Director-General of the Department of Environment and Climate Change v Rae

[2009] NSWLEC 137

Reported Decision: 197 A Crim R 31
168 LGERA 121

Land and Environment Court

of New South Wales

CITATION:

Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137

PARTIES:

PROSECUTOR
Director-General of the Department of Environment and Climate Change

DEFENDANT
John Rae

FILE NUMBER(S):

50039 of 2008

CORAM:

Preston CJ

KEY ISSUES:

ENVIRONMENTAL OFFENCES - PROSECUTION :- sentence - clearing native vegetation - offence of medium objective gravity - conduct offended against legislative objects - high degree of environmental harm - conduct premeditated, intentional and with knowledge of its illegality - risk of environmental harm forseeable and preventable - mitigating subjective circumstances - lack of prior criminality - prior good character - plea of guilty - delay in plea reduced its utilitarian value - remorse - acceptance of requirement to carry out remedial work under statutory direction - assistance to authorities after a delay - consistency in sentencing.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, 21A, 22
Criminal Procedure Act 1986 (NSW) s 257B, 257G
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Native Vegetation Act 1991 (SA) s 26
Native Vegetation Act 2003 (NSW) s 3(b), 12(1), 38
Native Vegetation Conservation Act 1997 (NSW) s 17(1), 21(2)

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) 115 LGERA 304
Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349
Cameron v R [2002] HCA 6; (2002) 209 CLR 339
Camilleri’s Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113
Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256
Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530
Director-General Department of Environment and Climate Change v Wilton [2008] NSWLEC 297
Director-General of the Department of Land and Water Conservation v Leverton Pastoral Company Pty Ltd [2002] NSWLEC 212
Director-General of National Parks and Wildlife v Wilkinson & Anor; Director General of Department of Land and Water Conservation v Wilkinson [2002] NSWLEC 171
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719
Environment Protection Authority v Le Dome Pty Ltd (2002) 125 LGERA 121
Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124
Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Greentree v Minister for Environment and Heritage [2005] FCAFC 128; (2005) 144 FCR 388; 143 LGERA 1
Lamattina & Anor v Gould [2009] SASC 130
Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753
Minister for the Environment and Heritage v Greentree (No. 3) [2004] FCA 1317; (2004) 136 LGERA 89
Morabito v The Queen (1992) 62 A Crim R 82
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Piva v Brinkworth (1992) 59 SASR 92
R v AEM [2002] NSWCCA 58
R v Borkowski [2009] NSWCCA 102
R v Derbas [2003] NSWCCA 44
R v Hayes [2001] NSWCCA 410
R v Lawson (1997) 142 FLR 323
R v Oliver (1980) 7 A Crim R 174
R v Peel [1971] 1 NSWLR 247
R v Rushby [1977] 1 NSWLR 594
R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300
R v Shorten (unreported, NSWCCA, Sully J, 10 September 1997)
R v Stahl [1999] NSWCCA 160
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Visconti [1982] 2 NSWLR 104
Sullivan v R; Skillin v R [2008] NSWCCA 296

DATES OF HEARING:

11 May 2009

 
DATE OF JUDGMENT: 

18 August 2009

LEGAL REPRESENTATIVES:

PROSECUTOR
P Barley (solicitor)
SOLICITORS
Department of Environment and Climate Change NSW

DEFENDANT
Paul McGirr (solicitor)
SOLICITORS
McGirr James Hall & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

18 AUGUST 2009

50039 OF 2008

DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE v JOHN RAE

JUDGMENT

1 HIS HONOUR: John Rae has pleaded guilty to a charge of clearing native vegetation, contrary to s 12(1) of the Native Vegetation Act 2003 (“the Act”), on his farming property, “Argrey” near Quambone, in the Coonamble local government area, New South Wales between 1 August and 30 September 2007. Mr Rae is now to be sentenced for the offence.

Facts of the offence

2 Mr Rae bought the property in June 2007 for $2,240.000. The property is approximately 3,300 hectares. It has been used for grazing and cropping for at least the last 30 years. Nevertheless, at the time of the offence, the property had a number of wooded areas. The trees were mostly Poplar Box (Eucalyptus populnea) and Belah (Casuarina cristata), which had been there for many decades. In August and September 2007, Mr Rae and one of his employees undertook a clearing program on the property. Clearing was undertaken using a Caterpillar D7 dozer and a Komatsu dozer. The trees, which were uprooted, were pushed over using the blade of the bulldozer. A considerable number of trees were knocked down in twelve distinct areas on the property. Some areas were almost completely cleared while in other areas the clearing was more selective. The areas which were either partially or completely cleared covered an area of approximately 215 hectares. Of this area, approximately 155 hectares were cleared to an extent of over 95%, that is to say, that only 5% of the trees that were formerly there remained after the clearing.

