Garrett v Williams
[2007] NSWLEC 56
•20 February 2007
Land and Environment Court
of New South Wales
CITATION: Garrett v Williams [2007] NSWLEC 56 PARTIES: PROSECUTOR:
DEFENDANT:
Stephen Garrett
Paul Douglas WilliamsFILE NUMBER(S): 50003 of 2006; 50004 of 2006; 50005 of 2006 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- picking endangered ecological community - plea of guilty - aggravating factors- done for commercial reasons of proposed development - misleading investigation - withholding relevant information and records - prior criminal record - sentencing considerations - premeditated and deliberate conduct - objective seriousness of offence LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, s 8(2), s 21A(2)(g), s 21A(2)(m), s 21A(3)(k), s 22, s 86(1)(e)
Crimes (Sentencing Procedure) Regulation 2000 cl 23
Fines Act 1996 s 6
National Parks and Wildlife Act 1974 s 5, s 118A(2), s 118D, s 138(1)(b)(vii), s 175B
Protection of the Environment Operations Act 1997
Threatened Species Conservation Act 1995 Sch 1CASES 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;
Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349;
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Carlino v Leichhardt Council (2005) 144 LGERA 235;
Carmody v Brancourts Nominees Pty Ltd; Carmody v Brancourt [No. 2] [2003] NSWLEC 84;
Director General of National Parks and Wildlife v Wilkinson & Anor; Director General of the Department of Land and Water Conservation v Wilkinson & Anor [2002] NSWLEC 171;
Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739;
Environment Protection Authority v Gardner, NSWLEC, 7 November 1997, Lloyd J, unreported;
Environmental Protection Authority v Barnes [2006] NSWCCA 246;
Fletcher Construction Australia Ltd v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66;
Garrett v Williams [2006] NSWLEC 785;
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189;
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464;
R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249;
R v Milford Haven Port Authority [2000] JPL 943;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
State Pollution Control Commission v T J Bryant Pty Ltd, NSWLEC, 11 June 1991, Stein J, unreported;
Veen v The Queen (No.2) (1988) 164 CLR 465DATES OF HEARING: 02/11/2006 and 30/01/2007
DATE OF JUDGMENT:
20 February 2007LEGAL REPRESENTATIVES: PROSECUTOR:
E L Fullerton SC
SOLICITOR:
Stephen Garrett
Department of Environment and ConservationDEFENDANT:
I S Lloyd QC
SOLICITORS:
Minter Ellison
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Lloyd J
Tuesday, 20 February 2007
LEC Nos. 50003 of 2006; 50004 of 2006 and 50005 of 2006
STEPHEN GARRETT v PAUL DOUGLAS WILLIAMS [2007] NSWLEC 56
JUDGMENT
Introduction
1 HIS HONOUR: The defendant, Paul Douglas Williams, has pleaded guilty to three offences against s 118A(2) of the National Parks and Wildlife Act 1974 (“the NPW Act”)
2 Section 118A(2) states:
- A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community.
3 The question for determination is the appropriate penalty which should now be imposed.
4 The charges allege that the offences were committed by a corporation, Serenity Cove Management Pty Limited, and the defendant is charged in his capacity as a director of that corporation: see s 175B of the NPW Act.
5 Each charge alleges that between 1 December 2003 and continuing until about 29 February 2004, the corporation picked plants that were part of an endangered ecological community. The first charge (No. 50003 of 2006) alleges that the plants picked comprised “Sydney Freshwater Wetlands”. The second charge (No. 50004 of 2006) alleges that the plants picked comprised “Kurnell Dune Forest”. The third charge (No. 50005 of 2006) alleges that the plants picked comprised “Sydney Coastal Estuary Swamp Forest”. The maximum penalty for an offence against s 118A of the NPW Act is $220,000 or imprisonment for two years, or both, and an additional $11,000 for each whole plant that was affected by or concerned in the action constituting the offence.
6 “Pick” is defined in the NPW Act (s 5) to mean “gather, pluck, cut, pull up, destroy, poison, take, dig up, remove or injure the plant or any part of the plant.”
