Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd - [2010] NSWLEC 200

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200

PARTIES:
PROSECUTOR
Director-General, Department of Environment Climate Change and Water
DEFENDANT
Vin Heffernan Pty Limited

FILE NUMBER(S): 50007 of 2010

CORAM: Pepper J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- unlawful clearing of native vegetation - plea of guilty - appropriate sentence - subjective and objective factors to be considered - assistance given by the defendant to authorities in separate but related criminal proceedings - monetary penalty imposed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 23
Native Vegetation Act 2003 s 12

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
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, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256
Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Director-General, Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102
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
Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Gallagher (1991) 23 NSWLR 220
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Stelfox [2002] NSWCCA 331; (2002) 133 A Crim R 288
Thomson v Hawkesbury City Council [2009] NSWLEC 151
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

DATES OF HEARING: 6 and 12 October 2010

EX TEMPORE JUDGMENT DATE: 12 October 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr M Higgins
SOLICITORS
Department of Environment Climate Change and Water
DEFENDANT
Mr A Djemal
SOLICITORS
Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

12 October 2010

50007 of 2010 Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Ltd

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: The defendant, Vin Heffernan Pty Ltd (“Vin Heffernan”) pleads guilty to a charge that from about 1 November 2007 to about 20 March 2008, it committed an offence against s 12 of the Native Vegetation Act 2003 (“the NVA”). In particular, that Vin Heffernan carried out the clearing of native vegetation otherwise than in accordance with a development consent granted in conformity with the NVA, or pursuant to a property vegetation plan.

2 This judgment concerns the appropriate sentence to be imposed upon Vin Heffernan for its commission of that offence. For the reasons below I fine Vin Heffernan the amount of $30,150.

Particulars of the Charge

3 The particulars of the charge are as follows:

Particulars

a. Land – Land known as Lot 3 in Deposited Plan 1067054, at or near Broadwater, Parish of Yowaka, County of Auckland, Local Government Area of Bega Valley.

b. Native vegetation cleared – The native vegetation cleared included the species listed in the Annexure to the Summons.

c. Manner of breach – Vin Heffernan Pty Ltd, cleared native vegetation by means of machinery including an excavator and a track type tractor.

d. Date on which evidence of the offence first come

to the attention of an authorised officer.

Facts and Evidence Giving Rise to the Commission of the Offence by Vin Heffernan

4 The facts giving rise to the commission of the offence were not in dispute and were almost wholly contained in a statement of agreed facts which relevantly stated (footnotes omitted. The abbreviations used in the statement of agreed facts have been maintained throughout this judgment):

BACKGROUND

the Land

Tab 1

S&R

5. The Land is approximately 86 hectares in size.

the Council

…

9. The development consent did not permit the clearing of any vegetation from the 22 ha, shaded red and labelled the Southern Subject Area, the Western, Central and Triangle Subject Areas and the Eastern Subject Area in the aerial photograph at Tab 1 ( the Subject Areas ).

10. Mr Kel Alexander and his wife Marika Ingelene Alexander are registered as directors of S&R. Mrs Alexander played no role in the relevant clearing that was carried out.

11. A Stop Work Order was issued to S&R by the Department of Environment Climate Change & Water ( DECCW ) on 20 March 2008 under the Act.

THE COMPANY

13. Vin Heffernan Pty Limited is a small family owned business that was incorporated on 3 June 1960. Its primary business is earthmoving and log haulage.

14. Mr Vincent (Vin) Heffernan (78 years old) and his wife Patricia Heffernan (74 years old) are the sole directors of Vin Heffernan Pty Limited.

15. Vin Heffernan Pty Limited currently employs 9 staff (including casual and part time). When interviewed by DECCW officers on 12 November 2008 and around the time of the offence Vin Heffernan Pty Limited employed about 12 staff (including casual and part time).

16. Mr Lou Geraets and Mr Michael Stove were casual employees of Vin Heffernan Pty Limited between 1 November 2007 and 20 March 2008 inclusive and were employed to operate machinery and plant.

17 Vin Heffernant Pty Limited has occasionally undertaken clearing works from about 1969 and has been engaged to clear parcels of NSW State Forest for pine plantations until the early 1990s.

THE AGREEMENT

19. On 8 October 2007 Mr Vincent (Vin) Heffernan, met Mr Alexander at the Land. Mr Alexander informed Mr Heffernan of the clearing works that he intended to undertake. Mr Heffernan asked Mr Alexander if he had the necessary approvals to authorise the clearing works and Mr Alexander advised Mr Heffernan that he had the necessary approvals to carry out the clearing. Mr Heffernan did not ask for and was not shown the necessary approvals.

20. Vin Heffernan Pty Limited was contracted by Mr Alexander to provide machinery and operators on an hourly basis to undertake the clearing works under the direction and supervision of Mr Alexander for the purpose of bush fire hazard reduction and preparation of lots for a multi-lot subdivision. The actual work involved undertaking clearing, stacking and burning cleared vegetation, site preparation and some earthworks under the direction of Mr Alexander.

22. Mr Heffernan had known Mr Alexander for approximately 20 – 30 years on a professional basis and had previously done work for him for one of Mr Alexander’s subdivision at Wallagoot Lake.

23. On 16 October 2007 Mr Lou Geraets attended the Land and met with Mr Alexander. During this meeting Mr Alexander informed Mr Geraets that he had all relevant approvals and provided Mr Geraets with a plan of subdivision, a copy of which is at Tab 2.

24. Mr Alexander showed Mr Geraets the areas where clearing works were to be undertaken. Mr Alexander advised Mr Geraets that the clearing works involved the removal of vegetation within the areas approved by the development consent and shrubs, bushes, trees that were under 17 years old, were leaning, had been burnt or were otherwise considered dangerous. Mr Geraets was directed to ensure that there was at least a 5 metre space between the larger tree canopies. Mr Alexander marked areas that were to be subject of clearing works by survey pegs and ribbons on trees.