3 The trees which were killed included Eucalyptus populnea subspecies Bimbil (Poplar box or Bimbil box); Geijera parviflora (Wilga); Casuarina cristata (Belah); Capparis mitchellii (Wild orange or Native orange) and Eucalyptus largiflorens (Black Box). These species are native to New South Wales. Most of the trees that were cleared were mature trees, some of them were in excess of 17 metres in height and had trunks with a diameter of more than 40cm at breast height.

4 In pleading guilty to the offence, Mr Rae has admitted the essential elements of the offence, namely:

(a) clearing occurred on the property;
(b) the clearing was of “native vegetation” as defined in the Act;
(c) the clearing was not done in accordance with any development consent granted in accordance with the Act;
(d) the clearing was not done in accordance with any property vegetation plan approved under the Act; and
(e) Mr Rae carried out or was legally responsible for the carrying out of the clearing.

5 The clearing was reported to the Department of Environment and Climate Change in November 2007 to persons in the area. Officers of the Department investigated the clearing and prepared evidence. Officers attempted to contact Mr Rae for many months but he did not return their calls.

6 In June 2008, Mr Rae voluntarily submitted to an interview under caution with officers of the Department. In the course of the interview Mr Rae admitted that he had knocked down trees on the property; that he knew that he needed consent before clearing the trees but decided to go ahead without seeking consent in case he was not successful in obtaining consent and would be prevented from clearing in the future; and that he cleared the trees to improve the property to make it more viable and increase its capital value.

Purposes of sentencing

7 Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that the purposes of imposing a sentence on an offender include:

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

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

(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.”

8 The sentence of the court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his just deserts. The sentence must deter the offender from committing similar offences in the future.

9 Most importantly, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. The purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law: see Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [103]-[106]; Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 at [31]-[33]; Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77]; Climate Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [81]-[88]; and Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [45]; Lamattina & Anor v Gould [2009] SASC 130 (15 May 2009) at [73] and Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 (17 July 2009) at [47].

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

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

11 The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits, with the expectation of a concomitant increase in the capital value of the land. Examples where sentencing courts have noted that clearing was undertaken for commercial gain include: Director General of National Parks and Wildlife v Wilkinson & Anor; Director General of Department of Land and Water Conservation v Wilkinson [2002] NSWLEC 171 at [92]; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [70]; Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [141] Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [246], [247].

12 On land used or proposed to be used for purposes of agriculture, clearing of native vegetation might be intended to increase the grazing productivity (such as increasing pasture and stocking rate), change from a financially lower yielding to a financially higher yielding agricultural use (such as from grazing to cropping) or facilitate more practical and cost effective operations, including of machinery and equipment, also with the expectation of an increase in the capital value of the land. Sentencing courts have repeatedly noted that offenders have cleared native vegetation for commercial gain: see, as examples, Piva v Brinkworth (1992) 59 SASR 92 at 96; Minister for the Environment and Heritage v Greentree (No. 3) [2004] FCA 1317; (2004) 136 LGERA 89 at [65] and see also [47], [48], [59] and [61]; Director-General Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [51], [76]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [78]; Lamattina & Anor v Gould [2009] SASC 130 at [3], [17] and [19]; Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 at [39] and [68].

13 The very high maximum penalties fixed by parliaments for offences of clearing native vegetation contrary to law are, to a significant extent, intended to act as a deterrent, a countervailing disincentive to the economic incentives to clear native vegetation illegally. The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the offender and also of other owners, occupiers and developers of land on which native vegetation occurs who might be tempted to clear illegally by the prospect that only light punishment will be imposed by the courts. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational.

Objective gravity of the offence

14 In determining the objective gravity of the offence, the circumstances of the offence in this case to which the Court may have regard include: the nature of the offence; the maximum penalty for the offence; the harm caused to the environment by commission of the offence; the state of mind of the offender for committing the offences; the offender’s reason for committing the offences; the foreseeable risk of harm to the environment by commission of the offence; the practical measures to avoid harm to the environment; and the offender’s control over the causes of harm to the environment.

Nature of the offence

15 The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence and its place in the statutory scheme: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[[71], [168]-[169]. A proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute: Environment Protection Authority v Le Dome Pty Ltd (2002) 125 LGERA 121 at 132 [80]; Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 at [132]. A fundamental consideration with particular relevance to environmental offences, is the degree by which, having regard to the maximum penalties by the statute in question, the offender’s conduct would offend against the legislative objective expressed in the statutory offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89] and Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1 at [52]; (2009) 164 LGERA 287.

16 The objects of the Act are stated in s 3 to be:

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

in accordance with the principles of ecologically sustainable development.”

