Plath v Rawson - [2009] NSWLEC 178

No judgment structure available for this case.

Reported Decision: (2009) 170 LGERA 253

Land and Environment Court

of New South Wales

CITATION: Plath v Rawson [2009] NSWLEC 178

PARTIES:
PROSECUTOR
Gordon Plath
DEFENDANT
Lance Rawson

FILE NUMBER(S): 50077-50083 of 2007

CORAM: Preston CJ

KEY ISSUES: ENVIRONMENTAL OFFENCES :- picking threatened plant species - sentence - offence of medium objective gravity - conduct offended against legislative objects - substantial environmental harm - conduct deliberate and in reckless disregard for whether lawful or not, but without actual knowledge that plants were threatened species - offences committed to earn a fee - foreseeable risk of harm - practical measures to avoid harm - control over causes of harm - subjective circumstances of offender - lack of prior criminality - prior good character of less weight - plea of guilty of less utilitarian value because of delay and contested factual basis for sentencing - lack of contrition and remorse for conduct or consequences - minimal assistance to authorities - appropriateness of imprisonment, community service order and fine - combination of community service and fine - totality principle - adjustment of individual sentences - means to pay - reduction in amount of fine - prosecutor's costs

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999, ss 3, 108, 115
Crimes (Sentencing Procedure) Act 1999, ss 3A, 8, 21A(2)(g), 21A(3), 22, 23(1), 86, 87, 90
Criminal Procedure Act 1986, ss 257B, 257G
Fines Act 1996, ss 3, 4(1), 6, 7, 10
National Parks and Wildlife Act 1974, ss 2A, 118A(2), 118D(1), 137, 138, 176
Protection of the Environment Administration Act 1991, s 6(2)
Threatened Species Conservation Act 1995, s 3

CASES CITED: Bentley v BGP Properties [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; 82 LGERA 21
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219
Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997)
Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Pal (No 2) [2009] NSWLEC 60
Environment Protection Authority v Taylor [No 4] [2002] NSWLEC 59; (2002) 120 LGERA 414
Environment Protection Authority v White (1996) 92 LGERA 264
Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104
Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Garrett v Williams [2007] NSWLEC 56
Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Graham v The Queen [2009] NSWCCA 212
Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Ngo v Fairfield City Council [2009] NSWCCA 241
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v A [1999] NSWCCA 61
R v Adler [2005] NSWSC 274
R v Bata Industries Ltd (1992) 9 OR (3d) 329
R v Borrett [2004] NZRMA 248
R v Burton [1982] 1 NZLR 602
R v Conway [2005] NZRMA 274
R v Foster [2001] NSWCCA 125
R v Garrett [1997] 1 Cr App Rep (S) 109
R v Geddes (1936) 36 SR (NSW) 554
R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v I R Hall [No 2] [2005] NSWSC 890
R v Janceski [2005] NSWCCA 288
R v Jurisic [1998] 45 NSWLR 209
R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25
R v Kennedy [2000] NSWCCA 527
R v KM; R v Linh Van Nguyen; R v Nguyen; R v Tran [2004] NSWCCA 65
R v McIntyre (1988) 38 A Crim R 135
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Moore [2001] QCA 431; [2003] 1 Qd R 205
R v Newton (1983) 77 Cr App R 13
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v Peel [1971] 1 NSWLR 247
R v Rahme (1989) 43 A Crim R 81
R v Rivkin [2004] NSWCCA 7
R v Said El Masri [2005] NSWCCA 167
R v Sgroi (1989) 40 A Crim R 197
R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300
R v Sissen [2001] 1 WLR 902
R v Smith (1982) 7 A Crim R 437
R v T (unreported, NSWCCA, 19 June 1995)
R v Tapscott [2007] EWCA Crim 1787
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Visconti [1982] 2 NSWLR 104
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Wegener [1999] NSWCCA 405
R v Weldon; R v Carberry [2002] NSWCCA 475; (2002) 136 A Crim R 55
R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548
R v Wisbey [2001] NSWCCA 434
R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13
R v Zamagias [2002] NSWCCA 17
R & F Howe and Son (Engineers) Ltd [1998] 2 All ER 249; [1999] 2 Cr App Rep (S) 37
Robinson v Eureka Operations Pty Ltd [2009] NSWSC 784
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
Vaovasa v The Queen [2007] NSWCCA 253; (2007) 174 A Crim R 116
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

DATES OF HEARING: 23, 26 February, 2-6, 9-10 March, 6 May, 4 June 2009

DATE OF JUDGMENT:
28 October 2009

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr D A Buchanan SC
SOLICITORS
Department for Environment and Climate Change
DEFENDANT
Mr P S Hastings QC with Ms F J Berglund
SOLICITORS
Russell J Baxter

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

28 OCTOBER 2009

50077-50083 OF 2007

GORDON PLATH V LANCE RAWSON
JUDGMENT

1 HIS HONOUR:

INTRODUCTION

2 In late 2005, Mr Rawson was asked by the owner of rural land at Terranora, on the far north coast of NSW, to clear vegetation from the land. The land had previously been used for cropping, dairy and beef cattle grazing. It had been partly cleared, but regrowth of vegetation had occurred, particularly in the last few decades when agricultural use had declined. Regrowth included significant stands of exotic and noxious weeds, such as camphor laurel and privet, but also native rainforest species, including threatened species.

3 Mr Rawson agreed to work, as an independent contractor, to clean up the property by cutting, poisoning and otherwise clearing vegetation and opening up pasture land. He was to be paid by the hour for work done.

4 From 1 December 2005 to about 7 September 2006, Mr Rawson cut, poisoned and otherwise injured vegetation on the land. The scale of activity was large. The land covered about 170 hectares. Around 35,000 to 40,000 camphor laurels, privets and other weeds, as well as nearly 1,200 threatened or vulnerable species of rainforest plants were cut and poisoned. The vegetation affected was scattered in clumps and corridors over the land.

5 The cutting and poisoning of the threatened plant species involved offences against s 118A(2) of the National Parks and Wildlife Act 1974. Mr Rawson was charged with seven offences, relating to seven different threatened species. Mr Rawson has pleaded guilty to each of the offences. The pleas of guilty constitute an admission of the “essential legal ingredients of the offences.”

6 However, there has been a contest as to the factual basis of the conduct constituting the offences and on which the Court should sentence, including the number of whole plants of each of the seven threatened species that Mr Rawson picked, whether Mr Rawson picked plants he denied picking, whether Mr Rawson knew the plants he picked were or might be threatened species or protected by law and the motive or purpose for Mr Rawson committing the offences, including whether he picked the plants to remove constraints on a development being planned for the land by the owner of the land.