25. Mr Geraets and Mr Michael Stove commenced the clearing works on 17 October 2007 in the areas approved by the development consent.

26. From 17 October 2007 to about 20 March 2008 inclusive, clearing works were undertaken on the Land by Mr Alexander using machines and operators provided by Vin Heffernan Pty Limited.

METHOD OF CLEARING

28. The method of clearing was that standing vegetation was pushed over using a bulldozer with a tree pusher and a stick rake and an excavator with a log grab. The cleared vegetation was then pushed into 10 to 20 metre long stacks for burning. The ground was then raked to prepare for grass seeding. Some of the timber was also removed from the Land for use as firewood.

29. During the period of the clearing works, Mr Alexander attended the Land, including the Subject Areas, almost on a daily basis to inspect and supervise the works and where necessary provide further directions for the work undertaken by the machinery operators provided by Vin Heffernan Pty Limited.

30. When Mr Alexander required further clearing in an area already subject of clearing works by the machinery operators supplied by Vin Heffernan Pty Limited, Mr Geraets asked Mr Alexander to mark or cause other people to mark the additional trees to be removed with tape or paint.

31. Mr Geraets refused to take out further trees within the areas where clearing was approved under the development consent unless they were marked for removal by Mr Alexander or one of his employees.

CLEARING WORK AND INSTRUCTIONS FROM MR ALEXANDER

33. Vin Heffernan Pty Limited relied on the representations from Mr Alexander and the map provided to Mr Geraets that indicated that S&R had approval from Council to undertake the clearing works on the land or could undertake clearing in accordance with exemptions in the Act for the clearing of non-protected re-growth.

34. Vin Heffernan Pty Limited complied with instructions from Mr Alexander and undertook vegetation clearing works within the Subject Areas.

36. In determining what trees could be cleared as non-protected regrowth, that is being under 17 years old, Mr Geraets relied on the instructions of Mr Alexander and his own assessment of the size of the trees, notwithstanding that he was aware that without professional analysis, he was not going to know for sure how old a certain tree was.

ENVIRONMENTAL HARM

37. The Subject Areas on the Land contained native vegetation to NSW including:

Scientific name of species Common name or names of species

Location

39. The Land adjoins cleared agricultural land to the west, the Princes Highway and other cleared agricultural land to the east and fragmented areas of native vegetation to the north, associated with rural lands.

40. The vegetation at the northern tip of the Land has been extensively cleared in the past and has been used as a quarry.

Previous disturbance on the Land

42. The Land has been subject to the following disturbance:

a. Some selective logging has been undertaken by past owners and logging contractors, although no logging was undertaken in the Subject Areas after 1990 except for a few trees in the south-western corner of the Land; and

Vegetation cleared

43. The average age of the trees cleared was greater than 18 years and was not “regrowth” as defined in the Native Vegetation Act 2003 .

a. Southeast Hinterland West Shrub Forest

b. Far South Coastal Foothills Dry Shrub Forest; and

45. The clearing of the vegetation within the Subject Areas consisted of removing small trees, understorey shrubs and groundcover thereby altering the structure of the vegetation.

Conservation value of vegetation and impact significance of clearing – local scale

47. The native vegetation cleared from the Land was in good condition because:

a. It contained a diversity of native plant species in four strata;

b. It was of uneven age and contained mature trees;

c. It contained recruitment trees and senescent trees; and

48. The conservation value of the native vegetation at the local scale was high and the clearing may have caused significant impacts on vegetation and fauna at this scale.

49. The clearing of the vegetation resulted in the loss of foraging resources and breeding habitat for the fauna that occurred on the Land.

a. Increased edge effects at the interface between cleared and uncleared areas thereby reducing the condition of uncleared vegetation and comprising its integrity due to increased impacts of wind, solar radiation and evaporation;

b. Increased the potential for weed invasion as a result of the disturbances to the ground and loss of native vegetation cover;

c. Increased access to feral predators to habitats in uncleared vegetation; and

Conservation value of vegetation and impact significant of clearing – landscape scale

51. The conservation value of the native vegetation on the Land at a landscape level is low.

a. The vegetation communities on the land consist of three vegetation communities that are well represented in South-East Australia including within conservation reserves;

b. The clearing of the vegetation has impacted small areas of the vegetation communities that are well represented at a landscape level;

c. Affected vegetation appears to lie at the northern edge of the Nullica State Forest, which occupies about 6,700 hectares of forested land; and

Remediation

53. Remediation of the Subject Areas is required to restore the ecological values and improve the integrity for the uncleared areas.

a. The retention throughout the Subject Areas of mature canopy trees;

b. The developed root systems of these trees will assist with soil stabilisation;

c. The canopies of the retained mature trees will moderate temperature and moisture conditions at the soil’s surface;

d. A good source of seeds is expected in the soil and the mature trees provide a further source of seeds;

e. Fruit and flowers from the mature trees will assist pollen and seed transfer in the regenerating strata;

f. The stacks of cleared vegetation provide a source of mulch and a further seed source for regenerating areas;

g. The soil has not been subjected to significant disturbance or compaction from the clearing works that would affect the regeneration of vegetation; and

5 Vin Heffernan further relied on two affidavits sworn by Mr Vincent Heffernan on 7 and 29 September 2010 respectively.

6 In his first affidavit, Mr Heffernan stated that he is the director of the defendant company. The company is a small family owned corporation that was incorporated on 3 June 1960. Mr Heffernan’s wife, Mrs Patricia Heffernan, is also a director and is the company secretary.

7 The affidavit deposed that Vin Heffernan has been involved in the earthmoving and logging industry for approximately 51 years. The company currently employs five permanent, one casual and two permanent part-time employees. Prior to losing its logging and haulage operation in March 2008, Vin Heffernan had 20 employees. The affidavit states since 1998, however, that Vin Heffernan has sustained a significant loss of business due to:

(a) a decline in the areas of the state forest available for logging activities following the reservation of national parks and other reserves within the Eden Management area;

(b) Vin Heffernan losing a harvesting and haulage contract it held for 38 years with the South East Fibre Exports and Blue Ridge Hardwoods Pty Ltd in 2007; and

8 As a consequence, Vin Heffernan’s involvement in earthmoving has “practically ceased”.

9 The affidavit stated that in or about October 2007, Mr Heffernan received a telephone call from Mr Kel Alexander who, Mr Heffernan knows, is a director of Source & Resource Pty Limited (“S&R”).

10 Mr Heffernan stated that around 20 to 30 years ago Vin Heffernan undertook earth works and clearing works at a residential subdivision for Mr Alexander in Wallagoot. Mr Heffernan has known Mr Alexander in a professional capacity since that time. Mr Heffernan believed that Mr Alexander was a reputable developer whose word he could rely on.

11 Mr Heffernan stated that he had met Mr Alexander at the Land the subject of the offence and that Mr Alexander drove him around the Land to demonstrate the areas where the removal of vegetation was to take place. These areas included locations where some clearing had taken place already as well as locations where no clearing had taken place.

12 Mr Alexander said to Mr Heffernan that “the clearing is taking place for the purposes of the development consent and for bushfire hazard reduction purposes”. Mr Heffernan recalls Mr Alexander saying to him the words “I have approval for the clearing works that I want you to carry out”.

13 Mr Heffernan stated that he relied on the assurances of Mr Alexander and as a result arranged for men and machines to assist Mr Alexander in the removal of vegetation on the land.

14 Mr Heffernan stated that prior to commencing any clearing work he has always sought assurances from the client that the clearing work that Vin Heffernan was engaged to perform was authorised by development consent or some other lawful means.

15 However, as a consequence of Mr Heffernan’s past dealings with Mr Alexander, Vin Heffernan did not undertake its own examination of the purported authorisation or seek confirmation as to whether or not the clearing works were lawful. Mr Heffernan readily concedes that Vin Heffernan should have done so.

16 On 16 October 2007, Mr Heffernan allocated the work to be performed at the Land to Mr Lou Geraets and Mr Michael Stove, two employees of Vin Heffernan. Mr Heffernan did not provide supervision to his employees and there was no designated site manager. Any instructions and supervision was provided by Mr Alexander. As far as Mr Heffernan was aware, the instructions given to his employees were verbal only. While Mr Heffernan did not question any of the instructions given by Mr Alexander, he did recall Mr Geraets approaching him at one stage and voicing concerns over the extent of clearing that Mr Alexander was requesting Mr Geraets to perform.

17 Mr Heffernan stated that clearing work occurred at the Land from 17 October 2007 until 20 March 2008. On this date, Vin Heffernan was directed by Mr Alexander to cease clearing because a Stop Work Order had been issued by the Department of Environment Climate Change and Water (“DECCW”).

18 Mr Heffernan stated that Vin Heffernan undertook no further vegetation clearing works on the site following the issue of the Stop Work Notice. This was the first time that Vin Heffernan became aware that there was a problem with the clearing works being undertaken by it.

19 Mr Heffernan stated in the affidavit that during his 51 years experience in the earthmoving industry on the south coast of New South Wales, Vin Heffernan has undertaken a range of vegetative clearing works on behalf of government and private clients. These clients included the Roads Traffic Authority, State Forest NSW and other state government departments.

20 Mr Heffernan stated that in the 51 years that Vin Heffernan has been involved in earth works and vegetation clearing works, neither the company nor its directors have ever been prosecuted for a breach of any environmental law. He stated that the company is “not only embarrassed by the offence but also extremely remorseful that this offence has occurred”.

21 Mr Heffernan further said that he now ensures, whenever Vin Heffernan is involved in any future clearing activity, confirmation of the lawfulness of the clearing by viewing the actual approval documents and will not undertake works where there is any doubt about their lawfulness. Mr Heffernan gave an example of the implementation of this risk management regime with respect to clearing works it undertook for the development of the Woolworths complex at Tura Beach in late 2009 and early 2010.

22 Mr Heffernan described the support that Vin Heffernan had provided to the local community in terms of the assistance given in the construction of two sporting complexes and the construction of two local churches. The company has also provided machines and operators for wildlife suppression works for the Rural Fire Service.

23 Mr Heffernan was cross examined by the prosecution. The cross examination revealed the following evidence:

(a) that the only system that Mr Heffernan had in place prior to the commission of the offence to ensure that any clearing of vegetation undertaken by him was lawful, was to ask the client whether or not all approvals had been given;

(b) that although it had become apparent to him when Mr Alexander was indicating the locations of the areas to be cleared on the Land that there was an inconsistency between the map provided to him by Mr Alexander showing the areas where approval had been given by the Council to clear and the additional locations that Mr Alexander had requested to be cleared, Mr Heffernan did not say anything to Mr Alexander. This was because, first, he had been told that all of the necessary approvals to clear the Land had been given, and second, Mr Heffernan had assumed that the additional areas to be cleared were part of a fire protection system to protect the subdivision which was in a bushfire prone area. This appeared “logical” to Mr Heffernan;

(c) that to the extent that Mr Heffernan refused to answer some of the questions during his interview by DECCW, this was on the advice of a lawyer which he had seen prior to the interview, but who was not present during the interview;

(d) that subsequent to the commission of the offence, Mr Heffernan now demands to see all approvals authorising any clearing the company is engaged to undertake, and moreover, that if in Mr Heffernan’s opinion no approval is likely to be forthcoming, he will not undertake the work; and

(e) that due to a downsizing of Vin Heffernan’s activities and business, the company would not be likely to undertake any further vegetation clearing work.

