Hannam v De Wyse

[1999] NSWLEC 159

Land and Environment Court

of New South Wales

CITATION:

Hannam v De Wyse [1999] NSWLEC 159

PARTIES

PROSECUTOR
Hannam

DEFENDANT
De Wyse

NUMBER:

50041 of 1998 and 50069 of 1998

CORAM:

Talbot J

KEY ISSUES:

Environmental Offences :- destruction of trees - plea of guilty - penalty and costs

LEGISLATION CITED:

Soil Conservation Act

DATES OF HEARING:

11/25/1998

EX TEMPORE JUDGMENT DATE:

11/25/1998

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr M Baird (Barrister)

SOLICITORS
I V Knight
Crown Solicitor

DEFENDANT
Mr R Webb (Barrister)

SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No. 50041 of 1998
ENVIRONMENT COURT And 50069 of 1998
OF NEW SOUTH WALES Coram: Talbot J
Decision Date: 25 November 1998


Ian Dixon Hannam
Prosecutor

v
Hendikus Antonius Carolus De Wyse

Defendant

EX TEMPORE REASONS FOR JUDGMENT


HIS HONOUR:
1. The defendant is charged under the provisions of the Soil Conservation Act in matter 50041 of 1998 that on or about 8 April 1996 to 16 April 1996 on the property known as Police Paddock at Wentworth he did cause to be destroyed a number of trees located on protected land within the meaning of that Act. The evidence is that fourteen trees were destroyed as a consequence of fires which were lit on the property during that period.

2. In matter 50069 of 1998 the defendant is charged in respect of essentially the same incident that he did cause to be injured a number of trees on the protected land on the same dates, they being ten trees which were damaged by fire. Subsequent investigation shows that it is expected they will survive and there are signs of regeneration occurring.

3. The property is situated on the banks of the Murray River. It comprises approximately 600 acres in the old terms, which I will use because the Court still appreciates what that is in real terms. The property is not highly developed in that only approximately 40 acres have been cleared. It has a frontage of nine kilometres to the Murray River and is used mainly as a source of recreation for the defendant and his family, including three children, and is utilised as what might be described as a hobby farm and for the riding of ponies and the like. The property is not operated for profit and expenses are incurred on an annual basis and from time to time to maintain it.

4. The evidence is that, as a consequence of reports made to officers of the Department of Land and Water Conservation, there was a preliminary investigation on 15 April 1996 and the defendant was interviewed on the property on 16 April 1996. The defendant explained that a number of fires had been lit on the property, that he had authorised his children to carry out that activity and indeed was present when the first of the fires were lit ostensibly for the purpose of clearing an area to be used for a bicycle track.

5. It does not appear to be disputed that the defendant, although acquiescing in the lighting of fires, clearly did not appreciate the extent to which trees would be destroyed and the enthusiasm that would be displayed by his children in proceeding to light fires that resulted in at least 24 trees being damaged and for 14 of those trees to be damaged to the extent that they will not recover. In that respect the defendant displayed a significant lack of supervision and responsibility in regard to the management of the fires and clearly did not apply his mind in any realistic way to the consequences of the actions that he authorised. However, when faced with the consequences of his actions, he took full responsibility for them and cooperated in a meaningful and helpful way with the officers of the Department who subsequently carried out an investigation of the incident.

6. There can be no doubt that a significant resource of flora has been lost and that, as they were river red gums, these trees formed an important part of the ecology of the area. Apart from their aesthetic contribution to this part of the Murray River system, they clearly provided potential for food for a number of species and structure for fauna habitat.

7. The Court has the benefit of a report made in an affidavit by an environmental officer employed by the Department of Land and Water Conservation. It is apparent from that report that there could be disadvantage to a number of threatened species of fauna, although of course there is no indication of actual physical harm occurring as a consequence of the fires. The same cannot be said of course for the trees. They have clearly been physically harmed to the extent that a significant number of them have not recovered. Although there are other live and healthy trees within this riparian corridor, which to some extent ameliorates the long term impacts of the results of the fires, there is a short term and immediate effect which, to the Court at least, is self-evident and confirmed by the environmental officer to whom I referred a moment ago in the context of disturbing or destroying habitat and the short term reduction in the number of sites available for occupation by tree dwelling fauna, particularly with hollows and the like.

8. The offence does have a real environmental consequence notwithstanding that the Soil Conservation Act is not directed specifically to those consequences. It is more concerned with the preservation of the areas immediately adjacent to rivers to ensure that the rivers are not impacted by land management practices which have the effect of causing erosion and the like. Nevertheless the consequences of the contravention of the provisions of s 19C have a twofold impact, namely that envisaged by the Soil Conservation Act itself and the wider environmental consequences for flora and fauna.

9. The legislature has identified this particular offence as being of a moderately serious nature by it imposing, or at least at the time it imposed, a maximum penalty of $40000. The extent of the cooperation of the defendant with the Department is further reflected in a series of orders which the Court is invited to make by consent that will have the effect of locking up the area which is in the immediate vicinity of the 24 trees, the subject of the two charges, for a period of five years to allow regeneration to occur.