7 As a consequence, it has been necessary for the Court to hold a sentencing hearing to resolve by accusatorial process upon evidence before the court, the facts upon which the Court should pass sentence: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 605, 607 and R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [21]. (In the United Kingdom, this is called a Newton hearing after the UK Court of Appeal decision in R v Newton (1982) 77 Cr App R 13 at 15 in which this type of sentence hearing to resolve disputed facts was discussed).

THE OFFENCES

The charges

8 Mr Rawson is charged with seven offences against s 118A(2) of the National Parks and Wildlife Act 1974 that from about 1 December 2005 and continuing until about 7 September 2006, he picked plants that were of a threatened species.

9 The threatened species were identified in each of the seven charges. They were: for 50077/07, Gossia fragrantissima (also known as Austromyrtus fragrantissima); for 50078/07, Hicksbeachia pinnatifolia; for 50079/07, Grevillea hilliana; for 50080/07, Macadamia tetraphylla; for 50081/07, Lepiderema pulchella; for 50082/07, Randia moorei; and for 50083/07, Acacia bakeri.

10 In the particulars, the place at which the picking occurred was given as “at or near Terranora in the State of New South Wales (being land known as Lot 2 of DP 867486, Lot 33 of DP 1085109 and Lot 4 of DP 822786)”.

11 The manner of contravention was that Mr Rawson “cut and/or poisoned and/or otherwise injured the plants which were of the threatened species”.

12 The number of plants varied depending on the threatened species concerned. At the end of the evidence at the sentencing hearing, the prosecutor amended the particulars of the numbers of plants for each charge to be as follows:

Charge Threatened species Number of plants

50077/07 Gossia fragrantissima 22

50078/07 Hicksbeachia pinnatifolia 22

50079/07 Grevillea hilliana 17

50080/07 Macadamia tetraphylla 492

50081/07 Lepiderema pulchella 560

50082/07 Randia moorei 134

50083/07 Acacia bakeri 32

13 Threatened species include endangered species and vulnerable species. The penalties for an offence against s 118A(2) of the National Parks and Wildlife Act 1974 vary depending upon whether the threatened species is classified as endangered or vulnerable.

14 Three of the species picked were endangered, namely Gossia fragrantissima, Grevillea hilliana and Randia moorei. The other four species picked were vulnerable, namely Hicksbeachia pinnatifolia, Macadamia tetraphylla, Lepiderema pulchella and Acacia bakeri.

The facts of the offences

15 The land on which the offences were committed had been held in the Norvill family (“Norvill property”) until 1997. Adjoining the land was a property owned by Mr Teitzel (“Teitzel property”) and the former Terranora Lakes Country Club Golf Course (“Golf Course”).

16 The Norvill property was owned by the Norvill family from 1908 to 20 November 1997. Until 1996, the Norvill property was run as a dairy farm. From 1930 to 1966, the property was also used for crops, such as beans, tomatoes, sugar cane and bananas. From 1966 the dairy cattle were crossbred with beef cattle. Beef cattle were grazed by the Norvill family until the sale of the property in 1997. The beef cattle were fenced off from the crop growing area. They commonly used fringes of vegetated parts of the property for shade.

17 From the early 1970s until 1992, there was clearing of camphor laurel (Cinnamomum camphora) on the Norvill property at certain times of the year. However, large stands of camphor laurel remained.

18 Cropping ceased on the Norvill property some time after 1992.

19 On 20 November 1997, the Norvill property was sold to Terranora Group Management Pty Limited (“TGM”). One of the directors of that company was Mr Godfrey Mantle. TGM had purchased the Golf Course in 1996.

20 TGM applied for and obtained development consent in 1997 for a tourist resort on land that included parts of the Norvill property and the Golf Course. Subsequently, numerous applications were made to modify the development consent.

21 By about October 2005, TGM started preparation of a submission to the State Government under State Environmental Planning Policy (Major Projects) 2005 for a mixed residential development. The development was different in nature, design and footprint to the development that had been approved as a tourist resort in 1997. TGM’s submission, made in August 2006, described the development as “1,894 new dwellings and facilities … (being) a combination of private dwellings, retirement living, aged care, education, resort, health and fitness, arts, retail and restaurants, and public and protected open spaces.”

22 After TGM purchased the Norvill property in 1997, it ran cattle on the property, being cattle that had previously been run on the land by the Norvill family.

23 Prior to 2005, Mr Rawson had undertaken farm maintenance work on the Teitzel property. He had cut and poisoned vegetation such as camphor laurels and privets and cleared up the property to improve its grazing capacity.

24 In 2005, Mr Rawson met Mr Godfrey Mantle. Mr Mantle had seen the work Mr Rawson was doing on the Teitzel property and wanted Mr Rawson to clean up the Golf Course and Norvill property.

25 Mr Mantle wanted to run cattle on the Norvill property for his food and beverage business. One of Mr Mantle’s businesses was called “Jimmy’s on the Mall”, a Brisbane restaurant. Mr Mantle obtained advice about his proposals for cattle grazing on the property from Mr Rawson. Mr Rawson told Mr Mantle that he could clear five acres a year of regrowth scrub. Mr Rawson carried out fencing work on the Norvill property. He installed some cattle yards at the bottom of the property. Mr Rawson purchased some beef cattle for stocking on the property. Mr Mantle told Mr Rawson to clear the land to get the grass capacity up to run cattle. Mr Rawson estimated 90% of the property was to be brought up to a capacity for grazing cattle.

26 Mr Rawson agreed to work for Mr Mantle at a rate of $32.00 per hour, removing camphor laurels, privets and weeds and otherwise cleaning up the property. Mr Rawson said Mr Mantle wanted to put his own cattle on the property. Mr Rawson said he spoke with Mr Mantle about how good the property could be for cattle if the scrub were to be cleared up.

27 Mr Rawson said he commenced work on the Golf Course and cut and poisoned camphor laurels there. In late 2005, he started work on the Norvill property. Mr Rawson said that there were numerous weeds on the property because it had been neglected for forty years. These included camphor laurels and privets.

28 Mr Rawson said that there was so much work to do that he could not set a pattern. Sometimes he could work in one area, but a roaring southerly wind would hit so he would move to another area. Some of the areas were impenetrable. He would be scratched and sore from working in them on one day but the next day he decided that he would pick some easier work to do.