7 An “endangered ecological community” is defined in s 5 of the NPW Act as having the same meaning as in the Threatened Species Conservation Act 1995, which in turn defines it as an ecological community specified in Pt 3 of Sch 1 of that Act. At the time of these offences that Schedule list the following, inter alia:
Sydney Coastal Estuary Swamp Forest in the Sydney Basin Bioregion (as described in the final determination of the Scientific Committee to list the ecological community)”.Kurnell Dune Forest in the Sutherland Shire and City of Rockdale (as described in the final determination of the Scientific Committee to list the ecological community)
- Sydney Freshwater Wetlands in the Sydney Basin Bioregion (as described in the final determination of the Scientific Committee to list the ecological community)
The relevant facts
8 The relevant evidence is contained in many lever-arch files of affidavits. The utilitarian value of the plea of guilty is demonstrated by the fact that the parties have been able to condense the relevant facts into an agreed statement of facts, one affidavit, an accompanying bundle of documents and photographs.
9 The land upon which the offences took place is known as Nos. 238-258 Captain Cook Drive, Kurnell, being lot 102 in deposited plan 1027438, and was at the relevant time owned by Serenity Cove Business Park Pty Ltd. The defendant was the sole director and secretary of that company. A number of other corporations operated from the premises, including Serenity Cove Management Pty Ltd, all of which the defendant was also the sole director and secretary.
10 In early January 2004 the defendant, on behalf of Serenity Cove Management Pty Ltd, approached IDS Consulting Services Pty Ltd, a company that specialises in clearing vegetation and bushfire mitigation work. On or about 17 January 2004, Mr David Silcock, the general manager of IDS Consulting Services Pty Ltd, together with Mr Lance Fairbrother, met the defendant and Mr Richard Harris, the director of development of Serenity Cove Management Pty Ltd, at the subject property, where the defendant showed Mr Silcock and Mr Fairbrother areas he wanted cleared and mulched. As a result of the meeting a decision was taken that the removal of vegetation would be best achieved through the use of an excavator and tractor and with mulching equipment and an excavator with a groomer attached.
11 On 23 January 2004, Serenity Cove Management Pty Ltd entered into a contract with IDS Consulting Services Pty Ltd for the clearing of vegetation on the various areas of the site. The contract was signed by the defendant and by Mr David Silcock, the general manager of IDS Consulting Services Pty Ltd. IDS Consulting Services Pty Ltd in turn arranged for two sub-contractors to supply the equipment and do the work under Mr Fairbrother’s supervision.
12 The clearing of vegetation and mulching in the areas nominated by the defendant took place from 29 January 2004 to 8 February 2004. The defendant went to the site about four or five times whilst the clearing was being undertaken, when he discussed with Mr Fairbrother the work being carried out by the sub-contractors. The defendant expressed satisfaction with the work being then undertaken.
13 Several areas of the subject land were cleared. The parties have agreed that the total of the areas cleared is no more than 2.9 hectares. The areas cleared contained significant numbers of native plants which, by their type and combination, comprised each of the relevant endangered ecological communities.
14 The clearing came to the attention of Sutherland Shire Council on about 10 February 2004 after being advised by members of the public. Shortly thereafter officers of the council and an officer of the Department of Environment and Conservation (“the DEC”), Mr Jason Bentley, went to the site where they saw tracts of cleared land with virtually all vegetation removed. The cleared part of the ground was covered in what appeared to be a wood chip mulch.
15 In early 2004, as part of his investigation, Mr Bentley served notices requiring the defendant’s company to supply information and records relating to the investigation of the clearing. In response to the first notice issued on 19 February 2004, Mr Stephen De Lapp on behalf of Serenity Cove Business Park Pty Ltd indicated that the clearing could only have resulted from the activities of another company, Lilliendal Civil Pty Ltd, which had been engaged to build a platform and undertake earthmoving works for a film set on another part of the land and from actions by the defendant’s son, Mr Nicholas Williams, in carrying out weed reduction. Although the notice required Serenity Cove Business Park Pty Ltd to provide information as to who did the clearing during the relevant period, the company did not supply any information or records which indicated that either IDS Consulting Services Pty Ltd or anyone else apart from Mr Nicholas Williams or Lilliendal Civil Pty Ltd were doing any relevant works on the site.
16 On 31 May 2004 Mr Bentley interviewed Mr Dominic Fanning, the defendant’s environmental consultant, who had apparently been engaged to carry out mapping of flora and fauna constraints as part of a Site Constraints Analysis to be used as the basis for a development application for a subdivision of the land. The subdivision application had been lodged with the council on 24 July 2003. Mr Fanning agreed that the site contained the three endangered ecological communities and that he had informed the defendant that the vegetation on the site was protected.