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

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

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

20 The actions of Mr Rae in clearing native vegetation on the property without first applying for and obtaining consent under the Act offend against the legislative objective expressed in the statutory offence and also thwart the attainment of the objects of the Act. As found below, the native vegetation cleared had significant conservation status and contributed to biodiversity, the effects of clearing were similar to those caused by broadscale clearing and there has been a high degree of environmental harm caused. The actions of Mr Rae and their consequences run counter to the objects of the Act and are also not in accordance with the principles of ecologically sustainable development, for reasons analogous to those given in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [67]-[71], [169]-[171].

Maximum penalty

21 At the time of the commission of the offence the maximum penalty prescribed by Parliament was 10,000 penalty units or $1,100,000 and a further daily penalty of 1,000 penalty units or $110,000: see s 12(2) of the Act which refers to s 126(1) of the Environmental Planning and Assessment Act 1979.

22 These high maximum penalties reflect the seriousness with which Parliament views the offence of clearing of native vegetation contrary to s 12(1) of the Act.

Harm to the environment

23 The clearing constituting the offence affected an area of approximately 215 hectares. Of this, 155 hectares were cleared to an extent that only 5% of the trees that were formerly there remain.

24 The prosecutor read affidavit evidence from Mr Darren Shelly, a terrestrial ecologist employed by the Department of Environment and Climate Change, on the environmental harm caused by the offence. He was not required for cross-examination by the defendant.

25 Mr Shelly stated that, prior to the clearing, about 75% of the property had been cleared of vegetation leaving only the occasional isolated tree. In the remaining 25% of the property, portions of relatively intact woody vegetation occurred in patches and small remnants. All of the areas of clearing undertaken by or on behalf of Mr Rae were located in these woody remnants. The largest remnants have been significantly reduced in size, in most cases to small patches that are no longer vegetatively connected. Several large remnants have been completely removed leaving only isolated trees.

26 Mr Shelly identifies the vegetation in the cleared areas to comprise two types of woodlands, the majority being Poplar Box (Eucalyptus populnea) woodlands and the remainder Belah (Casuarina cristata) woodlands. Both of these types of woodlands fall within categories of vegetation communities assessed as having significant conservation status. The Poplar Box woodlands fall within the broad vegetation type of Box woodlands that is listed as most threatened in the Darling Riverina Plains Interim Biogeographical Regionalisation of Australia (IBRA) Region, the region in which the property is located.

27 At State level, the Poplar Box woodland closely corresponds to the Eucalyptus populnea-Eucalyptus mitchellii-Geijera parviflora community on the north west plains, which has a V1 status (Risk code V = vulnerable: likely to become endangered within a few decades if action is not taken to rectify the decline of the association and protect and manage the area. Conservation code 1 = not conserved or if so only miniscule areas are located in reserves). The Belah woodland closely corresponds to the Causarina cristata-Heterodendron oleifolium (Rosewood) community on the slopes and plains, which has a V2 conservation status (Risk code V= vulnerable: likely to become endangered within a few decades if action is not taken to rectify the decline of the association and protect and manage areas. Conservation code 2= inadequately conserved, either because only relatively small areas are located in reserves or major parts of its geographical range remains unprotected).

28 At the regional level of plant communities of the NSW western plains, the vegetation in the Poplar Box woodland cleared on the property conforms most closely to the vegetation community description of “Poplar Box grassy/shrubby woodland on alluvial clay-loam soils mainly in the temperate (hot summer) climate zone of central NSW (wheatbelt)”. This vegetation community has been assessed as endangered ie. facing a very high risk of becoming extinct in the near term due to a 70%-90% reduction in extent and/or range. The community has been mostly cleared for crops and grazing and few patches remain in good condition. It is listed that 0.02% of the original distribution is currently reserved. The vegetation in the Belah woodland cleared corresponds to “Belah woodland on alluvial plains in central-north NSW”. This vegetation community has been assessed as endangered ie. facing a very high risk of becoming extinct in the near term due to a 70%-90% reduction in extent and/or range. Most of this community has been cleared for grazing or cropping. It is listed that 0.11% of the original distribution is currently reserved.

29 Mr Shelly further assesses the environmental harm caused by the clearing by reference to a number of parameters. These impacts are summarised in his conclusion as follows:

“The vegetation cleared on ‘Argrey’ was vegetation native to the state of New South Wales and in existence prior to 1990. In my opinion, the clearing of approximately 215 hectares of open woodland/woodland forming several intact remnants within a moderately fragmented local region, has caused a moderate degree of environmental harm to the immediate district but a high degree of harm to native vegetation on the subject property.
The clearing has had the following adverse impacts:
· The clearing has increased vegetation fragmentation in the area. This will have major implications in the viability of populations of a number of plant and animal species likely to be present.
· Connectivity in the locality and region has been further reduced.
· Vegetation communities not adequately represented in conservation reserves have been removed.
· Native vegetation important for the maintenance of biodiversity on a local and regional scale has been lost.
· A significant area of known habitat for eleven species of threatened fauna and one species of threatened flora has been removed, thereby placing local populations at possible risk of extinction.”