29 Mr Rawson used a chainsaw to cut the trees and weeds. For large trees, he said that he would cut pockets or notches around the trunk and put poison in the cuts. For smaller trees, he said he would cut the trunk off at or near ground level.

30 Mr Rawson invoiced TGM for work done on the Golf Course and the Norvill property. Mr Rawson’s invoices refer to work done on eradication of trees or camphor laurels between 22 February 2005 and 17 August 2006. The work done in 2005 was principally on the Golf Course whilst from late 2005 through 2006, the work done was on the Norvill property.

31 Mr Rawson did not contest the prosecutor’s evidence as to the total number of plants of each threatened species that had been picked on the Norvill property. Rather, Mr Rawson denied or did not admit picking specific plants, although he did admit picking hundreds of plants. Mr Rawson gave a variety of reasons for his denials or non-admissions of picking certain plants. However, each of Mr Rawson’s reasons was proven to be wrong in relation to many plants. Overall, I find Mr Rawson’s evidence as to his denials and non-admissions to be lacking in credibility and I do not accept it for a number of reasons.

32 First, Mr Rawson’s evidence, in his affidavits and his oral evidence on-site and in court, was consistent in maintaining that the purpose of his work on the Norvill property was to clear large areas of vegetation so as to improve the pasture and productivity of the Norvill property for cattle grazing.

33 In most of the areas in which Mr Rawson worked, Mr Rawson said he intended to remove all vegetation, except for a few trees for shade or aesthetic reasons, to convert the land to pasture for cattle grazing. He intended to, and understood Mr Mantle wanted him to, open up the property like the Teitzel property which was largely cleared. He estimated about 90% of the property was to be brought up to a capacity for cattle grazing. In other areas, such as either side of a creek flowing through the Norvill property, Mr Rawson stated he cut and poisoned vegetation to open up the canopy to let sunshine in and grass to grow or to allow better flow of underground water to the creek to provide drinking water for the stock, both being of benefit to improve the property for cattle grazing. At times, Mr Rawson said, he needed to clear a track to get to or to work on or around a tree, and this involved cutting vegetation. In relation to some trees, such as acacias, he said he removed them because they might in the future fall and damage fencing that he proposed to erect.

34 Mr Rawson admitted to working in each area on the Norvill property where threatened species were picked and admitted picking plants of threatened species in each area. In many instances, plants which Mr Rawson admitted picking were located immediately adjacent to or in near proximity to plants which he denied or did not admit cutting.

35 It would, therefore, be inconsistent with the purpose for which Mr Rawson was engaged to work on the Norvill property and his stated intention to clear vegetation on the property, and the actual work that he did, across the property, for Mr Rawson to have been the person who cut and poisoned only a quarter of the plants of the threatened species in the areas in which he worked but not to have been the person who cut and poisoned the other three quarters of plants of the threatened species in the very same areas, sometimes immediately adjacent to or otherwise in near proximity to plants which Mr Rawson admitted to having cut and poisoned.

36 Secondly, Mr Rawson’s non-admissions of picking hundreds of plants were solely based on the fact that Mr Rawson did not inspect those plants, whether because he could not find them or for other reasons. Hence, Mr Rawson never formed a positive opinion about those plants and was not in a position to deny picking them.

37 Thirdly, although Mr Rawson denied picking many plants in his affidavit evidence, when he later gave oral evidence on-site or in court, he admitted picking them. The most common explanation given by Mr Rawson for his change in evidence was that he had been mistaken as to the plant concerned when he prepared his affidavit evidence. In order to respond to the prosecutor’s list of plants that had been picked, Mr Rawson borrowed a GPS unit from an acquaintance. Mr Rawson had never used a GPS unit before and conceded that he found difficulty in using it and finding the plants at the GPS co-ordinates specified. He said he was unable to find many of the plants. It became clear at the on-site hearing, that plants that Mr Rawson thought he had found were in fact completely different plants. Although Mr Rawson had denied cutting certain plants, for differing reasons, on a number of occasions on the site hearing, upon seeing a plant Mr Rawson said he had not looked at that plant and must have been looking at a different plant when he prepared his affidavit.

38 For plants located on the Norvill property but towards the boundary of the Golf Course, Mr Rawson used the blanket reason of “on golf course” to justify his denial of picking the plants. On the site hearing, however, it became clear that Mr Rawson was not in fact denying that he cut those plants, but rather believed that he could not be held legally responsible if the plants were located on the Golf Course. Yet again, Mr Rawson was mistaken as to the location of the plants. They were in fact on the Norvill property, not on the Golf Course.

39 Mr Rawson also said that, given he had cut, poisoned or otherwise injured on his estimate 35,000 to 40,000 trees, shrubs or weeds on the Norvill property over an extended period, it was hard to be specific about a particular plant, “one little stick”. As Mr Rawson said in a record of interview in answer to a question whether he chopped down trees in an area, “I covered that much country out there, I don’t know”.

40 The consequence is that Mr Rawson’s denials or non-admissions in relation to specific plants were unreliable and cannot be accepted.

41 Fourthly, Mr Rawson denied cutting and poisoning many plants on the basis of the manner in which he observed the cutting and poisoning had been done. Mr Rawson’s denials were unconvincing. Types of cuts which Mr Rawson said he never used, such as v–shaped cut, or an angular cut or cutting high on a stem or trunk, in fact were shown to be used by Mr Rawson on trees and plants that he admitted cutting. Furthermore, the prosecutor’s evidence (from Allen Goodwin, William McDonald, Rhonda James and Scott Beaumont) established a consistency of cutting techniques employed in cutting and poisoning the plants. I do not accept Mr Rawson’s evidence that the cutting techniques used on the plants which Mr Rawson denied cutting were so different to the cutting techniques used on the plants which he admitted cutting that he could not have cut all of the plants.

42 Mr Rawson also expressed a proud belief in the efficacy of his work in cutting and poisoning plants. He denied cutting and poisoning certain plants on the basis that they were still alive, at least in part, when he inspected them in preparation of his affidavit. This may be because the plants had regrown underneath the cut or only part of the foliage had died from poisoning. Mr Rawson stated that anything he poisoned doesn’t grow back. This assertion too proved not to be correct. Mr Rawson later conceded that he had only a 90% success rate in killing trees and that there were a number of variables which could affect the success rate of killing a tree. Moreover, many of the large camphor laurel trees he admits to poisioning have suckered profusely from their extensive root systems, posing a threat to the recovery of native vegetation. Mr Rawson also stated that the complete removal of vegetation required reworking in an area.