17 On 6 July 2005 Mr Bentley served Ms Diana Marshall, administrative assistant for the Serenity Cove/Williams’ group a companies, who was employed by Serenity Cove Management Pty Ltd with a notice under the Protection of the Environment Operations Act 1997 (as it applies to the NPW Act) requiring information and records. Mr Bentley served another notice requiring Serenity Cove Business Park Pty Ltd to nominate a person to be interviewed on its behalf. After communicating with the defendant’s lawyers on several occasions, Mr Bentley arranged to interview the defendant and the companies’ employees on 27 and 28 July 2005.
18 The record of interview with the defendant on 28 July 2005 is in evidence. The defendant said in the interview that he had asked his son and two other employees to spray and slash weeds, namely pampas grass and bitou bush. He denied that he had authorised the removal of native vegetation. I observe that this answer was a lie: as noted above the defendant had signed a contract with IDS Consulting Services Pty Ltd for it to clear the areas which he himself had nominated; moreover, the defendant visited the site on a number of occasions when the clearing was being undertaken and expressed satisfaction with the works.
19 The defendant also said in the interview that he was not someone who supervised the removal of the vegetation. This again was a lie; as sole director and secretary of the company the defendant himself not only told Mr Fairbrother and Mr Silcock what areas he wanted cleared but, as already noted, he visited the site on four or five occasions and expressed satisfaction with the work. The defendant also denied that he was personally involved in the removal of any vegetation – an evasive answer in light of the fact that he expressly authorised it.
20 In the record of interview with Ms Marshall, she informed Mr Bentley that any invoices and other paper work from contractors engaged to do the works on the site would be in the office as she would have arranged payment. On 22 August 2005, based on what he had been told by Ms Marshall, Mr Bentley by a further notice required further information and records from Serenity Cove Business Park Pty Ltd. In response that company, on 13 September 2005, supplied information and records which had not been previously supplied, but no documents or information was supplied relating to IDS Consulting Services Pty Ltd or the sub-contractors who did the clearing. The only relevant records supplied were invoices for works done by Mr Peter Mangan of Baycastle. A record of interview was later conducted with Mr Mangan who said that he only undertook weeding using a backhoe on other parts of the site.
21 Further notices requiring information and records were served on Serenity Cove Business Park Pty Ltd and another associated company of which the defendant was sole director and secretary, Parist Holdings Pty Ltd. Parist Holdings Pty Ltd had receivers and managers appointed to run its affairs. The response to the notice came from the receivers and managers, Deloitte Touché Tohmatsu, rather than the defendant or one of his staff.
22 The response contained information concerning a contractor, IDS Consulting Services Pty Ltd which had been engaged specifically to undertake the removal and mulching of the vegetation on the site in January and February 2004, which is now the subject of the present charges. This was the first time that the DEC had obtained any information about the involvement of IDS Consulting Services Pty Ltd. As a result of the information obtained from the receivers and managers of Parist Holdings Pty Ltd, further enquiries were made in late 2005 and early 2006 which resulted in evidence being obtained from IDS Consulting Services Pty Ltd showing its involvement and that of its sub-contractors and the defendant’s involvement in the offences.
23 It is thus apparent that the following conclusions may be drawn about the defendant’s conduct:
(a) The defendant expressly authorised IDS Consulting Services Pty Ltd to carry out the clearing, as he signed the contract with IDS Consulting Services Pty Ltd and personally showed the representatives of that company the areas he wanted to be cleared.
(b) At the time of authorising the clearing, the defendant was aware from what he had been told by his environmental consultant, Mr Fanning, that the areas contained protected vegetation.
(c) The defendant personally inspected the clearing on four or five occasions when it was being carried out and expressed his satisfaction with what was being done.
(d) The defendant and his staff failed to supply the relevant information sought by the DEC and, moreover, supplied misleading information alleging that the work was done by another company that was building a film set on another part of the land and that there had only been weed reduction works carried out by the defendant’s son.
