have less weight as they do not state they are made in contemplation of these proceedings).

Unlikely to reoffend s 21A(3)(g)

In light of Mr Colley’s affidavit about the measures taken since the offence to ensure no recurrence including making sure employees are aware of laws regulating the clearing of native vegetation and the minimisation of clearing work undertaken for farmers, I consider this Defendant is unlikely to reoffend.
Contrition and remorse s 21A(3)(i)
Mr Colley expressed remorse for the offence in his oral evidence and I accept that statement and will give it weight in the determination of penalty.
Evenhandedness

The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court; see Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 365.
In Director–General, Department of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t-as Jerilderie Earthmoving [2009] NSWLEC 182 (Calman) I reviewed a number of sentencing decisions considering s 12 of the NV Act and the previous Native Vegetation Conservation Act 1997 (repealed) at [62]-[65]. It is useful to incorporate these paragraphs here. Rae also identifies a number of cases at [79]-[83]. My review in Calman at [62]-[65] is as follows:
Native Vegetation Conservation Act 1997 (repealed)
[Referring to Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530:]
62 Taylor was a prosecution under s 21(2) of the NVC Act. Approximately 30.5 hectares of native vegetation was cleared. The actual harm to the environment was held by Lloyd J to be significant, including clearing vegetation comprising an endangered ecological community. The defendant knew that there was legislation regulating land clearing but denied knowledge of the precise legislation or the department responsible for administering legislation regulating the clearing of vegetation. The objective circumstances of the crime were considered by his Honour to be of moderate seriousness. Mitigating factors considered were the absence of prior convictions and the early plea of guilty. There was some evidence of contrition and remorse including in the offer to remediate the land although the extent of the contrition was tempered by untruthful and misleading statements made by the defendant in the investigation phase to the prosecutor. Lloyd J considered that the appropriate penalty was a fine of $30,000, discounted by 33 per cent for all mitigating factors, resulting in a fine of $20,000 of a maximum $1.1 million.
[Referring to Wilton (2008):]
63 Wilton was another prosecution under s 21(2) of the NVC Act. Biscoe J fined the defendant $30,000 on one charge and $10,000 on another charge for clearing native vegetation on the eastern and western parts of the defendant’s property respectively. The maximum penalty was $1.1 million. His Honour also ordered the defendant to pay the prosecutor’s costs of $30,000 in total. The land cleared in the eastern part was between 13.1 and 13.5 hectares and was 18.3 hectares in the western part. There was actual environmental harm caused by commission of the offence but his Honour held that it was relatively moderate as it had not adversely affected any threatened species, populations or ecological communities. The defendant cleared the land for the purpose of commercial planting and harvesting of trees for profit. The defendant believed that the clearing was exempted from a requirement for development consent under the Act. The Court found that the defendant made a serious and careless error in forming that belief. Mitigating factors considered were the absence of prior convictions, the defendant’s good character, his full assistance to the prosecution, the plea of guilty at the earliest available time, his expression of remorse, acceptance of responsibility for his actions and acknowledgment of the damage caused, a donation by the defendant of the felled timber to charities and compliance with a remediation order. In respect of the charge for clearing the eastern area, Biscoe J added $10,000 to the fine that was considered to be otherwise appropriate with the object of negating the net financial advantage that the defendant would otherwise obtain.
Offences under Native Vegetation Act 2003
[Referring to Hudson (2009):]
64 Hudson, delivered in January 2009 and dealing with an offence committed between November 2007 and March 2007, was the first prosecution under s 12(1) of the NV Act and concerned the clearing of 486 hectares of native vegetation. The defendant pleaded not guilty. In finding the defendant guilty, Lloyd J held that the offence was committed deliberately and after the defendant had been told expressly by an officer of the relevant regulatory authority that native trees must be retained on the land. The offence was committed to make the land more available for agriculture and hence for commercial gain and the harm to the environment caused by the offence was substantial. Lloyd J stated that there was a need for both individual deterrence and general deterrence. The objective gravity of the offence was considered by his Honour to be high. There were few mitigating factors as there was no plea of guilty, no assistance to the investigating or prosecuting regulatory authority, no expression of contrition or remorse and there was no remediation or offer to remediate the environment harmed by the offence. The defendant was, however, a first offender. The defendant was fined $400,000 of a maximum $1.1 million and ordered to pay the prosecutor’s costs. The defendant was also fined $8,000 for failing to comply with a notice issued under s 36(2) of the NV Act.
[Referring to Rae (2009):]
65 In Rae the defendant pleaded guilty to an offence under s 12(1) of the NV Act. An area of 215 hectares was partially cleared, including an area of 155 hectares which was cleared of 95 per cent of all trees. Most of the trees cleared were mature and some were in excess of 17m in height. The defendant admitted to investigators that he knew that he needed consent for the clearing but went ahead without seeking consent. The clearing was held to be premeditated and intentionally carried out with knowledge of its seriousness. The trees were cleared to improve the property by making it more viable for agricultural purposes and to increase its capital value. The native vegetation which was cleared had significant conservation status and contributed to biodiversity. Preston J held that there was a high degree of environmental harm and the seriousness of this harm was considered an aggravating factor in sentencing. The defendant agreed to a direction by the prosecutor to carry out remediation of the site. Overall the offence was considered to be of medium objective gravity. Mitigating factors considered were the absence of prior offences, the defendant’s good character, the defendant’s guilty plea (though not at the earliest opportunity), his expression of contrition and remorse and his assistance in the investigation. A fine of $160,000 was imposed.
In Calman three defendants, two landowners and a contractor, pleaded guilty to clearing native vegetation of about 21 ha for agricultural purposes. The contractor’s business was land clearing. The offences were committed without knowledge that the clearing was illegal under any law. The landholders agreed to a remediation order. Each was fined $22,000 and ordered to pay a third of the prosecutor’s costs. The prosecutor’s costs of $73,000 were substantial.
The level of culpability of the defendants in all those cases was markedly greater than in this matter and they do not provide much assistance in determining the appropriate penalty in this matter.
Section 6 Fines Act 1996
Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as are relevant, in the opinion of the Court, to the fixing of that amount.
The Defendant’s counsel submitted that the Defendant’s financial position should be taken into account as it is unable to pay a substantial fine and any fine will put it in jeopardy. It is not profitable, has large accumulated losses, with a substantial asset deficiency despite year to date profits of about $36,000. An additional financial burden may force insolvency and winding up.