43 Fifthly, Mr Rawson’s speculation that other persons may have cut and poisoned the plants he denied or did not admit cutting was unconvincing and without evidentiary foundation. Mr Rawson’s suggestions focussed on marijuana growers, surveyors, Robert Choat (who had milled some camphor laurel) or people who are opposed to TGM and its proposed development of the Golf Course and Norvill property. Mr Rawson said he never saw any of these persons cutting or poisoning plants on the property. Indeed, he said he never saw anyone else cutting plants, never heard a chainsaw operating elsewhere when he was working on the property and never saw any evidence of plants that had been cut and poisoned when he was working on the property. It is implausible that Mr Rawson, throughout the whole period he worked on the land, would not have seen persons cutting plants, or seen cut plants, if some other persons were in fact cutting the plants.

44 The only person Mr Rawson admitted to have ever been with him was a son of Mr Clark who was the manager of the Golf Course land employed by TGM. Although he initially denied his presence, upon being confronted with evidence from Messrs Colvin and McArthur (the ecologists for TGM) that they saw a person answering the description of one of Mr Clark’s sons with Mr Rawson, he conceded that the son had been present on a few occasions. However, Mr Rawson denied that the son ever did any of the cutting and poisoning. Whether this denial was the truth or intended to protect the son cannot be ascertained. Mr Rawson’s evidence remained, however, that only he, and not the son also, cut and poisoned the plants. On this basis, the son cannot be found to have cut the plants that Mr Rawson denied or did not admit cutting.

45 For these reasons, I find Mr Rawson cut, poisoned and otherwise injured the numbers of plants of the threatened species particularised by the prosecutor.

OBJECTIVE GRAVITY OF THE OFFENCES

46 The primary consideration in sentencing is the objective gravity or seriousness of each offence. The objective gravity fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportional to the gravity of the crime considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence: Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [108], [109] and cases therein cited. The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [4]-[6] and Graham v The Queen [2009] NSWCCA 212 at [43], [44].

47 In assessing the objective gravity or seriousness of the offence, the sentencing court may have regard to not only the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander, but also circumstances which are personal to the offender at the time of the offence which become objectively relevant because of their causal connection with the commission of the offence. These include the mental state of the offender and the reasons for committing the offence: see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]-[86].

48 In determining the objective gravity or seriousness of each of the offences in this case, the circumstances to which the Court may have regard include:

Nature of offences

49 A fundamental consideration of relevance to environmental offences is the degree by which, having regard to the maximum penalties provided by the statute in question, the offender’s conduct would offend against the legislative objectives expressed in the statutory offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89]; Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 at [52]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [15].

50 The nature and legislative objective of the offence provision, s 118A of the National Parks and Wildlife Act 1974, and the statutory scheme, were considered in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71], [168] and [169]; Garrett v Williams at [90]; and Garrett v Freeman (No 5) at [52], [58]-[61]. I adopt the discussion in those cases.

51 The objects of the National Parks and Wildlife Act 1974 are stated in s 2A to include:

52 These objects are to be achieved by applying the principles of ecologically sustainable development: s 2A(2). The “principles of ecologically sustainable development” are defined to be those described in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). These principles are described as involving the four principles of: the precautionary principle; inter-generational equity; conservation of biological diversity and ecological integrity; and improved valuation, pricing and incentive mechanisms.

53 The offence provision of s 118A(2) was introduced into the National Parks and Wildlife Act by the Threatened Species Conservation Act 1995. The Threatened Species Conservation Act, as its long title pronounces, is “an Act to conserve threatened species, populations and ecological communities of animals and plants”. The objects of the Threatened Species Conservation Act are stated in s 3 to include:

54 One of the principal means by which these statutory objectives for conservation of biological diversity generally and threatened species, populations and ecological communities in particular, are to be achieved is by the statute prohibiting damaging conduct but enabling a person to be relieved of the prohibition by applying for and obtaining statutory approval from a competent regulatory authority. Application for approval involves undertaking environmental impact assessment of the proposed damaging conduct. The statutory provisions requiring prior environmental impact assessment and approval are linchpins of the statutory scheme. An offence against such provisions thwarts the achievement of the objects of the National Parks and Wildlife Act and the Threatened Species Conservation Act, including ecologically sustainable development: see Bentley v BGP Properties Pty Ltd at [65]-[71], [168], [169].

55 There is a need for the upholding of the regulatory system under the National Parks and Wildlife Act. The system depends on persons, first, taking steps to ascertain when approval is required to damage threatened species, populations or ecological communities, secondly, making application in the appropriate form and manner (including an environmental impact assessment) and obtaining any approval required before undertaking the damaging conduct and, thirdly, complying with the terms and conditions of the approval in undertaking the damaging conduct. Sentencing courts have emphasised the need to uphold the integrity of the regulatory scheme relating to the conservation of biological diversity and threatened species, populations and ecological communities: see Bentley v BGP Properties at [65]; Garrett v Freeman (No 5) at [58]; and Director-General of the Department of Environment and Climate Change v Rae at [18]. Offences which undermine the integrity of the regulatory system are objectively serious.

56 The actions of Mr Rawson in picking plants of threatened species without first applying for, then obtaining approval under the National Parks and Wildlife Act, offended against the legislative objectives expressed in the statutory offence and thwarted the achievement of the objects of the Act, including ecologically sustainable development. As found below, the plants were not only of a threatened species but also were components of, first, populations of those species of significant conservational status and, secondly, a listed endangered ecological community. Mr Rawson’s conduct has caused a high degree of environmental harm.

Maximum penalty

57 The maximum penalty for the offence is of great relevance in determining the objective gravity of the offence. The maximum penalty reflects the public expression by Parliament of the seriousness of the offence: see Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; 82 LGERA 21 at 36. It also provides a sentencing yardstick for the case before the court. As the High Court noted in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]:

“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”

58 The maximum penalty prescribed for an offence against s 118A(2) varies depending upon whether the plant picked is an endangered species or a vulnerable species. For the three offences involving endangered species (50077, 50079 and 50082 of 2007), the maximum penalty is 2,000 penalty units ($220,000) or imprisonment for 2 years or both, and an additional 100 penalty units ($11,000) in respect of each whole plant that was affected by or concerned in the action that constituted the offence.

59 For the four offences in respect of vulnerable species (50078, 50080, 50081 and 50083 of 2007), the maximum penalty is 500 penalty units ($55,000) or imprisonment for 1 year or both, and an additional 50 penalty units ($5,500) in respect of each whole plant that was affected by or concerned in the action that constituted the offence.

60 These penalties for offences in respect of an endangered species and a vulnerable species reveal the seriousness with which Parliament views such offences. Three aspects can be noted.

61 First, the maximum penalties for an offence in respect of any endangered species, population or ecological community are greater than the maximum penalties for a vulnerable species. This shows that Parliament views an offence in respect of any endangered species, population or ecological community as being proportionately more serious than an offence in respect of a vulnerable species.

62 Secondly, Parliament has prescribed an additional penalty per whole plant that was affected by or concerned in the action that constituted the offence. 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].

63 The prescription of an additional penalty for each whole plant may also be recognition by Parliament of the value of each individual plant comprising a threatened species, population or ecological community. Species, populations and ecological communities can only be listed as threatened if they face a high risk of extinction: see Division 2 of Part 2 of the Threatened Species Conservation Act. One reason may be that the number of individuals comprising the listed threatened species, population or ecological community have fallen to critically low levels. The loss of each individual whole plant of a threatened species, population or ecological community, contributes to the threats to the survival of the listed threatened species, population or ecological community.

64 Thirdly, the seriousness of the offence against s 118A(2) is also emphasised by the availability of a sentence of imprisonment for up to two years for an offence in respect of an endangered species, population or ecological community, or one year for an offence in respect of a vulnerable species, either by itself or in addition to a fine.

65 For the offences committed by Mr Rawson, the potential maximum monetary penalties are very high as a result of the additional penalties for the numbers of whole plants affected by the conduct that constituted each offence. For the offences involving endangered species, the potential maximum monetary penalties are:

Charge Endangered species Number of plants Potential max. penalty

50077/07 Gossia fragrantissima 22 $462,000 ($220,000 + $11,000 x 22)

50079/09 Grevillea hilliana 17 $407,000 ($220,000 + $11,000 x 17)

50082/07 Randia moorei 134 $1,694,000 ($220,000 + $11,000 x 134)

66 For the offences involving vulnerable species, the potential maximum penalties are:

Charge Vulnerable species Number of plants Potential max. penalty

50078/07 Hicksbeachia pinnatifolia 22 $176,000 ($55,000 + $5,500 x 22)

50080/07 Macadamia tetraphylla 492 $2,761,000 ($55,000 + $5,500 x 492)

50081/07 Lepiderema pulchella 560 $3,135,000 ($55,000 + $5,500 x 560)

50083/07 Acacia bakeri 32 $231,000 ($55,000 + $5,500 x 32)

67 These high maximum penalties reflect the seriousness with which Parliament views the offence of picking threatened species of plants.

Harm to the environment

68 The objective seriousness of the offence is affected by the objective harmfulness of the offender’s actions. The causing of “substantial” injury, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Harmfulness in the context of the commission of an offence against s 118A(2) of the National Parks and Wildlife Act involves the adverse impacts on the threatened species, populations or endangered ecological communities, and their habitats, and ecological processes and functioning.

69 The prosecutor led evidence of harm to the environment caused by commission of the offences from Dr McDonald.

Biodiversity and other conservation values of the vegetation communities

70 There are two forest types on the Norvill property, a high quality rainforest remnant and secondary vegetation. The rainforest remnant is located at the south of the Norvill property, including near the road that enters the south east of the property from the Golf Course. The secondary vegetation is the vegetation on the property that is not part of the rainforest remnant.

71 The rainforest remnant represents a drier form of the Argyrodendron trifoliatum suballiance found between Tamborine Mountain (in south east Queensland) and Brunswick Heads (on the NSW far north coast).

72 The rainforest remnant meets the description of the endangered ecological community of Lowland Rainforest in NSW North Coast and Sydney Basin Bioregion, listed under the Threatened Species Conservation Act.

73 The rainforest remnant, along with another rainforest remnant in Nicoll Scrub National Park in Queensland, is amongst the richest rainforest stands within the Border Ranges/Big Scrub region based on the total species diversity present, as well as the observed species diversity of the canopy. 175 native plant species have been recorded for the Norvill property. 41 species for the Norvill property have been identified as State or regional significance, including the endangered and vulnerable species the subject of the offences. Other species comprise geographically restricted species and more widely distributed species which were at or close to their geographical limits. Species that are at the limits of their geographical range are, for that reason, additionally significant.

74 A common feature of the Norvill property and the Nicoll Scrub National Park is the underlying geology, namely Tertiary basalt overlying Palaeozoic metasediments. This gives rise to a mix of soil textures and levels of nutrients which support a more diverse species assemblage than those occurring on either the basalt or metasediments alone.

75 The fact that the rainforest remnant has been disturbed over the years, involves some regrowth and has been infiltrated by some exotic species, does not remove its biodiversity and conservation values.

76 The secondary vegetation on the Norvill property is dominated by camphor laurel and privet, but still has a significant component of native rainforest species. The secondary vegetation areas contain populations of Macadamia tetraphylla and Lepiderema pulchella which are significant both in terms of their numbers and range of size classes.

Biodiversity and other conservation values of the threatened species picked

77 Each of the populations of the seven threatened species of plants picked were of specific importance.

78 The pre-damage population of Macadamia tetraphylla on the Norvill property was one of the largest, if not the largest, remaining population of this vulnerable species. A larger population of Macadamia tetraphylla elsewhere is not known. The population of Macadamia tetraphylla on the Norvill property was a key population for maintaining genetic diversity. It was the most northerly population which does not overlap (and presumably interbreed) with wild populations of Macadamia integrifolia. However, the genetic integrity of this population may, like others, have been compromised to some unknown extent by the establishment of commercial macadamia plantations in the vicinity.

79 The pre-damage population of Randia moorei on the Norvill property was estimated to be at least 200 plants. This would make it the largest population in NSW, ahead of that at Brunswick Heads (68 individuals), and exceeded only by a recently discovered population in Queensland adjacent to Lake Advancetown, south of Nerang. There was, and remains, a range of size classes in the population.

80 Lepiderema pulchella is not a widespread or abundant species. It occurs, sparingly, in eastern Lamington National Park and in parts of the Springbrook foothills (in Queensland) where it can be a relevantly frequent species. The population of Lepiderema pulchella at the Norvill property is significant in terms of other known areas, in terms of sizes of individual trees and in terms of the actual number of trees. It was a well developed population that would certainly have been important for genetic diversity on the property itself as well as for interactions with other remnants in the general vicinity.

81 Having regard to the presence of several very large trees, the population of Acacia bakeri on the Norvill property was part of a well established population, which is quite rare in NSW. Some of the trees observed as damaged, based on diameter basal height, would be in the vicinity of 100 to 200 years old.

82 Hicksbeachia pinnatifolia, Gossia frangrantissima and Grevillea hilliana are significant to the forest communities at the Norvill property in that they provide a further component adding to species diversity. Grevillea hilliana is at or close to the southern limits of its geographical range, and for this reason its occurrence on the Norvill property is of increased significance.

Actual harm to threatened species

83 Most of the plants that have been cut and poisoned have died or are likely to die. Those that have resprouted may or may not continue to grow and thrive. Dr McDonald assessed the harm to each of the threatened species caused by Mr Rawson’s conduct.

84 Other than actual harm to the individual Gossia frangrantissima trees, there is no special harm to the forest community by the loss of these trees. Although the geographical range of this species is very restricted, the population of the species should remain viable provided there is protection of trees on the Norvill property in the future.

85 The loss of the Grevillea hilliana individuals is a most significant loss for the local population of that species, especially given that its occurrence on the Norvill property is very close to the southern limit of its range.

86 The number of Randia moorei plants damaged (134) is significant. This is greater than the Brunswick Heads population (60 individuals) previously considered the largest single occurrence of this species. Over one half of the estimated total population of Randia moorei in the Norvill property was damaged by Mr Rawson’s conduct. The species occurs within two areas of the remnant rainforest. In one area individuals of the species mostly remain undamaged, but on the eastern side of the remnant individuals have been largely destroyed and connectivity within the rainforest habitat has been heavily compromised. The damage will adversely affect plant-pollinator relationships and disrupt the lifecycle of the species. The damage and disturbance of the site has had a significant adverse impact and this impact is likely to be long lasting and difficult to reverse unless extensive rehabilitation of the rainforest habitat is undertaken and active species recovery plans are implemented.

87 Notwithstanding the loss of the Acacia bakeri individuals, the population of the species on the Norvill property, given protection and the appropriate management of the future, will recover. However it will take a long time to do so. Some of the individual trees may have been 100 to 200 years old. The impact of the local population is exacerbated because some of the trees killed were large and of reproductive age.

88 Apart from the actual harm to the Hicksbeachia pinnatifolia individuals themselves, the damage will not have a significant impact on the local population, given there are larger specimens of the species in the vicinity.

89 Although a large number of individuals of Lepiderema pulchella on the Norvill property were damaged (560), the population on the property is sizeable. Approximately 10% of the damaged individuals have resprouted. Most if not all of these should survive and recover. There is an unknown but substantial amount of small individuals in the regrowth vegetation which were not damaged. There are also a significant number of individuals in a range of size classes in the remnant rainforest. The total number of living individuals at the site is at least as large as the number destroyed, and as the seed is readily dispersed, this population should re-establish itself to former levels in a relatively short time, given appropriate management.

90 A large number of individuals of Macadamia tetraphylla (492) were damaged. Approximately 75% of the total estimated population of the Norvill property appears to have been destroyed. The damage to this population will impact on the breeding cycle of the species and its associated pollinators. The destruction of the major proportion of this population as well as its habitat has had a severe and long term impact upon the recovery of the species.

Loss of connectivity

91 In addition to actual harm to individual trees and shrubs of the endangered and vulnerable species, connectivity within the remnant has been severely compromised by treatment of all trees and shrubs in the strip adjacent to the southern access road to the site and the large numbers of trees treated on a face along the northern margin of the main remnant.

92 The loss of connectivity has caused actual environmental harm, most particularly to Randia moorei, and other understorey trees, by creating a barrier to pollination and dispersal. Gaps created may be filled by secondary tree species within a period of about 20 years. It will take much longer for mature phase tree species to reach the canopy.

93 Apart from the damage inflicted on individual plants, the threatened species have also been adversely affected by changes to their habitat resulting from the death of surrounding canopy and sub-canopy trees, both within the remnant rainforest and secondary vegetation. The increased temperature and light regimes caused by the damage have encouraged the germination and growth of large numbers of camphor laurel and privet seedlings as well as numerous other weed species. These fast growing weed species compete with and may exclude, threatened and other native rainforest tree and shrub species attempting to re-establish in these areas.

Recovery of vegetation

94 In relation to the remnant rainforest, a return to mature rainforest structure and composition may take hundreds of years. This process would probably span two or three generations of mature species or more than 800 years. In relation to secondary vegetation, it would take at least 20 years for it to recover to its predamaged state.

95 In relation to Macadamia tetraphylla, as the species is relatively poorly dispersed, relying on gravity and movement by small mammals, such as native rodents, it is extremely unlikely that the population on the Norvill property will recover in the short to medium term. The damage to the Macadamia tetraphylla population will take some decades of recovery for it to achieve the degree of structural and floristic development evident in adjacent untreated areas. The majority of larger individuals (those producing fruit) are dead.

Conclusion on environmental harm

96 Picking of the threatened species has caused actual environmental harm of a high level of significance. It constitutes injury, loss or damage that is substantial and an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

State of mind of offender

97 The offence against s 118A(2) of the National Parks and Wildlife Act is a strict liability offence and mens rea is not an element of the offence. A person does not need to know that the plant concerned is of, or is part of a threatened species, an endangered population or an endangered ecological community, to commit an offence against s 118A(2). This offence stands in contrast to the offence against s 118D(1) of damaging habitat of a threatened species, endangered population or endangered ecological community, where an element of the offence is that the person “knows that the land concerned is habitat of that kind.”

98 Nevertheless, the state of mind of a person at the time of committing an offence against s 118A(2) can have the effect of increasing the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Gittany Constructions Pty Ltd v Sutherland Shire Council at [123]; Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 at [53]; Garrett v Freeman (No 5) at [68], [356]; Director-General of the Department of Environment and Climate Change v Rae at [42], [46]. Offences committed deliberately are more serious than offences committed due to inadvertence or error: Garrett v Williams at [103] and Garrett v Freeman (No 5) at [68].

99 A failure to heed advice or warnings, including from regulatory authorities, will be an aggravating feature: R & F Howe and Son (Engineers) Ltd [1999] 2 All ER 249; [1999] 2 Cr App Rep (S) 37 at [43]; R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13 at [17]; R v Bata Industries Ltd (1992) 9 OR (3d) 329 at [192]; Garrett v Williams at [110], [111].