30 In relation to loss of biodiversity, Mr Shelly observed the clearing has resulted in the almost total removal of woody vegetation (apart from isolated trees) from ten of the twelve separate areas that were previously of woodland or open woodland tree density and the thinning of the other two areas. Therefore, most of the tree species and all of the understorey and shrub species have been removed. Based on the species list for the Coonamble/Walgett District for similar vegetation types, clearing of all woody vegetation would result in the loss of 31 flora species (16 tree species, 9 shrub species and 6 mistletoe (vines) for Poplar Box open woodland/woodlands and 10 flora species (7 tree/understorey and 3 shrub species) for Poplar Box/Wilga woodlands. This represents a reduction in flora species richness of 23% for Poplar Box open woodland/woodlands and 19% for Poplar Box/Wilga woodlands vegetation communities.

31 As far as fauna is concerned, Mr Shelly opined that the conversion of the vegetation structure from open woodland/woodlands dominated by Poplar Box and/or Wilga and Belah to either an open grassland/forbland with isolated trees or to be a rotational cultivation paddock with isolated trees in the future, has the potential to lead to a reduction of vertebrate fauna species richness of between 40% for Poplar Box open woodlands/woodlands (from 108 vertebrate fauna species to 66 species for grassland/forbland/cultivation woodland) and 41% for Poplar Box/Wilga woodlands (from 110 vertebrate fauna species to 66 species for grassland/forbland/cultivation). The reduction may in fact be greater because 36 of the 66 species (55%) recorded utilising grassland/forbland/cultivation with scattered trees require woody vegetation for roosting and/or nesting and so would be negatively impacted upon by the clearing of such a large area of woodland.

32 Mr Shelly also gives some broad estimates of the number of individuals of birds, reptiles and frogs that could potentially have been lost by the clearing:

“To put the potential decrease of biodiversity from the loss of the subject vegetation into perspective, Bennett (1993) estimated that for every 100 hectares of woodland that is cleared, between 1,000-2,000 birds permanently lost their habitat. Ehmann and Cogger (1985) conservatively estimated a mean density of 250 reptiles and frogs per hectare throughout native vegetation in Australia. The majority of the above species would have been killed directly or indirectly (via displacement) by the clearing of the subject vegetation. From these admittedly very broad estimates, the loss of approximately 215 hectares of native woodland could lead to the eventual loss of 2,150-4,300 birds and 53,750 reptiles and frogs.”

33 In relation to threatened species, the eleven species of threatened fauna are:

Barking Owl ( Ninox connivens )
Painted Honeyeater ( Grantiella picta )
Black-chinned Honeyeater ( Melithreptus gularis gularis )
Superb Parrot ( Polytelis swainsonii )
Glossy Black Cockatoo ( Calyptorhynchus lathami )
Bush Stone-culew ( Burhinus grallarius )
Hooded Robin ( Melanodryas cucullata cucullata )
Diamond Firetail ( Stagonopleura guttata )
Grey-crowned Babbler ( Pomatostomus temporalis temporalis)
Yellow-bellied Sheathtail-bat ( Saccolaimus flaviventris )
Little Pied Bat ( Chalinolobus picatus )

and the one species of threatened flora is:

Shrub Sida ( Sida rohlenae ).

34 Mr Shelly expanded on the impact of the clearing on threatened fauna in these terms:

“In relation to threatened fauna, the clearing would have had the greatest effect on species with limited mobility, species dependent upon the tree canopy cover provided by woodland and those likely to have had breeding habitat within the subject land. In my opinion, these species would include the Little Pied Bat, Yellow-bellied Sheathtail Bat, Barking Owl, Diamond Firetail, Grey-crowned Babbler and Hooded Robin. In addition, the loss of patches of Belah from across the property will have significantly reduced the prime food source for the Glossy Black Cockatoo as it is known to feed almost exclusively on Belah cones on the western plains.
It is my opinion that the clearing of native vegetation on the land in question has had the following effect on population of the eleven threatened fauna species listed previously, with particular impacts on the seven species listed above:
· removed a significant area of known habitat, and
· removed habitat for threatened species inadequately represented in conservation reserves in the region, and

· being an activity which is recognised as a Key Threatening Process under the Threatened Species Conservation Act 1995 (NSW Scientific Committee 2001).

