Director-General, National Parks and Wildlife v Wilkinson - [2002] NSWLEC 171

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Director General of National Parks and Wildlife v Wilkinson & Anor; Director General of the Department of Land and Water Conservation v Wilkinson & Anor [2002] NSWLEC 171

PARTIES:
Nos: 50044 of 2001; 50045 of 2001; 50047 of 2001; 50049 of 2001; 50051 of 2001 and 50052 of 2001
PROSECUTOR:
Director General of National Parks and Wildlife
DEFENDANTS:
Ronald George Wilkinson
Hockitt Pastoral Company Pty Ltd
(ABN 57 080 605 983)
Nos: 50086 of 2001; 50087 of 2001 and 50088 of 2001
PROSECUTOR:
Director General of the Department of Land and Water Conservation
DEFENDANTS:
Ronald George Wilkinson
Hockitt Pastoral Company Pty Ltd
(ABN 57 080 605 983)

FILE NUMBER(S): 50044 of 2001; 50045 of 2001; 50047 of 2001; 50049 of 2001; 50051 of 2001; ; 50052 of 2001; 50086 of 2001; 50087 of 2002 and 50088 of of 2001

CORAM: Lloyd J

KEY ISSUES: Prosecution :- plea of guilty - penalty - mitigation - aggravation

LEGISLATION CITED: National Parks and Wildlife Act 1974 s 118D(1) and s 118E
Native Vegetation Conservation Act 1997 s 21(2)
Fines Act 1996 s 6

CASES CITED: Cameron v The Queen (2002) 76 ALJR 382;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Director General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102;
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349;
Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 199 LGERA 440;
Mill v The Queen (1988) 166 CLR 59;
Pearce v The Queen (1998) 194 CLR 610;
R v Holder [1983] 3 NSWLR 245;
R v Place [2002] 189 ALR 431;
R v Sharma [2002] NSWCCA 142;
R v Thomson (2000) 49 NSWLR 383;
Wong v The Queen (2001) 76 ALJR 79

DATES OF HEARING: 26/08/2002; 27/08/2002 and 28/08/2002

DATE OF JUDGMENT:
09/27/2002

LEGAL REPRESENTATIVES:

PROSECUTOR:
Director General of the National Parks and Wildlife
Mr D Jordan (barrister)
SOLICITORS:
I V Knight
Crown Solicitor
PROSECUTOR:
Director General of the Department of Land and Water Conservation
Mr C J Leggat (barrister) and Mr D J Galpin (barrister)
SOLICITORS:
Vivienne Ingram
DEFENDANTS:
Mr D P Wilson (barrister)
SOLICITORS:
Corrs Chambers Westgarth

JUDGMENT:

27

50044; 50045; 50047;50049;
50051; 50052, 50086; 50087; and
50088 of 2001
Lloyd J
27 September 2002

DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE

Prosecutor

v

RONALD GEORGE WILKINSON

HOCKITT PASTORAL COMPANY PTY LTD (ABN 57 080 605 983)

Defendants

DIRECTOR GENERAL OF THE DEPARTMENT OF LAND AND WATER CONSERVATION

Prosecutor

v

RONALD GEORGE WILKINSON

HOCKITT PASTORAL COMPANY PTY LTD (ABN 57 080 605 983)

Defendants

REASONS FOR JUDGMENT

1. There are nine summonses before the Court. At the commencement of the hearing the prosecutor elected not to proceed with a ninth summons (No. 50087 of 2001), which the prosecutor (Director General of the Department of Land and Water Conservation) conceded infringed the rule against double jeopardy as explained in Director General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102 at pars [62]-[79]. That summons was dismissed by consent. The remaining eight summonses, to which pleas of guilty have been entered, are as follows:

2. Nos. 50044 of 2001; 50045 of 2001, 50047 of 2001: Director General of National Parks and Wildlife v Ronald George Wilkinson (hereafter called “Wilkinson”). The defendant is charged with knowingly causing damage to the habitat of threatened species between 25 March 1999 and 30 November 1999, contrary to s 118D(1) of the National Parks and Wildlife Act 1974 (“NP&W Act”). Each summons relates to a separate affected species, namely, the Brush-tailed Phascogale, the Squirrel Glider and the Little Bent-wing Bat.

3. Nos. 50049 of 2001, 50051 of 2001 and 50052 of 2001: Director General National of Parks and Wildlife v Hockitt Pastoral Company Pty Ltd (hereafter called “Hockitt”). The defendant is charged with the same three offences, with each summons relating to one of the same three affected species. Ronald George Wilkinson, the defendant in the first three summonses, is the sole shareholder, director and secretary of Hockitt.

4. No. 50086 of 2001: Director General of the Department of Land and Water Conservation v Hockitt Pastoral Company Pty Ltd. The defendant is charged with clearing native vegetation between 1 January 1999 and about 14 November 1999 contrary to s 21(2) of the Native Vegetation Conservation Act 1997 (“NVC Act”).

5. No. 50088 of 2001: Director General of the Department of Land and Water Conservation v Ronald George Wilkinson. The defendant is charged with the same offence as in No. 50086 of 2001.

6. Section 118D(1) of the NP&W Act is as follows:

118D Damage habitat of threatened species, populations or ecological communities

(1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, population or ecological community if the person knows that the land concerned is habitat of that kind.

