Environment Protection Authority v Forestry Corporation of New South Wales

[2022] NSWLEC 70

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70

Hearing dates:

5 and 6 April 2022

Date of orders:

09 June 2022

Decision date:

09 June 2022

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [212]

Catchwords:

ENVIRONMENTAL OFFENCES — Sentence — Conducting forestry activities in exclusion zones contrary to conditions of biodiversity conservation licence — Determination of objective seriousness — Statutory scheme undermined by offences — Extent of harm to environment — De Simoni principle — Substantial harm — Practical measures available to prevent, control, abate or mitigate harm — Control over causes where conduct by contractors – No evidence that offences committed intentionally or for any reason — “Rolled-up” koala offence in medium range of objective seriousness — Rainforest and warm temperate rainforest offences in low to moderate range of objective seriousness — Determination of subjective circumstances — Record of prior convictions — Pleas of guilty – Assistance to authorities — Good character and low likelihood of similar reoffending — Need for general and specific deterrence — Consistency in sentencing — Publication orders made — Costs as agreed — Unable to make order for payment to Biodiversity Conservation Fund — Determination of appropriate penalties — Principle of totality applied — Order for moiety made — Defendant convicted and fined of four offences

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), ss 1.3, 2.1, 2.4, 2.10, 2.14, 12.22, 12.8, 13.12, 13.25

Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW), cl 4(1)

Civil Procedure Act 1986 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1, ss 3A, 21A

Criminal Procedure Act 1986 (NSW), s 257B

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Fines Act 1996 (NSW), s 122

Forestry Act 2012 (NSW), Pt 5B, ss 5, 10, 69L, Sch 3, cl 10

Forestry and National Park Estate Act 1998 (NSW)

Protection of the Environment Operations Act 1997 (NSW), s 250

Threatened Species Conservation Act 1995 (NSW)

Cases Cited:

AB v R [2013] NSWCCA 273

Axer v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chemaissem v R [2021] NSWCCA 66

Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241

Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291

Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102

Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278

Environment Protection Authority v Forestry Commission of New South Wales [1998] NSWLEC 149

Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751

Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101

Environment Protection Authority v Queanbeyan City Council(No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17

Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84

Harrison v Perdikaris [2015] NSWLEC 99

Johnston v R [2017] NSWCCA 53

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v DP [2019] NSWCCA 55

R v Hraichie (No 3) [2019] NSWSC 973

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Taysavang v R; Lee v R [2017] NSWCCA 146

Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7

Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1

Texts Cited:

Forestry Corporation, Standard Operating Procedure: Exclusion Zone Boundary Management – SOP 2N, (September 2017)

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
Forestry Corporation of New South Wales (Defendant)

Representation:

Counsel:
G Wright SC with C Brain (Prosecutor)
I J Hemmings SC with J McKelvey (Defendant)

Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
Forestry Corporation of New South Wales (Defendant)

File Number(s):

2020/00284082; 2020/00284084; 2020/00284085; 2020/00284086

Publication restriction:

Nil

Judgment

1. The defendant, Forestry Corporation of New South Wales (‘Forestry Corporation’), has pleaded guilty to four offences against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) (‘BC Act’) concerning the felling of nine trees and constructing and operating two snig tracks while conducting forestry operations in Wild Cattle Creek State Forest (‘Forest’) in northeast NSW, in contravention of conditions of its Biodiversity Conservation Licence (‘BCL’), being:

1. One combined offence that between 12 and 19 April 2018 (but in any event before 4 October 2018), Forestry Corporation constructed or operated two snig tracks within a “Koala high use area exclusion zone” (‘KEZ’); and on or about 23 to 24 April 2018 (but in any event before 4 October 2018), Forestry Corporation felled four trees within the KEZ, contravention of condition 5.1(a)(i) of its BCL (‘Koala offence’).

2. One offence that on or about 21 February 2018, but in any event before 4 October 2018, Forestry Corporation felled two trees in an area of mapped “Rainforest” in contravention of condition 5.4(a) of its BCL (‘RA1 offence’).

3. One offence that on or about 14 September 2018, but in any event before 7 November 2018, Forestry Corporation felled one tree in an area of mapped “Rainforest” in contravention of condition 5.4(a) of its BCL (‘RA2 offence’).

4. One offence that on or about 11 June 2018, but in any event before 7 November 2018, Forestry Corporation felled two trees in an exclusion zone around an area of mapped “Warm Temperate Rainforest” in contravention of condition 5.4(a) of its BCL (‘WTRF offence’).

2. Forestry Corporation entered pleas of guilty to the above charges. A sentence hearing was held over two days on 5 and 6 April 2022 and now the Court’s task is to determine and impose appropriate sentences on Forestry Corporation for the four offences it has committed.

3. The maximum penalties for the offences are $440,000 for the Koala offence (as a ‘Tier 3 offence’); and $110,000 for each of the RA1 offence and the RA2 offence (collectively, ‘Rainforest offences’), and the WTRF offence (as ‘Tier 4 offences’).

4. I have determined that Forestry Corporation should be convicted for each of the four offences and fined $60,000 for the Koala offence; $27,000 for the RA1 offence; $27,000 for the RA2 offence; and $21,600 for the WTRF offence. I have determined that it is appropriate to make two additional orders, being first, an order under ss 13.25(1)(a) and (b) of the BC Act, that Forestry Corporation place an advertisement in specified newspapers, social media pages and Forestry Corporation’s annual report publicising the sentences of the Court for the commission of the four offences; and second, an order pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) (‘CP Act’) that Forestry Corporation pay the prosecutor’s costs of the proceedings for the four offences for which it has been convicted.

The legislative regime creating the offences

5. Section 2.14(4) of the BC Act creates an offence of contravening a condition of a BCL, as follows:

2.14   Conditions of licences

…

(4)   A person who contravenes a condition of a biodiversity conservation licence is guilty of an offence.

Maximum penalty—

(a)   in the case of a contravention that relates to an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or

(b)   in the case of a contravention that relates to an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or

(c)   in any other case—Tier 4 monetary penalty.

…

6. Forestry Corporation’s liability for the offences arises as a landholder under s 13.29(1) of the BC Act which provides:

(1)   In any criminal or civil proceedings under this Act, the landholder of any land on which an offence or contravention is alleged to have occurred is taken to have carried out the activity constituting the alleged offence or contravention unless it is established that—

(a)   the activity was carried out by another person, and

(b)   the landholder did not cause or permit the other person to carry out the activity.

Background

7. An understanding of the background facts (particularly the nature and manner of the forestry operations undertaken by Forestry Corporation and its contractors) provides context to consider a number of issues that arise in this sentence hearing. The factual narrative in this section is mostly undisputed and is contained in a statement of agreed facts on sentence (‘SOAF’) prepared by the parties and filed 1 April 2021. Further salient factual matters are recorded in my consideration of the extensive expert evidence and the parties’ submissions later in this judgment.

8. At all material times, Forestry Corporation, which is constituted under s 5 of the Forestry Act 2012 (NSW) (‘Forestry Act’), was permitted to undertake forestry operations in a number of State forests, including the Forest, under the Upper North East Integrated Forestry Operations Approval (‘UNE IFOA’) and the Lower North East Integrated Forestry Operations Approval (‘LNE IFOA’) granted under the Forestry and National Park Estate Act 1998 (NSW) (‘FNPE Act’).

9. On 1 January 2013, the Forestry Act commenced. Clause 10(2) of Sch 3 of the Forestry Act provides that an Integrated Forestry Operations Approval (‘IFOA’) in force under the FNPE Act before the commencement of cl 10 is an IFOA in force under Pt 5B of the Forestry Act.

10. At Appendix B of the UNE IFOA and the LNE IFOA are terms of a licence under the (now repealed) Threatened Species Conservation Act 1995 (NSW), otherwise known as a Threatened Species Licence (‘TSL’), which applied to forestry operations in the areas described by each of the IFOAs.

11. By cl 4(1)(a) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW), a TSL is a BCL for the purposes of the BC Act. The licences (in each IFOA) are referred to as a TSL or BCL for present purposes.

12. The Koala offence, the RA2 offence and the WTRF offence are each subject to the UNE IFOA. The RA1 offence is subject to the LNE IFOA.

13. Condition 5.1 “Operational Requirements” of each TSL relevantly provides:

“a)   For all exclusion zones implemented under the conditions of this licence the following must apply (except where otherwise indicated in this licence):

i.   All specified forestry activities are prohibited in exclusion zones. …

ii.  Trees must not be felled into exclusion zones (except where expressly permitted by another condition of this licence). …

…

…

b)   The construction, reopening and operation of tracks used for the purposes of snigging and roads in exclusion zones implemented under the following conditions …, 6.14 Koala … is only permitted with the prior written approval of the NPWS [defined as New South Wales National Parks and Wildlife Service]. Matters that [Forestry Corporation] must address in order to seek NPWS approval are detailed in Schedule 6 of this licence.

…

f)    All exclusion zone and buffer zone boundaries must be marked in the field, except where specified forestry activities will not come within 50 metres of such boundaries. The outer edge of lines shown on the map is considered to represent the boundary of the mapped feature when marking the feature in the field.

…

h)   Marking-up must be conducted at least 100 metres in advance of harvesting operations, … (unless otherwise specified in this licence) so relevant exclusion and buffer zones can be implemented prior to harvesting … occurring.

…”

14. The expression “[s]pecified forestry activities” is defined in each TSL, relevantly, to include “[t]imber felling” and the “[c]onstruction and operation of snig tracks”.