The clearing has removed some remnants of native vegetation and significantly reduced the size of several others in a district that is moderately fragmented by development, thus significantly reducing the ‘stepping stone’ value of remaining habitat for wildlife to traverse the local region. In addition, it is my opinion that the overall extent of the remnants on the property prior to clearing would have been large enough to support breeding populations of most threatened species if they were present as they were close enough to be used by highly mobile species as the one territory. The clearing would have had a negative effect on local threatened species populations as it caused further removal and fragmentation of their habitat. I consider that the magnitude of this effect would have been sufficient to be considered a likely significant impact under the seven-part test”.

35 Mr Rae contested that the number of trees cleared was as high as had been suggested by the prosecutor. He gave oral evidence endeavouring to estimate the number of trees he and his employee might have cleared and their proximity to one another. The defendant’s submission was that the clearing was selective and not broadscale, and hence of lesser environmental impact.

36 However, such evidence and submissions do not provide an effective rebuttal to Mr Shelly’s evidence of the extent and significance of environmental harm caused by the clearing. This evidence is not dependent on a simple count of the number of trees.

37 The significance of the number of trees removed needs to be evaluated in the context of the vegetation type in which the trees occur. The vegetation types of woodland and open woodland, by definition, have lower average densities (numbers) of trees per hectare than forest vegetation types, and hence will have greater space between trees. Hence, removal of a particular number of trees over a given area will have materially different effects if the vegetation type is a woodland or open woodland than a forest; it may result in the total or almost total clearance of the land in a woodland or open woodland but only partial clearance in a forest.

38 The significance of the number of trees needs also to be evaluated by reference to the trees involved - their species, nature, age, ecological attributes, biological interactions and contribution to ecosystem functioning amongst other features – and the consequences caused by their removal. Mr Shelly’s evidence is that the areas cleared were woodlands with relatively intact woody vegetation. The clearing resulted in the almost total removal of woody vegetation (apart from isolated trees) from ten of the twelve areas that were previously of woodland or open woodland tree density. 155 hectares were cleared to an extent that only 5% of the trees that were formerly there remained. The clearing increased fragmentation, reduced vegetative connectivity and removed inadequately conserved vegetation communities, native vegetation important for maintenance of biodiversity and habitat of threatened species. Taking account of all of these factors, the effect of the clearance was similar to that of broadscale clearing, an outcome which the Act was intended to prevent (see s 3(b) of the Act).

39 I note a similar submission was made to, but rejected by, the court in Lamattina & Anor v Gould [2009] SASC 130 at [65]-[69].

40 I find the commission of the offence caused actual environmental harm of high seriousness. Such harm can be considered to be substantial and an aggravating factor in terms of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

41 Remediation for the environmental harm may be able to be achieved, to some degree, by Mr Rae carrying out remedial work pursuant to a direction dated 18 May 2009, issued by the Department under s 38 of the Act, which Mr Rae has accepted (as advised by Mr Rae’s solicitor, by letter to the Court dated 22 June 2009 enclosing the direction, which have been marked as an exhibit). The remedial works include fencing eight remediation areas for the purpose of excluding stock; removing stock from the fenced remediation areas; removing exotic species, commercial crops or non-native plant species from the remediation areas; and planting specified native species (Eucalyptus populnea, Casuarina cristata and Geijera parviflora) in the remediation areas. Mr Rae is also required to undertake monitoring, recording and reporting to the Department of Environment and Climate Change.

State of mind of the offender

42 The offence against s 12(1) of the Act is a strict liability offence and mens rea is not an element of the offence. Nevertheless, the state of mind of an offender at the time of the offence can have an effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Garrett v Freeman (No. 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68], [356]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [75]; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [69].

43 A large measure of premeditation will make an offence more serious than if it is committed on the spur of the moment: Morabito v The Queen (1992) 62 A Crim R 82 at 86; Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113.

44 Here, Mr Rae knew that the Native Vegetation Act applied to the property and that he needed to make application for, and to obtain consent under the Act to clear the native vegetation on the property. Mr Rae owned other properties in the area, including a property known as “Kirkwood”. Mr Rae had applied for and obtained consent under the Act to clear native vegetation on “Kirkwood”. He had also applied for consent to clear native vegetation on other land but had been refused. Mr Rae said he was concerned that if he made application to clear native vegetation on “Argrey” but was refused consent, then he would never be able to clear the native vegetation on the property. He wanted to clear the native vegetation to improve its farming capacity and hence the value of the property. The presence of the trees meant it had very low value for grazing. Clearing would open the land and improve its grazing and farming potential.