24 Vin Heffernan also relied on an affidavit of Mr Lou Geraets sworn 3 September 2010. This affidavit primarily concerned the instructions given to Mr Geraets by Mr Alexander in respect of the clearing works performed on the Land. In particular, Mr Geraets deposed that:

(a) he had asked Mr Alexander whether or not he had approval for the clearing works and Mr Alexander responded that he did;

(b) Mr Alexander had “authorised” the clearing of the native vegetation on the Land by giving daily instructions to those engaged to do the clearing; and

25 Vin Heffernan tendered a testimonial from Mr Vince Phillips, the Corporate Affairs Manager for South East Fibre Exports Pty Ltd dated 1 October 2010. The testimonial stated that Mr Phillips had known Mr Heffernan and the defendant since 1984 and that in Mr Phillips’ opinion both were of good character.

26 In addition to the statement of agreed facts, the prosecutor tendered a number of photographs taken on the Land showing the extent of the clearing undertaken and tax invoices issued by Vin Heffernan to S&R for the work performed on the Land. The total of these invoices came to a gross sum of $170,544.

Regulatory Framework

27 Section 12 of the NVA provides:

12 Clearing requiring approval

28 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) provides that the purpose of imposing a sentence on the offender includes:

3A Purposes of sentencing

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

(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

29 In Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 Preston J identified a number of purposes of sentencing in the context of an offence of clearing native vegetation, to which I have had regard, in light of the objects of the NVA (at [9]-[12]).

30 Regard must also be had to s 21A of the CSPA which applies in respect of the aggravating and mitigating factors that the Court must take into account in determining an appropriate sentence.

31 In particular, s 23 of the CSPA relevantly states:

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

Objective Gravity

32 The primary factor to consider in determining an appropriate sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (Pittwater Council v Scahill (2009) 165 LGERA 289 at [50]).

33 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard relevantly include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]):

(a) the maximum penalty for the offence;

(b) the objective harmfulness of Vin Heffernan’s actions;

(c) Vin Heffernan’s state of mind in committing the offence;

(d) Vin Heffernan’s reasons for committing the offence;

(e) the foreseeability of risk of harm to the environment;

(f) the practical measures to avoid harm to the environment; and

Maximum Penalty

34 The maximum penalty for an offence by a corporation in breach of s 12 is a fine of $1,100,000 (10,000 penalty units).

35 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). In Markarian v The Queen (2005) 228 CLR 357 (at [31]) the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the Court.

36 The imposition of a monetary penalty of this order of magnitude demonstrates the seriousness with which offences against the NVA are viewed by the legislature.

Objective Harmfulness of Vin Heffernan’s Actions

37 Vin Heffernan’s unlawful clearing of a substantial number of species of native vegetation plainly contravened the objects of the NVA. These are stated in s 3 of that Act as:

3 Objects of Act

38 There can also be no doubt that Vin Heffernan’s actions caused harm to the environment. But having made this finding, it cannot be said, given the facts agreed to by the parties, that the overall harm to the environment is anything other than low to moderate.

39 This conclusion is reached because:

(a) the conservation value of the native vegetation at the local scale was high and the clearing caused a significant impact on vegetation and fauna at this scale;

(b) the native vegetation cleared from the Land was in good condition as:

(i) it contained a diversity of native plant species in four strata;

(ii) it was of uneven age and contained mature trees;

(iii) it contained recruitment trees and senescent trees;
(iv) did not contain exotic plants (weeds);

(c) the clearing of the vegetation resulted in the loss of foraging resources and breeding habitats for the fauna that occurred on the Land;

(d) the conservation value of the native vegetation on the Land at the landscape level was low and was unlikely to have caused a significant impact on the vegetation, fauna habitats or habitat connectivity at that scale; and

(e) the clearing of 22 ha was not broadscale clearing but was selective in nature, comprising trees, understory shrubs and ground cover, but leaving large canopy trees undisturbed.

40 Moreover, while remediation of the areas cleared is required to restore the ecological values and improve their integrity, the remaining vegetation had moderate to good potential to recover in the medium to long term.

41 For the sake of completeness, it is noted that the Land has been subjected to previous disturbance as a result of selective logging and hazard reduction burns.

Vin Heffernan’s State of Mind and Reasons for Committing the Offence

42 The offence is one of strict liability so that mens rea is not an element of the offence. But the state of mind of the offender is relevant to assess the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed (Rae at [42], Gittany at [123], Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [68] and [356], Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 at [75], Hardt v Environment Protection Authority (2007) 156 LGERA 337 at 348 and Scahill at [69]).

43 I find that the unlawful clearing was not deliberate inasmuch as it was not known by Vin Heffernan to be unlawful at the time.

44 The prosecutor submitted that the state of mind of Vin Heffernan was one of reckless indifference as to whether or not the clearing was authorised. But because, as was revealed in Mr Heffernan’s cross examination, at no point did Vin Heffernan ever turn its mind to whether or not the clearing was lawful but wholly accepted Mr Alexander’s assurances that all necessary approvals had been obtained, I cannot accept this submission. Rather, in performing the acts constituting the commission of the offence Vin Heffernan’s state of mind ought properly be described as negligent. This was agreed to by Vin Heffernan. That is to say, Vin Heffernan ought to have checked, but did not do so, that the clearing it was instructed to perform had been sanctioned (Director-General, Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 at [403]).