Capacity to pay a large fine is a factor which the Court is required to consider under s 6. In R v Rahme (1989) 43 A Crim R 81 at 86 Finlay J with whom Studdert J agreed, said:
The imposition of a large fine does involve a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution effect payment...It is clear I think that what is required where the court is contemplating the imposition of a financial penalty is a decision on whether or not the appellant has the means.

This Defendant has very limited means to pay a substantial fine. While the business appears to be high turnover with large cash inflows recorded in its financial statement for the year ending 2009, the overall financial position of the business is poor.
In light of all the objective and subjective circumstances and taking into account the Defendant’s limited capacity to pay a substantial fine a nominal fine should be imposed.

Prosecutor’s costs

The Prosecutor is able to apply for an order that its costs be paid under s 257G of the Criminal Procedure Act 1986. The Defendant’s counsel submitted that only a limited costs order, half these costs, ought be paid is appropriate as the landowner has not been prosecuted despite being an appropriate defendant. Had the landowner been charged the costs could have been shared equally as has occurred in other cases such as Calman. In the absence of another defendant who is actually charged with an offence I am reluctant to make such a limited order as I do not know the reasons behind the decision of the Prosecutor not to prosecute.
I surmise that there was consideration given to prosecution of the landowner based on discussions with the parties in the course of the sentence hearing. To the extent that there was consideration given and therefore costs incurred in relation to the prosecution of the landowner, those costs should not be borne by this Defendant. I do not know if the original estimate of costs from the Prosecutor is all of its costs in investigating the clearing matter. Any costs payable must arise solely from the investigation of this Defendant. The amount of costs has now been agreed at $15,000. The amount of costs is substantial and will impact on the ability of the Defendant to pay a fine, a matter I take into account, per Environment Protection Authority v Barnes [2006] NSWCCA 246.
I consider the appropriate penalty I should impose is the amount of $5,000.
A person liable to pay a fine imposed by the Court may make an application to the Registrar for further time to pay; s 10 of the Fines Act.
Orders
The Court makes the following orders:
The Defendant is convicted of the offence charged in the summons.
The Defendant is fined the sum of $5,000 to be paid to the Registrar of the Court within 28 days of today's date.
The Defendant must pay the Prosecutor’s costs of the proceedings agreed at $15,000.
The exhibits may be returned.