(e) The defendant denied during his record of interview that he had anything to do with the clearing which became the subject of the present charges, again asserting that all that he had authorised was the clearing of weeds by his son and other employees. This was a lie in that he had personally engaged IDS Consulting Services Pty Ltd to do the work and he had overseen the work whilst it was being done.
(f) Whilst the defendant maintained an air of cooperation during the investigation, his actions and those of his employees of the companies that he controlled hampered and hindered the DEC’s investigation into the identity of those responsible for the offences. In particular, documents relating to the engagement of IDS Consulting Services Pty Ltd were withheld.
(g) It was only as a result of information furnished by the receivers and managers of Parist Holdings Pty Ltd that the departmental officers were led to obtain information from IDS Consulting Services Pty Ltd and its sub-contractors which in turn disclosed the defendant’s involvement in the offence.
Maximum penalty
24 The maximum penalty fixed by the Parliament in this case in monetary terms is $220,000, and $11,000 for each plant that was affected. Moreover, Parliament has provided for a term of imprisonment as an alternative or in addition to, the imposition of a monetary penalty.
Environmental harm
25 The evidence of the environmental harm resulting from the offences is in the undisputed evidence of a flora consultant, Ms Teresa James. The clearing the subject of the charges has had a significant effect on the ecological communities on the defendant’s property. I accept the evidence of Ms James:
(b) As a result of 1.7 hectares of Sydney Coastal Estuary Swamp Forest being cleared on the site, the soil surface has dried, rootstock and seed in the soil seedbank has been suffocated and a corridor has been provided for weedy species to infiltrate core areas of Sydney Coastal Estuary Swamp Forest on the site.
(a) The removal of trees on the site has resulted in damage to habitat of Sydney Freshwater Wetlands, Sydney Coastal Estuary Swamp Forest and Kurnell Dune Forest, through loss of vegetation structure, changes to plant composition and frequency, changes to soil, drainage and other local environmental conditions.
- (c) As a result of 0.8 hectares of Sydney Freshwater Wetlands being cleared on the site, some permanent loss of the Sydney Freshwater Wetlands will occur due to the major sand removal and redistribution that has raised the surface level and significantly altered the hydrology. Moreover, weed species have rapidly colonised the cleared areas and the cutting of tracks in other areas could potentially spread weeds into the Sydney Freshwater Wetlands areas that remain intact.
- (d) Clearing and earthworks on the site has also affected the Kurnell Dune Forest. The removal of trees has significantly degraded the limited occurrence of Kurnell Dune Forest at the site. Rapid infestation and spread of weed species has occurred in parts of Kurnell Dune Forest on the site.
- (e) A substantial reduction in area of vegetation from clearing and associated earthworks has resulted in permanent loss of biodiversity at the site.
- (f) The removal of trees on the site has resulted in significant fragmentation of a previously intact vegetation area. Connectivity between the vegetation and similar communities to the north of the site has been affected.
- (g) The clearing of native vegetation provides an opportunity for exotic species to invade and become established and accordingly the number and abundance of exotic species typically increases. The average percentage of exotic species recorded in the cleared areas was greater than the average percentage of exotic species recorded in the adjoining intact areas.
(h) The clearing of vegetation, earthworks and the covering of the soil surface with various materials that have occurred on the site have caused significant alteration of the local drainage patterns and characteristics. Both Sydney Freshwater Wetlands and Sydney Coastal Estuary Swamp Forest are dependant on a high water table and periodically waterlogged soils and consequently are sensitive to any changes in hydrology.
(i) The natural regeneration process at the site has been significantly hampered and the success of re-sprouting and seeding establishment has been reduced as a result of dead vegetative material and mulch being left on the soil surface and blown sand from cleared and disturbed areas.
26 The actual harm caused in the present case had been noted in pars [13] and [25] above. The total area which was cleared of endangered ecological community was significant. It is action such as this which operates to defeat the purpose of the legislation, which is to protect areas known to be endangered. The very fact that the particular ecological communities are listed as endangered is sufficient to regard any large-scale damage or destruction of them to be properly regarded as significant.
Reasons for committing the offences
27 The defendant himself has not given evidence. I am nevertheless satisfied beyond a reasonable doubt that his motivation for committing the offences was to prepare the way for subdivision consent by undermining the status of the area as worthy of conservation. The defendant’s actions were in blatant disregard of the advice of his own consultant and he must have known that what he was doing was wrong.