Penalty: 1,000 penalty units or imprisonment for 1 year or both.

7. Section 21(2) of the NVC Act is as follows:

21

Clearing native vegetation on land not subject to plan

…

(2) A person must not clear native vegetation on any land except in accordance with:

(a) a development consent that is in force, or

(b) a native vegetation code of practice.

8. As noted above (in par [6]) the maximum penalty for an offence against s 118D(1) of the NP&W Act is a fine of $110,000 or imprisonment for one year, or both.

9. The maximum penalty for an offence of contravening s 21(2) of the NVC Act was, at the time of the commission of the offences in this case, a fine of $110,000.

10. Following a lengthy and detailed discussion between the expert witnesses during the hearing, the parties were able to agree upon most of the essential facts, which I will now describe.

Facts

11. The land on which the alleged offences took place is known as lot 22 in deposited plan 871233, Parish of Wang Wauk, County of Gloucester (“the land”). The land is located at the corner of Pacific Highway and Minimbah Road, Nabiac in the Great Lakes local government area. The land has an area of 99.56 hectares excluding Crown roads. Adjoining the land is lot 21 in deposited plan 871233 which has an area of two hectares.

12. Wilkinson purchased the land and lot 21 in or about October 1996 and February 1997 respectively. Lot 21 was transferred by Wilkinson to Stephen Herbert Dick and Allison Filmer on 23 October 1998. The land was transferred by Wilkinson to Hockitt in September 1998.

13. When the land and Lot 21 were purchased by Wilkinson in 1996 and 1997 it was used for cattle grazing. The land at some time in the past forty years had been also subjected to timber removal.

14. On 23 January 1997 surveyors, Degotardi Smith & Partners, lodged a development application with Great Lakes Council (“the council”) on behalf of the owner (identified as R Wilkinson) for the subdivision of the land and of lot 21 to create 73 rural residential lots with a central conservation zone. The application was accompanied by a flora and fauna assessment together with survey details locating habitat trees and fauna habitat areas.

15. Following a preliminary assessment of the application, the council requested the preparation of a species impact statement, an assessment of the archaeological sensitivity of the site, and a geotechnical report on the suitability of the land for effluent disposal.

16. A geotechnical assessment, archaeological report, and species impact statement were all submitted to the council. On 5 March 1998 the application was amended seeking development consent for the subdivision to create 64 rural residential lots and a conservation area.

17. Following further discussions with the council, the applicant developed an alternative scheme which involved the creation of 48 rural residential allotments and a conservation allotment of 45 hectares. At the meeting on 14 July 1998 the council resolved to grant deferred commencement consent to the amended application to create 47 rural residential lots and a conservation lot. That consent has never become operative because the deferred commencement conditions have not been fulfilled.

18. At the end of July 1996, prior to lodging the development application with the council, Wilkinson lodged an application with the Department of Land and Water Conservation (“the Department”) under the then State Environmental Planning Policy No. 46 (“SEPP No. 46”) seeking consent to clear 58 hectares of native vegetation from the land and lot 21 for the purpose of rural residential subdivision. An amended application was submitted to the Department on 17 March 1997. On 17 June 1998 Wilkinson further amended that application to be consistent with the revised development application lodged with the council.

19. At the time of making the application under SEPP No. 46, approximately 10 per cent of the land had been previously cleared for agricultural purposes. The previously cleared land was not included in the application under SEPP No. 46.

20. During the SEPP No. 46 assessment process the Department also requested a species impact statement, a flora survey, and an assessment of archaeological sensitivity and cultural significance.

21. On 17 July 1998 the Department issued a notice of determination in respect of the application to clear native vegetation. The NVC Act had by that time commenced. The notice of determination was therefore issued pursuant to NVC Act and s 92 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The application was approved subject to conditions. Consent was granted to clear approximately 15 hectares of land for the purpose of rural residential subdivision. This did not include parts of the previously cleared land. Condition 1 of the development consent states as follows:

All vegetation including trees, understorey, shrubs and ground cover must be retained as conservation area (approximately 70 hectares) as schematically represented in Diagram 1. The retention of this area, in an undisturbed state, is essential to conserve habitat and mitigate the impact on threatened species including Brush-tailed Phascogale, Squirrel Glider and Koala in addition to other resident and seasonal fauna. This includes an area of 100 metre radius around the Osprey nest located in the north of the area under application.

22. Under the consent granted by the Department, approximately 27 rural residential allotments could have been created on lot 21 and the land.

23. As noted above, both the council and the Department requested a species impact statement to be submitted with the development application. The species impact statement, which was then prepared, is stated as having been prepared in accordance with the Threatened Species Conservation Act 1995, the EP&A Act, the Environmental Planning and Assessment Regulation 1980 and with regard to the requirements set out by the Director General of National Parks and Wildlife. The species impact statement identified two broad vegetation communities within the subject site, which comprised mixed dry Eucalypt open forest as well as cleared and modified areas. The species impact statement found that some of the natural forest portions of the subject site comprised advanced vegetation regrowth, which was considered to possibly indicate that the land had been used for grazing in the past. The species impact statement includes the following statement:

The subject site has also been utilised for selective tree harvesting although large mature trees are also well represented. It is likely that the tree removal on the site has enhanced the structural diversity of the habitat by creating a mosaic of age types of the trees present.