100 I find, beyond reasonable doubt, that Mr Rawson deliberately cut and poisoned the plants the subject of the offences. I do not find, beyond reasonable doubt, that Mr Rawson knew, before he cut and poisoned each plant, that it was a threatened species or protected by law. However, I do find, beyond reasonable doubt, that Mr Rawson received information and advice that some plants he had cut might have been threatened species and their removal might have been contrary to law, and Mr Rawson acted in reckless disregard of this information and advice in cutting and poisoning other plants. There are five reasons for my finding that Mr Rawson did not know that the plants he cut and poisoned were protected threatened species or protected by law, before he cut and poisoned them.

101 First, I accept Mr Rawson’s evidence as to his lack of knowledge about each of the threatened species. I will deal with each species.

102 Mr Rawson says he knew the “nice, harmless tree” of Hicksbeachia pinnatifolia, which he knew as a Bopple Nut, and that those trees were rare in occurrence. However, he did not know that they were listed as a threatened species or protected by law. Mr Rawson said that, from his recollection, he did not cut any Bopple Nuts. However, he pleaded guilty to the offence in proceedings 50078/07 which involved picking Hicksbeachia pinnatifolia. He also later admitted to cutting two Bopple Nut plants. He denied cutting the additional twenty Bopple Nut plants observed by Mr Colvin on 27 February 2006 as having been cut. I find, beyond reasonable doubt, that he did cut the additional plants for the reasons I have given earlier for finding Mr Rawson picked all of the plants particularised in the offences. However, I find that Mr Rawson did not know at the time he cut them that they were Bopple Nuts. Mr Rawson conceded in oral evidence that it was possible that if he was working in scrub and did not look up, he may not have noticed that the tree was a Bopple Nut.

103 Mr Rawson did not know the tree of the species Acacia bakeri. The trees that he cut down, which were in fact Acacia bakeri, he thought were another species, which he called a Sally Wattle, and which he considered to be “a common native pest on farmland”. Hence, he did not know the trees were a threatened species or protected by law.

104 Mr Rawson said he did not know the plant Randia moorei and he did not know it was a threatened species or protected by law. Mr Rawson said that he had seen Lepiderema pulchella, which he knew as a Tuckeroo, as there were “hundreds and hundreds” of them on the Norvill property. He said that they were “everywhere”. He did not know that they were a threatened species or protected by law.

105 Mr Rawson knew Macadamia trees, he called them “Macas”, but he was unable to distinguish between Macadamia tetraphylla, the threatened species that occurred on the Norvill property, and the more commonly cultivated Macadamia integrifolia. Mr Rawson considered that Macadamias grew everywhere. He did not know that they were a threatened species or protected by law.

106 Mr Rawson did not know the plant Gossia fragrantissima or that it was a threatened species or protected by law. Mr Rawson could identify the tree that is Grevillea hilliana and could distinguish it from a Sally Wattle. However, he did not know its name, or that it was a threatened species or protected by law.

107 Secondly, I accept Mr Rawson’s evidence as to his lack of knowledge of threatened species generally. Mr Rawson said that he knew some plants were protected by the law but did not know which ones they were. He said he did not think that there was any law against cleaning up an old farm. He said: “Clearing up old farms, I didn’t think it really mattered that much as long as you did it strategically here and there, as long as you didn’t wipe the whole thing right out off the face of the map, you leave the strategic trees and the strategic little gulleys as I did on the Teitzel property, as I did on the three other ones there”.

108 Thirdly, I accept Mr Rawson’s evidence that he never had a conversation with Mr Mantle or anyone else from TGM about threatened species on the Norvill property or about Mr Rawson cutting down or damaging threatened species on the property.

109 Fourthly, I do not find, beyond reasonable doubt, that when Mr Rawson cut and poisoned plants previously tagged by the ecologists as being threatened species, he knew that the plants were threatened species or knew the significance of the plants being tagged. Mr Rawson said that he did see tags, including pink tags, “everywhere, on camphors, lantana, fence posts, surveyors’ pegs and the ground. They were here, there and everywhere.” He was not told of the reason for, or the significance of, the tags. He admits to cutting some trees or shrubs with pink tags, but he said he “didn’t deliberately go and target the trees with the pink ribbons on them.” He cut and poisoned them, along with the untagged plants if they were in an area that he intended to clear. Mr Rawson also pointed out that many plants with pink tape are still growing today on the Norvill property and have not been cut or poisoned. Mr Rawson made this point to rebut the suggestion that he targeted plants with pink tape for cutting and poisoning.

110 Fifthly, I do not find that because Mr Rawson had a map of the Norvill property that he had knowledge of the location of the threatened species on that property. Mr Rawson admitted to having a map of the Norvill property given to him by Mr Clark. Mr Rawson said that he obtained the map to see where the boundaries of the Norvill property were, particularly in the south, so that he would undertake work only on the property. There was a dispute between Mr Colvin and McArthur, on the one hand, and Mr Rawson on the other hand, as to whether the map Mr Rawson had in his possession on 23 May 2006 had dots on it depicting the location of threatened species. The map Mr Rawson had on that day is no longer available. Mr Colvin and Mr McArthur identified a map similar to the map they said they saw in the back of Mr Rawson’s red utility. This similar map was an aerial photograph of the Norvill property and surrounding properties. Superimposed on the aerial photograph were the cadastral boundaries and title references. There were also small yellow dots distributed in vegetated areas on the Norvill property. The legend described the yellow dots as “Threatened plant”. The map did not identify any species of threatened plant.

111 I find, beyond reasonable doubt, that the map Mr Rawson had in his red utility was one similar to the map described by Mr Colvin and Mr McArthur. However, I do not find that Mr Rawson was given or obtained this map for the purpose of finding the location of threatened species. I accept Mr Rawson’s evidence that he was given or obtained the map for the purpose of showing where the boundaries of the Norvill property were located in relation to the vegetation and other features shown on the aerial photograph.

112 I also do not find, beyond reasonable doubt, that Mr Rawson used the map to find the location of threatened species on the property. Mr Rawson denies doing so. There is no other direct evidence of his having done so. Indeed, the nature of the map as an aerial photograph, the scale of the map, the size of the map and the dots and the absence of any identification of the species of the threatened plants would make use of the map to find any particular threatened species difficult. It would be particularly difficult for Mr Rawson. Mr Rawson said, on a number of occasions in his evidence, that he had difficulty reading and working from maps. Rather, his practice was to work in the field without a map. Mr Rawson also needs glasses to read but said he did not wear his glasses when he worked so he could not have read a map with dots on it.