15. Condition 5.4 “Rainforest” of each TSL relevantly provides:

“a)  Specified forestry activities, … are prohibited within all areas of Rainforest and exclusion zones around warm temperate Rainforest.

b)   A 20 metres wide exclusion zone must be implemented around all areas of warm temperate [R]ainforest, as defined by RN 17 and mapped on [Forestry Corporation] Forest Type maps.

…”

16. The term “Rainforest” is defined in each TSL by reference to the areas depicted in spatial data layers in a particular subdirectory located on a CD Rom for the particular IFOA and as further described in corresponding metadata.

17. Condition 6.14 “Koala Phascolarctos cinereus” of each TSL relevantly provides:

“a)   The following must apply wherever Koala mark-up searches have identified Koala high use areas or Koala intermediate use areas:

i.   Specified forestry activities are prohibited within all Koala high use areas. A 20 metres wide exclusion zone must be implemented around the boundary of Koala high use areas.

…

b)   The felling of trees into a Koala high use areas is prohibited. …

…”

18. A “Koala high use area” is defined in each TSL to mean an area where any of the following features are located:

“i.   Three out of any ten consecutive trees inspected are found to have Koala scats beneath them; OR

ii.    a sighting of Koala; OR

iii.   a tree with more than 20 Koala scats beneath; OR

iv.   any trees with Koala scats of two distinctly different sizes beneath;

AND

i.    where the subsequent star search locates at least an additional three out of any ten consecutive trees inspected as having Koala scats beneath them.”

19. An “Exclusion zone” is defined in each TSL to mean “a protective area where specified forestry activities, unless excepted, are prohibited under the terms of this licence”.

20. Thus, each of the KEZ, the Rainforest and the buffer around the warm temperate rainforest were “exclusion zones” under each TSL. The Rainforest exclusion zones are referred to as RA1 and RA2.

21. Forestry Corporation engaged independent contractors, Greensill Brothers Pty Ltd (‘Greensill’) and Cover It Pty Ltd (‘Cover It’), to perform forestry activities on its behalf in the Forest. Each contractor was engaged under a separate contract and operated in distinct areas of the Forest.

22. For present purposes, the relationship between Forestry Corporation and each contractor is summarised as follows:

1. Forestry Corporation agreed to grant each contractor access to the area of supply, and each contractor agreed to carry out “harvesting operations”, defined to include “the selection and felling of trees”.

2. Each contractor was required to only harvest “Log Products” within areas specified in “Harvesting Plans” prepared by Forestry Corporation. A “Harvesting Plan” is defined to mean “a plan prepared by Forestry Corporation which contains site specific information to be used, harvest plan maps and instructions to be followed when carrying out Harvesting Operations”.

3. The contract with Greensill required it to provide and install Apple iPads in machinery for monitoring harvest area boundary locations and install on each iPad any software specified by Forestry Corporation. The contract with Cover It required it to cooperate with Forestry Corporation in the installation, use, management and maintenance of Global Positioning System (‘GPS’) software; and Forestry Corporation was to supply and meet hardware, software and installation costs associated with the use of GPS.

4. During “Harvesting Operations” and at the request of Forestry Corporation, each contractor was required to locate some, or all of the harvest boundaries referred to in the Harvesting Plan using GPS equipment, including handheld GPS devices for manual harvesting operations.

5. Forestry Corporation was required to provide Harvesting Plans in an electronic form depicting the harvesting boundaries, which would allow each contractor to locate the harvest boundaries.

6. Each contractor was required to select “the trees to fell and/or to retain in the course of the Harvesting Operations in accordance with the conditions specified in the relevant Harvesting Plan or as otherwise directed by Forestry Corporation”.

7. It was each contractor’s responsibility to ensure personnel were properly trained; with Forestry Corporation providing training in relation to matters including “Harvest Boundary location using GPS”.

23. Notwithstanding the terms of the agreements, Forestry Corporation provided each contractor with iPads loaded with Forestry Corporation’s “MapApp” software.

24. The Harvesting Plan includes a “Harvest Plan Operational Map” (‘HPOM’), to which each contractor was to refer when determining where to conduct their forestry activities.

25. The procedure for boundary management is set out in Forestry Corporation’s Standard Operating Procedure: Exclusion Zone Boundary Management – SOP 2N, issued September 2017 (‘SOP’), which applied to the UNE IFOA and the LNE IFOA and, relevantly, provides that:

1. Exclusion zone boundaries should be located using a GPS device with a current approved HPOM displayed in conjunction with the GPS’s current location.

2. Specified exclusion zone feature types (including koala high use areas and unmapped rainforest areas) must be located and marked in the field prior to harvesting.

3. Training and experience in the use of GPS devices is required before locating boundaries with such devices. GPS devices using the MapApp have an accuracy of +/- 5m and ~90% of points are within +/-10m of the true location.

4. Contractors should “give the GPS unit time to locate itself at the commencement of work before…moving about”; “keep an eye on GPS accuracy information”; be aware that the current position displayed on the GPS device may be a little behind their actual movements; and that they may need to stop to let the current location catch up with them as they approach a critical boundary.

5. The boundary location for rainforest and mapped koala high use areas should be located using GPS by each harvesting contractor without infield marking subject to induction and proficiency in the use of GPS devices; awareness of boundary types and management conditions; and a process to ensure each contractor has available (and monitors) the current approved HPOM. Forestry Corporation will recognise the inherent GPS accuracy issues of locating boundaries in the field using GPS when determining contractor compliance”.

26. Forestry Corporation trains its contractors in the SOP, GPS system, and in the use of the MapApp. However, apart from the SOP instructing each contractor that the GPS had a specified margin of error, there were no instructions to leave any margin for error between exclusion zone boundaries and the harvesting area.

27. Forestry Corporation had previously received feedback from contractors about its GPS system. Contractors had logged issues in the MapApp about signal strength when using the GPS system in February, March, July, August and September 2018; and Forestry Corporation also records “track log data” for its harvesters and provides this data to the Environment Protection Authority (‘EPA’).

28. The EPA conducted an investigation into the offences and interviewed employees of Greensill and Cover It, and a corporate representative of Forestry Corporation; and obtained information and records from Forestry Corporation in response to a statutory notice issued 16 April 2019.

Koala offence

29. The Koala offence involves the felling of four trees and the construction or operation of two snig tracks, in the KEZ.

30. On 19 February 2018, David McLaughlin, an employee of Forestry Corporation was tasked with searching for and identifying koala high use areas while preparing for “harvesting operations” within several areas of the Forest. While undertaking this inspection he found koala scats of two different sizes under a Tallowwood tree within an area of the Forest (which were subsequently recorded in the NSW “BioNet Atlas” database by Matt Dobson, an ecologist with Forestry Corporation). Forestry Corporation then identified a koala high use area by conducting a koala “star search” which found five other trees with koala scats beneath them. This triggered the implementation of a 20m exclusion zone around the identified koala high use area and an “additional protection” area to the required KEZ to improve “connectivity to adjacent excluded areas” in the Forest. Forestry Corporation established a KEZ in the Forest prior to the offence and recorded this in ‘version 3’ of its HPOM (‘HPOM v3’).

31. Between about 12 and 19 April 2018 (but in any event before 4 October 2018) an employee of Greensill, constructed or operated two snig tracks within the KEZ. On or about 23 to 24 April 2018 (but in any event before 4 October 2018), another employee of Greensill felled four trees in the KEZ being located 1.1m, 1.6m, 10.9m and 13.2m respectively within the boundary of the KEZ. The diameters of the four remaining cut stumps were 940mm, 650mm, 760mm and 550mm respectively.

32. In summary, the Koala offence breaches resulted from the following circumstances: first, Forestry Corporation drafted a version of the HPOM, being HPOM v3, which identified the KEZ; second, an email notifying Forestry Corporation’s Harvesting Supervisor and Harvesting Coordinator of HPOM v3 did not send – such that it remained in an “outbox”; third, the email was then deleted by Microsoft Outlook; fourth, having not received notification of HPOM v3, Forestry Corporation’s Harvesting Supervisor and Harvesting Coordinator did not inform each contractor about the existence of HPOM v3; and fifth, each contractor continued to rely on a previous version of the HPOM, which did not show the KEZ.

RA1 offence

33. The RA1 offence involves the felling of two trees in an area of Rainforest as defined by the TSL, and marked as “RA1” on the HPOM, on or about 21 February 2018, but in any event before 4 October 2018, by an employee of Greensill. The trees were felled 8.5m and 3.5m within the boundary of RA1 and the remaining cut stumps had diameters of 1,050mm and 825mm respectively. In an interview with the EPA, the employee stated that he did not remember the area specifically but thinks that the trees were on the boundary of rainforest and his GPS likely told him that he was not within the rainforest.

RA2 offence

34. The RA2 offence similarly involves the felling of one tree in an area of Rainforest as defined by the TSL, and marked as “RA2” on the HPOM, on or about 14 September 2018, but in any event before 7 November 2018, by an employee of Cover It. The tree was felled 20m within the boundary of RA2 and the remaining stump measured 1,210mm in diameter. In an interview with the EPA, the employee stated that he usually “double-checks” his GPS device before felling a tree; that he recalled walking around to familiarise himself with the area and used the MapApp to identify that the tree in question was within the net harvest area; that he retrieved his iPhone/MapApp device after felling the tree and found that the GPS device was “tracking” in an exclusion zone; and that he flagged a GPS issue with Forestry Corporation.

WTRF offence

35. The WTRF offence relates to the felling of two trees in a warm temperate rainforest exclusion zone marked on the HPOM, on or about 11 June 2011, but in any event before 7 November 2018, by an employee of Cover It. The trees were felled 2.7m and 9.5m within the exclusion zone boundary and the remaining cut stumps had diameters of 735mm and 705mm respectively. In an interview with the EPA, the employee stated that the margin of GPS error “changes daily, I don’t know how”; that he normally waits “a couple of minutes” when he turns the GPS on; and that he usually manages the exclusion zone boundaries with GPS errors by turning his iPhone or iPad on, checking it a couple times, and waiting for it to “settle itself down”.