24. Moreover, the species impact statement found that a large number of mature hollow-bearing trees were in the forest portion of the land. Oddly scattered large trees were also found to have been retained in the cleared and modified areas. The species impact statement concludes:

The subject land contains habitats which provide roosting, foraging and movement areas for a very well-developed native species assemblage from all fauna groups. In particular, the arboreal mammal diversity and abundance is relatively high in the local and regional context. Much of the site comprises a good quality remnant (or regenerating derivative) of some of the original vegetation communities present within the region, and provides known habitat for at least six threatened fauna species, many of which occur in viable breeding populations on the site and surrounds.

25. The fauna field surveys described in the species impact statement positively identify the Brush-tailed Phascogale, the Squirrel Glider and the Little Bent-wing Bat through the use of trappings and spotlighting, hair tube analysis and bat detectors. The fauna survey did not identify nesting hollows for the Masked Owl on the land. It noted, however, that the large home range of the species indicates that the land would comprise a particular home range for a pair of Masked Owls in the locality of the species impact statement. An individual Masked Owl was sighted flying through the bushland in the centre of the land with a Phascogale in its mouth.

26. Between January 1999 and November 1999, Wilkinson with two other people acting on his instructions cleared native vegetation from approximately 34.3 hectares of the land. Of this area, 25.6 hectares was on land that was to be retained as conservation area required by the Department’s consent, and was thus contrary to Condition 1 of that consent. Whereas 6.9 hectares was cleared outside the conservation area but contrary to the conditions of the consent. Also 1.8 hectares was cleared outside the area which was included in the development application. It must be remembered that the consent was granted for clearing of only approximately 15 hectares.

27. Between 25 March 1999 and 3 November 1999 the clearing occurred on approximately 21.4 hectares of the conservation area described in Condition 1. This area of clearing is included in the charges brought by the Director General of National Parks and Wildlife.

28. The clearing was undertaken by removing ground cover, understorey vegetation and canopy trees, and involved using of bulldozers. The vegetation was pushed into windrows using a rake, and some of it was burnt.

29. During the preparation of the development application the surveyors for the defendants identified certain trees with paint. Such trees were suspected to be habitat trees and were numbered. The criteria used to identify the trees were overall size, canopy size, and whether there was any hollow. These trees were also used as an aid for identifying specific points on the land as well as assisting in the contour control of future engineering and lot design. Many of these trees contained a hollow which provided a suitable use for threatened species such as the Brush-tailed Phascogale, the Squirrel Glider and the Little Bent-wing Bat. These trees were generally retained but a large quantity of other trees as well as other native vegetation were removed. Clearing was restricted generally to ridges and adjoining slopes and was avoided drainage lines.

30. On 17 November 1999 and 18 November 1999 the Department’s officers carried out vegetation surveys in eleven randomly selected quadrates, 25 metres by 25 metres, seven of which were within the cleared area and four in the uncleared areas. The surveys indicated that there was a marked reduction in the cleared areas of vegetation cover in layers (litter, grasses/herbs, shrubs, understorey and canopy) compared to uncleared areas. In particular, the level of bare soil in cleared areas averaged 81.5 per cent compared to nil per cent in uncleared areas; and the density of trees in the canopy layer in cleared areas was only 3.4 trees per 625 square metres compared with 30.8 trees per 625 square metres in uncleared areas. No threatened flora species were recorded on the land.

31. The native vegetation on the land in October 1996 was described by a field officer of the Department as an open forest dominated by various mature Eucalyptus and Corymbia species with an Allocasuarina understorey and with density ranging from 10 to 70 per cent in the areas sampled. There was also regeneration of Eucalyptus species in the understorey.

32. An inspection of the land in October 2000 by the Department’s field officer found that although the open forest plant community was present on the land the following changes had occurred since October 1996:

(a) a loss of native vegetation that would have been greater than ten years of age, being Eucalyptus and Corymbia canopy trees including hollow-bearing trees and roost trees;

(b) a loss of native vegetation that would have been greater than ten years of age, being almost all of the Allocasuarina understorey trees;

(c) a loss of native vegetation being Eucalyptus species in the understorey, some of which would have been greater than ten years of age in November 1999;

(d) although tall trees were still present, the vegetation had changed from an open forest in 1996 to a tall woodland structure in 2000;

(e) a loss of ground refugia, including native vegetation ground cover, hollow logs and leaf litter;

(f) evidence of a fire after the clearing, which was indicated by burnt logs and stumps;

(g) an increase in the occurrence and number of exotic species;

(h) an increase in floristic diversity of the groundcover and shrub layer;

(i) an increase in shrub cover, primarily by coloniser species; and

(j) disturbance of the surface soil by bulldozer tracks and an increase in the percentage of bare ground.

33. It was concluded following the inspections that the native vegetation on the land had conservation significance and biodiversity values prior to clearing. Clearing of the vegetation in the area which was set aside for biodiversity conservation on the land had:

(a) removed a sizeable area of Spotted Gum/Ironbark forest community which was in good condition and integrity as an example of its type; and

(b) significantly reduced fauna diversity, biodiversity and conservation values in the cleared area.