45 Mr Rae, therefore, made a deliberate decision to clear the native vegetation, without applying for and obtaining consent, in the knowledge that to do so was illegal. He hoped he would not be caught. Mr Rae said, that he realised from the time that the trees he had cleared were on the ground there was going to be a problem. He said that he wanted to get rid of the evidence by burning the trees. However, he had heard that he could not do so because there was a fire ban. Ultimately, he was caught because two neighbours reported him to the Department of Environment and Climate Change.

46 Mr Rae’s conduct in clearing the native vegetation was premeditated and intentionally carried out with knowledge of its illegality. This increases the objective seriousness of the offence.

Reasons for committing the offence

47 The criminality involved in the commission of offences is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 157 at 366; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [237]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [140] and Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [120].

48 The carrying out of an offence to make a profit or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environmental protection licence, increases the seriousness of the crime. Offenders should not profit from crime: Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [121].

49 In this case, Mr Rae was the owner and occupier of the property. Mr Rae perceived the native vegetation on the property to be a real impediment to his agricultural business. He deliberately decided to clear the native vegetation to improve the agricultural productivity and profits from the property and to improve its capital value. Such reasons for committing the offence increase its objective seriousness: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [141]; Bentley BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [238], [246]-[247], Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [78] and Pittwater Council v Scahill [2009] NSWLEC 12; (2009) LGERA 289 at [82].

Foreseeability and risk of harm

50 Having regard to the nature and extent of the clearing, and the native vegetation cleared, a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. The extent of foreseeability of harm is a relevant objective circumstance of the offence: Camilleri’s Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700.

51 Indeed, it is reasonable to infer that Mr Rae in fact foresaw the risk that clearing of native vegetation on the property was likely to cause harm to the environment. Mr Rae’s decision not to apply for consent was based on his concern that if he did so the Department of Environment and Climate Change might refuse consent, because the clearing of native vegetation on the land would cause unacceptable harm to the environment, and if that occurred he would then be unable to clear the native vegetation on the property in the future.

Practical measures to prevent risk of harm

52 Mr Rae could and should have refrained from clearing the native vegetation on the property unless and until development consent had been obtained authorising the clearing. That was the law, as Mr Rae well knew.

Control over causes

53 Mr Rae carried out and directed his employee to carry out the clearing of native vegetation on the property and therefore had control over the causes of harm to the environment.

Conclusion on objective circumstances

54 Having regard to the nature of the offence; the high maximum penalty; the high degree of harm to the environment; the pre-meditated and intentional commission of the offence with knowledge of its illegality; the commission of the offence to increase the profit and capital value to the offender; the foreseeability of risk of harm to the environment by reason of commission of the offence; the existence of practical measures to avoid that risk of harm; the control over the causes of harm to the environment, the offence should be considered to be of medium objective gravity.

Subjective circumstances of the defendant

55 Within the limits set by the objective gravity of the offence, the Court may take into account the favourable factors personal to the offender.

Lack of prior criminality

56 Mr Rae does not have any prior convictions for any environmental offences: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act.

Prior good character of offender

57 There is evidence that Mr Rae has otherwise been of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act. Two character references were tendered, one by Mr Richard Gemmell, a rural property specialist with Elders in Dubbo and Mr Ross Hubbard, the managing director of a farm equipment business, Claas NVI Harvest Centre. Mr Gemmell states that Mr Rae is “a very valuable, trustworthy and highly respected member of the Coonamble and broader community” who has been involved in many local organisations including the Coonamble Wool Co-Operative, the Agricultural Show Society and other local farming organisations. Mr Hubbard states that Mr Rae is “an honest and hardworking rural farming leader in his field”, with a love of the land and “a strong desire to see all aspects of agriculture prosper in the future”.

Plea of guilty

58 Mr Rae has pleaded guilty to the offence, a fact that the court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the Crimes (Sentencing Procedure) Act 1999. However, in determining the extent of any discount that should be given for a plea of guilty, the court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: see s 22(1)(b).

59 In this case, the first return of the summons was on 8 August 2008. The prosecutor was directed to file and serve all outstanding affidavits by 19 September 2008 and the matter was listed for plea or mention on 3 October 2008. On 3 October 2008, the Court made orders, by consent of the prosecutor and the defendant, extending the time for the prosecutor to file and serve all further evidence to 17 October 2008 and listing the matter for further mention on 31 October 2008. On 31 October 2008, the defendant’s solicitor indicated that a plea of guilty was anticipated but because of the defendant being in Coonamble, a longer time was needed for consultation. The Court granted the extra time and adjourned the matter to 28 November 2008 before the List Judge. The defendant entered a plea of guilty on 28 November 2008.