Evidence

36. In addition to the SOAF, the Court received written and oral evidence. The prosecutor called expert evidence from Mathew Samuel Crowther (wildlife ecologist) as to harm caused and harm likely to be caused by the Koala offence, and Robert Michael Kooyman (plant ecologist) in relation to harm caused and likely to be caused by the offences.

37. Forestry Corporation called expert evidence from Elizabeth Margaret Ashby (ecologist – koala expert) and Travis Christopher Peake (ecologist – flora and fauna expert).

38. Forestry Corporation also read the affidavits of Anshul Sajjan Chaudhary (Acting Chief Executive Officer, Forestry Corporation); David Michael McLaughlin (Forestry Technician, Forestry Corporation) and James Stewart Jaggers (Operations Planning Manager – South, Forestry Corporation).

Sentencing principles

39. In my consideration of the sentencing principles to follow, I am conscious that although the sentencing hearing in relation to all offences proceeded concurrently, Forestry Corporation is to be sentenced for four separate offences.

40. Forestry Corporation is to be sentenced in accordance with Div 1 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’). In fixing the appropriate penalty for the offences, s 3A of the Sentencing Act relevantly states:

3A   Purposes of sentencing

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

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

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

…

(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.

41. It is accepted that the purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is the need for the Court, through the sentence it imposes, to denounce the conduct, to hold the offender accountable for its actions, and to ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291 at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [168].

42. Section 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offender, including factors in aggravation under s 21A(2) and factors in mitigation under s 21A(3). Relevant to the present offences are:

21A   Aggravating, mitigating and other factors in sentencing

…

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(d)   the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

…

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

…

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a)   the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b)   the offence was not part of a planned or organised criminal activity,

…

(g)   the offender is unlikely to re-offend,

…

(i)    the remorse shown by the offender for the offence, but only if—

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

(m)   assistance by the offender to law enforcement authorities (as provided by section 23),

…

…

43. As each of the offences is created by the BC Act, the Court is also required to consider the matters set out in s 13.12 of the BC Act which relevantly provides:

13.12   Sentencing for offence—matters to be considered

(1)   In imposing a penalty for an offence against this Act or the regulations (or a native vegetation offence), the court is to take into consideration the following (so far as they are relevant)—

(a)   the extent of the harm caused or likely to be caused by the commission of the offence,

(b)   the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c)   the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,

(d)   the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

…

…

44. Pursuant to s 13.12(2) of the BC Act, the Court may also take into consideration any other matters it considers relevant.

45. Despite the pleas of guilty to each offence, the prosecutor still carries the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing; and for mitigating factors, the onus lies upon the offender on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

46. An instinctive synthesis method is to be applied, requiring the Court to identify the facts relevant to the sentences and to weigh their significance to arrive at each of the appropriate sentences: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (‘Markarian’).

47. The sentences that are to be imposed must be proportionate to both the objective seriousness or gravity of each of the offences committed by Forestry Corporation and the subjective circumstances of Forestry Corporation as the offender: Veen v The Queen (1979) 143 CLR 458 at 490; [1979] HCA 7.

Objective seriousness of the offences

48. The objective circumstances of relevance to the present offences include: the nature of the offences; the maximum penalty under the statute which establishes the offences; the extent of harm caused by the offences; the practical measures that may be taken by the offender to prevent, control, abate or mitigate the harm; the foreseeability of the risk of harm caused or likely to be caused by the offences; the offender’s control over the causes giving rise to the offences; the offender’s intentions in committing the offences; and the offender’s reasons for committing the offences.

The nature of the offences

49. The objective seriousness of an environmental offence is informed by the nature of the statutory provision (contravention of which constitutes the offence), the purpose of the statutory provision (understood according to consideration of the statute’s objects), and the provision’s place in the statutory scheme. Offences that undermine the integrity of a regulatory system are objectively serious.

50. Section 1.3 of the BC Act provides as follows:

1.3   Purpose of Act

The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular—

(a)   to conserve biodiversity at bioregional and State scales, and

(b)   to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and

…

(d)   to support biodiversity conservation in the context of a changing climate, and

…

(g)   to regulate human interactions with wildlife by applying a risk-based approach, and

(h)   to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and

…

51. The prosecutor submits, and I accept, that ss 10 and 69L of the Forestry Act form part of the relevant statutory scheme because the BC Act creates an offence for a contravention of a licence condition, or a BCL itself; the BCL forms part of each IFOA; and each IFOA is regulated by the Forestry Act. The prosecutor submits that Forestry Corporation is required to give equal importance to its principal objective under the Forestry Act; and that the principles of ecologically sustainable development and forest management are relevant to the extent that the science is not absolute in relation to environmental impacts. Those provisions are as follows:

10   Objectives of Forestry Corporation

(1)   The principal objectives of the Corporation are as follows—

(a)   to be a successful business and, to this end—

(i)   to operate at least as efficiently as any comparable businesses, and

(ii)  to maximise the net worth of the State’s investment in the Corporation,

(b)   to have regard to the interests of the community in which it operates,

(c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991,

(d)   to contribute towards regional development and decentralisation,

(e)   to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it or otherwise under its control or management.

(2)   Each of the principal objectives of the Corporation is of equal importance.

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69L   Purpose of integrated forestry operations approvals

(1)   The purpose of this Part is to provide a framework for forestry operations to which this Part applies—

(a)   that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and

(b) that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.

(2)   In this section—

principles of ecologically sustainable forest management means the following—

(a)   maintaining forest values for future and present generations, including—

(i)   forest biological diversity, and

(ii)   the productive capacity and sustainability of forest ecosystems, and

(iii)   the health and vitality of native forest ecosystems, and

(iv)   soil and water quality, and

(v)    the contribution of native forests to global geochemical cycles, and

(vi)   the long term social and economic benefits of native forests, and

(vii)   natural heritage values,

(b)   ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations,

(c)   providing incentives for voluntary compliance, capacity building and adoption of best-practice standards,

(d)   applying best-available knowledge and adaptive management processes to deliver best-practice forest management,

(e) applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.

52. The prosecutor submits that by conducting prohibited activities within exclusion zones, other than in accordance with the conditions to which each TSL was subject, Forestry Corporation undermined the statutory scheme. The prosecutor submits, first, that TSLs set out the minimum measures to protect threatened species and their habitat from timber harvesting activities; second, that condition 5.1(a)(i) is important in that it prohibits intrusion upon and disturbance of protected habitat, and relies upon conditions 5.1(f) and (h) (noted at [13] above) which address the marking of boundaries to ensure those responsible for timber harvesting are best able to comply with the prohibition; and third, that Forestry Corporation had reason to foresee the potential consequences of relying on the GPS rather than physical markings in the field and to prepare a system for dealing with the identification and marking of exclusion zone boundaries where conditions 5.1(f) and (h) foreshadow the possibility of harm or likely harm caused by the inaccurate identification of boundaries.

53. Forestry Corporation submits that Appendix B to each of the UNE IFOA and the LNE IFOA authorises the conduct of forestry operations in the region that are likely to result in harm to a threatened species of protected fauna, the picking of a threatened species or protected plant, or damage to the habitat of a threatened species; and that licences, subject to conditions, provide a defence to offences under the BC Act.

54. Forestry Corporation further submits that the statutory scheme under the BC Act contains three types of offences. Namely, s 2.1 provides for an offence by persons who harm or attempt to harm a threatened species which is confined (pursuant to s 1.6) to “harm to animal” itself rather than harm by changing the animal’s habitat; s 2.4 is a different category of offence which (where “damage” is defined in s 1.6 as “damage habitat”) concerns harm to habitat in the course of unlawful activity; s 2.10 of the BC Act provides a defence to causing harm to an animal or its habitat if conduct is in accordance with a BCL; and each of those offences is a Div 1 breach of the BC Act. In contrast, it submits that s 2.14 (relevant to each of the four offences), as a Div 3 breach, is merely an offence for contravening a BCL condition and does not contain an element of harm; and the effect of subss 2.14(5) and (6) is that an offender can only be convicted of either a Div 1 or a Div 3 charge.

55. These provisions referred to by Forestry Corporation are as follows (noting s 2.14 is extracted at [5] above):

2.1   Harming animals

(1)   A person who harms or attempts to harm—

(a)   an animal that is of a threatened species, or

(b)   an animal that is part of a threatened ecological community, or

(c)   a protected animal,

is guilty of an offence.

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…

2.4   Damaging habitat of threatened species or ecological community

(1)   A person—

(a)   who damages any habitat of a threatened species or threatened ecological community, and

(b)   who knows that it is the habitat of any such species or community,

is guilty of an offence.

Maximum penalty—Tier 1 monetary penalty or imprisonment for 2 years, or both.

(2)   A person who damages habitat of a threatened species or threatened ecological community in the course of carrying out any unlawful activity is taken to know that it was habitat of that kind unless the person establishes that the person did not know that it was habitat of that kind.

2.10   Acts authorised by biodiversity conservation licence

It is a defence to a prosecution for an offence under Division 1 if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a biodiversity conservation licence under Division 3.

56. I consider that the offence created by s 2.14 of the BC Act has an important role in the overall statutory scheme of the BC Act in preventing contravention of that Act and its objectives. As noted earlier (at [51]), I accept the prosecutor’s submission that ss 10 and 69L of the Forestry Act also form part of the relevant statutory scheme because the BC Act creates an offence for a contravention of a condition of a BCL made under the Forestry Act.