34. On 8 and 9 August 2001, Dr AnneMarie Clements (ecological consultant for the defendants) assessed the extent of natural regeneration on the land based on a field inspection and survey. Dr Clements conducted sampling on ridges and adjoining slopes in the cleared and uncleared areas. During the field inspection bare compacted soil was observed at that time to be mainly restricted to fire trails and tracks. Dr Clements observed that natural regeneration was occurring on the cleared land, as shown in photographs tendered in evidence. In Dr Clements’ opinion the clearing was generally restricted to areas with dry firm soils and, in her opinion, soil compaction as a result was minimal. Gullies and slopes had not been cleared. The extent of natural regeneration across the land varied from two to four metres in height of Casuarina regrowth to native grass cover with scattered Eucalyptus seedlings. The inspection revealed that the cleared areas that were surveyed supported regeneration of the main canopy Eucalyptus with relatively dense cover of native understorey species, especially native grasses. In other words, in August 2001 on site natural regeneration was occurring with the germination of Eucalyptus seedlings throughout most of the areas cleared in 1999.

35. In April 2001 and May 2001 the land was inspected by independent witnesses with expertise relating to the threatened species which was identified in the summonses.

36. A report was prepared in 2001 by Dr Harold Edwin Parnaby, a fauna consultant for the National Parks and Wildlife Service (“the Service”), looked at the impact of the clearing on the Little Bent-wing bat. In the opinion of Dr Parnaby the immediate impact of the clearing of vegetation had the potential to result in the following:

(a) reduction in the quantity, variety and seasonable availability of insect prey in the cleared area of the site;

(b) alterations to the suitability of the site as foraging habitat;

(c) increased predation of bats from both the decrease in vegetation cover and the ingress of predators to the area following the clearing;

(d) alteration to roost availability in tree cavities; and

(e) reduction in the viability of roost sites outside the site by incremental reduction of foraging resources within flying distance of such roosts.

37. A report was prepared in 2001 by Dr Susan Gaye Rhind, a fauna biologist and project manager for the Service, addressing the impact of clearing on the habitat of the Brush-tailed Phascogale. When addressing the potential impact of the clearing on the Phascogale she found as follows:

The immediate impact of clearing of this site on phascogales resident at the time, and the longer term impact on phascogales in the area and surrounds would be negative. To what extent cannot be specified as this assessment is retrospective and there is a lack of data on the actual density of the phascogale population on the site and in the surrounding area…. The removal of trees, the understorey, logs etc, would likely have the following effects on phascogales utilising the area:

(1) Decreased number of available nest sites (tree hollows);

(2) Reduced number of trees on which to forage;

(3) Reduced general food availability (predominantly invertebrates);

(4) Increased predation rates of phascogales.

38. A report was prepared in 2001 by Mr David John Sharpe, an ecological consultant for the Service, which addressed the impact of clearing on the habitat of the Squirrel Glider. In his report Mr Sharpe stated that the clearing undertaken on the subject land could be expected to affect the Squirrel Glider through the following ways:

(a) reduced food availability;

(b) reduced availability of hollow-bearing trees for denning;

(c) increased predation rates;

(d) lowered reproductive success; and

(e) altered competitive interactions with the Sugar Glider.

39. Mr Sharpe believes that above factors are likely to contribute to a decrease in the density of the Squirrel Gliders on the subject land. As the density becomes lower the risk of extinction of Squirrel Gliders in the local area is increased. Although Mr Sharpe does not believe that the local population of Squirrel Glider is placed at a risk of extinction due to the clearing, he thinks that extinction can become a real possibility if a sufficient portion of private land in the local area is similarly cleared.

40. An attempt was made by the parties’ respective expert witnesses to agree on timeframes so as to achieve the establishment of habitat equivalent in quality to that which existed prior to the clearing.

Re-establishment times for key habitat components required by Brush-tailed Phascogale

41. In five years, the understorey vegetation should become sparse with the habitat changing from having no value to being severely diminished. Re-establishment of a large number of 20 centimetres trees will take 20-50 years, although the defendants’ expert, Dr Clements, suggests time shorter than 15 years to reach this stage. At this stage the habitat will be barely adequate for phascogales. Tree crowns with a larger volume may take between 40-80 years to occur. Large tree development will take between 80-150 years to re-establish and hollow development of target species will take greater than 200 years.

42. The experts did not agree on the time that it would take for appropriate logs and large dead branches to be re-established on the ground. They agreed, however, that it would be at least 100 years.

43. Dr Clements suggests that consideration ought to be given to options that provide improved habitat such as spreading logs and introducing dead standard trees.

Re-establishment times for key habitat components required by the Squirrel Glider

Re-establishment times for key habitat components required by the Little Bent-wing Bat

44. The development of tree characteristics that are of value to the Little Bent-wing Bat will take many decades. The value of the habitat for this species probably relates to foraging habitat, potential roost sites and food base. Re-establishment of a large number of 20 centimetres trees will take 20-50 years, although the defendants’ expert Dr Clements suggests 5-15 years to reach this stage. Tree crowns with a larger volume may take between 40-80 years to occur. Large tree development will take between 80-150 years to re-establish and hollow development of target species will take greater than 200 years. The experts did not agree on the time that it would take for appropriate logs and large dead branches to be re-established on the ground, however they agreed it would be at least 100 years.

45. The defendants’ experts (Dr Clements and Dr Ambrose) believed the rates above relate more to ideal habitat establishment rather than re-establishment of the habitat prior to clearing. The prosecutors’ experts (Dr Sodaquist, Dr Parnaby and Mr Sharpe) state that the timeframes cover the re-establishment of known habitat characteristics. In the most intensively cleared areas it will be impossible to re-establish a pre-clearing habitat because it will be impossible to achieve a similar age-class distribution of trees.