45 A further consideration in an examination of Vin Heffernan’s state of mind is the fact that although, as it acknowledged, it should have verified the assurances given by Mr Alexander, I accept that its failure to do so was the result of the trust that had developed between Mr Heffernan and Mr Alexander as a consequence of their prior professional relationship. I have no hesitation in inferring that had Mr Heffernan known that the clearing works were unlawful that Vin Heffernan would not have performed the clearing.

46 I find that the unlawful clearance of the vegetation was for financial gain inasmuch as Vin Heffernan was engaged, for remuneration as the invoices demonstrate, to clear the Land of vegetation which included native vegetation (Rae at [11]-[13]). This is not to say that Vin Heffernan committed the offence in order to enhance the commercial value of the Land (as was the case in Rae). It is in this regard the fact that the clearing of native vegetation was for financial reward ought not be considered an aggravating factor similar to that in Rae.

47 These considerations render the objective circumstances of the offence less serious than that suggested by the prosecutor.

Practical Measures and Vin Heffernan’s Control Over the Activities Giving Rise to the Commission of the Offence

48 Although Vin Heffernan submitted that the agreement between it and Mr Alexander was merely for the provision of machinery and operators to conduct the clearing under the direction and supervision of Mr Alexander, it was not seriously suggested by it that it did not have control over the unlawful clearing and thus could not have taken practical measures to avoid the harm. This submission was undeniably correct.

49 At all times it did. And, as was suggested by Mr Heffernan in his affidavit, Vin Heffernan could have easily sought confirmation of the assurances that Mr Alexander had given Mr Heffernan that the clearing of the vegetation was authorised. Furthermore, as the affidavit evidence of Mr Geraets demonstrates, it was open to Vin Heffernan and its employees to challenge, question and refuse to clear vegetation if there was any belief that it was not lawful to do so. This is because at all times Vin Heffernan was an independent contractor engaged by S&R to perform the clearing. Its position can be contrasted with, for example, an employee who is directed to do an unlawful act by his or her employer where a refusal to do so may result in, for example, termination.

Forseeability of Risk of Harm to the Environment

50 I also find that it was reasonably foreseeable that absent ensuring that the clearing of the native vegetation was authorised, that native vegetation would be unlawfully cleared resulting in harm to the environment (Rae at [50]).

Conclusion on Objective Circumstances

51 In my view, the commission of the offence is of low to moderate objective gravity. Although a substantial number of native plant species and high value native vegetation was cleared, Vin Heffernan’s conduct was not known at the time to be unlawful because it believed the clearing was authorised. These factors diminish the objective seriousness of the offence.

The Subjective Circumstances of Vin Heffernan

52 A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat and Rae at [55]. See also s 21A(3) of the CSPA).

53 The subjective circumstances of Vin Heffernan to be considered relevantly include:

(a) any prior criminal record;

(b) any plea of guilty;

(c) any contrition and remorse;

(e) any cooperation with, and assistance to the regulatory authorities; and

54 Having regard to these subjective circumstances I find that the evidence reveals:

(a) Vin Heffernan does not have any prior conviction for any environmental offences (s 21A(3)(e) of the CSPA);

R v Thomson;

R v Houlton

R v Borkowski

Rae

(c) Vin Heffernan has expressed, through its managing director, Mr Heffernan, contrition and remorse for its breach of the NVA. I accept this expression as genuine. While the prosecutor submitted that the expression was late insofar as it came after the record of interview where Mr Heffernan refused to answer some of the questions put to him, and therefore, it should be attributed less weight, I reject this suggestion. The contrition and remorse expressed by Vin Heffernan is legitimate and was not undermined, despite an attempt to do so by the prosecutor, by the cross examination of Mr Heffernan. I therefore accord this factor full weight (s 21A(3)(i) of the CSPA). Vin Heffernan also submitted that the entry of the plea of guilty was an aspect of its contrition and remorse. This is not so. There are many reasons why a defendant may plead guilty to an offence. Remorse need not be one of them. The same comment may be made with respect to the assistance Vin Heffernan gave to the prosecuting authorities (see below);

(d) as the testimonial evidence and affidavit evidence of Mr Heffernan revealed, Vin Heffernan may be described as being of good character (this was accepted by the prosecutor) (see s 21A(3)(f) of the CSPA);

Fines Act

(f) it is clear that Vin Heffernan has provided assistance to the regulatory authorities. This factor is discussed in further detail immediately below.

Assistance to Regulatory Authorities

55 Vin Heffernan provided assistance to the prosecuting authorities insofar as it attended an interview and answered some, but not all, of the questions asked of it. It also assisted in the preparation of an agreed statement of facts and through its managing director, Mr Heffernan, it has provided evidence to the prosecutor in the prosecution of Mr Alexander and S&R in related criminal proceedings arising from the clearing of native vegetation from the Land. This latter assistance has culminated in the swearing of affidavits by Mr Heffernan and Mr Geraets in the other proceedings.

56 Vin Heffernan therefore submitted that it should receive an additional and separate discount for the assistance it had provided in the related criminal proceedings.

57 The prosecution, by contrast, submitted that absent a complete understanding of the details of the prosecution case against Mr Alexander and S&R, the true value of Vin Heffernan’s assistance in those proceedings was difficult, if not impossible, to quantify. Moreover, because Mr Alexander had voluntarily participated in a record of interview in those prosecutions, the assistance given by Vin Heffernan, through its managing director and employee, could not be viewed as significant. As a consequence, the prosecution submitted that nowhere near the 30-50 per cent total discount suggested by Vin Heffernan ought to be given consequent upon this assistance, although it properly acknowledged that it was a subjective factor that the Court should take into account in determining the appropriate penalty in these proceedings (ss 21A(3)(m) and 23 of the CSPA).

