Garrett v Freeman (No 5) - [2009] NSWLEC 1

Reported Decision: (2009) 164 LGERA 287

Land and Environment Court

of New South Wales

CITATION: Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1

PARTIES:
Nos. 50043 of 2005 & 50044 of 2005
PROSECUTOR:
Stephen Garrett
DEFENDANT:
Geoffrey Noel Freeman
Nos. 50040 of 2005; 50041 of 2005 & 50042 of 2005
PROSECUTOR:
Stephen Garrett
DEFENDANT:
Port Macquarie-Hastings Council
No. 50012 of 2005
PROSECUTOR:
Peter Carter
DEFENDANT:
Port-Macquarie Hastings Council

FILE NUMBER(S): 50040 of 2005; 50041 of 2005; 50042 of 2005; 50043 of 2005; 50044 of 2005 & 50012 of 2005

CORAM: Lloyd J

KEY ISSUES:
ENVIRONMENTAL OFFENCES :- Penalty - offences committed by a person concerned in the management of a corporation - plea of not guilty - conviction - damage to threatened species habitat - construction of roads - no valid environmental assessment of the activity - no actual harm to species - totality principle
Penalty - offences committed by a corporation- guilty plea -damage to threatened species habitat - construction of roads - no valid environmental assessment of the activity - no actual harm to species - totality principle
Penalty - offence committed by a corporation - carrying out reclamation work without a permit - guilty plea- damage to aquatic environment - totality principle

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 14, 17, 21A, 22, 23
Criminal Procedure Act 1986 s 253 (repealed)
Criminal Procedure Act 1986 ss 257A-257G
Environmental Planning and Assessment Act 1979 Pt 5 ss 5A, 111, 112
Fines Act 1996 ss 6, 122
Fisheries Management Act 1994 ss 3, 6, 198, 198A, 200, 203, 220
Local Government Act 1993 Ch 11, s 220
National Parks and Wildlife Act 1974 ss 2A, 5, 118D, 118G, 137, 138, 175A, 175B, 176(3)
Threatened Species Conservation Act 1995 s 3

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Bentley v Gordon [2005] NSWLEC 695
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349
Carmody v Brancourts Nominees Pty Ltd (No.2) [2003] NSWLEC 84
Carter v Wall [2002] NSWLEC 124
Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440
Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273
Environment Protection Authority v Tenterfield (2000) 112 LGERA 173
Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299
Garrett v Freeman (No.3) [2007] NSWLEC 139
Garrett v Freeman (No.4) [2007] NSWLEC 389
Garrett v Williams (2006) 160 LGERA 115
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Latoudis v Casey (1990) 170 CLR 534
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen (2005) 228 CLR 357
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89
Oshlack v Richmond River Council (1993) 82 LGERA 222
Power v Penthill House Pty Ltd (1993) 80 LGERA 247
R v Carroll [2008] NSWCCA 218
R v Cohen [2002] NSWCCA 339
R v Gallagher (1991) 23 NSWLR 220
R v H (1980) 3 A Crim R 53
R v Henry (1999) 46 NSWLR at 353
R v Kalache (2000) 111 A Crim R 152
R v Olbrich (1999) 199 CLR 270
R v Peel [1971] 1 NSWLR 247 at 262
R v Pritchard (1999) 107 A Crim R 88
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Wisbey [2001] NSWCCA 434
R v Ryan (2003) 141 A Crim R 403
R v Winchester (1992) 58 A Crim R 345
Ryan v The Queen (2001) 206 CLR 267
The Queen v De Simoni (1981) 147 CLR 383
Veen v The Queen (No 2) (1988) 164 CLR 465 at 472
Veen v The Queen (1979) 143 CLR 458 at 490
Yrttiaho v Public Curator (Queensland) (1971) 125 CLR 228

DATES OF HEARING: 28/04/08-01/05/08, 29/09/08-03/10/08, 7- 8/10/08

DATE OF JUDGMENT:
6 February 2009

LEGAL REPRESENTATIVES:
Nos. 50040-50044 of 2008
PROSECUTOR:
D A Buchanan SC
SOLICITORS:
Department of Environment and Climate Change (Legal Services Branch)
No.50012 of 2005
PROSECUTOR:
T G Howard (barrister)
SOLICITORS:
Crown Solicitors Office
Nos. 50043-50044 of 2005
DEFENDANT:
T F Robertson SC
SOLICITORS:
Donovan Oates Hannaford Lawyers
Nos. 50040-50042 and 50012 of 2005
DEFENDANT:
C J Leggatt SC and H P Irish (barrister)
SOLICITORS:
Maddocks

JUDGMENT:

- 106 - THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Friday, 6 February 2009

GARRETT v FREEMAN (No. 5)
GARRETT v PORT MACQUARIE-HASTINGS COUNCIL
CARTER v PORT MACQUARIE-HASTINGS COUNCIL
[2009] NSWLEC 1

JUDGMENT

Contents

Section
Paragraph number/s

General observations 83 - 92
Confounding factor of rising water levels 93 - 100
Environmental harm after excavation of the roads 101 - 102
Extent of harm on the habitat of the Eastern Chestnut Mouse 103 - 124
Extent of harm on the habitat of the Grass Owl 125 - 142
Feral predators 143 - 148
Conclusion on environmental harm 149 - 153

A routine agricultural management activity 157 - 159
Lack of training in conducting an environmental
impact assessment 160 - 161

Ponding caused by construction of roads 214 - 222
Confounding impacts of rising water levels 223 - 229
Pre-existing tracks 230 - 232
Environmental Harm after excavation of the roads 233
Extent of harm caused to the habitat of the Wallum Froglet 234 - 242
Extent of harm to the habitat of the Eastern Chestnut Mouse 243 - 252
Extent of harm on the habitat of the Grass Owl 253 - 260
Feral predators 261 - 263
Conclusions on Environmental harm 264 - 266

Confounding factors 338 - 347
Obstruction of fish passage 348- 351

General and specific deterrence 352 - 355
State of mind 356 - 357
Remediation, amelioration and recompense 358 - 364
Contrition and remorse 365 - 370
Co-operation with the authorities 371 - 373
Other considerations 374 - 376
Payment of costs 377 - 378
Appropriate penalty 379 - 381
CONCLUDING REMARKS 382

INTRODUCTION

1 HIS HONOUR: Mr Geoffrey Noel Freeman has, by all accounts, led an exemplary life. He has had a distinguished career in local government, firstly for fourteen years at Wollongong City Council as a health and building surveyor, later becoming the council’s building maintenance manager; then the technical services manager in the council’s health and building department where he was instrumental in establishing a development assessment panel; and finally as manager of health and building services. He left that council to pursue full-time farming interests for four years, but returned to local government in 1992, firstly at Narrandera and then in 1995 at Hastings Council.

2 At Hastings Council (as Port Macquarie-Hastings Council was then called) he was initially appointed director of services with responsibility for waste management, the council’s buildings, parks and recreation, the Rural Fire Service, libraries and community services. He was instrumental in the establishment of a new centralised waste management facility and a new library. In 2000, he was appointed director of infrastructure and, more recently, director of water and natural resources. The many references tendered attest to his excellent leadership in these various roles, to his personal integrity and reliability and to his strong commitment to his family.

3 In short, but for one error of judgment, Mr Freeman has been a model citizen. For that error of judgment Mr Freeman now pays a heavy personal cost.

4 There are five related prosecutions before me for sentencing. They all arise from the same course of conduct, namely that, between 15 September 2003 and 19 December 2003, Port Macquarie Hasting Council, through its employee, Mr Freeman, acting in his capacity as the council’s director of infrastructure, caused the construction of road works on land owned by the council west of the Port Macquarie Airport and south of Hastings River, also known as Partridge Creek. It is common ground that the area was the habitat of a number threatened species and, in particular, Pseudomys gracilicaudatus or the Eastern Chestnut Mouse, Tyto capensis or the Grass Owl and Crinia tinnula or the Wallum Froglet.

OVERVIEW OF THE OFFENCES

5 Mr Stephen Garrett, as a person duly authorised under s 179 of the National Parks and Wildlife Act 1974 (“the NP&W Act”) by the Director-General of the Department of Environment and Conservation (“the DEC”), now the Department of Environment, Conservation and Climate Change (“the DECC”), charged Port Macquarie Hastings Council in its corporate capacity with three offences that, contrary to s 118D(1) of the NP&W Act, it caused damage to the habitat, not being critical habitat, of a threatened species by undertaking the construction of road works on land at Partridge Creek, knowing that the land was habitat of that kind. Particulars of threatened species include the Eastern Chestnut Mouse, the Grass Owl and the Wallum Froglet. On 15 December 2005, a plea of guilty was entered by the council for all three charges.

6 Mr Garrett also charged Mr Freeman with two offences by virtue of s 175B(1) of the NP&W Act in his capacity as a person concerned in the management of the council that, contrary to s 118D(1) of the NP&W Act, the council caused damage to the habitat, not being critical habitat, of a threatened species by undertaking the construction of road works on land at Partridge Creek, knowing that the land was habitat of that kind. Particulars of threatened species include the Eastern Chestnut Mouse and the Grass Owl. Mr Freeman pleaded not guilty. The case against him was heard before me over seventeen days and I found the offences proved beyond reasonable doubt: Garrett v Freeman(No. 4) [2007] NSWLEC 389.

7 Mr Peter Carter, on behalf of the New South Wales Department of Primary Industries, which administers the Fisheries Management Act 1994 (“the FM Act”), charged Port Macquarie-Hastings Council in its corporate capacity that, between about 14 September 2003 and 19 December 2003, at Fernbank Creek in the State of New South Wales, it committed an offence against s 200 of the FM Act in that, being a local government authority it carried out reclamation work without the authority of a permit issued by the Minister. On 31 August 2005, the council pleaded guilty to the offence as charged.

8 It is also convenient to describe here the locality in which the offences were committed. The Port Macquarie local government area includes a location known as Thrumster, Partridge Creek, which has been identified as a development area in the council’s strategic land use planning.

9 Partridge Creek naturally drains into the Hastings River. Studies in the late 1990’s indicated that there was some acidic discharge from the creek area. In conjunction with the Department of Land and Water Conservation (“the DLWC”), with funding from the Environmental Trust, the council undertook a restoration program called the Partridge Creek Acid Sulphate Soil Hot Spot Remediation Project (“the ASSR project”).

10 A highly modified natural watercourse, Partridge Creek has in effect, acted as a drain that had been widened and deepened over the years to facilitate grazing on the surrounding land. The ASSR project aimed to restore the hydrology of the area by installing a weir in the northern section of the drain and infilling several sections of the drain in the central back swamp area. This was to raise the groundwater table and contain the acidic groundwater.

11 At the time of the offences the corporate defendant was called Hastings Council but has since changed its name to Port Macquarie Hastings Council. It is incorporated by virtue of s 220 of the Local Government Act 1993 and its staff at the relevant time included:

· Mr Bernard James Smith- General Manager;

· Mr Geoffrey Noel Freeman- Director of Infrastructure Services;

· Mr Michael Andrew Coulter - Director of Planning and Environment;

· Mr Peter Matthew Owens- Planning Manager;

· Mr Matthew Rogers- Environmental Services Coordinator;

· Mr Thor Aaso- Environmental Officer;

· Mr Trevor Graham Schubert- Maintenance Coordinator;

12 Mr Aaso, in partnership with the DLWC, had primary responsibility for the ASSR project, while Mr Rogers supervised the council’s involvement in the ASSR project. Mr Freeman was responsible for land owned by the council at the time of the offences and initiated the construction of the roads to provide better access to the area.

13 An agreed statement of facts has been filed for each of the matters against the council. I will summarise these facts below, but first I will discuss the findings of fact I made in the matter of Garrett v Freeman (No. 4) that are relevant to sentencing.

FINDINGS OF FACT IN GARRETT v FREEMAN

14 Both charges against Mr Freeman assert that between approximately 15 September 2003 and 19 December 2003, at Partridge Creek, Port Macquarie, whilst acting as a person concerned in the management of Port Macquarie-Hastings Council, Mr Freeman committed an offence against s 118D(1) of the NP&W Act, which relevantly states:

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

15 As noted above in par [6], Mr Freeman is charged in his capacity as an individual responsible for the management of a company by virtue of 175B(1) of that Act, which states:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision…

16 There is also a defence available to a s 118D(1) offence, where the defendant can show either: that the act constituting the offence was essential for the carrying out of an activity by a determining authority within the meaning of Pt 5 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) if the determining authority has complied with that Part (s 118D(2)(b)(ii)); or that the act was an activity in accordance with an approval of a determining authority within the meaning of Pt 5 of the EP&A Act if the determining authority has complied with that part (s 118D(2)(b)(iii)).

17 The first charge against Mr Freeman is that damage was caused to the habitat of a threatened species Tyto capensis or the Grass Owl (now known as the Eastern Grass Owl) by disturbance to areas used for roosting, loss of wetland or swampy habitat used for nesting, the removal of shrubby low heath vegetation providing cover and foraging habitat, the introduction of potentially invasive weeds and grasses, and provision of enhanced access to predators.

18 The second charge against Mr Freeman is that damage was caused to the habitat of a threatened species Pseudomys gracilicaudatus or the Eastern Chestnut Mouse by disturbance, the removal of low heath vegetation providing cover, the introduction of potentially invasive weeds and grasses, and by the provision of enhanced access to predators.

19 The parties agreed that at the time of the offences, Mr Freeman held the position of director of infrastructure services of Hastings Council, which was a position that fell within the meaning of senior staff in Ch 11 of the Local Government Act. The parties also agreed that the Grass Owl and the Eastern Chestnut Mouse were threatened species and that Partridge Creek was their habitat. There was a consensus that construction of roads took place in the area, although Mr Freeman was adamant that these were in fact “tracks”. Nevertheless it was agreed that the construction was an activity by a determining authority within the meaning of Pt 5 of the EP&A Act.

20 In these proceedings, I had to first decide whether the following elements of an offence under s 118D of the NP&W Act were proved beyond a reasonable doubt:

· that, a provision of the NP&W Act namely s 118D(1), was contravened by a corporation;

· that Hastings Council was a corporation;

· that Hastings Council did a thing, namely, construct roads;

· that the thing caused damage to the habitat of the two threatened species; and

· that at the time of the offence, Hastings Council knew that the land concerned was habitat of those threatened species.

21 Before I summarise my findings I should note that Mr Freeman was extremely inconsistent in his record of interview, affidavit and oral evidence: see Garrett v Freeman (No. 4) at [162] to [226]. As noted in Garrett v Freeman (No. 3) [2007] NSWLEC 139 at [18] to [24], Mr Freeman’s answers to questions were generally evasive, long-winded and self-serving. I could, therefore, only rely upon Mr Freeman’s evidence to the extent that it was corroborated by evidence independent of his testimony.

22 I found that the prosecutor proved beyond a reasonable doubt that the council knew that the land was the habitat of the Grass Owl and the Eastern Chestnut Mouse. I relied upon the following evidence in coming to this conclusion:

a) An ecological assessment titled “Partridge Creek Acid Sulphate Soils Remediation Strategy: Ecological Assessment” (October 2002) created by Environmental Resource Management Australia for the council (“the ERM report”), which states that the habitats of the Eastern Chestnut Mouse, the Grass Owl and the Wallum Froglet were likely to be significantly affected by the project.

b) A fauna survey by Mr Phillip Anthony Redpath, an ecologist, prepared in light of the ERM report and titled “Partridge Creek Acid Sulphate Soil Hotspot Remediation Project Targeted Fauna Survey and 8 Part Test Assessment” (December 2002) (“the 2002 Redpath’s survey”) that identifies the presence of the Eastern Chestnut Mouse and the Grass Owl.

c) A plan of management known as the “Partridge Creek Hotspot Remediation Management Plan” (April 2003) prepared by Mr Aaso, that is reflective of Mr Redpath’s survey and identifies the presence of the Eastern Chestnut Mouse and the Grass Owl on the land.

d) The adoption of the plan of management by the council at its meeting on 10 February 2003. Mr Coulter gave undisputed evidence that the plan of management and the report he co-authored regarding the ASSR project were distributed to the councillors at the meeting.

e) Mr Aaso placed the documents mentioned in (a)-(c) above in the council’s I-Drive information system (accessible by council employees) on or before 9 September 2003.

f) Ms Katrina Louise O’Reilly, the resource compliance manager of Department of Infrastructure, Planning and Natural Resources (then DLWC) at Grafton, sent a letter on 26 June 2002 to the general manager of the council regarding slashing that occurred on the land, advising that a number of threatened species including the Eastern Chestnut Mouse and the Grass Owl inhabited the area.

g) Mr Aaso, Mr Rogers and Mr Coulter worked for the council on the ASSR project and were fully aware of the threatened species on the land and the measures that should be adopted to mitigate the impact on them.

23 I was satisfied from the evidence that the construction that took place resulted in two “roads” that could not be described as “tracks”. The photographs tendered depicted substantial dirt roads, capable of carrying two-way traffic and there was evidence to establish that the materials used were common in the construction of roads.

24 I found that the construction of the roads caused damage to the habitat of the threatened species to a significant extent. I accepted and relied upon the following evidence, that demonstrates the effects of the construction on the Grass Owl and the Eastern Chestnut Mouse:

(a) Mr Anthony Ward Bischoff, a birdwatcher who holds a scientific license under s 132C of the NP&W Act , visited the Partridge Creek area in January 2004 and noted that one road had been constructed directly across the main habitat area of the Grass Owl.

(b) Mr Stephen Debus, an ecologist at the University of New England, inspected the area in February 2006 and thought that the Grass Owl habitat was damaged by making the vegetation in the vicinity of the roads less desirable as a breeding site or less conductive to successive breeding, because the roads had increased the potential for predation and human disturbance. According to his calculations, approximately 0.2 hectares of potential Grass Owl roosting or breeding habitat had been physically removed by the construction of the east-west road.

(c) Mr Redpath, who visited the site before and after the construction, said that the roads added another level of impact, providing access to the area for domestic and feral dogs and cats, and foxes, as evidenced by the presence of dog tracks in the margins of the road. The roads also would have the potential to effect the habitat of the Grass Owl and the Eastern Chestnut Mouse as they interfered with the hydrological conductivity in the area; further providing a new opportunity for the incursion of weeds into the habitat of the species.

(d) The report of Professor Barry J Fox dated April 2006 noted that the Partridge Creek Area is clearly suitable habitat for the Eastern Chestnut Mouse and he had no doubt that the construction of the east-west and north-south roads had caused damage to the habitat of the Eastern Chestnut Mouse by the actual alienation of the area by the roads and the potential of water flow onto immediate surrounding area impacting the native vegetation. The most important impact, however, was that the roads provided predators with easy access to the areas occupied by the Eastern Chestnut Mouse. He concluded that there had been substantial damage to the habitat of this species.

(e) The report of Darkheart Eco Consultancy dated August 2004, concluded that the roads had resulted in the removal and/or modification of habitat, and listed the following potential and known impacts on the habitat of the Grass Owl: habitat loss and fragmentation; road kill risk; anthropogenic impacts; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regimes. The most significant impacts that the roads had or could have on the Eastern Chestnut Mouse were identified as follows: habitat loss and fragmentation; physical and behavioural barrier; road kill risk; exotic fauna; stormwater and water flow regime alterations and altered bushfire regime.

25 I therefore had no trouble in finding beyond a reasonable doubt that in constructing the roads, the council had contravened s 118D(1) of the NP&W Act.

26 I then had to consider whether the prosecutor had proved on the balance of probabilities that the defences in s 118D(2)(b)(ii)-(iii), noted in par [16] above, had been negatived. I have noted that the parties agreed that the construction of the particular roads was an activity within the meaning of Pt 5 of the EP&A Act. The main issue was whether the determining authority had complied with the requirements of Pt 5 of the EP&A Act.

27 Mr Freeman claimed that he made a valid Pt 5 assessment, titled a “Review of Environmental Factors” (“the REF”). However, the document had no determination date, it was not signed, it did not adequately identify the proposed activity, there was no mention of the location of the roads or the material to be used to construct them or how the construction was to take place, nor was there mention of the particular threatened species or their habitat. The document was only three pages long, the typical Pt 5 assessment being about 25. The document was severely defective.

28 I came to the firm conclusion that Mr Freeman did not conduct a valid Pt 5 assessment of the proposed activity and that he had merely made a token attempt to comply with the requirements of the Act. He completed a tick-a-box checklist which did not even mention the threatened species or whether the activity was likely to have a significant effect on the habitat of the species, as required by s 111 of the EP&A Act. Finally, the Pt 5 assessment was not undertaken before the activity took place, so that even if it was valid, the determining authority failed to comply. On this basis, I found that the prosecutor had proved beyond a reasonable doubt that the defences in s 118D(2)(b)(ii) and (iii) were negatived.

29 The final matter for my consideration was whether the defendant was liable under s 175B of the NP&W Act noted in par [15] above. I had first to consider whether the contravention was by a corporation, as only then would Mr Freeman be liable under s 175B. I found that Hastings Council is a corporation by virtue of s 220 of the Local Government Act 1993 and noted the parties’ consensus that Mr Freeman was concerned with the management of Hastings Council at the relevant time.

30 Mr Freeman attempted to claim the defence under s 175B(1)(a) of the NP&W Act that excuses the defendant where the corporation contravenes s 118D without his knowledge (actual, imputed or constructive). I found that Mr Freeman on the balance of probabilities had knowledge that the offence was being committed. If necessary, I would have so found beyond a reasonable doubt. In his capacity as the acting general manager of the council when a report on the ASSR project and the plan of management were included on the agenda of the council’s meeting on 10 February 2003, Mr Freeman knew, before any of the road works started, that the land was habitat of the two threatened species.

31 Before the roads were planned Mr Freeman had contact with two reports in 2003 that discussed the possible impact on the threatened species and their habitats. He also had a number of discussions or meetings with other council employees, confirming his knowledge that threatened species inhabited that area and of the possible need for an assessment of the impact. His knowledge of the need for a Pt 5 assessment was implicit in his claim that he did in fact undertake a sufficient assessment under that part. Moreover, Mr Freeman admitted to Mr William Llewellyn Saunders, a local birdwatcher, that he was aware, before he authorised the construction of the roads, that the area was the habitat of the threatened species. If Mr Freeman did not have actual knowledge that the construction of the roads would affect the habitat of the threatened species, then he adopted a position of wilful blindness. I found that the matters above showed at least imputed or constructive knowledge of these matters, but in any event his admission to Mr Saunders demonstrated that he had actual knowledge.

32 Mr Freeman failed to demonstrate any plausible defence to the charges of the two offences under s 118D(1) of the NP&W Act and I found the offences proved beyond a reasonable doubt.

BACKGROUND FACTS IN GARRETT v PORT MACQUARIE-HASTINGS COUNCIL

33 As noted in par [5] above, on 15 December 2005, the council pleaded guilty to three charges under s 118D(1) of the NP&W Act that it caused damage to the habitat of the three threatened species, knowing that the land concerned was habitat of that kind. The parties have filed an agreed statement of facts that I summarise below.

34 The parties agree with my findings in the Garrett v Freeman (No. 4) that summarise the damage to the habitat of the Grass Owl by the construction of road works, noted in par [24] above. The parties also agree with my findings in relation to the impact of the construction of road works on the habitat of the Eastern Chestnut Mouse, which are also noted in par [24] above. The parties add that it is agreed that the effects of the construction on the habitat of the Wallum Froglet can be summarised as: damage by disturbance, loss of preferred wetland and sedge land areas, introduction of potentially invasive weeds and grasses and the provision of enhanced access to predators.

35 The parties agree that the council knew that the land was habitat of the three threatened species and recite the evidence described in par [228] of Garrett v Freeman (No. 4) that is briefly summarised at par [22] above.

36 There is an agreement that the matters of fact contained in the evidence that I accepted in pars [231] to [236] of Garrett v Freeman (No. 4) which are briefly summarised at par [24] above demonstrate the impact of the construction on the habitat of the Grass Owl and the Eastern Chestnut Mouse.

37 The parties agree, that at the time of the alleged offence, the council constructed a “road” running from the south to north and another from the east to west through the Partridge Creek area. Reference is made to par [229] of Garrett v Freeman (No. 4) where I explained that it is self-evident that the constructions are properly described as “roads”. This is supported by the photographs tendered in evidence that show substantial dirt roads sufficient to carry two-way traffic and the fact that the roads were constructed with geotextile fabric and surfaced with clay gravel, complete with such features as culverts and the like.

BACKGROUND FACTS IN CARTER v PORT MACQUARIE-HASTINGS COUNCIL

38 As noted in par [7] above, on 31 August 2005, the council has also pleaded guilty to the charge that it carried out reclamation work without the authority of a permit issued by the Minister contrary to s 200 of the FM Act that provides:

A local government authority must not carry out dredging or reclamation work except under the authority of a permit issued by the Minister.

39 For the purposes of the proceedings brought under the FM Act the parties agree upon the following matters.

40 The Partridge Creek wetland is connected to the Hastings River by Fernbank Creek and includes “water land” as defined in s 198A of the FM Act. The aerial photographs that make up the exhibits to the affidavit of Mr Geoffrey Richard Sainty sworn 8 April 2005, depict the approximate area of Partridge Creek and the wetland. In his affidavit Mr Sainty identified four sections of road which in his opinion protruded into the wetland as WL1, WL2, WL3 and WL4.

41 Over three months starting from September 2003, the roads were constructed by the council and included four sections constructed on “water land” as defined by the FM Act s 198A. These sections are demarcated as existing between survey pegs subsequently inserted and identified as:

· WL1 and WL1A;

· WL2 and WL2A;

· WL3 and WL3A;

· WL4 and WL4A.

42 These four sections are also found in a marked-up aerial photograph annexed to the joint experts’ report to which I will refer below. The photograph shows that three sections of the north-south road and one section of the east-west road, were constructed in or on wetlands:

· section between WL1 and WL1A - part of the north-south road;

· section between WL3 and WL3A - part of the north-south road;

· section between WL4 and WL4A - part of the north-south road;

· section between WL2 and WL2A - the east-west road.

43 The sections of the road that were not constructed on “water land” as defined in the FM Act are demarcated by broken red lines between points WL1A and WL3 and between points WL3A and WL4.

44 Mr Freeman directed the laying of pipes on or about 24 September 2003 and construction of the roads occurred in the following three months. Geotextile fabric was laid on the existing ground surface and imported clay gravel was used to fill and surface the roads. Where the roads crossed the three open watercourses, pipes were laid and culverts were built.

45 In summary, the total length of the roads constructed in wetland area is approximately 1,012.44 metres. The total bottom surface area of these sections is approximately 6,553 square metres and the total volume of earthen material and gravel constituting these sections is estimated at 1,034 cubic metres.

46 Construction of the roads on “water land” constituted “reclamation work” as defined in s 198A(a) and (b) of the FM Act. The parties agree that this work was not authorised under the Crown Lands Act 1989 or authorised by a relevant public authority as required by s 200(2)(b) of the FM Act. The parties agree that for the purposes of the FM Act the council is classed as a local government authority.

47 The Minister administering the FM Act did not issue a permit under s 201 of that Act to authorise the reclamation work and the council did not apply to the Minister for a permit for such reclamation work.

48 For the purposes of sentencing, the council admits that the construction of four sections of roads on water land was an activity by a determining authority within Pt 5 of the EP&A Act and that it failed to comply with that Act.

49 Reclamation of the wetland area has occurred as a result of the east-west road and much of the north-south road being constructed through the wetland. The roads were raised above the level of the wetland and the wetland no longer supported macrophytes, that being vegetation characteristic of wetland.

SENTENCING PRINCIPLES GENERALLY

Purposes of sentencing

50 I take into account in each of these proceedings the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedures) Act 1999 (“the Sentencing Procedure Act”):

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 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.

These purposes overlap and give statutory recognition to the common law principles of sentencing.

Sentencing considerations

51 The court must take into account the objective circumstances of the offence and the personal or subjective circumstances of the defendant when imposing a sentence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, and Veen v The Queen (1979) 143 CLR 458 at 490. The objective gravity or seriousness of the offence is given primary consideration and matters subjective to the offender must not interfere with the imposition of a penalty that adequately reflects the seriousness of the offence: see authorities referred in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at 215-6 [108]-[109] per Preston J.

Maximum Penalty

52 In sentencing an offender for a criminal offence, the fundamental consideration is the degree to which, having regard to the maximum penalties provided by the Act in question, the offender’s conduct offended against the legislative objective of protecting the habitat of threatened species under the Act: see R v Peel [1971] 1 NSWLR 247 at 262; applied in Garrett v Williams (2006) 160 LGERA 115 at [89] per Preston J.

53 Section 118D of the NP&W Act prescribes a maximum penalty of 1,000 penalty units or imprisonment for one year, or both, for the commission of an offence under s 118D(1). Since a penalty unit is $110 (s 17 of the Sentencing Procedure Act), the maximum pecuniary penalty is a fine of $110,000.

54 Section 200 of the FM Act prescribes a maximum penalty of 2,000 penalty units for the commission of an offence under s 200(1); that is, the maximum penalty is $220,000.

55 A maximum penalty is to be given careful attention and is to be used as a yardstick, for it represents the worst possible scenario for the offence: Markarian v The Queen (2005) 228 CLR 357 at [31].

Deterrence

56 A fundamental consideration to be taken into account in sentencing is the deterrence of like-minded others: s 3A(b) Crimes (Sentencing Procedure) Act. Deterrence in sentencing for environmental offences operates as a powerful factor in protecting the public from the commission of similar offences. General deterrence is particularly important: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. The court also need to ensure that the sentence would deter the particular offender.

Integrity of the system of planning and development control

57 I have found in Garrett v Freeman (No. 4) that the activity of constructing roads required a Pt 5 assessment and that Mr Freeman was aware of this - but nevertheless failed to complete one (at [263] to [265]).

58 It is beyond dispute that the purpose of the system of planning and development control is to promote the proper management of resources or land for the economic, social and environmental welfare of the community: Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 252 per Stein J. There is a strong need for general deterrence in cases of offences against s 125 of the EP&A Act consisting of breaches in planning controls generally: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at 97 [35]. In Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349, the Chief Judge of this court, Preston J, has stated that there is a need in sentencing in vegetation damage cases to uphold the integrity of the system of planning and development control (at 355-6 [72] to [77]). The same principles apply to the enforcement of similar provisions under the NP&W Act, and in particular, there is a clear need to uphold provisions of that Act designed to protect the habitat of threatened species and preserve biological diversity.

59 Also relevant to sentencing are the purposes of the NP&W Act that are set out in s 2A of that Act:

1) The objects of this Act are as follows:

(a) the conservation of nature, including, but not limited to, the conservation of:

(i) habitat, ecosystems and ecosystem processes, and

(ii) biological diversity at the community, species and genetic levels, and

(iii) landforms of significance, including geological features and processes, and

(iv) landscapes and natural features of significance including wilderness and wild rivers,

(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape…

(2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.

60 Since the provision of the NP&W Act breached by the council and Mr Freeman invokes provisions of the Threatened Species Conservation Act 1995, the purposes in s 3 of that Act are also relevant:

The objects of this Act are as follows:

(a) to conserve biological diversity and promote ecologically sustainable development, and

(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and

(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

61 I accept the prosecutor’s submission that in the circumstances the council and Mr Freeman have acted in a way that compromises the objects of these statutes, in particular the objects of the conservation of the habitat of threatened species.

SENTENCING CONSIDERATIONS IN GARRETT v FREEMAN

62 The offences committed by Mr Freeman comprised activities by a determining authority within the meaning of Pt 5 of the EP&A Act and would not have been committed if he complied with s 111(1) of that Act prior to constructing the roads. A determining authority must “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity”, and this he failed to do.

63 I also accept the prosecutor’s submission that the magnitude of the damage to the habitat of the relevant species enlivened the obligation under s 112 of the EP&A Act to prepare an environmental impact statement - if not a species impact statement either separately or as part thereof - together with the statutory obligations which flowed from that. As noted in par [24] above, I found in Garrett v Freeman (No. 4) that the construction of the roads caused damage to the habitat of the two threatened species to a significant extent.

64 As demonstrated by the amount of time taken in the hearing of the charges against Mr Freeman, it was fundamental to the commission of these offences that he caused council to fail to comply with Pt 5 of the EP&A Act - and did so knowingly: see Garrett v Freeman (No. 4) at pars [263] to [266].

Deterrence

65 When imposing a sentence, the penalty must reflect the need to deter others in a like position to the defendant from committing similar offences and that is a primary consideration in a case of this kind: s 3A(b) of the Sentencing Procedure Act.

66 As to whether the penalty must be sufficient to deter the offender from committing a similar offence, Mr D A Buchanan SC, appearing for the prosecutor, put to Mr Freeman during cross-examination that his expression of contrition and remorse was largely directed at reducing his punishment and was not genuine. Mr Buchanan acknowledges nevertheless that irrespective of whether Mr Freeman provides evidence of remorse or contrition, assuming that Mr Freeman is in the future in a position to offend against s 118D of the NP&W Act or to breach Pt 5 of the EP&A Act, his experience in these proceedings makes it unlikely he would re-offend.

67 I am convinced by Mr Freeman that he is truly sorry for his actions and that it is highly unlikely that he will re-offend. It goes against the grain of logic to suggest that someone of Mr Freeman’s background, which I have noted at the start of this judgment, would behave otherwise.

Conduct was deliberate

68 The seriousness of the offence is to be judged by, amongst other things, the extent to which the offence was committed deliberately. Offences committed deliberately are more serious than offences committed due to inadvertence or error: Bentley v Gordon [2005] NSWLEC 695 at [125] and [126] per Preston J.

69 The prosecutor submits that Mr Freeman committed the offence deliberately and relies on my finding in Garrett v Freeman (No. 4) at [264] that:

It is self evident that the construction of the roads through the habitat of threatened species would damage that habitat. If Mr Freeman did not have knowledge of this fact then, as submitted by the prosecutor, he adopted a position of “wilful blindness” as to the existence of a fact which comprised the principal offence, in which event that knowledge can be imputed.

70 For the purposes of sentencing, the prosecutor distinguishes between the state of knowledge that the land was threatened species habitat, and the fact of building the roads would damage habitat.

71 I agree that knowledge that the land concerned was habitat for relevant threatened species is an essential element of the offence itself and is not an aggravating factor. What is an aggravating factor, however, is that the conduct which caused damage to the habitat of threatened species was deliberate. The offence is complete if the person, knowing that the land concerned is habitat of that kind, then causes damage to that habitat. The causing of the damage may be accidental or inadvertent, but nevertheless would amount to an offence. In the present case it was deliberate and intentional.

72 I find that, although Mr Freeman’s error of judgement has landed him in this position, it is beyond doubt that in making that judgement he knew that the area was the habitat of the threatened species, that the construction of the roads could damage that habitat and his commission of the offence was therefore deliberate.

Purpose for the committing of offences

73 The reasons for committing offences can be taken into account in measuring its objective seriousness: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 per Badgery-Parker J. They may also be relevant to the assessment of whether re-offence is likely.

74 The prosecutor contends that Mr Freeman constructed the roads with the aim of achieving the highest and best use and maximising the return that the council would get for the land. In his affidavit dated 12 March 2007, Mr Freeman states that use of the council’s land at Partridge Creek for industrial purposes, as planned by the council’s Planning and Environment division, was not “the highest and best use of council’s land holding”. Mr Freeman accepted, however, the proposition that the highest and best use of the land would be residential development and the roads were constructed to provide interconnections for future redevelopment. In his testimony, Mr Freeman also stated that he engaged Campbell & King Pty Ltd to primarily look at the development potential of the land. On these bases, the prosecutor submits that the roads were not of a temporary nature but intended to serve long term development purposes.

75 Mr Freeman’s evidence and the council’s plan of management for Partridge Creek provides a more realistic explanation as to why Mr Freeman constructed the roads. The management plan discusses the restoration of the natural hydrological regime of the hot spot while minimising impacts on threatened species. It provides in tabular form, information about the levels of inundation of the area for particular levels of land elevation. At 0.9 metres AHD (Australian Height Datum) inundation, the percentage of time the land is wet for any given period will be 20.7 per cent at surface ground level, while the remainder will be dry. The flooded land is therefore useless for the purpose of any development other than environmental conservation.

76 In his affidavit of 12 March 2007, Mr Freeman states that in 2003 he became aware that better access was needed to be provided to the land. Some of the purposes for that access were:

a) To provide reliable internal access between the various portions of the land without the need to go onto the Fernbank Creek Road and through private land that we did not have any right of way over.

77 I accept that it is plausible that Mr Freeman carried out the works, with the view of satisfying the purposes he describes above; that is, to provide better overall access to the area, although I note that his evidence is not corroborated.

78 Mr T F Robertson SC, appearing for Mr Freeman, submits that Mr Freeman received no personal benefit, material or non-material, from the construction of the roads. I accept the submission, which is also conceded by the prosecutor. I also accept that the council itself received no material benefit from the construction of the roads, apart from the benefit it gained from providing an interconnection between the east and the western side and the south and northern sides of the Partridge Creek area. Consequently, I find that the construction of the roads falls short of putting the council in a position where it could maximise the value of its land.

Knowledge that offences committed without compliance with Pt 5 of the EP&A Act

79 I have found that Mr Freeman did not comply with the requirements of Pt 5 of the EP&A Act and that his “preliminary” or checklist REF was inadequate for the purpose of Pt 5 requirements: Garrett v Freeman (No. 4) at [238] to [252]. Although Mr Freeman’s evidence was that he did not have experience in preparing statements of environmental impact, he knew of the requirements of the statute but claimed that the checklist REF satisfied the requirements of Pt 5.

80 Nevertheless, I find that Mr Freeman deliberately proceeded with the construction of the roads, in the face of -

(a) all the material he had read which made him aware of the sensitivity of the area as habitat for threatened species,

(b) the warnings he received from inside council on the subject, and

81 I find that Mr Freeman thus ignored the regulatory environment and statutory obligations. The absence of training and process manuals is not sufficient to excuse his conduct.

82 The prosecutor also submits that Mr Freeman had significant experience in matters pertaining to an assessment as to environmental effects for the purposes of Pt 5 of the EP&A Act. The evidence, however, is to the contrary, and I do not accept the submission.

Environmental harm

General observations

83 The recognition of the harm done to the victim and the community is one of the purposes of sentencing identified by s 3A(g) of the Sentencing Procedure Act. It is also plain from the provisions of Pt 8A NP&W Act that, so far as it is concerned with threatened species and their habitats, the object of the legislature is to protect those species and their habitats from harm.

84 Where harm, loss or damage caused by an offence is substantial, it is an aggravating factor to be taken into account in determining the appropriate sentence: s 21A(2)(g) of the Sentencing Procedure Act. The prosecutor, of course, bears the onus of proving beyond reasonable doubt the matters that are adverse to the defendant and the defendant bears the onus of proving on the balance of probabilities matters which he asserts: R v Olbrich (1999) 199 CLR 270.

85 Mr Buchanan relies upon a number of facts that fall outside the findings in Garrett v Freeman (No. 4) that need to be found for the purposes of sentencing. Where there is additional evidence in the sentence hearing which would permit the court to find facts for the purposes of sentence which might be at variance with Garrett v Freeman (No. 4) which were not essential to finding either offence proved, the prosecutor submits that on a proper view of sentence, the court will not do so.

86 Mr Buchanan states that Mr Freeman conceded that the proposed works were likely to have a significant effect on the habitat of threatened species, sufficient in the opening words of s 112(1) to enliven the obligation or the requirements of Pt 5 of the EP&A Act. I expressly found in Garrett Freeman (No. 4) at [237] that the construction of the roads caused significant damage to the habitat of the threatened species and which I have summarised in par [24] above.

87 Mr Robertson relies upon an analysis of the concept of harm within the meaning of the NP&W Act. He points out that the terms “damage” and “habitat” are undefined but the concluding words of s 118D provide that the person who damages the habitat must know that the land concerned is habitat of that kind. Therefore, it becomes apparent that “of that kind” is a reference to the habitat of the particular species that are the subject of the charges. Mr Robertson further submits that the habitat must be actual habitat and cannot be potential habitat. He also relies upon the distinction between “core habitat” and “peripheral habitat”. The Macquarie Dictionary defines “damage” as “injury or harm that impairs value or usefulness” which, according to Mr Robertson, is its ordinary and natural meaning. As I understand the submission, this means that when this definition is read into the section, it can be construed as injury, or diminution in usefulness, of that land for the particular species concerned.

88 Mr Robertson then submits that the prosecutor must demonstrate that the roads were constructed through the actual habitat of particular species that inhabited the area and that damage was done to the usefulness of that land for the species concerned at that time. Only then can the prosecutor claim that the offences are serious.

89 During the sentence hearing, however, I reminded Mr Robertson of my earlier findings during the hearing on the plea of not guilty, in which he did not appear, that:

· there was damage to the habitat of the threatened species;

· that approximately 0.2 hectares of potential roosting or breeding habitat of the Grass Owl had been physically removed by the construction of the east-west road and that would indicate that “core” habitat of that species was damaged; and

· that the damage to the habitat of both the Grass Owl and the Eastern Chestnut Mouse was significant.

90 I indicated, however, that this does not preclude argument that there was no long lasting actual harm to the particular species, and that would tend to reduce the seriousness of the offences as indicated by the objects of the NP&W Act. There was a considerable amount of detailed expert evidence in the sentence hearing going to this question.

91 Mr Buchanan argues that the driving of large wide roads through the habitat of the threatened species is sufficient to sustain a finding that the offences resulted in substantial environmental harm. He relies upon my findings of Garrett v Freeman (No. 4) that the construction of the roads caused damage to the habitat of the threatened species to a significant extent at [230]; and that the roads had the potential to interfere with the hydrological conductivity in the area at [233]. I agree.

92 In my view, this sentencing hearing does not involve re-visiting the findings made in the course of the contested hearing on the plea of not guilty in Garrett v Freeman (No. 4). The concept of damage to the habitat of a threatened species involves various forms of injury and adverse consequences to the habitat. This is the focus of legislative efforts aimed at preventing or minimising environmental harm. It matters not if the proposed activity would not harm the actual habitat of a particular threatened species which inhabits the area. Rather, damage refers to an impairment or injury to the environment per se and its functioning as the habitat of the threatened species, making it less valuable, in the sense of worthiness, for the their kind. I note that most dictionary definitions of “damage” tend to cross-refer to the concept of “harm” and both expressions tend to be characterised in terms of a diminution in usefulness or value. I am prepared to adopt the same concept in applying the term “cause damage” as used in s 118D(1). The mere known presence of a threatened species on the land, in my opinion, is sufficient - if a person wishes to conduct any activity that interferes with the habitat, he or she must first carry out an assessment of any risks of damage being caused by the proposed activity.

Confounding factor of rising water levels

93 There is in evidence a joint experts’ report dated 27 March 2008 and authored by -

· Mr Philip Anthony Redpath - ecologist retained by the prosecutor;

· Mr Stephen John Stewart Debus - ornithologist retained by the prosecutor in Garrett’s cases;

· Professor Barry James Fox - Visiting Professor of Biological, Earth and Environmental Sciences, University of New South Wales retained by the prosecutor in Garrett’s cases;

· Mr Geoff Richard Sainty - wetland ecologist, Sainty and Associates Pty Ltd, wetland botanist expert witness, retained by the prosecutor in Garrett’s cases;

· Mr Arthur William White - frog biologist, Biosphere Environmental Consultants Pty Ltd, retained by the prosecutor in Carter’s case;

· Ms Annette Louise McKinley - plant ecologist, Landmark Ecological Services Pty Ltd, plant ecology and restoration expert retained by Mr Freeman and Port Macquarie-Hastings Council;

· Mr David Roydon Milledge - wildlife ecologist, Landmark Ecological Services Pty Ltd, threatened fauna expert retained by Mr Freeman and Port Macquarie-Hastings Council;

· Ms Barbara Christine Stewart - plant ecologist, Landmark Ecological Services Pty Ltd, plant ecology and restoration expert, retained by Mr Freeman and Port Macquarie-Hastings Council.

94 The joint experts’ report was prepared by the authors following a conference on site on 17 March 2008 and 18 March 2008.

95 The experts adopted Dr Sainty’s identification of four sections of road labelled WL1, WL2, WL3 and WL4 as described in par [41] and [42] above. On or about 5 February 2007, the council carried out restorative works in the area including removal of the roads. Some sections of the north-south road have not been removed and the joint report refers to these unexcavated sections of the north-south road as “linking roads” which they identify as:

· WL1A to WL2

· WL2 to WL3

· WL3A to WL4

96 The joint experts’ report notes that the ASSR project has had a substantial confounding effect on the revegetation and restoration of fauna habitat.

97 According to Mr Milledge, who was involved in fauna monitoring surveys in the Partridge Creek area in November 2007, July and August 2008 and a joint field inspection on 17 and 18 March 2008, flooding of the Partridge Creek site has occurred since the construction of the roads. In concurrence with the authors of the joint experts’ report, Professor Fox states that the permanent raising of the water level has been a confounding factor in assessing the state of the area after remediation.

98 The prosecutor submits that although rising water levels have made the Partridge Creek site less hospitable as habitat for the Eastern Chestnut Mouse, this does not mitigate the seriousness of the offence and is irrelevant to an assessment of the seriousness of Mr Freeman’s conduct in building the roads in the first place.

99 The experts found a raised water level to 0.9 metres AHD and a substantial increase in vegetation biomass resulting in changes to vegetation and fauna habitats at all four road sections. I accept the opinion in the joint experts’ report that the results of the ASSR project in maintaining ground water levels at 0.9 metres AHD have had a substantial confounding effect on the revegetation and restoration of fauna habitat since its initiation in 2004, and will have ongoing effects.

100 I take these factors into consideration and acknowledge that the current state of the area is not wholly attributable to the effects of the roads.

Environmental harm after excavation of the roads

101 It is also apparent from the joint experts’ report that the unexcavated or linking roads pose a problem in that they continue to provide access for feral predators and the experts suggest they be remediated. Ms McKinley and Ms Stewart, in particular, are of the view that linking roads need to be ripped up and directly seeded.

102 The joint experts’ report notes that Red Fox, Feral/Wild Dog and Rusa Deer tracks have been observed within the road sections along the linking road between WL1A and WL2; along the linking road between WL2 and WL3 and along the linking road between WL3A and WL4. There are, however, a number of remarks in the report that there is likely to be no lasting impact on the species if additional remediation works involving removal of geotectile and road base material and filling road sections to former ground level is carried out and predation is adequately controlled. I accept, therefore, that there is a potential for impact on the species themselves. I otherwise accept the opinions expressed in the joint report. The linking roads, which have not been ripped up and remediated, need to be restored to accelerated regeneration with access blocked to feral predators.

Extent of harm on the habitat of the Eastern Chestnut Mouse

103 Although Mr Robertson did not appear on behalf of Mr Freeman at the hearing on the plea of not guilty, I reminded him that Mr Freeman conceded that the road works harmed the habitat of the Eastern Chestnut Mouse and Grass Owl. Therefore, the only argument open to him relates to the extent of harm to the habitat and the extent of harm to the actual species themselves.

104 As noted in Garrett v Freeman (No. 4) at [72], Mr Redpath, a regional ecologist at the Grafton Office of the DIPNR, conducted a target fauna survey in the Partridge Creek area in December 2002 to evaluate the ERM report. On that occasion he observed a “thriving breeding population” of the Eastern Chestnut Mouse.

105 One such place where the mouse was found, labelled as PCS-007, was located to the east of the creek. This location was some 125 metres from the east-west road and Mr Robertson submits that for this road to have crossed the Eastern Chestnut Mouse core habitat, the mouse would have to have had a range well in excess of three hectares. On this basis, he argues that there is no possible way that the presence of the species at that location could prove that the road interfered with any part of its habitat, the mouse only having a range of half of a hectare according to Mr Redpath.

106 Another location at which the species was detected is on the eastern side of the creek, labelled as PCS-003. Since no part of the roads does bridge the creek, Mr Robertson argues that it is impossible to say that the habitat of the species was damaged by the north-south road, it being highly unlikely that the mouse can traverse creeks.

107 In December 2005, Mr Redpath undertook another survey of the area as part of the post works monitoring of the ASSR project and revisited his sample sites. No Eastern Chestnut Mouse, despite an extensive amount of trapping effort, was captured or observed. Mr Redpath states:

Comparison of site photographs does clearly demonstrate the biomass of vegetation at the three original sites has increased significantly between the first and second surveys. Of all the considerations, the increase in biomass resulting from higher water levels and recent flooding is the most likely factor influencing the presence/absence of ECM [Eastern Chestnut Mouse] in the study area.

108 Mr Redpath lists a number of land management activities and perturbations which could have the most potential to influence the presence or absence of the target species. Those factors relevantly include the construction of a weir to regulate water level and construction of an access road through the area. He notes that the wildfire in November 2002 coupled with significant rainfall in April, June and July 2005 possibly had a significant impact on the species. In particular, the conditions that exist after a wildfire are likely to favour another species, Rattus Lutreoulus or the Swamp Rat, over the Eastern Chestnut Mouse.

109 It follows that although there was a decline in the actual number of species detected in 2005, after the construction of the roads, this could be attributable to other factors cumulatively with the construction of the roads.

110 Mr Redpath notes that, prior to the construction of the roads, the wetland acted as a potential barrier to access for predators. Mr Redpath recommends a number of measures until the precise reasons for the absence of the species are established - the removal of the road being one of these measures.

111 Professor Fox, who is put forward as the world’s foremost expert on the Eastern Chestnut Mouse, opines that the failure to obtain a record of the species in the 2005 Redpath’s survey provides a strong inference that there had been substantial damage to the population from the road construction.

112 Despite the impact of the wildfire and subsequent rising water levels, Professor Fox maintains that the roads had the greatest impact. He reasons that the species is able to cope with fire and fluctuating water levels and is most affected not by fire, but by predators which emerge after fire.

113 Mr Robertson relies upon the report of HWR Ecological titled “Thrumster Sand Plain Sewerage Treatment Plant - Ecological Assessment” (“the HWR report”) dated 30 August 2005, which was carried out by Mr John-Paul King. It can be observed that, although this report is somewhat disorganised, it states that both the Grass Owl and the Eastern Chestnut Mouse were located in the Partridge Creek area after the roads had been constructed.

114 The prosecutor argues that the HWR report is deficient in a number of respects, namely; (i) the report contains no point-sourced data on the location of the reported capture; (ii) there is nothing in the report to say that what was captured was an Eastern Chestnut Mouse; (iii) the report lacked the sort of trapping and geographic information to repeat the survey; and (iv) the report says nothing about who conducted the trapping, their expertise or qualifications.

115 The prosecutor’s view is supported by Professor Fox, who opines that the HWR report lacks the very strong confirmatory evidence that would be required for this species. He also points out that in December 2005, 640 trapping nights were undertaken at Partridge Creek, which was six to seven times more than the trapping effort in the HWR report, and in which no Eastern Chestnut Mouse was found.

116 I accept the prosecutor’s submission that, for the reasons stated in par [114] above, this report cannot be reliably used to maintain a conclusion that the roads had little or no impact on the Eastern Chestnut Mouse. I also accept the opinion of Professor Fox, noted in par [115] above, which I find persuasive.

117 Mr Robertson also relies upon the ERM report which was prepared for the council in October 2002 prior to the proposed construction of an embankment at Partridge Creek to inundate the acid sulphate soil layers with surface and groundwater inflows. The ERM report states that the proposed activity is considered likely to have a significant impact and that large proportions of known and potential habitat is likely to be removed or significantly modified by the proposed extent of inundation.

118 The ERM report describes in detail the components of habitat that the species needs to survive. The Eastern Chestnut Mouse feeds on plant stems, seeds, fungi and insects, and it has a home range of less than half a hectare.

119 The species was recorded in dense sedge land habitat approximately 400 metres south of the proposed embankment location where the sedgeland consists of a common rush couch grass sedgeland vegetation community, which covers approximately 32.43 hectares. The Eastern Chestnut Mouse was not recorded at any other sedgeland habitats in the survey area. The report, however, states that the species may still occur in other areas of sedgeland habitat at lower densities. The then proposed strategy was expected to inundate approximately 54.48 per cent of the closed sedgeland habitat which includes 87 per cent sedgeland vegetation community. This represents a large proportion of known habitat and for that reason significant impact on the habitat of the Eastern Chestnut Mouse was predicted.

120 Mr Robertson also relies on the evidence of Mr Milledge. In his 2007 report, Mr Milledge states that since the wildfire at November 2002, no records of the species have been made in the area. Mr Milledge notes, however, that there is no evidence that re-colonisation of the species did in fact occur after the wildfire because there were no surveys conducted until 33 months after the fire. He also cites the competitive presence of the Swamp Rat and the possibility that the survey effort was insufficient to detect remaining individuals, as possible explanations for the absence of the species. In his opinion, the absence of the species in 2005 and 2007 is not necessarily attributable to the construction of the roads.

121 Mr Robertson notes that Mr Milledge attempted to replicate Mr Redpath’s survey in 2008 and was unable to do so at sites PCS-003 and PCS-007 due to heavy inundation as a result of the ASSR project. Mr Milledge did, however, capture two female species 300 metres south west of the site where Mr King captured the species in 2004. At this site, he noted a lower density of the competitor, the Swamp Rat, as opposed to the other three sites where the Swamp Rat contributed 76 per cent of captures and a high incidence of re-captures. In his opinion such a high presence of the Swamp Rat possibly accounts for the low incidence of the Eastern Chestnut Mouse.

122 Ms Stewart and Ms McKenley, both qualified and highly experienced ecologists, co-authored a report dated November 2007. The report attempts to evaluate regeneration of vegetation in relation to habitat requirements of the relevant threatened species. The report states that all regeneration observed along excavated road sections is in the early stages and nowhere approached the height of mature vegetation. The report notes an absence of the elements of the habitat favourable to the presence of the Eastern Chestnut Mouse such as low, dense vegetation for shelter, foraging and breeding.

123 Mr Robertson acknowledges that the north-south road traversed the type of vegetation associated with the species. He submits, however, there is no evidence that the species ever used that area.

124 The evidence clearly shows, however, that the Eastern Chestnut Mouse can occur in the vegetation type that has been disturbed by the construction of the roads. Moreover, the nature of roads, devoid from vegetation, can function as a substantial disincentive for the species to travel within the parameters of suitable habitat.

Extent of harm on the habitat of the Grass Owl

125 Mr Robertson relies on the evidence of Mr Milledge, a highly regarded ecologist with many decades of experience specifically in the area of owls and ground dwelling mammals in the north coast of New South Wales.

126 Mr Milledge applies the same coordinates that Mr Redpath had used for his targeted surveys, particularly where the grass Owl had previously been observed moving and roosting.

127 In the report annexed to his 2007 affidavit, Mr Milledge analyses the results of the surveying undertaken by his firm, Landmark Ecological Services in 2007. The survey demonstrates that the Grass Owl remains in the area, with one or two individuals present. He recorded one owl in the northern section of the study area where sightings had been made in 2002, 2004 and 2005. He also recorded that individual or another individual in the southern section. On this basis, Mr Milledge concludes that:

the continued presence of the Grass Owl in the study area suggests that threats to its survival resulting from habitat damage caused by access road construction and removal may not yet have had the significant impact predicted.

128 Mr Milledge insists, however, that the area could be only described as “potential habitat”. He further states that one can only draw the conclusion that a roost site is an actual nest for the owl, if the owl is observed with prey in its claws returning to its roost site to feed its young.

129 In his affidavit of 28 September 2008, Mr Milledge states that the Eastern Grass Owl still occupies the sedgeland-grassland habitat in the north of the catchment and that although there is no evidence of nests or young owls, repeated sightings of the species leads to the conclusion that there is likely to be at least one pair of breeding residents.

130 Mr Milledge had also used the technique of call playback to detect the owl and upon playing the sound, he observed a particular owl fly off in the opposite direction. He concluded that the owl can become habituated to the technique of call play-back and “[i]f you use call playback and get no owl response that doesn’t mean the owl isn’t there”.

131 Mr Milledge earlier accepted Mr Redpath’s proposition that a pair of owls was roosting in the northern section in 2002. At the hearing, however, he stated that he is “not absolutely 100 per cent certain that a pair was observed”. The prosecutor submits that this later dilution of his opinion should be given less weight than his earlier acceptance of Mr Redpath’s evidence.

132 In 2005, Mr Redpath recorded the monitoring of owls movements by persons he referred to as “birders”, that is local ornithologists or birdwatchers. The prosecutor submits that: “no one has ever seen a pair since 2002, therefore one can hypothesise that there’s been an impact on the Grass Owls that inhabit this area”.

133 Mr Robertson submits that the evidence of Mr Redpath is inconclusive and unreliable. Mr Redpath is not an owl expert but rather a regional ecologist who specialises in fire ecology and apart from the work at Partridge Creek and an assessment of a fauna impact statement in relation to koalas, he appears to have no papers or publications in this area. Similarly, Mr Redpath had never found the Eastern Chestnut Mouse before 2002.

134 Mr Robertson argues that the method used by Mr Redpath in 2002 to identify the roosting pair, or “benchmark”, was not subsequently replicated and therefore no valid comparison can be made. Mr Redpath had even failed to mark the sites, making them difficult to relocate in 2005. Mr Debus also gave evidence that there is no way of knowing whether Mr Redpath’s observations of the owl was of a pair unless you band the birds or radio track: one can not say on any respectable scientific basis that there has been a reduction of the use of the area by the Grass Owl.

135 Mr Robertson does, however, rely on some of the conclusions reached by Mr Redpath in relation to the effect of the fire on the owl. In his 2005 report, Mr Redpath states that:

the increased biomass resulting from increased inter-fire interval may also have implications for the Grass Owl. While not conclusive, it appears the sporadic and rare observations of Grass Owl during the 2005 survey and over the two year monitoring period are in direct contrast to the daily sightings of Grass Owl in 2002 survey. The reduced observations may also be a result of the possible decline in small mammal prey as a consequence of the 2002 wildfire. These opinions do not account for the potential timing errors made by the volunteers when undertaking monitoring (eg leaving the dusk survey sites before Grass Owls become active).

136 The 2002 Redpath’s survey states that the repeated sighting of a pair of owls of itself demonstrates that they are roosting and potentially nesting. In his 2004 affidavit Mr Redpath, however, retreats from the proposition that the observations he made of the pair of owls in 2002 suggest that they were raising young.

137 Dr Debus also appears to accept Mr Redpath’s conclusion that a section of the roads went through a roosting site for a pair of owls.

138 The prosecutor uses the roosting pair identified in 2002 at PCS-001 and PCS-002 as a “benchmark”. Against this “benchmark” the sighting of different birds at dawn and dusk in the 2007 Milledge’s survey are few and no pair was found as behaving in the way a pair was observed to behave in 2002.

139 The prosecutor relies upon the description in the joint report of the east-west road bisecting a site where a pair of owls were roosting (if not nesting) evidences immediate harm.

140 The signatories to the joint experts’ report of 2008, noted in par [93] above, agree that there will be no lasting impact on the Grass Owl if introduced predators are adequately controlled, revegetation continues and comprehensive additional remediation works, involving removal of geotextile and road base material and filling road sections to former ground levels would be carried out.

141 As I indicated at the hearing, the joint experts’ report accepts that there was the removal of a known roosting site and the signatories to this report include Mr Milledge and Ms Stewart. However, although this evidences harm to the actual habitat of the species, I do accept that it was a small area, in proportion to the available potential habitat for the species. During the hearing, Mr Robertson provided some calculations directed at the area of habitat removal and submits that the area of habitat removal was well under one per cent of the total area of known or potential habitat for the owl, making the actual area of physical removal minute.

142 I am therefore prepared to make a finding, on the balance of probabilities, that there was minimal actual impact on the species, but for the fact that a section of road was actual roosting habitat. The species continues to be found in the area and there is a possibility that it may be found more often if it had not become habituated to the calls used to attract it.

Feral Predators

143 The prosecutor relies on the evidence of Professor Fox of April 2008 that there was evidence of paw prints on the roads to support the conclusion that construction of the roads has provided more ready access to feral predators.

144 According to Mr Milledge, there is a lack of scientific evidence to establish that the Eastern Chestnut Mouse and the Grass Owl are subject to predation by foxes. In his own studies he was unable to find any evidence of the mouse or owl in fox scats - apart from the hair of a mouse on one occasion some distance away from the target area.

145 The prosecutor argues that no-one suggested the lack of scientific evidence of this sort meant there was any doubt that providing access for dogs, cats and foxes increased the risk of predation. The extension of the Feral Predator Control Program, to which I will refer below, to include Partridge Creek also symbolises acknowledgement of that risk.

146 Mr Robertson argues that there is no evidence that predation by foxes would be of a concern at point PCS-007, where Mr Redpath had captured the Eastern Chestnut Mouse in 2002. Mr Robertson relies upon the evidence of Mr Milledge that predation is of even less concern now because the area is inundated and would always, or at least for some time, be inundated as a consequence of the ASSR project, thereby reducing its ability to function as habitat for the species. Similarly, the area at point PCS-003, where the Eastern Chestnut Mouse was found, is submerged and has effectively been sacrificed to the ASSR project. For these reasons and those in par [144] above, Mr Robertson asserts that one can not possibly draw a conclusion beyond reasonable doubt that ingress of feral predators equals predation of the mouse.

147 Mr Robertson put a series of questions to Mr Redpath in cross-examination, the answers to which demonstrate the presence of both feral deer and wallabies in the area. Mr Redpath accepted that although feral deer are not feral predators, they trample the ground and create pathways through the area that can be utilised by other feral predators. Mr Robertson thus submits that there was already a level of predation in the area even before the construction of the roads, which Mr Freeman also identified.

148 The joint experts’ report does, however, suggest that introduced feral predators cause an impact on the species. The authors of the report also agree, in a general sense, that changes to the Partridge Creek area as a result of the construction of the roads allows access for introduced predators - including Red Fox - into the habitat of the Grass Owl and the Eastern Chestnut Mouse. It states that there will be no lasting impact “if introduced predators, including Red Fox…are adequately controlled” in conjunction with other measures discussed above being taken.

Conclusion on environmental harm

149 I have previously found, in Garrett v Freeman (No. 4), that the construction of the roads caused damage to the habitat of the threatened species to a significant extent. I also found that the roads had the potential to interfere with the hydrological conductivity of the area.

329 The reclamation works were carried out without a permit issued by the Minister under the FM Act in circumstances where it must properly be inferred that the council was aware that a permit was required.

330 The reclamation works were carried out without any genuine prior assessment of their potential to affect the aquatic habitat. Had the council applied for a permit, likely impacts on the wetland would have been properly considered.

331 The prosecutor submits that the reclamation works carried out by the council in constructing the subject roads were significant in scale. A total of about one kilometre of road was emplaced in four sections of the wetland. Much of the north-south road and all of the east-west road was constructed through wetland. Those sections of the roads had the effect of reclaiming area of wetland. That was because the roads were raised above the level of the wetland and no longer supported macrophytes and vegetation characteristic of the wetland.

332 It is an agreed fact that the total length of the roads, excluding those parts which are not alleged to have been constructed in wetland areas, are just over a kilometre, approximately 1012.44 metres, comprising 104.33 metres for the section between WL1 and WL1A; 498.11 metres for the section between WL2 and WL2A; 149.40 metres for the section between WL3 and WL3A and 260.59 metres for the section between WLA and WL4A. It is also agreed that the total bottom surface area of the roads, again excluding parts that are not constructed in wetland, is approximately 6,553 square metres, comprising 709 square metres for the section between WL1 and WL1A; 3,504 square metres for the section between WL2 and WL2A; 864.3 square metres for the section between WL3 and WL3A and 1,475 square metres for the section between WL4 and WL4A. The total volume of earthen material and gravel constituting the roads, excluding parts that are not constructed in wetland, is estimated to be 1,034 cubic metres, comprising 161 cubic metres for the section between WL1 and WL1A; 378 cubic metres for the section between WL2 and WL2A; 221 cubic metres for the section between WL3 and WL3A and 274 cubic metres for the section between WL4 and WL4A.

Partridge Creek wetland

333 I take judicial notice of the fact that wetlands effectively function, inter alia, as a nursery for fish and are an important component of fisheries stocks. That is, wetlands contain fish habitat as that term is used in Div 3 of Pt 7 of the FM Act.

334 In relation to the general importance of wetlands, the report prepared by Sainty & Associates Pty Ltd in July 2004, states:

W etlands are among the most productive of ecosystem types and contribute greatly to the vitality and productivity of the river systems and estuaries that they drain into [Moss, B (1988) Ecology of fresh waters. Man and medium, 2nd ed, Blackwell Scientific Publications]. They are therefore an extremely important part of the landscape and need to be adequately represented in decision making processes at a number of spatial scales.