56. I find that Forestry Corporation’s conduct in relation to each of the offences which amounted to undertaking prohibited activities within exclusion zones other than in accordance with the conditions pursuant to which it was subject has undermined the statutory scheme. It is clear that TSLs and/or BCLs provide measures to protect threatened species and their habitat from timber harvesting activities, in particular, condition 5.1(a)(i) (in relation the Koala offence) – which prohibits all forestry activities in the exclusion zone and foreshadows through conditions 5.1(f) and (h) (as submitted by the prosecutor) the possibility of harm or likely harm to be caused by the inaccurate identification of boundaries.

57. While I note Forestry Corporation’s submission that the statutory scheme contains three “types” of offences (as noted at [54] above), and that the offence created by s 2.14 of the BC Act does not have, as an element, the requirement for harm (a matter I consider later in this judgment), this does not detract from my finding that the offence created by s 2.14 has an important role in the overall statutory scheme and any breach of conditions undermines the protective regulatory scheme contained in the BC Act and the Forestry Act. Moreover, licences permitting harmful conduct, issued subject to conditions, viewed within a broader scheme of offences prohibiting harmful conduct, play an important role in regulating harmful conduct while giving effect to the objectives of the BC Act: Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 at [60].

Maximum penalties

59. As noted at [3] above, the maximum penalty for the Koala offence is $440,000 and the maximum penalty for each of the RA1 offence, the RA2 offence, and the WTRF offence is $110,000.

60. The maximum penalties reflect the public expression by Parliament, and the community, of the gravity of the offences: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. They also provide a sentencing yardstick and a basis for comparison between the case before the court and the worst case: Markarian. The Court is “to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called”: R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].

Extent of harm

61. The extent of the harm caused or likely to be caused to the environment by the commission of the offences is relevant to the objective seriousness of the offences (BC Act, s 13.12(1)(a)), and the causing of any “substantial” injury, loss or damage caused by the commission of the offences is an aggravating factor (Sentencing Act, s 21A(2)(g)). The word “likely” means “a real and not remote chance, rather than more probable than not (in the sense of being more than a 50% chance)”: Harrison v Perdikaris [2015] NSWLEC 99 (‘Perdikaris’) at [68].

62. There was dispute in relation to the extent of harm in respect of the offences which requires consideration of the expert evidence.

Prosecutor’s evidence

63. Dr Crowther, an associate professor in wildlife ecology and koala management, gave evidence of harm in relation to the Koala offence having reviewed maps of the KEZ; geographical locations and dimensions of the felled trees; photos of the remaining cut stumps; a video taken of the KEZ by EPA officers on 22 October 2020; and a review of the BioNet records for koalas in the mid North Coast of NSW (and particularly the Forest).

64. In relation to the koala population in mid-northeast NSW, Dr Crowther states that there are few reliable estimates of koala distribution and abundance; that the mid North Coast of NSW is the area with the highest (although declining – particularly after the 2019/2020 bushfires) koala populations in NSW; and that there are extensive BioNet records of koalas and koala scats observations on the mid North Coast of NSW, including within the Forest, from the past 10 years, especially in 2017 (when 20 live observations and 67 scat records were made) prior to the Koala offence. On that basis, he opines that the area has relatively high koala abundance compared to other parts of NSW particularly during 2018, the period relevant to the Koala offence.

65. In relation to the significance of exclusions zones, Dr Crowther opines that their purpose is to protect areas that contain feed trees or breeding sites from forestry operations and prevent short-term harm to individuals and the habitat of the local koala population; that the KEZ was certainly used by koalas, as indicated by the BioNet records and Forestry Corporation’s surveys (which found the scats of a mother koala and joey, indicating that the area was koala breeding habitat); and, noting that female koalas have small home ranges with a limited number of trees for food and shelter, the Koala offence affected individual koalas within the KEZ and is likely to affect the broader koala population.

66. In relation to the extent of harm caused or likely to be caused by the Koala offence, Dr Crowther opines that there was “more than likely” impact to the koala population as a whole in circumstances where scats indicated the presence of a mother koala and joey within the KEZ, first, because reproductive females are the most important contributor to koala population growth; second, because the reduction of habitat size and quality was highly likely to have had an adverse impact on the breeding female and offspring; third, because it is very likely that the trees (being large trees) felled were used for shelter; fourth, because the four felled trees were close together they were likely to be within a single home range and their loss would have a larger negative impact on individual koalas (and would reduce the koala carrying capacity of the area) than the loss of an individual tree where koalas generally stick to their own limited home range; and fifth, because the construction or operation of the two snig tracks would have created further disturbance to the habitat and could have made the koalas more susceptible to predators when moving along the ground.

67. In cross-examination, Dr Crowther accepted that he had no evidence that koalas used any of the four trees felled and that his opinion was based on data collected elsewhere that koalas tend to use most trees for feed or shelter; and that none of the literature or data identifies the consequence of the loss of a tree frequented by a koala.

68. In response to Ms Ashby’s expert evidence (noted at [86]-[89] below), Dr Crowther opines, first, that although no koalas were spotted in the felled trees at the time of the Koala offence, this does not mean no koalas (either in or nearby the trees) were harmed or could have been harmed, because koalas are difficult to observe; second, whilst the four trees across 0.3ha do not represent a large area of an individual’s home range, they do represent large shelter and feed trees that would be used by koalas, and if the trees were Sydney Blue Gums, although they are not preferred feed trees (as Ms Ashby opines), they were most certainly used, and are reported as species of significant use by koalas in northern NSW by the NSW Office of Environment and Heritage (‘OEH’); and fourth, Ms Ashby’s assumption that the habitat available and the number of koalas it can support was “in the mid-range of the data available for other north coast populations” is not reliable, useful or helpful where (as Ms Ashby notes) no koala population data is presented.

69. In response to Mr Peake’s evidence that the harm caused by the Koala offence is of minor significance because the combined area of the Forest’s compartments is 921ha, Dr Crowther opines that the total area of forestry activities is not in issue, it is the size of the removed trees, their significance for food and shelter, and the fact that koalas often revisit trees within their home range, that are relevant.

70. In cross-examination, Dr Crowther accepted that the Tallowwood and a further five trees (noted at [30] above) under which scats were also found, had not been logged; that there is no evidence of the finding of scats under any of the four trees felled; and that the four trees felled were secondary browse trees.

71. In relation to a koala’s home range, Dr Crowther accepted that a home range able to sustain the needs of a koala may vary from as little as 5ha up to 23ha (as opined by Ms Ashby) depending on the quality of its trees and habitat; and opined that his evidence of home range size (and that koalas generally stick to their own limited home range) was based upon his experience and an application of literature to the specific circumstances and he could not (and did not) opine what the exact home range was at the KEZ without it being measured, but considered that home ranges (particularly of females) in areas such as the subject forest type, tend to be smaller.

72. Dr Crowther maintained that the felling of four trees could have an impact on the sufficiency of food and shelter for koalas (especially breeding animals in the KEZ) because koalas are limited in their diet; however, he accepted that koalas, due to their complex microbiomes, do not use the same tree all the time because they must use mixed species of eucalypt (which have different concentrations of toxins), and that there may be some (up to 18%) overlap of trees along the edges of the home ranges of different koala individuals (however opined that as koalas are not social animals they would not be in the same place at the same time). Dr Crowther nonetheless opined that he could express a pattern as to the impact of the loss of four trees based on an extrapolation of information regarding populations of koalas in other home ranges in NSW.

73. Dr Crowther concluded that the area represented koala breeding habitat based on the two different sizes of the scats found below the Tallowwood tree, and the fact that koalas are not social, and that koalas are not selective in their breeding habitat (in comparison to owls which return to the same tree), rather they select where they stay and raise their young based on whether the habitat can sustain a joey. He opined that simply because there were no scats discovered under the four trees felled does not mean that koalas had not used those trees as breeding habitat.

74. In re-examination, Dr Crowther confirmed that he and others had collected data about home ranges; that his evidence contained a table of data which informed his opinion that the mid North Coast of NSW is an area of relatively high koala abundance for NSW, particularly during the period relevant to these proceedings; and that he had formed his opinion that the felling of the four trees likely had an adverse impact on the local koala population based on the tabulated data.

75. Dr Kooyman, a plant ecologist gave evidence in relation to the ecology at the sites of the Rainforest offences and the WTRF offence, and the harm caused or likely to be caused by those offences; and practical measures that could have been taken to prevent, control, abate or mitigate harm.

76. To determine the impacts of the offences, Dr Kooyman established a 30m x 20m plot-based sample that included the location of felled trees at the site of each of the RA1 offence, the RA2 offence, and the WTRF offence, which enabled him to characterise the vegetation, species diversity and abundance – a process he described as “an abundance – weighted plot-based methodology”. To establish the impact of logging and fire on species present and the forest types more generally, and to differentiate between causal factors, he “inventoried” tree species and vegetation at the sites based on his plot sample and allocated an “abundance weighting” (based on a modified measure called “Braun-Blanquet”, which he opines is more useful for characterising forests than a list of species which measures species diversity) to represent the frequency of occurrence relative to the size class of each species. By identifying species from bark, residual material or cut stems, and recording physical and photographic details, he identifies post-logging (pre-fire) vegetation structure and composition, present vegetation, and determines pre-disturbance vegetation.

77. In relation to RA1, Dr Kooyman found first, that RA1 is less well-developed and less complex than RA2 and the warm temperate rainforest exclusion zone and should be described as redeveloping rainforest which he nonetheless considers to be rainforest; second, that the two Tallowwood trees felled and removed had produced a canopy gap; and third, that there were signs of regeneration (including of weeds). He opines that the area he was instructed had been disturbed by the RA1 offence, being 630m², was an underestimate; and that there was a minor change evident in plant species composition as a result of the RA1 offence.

