Director General of the Department of Land & Water Conservation v Stanley Arthur Jones [1998] Nswlec 51 (1 April 1998)

[1998] NSWLEC 51

Land and Environment Court

of New South Wales

CITATION:	DIRECTOR GENERAL OF THE DEPARTMENT OF LAND & WATER CONSERVATION v STANLEY ARTHUR JONES [1998] NSWLEC 51 (1 April 1998) [1998] NSWLEC 67
PARTIES:	DIRECTOR GENERAL OF THE DEPARTMENT OF LAND & WATER CONSERVATION v STANLEY ARTHUR JONES [1998] NSWLEC 51 (1 April 1998)
FILE NUMBER(S):	50067 of 1997
CORAM:	Lloyd J
KEY ISSUES:	:- Environmental protection - offences and penalties - clearing of land - plea of guilty - penalty
LEGISLATION CITED:	Land and Environment Court Act 1979, ss 76(2), 125 Crimes Act 1900, ss 439, 442B Native Vegetation Conservation Act 1997
CASES CITED:
DATES OF HEARING:	1 April 1998
EX TEMPORE JUDGMENT DATE :	04/01/1998
LEGAL REPRESENTATIVES:	I S Lloyd QC I V Knight, Crown

JUDGMENT:

HIS HONOUR: The defendant has pleaded guilty to an offence against s 76(2) of the Land and Environment Court Act 1979, which offence is also constituted by reading with that section, s 125 of the same Act.

The offence to which he has pleaded guilty is that between about 27 December 1996 and 5 January 1997, he cleared native vegetation on a property known as AAberfeldie@ in the Parish of Markham, County of Jamison

without the development consent of the prosecutor as required by State Environmental Planning Policy number 46 - Protection and Management of Native Vegetation.

Although State Environmental Planning policy number 46 has since been repealed, it has been replaced by the coming into force of the Native Vegetation Conservation Act 1997, which commenced on 1 January 1998.

The defendant is not the owner of the property which was cleared. The owner of that property engaged the defendant, who is a clearing contractor, to clear the land on his behalf. The defendant was apparently unaware that there was a need to obtain consent to the clearing of native vegetation on the scale which occurred. Neither was he told by the owner, Mr Graham Cameron, that consent was required.

The area cleared is extensive, comprising some 35 hectares and I am satisfied by the evidence that there was considerable environmental harm caused by that clearing. I am informed that the vegetation cleared was reasonably thick and comprised a Coolabah dominant species. Separate proceedings have been brought against the owner. Those proceedings have been stood over for hearing on a plea of guilty. In the course of those proceedings, the Prosecutor will be seeking rehabilitation of the cleared land.

There is a number of matters which must be taken into account in considering the question of penalty. Firstly as required by section 439 of the Crimes Act 1900 I am required to take into account the fact that the defendant has pleaded guilty and must reduce the sentence that would otherwise have been imposed. In the present case, the defendant always indicated that he would plead guilty and offered assistance in the prosecution of the offence against the land owner. In that respect I am also required by s 442B of the Crimes Act to take into account the assistance offered; in particular the significance and usefulness of that assistance, the timeliness of the assistance and amongst other things the likelihood of the offender committing further offences.

I am satisfied that the defendant in this case has had a prior good record and in addition to co-operating fully with the Prosecutor, he is both contrite and remorseful. It seems that the real omission on the part of the defendant was a failure to inquire of the landowner as to whether or not the necessary consent had been obtained. I must also keep in mind the fact that the offence is regarded by the legislature as a serious one, it having prescribed a penalty of $100,000, being the penalty which existed at the time of the commission of this offence.

I am also mindful that the area cleared was extensive and the extent of the harm thereby caused was significant. Even although the defendant was instructed by the landowner to do the clearing, the offence was voluntary in the sense that the clearing was, on the part of the defendant, for the purpose of his own financial gain.

I am also satisfied from the references that have been tendered on his behalf, that the court can be confident that the defendant will not re-offend and that he is a person of otherwise good character. I am also mindful of the fact that the offence is one which is relatively serious. Although, in this case, there is no need for a specific deterrent, there remains a need for a general deterrent. That is to say, there is an onus on clearing contractors to ensure that any necessary consent under the legislation is in place. For that reason I do not propose to adopt Mr Cameron's submission that this is an appropriate case for the application of s 556A of the Crimes Act . However I note that the defendant is already to be penalised in a monetary fashion in one respect, in that he has agreed to pay costs in the sum of $7000 to the Prosecutor.

Bearing in mind all those factors, I am of the view that a monetary penalty should be imposed. However in view of the mitigating circumstances to which I have referred, that monetary penalty will be relatively low and certainly much lower than would ordinarily be the case. I therefore propose to make the following orders:

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

2. The defendant must pay a penalty in the sum of $3000.

3. The defendant must pay the Prosecutor's costs in the sum of $7000 but is allowed 12 months to pay those costs.

4. The exhibits may be returned.

I certify that this and the 3 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated