Garrett, Stephen v Langmead, Patsy

[2006] NSWLEC 627

Land and Environment Court

of New South Wales

CITATION:	Garrett, Stephen v Langmead, Patsy [2006] NSWLEC 627
PARTIES:	PROSECUTOR Stephen Garrett DEFENDANT Patsy Langmead
FILE NUMBER(S):	50006 of 2006
CORAM:	Talbot J
KEY ISSUES:	Prosecution :- application of s 10 Crimes (Sentencing Procedure) Act in circumstances where significant costs paid in respect of a minor offence.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 National Parks and Wildlife Act 1974 Rural Fires Act 1997 Threatened Species Conservation Act 1995
CASES CITED:	Bentley v BGP Properties [2006] NSWLEC 34; Bentley v Gordon [2005] NSWLEC 695; Byron Shire Council v Fletcher (2005) 143 LGERA 155; Carmody v Brancourts Nominees (No 2) [2003] NSWLEC 171; EPA v Waste Recycling and Processing Corporation [2006] NSWLEC 419; Veen v R (No 2) (1998) 164 CLR 465
DATES OF HEARING:	19/09/2006
EX TEMPORE JUDGMENT DATE:	09/19/2006
LEGAL REPRESENTATIVES:	PROSECUTOR Mr D Anderson (solicitor) SOLICITORS Department of Environment and Conservation DEFENDANT Mr I Lloyd QC

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

19 September 2006

50006 of 2006 Garrett, Stephen v Langmead, Patsy

EX TEMPORE JUDGMENT

1 Talbot J: In this matter the defendant, Patsy Langmead, is charged that between 6 and 8 February 2004 at her property 430 Murrays Flat Road Goulburn she committed an offence against s 118A(2) of the National Parks and Wildlife Act 1974 in that she picked plants that were part of an endangered ecological community. The endangered ecological community is particularised. It is clear from the facts that have been enunciated throughout the hearing of these proceedings that the picking of plants occurred when parts of the property were cleared in three different areas.

2 The Court has been assisted by an agreed statement of facts and it is important, I think, to deal with some of the more salient parts of the facts in order to comprehend the nature of the offence and the extent to which the Court should have regard to the way in which the defendant, who has entered a plea of guilty, should be dealt with.

3 The defendant has been the sole owner of the subject property since 12 January 2004, which is a few days immediately prior to the commission of the offence. She nevertheless had an interest in the property one way or another, with various members of her family in the period prior to becoming the sole proprietor. In October 2003 a development application was lodged with the Mulwaree Shire Council seeking development consent to construct a kit home on the property, which the defendant intended to use as her home.

4 On 28 January 2004 the council issued a letter addressed to the defendant confirming its decision to refuse development consent. A copy of that letter is in evidence, but it appears not to be disputed that the defendant did not receive the letter at or about the time that it was generated and that if it did come to her attention, it was not until after the event of the clearing had occurred. That fact is relevant to the extent that the defendant has told the Court that the purpose that she carried out or caused to be carried out the clearing the subject of the proceedings was in order to take the benefit of what she thought was a pending development consent to build, or install, or erect the kit home she had in mind as her residence.

5 The defendant engaged a Mr Divall in order to have the clearing works carried out, and gave him instructions to clear the understorey from the northern part of the property. She also indicated that she needed to construct an access road, and requested Mr Divall to do that work, and described where it was that she wanted the work done. Mr Divall took steps to identify the areas to be cleared, and gave a quote for the work.

6 The work commenced on 6 February 2004, by the contractor using a caterpillar D4 bulldozer. The areas cleared by Mr Divall’s employee were the northern area that I described, comprising an estimate of 1.5 acres. That is the evidence. I have not sought to convert that to the more modern measurement of hectares. An area was also cleared in order to accommodate a house site. The road or track site, leading from what appears to be a public road to the house, was also cleared.

7 About seven large trees were removed from the house site, and at least one, possibly two, of those trees were of the species particularised in the summons as comprising part of the endangered ecological community.

8 The road was approximately 200 metres long and three to four metres wide. Although the prosecutor submits that some of the species identified as being removed for the road site form part of an endangered ecological community, nevertheless none of the species said to be removed for the purpose of the road are particularised in the summons. The road has subsequently been graded and finished. The northern area comprising, as I said, 1.5 acres, contained four or five of the species particularised in the summons.

9 As I said, at the time the work was carried out, the defendant held an expectation that development consent would be granted to build a kit home. This proved to be erroneous. She did not appear to receive the communication addressed to her in that respect. She has pleaded guilty and has acknowledged throughout that the work was carried out under her authority and direction.

10 Apart from the lack of a development consent the agreed facts seem to suggest that other approvals may have been required and were indeed not obtained. Those include a licence or agreement under the Threatened Species Conservation Act 1995, an authority under the Rural Fires Act 1997 and possibly under some unidentified Commonwealth legislation.

11 Ms Langmead gave evidence this morning. She indicated in response to questions put to her by her counsel Mr Lloyd QC, that she was not able to tell any distinguishing feature between a serrated tussock grass and what was identified to her by photograph as poa grass forming part of the endangered ecological community. The only relevance of that piece of evidence could be that even if she had been better informed, then she may not have been able to tell the difference between the endangered plant and one that is an identified noxious weed.

12 It is appropriate to note that the defendant had received a communication by way of a warning, and secondly a formal notice from the then Mulwaree Shire council, to remove the serrated tussock on the property and that part of her intention in engaging the contractor to clear parts of the property, apart from the road and the house site, was to take some steps towards complying with the notice.

13 The prosecutor has retained a Dr Mulvaney, a relevant expert scientist, to give evidence in relation the nature of the environmental harm. He has concluded, inter alia, that as a direct result of the clearing the natural environment of the endangered ecological community has been significantly adversely affected and degraded. There is no doubt that the activities authorised and approved by the defendant cleared, disturbed and degraded some parts of the endangered ecological community and to the relevant degree adversely impacted upon that local flora. It is suggested further that some fauna species would have been affected by the removal of vegetation, comprising part of their habitat.

14 It is acknowledged by the prosecutor that the clearing of approximately half a hectare has not had the effect of causing the remaining endangered community at the property to become extinct however together with the invasion of serrated tussock, it has contributed to taking the endangered species further towards extinction thereby further increasing the precariousness of the continued survival of the species on the property.

15 As I have already stated serrated tussock is a weed. It is regarded as one of the worst weeds in Australia because of its invasiveness and potential for spread. It is clearly a serious problem on the subject property. The statement of agreed facts indicates that serrated tussock, at least when inspected some time later, covered between ten and fifteen per cent of the northern area of the property in and around that part of the property in the northern section, which was cleared.

16 It is claimed that the cleared vegetation is an important habitat for various animals. Mr Lloyd however points out that there is no evidence of any sighting of those particular animals using this particular habitat. That of course does not mean that it nevertheless cannot serve that role. The agreed position in that respect is that the clearing by the defendant reduced the size of bird, bat, possum and insect habitats, and thus their populations. However it is conceded that the clearing would not have resulted in the local extinction of any particular fauna species because, obviously, their habitat was not completely destroyed.

17 It is conceded in the agreed statement of facts that it is unlikely that the plant diversity and vegetation cover of the understorey of the community located at the property, prior to it being cleared by the defendant, can fully be restored to its original state at the northern area of the property. This is, as I mentioned a moment ago, because weed cover is now far greater than it would have been if the clearing had not taken place. It goes without saying of course, that the house site and the road area which were cleared by the defendant are so heavily disturbed, degraded and compacted, that restoration and rehabilitation of those areas in the short, medium and long term is practically unachievable and indeed is not contemplated.

18 The defendant has no prior record and I take into account the fact that she lacked a discrete awareness of the existence of the endangered ecological community on the property. Ms Langmead has provided the Court with a written statement, and has confirmed its correctness in the witness box. It is appropriate to take a number of those matters into account, even if it is at the risk of repetition.

19 Firstly she has emphasised that at all times, it was her intention to cause as little impact upon the bush, as she describes it, as possible. She explained in the witness box that she gave particular directions that the large trees were not to be affected and that the route of the road, for example, was specifically designed to take account of that fact.

20 In respect to the poa grass she thought she was clearing serrated tussock grass, which she had earlier been directed by the council to clear. She apologises to the Court and to the community for her wrongful actions, and says that had she known at the time that what was being cleared was part of an endangered ecological community, she would not have cleared it the way that she did.

21 It is important to note her evidence, that she is a retired pensioner, aged sixty-nine, and that her current health is not by any means robust. She receives an income by way of the pension, of just over $500 per fortnight and has no other assets beyond the interest that she has in the property upon which she now lives. In that respect, an amenity shed has been placed on the property, pursuant to an application made pursuant to SEPP 60, which enabled that structure to be erected without development consent. Notwithstanding its description and the basis upon which it has been erected, Ms Langmead lives in that particular building, that being presumably the only way in which she can afford to put a roof over her head.

22 She explains how at the time the work was carried out she had asked the council to review their determination in relation to the development application, by way of refusal. Moreover she had not been informed at the time that the council had remained adamant that no consent for the kit home would be forthcoming. She had asked Mr Divall to carry out the clearance work on the land in February, anticipating that there would be a decision in her favour and that there would be no problem with the review. She said she had been led to believe that there would be a positive outcome to the application for review of the determination, but she does not go into any detail about how she came to be under that impression. However I was satisfied with her forthright honesty and eagerness to explain the circumstances while she was in the witness box.

23 She recognises that it was foolish to have done the work without formal approval from the council and that she should have shown more patience in that regard. However she explains that at the time she was under considerable stress as a consequence of problems with one of her grandchildren who had had a stroke and open-heart surgery. Accordingly she was not thinking as straight as she might otherwise have been.

24 She has pointed out to the Court that having regard to her straitened financial circumstances the Department of Lands has indicated that it will carry out works with the intention of controlling the tussock problem on the property. They have already done some works including assistance with the construction of a dam and the erection of the pad upon which the amenities building is constructed.

25 She confirmed by her evidence that so far as any ability to pay a fine is concerned, she has exhausted all of her savings on building the amenities shed. Her only income is the old age pension and simply put, she has no money to pay any fine. But she accepts she may have to pay something for her wrongdoing. She foreshadows that it may be necessary to borrow some money from relatives. Mr Lloyd has indicated that he has made her aware of the potential to borrow against a property on the basis that no repayments are required until such time as she passes on. In that respect she asks that the Court treat her with appropriate leniency.

26 The penalty for an offence against s 118A of the National Parks and Wildlife Act is effectively $220,000 plus $110,000 for every plant removed, as well as the prospect of imprisonment for two years. That of course indicates, relevantly for the present proceedings at least, that the parliament regards the removal of vegetation that is covered by the legislation as being a serious offence.

27 There are a number of factors of sentencing that need to be taken into account. That includes of course a general deterrence by way of a warning to other members of the community that these matters are not to be treated lightly. There is also the question of individual deterrence so that whether or not the defendant is likely to re-offend is a matter the Court needs to take into account.

28 There is also the question of adequate punishment and the circumstances of the offence. In the latter regard the prosecutor says that the offence should be regarded as a consequence of deliberate clearing for personal advantage, without an approval of any kind, resulting in the clearing of an area of endangered ecological community that had a high conservation value.

29 The prosecutor relies on what he says is the substantial environmental harm caused by the clearing of the ecological community. That is aggravated by a series of factors identified in the submissions made by Mr Anderson. He emphasised that according to the statement of agreed facts the subject vegetation was, prior to the clearing, amongst the better or more natural areas or patches of the community remaining in the Lake George/Shoalhaven/Wollondilly area and was of high conservation value. Moreover it is unlikely that the plant diversity and the vegetation cover of the understorey located prior to it being cleared can fully be restored to its original state, in particular at the northern end of the property. Penultimately, irrespective of whether or not a rehabilitation program is implemented at the property, it will take several decades for the midstorey of the northern part of the property to re-establish itself to the condition that it was in prior to being cleared by the defendant. He then notes, finally, that the building site and the road area are unlikely to be rehabilitated in any way while ever those improvements remain in place.

30 The prosecutor makes a formal submission, which generally I reject, in relation to the lack of contrition on the part of the defendant. The submission is based to a very large extent on what was said by the present Chief Judge of the Court in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 in quite different circumstances to the current circumstances. His Honour identified the lack of any speed or efficiency of action to rectify harm, the failure to voluntarily report the commission of the offence. They are said to be elements present in the existing circumstances. I read remarks of the Chief Judge in their context of the facts of the Waste Recycling case, and find it unlikely that the defendant will have voluntarily reported something she did not realise she had done. Secondly the speed and efficiency of the action to rectify the harm is an expectation that could not be realised in her financial circumstances, even if she was aware of it. She cannot hope to carry out any programme in that respect without the assistance of the Department of Lands. Her indication that those arrangements have been discussed and that she proposes to cooperate with them is about as much as can be expected.

31 The prosecutor accepts that the defendant is entitled to the full benefit of the plea of guilty. She cooperated with the prosecutor by participating in a record of interview. However there are a number of matters that the Court needs to take into account.

32 Mr Lloyd has drawn attention to the provisions of s 3A of the Crime (Sentencing Procedure) Act 1999 and lists those matters in his submissions as:

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

33 Mr Lloyd also draws the Court’s attention to the observations in the majority judgment in Veen v R (No 2) (1988) 164 CLR 465. The quotation is often referred to as a convenient summation of the purpose of sentencing and again it is worth considering in these circumstances. Accordingly I quote it again as follows:

Sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are a guidepost to the appropriate sentence, but sometimes they point in different directions.

34 However I bear in mind that while general deterrence is an important factor in sentencing, as Mr Lloyd concedes in his submission, it nevertheless cannot be allowed to override to an impermissible degree, the offender’s favourable subjective circumstances. Thus there is a degree of difficult balancing to be undertaken by considering a number of what might be seen as conflicting factors.

35 Mr Lloyd also refers to a number of authorities where the Court has identified the objective circumstances to be considered. In environmental offences the cases that he quotes are: Bentley v BGP Properties [2006] NSWLEC 34, Bentley v Gordon [2005] NSWLEC 695, EPA v Waste Recycling, which I mentioned a moment ago, and Byron Shire Council v Fletcher (2005) 143 LGERA 155.

36 The factors are, firstly the maximum penalty for the offence. Secondly, there is also the objective seriousness of the offence having regard to its place in the statutory scheme. In this case, both of those indicate a serious address of the offence by parliament however, recognising of course, that questions of fact and degree are always to be taken into account. Thirdly, the harm caused to the environment and particularly the components of the environment harmed in the short and long term by the commission of the offence. I have already addressed those.

37 I have also addressed the state of mind of the offender in committing the offence. The foreseeability of the risk of harm is another element. There are also the practical measures to avoid foreseeable risk of harm and the reasons for the commission of the offence, all of which have been touched upon in these reasons.

38 Section 6 of the Fines Act 1996 requires the Court to consider such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and importantly, such other matters as in the opinion of the Court are relevant to the fixing of that amount. In the present circumstances of course, that drives the Court to a consideration of the fact that the defendant is a pensioner of limited means, both as to income to the tune of about $500 per fortnight, and with no other assets other than the subject property in which she lives.

39 It is a recognised matter of principle that if the Court is satisfied that an offender is unable to pay an amount determined it is entitled to reduce the penalty to take account of the offender’s means and impecuniosity. The prosecutor contends that the defendant’s liability to pay the prosector’s costs is a relevant matter, but that should not be treated as part of the punishment. I am not satisfied that that is necessarily the case.

40 The Court has a wide discretion under section 6B of the Fines Act to take into account, as I said a moment ago, such other matters as in the opinion of the Court are relevant to the fixing of the fine in the particular cases. The costs in this case are quite substantial, particularly in the context of the present defendant. However costs are compensatory to the successful party. In that respect, I am informed an agreement has been reached that the prosecutor’s costs are to be accepted and paid in the sum of $20,000 but that the defendant be allowed until 19 March 2007, that is six months from now, to pay that amount having regard to her financial circumstances.

41 The plea of guilty, of course, amounts to an admission of all the essential elements of the offence but it does not mean nevertheless that the defendant accepts the aggravating factors that are alleged against her. In that regard I take into account specifically the small area, in relative terms, having regard to the overall existence of other outcrops of the community. Although it may not be insignificant in the immediate area of the property, nevertheless on any account the area is a small one. Not only is it small but it is also heavily degraded.