Impacts of the clearing on the Brush-tailed Phascogale

46. The impact of the clearing on the Brush-tailed Phascogale was the elimination of a habitat that allowed for foraging and reproduction. One to two female home ranges of the phascogales were eliminated which translates to 26 juveniles over ten years.

47. A sparse understorey now blocks the phascogales from moving between trees. There will also be increased predation from foxes. Phascogales prefer to forage in larger trees, whereas dead trees provide more prey for them.

Admissions

48. In the course of the investigations by the officers of both the Service and the Department, Wilkinson made admissions in relation to the clearing of native vegetation on the land. These were as follows:

(a) the land was purchased for the purpose of subdivision and development via rural residential development, which was permitted by the zoning of the land under relevant local environmental plan;

(b) he had been advised by the council and consultants that he could clear trees which were less than ten years old and less than three metres in height without any approvals;

(c) he was advised that he could clear up to five acres of land per year without approval;

(d) he submitted an application under SEPP No. 46 to the Department to clear vegetation as he was advised by the council that this was necessary for his proposed subdivision;

(e) he agreed to the prepare of a species impact statement as he had been advised by his consultant that it was necessary to do so and it was something required for all subdivisions;

(f) he understood that the species impact statement concerned the habitat and six threatened species on the land;

(g) he was aware of the presence of threatened species on the land;

(h) he and two contractors acting on his instructions cleared the land by bulldozer;

(i) trees marked by the surveyors had been retained. However, a number of the trees that were left standing would have to be removed if the land was to be developed for the purpose of subdivision;

(j) he had hoped to develop the land into one hundred and six allotments with two and one half-acre blocks. However, the number of allotments that he would be permitted to develop became smaller and smaller during the process of his application for development consent. Ultimately, the Department’s consent would only enable the development of 24 allotments, the remainder of the land being retained as habitat;

(k) he considered that a development of only 24 allotments was not a viable proposition for development. If he complied with the conditions of the Department’s consent he would be losing a lot of money;

(l) he took the matter into his own hands and decided to go ahead with the clearing of the vegetation on the land regardless of the conditions of the Department’s consent; and

(m) he set aside 100 acres of low country on the land to be undisturbed and thought that this was fair.

49. Wilkinson has at all times provided full and frank cooperation with the prosecutors. As well as making the admissions described above, no further clearing of vegetation has been undertaken on the land since November 1999. Wilkinson has retained the services of ecological consultants to advise him on the most practical way of re-vegetating the land as indicated in the Department’s consent for conservation purposes.

50. Hockitt has entered into a Property Agreement under Pt 5 of the NVC Act in relation to the land to be retained for conservation purposes subject to agreed terms. The defendants are also prepared to consent to orders pursuant to s 118E of the NP&W Act incorporating, by reference, that Property Agreement.

The Property Agreement

51. The relevant provisions of the Property Agreement are as follows:

52. The Property Agreement (“the Agreement”) is between the Hockitt Pastoral Company Pty Ltd (ABN 57 080 605 983, described as the “landholder”) and the Director-General of the Department of Land and Water Conservation. The Agreement remains in force for a period of ten years and the landholder is to bear the cost of carrying out any works. The land to which the agreement applies is described as part lot 22 in deposited plan 871233 (hereafter “the Property”), the location and area of which is shown in Pt D of the Agreement.

53. The Agreement was entered into for conservation and management of vegetation on the Property. The landholder is to incorporate the covenants of the Agreement into any lease or licence over the Property and is to ensure that any of their servants, agents or contractors are aware of those covenants.

54. The Agreement provides that the land “…is to be established and maintained as a conservation area”. The Management Program prescribed in Sch 3 to the Agreement includes the following objectives: to ensure the future use of the Property is as a conservation area; to facilitate re-establishment of the vegetation strata present on the Property prior to the land clearing; to facilitate the ecological value of the land for native fauna species by restoring fauna habitat components and food sources; and to use natural regeneration as the principal means of achieving appropriate revegetation of the land.

55. Activities that not allowed on the Property are those that may adversely impact the native fauna and native vegetation and specifically include: horse riding, trail bike riding, mountain bike riding, grazing and four-wheel drive trail driving. There is to be no further clearing on the land under the Agreement except for authorised works.

56. There is a house-site (“the site”) permitted within the Property, the location and area of which is shown in Pt D of the Management Program. Road access to the site is specified and its boundaries are to be fenced with a 1.2 metres high pig wire fence before human or domestic occupation of the site. A single, normal residential dwelling is permitted on the site with the relevant approvals. No exotic or introduced species are to be grown on the site and domestic animals are to be confined to it as much as possible. Any occupant or lessee of a dwelling house on the site is to be furnished with a copy of the Agreement by the landholder and are to agree to the use limitations set out in Pt C of the Management Program.

57. The perimeter of the Property is to be fenced with plain stock-proof wire fencing although existing sections of barbed wire fencing may remain in situ while they are in stock-proof condition. All fences are to be maintained in stock-proof condition and the landholder is to inspect all fences for any damage every six months and complete repairs as necessary.