28 As noted in paragraph [18] above, I reject totally the assertion made in the defendant’s records of interview that his motivation was simply a laudable desire to control weeds.
29 Any sentencing exercise requires consideration of the purposes of sentencing. These purposes are set out in the Crimes (Sentencing Procedure) Act 1999, s 3A:
- (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.
30 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-87, Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464 at 474-475. The primary indicator of the objective gravity or seriousness of the offence is the maximum penalty prescribed by the legislature. A number of other factors highlight the objective gravity or seriousness of the offence in this instance.
Foreseeability of risk of harm
31 A factor that highlights the objective gravity or seriousness of the offence in this instance is the extent to which the defendant could reasonably have foreseen the harm caused by the commission of the offence. In the present case the defendant knew, because he was told by his environmental consultant, that the vegetation on the site was protected. Moreover, the damage that was done was not only foreseeable, but was the intended outcome of the clearing which took place.
32 The defendant could have and should have refrained from arranging the clearing until the development application for subdivision had been determined. No doubt the presence of the endangered ecological communities on the land would have been a relevant factor in the local planning authority’s consideration of the development application. Moreover, rather than selective clearing, the defendant arranged for mass clearing and mulching, which had the maximum possible detrimental effect on those communities.
33 The offences involve three separate but connected criminal acts: s 21A(2)(m), Crimes (Sentencing Procedure) Act 1999. Moreover, the defendant committed the offences deliberately, in the full knowledge that his actions were unlawful and that the vegetation was protected. The defendant then sought to conceal his involvement and the involvement of his companies from the DEC and lied in the course of his record of interview.
Subjective circumstances of the defendant
34 The court may take into account favourable and unfavourable factors personal to the offender: Veen v The Queen (No.2) (1988) 164 CLR 465 at 491.
Prior criminality
35 The defendant does have a prior criminal record. This includes a number of driving offences and one charge of common assault, but no prior environmental offences.
Prior good character
36 A number of testimonials have been tendered which describe the defendant’s generosity in contributing to a variety of community and charitable causes. Some of these pre-date the present charges. The two testimonials which post-date the charges do not state whether the writer is aware of the charges.
- Plea of guilty
37 The defendant has pleaded guilty to each of the offences: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. In entering a plea of guilty at the earliest opportunity the defendant is entitled to a discount to reflect its utilitarian value. I have noted the utilitarian value in this case in par [8] above. This has saved this Court a considerable amount of time and has avoided inconvenience to witnesses. The utilitarian value of a plea of guilty merits a discount in the penalty in the range of 10 to 25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160]. I do not, however, accept the pleas of guilty as an expression of contrition or remorse, given that the defendant positively misled the investigators during the course of their investigation, and given the fact that no express statement of contrition has been made by the defendant in the proceedings. The pleas of guilty, rather than being indicative of contrition or remorse, appear to be a recognition of the inevitable in the face of a strong prosecution case.
Contrition and remorse
38 Evidence of contrition, repentance and remorse after the offence are relevant mitigating factors. Again, I note that the defendant has not given evidence, so that the Court does not have the benefit of any explanation for this conduct, neither is there any express statement of regret or remorse for his actions.
Assistance to authorities
39 The defendant lied to the prosecutor about his involvement in the clearing and misled the prosecutor in the latter’s investigation of the offence and hindered that investigation.
40 Rather than provide assistance to those persons who were investigating the offences, the defendant hindered the investigation and positively misled the investigation and sought to conceal his involvement in the offences. I have set out in pars [18] and [19] above the lies that he told in the course of his record of interview and I have set out in par [23] (d) to (g) my conclusions on the evidence showing the hindrance to the investigation and the misinformation given to the investigatory officers.
Capacity to pay fines
41 In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider the defendant’s means to pay: s 6, Fines Act 1996. In the present case, no information or evidence was given as to the defendant’s means to pay and no submission was made that he would be unable to pay whatever fine the court may impose. I note that the defendant agrees to an order to pay the prosecutor’s costs in the sum of $85,000.
General deterrence
42 In considering the question of penalty generally and for environmental offences such as this in particular, general deterrence is a major consideration: 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; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, Carlino v Leichhardt Council (2005) 144 LGERA 235.