58 I agree with the submissions of the prosecution. Nowhere near the totality of the material in the related criminal prosecutions has been put before the Court. For example, the Court has not been furnished the summonses. It is therefore impossible to assess the true value of Vin Heffernan’s assistance to those related criminal proceedings. I am therefore disinclined to give a separate, specific and quantifiable discount to Vin Heffernan on the basis of this assistance (R v Gallagher (1991) 23 NSWLR 220 at 228-230).

59 Furthermore, I certainly do not accept that any separate discount for the assistance given by Vin Heffernan and for its early plea of guilty would result in a total discount towards the higher end of “the normal range of 30-50 per cent”, as was suggested by it (R v Stelfox (2002) 133 A Crim R 288 at [13]). Nevertheless, recognition must be given, and I do so, to the additional assistance Vin Heffernan has given the prosecutors in the related proceedings.

Costs

60 Vin Heffernan has agreed to pay the prosecutor’s costs in the amount of $30,000 to be paid within 28 days. I have taken this fact into account (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [66]-[70]).

Conclusion on Subjective Considerations

61 The subjective considerations of Vin Heffernan operate to mitigate the penalty to be imposed to a reasonable degree.

Deterrence

62 A significant component in the determination of any penalty for the commission of a criminal offence, particularly the unlawful clearing of native vegetation, is that of deterrence (Rae at [8]-[9]). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring both the offender and any other person from committing similar offences.

63 In Thomson v Hawkesbury City Council [2009] NSWLEC 151 I quoted Gittany in relation to the applicable principles with respect to deterrence as a component of an appropriate penalty for offences (Thomson at [114]). I adopt those principles for present purposes (and see Rae at [8]-[9]).

64 Vin Heffernan submitted that specific deterrence was not a relevant consideration. This was because, first, the offence was an isolated incident over its five decades of operation, second Mr Heffernan was downsizing the company due to a commensurate reduction in the activities of Vin Heffernan, and third, Mr Heffernan’s advanced age. In addition, and as the evidence of Mr Heffernan demonstrated, a risk management system had now been implemented to ensure that prior to performing any clearing work all authorisations were examined by the company.

65 While I consider it highly unlikely that Vin Heffernan will reoffend (s 21A(3)(g) of the CSPA), given that Vin Heffernan continues to engage in clearing activities and cannot guarantee that it will no longer engage in vegetative clearing, in my view, a component of specific deterrence remains, albeit very small.

66 General deterrence is, however, highly relevant. It is important in light of the aims of the NVA to prevent clearing of native vegetation absent consent (Rae at [9] and Hudson at [81]-[88]). 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 Pain J (at [52]) took judicial notice of long standing difficulties for authorities in managing uncontrolled native vegetation clearances in the state.

67 It is also fundamentally important to ensure that other contractors engaged to perform clearing works do not simply rely on the verbal assurances of those engaging them that the clearing they are to perform has been authorised. Contractors must ensure for themselves that the work they are performing, even if at the direction of those hiring them, is at all times lawful. If there is any doubt, the work should not be performed.

Consistency in Sentencing

68 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[183] 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 and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]).

69 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge’s discretion (AxerPty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365 and CabonneShire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312).

70 The pattern of sentencing against which the present case falls to be considered was examined by the Chief Judge of the Court in detail in Rae (at [77]-[91]). I repeat that useful analysis in full:

77 For the offence against s 12(1) of the Native Vegetation Act , the offence in the present case, there has been only one case to date, that of Director-General, Department of Environment and Climate Change v Hudson . The principal defendant was fined $400,000 and ordered to pay the prosecutor’s costs. The objective gravity of the offence was high: the area of land cleared of native vegetation was large, some 486 hectares; 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; the harm to the environment caused by the offence was substantial; and there was a need for both individual deterrence (to prevent the defendant from re-offending) and general deterrence (to send a message that provisions designed to further environmental interests of the State will be fully enforced). There were no mitigating factors: 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 commission of the offence. The defendant was, however, a first offender.

78 The objective gravity of the offence in Hudson was greater than that in the present case. The area of native vegetation cleared in Hudson was over double, and hence the objective harmfulness to the environment was likely to be greater. Although both cases involved deliberate wrongful conduct, in Hudson there was also a failure to heed the warning of the regulatory authority. Conversely, the mitigating, subjective circumstances in Hudson were far less than those in the present case.

79 The current Act replaced the Native Vegetation Conservation Act 1997 (NSW). Section 17(1) made contravention of s 21(2) of the former Act an equivalent offence to that against s 12(1) of the current Act. The JIRS sentencing database reveals four sentencing decisions for an offence under the former Act. The first two cases in chronological order, namely Director-General, Department of Land and Water Conservation v Leverton Pastoral Company Pty Ltd [2002] NSWLEC 212 and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171, involved offences committed at a time when the maximum penalty was only 10% of the current maximum penalty, namely only $110,000.

80 In Leverton Pastoral Company , Talbot J imposed a “modest” fine of $5,000 and noted that the defendant had agreed to pay the prosecutor’s costs. In addition, the defendant had entered into an agreement to remediate the land affected by the clearing. The objective circumstances of the offence and the mitigating, subjective circumstances of the offender were different in material respects to the present case. Nevertheless, even on its own facts, the fine in Leverton Pastoral Company does seem to be at the extreme lower end of the range of sentences for the offence of clearing native vegetation contrary to law. The sentence is not comparable and provides no guidance for the present case.