78. In relation to RA2, Dr Kooyman found first, that a large Brush Box had been felled into, and its main stem removed from, the mapped rainforest area; second, that there was evidence of relatively hot fire and regeneration of orthodox and rainforest seeds and sprouting of mature rainforest trees; and third, that RA2 contained well-developed warm temperate rainforest.

79. In relation to the warm temperate rainforest exclusion zone, Dr Kooyman found first, that the area was dominated by rainforest; second, that there was evidence of very hot fire impacts; third, that pre-fire and pre-logging, the area would have been dominated by warm temperate rainforest; and fourth, that several trees had been felled into, and removed from, the warm temperate rainforest buffer exclusion zone (which although he agreed in cross-examination was not in the rainforest, he maintained that the buffer included rainforest).

80. Dr Kooyman opines that the areas that he was instructed had been disturbed by the RA2 offence and the WTRF offence, being 930m² and 120m² respectively, were, again, underestimates; and that his abundance data indicates that there was a detectable change in the forest structure, particularly canopy cover, as a result of the felling and removal of large trees, but that the species diversity did not change. He opines that the RA2 offence and the WTRF offence each had a substantial impact because they removed large trees which were key elements of what made the area rainforest, opened the canopy, facilitated the invasion of weeds and fire-prone vegetation, and degraded the quality of habitat. In cross-examination, Dr Kooyman agreed (noting that the size of each sample plot was 600m²) that the plot within the warm temperate rainforest exclusion zone was bigger than the area disturbed by the WTRF offence; and that the RA2 plot was only a subset of the area disturbed by the RA2 offence.

81. In relation to each of the RA1 offence, the RA2 offence and the WTRF offence, Dr Kooyman opines that the felling of trees and reduction in rainforest area resulted in ecological impacts including loss of critical habitat and feed trees for wildlife (including the koala and greater glider); the creation of gaps in the forest canopy, with the potential for continuing rainforest die-back as a result; and the removal of tree seedling banks (which protect regenerative capacity) due to soil disturbance as trees hit the ground and due to machinery used in each area.

82. In terms of regenerative trajectory, Dr Kooyman opines that the felling of trees in the warm temperate rainforest exclusion zone would certainly have a deleterious effect on the rainforest in that it causes disruption and opens the edges of the rainforest, modifies micro-climates and causes drying, which exacerbates the potential for fire penetration into the warm temperate rainforest. He makes similar comments in relation to RA2 and RA1.

83. In response to Mr Peake’s evidence, that RA1 did not contain rainforest, and that the warm temperate rainforest exclusion zone was not dominated by warm temperate rainforest, Dr Kooyman opines first, that Mr Peake’s methodology does not provide an adequate ecological basis for interpretation compared to his own abundance-weighted plot-based methodology, which provides a detailed analysis of vegetation at all sites; second, that Mr Peake did not undertake detailed floristic sampling, provide an indication of species abundance, undertake any analysis, or provide data-informed sampling which could be replicated, compared to his own floristic data which provides clear support for the definition of the areas as rainforest; and third, that Mr Peake’s use of the word “ecotone” is “redundant”.

84. In relation to harm, Dr Kooyman disagrees with Mr Peake’s characterisation that each of the Koala offence, the Rainforest offences and the WTRF offence caused minimal harm in the context of harm to the larger area of forestry activities, and considers that the harm is in addition to those activities and further reduces the ecological value of what should have been retained habitat; and, further, that harm must be assessed in relation to the disturbance within the protected exclusion zone (and that the same disagreement applies to Ms Ashby’s opinion). Contrary to Mr Peake, Dr Kooyman also opines that the locations of the Rainforest offences and the WTRF offence will take centuries rather than decades to recover; and that the removal of tree seedling banks has a significant deleterious effect on the redevelopment of the forest at each site.

85. In response to Ms Ashby’s evidence, Dr Kooyman opines that the provisions within the BC Act and Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) for assessing harm do not apply as a measure or basis for evaluating harm, and that Ms Ashby has conflated the assessment process and definition of harm within those statutes with the present circumstances, where a different scale and definition of harm is applicable (where the issue is harm to areas of habitat allocated for protection, not harm to threatened species and ecological communities regionally).

Forestry Corporation’s evidence

86. In relation to harm resulting from the Koala offence, Ms Ashby gave evidence that the four trees felled were unlikely to have been used for foraging, although they may have been used for shelter, and that their removal had the potential to cause harm by removing forage and shelter habitat where the four trees were Sydney Blue Gum, which (although not a primary browse tree) is a species recorded by the OEH as having “documented significant use” by koalas.

87. In relation to the degree of harm, applying the impact assessment procedures within the BC Act and EPBC Act, Ms Ashby opines that it is unlikely that the Koala offence would result in a significant adverse impact to the local koala population.

88. Ms Ashby opines that the Koala offence is small in scale and unlikely to impact resident koalas in such a way as to adversely impact their life cycle to the point of threatening the viability of the local population. Ms Ashby opines that the additional fragmentation arising from the breach would not impede the local movement of koalas or effectively divide the population where only four canopy trees over 0.3ha were lost, creating a small and potentially navigable gap; and the larger additional exclusion zone is contiguous with an approximately 104ha compartment-wide exclusion zone (containing suitable habitat and koala high use areas) which is in turn connected to other compartments within the Forest. Although the four trees were important as a foraging source and as shelter, and the presence of scats indicates there was likely to have been a mother koala and joey in the KEZ in what can be defined as a breeding habitat, and that the trees were relatively large, Ms Ashby notes the following – the trees were not primary browse trees; no scats were observed beneath them; 17 other primary browse trees were recorded in the KEZ; koalas do not use their habitat in any identifiably special way while breeding; the felled trees represented a small part of the KEZ area of habitat valuable to a small number of resident koalas in the context of the Forest; and there are hundreds (if not thousands) of hectares of well-connected and suitable habitat available to the 140 individuals recorded within the local population. Additionally, although the Koala offence contributes to the “key threatening process” of “clearing native vegetation”, she concludes that the scale of impact is little more than might be expected to occur with natural treefall.

86. Ms Ashby further opines that the local koala population is unlikely to represent an “important population” and the Koala offence is unlikely to reduce the size of the population, the area of occupancy, or cause fragmentation. She opines that the offence was small in scale and occurred in habitat features that are not high value and are commonly available across the Forest; the offence is unlikely to disrupt any important stages of the breeding cycle of koalas to an appreciable degree; the temporary snig tracks of <100m do not provide additional access to predators (notably dogs) in circumstances where roads are already well-developed; the scale of the loss is insufficient to cause species decline by increasing the risk of koalas expressing the “Chlamydia pathogen”; and the area adjacent to the KEZ has been logged since the 1970s, yet koalas persist in the Forest and its surrounds.

87. In cross-examination, Ms Ashby accepted that she could not dispute Dr Crowther’s observations that koalas tend to stay in their home range; the home ranges of females are generally smaller than males; the trees felled were within the home range of a mother koala and joey whose scats were found beneath a Tallowwood tree (noting that the mother and joey would have been in the home range at all times); the trees may have been used for shelter; the home range within the subject forested area would tend to be smaller than an unforested area; the home range would have been of better quality and smaller prior to the offence compared to the post-logging of the four trees, and it is therefore possible that koalas would stray less far; the area was breeding habitat; female koalas probably choose areas to rear their young that fulfil their nutritional needs; and that the loss of four trees close together would have a larger negative impact on an individual koala than the loss of a single tree.

88. In relation to the construction of snig tracks, Ms Ashby accepted that the forest floor would have been opened up to some degree; there would be potential for an increased risk to, and predation of, koalas when moving between trees along the ground; and opined that the loss of the trees is of small impact in the overall context.

89. Mr Peake, a flora and fauna ecologist, gave evidence in relation to the whether the forest at the location of each offence was rainforest or warm temperate rainforest and the nature and extent of any harm caused.

90. In relation to the Koala offence, Mr Peake opines that the four trees felled were likely Sydney Blue Gum within a broadly occurring vegetation type of Tallowwood – Sydney Blue Gum (with ecotones on the borders of the KEZ); and states that within the KEZ he also recorded five Tallowwood (primary browse) trees, four Sydney Blue Gum (secondary browse) trees, and eight Forest Oak (secondary browse) trees. In relation to the area and nature of impact, Mr Peake opines that there are likely to have been later compounding effects from bushfire; while the habitat affected is of a general nature that supports koalas, the specific trees removed were secondary browse trees; while the Koala offence has caused harm to the environment, and likely to koala habitat, the loss of four trees and associated habitat is of minor consequence; and that the extent of harm caused by the offence is likely to be minimal because it took place during the implementation of a harvesting operation across a 921ha area of the Forest.

91. Mr Peake opines that the Rainforest offences and the WTRF offence took place within areas mapped as Viney Scrub, Sydney Blue Gum forest, and Eucalypt forest in RA1; Yellow Carabeen forest and Crabapple – Sassafras – Corkwood – Silver Sycamore forest in RA2; and Eucalypt forest in the warm temperate rainforest exclusion zone. He accepts and adopts Mr Henderson’s (an officer of the EPA) calculations of the area impacted by each offence being, 630m² for the RA1 offence, 930m² for the RA2 offence, and 120m² for the WTRF offence.

92. In relation to the RA1 offence, Mr Peake opines that the trees felled were likely Tallowwood species on or close to an ecotone between eucalypt-dominated forest and rainforest, although considers the overriding vegetation type to be Tallowwood – Sydney Blue Gum; and that it is more likely that the felled trees occurred within tall wet sclerophyll forest with a rainforest understorey, rather than in a rainforest, despite its occurrence within a mapped rainforest management zone.