43 Persons will not be deterred from committing environmental offences by nominal fines. There is a need to uphold the integrity of the system of protecting and preserving endangered ecological communities. There is a need to send a strong warning to others who may be minded to breach the law that such actions will be visited with significant consequences.
Totality principle
44 The principle of totality applies when sentencing for two or more offences. In the present case the three offences arise out of a single course of conduct on the same parcel of land, so that the principle of totality applies. It just so happens that there were three kinds of endangered ecological community within the total area that was cleared. Where, as here, the three offences are to be seen as sufficiently connected, the penalty should reflect the total criminality involved in all the offences: Camilleri’s Stock Feeds at 704.
45 This requires the Court to first fix an appropriate sentence for each offence and then consider the question of totality by adjusting the adequate sentences having regard to the total criminality involved. It is appropriate to do so in the present case in view of the fact that the three offences are the result of a single course of conduct.
Even-handedness principle
46 The principle of even-handedness requires the Court to have regard to the pattern of sentences currently being imposed in like case: Camilleri’s Stock Feeds at 701-702. The obvious difficulty with this is that no two cases are truly alike – one is presented with a range. Thus, in Carmody v Brancourts Nominees Pty Ltd; Carmody v Brancourt [No. 2] [2003] NSWLEC 84, the defendant cleared about 2.5 hectares of Koala habitat, knowing that the land was Koala habitat prior to the clearing, an offence against s 118D of the NPW Act. The offence carried a maximum penalty of $110,000. The defendant was fined $5,000, ordered to carry out remediation works at a cost of $5,000, and ordered to pay costs of $30,000. In Director General of National Parks and Wildlife v Wilkinson & Anor; Director General of the Department of Land and Water Conservation v Wilkinson & Anor [2002] NSWLEC 171, the defendant cleared 25.6 hectares of land that was habitat of a number of species, an offence against s 118D of the NPW Act carrying a maximum penalty of $110,000. The defendant was fined a total of $43,500 for a number of related offences and ordered to pay costs of $90,000. In Bentley v Gordon [2005] NSWLEC 695, the offence was against s 118A(2) of the NPW Act which is similar to the current offence. Some 19.05 hectares of a total area of 44 hectares was cleared, which contained a plant known as Tetratheca juncea or Black Eyed Susan, a vulnerable species. The Court imposed a fine of $30,000 where the maximum penalty was $55,000 and ordered to pay costs of $10,000. In all of these cases the defendant had pleaded guilty. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 was a prosecution against the landowner in relation to the same incident as Gordon. The case was heard ex parte. The defendant was fined $40,000 plus costs where the maximum penalty was $55,000.
47 The defendant submits that the present offences are no more serious than these in Bancourts Nominees and in Wilkinson and less serious than these in Gordon and BGP Properties. I do not agree. The present offences were committed intentionally, knowing that the areas were protected, and following the event the defendant attempted to cover up his involvement by lying to and misleading the investigators of the offence.
48 In Garrett v Williams [2006] NSWLEC 785 (not the present defendant), the defendant arranged for trees which were part of an endangered ecological community, to be cleared on his land, an offence against s 118A(2) of the NPW Act. The offence, being the same as the present offences, carried a maximum penalty of $220,000 or imprisonment for two years or both and an additional penalty of $11,000 in respect of each whole plant that was affected by or concerned in the action that constituted the offence. The defendant was fined a total of $180,000 for the two related offences and was ordered to pay the prosecutor’s costs.
49 In the present case the defendant has agreed to pay the prosecutor’s costs in the agreed sum of $85,000. I accept the defendant’s submission that the payment of substantial costs is an important part of the punishment to be taken into account in the overall penalty: Environmental Protection Authority v Barnes [2006] NSWCCA 246 per Mason P, Kirby and Hoeben JJ.