58. The boundary of the Property is to be fenced with 1.2 metres high pig wire fencing within three months of approval of any residential development on any part of lot 22 in deposited plan 871233 that is not the Property. If such development does not involve lots adjacent to the Property, then those lots can be fenced as an alternative within three months of approval or registration, whichever is earlier.

59. There will be an annual weed inspection and weed removal as required.

60. The Director General is to initiate approval procedures for the closure of Crown road over lots 21 and 22 in deposited plan 871233 within one month of the Agreement. The landholder is to spread seed bearing branches over the areas not vegetated along this road. If the Director General fails to gain the appropriate approval for closure of the road, the landowner will not be responsible for the control of weeds on that part of that Crown road.

61. It is intended by the parties to the Agreement that the Property is to remain as one unsubdivided parcel. If in future circumstances there is a need to subdivide the Property, the landholder may seek the Director General’s consent and the Director-General will consider the request in terms of the proposal’s impacts on achievement of the objectives of the Management Program. The Director General may refuse to grant consent or to give conditional consent.

62. The landholder is to lodge a security deposit in the form of an unconditional bank guarantee in the sum of $10,000 which is to be maintained for a period of ten years. The security deposit will be used by the Director General when the landholder has been requested to carry out works but has failed to so do after receipt of reasonable notice.

Other matters relating to penalty

63. Wilkinson moved to the Mid North Coast of New South Wales in June 1996 after sustaining substantial tax losses from a failed business venture at Bathurst. This business involved a farm stay tourist operation in conjunction with a working sheep property. Wilkinson’s tax losses from this venture totalled $154,106. Wilkinson purchased a real estate agency now trading as Wilkinson’s Real Estate Nabiac in June 1996 and commenced trading in July 1996. That business is owned and operated by a company known as Wilkinson’s Real Estate Pty Ltd (ABN 85 083 537 062). Wilkinson is the sole shareholder and director of Wilkinson’s Real Estate Pty Ltd.

64. Hockitt Pastoral Co Pty Ltd (ABN 57 080 605 983) was incorporated on 31 October 1997 with the aim of conducting Wilkinson’s primary production operations in relation to the buying and selling of cattle, and with the aim of purchasing property which could be used in this primary production business or which may be suitable for redevelopment.

65. The taxable income of Wilkinson and his related companies over the last five years are as follows:

Year R Wilkinson Wilkinson Real Estate Pty Ltd Hockitt Pastoral Co Pty Ltd

1997 Nil

1998 $69,715

1999 $22,069 $14,143 ($18,993)

2000 40,178 $103,964 $5,863

2001 $54,166 $33,548 ($71,317)
66. Wilkinson is currently aged 62, divorced and is supporting one of three children. He has approximately $58,000 invested in superannuation and owns his home in Forster. He currently works six days per week in his real estate business and has done so for the past six years. Due to his failed business venture at Bathurst and the volatile nature of the real estate market in regional New South Wales, Wilkinson has not been able to enjoy the level of income necessary to allow him to save sufficiently for his retirement.

67. Due to his age and limited superannuation investments, Wilkinson has been concentrating over the last six years on accumulating assets which will enable him to finance his retirement. Wilkinson has embarked on an investment strategy heavily reliant on borrowing so as to enable him to purchase assets which are aimed at generating capital gains in the long term. As the result of this strategy he is currently heavily indebted to his banks and has recently been advised that he at his maximum borrowing capacity.

68. It seems that any substantial fine imposed on Wilkinson will place him in a very precarious financial position. Wilkinson has no capacity to borrow additional funds and any capital necessary to pay fines and legal costs will require him to realise assets. The proceeds from the sale of such assets will be required, first, to be paid to the bank which currently holds the mortgages in relation to such assets, with the balance available to settle any legal costs and fines imposed in these proceedings. This will in turn reduce Wilkinson’s assets which fund his retirement and reduce his ability to accumulate sufficient savings between now and when he retires.

69. Wilkinson has experienced a financial loss in relation to the land, as he has had to fund the purchase of the land through borrowings since 1996 and the land currently remains undeveloped. As noted above, Wilkinson considers that the development of only twenty four allotments, which would be permitted by the conditions of the Department’s consent, is not a viable proposition and a development which complies with all the conditions of that consent would mean that he would be losing money. His estimate of the holding costs in relation to the land to date, as calculated by his accountant, are as follows:

Interest $94,500

Rates $6,400

Legal and Consultants Costs $107,700

Total $208,600
70. The consultants’ costs include those costs involved in the preparation of the applications to Great Lakes council and the Department and include the preparation of the species impact statement.

The application of sentencing principles
Mitigating factors

71. In considering the question of penalty, it is relevant that although the defendants are charged with offences against two different statutory provisions, the offences all arose out of the one course of conduct. Both Wilkinson and Hockitt are each charged with identical sets of offences, three each against s 118D(1) of the NP&W Act and one each against s 21(2) of the NVC Act, in circumstances in which Wilkinson is the sole shareholder, director and secretary of Hockitt. In this respect it is relevant that the actual clearing was carried out by Wilkinson and by two other people acting on his instructions. Finally it is relevant that the three offences against each defendant under s 118D(1) of the NP&W Act relate to three separate threatened species, although arising out of a single course of conduct.

72. In these circumstances it is accepted that the principle of totality applies. The principle was explained by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order.