93. In relation to the RA2 offence, Mr Peake opines that the tree felled was likely Brush Box species on or close to an ecotone between eucalypt-dominated forest and rainforest, although opines that it was more likely to be rainforest prior to the offence albeit heavily dominated by eucalypts – particularly Brush Box, Coachwood – Crabapple, or Tallowwood – Sydney Blue Gum. He accepts that the removal of a large Brush Box at RA2 occurred possibly on the margin or slightly within the boundary of warm temperate rainforest.

94. In relation to the WTRF offence, Mr Peake opines that the two felled trees were likely Sydney Blue Gum species; while they occur on, or close to, an ecotone between eucalypt-dominated forest and rainforest, it is more likely that the felled trees occurred within tall wet sclerophyll (eucalypt-dominated) forest with a rainforest understorey than within rainforest, despite their occurrence within a mapped warm temperate rainforest management zone; and that the overriding vegetation type prior to the offence was likely Tallowwood – Sydney Blue Gum.

95. While he agrees with Dr Kooyman’s opinion that the Rainforest offences and the WTRF offence caused ecological impacts, he opines that the extent of harm to the environment is minor because the 0.168ha area of impact is barely noticeable on the scale of the 921ha forestry compartments; the impacts (including creation of forest canopy gaps and deletion effects) are not dissimilar to the natural felling of trees due to storm activity or wood decay (although he clarified in cross-examination that his opinion did not take into account the removal of trees, and that this opinion did not assist with assessing harm and could be removed from his evidence without changing his findings); the canopy gaps created at the sites of the RA1 offence and the WTRF offence are likely to be minor given that the trees were felled within an area concurrently subject to logging; the koala and greater glider habitat at the site of the Rainforest offences and the WTRF offence is not listed as critical, and the loss of two trees likely to be Tallowwood being primary koala feed trees is very minor in impact considering the size of the Forest; and the loss of each tree seedling bank is likely to be minor even when harm is measured on a local scale.

96. Mr Peake further opines that the impacts are likely to be impermanent due to the limited extent of harm, the abundance of adjoining healthy vegetation, at least reasonable natural recovery over a period of 5 to 10 years, and the substantial replacement of the felled trees over several decades (although, in cross-examination he agreed this would be closer to a century), and in the context of likely historic, current and future repeated disturbances (including weeds and fire).

97. In cross-examination, Mr Peake agreed that RA1 did have characteristics of rainforest (if not pristine) and, therefore, that RA1 could be regarded as redeveloping rainforest as Dr Kooyman opines and he accepted that the warm temperate rainforest exclusion zone could be characterised as warm temperate rainforest (as opined by Dr Kooyman) and that it could have been potential koala habitat prior to logging.

98. In terms of his methodology, he accepted that his process was different to Dr Kooyman’s in that he had not undertaken a quantitative or semiquantitative assessment and did not use plots; and that he did not undertake measurements or observations of control plots. He did not agree that Dr Kooyman’s methodology was robust and more soundly based than his own, stating that Dr Kooyman had not laid out his assumptions clearly and had to conject what was possibly present pre-disturbance, and that Dr Kooyman’s approach, where he was comparing plots to each other, required “control” plots. Ultimately, Mr Peake agreed that he is not averse to the approach taken by Dr Kooyman, and that the difference between them is really the degree of harm they opine.

99. Mr Peake conceded that his opinion that the area of impact within RA1, RA2 and the warm temperate rainforest exclusion zone is barely noticeable in the context of the forestry compartment’s size is of no ecological relevance in itself, although he maintained that the extent of harm is still of minor consequence. Similarly, although agreeing that the KEZ was koala breeding habitat, he opined that the Koala offence was likely to have caused minimal harm because harvesting occurred across four compartments of the Forest which he opines has more ecological relevance because the compartments (being dominated by Eucalypts) could have provided habitat.

100. Although he agreed that the RA1, RA2 and the warm temperate rainforest exclusion zones serve an important purpose in diminishing harm to the environment; that harm should involve an assessment of damage to the exclusion zone areas, although he opined that the adjoining logging operations are relevant; and that the harm to the surrounding areas possibly both magnifies the harm to the exclusion zones and increases their value.

Prosecutor’s position

104. In relation to the Koala offence, the prosecutor emphasises Dr Crowther’s evidence that the felling of the large Eucalyptus trees and the construction or operation of snig tracks were highly likely to have had an adverse impact on koalas by reducing the size and quality of habitat, which may have forced koalas to move into other areas, or impacted the sufficiency of food and shelter thereby leading to lower body condition; that because the felled trees were close together and therefore likely to be within a single home range, their loss would have an impact on home ranges of individual koalas (especially considering the evidence of breeding habitat and that female koalas tend to have a small home range), and would reduce the carrying capacity for koalas in the area; that trees of the diameter felled take many years to grow and their loss cannot be mitigated with short-term planting or natural regrowth; and that the construction or operation of snig tracks would have created further disturbance to the habitat and may have made koalas more susceptible to predators when moving along the ground.

105. In light of Dr Crowther’s evidence, the prosecutor submits that the Court would find that the Koala offence caused substantial environmental harm (including reducing koala habitat) and that it is open for the Court to find actual or likely harm to the environment; and that the Court would accept Dr Crowther’s “highly relevant” evidence that the four trees were secondary browse trees (used for shelter or food) within the home range of, and used by, a mother koala and joey (and therefore koala habitat), and that their felling would have a major impact on breeding animals because of their limited diet.

106. Particularly in relation to the Koala offence, but also in relation to the Rainforest offences and the WTRF offence, the prosecutor submits that “harm” for the purposes of s 13.12(1)(a)-(c) of the BC Act and s 21A(2)(g) of the Sentencing Act, refers to harm to the environment generally, including to habitat, compared to s 1.6 of the BC Act which defines “harm an animal” and is a separate discrete issue when considering harm to an animal itself. The prosecutor, therefore, rebuts Forestry Corporation’s submission that the Court is constrained by the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (‘De Simoni’) in its interpretation of harm and any consideration of harm to koala habitat as an aggravating factor to increase the objective seriousness of the Koala offence, and submits that the principle merely prevents the Court from punishing an offender for any additional or separate charge.

107. In relation to the RA1 offence, the prosecutor relies upon Dr Kooyman’s evidence that a 630m² area of RA1 was affected by logging; that RA1 contained rainforest that was less well-developed and less complex than the site of the RA2 offence and the WTRF offence; that RA1 is characterised as redeveloping rainforest in the process of long-term regeneration following earlier disturbance; and that the logging in RA1 had only a minor influence on plant species composition with little change in less diverse vegetation present, but that significant shifts in species composition (diversity) and abundance was caused following logging and bushfire. The prosecutor also submits that where one of the trees felled was 8.5m within the boundary of the exclusion zone, while the Court cannot determine whether the contractor did not properly check the boundary shown on the HPOM, it is doubtful that its felling was caused by a GPS issue.

108. In relation to the RA2 offence and the WTRF offence, the prosecutor relies upon Dr Kooyman’s evidence that areas of at least 930m² of RA2 and 120m² of the warm temperate rainforest exclusion zone were affected by felling; that each were dominated by rainforest with wet sclerophyll forest in upslope areas; and that there was a detectable change in forest structure following the felling and removal of trees, in particular the loss of canopy cover. The prosecutor also submits that where the tree felled within RA2 was a significant distance of 20m within the rainforest boundary, it is doubtful that its felling was caused by a GPS issue.

109. In relation to each of the RA1 offence, the RA2 offence and the WTRF offence, the prosecutor relies upon Dr Kooyman’s evidence that ecological impacts included: the loss of critical habitat and feed trees for wildlife including the koala and greater glider; the disturbance caused by a loss of continuous rainforest canopy induced rainforest dieback, which may lead to further tree death from continuing decline of the canopy and degradation of rainforest habitat quality and micro-climate features; and removal of each tree seedling bank (especially shade tolerant seedlings) which protect the regenerative capacity and survival of warm temperate rainforest and other rainforest types.

110. The prosecutor submits that Mr Peake conceded that the area of RA1 was arguably rainforest and that the exclusion zone around the warm temperate rainforest (including the buffer exclusion zone) is arguably warm temperate rainforest, and that the Court would make a finding beyond reasonable doubt that RA2 is rainforest where Mr Peake conceded that it “probably” was rainforest; the Court would not find on the balance of probabilities that the area mapped as rainforest was not actually rainforest; that Mr Peake agreed that there was harm to the environment; that the proper assessment of harm caused by the offences is to determine harm to the exclusion zones because of the prohibition in the BCL rather than (as Ms Ashby and Mr Peake did) in relation to the overall context of the considerable impacts of logging in the surrounding areas of the Forest.

111. The prosecutor submits that it is open to the Court to take into account opinions about the increased risk from fire due to the logging which would have increased woody debris on the forest floor (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 (‘Bentley’) at [175]), and therefore relies upon Dr Kooyman’s evidence that: the post-fire regeneration within RA1 includes more dryer sclerophyllous elements which will persist and increase the risk of more frequent and intense fires and delay redevelopment of rainforest; the felling in RA2 disturbed adjacent areas of transition to wet sclerophyll forest and increased the likelihood of micro-climate changes, removed understorey components by machinery working inside the rainforest edges, delayed regeneration and increased the potential for fire to move into the rainforest; and the felling in warm temperate rainforest by the WTRF offence disturbed forest edges, opening the forest, modifying micro-climates and causing drying, exacerbated the potential for fire penetration, and blocked rainforest redevelopment.