50 The mass clearing of some 2.9 hectares containing endangered ecological communities involved the destruction of many hundreds of trees comprising those communities. In addition to a maximum penalty of $220,000 for each offence, the legislation sets an additional penalty of $11,000 for each plant that was affected. The prescription by Parliament of an additional penalty is intended to enable the total penalty to be proportionate to the extent of harm caused by the actions constituting the offence. By prescribing an additional penalty, Parliament has expressed that the objective gravity or seriousness of the offence increases with the number of whole plants affected by or concerned in the action constituting the offence (Garrett v Williams, at [94], per Preston J)
51 Since the whole of the 2.9 hectares was mass cleared and then mulched, the precise number of the whole plants that was destroyed is not known. From the evidence of Ms James and from the photographs that are in evidence it is self-evident that it was well over a thousand in total, and probably many more than that on a most conservative estimate. As the precise number of trees affected by or concerned in the clearing on the site can not be determined conclusively, it is not possible to accurately calculate any additional penalty that could be imposed for each whole plant affected. The defendant should not, however, escape the additional penalty prescribed by the legislation simply because he destroyed, by mulching, the evidence of the precise number of whole plants that were affected. The damage caused by the offence was undoubtedly substantial. This is an aggravating factor to be taken into account in determining the appropriate sentence: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.
52 As Preston J noted in Garrett v Williams at [121], the carrying out of an offence to make a profit, or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime: see State Pollution Control Commission v T J Bryant Pty Ltd, NSWLEC, , 11 June 1991, Stein J, unreported; Environment Protection Authority v Gardner, NSWLEC, 7 November 1997, Lloyd J, unreported; R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 at 254; R v Milford Haven Port Authority [2000] JPL 943 at 950; Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 per Cowdroy J at [97]-[99], [149] and [167]; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 per Preston at 269 [238], 270 [246] and [247]; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 per Preston J at 364 [70]; and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 per Preston J at 221 at [140]-[141].
53 Having regard to the cases referred to above, but in particular to Garrett v Williams, I consider that an appropriate penalty for each offence warrants a fine of $180,000. This figure should be discounted by 20% for the utilitarian benefit of the plea, noting that the plea was entered at an early stage of the prosecution, resulting in a total fine of $154,000.
54 The aggregate fine for the three offences thus determined amounts to $462,000. In applying the totality principle and having regard to the total criminality involved, this aggregate exceeds what is just and appropriate. I would therefore adjust the aggregate penalty to $330,000, apportioned between the three offences.
55 The prosecutor seeks in addition to a substantial penalty a community service order or home detention. The prosecutor relies upon the fact that the maximum penalty is not only a monetary sum but also imprisonment for two years. The proceedings were accordingly adjourned to enable a pre-sentence report to be obtained.
56 The defendant compounded the seriousness of the offence with his lies and misleading statements during the course of the investigations. These factors, together with the overall seriousness of the offences considered in light of the maximum penalty fixed by Parliament, persuade me that there should be a further penalty by way of a community service order.
57 Section 8(2) of the Crimes (Sentencing Procedure) Act 1999 states that an order can be made requiring an offender to perform community service work for a number of hours not exceeding the number of hours prescribed by the regulations. Clause 23 of the Crimes (Sentencing Procedure) Regulation 2000 ties the number of hours of community service work that may be imposed to the maximum term of imprisonment available for the offence. It provides that where the maximum term of imprisonment exceeds one year (as in this case) there is a limit of 500 hours of community service.
58 I am satisfied by the pre-sentence report that the defendant is a suitable person for community service work and it is appropriate in all the circumstances to require him to perform community service work, that arrangements exist in the area in which he resides for the performance of such work, and he has signed an undertaking to comply with the obligations under a community service order as required by s 86(1)(e) of the Crimes (Sentencing Procedure) Act 1999.
Orders
59 I make the following orders:
(1) The defendant is convicted of the offence as charged.
Proceedings No. 50003 of 2006
(2) The defendant must pay a penalty in the sum of $110,000.
(3) The penalty must be paid into the National Parks and Wildlife Fund in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act 1974.
(4) The defendant must pay the prosecutor’s costs in the agreed sum of $85,000.
(5) The defendant is sentenced to 400 hours of community service.
(6) The defendant is to report to the City District Office of the Probation and Parole Service within 28 days to enable administration.
(7) The exhibits may be returned.
(1) The defendant is convicted of the offence as charged.
Proceedings No. 50004 of 2006
(2) The defendant must pay a penalty in the sum of $110,000.
(3) The penalty must be paid into the National Parks and Wildlife Fund in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act 1974.
(1) The defendant is convicted of the offence as charged.
Proceedings No. 50005 of 2006
(2) The defendant must pay a penalty in the sum of $110,000.
(3) The penalty must be paid into the National Parks and Wildlife Fund in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act 1974.
I hereby certify that the preceding 59 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
Dated: 20 February 2007Associate
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