73. The statement of Street CJ in Holder was quoted with approval by Kirby P in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703-4 (Campbell and James JJ agreeing). Kirby P went on to state that the principle of totality is applicable when the penalty imposed is by way of fine. In that case the defendant had been charged with three offences that were seen as being connected. It was held that in applying the principle of totality, the penalties should reflect the total criminality of the defendant.

74. In Mill v The Queen (1988) 166 CLR 59, the High Court adopted (at 63) the following statement of the principle in Thomas, Principles of Sentencing, 2nd ed. (1979) pp 56-7 (omitting references):

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

75. The High Court went on to say that the principle may be achieved “by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed”.

76. In Pearce v The Queen (1998) 194 CLR 610, Mill was followed and the manner of its application was explained by Gaudron J (at 623-624). Gaudron J held that an approach which has regard only to the total effective sentence is likely to mask error. Her Honour continued:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

Gaudron J went on to observe that the defendant in that case should not be doubly punished under separate counts for a single act.

77. In applying the principles explained in Mill and Pearce, as I understand them, I must not fix an appropriate total penalty for all the offences and then apportion that total. The sentencing court is required to fix an appropriate penalty for each offence and then, applying the principle of totality, ask whether the aggregate penalty is just and appropriate, that is, whether the penalties properly reflect the total criminality of the defendant and then make an adjustment accordingly.

78. The correct approach to the application of the totality principle is further explained by the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing) in R v Place (2002) 189 ALR 431 at 456-457:

The

principle was again considered by the High Court in

(

McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence “is a just and appropriate measure of the total criminality involved”: at CLR 308. Kirby J described the principles of “parity” and “totality” as “in the nature of checks” to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was “then” that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality: at CLR 340-1.

In our opinion the sentencing judge erred in applying the principle of totality to the provisional sentence at which he had arrived before taking into account circumstances of mitigation, including the plea of guilty. Whether the error had any significant effect upon the ultimate sentence imposed is difficult to ascertain, but his Honour adopted a process which increases the risk of error.

79. In adopting this approach I also have regard to the fact that Wilkinson is the sole shareholder and director of Hockitt. Any penalty imposed on Hockitt would thus fall on Wilkinson. He would be doubly penalised for the same act.

80. The defendants have pleaded guilty. I accept the submission of Mr D P Wilson, who appears for the defendants, that there was no real delay in entering their pleas. Hockitt has entered pleas of guilty at the earliest opportunity. The delay in the cases against Wilkinson was a consequence of representations on his behalf for the prosecution to proceed only against Hockitt; there were discussions in relation to rehabilitation of the land; there was never any intention to plead not guilty; and as soon as the discussions were concluded (and which resulted in the Property Agreement noted above) pleas of guilty were then entered on behalf of Wilkinson. In these circumstances I would accept that the defendants are entitled to a generous discount on the penalties which would otherwise be imposed. I also accept the defendants’ expression of contrition and regret which the pleas of guilty entail, which is further evidenced by the defendant’s act of entering into the Property Agreement with the Director General of the Department and the willingness of the defendants to consent to orders under s 118E of the NP&W Act.

81. In Wongv The Queen (2001) 76 ALJR 79 it was held that it was wrong in principle to adopt a two-stage approach to sentencing, by which a preliminary sentence is determined and thereafter adjusted by some mathematical value given one or more features of the case, such as a plea of guilty or assistance with the authorities. In Cameron v The Queen (2002) 76 ALJR 382 it was held that the utilitarian component of the plea should not be expressed on the basis that the plea has saved the community the expense of a contested hearing, but rather in terms of a subjective willingness on the part of the offender to facilitate the course of justice. In R v Sharma [2002] NSWCCA 142 the Court of Criminal Appeal regarded these two decisions of the High Court as distinguishable because they were made in relation to different sentencing regimes to that which applies in New South Wales. Accordingly, the utilitarian component of avoiding the necessity for a trial may be taken into account and the discount range described by the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383 continues to apply. It was further held in Sharma that the criticism in Wong of the two-stage approach to sentencing did not require the court to overrule Thomson. Sentencing judges are still bound by Thomson and should continue to quantify the percentage discount for a plea of guilty.

82. In Thomson it was held (at 419) that the utilitarian value of a plea of guilty in the criminal justice system should generally be assessed in the range of ten to fifteen per cent discount on sentence. It was also held that the existing sentencing practice to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, remains appropriate.

83. In the present case, however, I do not regard the utilitarian value of the pleas as at the upper end of the range. It might be thought that proof of knowledge in the charge under s 118D(1) of the NP&W Act meant that there was considerable utilitarian value in the pleas in this case. In my opinion, however, the element of knowledge would be readily inferred from the fact that the defendant (Wilkinson) had previously commissioned a species impact statement to support his applications to both the council and to the Department of Land and Water Conservation. The species impact statement in turn clearly identifies the land as a habitat of the three threatened species to which the charges under s 118D(1) relate.

84. Having discussed the totality principle, early pleas of guilty and the utilitarian value thereof, I now refer to the other mitigating factors. One of these factors is the requirement under s 6 of the Fines Act 1996 to consider the means of the offender. These have been set out (in pars [64] to [71]) above. Moreover, the obligations of Hockitt under the Property Agreement and the obligations of Wilkinson under the orders to be made under s 118E of the NP&W Act will involve an ongoing financial commitment. This fact is also a relevant consideration to the size of any fine that will be imposed (Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440).