…wetlands are an abundant source of food that includes large numbers of invertebrates, frogs, fish and aquatic plants. Naturally fluctuating water levels, particularly following flood events, ensures a diverse and abundant supply.

335 In his affidavit of 18 July 2005, Mr Sainty, a practising wetland ecologist, states that the Partridge Creek wetland has a high ecological value and comprises an “unusual assemblage” of vegetation and is worthy of conservation.

Environmental harm

336 The environmental harm caused by the offence is the harm caused to the aquatic environment and not any harm that may have been occasioned to threatened species in this prosecution. In the present case, the joint experts’ report establishes beyond a reasonable doubt that it is likely that the reclamation work harmed, that is, caused damage within the meaning of s 203(1) of the FM Act, to fish habitat. I repeat the observation as to the meaning of damage in this context, noted in par [92] above.

337 The prosecutor submits that the evidence establishes beyond a reasonable doubt that the placement of the roads impacted adversely on the Partridge Creek wetland during the period of approximately three years before they were removed, by interfering with the hydrology of the wetland, causing discernible ponding on the upstream side of the roads away from the culverts and consequential changes to plant assemblages; and creating the potential to obstruct the passage of fish.

Confounding factors

338 The prosecutor further submits that the value of the wetland is not reduced by way of significant past disturbances such as the ASSR project. Prior to the construction of the roads, the wetland had fish stocks, but these were apparently limited because of the particular acid sulphate soil problem which existed. These factors confound the question of what harm was caused to the aquatic environment of the wetland by the commission of the offence.

339 I take into account that, prior to the commission of the offence, the wetland was highly modified and significantly degraded by acidic discharges caused by prior exposure of acid sulphate soils; when the offence was committed, the council had already commenced the ASSR project which involved raising the water levels; and the roads were removed in February 2007 and the affected area continues to undergo a process of recovery. That is, consideration of harm should have regard to the pre-existing factual matrix insofar as the pre-existing environment promoted or had an impact upon fish habitat. I take into account the full effects of the ASSR project.

340 The parties agree that the road running north to south was constructed along what Mr Aaso recalls was an old track running along roughly the same axis as the north-south road: Garrett v Freeman (No. 4) at [26]. That track, however, was at ground level and did not interfere with the hydrological conductivity on the land which was a consequence of the laying of the road base and the construction of the roads.

341 Due to these confounding factors, it is difficult to determine the degree to which the aquatic environment of the wetland was harmed by the commission of the offence, although there was actual harm and potential for further harm.

342 The prosecutor submits that, except where the roads included culverts for the passage of water underneath them, the roads formed a barrier to the movement of water across the area that did not previously exist. The road therefore interfered with the hydrological conductivity of the area.

343 Mr Sainty, an experienced ecologist who first inspected the wetland on 31 May 2004, said in his report of July 2004, of what is now referred to as the east-west road:

The road effectively divides the wetland into two sections (Fig. 7) and has started to cause “ponding” in the upper part as is evidenced by the wetter areas and changes to plant assemblages on the southern side of the road (Fig. 8).

344 Consistent with the above observation, Mr Sainty concluded:

Evidence of wetter areas adjacent to the road is already apparent where there has been a change of species abundance and diversity along the edge of the road.

345 The council relies on the evidence of Mr Rogers. In his affidavit of 22 September 2008, Mr Rogers states that the construction of the roads did not have any appreciable impact on surface hydrology because of inundation after the flood events; and high hydraulic soil conductivities. I do not accept this evidence because it is contrary to the evidence of ponding that was observed by Mr Sainty.

346 In so far as Mr Rogers’ proffered his opinion that there was no hydrological impact, Mr Sainty’s evidence should be preferred. Mr Sainty is a qualified and highly experienced wetland ecologist, whereas Mr Rogers, although having attained qualifications in environmental management, lacks the expertise needed in wetland ecology. Secondly, Mr Sainty’s opinion was supported by well articulated reasoning and not seriously challenged in cross examination or in any way undermined.

347 The council submits that in the joint experts’ report, Mr Sainty contributed only to line items headed “vegetation” and did not attend the second day of joint conferencing. He is not an expert on actual or potential acid sulphate soils and understood the ASSR project, to use his words, “only to a very limited extent.” He withdrew from this topic as “beyond my expertise”. However, the council continues to rely on his observation that “there are things going on [at Partridge Creek] all the time, there are changes, and the more you go there the more you observe variations on a theme”. The council submits that none of his evidence contradicts the evidence of other experts as to changes to habitat being brought by the ASSR project. In the council’s submission, a proper understanding of the context in which the offences occurred would allow the court to draw the conclusion that there is no lasting environmental harm as a consequence of any discrete temporal changes attributable to the construction of the roads. Furthermore, those discrete temporal changes were within the “variations on a theme” comprising the history of this site. I agree with this last submission if it relates to the period following the remediation, but it could not apply to the three-year period when the roads were in place.

Obstruction of fish passage

348 The prosecutor submits that the presence of the roads in the wetland, prior to their removal, had the potential to obstruct the passage of fish in the wetland during periods of prolonged low rainfall and drought. By creating the potential for the obstruction of fish passage, the prosecutor submits that the offence undermines the goal of preserving biodiversity.

349 Mr James Knight, a scientific officer employed by the Department of Primary Industries, states in his affidavit of 8 August 2005, that during periods of prolonged low rainfall and drought the roads acted as a levee bank, channelling water down the creeks and forcing the water through the culverts at higher than normal velocities. This had the potential to obstruct fish movement due to the fishes’ inability to swim against these strong currents. The evidence that there was potential for obstruction of fish passage was corroborated by Mr Sainty and Mr Knight credibly adhered to his opinion in cross-examination.

350 The council submits that Mr Knight’s evidence should be given little weight. His evidence goes largely towards the separate offence in s 219 but then, only so far as the roads provided a potential obstruction to the passage of fish.

351 I accept the opinions of Mr Knight. They demonstrate the harm caused by the offence, which is a consideration under s 21A(2)(a) of the Sentencing Act. Mr Knight does not suggest that there is lasting environmental harm to fish habitat which cannot be remediated. Accordingly, I find that there was no lasting environmental harm to fish habitats and the harm has been largely ameliorated as a result of the remediation carried out by the council, although somewhat belatedly. The evidence of both Mr Sainty and Mr Knight shows clearly and beyond a reasonable doubt that the roads interfered with the hydrology of the wetland, forming a barrier to the movement of water and the potential for obstructing the passage of fish. I thus accept the prosecutor’s submissions noted in par [337], [342] and [348] above.

General and specific deterrence

352 The prosecutor submits that there is a need for a specific deterrent. Firstly, the council constructed the roads in the wetland in circumstances where it must be taken to have been aware of its obligation to first obtain a permit from the Minister. Secondly, for a considerable period of time, the council erroneously and unreasonably adopted the position, including in response to the prosecutor’s official inquiry, that it had carried out a Pt 5 assessment. Thirdly, by the time of the hearing, the council still maintained that it had carried a Pt 5 assessment. The prosecutor submits that this demonstrates an inadequate insight of the council into its conduct in committing the offence and calls into play the need for specific deterrence.

353 The prosecutor also submits that the fact that Mr Freeman, despite his very senior position and scope of his authority, had received no training in relation to the need to obtain permits from the Minister prior to constructing roads in a wetland, increases the need for specific deterrence.

354 The council submits, however, that there is no need for individual deterrence and relies on the affidavits of Mr Rogers and Mr Persson that are discussed under the heading of “Remediation, Amelioration and Recompense” at pars [358] to [364] below. I agree with the council’s submission. It is highly unlikely that the council will again offend, particularly since the council has now adopted the procedures described in par [361] below.

355 There is, however, a need for general deterrence in this case to ensure that other local government authorities are not tempted to circumvent the requirement to obtain a permit prior to carrying out works which have the potential to significantly affect the biodiversity of fish and aquatic vegetation.

State of mind

356 The defendant’s state of mind at the time of the offence can be an aggravating (or mitigating) feature of the offence when assessing the objective gravity or circumstances of the offence: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [207] to [210] and the cases cited therein.

357 The council submits that the court would not find its state of mind an aggravating feature of the offence when assessing the objective gravity or circumstances of the offence. In my opinion this is a neutral consideration in the present case. It is difficult to apply a state of mind to a corporate body, except in those cases where the corporate body is the alter ego of a particular individual.

Remediation, amelioration and recompense

358 The parties agree that the council has undertaken substantial remediation works by removing the offending portions of the roads. Despite this, the prosecutor submits that the roads were in place for a period of about 3 years prior to their removal and subsequent remediation. Moreover, the council received the affidavit of Mr Sainty sworn 18 July 2005 soon after that date, but did not take the action to remove the roads for another 18 months.

359 I acknowledge the fact that the council has undertaken remediation work, but it has done so only belatedly. I seems to me that it did so only after the appointment of the present administrator, who unlike the previous administration, has taken a serious view of this and the other offences with which the council is charged.

360 The parties agree that the council has taken steps to improve its systems in relation to identifying the need for permits under the Act and in relation to assessment of likely impacts pursuant to Pt 5 of the EP&A Act.

361 The council relies on the evidence of Mr Rogers which is that, following a process that commenced in 2004, a project management framework was implemented from November 2005. The framework is a comprehensive suite of guidance, tools, checklists and references delivered on an intranet platform. Mr Rogers also states that since 1 July 2008, compliance with it has been made mandatory by a direction of the former director within council’s water and natural resources division. The staff in the division have completed training in relation to the framework and such training will be formally extended to the remainder of the council’s staff. The review of the council’s processes relating to the assessment of environmental and planning matters by Environmental Resource Management Australia (ERM) was formally adopted by the council on 3 September 2008. As from 3 September 2008, the ERM training manual for Pt 5 assessments was adopted as a formal procedure. Mr Rogers also states that from May 2005, matters for determination pursuant to Pt 5 of the EP&A Act were referred from the water and natural resources division for assessment by a manager of another division, and have now been the subject of wholesale review training. Mr Rogers concludes that “any risk of reoccurrence…has been addressed and is being adequately managed by council”. I take all these matters into account in the sentencing process.

362 The council also relies on the evidence Mr Persson, that the council has adopted a systematic and organisational wide approach capable of achieving success and sustainability which is termed the “business excellence framework”. The council’s manual for dealing with Pt 5 matters aims to guide members of the council in decision-making processes, and specifies factors to be taken into account, one of which is the effect of the decision on the environment. I take this into account also in the sentencing process.

363 The prosecutor submits, however, that until further changes are made to the system after cross-examination of Mr Rogers on 30 September 2008, the assessment system in place is still apparently defective in that there is a potential for the requirement to obtain a permit under s 200 of the FM Act to be missed where works were being carried out on wetland areas which, whilst intermittently inundated, were dry at the time when the works were contemplated. I note that this appears to be a defect which should be remedied.