Forestry Corporation’s position

112. Forestry Corporation submits that the Court would not find that the Koala offence caused “substantial” harm as provided for in s 21A of the Sentencing Act. Forestry Corporation submits that although the Koala offence is a Tier 3 offence because the condition the subject of the charge relates to koalas (in that the offence occurred in a KEZ or within koala habitat), it has not been charged with a “harm” offence in relation to koalas (under s 2.1 of the BC Act) or for the unlawful picking of plants forming part of the koala habitat (under s 2.2 of the BC Act). Forestry Corporation again points to the three “types” of offences (noted at [54] above), and submits that the De Simoni principle, that an offender cannot be convicted of an offence with which it is not charged, applies.

113. As I understand it, Forestry Corporation submits, first, that the “harm” referred to in s 13.12(1)(a) of the BC Act is only “harm to animal”, being the koala, as defined in s 1.6, and not harm to the koala caused by damage to its habitat, and that the Court would not be able to find beyond reasonable doubt that the Koala offence caused, or was likely to cause, harm to koalas where Dr Crowther opines that there was a possibility that a koala was in the tree or in the area of felling at the time of the offence; and second, that pursuant to the De Simoni principle, the Court cannot consider damage to habitat because damage to habitat is an element relevant to a Tier 1 offence under s 2.4 of the BC Act which is more serious in penalty and subject.

114. Forestry Corporation submits that the Court cannot find beyond reasonable doubt that the Koala offence had a measurable, material, or quantifiable impact on koala health (and therefore harm) where there is no understanding of the abundance of koalas or the quantity and quality of feed trees available to comprehend any increased competition for feed in the home range, where there is no specific significance of the loss of the four trees because koalas are not selective breeders (in terms of the landscape they breed in), and where the KEZ itself is not triggered because of an abundance of primary or secondary browse trees, but because the koala scats were found under secondary browse trees.

115. Forestry Corporation further submits that Dr Crowther’s evidence (that there was the possibility of harm to a koala if one was in the tree or in the area) cannot satisfy the Court beyond reasonable doubt that the Koala offence caused actual or likely harm to koalas where Dr Crowther gave the impression of small home ranges (especially for females) without attempting to identify what he meant, which makes it difficult to understand the significance of the loss of the four trees in a home range of unknown size; where the Court must consider the loss of the four trees in the context that koalas use almost every tree in their home range and that the four trees were secondary browse trees; and the prosecutor has failed to adduce evidence of koala scats beneath the felled trees.

116. In relation to the WTRF offence, Forestry Corporation accepts that the logging of two trees results in harm, however, submits that it occurred within the buffer exclusion zone around the warm temperate rainforest; the buffer is not rainforest; and the purpose of the buffer is to protect the warm temperate rainforest not the buffer itself. Furthermore, the Court cannot be satisfied beyond reasonable doubt that warm temperate rainforest was harmed where Dr Kooyman was not instructed to assess whether the protected warm temperate rainforest was impacted; he was unable to identify where his survey plots (in relation to the Rainforest offences and the WTRF offence) were; his dendrogram simply compared plots within RA1, RA2 and the warm temperate rainforest exclusion zone; and his plots do not assist the Court in determining whether harm has been caused to rainforest because each focused upon the logged area without drawing comparison with other parts of the Forest.

[68] The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court’s sentence, the offender is given his just desserts.”

183. I consider that, especially in relation to offences against s 2.14(4) of the BC Act which forms a critical aspect of the regulatory framework for environmental protection, there must be an element of general deterrence, and therefore more than nominal fine (Bentley at [140]), embedded in the determination of the appropriate sentences to be imposed on Forestry Corporation for each offence to ensure that those conducting forestry activities operate in a manner that is compliant with licence conditions and which does not harm the environment.

Specific deterrence

184. The prosecutor submits that there is a need for specific deterrence in relation to each of the offences because, first, Forestry Corporation continues to operate substantial forestry operations and there is an ongoing risk of harm to threatened species and ecological communities; second, the penalty imposed must serve to reinforce Forestry Corporation’s responsibility to ensure that its activities are in compliance with its licence conditions and do not result in unauthorised harm; and third, where Forestry Corporation has a history of prior convictions for environmental offences.

185. Forestry Corporation submits that its reactions to the offences (as deposed by Mr Chaudhary and Mr Jaggers) are relevant to deterrence and that the Court would impose sentences which reflect that the Koala offence was caused by a computer error, rather than a systematic failure on Forestry Corporation’s part; and that since the commission of the offences, Forestry Corporation has adopted a system which automatically updates the MapApp to synchronise with iPads with the latest HPOM, and has changed to infield marking despite the new CIFOA regime not requiring infield marking.

186. I accept the prosecutor’s submission that specific deterrence is needed. Although I consider, as noted above, that Forestry Corporation has shown remorse for the offences and that this is relevant to personal deterrence, I also consider that Forestry Corporation’s prior convictions are relevant to the need for specific deterrence and that the penalty imposed must serve to reinforce Forestry Corporation’s responsibility to ensure that its activities are undertaken in a manner that complies with its BCL to undertake forestry activities.

Consistency in sentencing

187. 186   While the ascertainment of a general pattern of sentences for similar offences assists in fair and reasonable sentencing, reference to penalties in previous cases comes with difficulty because of the wide divergence of facts and circumstances (Axer v Environment Protection Authority (1993) 113 LGERA 357 at 365) and because each decision turns upon the facts unique to that case. The Court should nonetheless seek to impose sentences which are consistent with any patterns of sentencing for like offences.

188. The prosecutor, while noting that there are no strictly comparable sentencing decisions, referred the Court to three cases which “may provide some assistance” being, Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132; Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101; and Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102.

189. In Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132, the Court was concerned with a breach of a condition of a TSL contrary to s 133(4) of the National Parks and Wildlife Act 1974 (NSW) (‘NPW Act’) and the Court found that Forestry Corporation had failed to conduct a thorough search for “rocky outcrops” as required by its TSL which, as a result, caused a rocky outcrop not to be identified and protected as required by an exclusion zone. The Court found that the offence was not committed intentionally, recklessly, or negligently and that there were no further practical steps that could have been taken to avoid the breach. In the circumstances, the Court found that the offence fell within the middle range of objective seriousness and, having provided a 20% discount for an early plea of guilty, imposed a fine of $8,000 (in circumstances where the maximum penalty was $22,000). The Court noted that although there had been no actual harm, Forestry Corporation’s failure to research, record, and mark-up areas in accordance with the TSL, undermined the protective regulatory scheme contained in the relevant statutory scheme.

190. In Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101, the Court was concerned with two offences, a breach of a condition of a TSL contrary to s 133(4) of the NPW Act as well as pollution of waters under s 120 of the Protection of the Environment Operations Act 1997 (NSW) in circumstances where the Forestry Commission of NSW (as Forestry Corporation was then known) had carried out a bushfire hazard reduction burn within protection zones in Mogo State Forest and as a result, ash and other prescribed pollutants affected waters. The Court found that the Forestry Commission of NSW’s state of mind was “negligent”, that the harm was “foreseeable”, and that there were practical measures available to avoid the harm. Both offences were found to be of low to moderate objective gravity and the Court, having provided a 25% discount for early pleas of guilty, imposed a penalty in the sum of $7,000 in relation to the first offence (which at that time had a maximum penalty of $22,000); and the sum of $28,000 in relation to the pollution of waters offence (which at that time had a maximum penalty of $1,000,000).

191. In Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102, the Court was concerned with a breach of a condition of a TSL again, contrary to s 133(4) of the NPW Act, where the Forestry Commission of NSW had carried out a specified forestry activity, being bushfire hazard reduction burning in an exclusion zone in the Nullica State Forest. Having regard to the nature of the offence, the lower maximum penalty of $22,000, the extent of likely harm to the environment, the practical measures able to be undertaken to prevent the harm, the reasonable foreseeability of harm likely to be caused by the commission of the offence, and the extent to which the Forestry Commission of NSW had control of the causes, the Court found that the offence committed was of low to moderate objective gravity and, having provided a 25% discount for an early guilty plea, imposed a fine of $5,600. The Court found that while the evidence did not disclose any long-term harm to the environment, the potential for a short-term adverse impact on the Smoky Mouse habitat was very real and the environmental harm was found to be in the low to moderate range.

192. I do not consider that the above three cases are comparable due to the different circumstances and, more relevantly, the different maximum penalties and the fact that the Koala offence is a rolled-up offence which includes more than one episode of criminal conduct (R v Hraichie (No 3) [2019] NSWSC 973 at [222]). Moreover, I consider that the maximum penalty set by Parliament for each of the present offences is a more appropriate yardstick against which the sentences should be measured, compared to the fines imposed in past cases: Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 (‘Brummell’) at [100].

Publication orders

193. The publication of information relating to environmental offences and their repercussions is relevant to sentencing as it enhances public perception and the deterrent effect of the sentence imposed, particularly applicable to corporate offenders: Waste Recycling at [242]; Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 at [58]-[59].

194. The prosecutor seeks publication orders pursuant to subss 13.25(1)(a) and (b) of the BC Act that Forestry Corporation publishes, a notice in the form detailed in the prosecutor’s submissions (which includes a specific photograph of the site of one of the offences contained in the SOAF), in the Sydney Morning Herald (‘SMH’), because it has state-wide distribution; in the Coffs Coast News of the Area; on Forestry Corporation’s social media pages, given its educative and deterrent role, and in Forestry Corporation’s annual report.