85. The Property Agreement will also “sterilise” most of the land for future development. The purpose for which the land was purchased is unlikely to be achieved, at least to the extent of producing a return on the investment. A considerable sum has already been lost in holding charges. The defendants face significant legal costs of both prosecutors as well as their own costs. The whole exercise has resulted in almost financial ruin of the defendants, even in the absence of a fine. I accept the submission that there is no capacity on the part of either defendant to pay any substantial fine. I accept the submission that there is little need for any fine to include an element of specific deterrence: these defendants are most unlikely to re-offend. I accept the submission, in these circumstances, the fine which would be otherwise appropriate to be imposed should be reduced. A small nominal fine, however, would not satisfy the element of general deterrence (Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354).

86. I also take into consideration the fact that Wilkinson co-operated with the officers of both the prosecutors and made full admissions as noted in par [80] above.

87. It is submitted on behalf of the defendants that one could not find that this clearing would not have lawfully occurred if a development application had been made therefor. As I understand the submission, it is suggested that a development consent might have been granted, if sought, for the clearing. I cannot accept this submission. The development consent that was granted was, as noted above, subject to a condition that the area identified as a conservation area be not cleared. Moreover, the identification of that area in the species impact statement as a habitat for the three threatened species suggests that no such consent would have been likely.

88. It is also submitted on behalf of the defendants that the areas with greater concentration of the three threatened species were not cleared and the larger trees on the land were retained. I have some difficulty in accepting this submission. It seems to me that this simply means that the clearing and its impact could have been worse. It is like saying of a thief: “He has only snatched half the money from the safe.”

Aggravating factors

89. The offences with which the defendants are charged are serious. The most serious aspect of the offences is the impact upon the habitat of each of the three threatened species. It is self-evident that the area to be retained as a conservation area (by Condition 1 of the development consent of 17 July 1998) was an important habitat for those species. The impact on the threatened species is both significant and serious, as noted in pars [36] to [47] above. The impact will be ongoing until the habitat is fully re-established. As noted (in pars [41] to [45] above) it will be a long time before the damage will be redressed. The consequences are long-term. It does not take long to bulldoze vegetation down, but it takes many generations to undo the harm that is done.

90. Adding to the seriousness of the harm is the way in which the clearing was done. It was done by bulldozer. This resulted in a large change. For example, the level of bare soil after the clearing averaged 81.52 per cent compared with nil per cent before the clearing. The density of trees in the canopy layer was only 3.4 trees per 625 square metres, compared with 30.8 trees per 625 square metres before the clearing. The physical impact of the clearing is further noted in pars [32] to [33] above.

91. The area of land cleared was significant: 25.6 hectares of land that was to be retained in the conservation area, 6.9 hectares cleared outside the conservation area but contrary to consent conditions and 1.8 hectares cleared outside the area included in the development application.

92. The clearing was carried out wilfully, in the full knowledge that it was unlawful. It was motivated by a desire for commercial profit.

93. There is also, in my opinion, the need for a penalty which will be to act as a general deterrent. I accept the observation of Stein J in Environment Protection Authority v Capdate (at 354): “A small or nominal fine would not satisfy the element of deterrence, let alone punishment”. The deterrent effect of a fine must send an important message that the conditions of a development consent requiring the preservation of ecologically important areas must be complied with.

94. I am of the view that the offences against s 118D(1) of the NP&W Act are more serious than the offences against s 21(2) of the NVC Act. This is reflected in the penalty, which includes, in addition to the fine, imprisonment for one year. It is also reflected by the fact that an element in those offences is the impact upon the threatened species. Having regard to all of the sentencing considerations described above, I am of the view, however, that a term of imprisonment is not called for. The appropriate monetary penalty is one which falls in the mid-range.

95. In accordance with the approach explained in Pearce (noted in par [77] above) I find that the appropriate penalty which should be imposed under s 118D(1), and which should be imposed in the first of the summonses, No. 50044 of 2001, is the mid-range. This should be discounted for the defendants’ plea of guilty. In R v Thomson it is said that an allowance of up to 35 per cent for pleas, encompassing all relevant matters, remains appropriate. For the reasons described above, however, it is not appropriate in this case to allow a full discount for utilitarian value of the plea. An appropriate discount in the present case encompassing all relevant maters is 25 per cent. It is then necessary to consider the question of totality, recognising that all the offences arise out of a single course of conduct. Finally, I am prepared to effect a further reduction in the overall aggregate that takes account of the defendants’ means (as required by the Fines Act, s 6) and the defendants’ ongoing obligations under the Property Agreement and under the orders to be made under s 118E of the NP&W Act.

96. Although the offences against s 21(2) of the NVC Act arise under a different statute, they are of the same nature as those against s 118D(1) of the NP&W Act and arise out of the same course of conduct. They are thus seen to be related. The totality principle is to be applied to all the offences in this case. The resultant aggregate which I adopt, namely $43,500, is one which is appropriate for all the offences so as to reflect the total criminality of the defendants. The individual penalties are thus below what would otherwise be appropriate if each is considered in isolation.

Orders

97. For the above-stated reasons I make the following orders:

No. 50044 of 2001

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $22,000.

. 50086 of 2001

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $11,000.

No. 50045 of 2001

1. The defendant is convicted of the offence as charged.