10. In addition, the defendant has indicated a willingness to contribute to the regeneration process by carrying out an active programme of seeding with the prospect that the regrowth of the red gum species might be expedited. There is no actual provision in the consent orders for that to occur, the Department being content to accept, as I understand the submissions from Mr Baird on the Department's behalf, to rely on the natural processes that will occur or could occur during the period of five years.

11. The locking up of this area of land will involve the construction of a fence. The fence will extend for a total length of about 800 metres or maybe more, it being 750 metres long and 40 metres wide. It may be something in excess of a kilometre. It appears not to be disputed that the defendant will incur a cost in the vicinity of $5000 in that respect. Furthermore, in so far as direct cost arising from the incident is concerned the defendant has also agreed to pay the prosecutor's costs agreed at the sum of $10000.

12. The Court appreciates, therefore, that the defendant in the spirit of cooperation has already agreed to outlay a capital sum of $15000 which can be compared to the maximum penalty of $40000. It needs to be taken into account in the context of the defendant's financial circumstances.

13. Mr Webb has submitted from the bar table, and Mr Baird takes no issue with the veracity of the facts behind the submission, that the defendant is a man of modest means, that he has an interest in a small motel business in the area of Wentworth and that he earns, as a consequence of being employed in that business, in the area of $400 per week. Mr Webb quite fairly indicated that the defendant did not consider himself to be impecunious but asked the Court to take account of his modest means. I do that by accepting the consequences of incurring an expenditure in the order of $5000 for the fencing and accepting the further liability for the sum of $10000 for costs.

14. I have also been made aware of the fact that in order to properly present his case to this Court the defendant has found it necessary to sell a tractor and his car to provide the financial resources to allow for his proper representation when facing, what to him, are very serious charges. They are indeed serious charges. I have already indicated that they are to be regarded as being moderately serious if taking account of the maximum penalty of $40000.

15. The defendant appears to be well regarded as a man of good character, has a family and works to support that family in the way that I have indicated. There is no record of any prior criminal behaviour on the part of the defendant.

16. The defendant entered a plea of guilty in these proceedings at a relevantly early stage thereby further indicating the spirit of cooperation which was indicated earlier at the initial investigation stage. I accept that the entry of a plea of guilty indicates, to a certain extent, contrition on the part of the defendant.

17. The Court needs to be mindful of a number of matters when determining how a defendant should be dealt with. One of those matters is deterrence by making it clear to the community at large that the law and the courts are not going to take the breach of the type of provision that is contained in s 21C of the Soil Conservation Act lightly. This Court has, heretofore, regarded offences against the environment as being significant and sufficiently serious to warrant the application of the provisions of s 556A of the Crimes Act in only the most exceptional of circumstances. An offence against s 21C of the Soil Conservation Act must be seen in the context of an environmental offence. I referred earlier particularly to the question of soil erosion.

18. I have not heard any evidence in regard to that aspect of the damage as a consequence of the loss of these trees. Nevertheless the Court is sufficiently aware of these matters to appreciate that the reasoning behind the provisions of the Soil Conservation Act in respect of protected areas is to ensure that vegetation is maintained, thereby assisting with the preservation of the soil not only for its own sake but also to prevent siltation of the rivers in general terms.

19. This offence is one that needs to be considered in the context of a matter which is not to be taken lightly. I am impressed, nevertheless, by the matters referred to together with the ultimate manifestation of the defendant’s cooperation in the form of the consent orders. In the whole of the circumstances of this case, and the antecedents of the defendant and his previous good character, I am in this instance prepared to apply the provisions of s 556A of the Crimes Act. The alternative would have been to formally convict the defendant and impose a nominal fine.

20. It would be unfortunate to place this defendant in a position where the Court spoils what is a worthwhile lifetime record of a man of 55 years who has taken responsibility for his own ineptitude by failing to think through the actions which he authorised and that led to the consequence of these offences. I have also had regard to the fact that any fine the Court would have imposed would have been nominal having regard to the overall financial circumstances of the defendant and the obligations he has undertaken and the other liabilities he has incurred as a consequence of being brought before the Court.

21. I therefore find the offence proved in matter 50041 of 1998 and in matter 50069 of 1998. I treat both of the charges in effect together and have regard to them as being both part of the one enterprise. In accordance with the principle of totality, I propose to deal with them together.

22. Having found the offence proved I do not proceed to conviction in either case.

23. In matter 50041 of 1998 I make the orders by consent numbered 4, 5 through to 13 in the form of minutes of consent orders in their amended form signed by counsel for the prosecutor and counsel for the defendant initialled by me and placed with the file. in matter 50041 of 1998 I order that the defendant pay the costs of the prosecutor in the sum of $10000. In matter 50041 of 1998 I allow the defendant a period of two years to pay the costs. The exhibits in both matters may be returned.