81 In Wilkinson , the offences were part of a set of eight charges relating to the conduct of the offender in clearing vegetation. Two of the charges were for clearing native vegetation contrary to s 21(2) of the Native Vegetation Conservation Act 1997 . The other six charges were for offences against s 118D(1) of the National Parks and Wildlife Act for damaging habitat of threatened species. The maximum penalty at the time for those offences was also $110,000. Lloyd J imposed a total penalty for all eight offences of $43,500. The fines for the two offences against s 21(2) of the Native Vegetation Conservation Act 1997 were $11,000 and $1,750. The defendant was ordered to pay the prosecutor’s costs, in the agreed sum of $50,000, and the defendant entered into an agreement with the prosecutor to carry out remediation, conservation and management of vegetation on the property. The objective circumstances of the offence and the mitigating, subjective circumstances of the offender were also materially different to those in the present case. Again, the case, and the sentences imposed in that case, are not comparable.

82 The two more recent cases involving an offence against s 21(2) of the Native Vegetation Conservation Act 1997 , namely Director-General, Department of Environment and Climate Change v Taylor and Director-General, Department of Environment and Climate Change v Wilton , involved offences committed at a time when the maximum penalty had been increased to its current level of $1,100,000.

83 In Taylor , Lloyd J fined the defendant $20,000 and ordered the defendant to pay the prosecutor’s costs. The objective circumstances of the crime were of moderate seriousness. The area of land cleared of native vegetation was approximately 30.5 hectares. The actual harm to the environment was held to be significant, including clearing vegetation comprising an endangered ecological community. Although there was some suggestion that the reasons for the defendant clearing the vegetation related to improving the grazing potential of the land, the Court did not make a positive finding as to the defendant’s reasons. The defendant knew in a “roundabout way” that there was legislation regulating land clearing but denied knowledge of precise legislation or the department responsible for administering legislation regulating the clearing of vegetation. There were some mitigating, subjective factors personal to the defendant: no prior convictions; early plea of guilty; and some evidence of contrition and remorse, although the extent was tempered by untruthful and misleading statements made by the defendant in the investigation phase to the prosecutor. There was a need for general deterrence. Lloyd J considered that the appropriate penalty was a fine of $30,000, discounted by 33% for all mitigating factors, including the utilitarian benefit of the guilty plea and the remediation agreement, resulting in a fine of $20,000.

84 The objective gravity of the offence in Taylor is less than that in the present case. The area of land was significantly less, only 14% of the area is involved in the present case, and the objective harmfulness to the environment caused by commission of the offence was also proportionately less. The defendant’s conduct in Taylor was not found to be premeditated, intentional and with knowledge of its illegality, in contrast to the conduct in the present case. The Court did not positively find the defendant in Taylor to have committed the offence to increase profits or the capital value of the land, unlike in the present case. Similarly, no findings were made that the defendant could have reasonably foreseen the risk of harm caused by the commission of the offence, unlike in the present case.

85 The subjective circumstances in Taylor have some similarities to the present case in that the defendant in each case has no prior convictions and entered an early guilty plea. The defendant in each case hampered in some way the investigation of the offences and lessened the assistance to the authorities, in the present case by Mr Rae not returning calls of the investigating authority for many months and in Taylor by the defendant making untrue or misleading statements to the investigating authority. However, it would seem that Mr Rae in the present case may have offered greater assistance once he agreed to and did participate in a record of interview. Both defendants expressed contrition and remorse, although doubt was expressed in Taylor as to the genuineness of such expression, while I accept the genuineness of Mr Rae’s expression of contrition and remorse in the present case.

86 In Wilton , 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 and 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 18.3 hectares in the western part. There was actual environmental harm caused by commission of the offence, but Biscoe J found it to be “relatively moderate”, with no findings made that the clearing had adversely affected any threatened species, populations or ecological communi-ties. The defendant in Wilton cleared the land for the purpose of commercial planting and harvesting of trees for profit. The defendant believed that clearing the vegetation was exempted from needing development consent under the Act, but the Court found that the defendant made a “serious and careless error” in forming that belief. There were many mitigating, subjective factors in Wilton : no prior convictions; prior good character; full assistance to the prosecution; plea of guilty at the earliest available time; expression of remorse, acceptance of responsibility for his actions and acknowledgment of the damage caused; donation of the felled timber to charities; and compliance with a remediation order in respect of the western area cleared. 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. The Court held that there was a need for general deterrence but not specific deterrence.

87 Again, the objective gravity of the offence in Wilton is less than in the present case. The areas of land cleared, individually and in aggregate, are significantly less than the area involved in the present case, representing 6% in respect of the eastern area and around 8.5% in respect of the western area. The objective harm to the environment caused by commission of the offence in Wilton is not only proportionately less (by reason of the smaller areas involved) but also the environmental consequences of the clearing were significantly different and less important than in the present case. The conduct was not found in Wilton to be premeditated, intentional and with knowledge of illegality, such as the conduct in the present case but rather was committed in a mistaken belief that the clearing was exempt from the need for development consent. However, the defendant did carry out the clearing for the commercial advantage, as did Mr Rae in the present case. The mitigating, subjective circumstances of the defendants in the two cases are very similar. A difference to note is that the amount of the fine imposed by the Court in Wilton for the charge relating to the clearing of the eastern area was increased by $10,000 to take account of the financial advantage gained, increasing the fine beyond what would otherwise have been the figure.

88 Prior to the enactment of the Native Vegetation Conservation Act 1997, clearing of native vegetation was regulated under State Environmental Planning Policies made under the Environmental Planning and Assessment Act . However, the statutory scheme, the maximum penalties and the approach to sentencing of the court were sufficiently different as to make the sentences imposed for offences under that regime offer no guidance to the court when sentencing for offences under the current Native Vegetation Act 200 3 .