364 I accept the evidence of Ms McKinley, whose opinion is also shared by Ms Stewart, that the prognosis for successful regeneration in accordance with the restoration targets as set out in the Partridge Creek Restoration and Conservation Management Plan, is good.

Contrition and remorse

365 The council submits that through its actions and words, it has demonstrated genuine contrition and remorse: s 21(3)(i) of the Sentencing Procedure Act; Environmental Protection Authority v Waste Recycling and Processing Corp at [203].

366 The council submits that it had carried out the four forms of action underlying genuine contrition and remorse discussed in Environmental Protection Authority v Waste Recycling and Processing Corp. In that case the four forms of action underlying genuine contrition and remorse are identified as (i) the speed and efficiency to rectify the harm caused or likely to be caused by the offence; (ii) voluntarily reporting the commission of the offence and any concomitant environmental harm to the relevant authorities; (iii) the taking of action to address the causes of the offence; and (iv) the personal appearance of corporate executives in court and their evidence outlining genuine regret and stating future plans to avoid a repetition of such offences.

367 As to the first form of action, the council has sought to rectify any harm caused or likely to continue to be caused, by doing the following:

· Carrying out restoration work including the removal of the roads in early 2007. Mr Persson states that “to-date $31,866 has been expended by council in carrying out remediation works in the nature of removal of the roadways, these works being carried out in February/March 2007”.

· Commissioning and adopting on 9 July 2008, the Partridge Creek Ecological Restoration and Conservation Management Plan that outlines actions over a 10 year period to facilitate the restoration of the wetland and the long-term conversion of habitat for threatened species. Over its 10 year life, total implementation costs are estimated at $350, 000.

· Proposing to secure the conservation status of the area the subject of the Partridge Creek Ecological Restoration and Conservation Management Plan by its future zoning.

· Resolving, on 3 September 2008, to extend council’s existing Thrumster Feral Animal Control Program to include the land at Partridge Creek, as part of the implementation of the Partridge Creek Ecological Restoration and Conservation Management Plan.

368 In relation to the third form of action, council has put in place systems to avoid re-offending: s 21A(3)(g) of the Sentencing Procedure Act.

369 The council carried out the fourth form of action when its administrator, Mr Persson, personally gave evidence and publicly expressed genuine regret and outlined the council’s future plans to avoid any repetition of such offences.

370 I again note that Mr Freeman resigned from council on 11 September 2008.

Co-operation with the authorities

371 The court may impose a lesser penalty than it would otherwise impose having regard to the degree to which the offender has assisted in the investigation of, or in proceedings related to, the offence concerned or any other offence: s 23(1) of Sentencing Procedure Act.

372 The council submits that it should be entitled to a lesser penalty on this ground. To the extent that it did not provide the degree of assistance expected by the prosecutor for the purposes of recommending a reduction, it was by Mr Freeman, acting on the advice of the council’s then legal representatives, that the council did such a thing. I reject this submission. The council’s then legal representatives were acting on behalf of the council when advising Mr Freeman.

373 I accept the prosecutor’s submission that the council was not wholly co-operative in the investigation of the matter. It declined to make its officers available for interviewing by the prosecutor and it provided answers to the prosecutor’s official questioning which, in relation to the purported assessment of the works under Pt 5 of the EP&A Act particularly, were incorrect and misleading.

Other considerations

374 The prosecutor submits that although regard should be had to the principle of even-handedness, there is no established pattern of sentencing for offences of this type. In Carter v Wall [2002] NSWLEC 124, Cowdroy J imposed a fine of $10,000, discounted from $15,000 on an individual offender for a serious contravention of s 205 of the Act, involving removal of about 3,000 mangrove trees in a tidal channel adjacent to the Richmond River. The maximum penalty at the time was a fine of $22,000 so the fine represented about 45 per cent the maximum, or 68 per cent of the maximum prior to discount. Ultimately, in the circumstances, the prosecutor submits that the offence falls somewhere in the middle of the range for an offence of this type.

375 I also take into account that council has no prior convictions; the evidence of Mr Rogers that the council has a good environmental track record; and that the council has pleaded guilty to the offence.

376 The parties agree that the council entered a plea at an early stage and is entitled to a substantial discount for the utilitarian value of the plea; namely the full discount of 25 per cent.

Payment of costs

377 The council consents to an order to pay the prosecutor’s costs in the agreed sum of $80,000. The prosecutor seeks a moiety of the fine under s 122 of the Fines Act 1996.

378 The council also has liabilities for costs consequent on the offences which are relevant in any consideration of the size of any fine to be imposed: Environment Protection Authority v Middle Harbour Constructions Pty Ltd at [54]. As at 26 September 2008, the council has incurred $451,200 in relation to its costs in all matters before me. As previously noted, however, I disregard the council’s payment of Mr Freeman’s costs for the reasons stated in par [306] above.

Appropriate penalty

379 The offence is a serious one and the council allowed the roads to remain in place, with their consequent adverse impact, for three years before commencing remediation work. A penalty in the mid-range is appropriate. The council is, however, entitled to the full discount of 25 per cent for its early plea of guilty and an overall discount of 30 per cent for the other mitigating circumstances, including the fact of remediation.

380 In my view, however, having regard to the maximum penalty of $220,000, the appropriate penalty is $110,000, discounted by 30 per cent to $77,000. Since, however, the offence was committed in the course of the same conduct as those in the proceedings Garrett v Port Macquarie Hastings Council, it follows that the principle of totality applies. That is, all the offences are to be seen as connected and punished accordingly. The total criminality of the council thus calls for a penalty, in my opinion, of $35,000. Although this is higher than the penalties imposed on the council for the offences against s 118D(1) of the NP&W Act, the penalty in this case must reflect the higher maximum monetary penalty under s 200 of the FM Act, which would be consistent with the legislative intent to regard this type of offences more seriously. There will be an order for the payment of a moiety of the fine to the prosecutor under s 122 of the Fines Act.

381 I make the following orders in the proceedings Carter v Port Macquarie Hastings City Council:

(1) The defendant is convicted of the offence as charged.
(2) The defendant is fined in the sum of $35,000.
(3) One half of the fine, namely $17,500, is to be paid to the prosecutor.
(4) The defendant is to pay the prosecutor’s costs in the agreed sum of $80,000 in accordance with section 253 of the Criminal Procedure Act 1986 (as in force at 13 April 2005).
(5) The exhibits may be returned.

CONCLUDING REMARKS

382 The overall result may be summarised as follows. For the two charges against Mr Freeman under the NP&W Act, he is to pay total fines of $57,000 plus the prosecutor’s costs in the sum of $167,500. For the three charges against the council under the NP&W Act, it is to pay total fines of $45,500 plus the prosecutor’s costs in the sum of $114,000. For the charge against the council under the FM Act, the fine is $35,000 and the council is to pay the prosecutor’s costs in the sum of $80,000.

I hereby certify that the preceding 382 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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CITATION:	Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1
PARTIES:	Nos. 50043 of 2005 & 50044 of 2005 PROSECUTOR: Stephen Garrett DEFENDANT: Geoffrey Noel Freeman Nos. 50040 of 2005; 50041 of 2005 & 50042 of 2005 PROSECUTOR: Stephen Garrett DEFENDANT: Port Macquarie-Hastings Council No. 50012 of 2005 PROSECUTOR: Peter Carter DEFENDANT: Port-Macquarie Hastings Council
FILE NUMBER(S):	50040 of 2005; 50041 of 2005; 50042 of 2005; 50043 of 2005; 50044 of 2005 & 50012 of 2005
CORAM:	Lloyd J
KEY ISSUES:	ENVIRONMENTAL OFFENCES :- Penalty - offences committed by a person concerned in the management of a corporation - plea of not guilty - conviction - damage to threatened species habitat - construction of roads - no valid environmental assessment of the activity - no actual harm to species - totality principle Penalty - offences committed by a corporation- guilty plea -damage to threatened species habitat - construction of roads - no valid environmental assessment of the activity - no actual harm to species - totality principle Penalty - offence committed by a corporation - carrying out reclamation work without a permit - guilty plea- damage to aquatic environment - totality principle
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 14, 17, 21A, 22, 23 Criminal Procedure Act 1986 s 253 (repealed) Criminal Procedure Act 1986 ss 257A-257G Environmental Planning and Assessment Act 1979 Pt 5 ss 5A, 111, 112 Fines Act 1996 ss 6, 122 Fisheries Management Act 1994 ss 3, 6, 198, 198A, 200, 203, 220 Local Government Act 1993 Ch 11, s 220 National Parks and Wildlife Act 1974 ss 2A, 5, 118D, 118G, 137, 138, 175A, 175B, 176(3) Threatened Species Conservation Act 1995 s 3
CASES CITED:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Bentley v Gordon [2005] NSWLEC 695 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Carmody v Brancourts Nominees Pty Ltd (No.2) [2003] NSWLEC 84 Carter v Wall [2002] NSWLEC 124 Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440 Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273 Environment Protection Authority v Tenterfield (2000) 112 LGERA 173 Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 Garrett v Freeman (No.3) [2007] NSWLEC 139 Garrett v Freeman (No.4) [2007] NSWLEC 389 Garrett v Williams (2006) 160 LGERA 115 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Latoudis v Casey (1990) 170 CLR 534 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 Oshlack v Richmond River Council (1993) 82 LGERA 222 Power v Penthill House Pty Ltd (1993) 80 LGERA 247 R v Carroll [2008] NSWCCA 218 R v Cohen [2002] NSWCCA 339 R v Gallagher (1991) 23 NSWLR 220 R v H (1980) 3 A Crim R 53 R v Henry (1999) 46 NSWLR at 353 R v Kalache (2000) 111 A Crim R 152 R v Olbrich (1999) 199 CLR 270 R v Peel [1971] 1 NSWLR 247 at 262 R v Pritchard (1999) 107 A Crim R 88 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Wisbey [2001] NSWCCA 434 R v Ryan (2003) 141 A Crim R 403 R v Winchester (1992) 58 A Crim R 345 Ryan v The Queen (2001) 206 CLR 267 The Queen v De Simoni (1981) 147 CLR 383 Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 Veen v The Queen (1979) 143 CLR 458 at 490 Yrttiaho v Public Curator (Queensland) (1971) 125 CLR 228
DATES OF HEARING:	28/04/08-01/05/08, 29/09/08-03/10/08, 7- 8/10/08
DATE OF JUDGMENT:	6 February 2009
LEGAL REPRESENTATIVES:	Nos. 50040-50044 of 2008 PROSECUTOR: D A Buchanan SC SOLICITORS: Department of Environment and Climate Change (Legal Services Branch) No.50012 of 2005 PROSECUTOR: T G Howard (barrister) SOLICITORS: Crown Solicitors Office Nos. 50043-50044 of 2005 DEFENDANT: T F Robertson SC SOLICITORS: Donovan Oates Hannaford Lawyers Nos. 50040-50042 and 50012 of 2005 DEFENDANT: C J Leggatt SC and H P Irish (barrister) SOLICITORS: Maddocks