60 The prosecutor submits that as a result of the delay in the defendant entering a plea of guilty of some 16 weeks, between the first return of the summons on 8 August 2008 to 28 November 2008, the defendant should not be afforded the full discount of 25% for the utilitarian value of the plea of guilty. The defendant submits that part of the reason for the delay was that there were discussions between the prosecutor and defendant concerning particulars of the charge, namely the precise area alleged to be cleared.

61 The issue of delay in entering a plea of guilty and its effect on the utilitarian value of the plea to the criminal justice system has been canvassed in the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [154]-[160], judgments in the last year or so of the Court of Criminal Appeal in Sullivan v R; Skillin v R [2008] NSWCCA 296 at [16]-[17] and R v Borkowski [2009] NSWCCA 102 at [32] and in recent judgments of this Court, by Biscoe J in Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 at [94]-[101] and Lloyd J in Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 at [76]-[89].

62 These cases emphasise that the timing of the plea is a critical factor; a plea entered at the earliest possible opportunity has more significant utilitarian benefit, and should attract a higher discount, than a plea entered at a later stage. Section 22(1)(b) of the Crimes (Sentencing Procedure) Act1999 requires the sentencing court to take into account not only the fact that the offender has pleaded guilty but also “when the offender pleaded guilty or indicated an intention to plead guilty”. Notwithstanding statements by the High Court in cases such as Cameron v R [2002] HCA 6; (2002) 209 CLR 339 placing a lesser importance on the timing of the plea, sentencing courts in New South Wales are required to give full force and effect to s 22 in accordance with its terms and to follow R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383: see R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 at [68].

63 In this case, the defendant did not enter a plea of guilty for 16 weeks after the first return of the summons and did not indicate an intention to plead guilty for 12 weeks afterwards. The fact that the prosecutor had not filed and served all of the evidence upon which it wished to rely, including on sentence, is not a justification by itself for an offender to delay indicating an intention to enter or entering a plea of guilty. As noted in the cases referred to above, if an offender chooses to wait to see what is all of the evidence the prosecutor is going to rely on before deciding whether to plead guilty or not, the utilitarian value of the plea is reduced. Generally the reason for the delay in the plea is irrelevant because, if a plea is not forthcoming, the utilitarian value is reduced: R v Borkowski [2009] NSWCCA 102 at [32(8)]. Hence, in this case, the desire of the defendant to negotiate particulars of the charge relating to area cleared, in order to obtain a legitimate forensic advantage, may be understandable but it still delayed the plea for many months and reduced the utilitarian value of the plea to the criminal justice system.

64 In these circumstances, the discount to be afforded for the utilitarian value of the plea of guilty should not be the maximum of 25%, but rather should be 20%.

Contrition and remorse

65 Mr Rae gave evidence orally in court. He expressed his regret for his conduct. He admitted that he had done the wrong thing, that it was very foolish. He assured the Court that “certainly won’t do it again”. Mr Rae said that he has “gone through hell over this” and it was affecting him. Mr Rae accepted that he should take action to rectify, to some extent, the harm caused by his clearing of native vegetation on the property. He has accepted the obligation to carry out the remedial work the subject of the direction under s 38 of the Act. The consequence of carrying out this work will be that areas will be rehabilitated and excluded from agricultural production. There will be a material cost to Mr Rae associated with carrying out the remedial work and having land excluded from agricultural production.

66 I find that Mr Rae is remorseful for his actions, has accepted responsibility for his actions and has acknowledged the environmental harm caused by his actions and will carry out remedial work to make partial reparation for such harm: s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. These factors make it less likely that Mr Rae will re-offend in the future: s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999.

Assistance to authorities

67 After the clearing was reported to the Department of Environment and Climate Change, and officers had investigated the clearing, the Department endeavoured to contact Mr Rae. For a period of time Mr Rae did not respond to their calls. However in June 2008, Mr Rae did voluntarily agree to participate in an interview and made full and frank admissions in the interview. Mr Rae has co-operated since then, including by agreeing to statements of facts and evidence.

Payment of prosector’s costs

68 Mr Rae has agreed to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

Consistency in sentencing

69 A relevant consideration in sentencing is the ascertainment of a general pattern of sentencing by criminal courts for offences such as the offence under consideration. The task of a sentencing court is to pursue the ideal of even-handedness in the manner of sentencing: R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107.

70 However, care must be taken in the task of achieving consistency. There is always a difficulty in attempting to compare the penalty in one case with a penalty in another case because of the wide divergence of facts and circumstances: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365. Each case is different but one case does not demonstrate the limits of a sentencing court’s discretion: R v Stahl [1999] NSWCCA 160 at [10]; Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312; Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79].