42 I also accept what the defendant says in relation to a discussion she had with Mr Divall who encouraged her to think that she was doing nothing wrong, and that it did not require there to be any formal approval, having regard to what was being undertaken. The defendant has not previously been convicted of any criminal offence. Without being demeaning I perceive her to be an unassuming, humble person who has had a hard life. Now aged sixty-nine, forced to rely upon the pension, she has had significant family difficulties and problems, the details of which have been indicated to me and do not need to be reiterated in a judgment of this sort.

43 Essentially she is a person of prior good character. I find specifically that having regard to her demeanour in the witness box and also her demeanour before me when she was unrepresented and before Mr Lloyd came to her rescue, firstly as amicus curiae and then acting for her on a pro bono basis, she was emotionally upset and disturbed by the events that had occurred, thereby indicating to me that she has suffered a great deal of humiliation and concern and is displaying a marked degree of contrition and remorse for the offence. She was not fully aware of the consequences of her actions, for the reasons that I have explained, and the early plea of guilty has been accepted as entitling her to the appropriate consideration in that respect.

44 I propose to take into very serious account the amount of costs. I averted to that a moment ago and indicated that the amount of costs was in the sum of $20,000 as agreed. I recognise that that is a negotiated amount. It was indicated to me prior to that agreement being reached, that the claim for costs was in the order of $35,000. I am entitled to infer that the figure now agreed upon is a reflection of a pragmatic agreement reached between counsel which reflects the practicalities of the situation.

45 Mr Lloyd has referred the Court to a number of authorities. I will just mention their names: Carmody v Brancourts Nominees(No. 2) [2003] NSWLEC 84, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171, Bentley v Gordon and Bentley v BGP Properties. All of those, as I understand the submission, have been brought to the Court’s attention to indicate that notwithstanding the far more serious nature of the offences in each one of those cases the Court nevertheless imposed fines which could be described as either modest, having regard to the maximum, or at the lower end of the scale, being less than fifty per cent and in many cases well below that.

46 I regard the present case as being at the very lowest end of the scale of gravity and given the extenuating circumstances under which the offence occurred I am of the opinion that given her age, prior good character, impecunious state and reservations that I have about the extent of actual harm caused, having regard to the degraded nature of the community and the small area affected, this defendant should be given the benefit of s 10 of the Crimes (Sentencing Procedure) Act.

47 Given that the defendant has agreed to pay costs in the sum of $20,000 it is clear, as Mr Lloyd submits, that she will suffer a very serious financial burden. I do accept that the means of the defendant and her ability to pay is clearly a relevant factor that I am entitled to take into account, irrespective of the Fines Act 1996, but also in relation to s 10, where in s 10(3)(d) I am entitled to take into account any other matter that I think it is proper to consider.

48 I think there are sufficient extenuating circumstances under which this offence was committed to justify the application of s 10. Clearly the person’s character, antecedents, age, health, and even mental condition, if distress and stress is to be a factor in that respect, are relevant matters to be taken into account, and I have done so.

49 I did give consideration to imposing a bond, as I am entitled to do, pursuant to s 10, whereby I could have dismissed the charge conditionally. Mr Lloyd quite responsibly said that he would make no submission against such a proposition. The prosecutor maintained, of course, that a fine was an appropriate way in which to deal with the offender. However I can see no point in imposing what must of necessity be a nominal fine and I can equally see no point in binding Ms Langmead over to be of good behaviour when I am satisfied that her reaction to the circumstances in which she now finds herself is such that they will be a bond in effect.

50 Of course, if I am wrong in that judgment and something else does occur on this property or even elsewhere that involves this defendant, then she must understand that the consequences will be visited upon her in a far less lenient way, if that occurs. My expectation however is that Ms Langmead will not be seen in this Court, or any other relevant court again, in relation to an offence of this kind.

51 In the circumstances therefore, I find the offence has been proved but without proceeding to conviction, I direct that the charge be dismissed, pursuant to section 10 of the Crimes (Sentencing Procedure) Act. By consent, I order that the defendant pay the prosecutor’s costs in the sum of $20,000. I postpone the effect of the costs order to 19 March 2007.