89 Finally, although concerning different statutory provisions in another jurisdiction, I also note the penalties imposed for clearing native vegetation in breach of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in Minister for the Environment and Heritage v Greentree (No 3) and Minister for the Environment, Heritage and the Arts v Lamattina .

90 In Greentree , the area cleared was about 100 hectares and had a significant effect on a declared Ramsar wetland. Sackville J imposed a civil pecuniary penalty of $150,000 on the individual and $300,000 on the corporation, and made an order for costs. Sackville J’s decision was affirmed on appeal: Greentree v Minister for Environment and Heritage (2005) 144 FCR 388; 143 LGERA 1.

Lamattina

Native Vegetation Act 1991

Lamattina v Gould

71 In Rae the defendant pleaded guilty to an offence under s 12(1) of the NVA. An area of 215 ha was partially cleared including an area of 155 ha which was cleared of 95 per cent of all trees. Most of the trees cleared were mature, with some in excess of 17 m in height. In that case the defendant knew that he needed consent to clear but proceeded without it. The clearing was premeditated and intentionally carried out with the 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 that was cleared had significant conservation status and contributed to biodiversity. The Court 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 an order to remediate the site. Overall, the offence was considered to be of medium objective gravity. Mitigating factors considered included the absence of prior offences, the defendant’s good character, the defendant’s early guilty plea (although not at the earliest opportunity), and the defendant’s expression of contrition of remorse and assistance in the investigation. A fine of $160,000 was imposed.

72 In Calman the Court fined three defendants (two landowners and a contractor) the sum of $22,000 each for the unlawful clearing of 21 ha of land which included mature trees contrary to s 12(1) of the NVA. In committing the offence the defendants acted neither deliberately nor recklessly, and moreover, were not negligent. Rather, the offences were committed without any knowledge that the clearing was illegal under any law. The defendants’ culpability was assessed as low, however, the environmental harm caused was reasonably substantial. The defendants had no prior convictions, had expressed contrition and remorse and had agreed to a remediation order. The prosecutor’s costs of $73,000 were significant and each defendant was ordered to pay a third of them.

73 In Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 the Court fined Mr Mura $20,000, but reduced it to $5,000 because of his poor financial circumstances, which most likely meant that he would be unable to pay the fine. In that case, approximately 12 ha of native vegetation were cleared by use of a bulldozer which predominantly left the canopy trees in tact. The purpose of the clearing was to retain the landscape featuring canopy trees and replace a scrub and groundcover with grasses to facilitate pasture improvement for the purpose of grazing cattle thereby increasing its grazing yield and improving its value. Whilst the defendant was conscious of the possibility that consent might be required, the defendant’s state of mind was that he had formed the impression that the authorities did not have any objection to the work about which he had informed them earlier.

74 Finally, in Colley the defendant was fined $5,000 for the removal of 128 trees and the thinning of approximately 29 ha of woodland vegetation. The tree species had a high ecological value and adversely impacted upon the habitat for bird and bat species, as well as a substantial number of individual reptiles and frogs. The clearing also negatively impacted on the condition of the native vegetation remaining on the property. The commission of the offence was not intentional and the culpability of the defendant was not assessed as high. The defendant pleaded guilty at the earliest available opportunity, voluntarily participated in an interview with the investigating authorities and expressed contrition and remorse. In addition, the defendant had very limited means to pay a substantial fine. As a consequence the defendant was fined the nominal sum of $5,000.

75 Vin Heffernan submitted that the circumstances of this case were considerably more aligned to those in Calman than to those in Rae. Ultimately, the prosecution did not cavil with this proposition. I agree, and subject to the present defendant’s state of mind increasing its culpability, I find the facts as found in the present case to be relevantly analogous to those in Calman.

Appropriate Penalty to Be Imposed

76 In all the circumstances of this prosecution and synthesising both the objective gravity of the offence and the subject factors of Vin Heffernan, I consider that an appropriate penalty to be imposed is a fine in the sum of $45,000, discounted by 33%, which results in a monetary penalty of $30,150.00. This penalty is imposed having regard to the cases and factors discussed above and bearing in mind that Vin Heffernan has agreed to pay costs in the amount of $30,000.

Orders

77 For the reasons articulated above, the Court makes the following orders:

(1) the defendant is convicted of the offence as charged;

(2) the defendant is fined the sum of $30,150;

(3) the defendant is to pay the prosecutor’s costs in the agreed sum of $30,000, such costs to be paid within 28 days of the making of these orders; and

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Citations

Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200

Most Recent Citation

Cases Citing This Decision

8

Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110

Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271

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

Cases Cited

29

Statutory Material Cited

2

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211

Hoare v The Queen [1989] HCA 33

Veen v The Queen (No 2) [1988] HCA 14

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CITATION:	Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200
PARTIES:	PROSECUTOR Director-General, Department of Environment Climate Change and Water DEFENDANT Vin Heffernan Pty Limited
FILE NUMBER(S):	50007 of 2010
CORAM:	Pepper J
KEY ISSUES:	ENVIRONMENTAL OFFENCES :- unlawful clearing of native vegetation - plea of guilty - appropriate sentence - subjective and objective factors to be considered - assistance given by the defendant to authorities in separate but related criminal proceedings - monetary penalty imposed
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 23 Native Vegetation Act 2003 s 12
CASES CITED:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 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, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 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 Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Stelfox [2002] NSWCCA 331; (2002) 133 A Crim R 288 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
DATES OF HEARING:	6 and 12 October 2010
EX TEMPORE JUDGMENT DATE:	12 October 2010
LEGAL REPRESENTATIVES:	PROSECUTOR Mr M Higgins SOLICITORS Department of Environment Climate Change and Water DEFENDANT Mr A Djemal SOLICITORS Sparke Helmore Lawyers