71 To assist in ascertaining the pattern of sentencing for an offence and achieving consistency in sentencing, reference may be made to the sentencing statistics in the Judicial Information Research System (JIRS) maintained by the Judicial Commission of New South Wales. This system was extended in 2008 to include sentences for environmental offences. The system records sentences imposed by reference to the particular offence, a range of objective circumstances of the offence and subjective circumstances of the offender, and allows direct access to the reasons for judgment.

72 Sentencing statistics are a useful tool, but are not an end in themselves. Discriminating care must be exercised when using sentencing statistics. First, sentencing statistics do not determine what is the range or the permissible range of sentences for the case at hand. They only record, as an historical fact, a general pattern of sentencing at that particular point of time: R v Lawson (1997) 142 FLR 323 at 324.

73 Secondly, sentencing statistics do not define or set the upper limit of the range for a crime; the upper limit of the sentence is in fact the maximum set by Parliament. As Grove J noted in R v Hayes [2001] NSWCCA 410 at [15],

“If the upper limit of the statistical range is treated as reserved for the worst case or the worst offenders then persistent selection of sentences for others within that range will inevitably reduce the upper figure.”

This would be contrary to Parliament’s intention as expressed in the maximum penalty.

74 Thirdly, it is not the Court’s function to sentence at the median range of sentences handed down over a period of time: R v AEM [2002] NSWCCA 58 at [116]. The median is a useful statistical measure to understand the distribution of sentences, but it is not a sentencing outcome to be pursued. Notwithstanding the advent of computerised sentencing statistics, the sentencing court still needs “to look with discriminating care at the particular circumstances, objective and subjective, particular to each individual case”: R v Shorten, unreported 10 September 1997 NSWCCA, Sully J.

75 Fourthly, discrimination is also required when looking at the sentences that shape the statistics and the range. If the early sentences imposed for an offence are wrong (are too low or too high), they may have influenced subsequent sentences. As Hulme J, with whom Bell J and Shaw JJ agreed said in R v Derbas [2003] NSWCCA 44 at [33]:

“[Statistics] tend to be self perpetuating, in that as soon as the first few cases suggest a particular figure or range, other judges are urged and there is a tendency to follow that figure or range. If that early figure or range is wrong, the fact that is later often followed does not make it right.”

76 With these cautionary remarks in mind, I turn to consider the sentencing statistics provided on the JIRS sentencing database for offences of clearing native vegetation contrary to law.

77 For the offence against s 12(1) of the Native Vegetation Act 2003, the offence in the present case, there has been only one case to date, that of Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256. 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. 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 of the 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 & Anor; Director General of Department of Land and Water Conservation 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 1974 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 of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 and Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297, 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 communities. 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 1997. 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 2003.

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) [2004] FCA 1317; (2004) 136 LGERA 89 and Minister for the Environment, Heritage and the Arts v Lamattina [2009] FCA 753.

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] FCAFC 128; (2005) 144 FCR 388; 143 LGERA 1.

91 In Lamattina, the area cleared was 73.4 hectares and had a significant effect on the habitat of the Red-tailed Black Cockatoo, a listed threatened species. Mansfield J imposed a civil pecuniary penalty of $220,000 on the corporation and made an order for costs. In Lamattina, the clearing of the native vegetation also constituted an offence against s 26 of the Native Vegetation Act 1991 (SA). Both the corporation and an individual were charged with offences against the South Australian Act for clearing not only the area of 73.4 hectares that was the subject of the federal prosecution but also a further area of 274.8 hectares. The corporate defendant was fined in total $68,000 for the offences and the individual was fined $51,000: see Lamattina & Anor v Gould [2009] SASC 130.

Synthesising the objective and subjective circumstances of the offence

92 I take into account the objective circumstances of the offence, as mitigated by the subjective circumstances of Mr Rae. I also take into account the existing pattern of sentencing, making allowances for the differences in the particular circumstances, objective and subjective, between those cases and the present case. I take account of the need to impose a sentence that achieves the purpose of denouncing the conduct of Mr Rae, ensuring Mr Rae is adequately punished for the offence, making Mr Rae accountable for his actions, recognising the harm done to the environment by commission of the offence and, in particular, preventing crime by deterring other persons from committing similar offences.

93 Synthesising these factors, I consider that an appropriate penalty for the offence is a fine of $200,000. This figure should be discounted by 20% for the utilitarian value of the plea of guilty, which results in a fine of $160,000. In addition, Mr Rae should be ordered under s 257B of the Criminal Procedure Act 1986 (NSW) to pay the prosecutor’s costs of the proceedings as agreed or assessed under s 257G of that Act.

94 Accordingly, the Court orders:

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

2. The defendant is fined the sum of $160,000.

3. The defendant is to pay the prosecutor’s costs of the proceedings as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).