195. While Forestry Corporation agrees to the prosecutor’s proposed publication orders, except for the prosecutor’s proposed reference to specific harm caused by the offences, it submits first, that the notice should be published in the Australian Financial Review rather than the SMH because the SMH does not have direct coverage to the area where the offences occurred; second, that it would be inappropriate to use Forestry Corporation’s social media pages where those pages are recreational and not relevant to Forestry Corporation’s activities, and where the EPA is certain to post the publication on their Facebook page; and third, that the proposed photograph of the site of one of the offences is inappropriate because it depicts the “worst” felling and does not demonstrate the context in which the felling occurred.

196. I consider it appropriate that publication orders sought by the prosecutor, which I consider have a significant educative and deterrent function, be made, and that the publications be in the form of Annexure “A” to this judgment which generally reflects the wording suggested by the prosecutor, with the deletion of the discrete references to specific harm and the proposed photograph, and the Court’s findings and the sentences imposed.

Costs

197. At hearing, the prosecutor sought an order for its professional and investigation costs and, following the conclusion of the hearing, the Court was informed that costs (including both investigation and professional costs) had been agreed in the amount of $150,000. I take this, and the publication order, into account in determining the appropriate sentences: Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [100].

Payment to the Biodiversity Conservation Fund

198. The prosecutor seeks, in addition to the imposition of fines, an order pursuant to s 13.25(1)(e) of the BC Act for payment of a discrete specified amount into the Biodiversity Conservation Fund (‘Fund’) to support the Biodiversity Conservation Trust’s biodiversity conservation objectives, as a remedial rather than punitive or deterrent order, and which would not significantly mitigate the sentences imposed by the Court.

199. Section 13.25(1)(e) of the BC Act provides:

(1)   Orders The court may do any one or more of the following—

…

(e)   order the offender to pay a specified amount to a specified organisation (including into the Biodiversity Conservation Fund), for the purposes of a specified project for the restoration or enhancement of the terrestrial environment,

…

…

200. An order for such a payment may be made in lieu of the imposition of a fine: Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 (‘Queanbeyan (No 3)’) at [282]; Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 (‘Tea Garden Farms’) at [148].

201. Forestry Corporation does not in principle oppose a payment into the Fund, however, submits that the Court would need to know the amount sought to be paid into the Fund and the specific project to which the payment would contribute.

202. In circumstances where the prosecutor has specified the Fund, to which an amount may be paid, but where it has not provided details of any “specified project” as required by the BC Act, I am unable to review the details of any project as has been common practice of this Court when making such orders under the largely similar s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW) (Queanbeyan (No 3) at [281]-[284]; Tea Garden Farms at [148]-[152]; Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 at [170]-[172]) and, therefore, I am unable to find that it is appropriate for such an order to be made.

The appropriate sentences for the offences

203. Synthesising the relevant objective and subjective circumstances of each of the offences and of Forestry Corporation as the offender, and the purposes of sentencing, subject to my consideration of the principle of totality to follow, I consider:

1. In relation to the Koala offence, the appropriate monetary penalty for the offence is $80,000. This amount should be reduced by 25% for the utilitarian value of the guilty plea entered by Forestry Corporation to $60,000;

2. In relation to the RA1 offence, the appropriate monetary penalty for the offence is $40,000. This amount should be reduced by 25% for the utilitarian value of the guilty plea entered by Forestry Corporation to $30,000;

3. In relation to the RA2 offence, the appropriate monetary penalty for the offence is $40,000. This amount should be reduced by 25% for the utilitarian value of the guilty plea entered by Forestry Corporation to $30,000; and

4. In relation to the WTRF offence, the appropriate monetary penalty for the offence is $32,000. This amount should be reduced by 25% for the utilitarian value of the guilty plea entered by Forestry Corporation to $24,000.

Totality

204. When considering a number of offences which arise out of similar or related conduct, or the same incident, the principle of totality requires the Court, when passing a series of sentences that have each been properly calculated in relation to the offence for which each has been imposed, to review the aggregate sentence and consider whether, having regard to the totality of the criminal behaviour, the aggregate sentence imposed is just and appropriate.

205. The prosecutor accepts that the Rainforest offences and WTRF offence involve criminality which arose from the same set of causative circumstances and failures by Forestry Corporation, although arising in different areas requiring protection under the BCL. In relation to the Koala offence, the prosecutor submits that any reduction for totality should be less because the Koala offence involved breaches of a different kind, in a separate exclusion zone with distinct protective purposes; the Koala offence arose from a different type of failure (to implement an adequate “process to ensure” the contractors had the most current approved HPOM available); the Koala offence is a “rolled-up” charge involving more than one episode of criminality; and each act of constructing or operating snig tracks and each act of felling are separate contraventions.

206. Forestry Corporation submits that while the circumstances that led to the Koala offence are different to those which led to the Rainforest offences and the WTRF offence, each offence involves the breach of a condition which has the same protective purpose and therefore the Koala offence cannot be weighted differently when considering the totality of the penalty.

207. I consider that the totality principle does require there to be an adjustment in relation to the Rainforest offences and the WTRF offence of the monetary penalty where they arise out of the same originating cause involving the inaccuracies in GPS technology and the adequacy of instructions or compliance therewith of contractors, compared to the Koala offence, which arose out of a different type of failure on Forestry Corporation’s part.

208. As the Rainforest offences and the WTRF offence constitute related criminal behaviour that is causally, temporally, and spatially linked, I consider the aggregate amount of those fines of $84,000 exceeds what is just and appropriate in the circumstances and the total criminality involved. As such, I consider that the appropriate adjustment to be made to reflect the total criminality is to reduce each of those three fines by 10%. This results in the appropriate fine to be imposed for the RA1 offence to be $27,000; the RA2 offence to be $27,000; and the WTRF offence to be $21,600.

Moiety of fines

209. The prosecutor seeks an order under s 122 of the Fines Act 1996 (NSW) (‘Fines Act’) that half of any fine payable by Forestry Corporation be paid to the EPA to compensate the EPA for costs not claimable under other statutory provisions and to support ongoing environmental law enforcement activities.

210. The prosecutor submits that an order would not represent a “windfall” or “benefit” to the EPA where a s 13.23 order of the BC Act for investigation expenses does not include the significant time that EPA officers spent investigating the offences, including the time spent conducting interviews, issuing and reviewing responses to statutory notices, and attending the Forest; and where orders for the EPA’s professional costs under the Civil Procedure Act 1986 (NSW) do not generally fully compensate the EPA.

211. The appropriateness of such orders was canvassed by Preston J in Brummell. For the reasons expressed by his Honour in Brummell at [102]-[112], with which I respectively agree, I consider that the power in s 122(2) of the Fines Act is able to be exercised by this Court in proceedings in which a fine or other penalty is imposed for a statutory offence, and I consider it appropriate to exercise the power in s 122(2) of the Fines Act to direct that one half of the fine imposed in each of the four offences be paid to the prosecutor.

Orders

212. The orders of the Court are:

In proceedings 2020/00284082

1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged.

2. Forestry Corporation of NSW is fined $60,000 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284082.

In proceedings 2020/00284084

1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged.

2. Forestry Corporation of NSW is fined $27,000 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284084.

In proceedings 2020/00284085

1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged.

2. Forestry Corporation of NSW is fined $27,000 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284085.

In proceedings 2020/00284086

1. Forestry Corporation of NSW is convicted of the offence against s 2.14(4) of the Biodiversity Conservation Act 2016 (NSW) as charged.

2. Forestry Corporation of NSW is fined $21,600 for the offence against s 2.14 of the Biodiversity Conservation Act 2016 (NSW) charged in proceedings 2020/00284086.

In proceedings 2020/00284082; 2020/00284084; 2020/00284085; 2020/00284086

3. Pursuant to s 122 of the Fines Act 1996 (NSW) a moiety of 50% of each fine be paid to the Environment Protection Authority.

4. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Forestry Corporation of NSW is to pay the Environment Protection Authority’s costs in the sum of $150,000.

5. Pursuant to s 13.25(1)(a) of the Biodiversity Conservation Act 2016 (NSW), Forestry Corporation of NSW, at its expense, is to:

1. Within 28 days of the date of this order, cause a notice of a minimum size as close as practicable to 180cm² to be published within the first 12 pages of the Sydney Morning Herald and the Coffs Coast News of the Area, with the text of such notice to be as set out in Annexure “A” to these orders; and

1. Within 42 days of the date of this order, provide to the Environment Protection Authority, a copy of the entire page of each of the Sydney Morning Herald and the Coffs Coast News of the Area, on which the notice was published in accordance with paragraph 5(a) above.

6. Pursuant to s 13.25(1)(a) of the Biodiversity Conservation Act 2016 (NSW), Forestry Corporation of NSW is to:

1. Within 14 days of the date of this order, publicise the offences and the orders made against it by posting the text of Annexure “A” to these orders on its Facebook wall at and a hyperlink directly to the Court’s judgment as published on the NSW Caselaw website and tagging the NSW Environment Protection Authority in the post. The post is to be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of the Forestry Corporation of NSW’s Facebook page for a minimum of 7 days.

2. Within 14 days of the date of this order, publicise the offences and the orders made against it by causing a notice in the form of a digital image to be posted on its Instagram page at with the text of such notice to be as set out in Annexure “A”, together with a caption containing a hyperlink directly to the Court’s judgment as published on the NSW Caselaw website and tagging the NSW Environment Protection Authority at @NSW_EPA in the post. The post is to be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of one month.

7. Pursuant to s 13.25(1)(b) of the Biodiversity Conservation Act 2016 (NSW) Forestry Corporation of NSW is to publicise the offences and the orders made against it by posting the text of Annexure “A” to these orders with a minimum size as close as practicable to 180cm² in its annual report.

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Annexure A (96765, pdf)

Decision last updated: 09 June 2022