113 Accordingly, I do not find from the fact that Mr Rawson had a map which had dots depicting the location of threatened species, that Mr Rawson knew that the plants he cut and poisoned were threatened species.

114 However, I do find, beyond reasonable doubt, that Mr Rawson received information and advice that trees he had cut might have been threatened species and that removal of vegetation might be contrary to the law.

115 Mr Rawson had conversations with Mr Colvin, one of the ecologists working with James Warren & Associates identifying and tagging threatened species on the Norvill property, on 27 February 2006 and on 23 May 2006. Mr Colvin said that on 27 February 2006 he observed twenty cut Hicksbeachia pinnatifolia (Red Bopple Nut) trees and then had the following conversation with Mr Rawson:

“Mr Colvin said: ‘Why the hell have you cut down all these trees?’

The defendant said: ‘Godfrey’s orders. Just doing what I’m told to do.’

Mr Colvin said: ‘Why are you doing it?’

The defendant said: ‘I am just doing what I am told to do.’
Mr Colvin said: ‘Are you going to keep on cutting the trees down? These are threatened trees, you can’t cut them down.’”

116 Mr Colvin said Mr Rawson did not respond to Mr Rawson’s last question. Mr Rawson did not remember the terms of the conversation with Mr Colvin. He admits Mr Colvin was angry with him and accused him of having killed Bopple Nuts.

117 I find the conversation on 27 February 2006 occurred in terms of Mr Colvin’s account. This means that Mr Rawson was alerted to the fact that the Bopple Nut trees that had been cut were, in the opinion of Mr Colvin, threatened trees. However, there is no evidence that any more Bopple Nut trees were cut and poisoned by Mr Rawson. All of the Hicksbeachia pinnatifolia (Bopple Nut) trees that were cut and poisoned were in the same area. There is no evidence that the additional two Bopple Nut trees were cut and poisoned after the twenty cut trees that Mr Colvin observed and which were the subject of the conservation with Mr Rawson on 27 February 2006.

118 Nevertheless, Mr Rawson had been alerted by Mr Colvin to the fact that certain plants that had been cut were said to be threatened plants. This ought reasonably to have alerted Mr Rawson to the possibility that other plants on the property might be threatened plants.

119 Mr Colvin had another conversation with Mr Rawson, at a different location on the property, on 23 May 2006. Mr Colvin’s account is:

“Mr Colvin said: ‘What further work have you done here?’

The defendant said: ‘I’ve poisoned a lot of vegetation around this area.’

120 Mr Colvin said Mr Rawson did not reply to the last question but produced the map he had in the back of the red utility. The conversation continued:

“Mr Colvin said: ‘How much more are you going to do?’

Mr Rawson then indicated a finger of vegetation into a paddock.

“The defendant said: ‘I am just going to do the top bit here.’”

121 Mr Rawson did not remember the terms of the conversation.

122 Again, I find the conversation on 23 May 2006 occurred in terms of Mr Colvin’s account. This conversation did not inform Mr Rawson that the remaining vegetation he said he intended to remove contained threatened species. However, Mr Rawson may have been alerted from Mr Colvin’s question that Mr Colvin considered that vegetation Mr Rawson had previously cut on the property contained threatened species.

123 There was also a conversation Mr Rawson had at the Norvill property on 8 March 2006 with an officer of Tweed Shire Council, Mr Bishop. Mr Bishop saw a number of trees had been cut and were dying and saw Mr Rawson cutting a tree with a chainsaw. Mr Bishop says the conversation was as follows:

“Mr Bishop said: ‘Why are you cutting and poisoning trees?’

Mr Bishop said: ‘No, it’s a 7(d) Environment Protection Zone where the scenic qualities should be preserved. Also, the area is covered by a Tree Preservation Order where removal of any vegetation requires approval. Who authorised this work and how long have you been doing it?’

The defendant said: ‘The owner contracted me. I’ve been working here for months.’

Mr Bishop said: ‘You mean Godfrey Mantle?’

The defendant said: ‘Yes.’

Mr Bishop said: ‘I will contact him. In the meantime I’ll have to ask you to stop work.’

124 The effect of these conversations is that Mr Rawson was alerted to the fact that his actions of cutting and poisoning trees on the Norvill property might be affecting threatened plants and might be contrary to the law. However, Mr Rawson did not make any inquiry about what he had been told by Mr Colvin or Mr Bishop, or what plants were threatened plants or what was the significance of plants being threatened plants, or whether the clearing of vegetation, including camphor laurels and privets, on the property was contrary to law. In continuing to cut and poison vegetation on the land, after being so alerted but making no inquiries, Mr Rawson exhibited a reckless disregard to whether his actions were lawful or not.

125 I find, beyond reasonable doubt, that Mr Rawson’s actions constituting each of the offences were deliberate and that Mr Rawson acted in reckless disregard of the information, advice and warnings of Mr Colvin (that at least some of the plants that Mr Rawson had cut and poisoned were threatened species) and of Mr Bishop (that the cutting and poisoning of plants on the property may be contrary to the law). However, I do not find, beyond reasonable doubt, that Mr Rawson knew, before he cut and poisoned the plants that were threatened species, that they were threatened species and protected by the law.

Reasons for committing the offence

126 The criminality involved in the commission of an offence is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence: see Garrett v Williams at [120] and cases therein cited.

127 The prosecutor submits that Mr Rawson deliberately targeted threatened species of plants growing in the location of the footprint of the mixed residential development proposed by TGM. The prosecutor submitted that Mr Rawson, at the request and direction of TGM, cut and poisoned the threatened species of plants as they were impediments or constraints to the prospects of obtaining all necessary approvals for that proposed development. The prosecutor submitted that such a purpose for committing the offence increases the objective seriousness of the offences.

128 Mr Rawson denied that this was his purpose in committing the offences. Mr Rawson steadfastly claimed that he cut and poisoned the plants that were the threatened species, as well as the tens of thousands of other plants including weeds on the property, for the purpose of cleaning up the Norvill property to improve its pasture and productivity for cattle grazing. This was the purpose for which he was engaged by Mr Mantle of TGM. Mr Rawson said that he never knew, until after he had finished his work on the Norvill property, of TGM’s specific development proposal for the property or of the location of the footprint of that development proposal and its relationship to the location of threatened species of plants on the property. He had only heard indirectly of vague rumours of proposals to develop the property, but no one spoke to him directly or briefed him about TGM’s specific development proposal. Mr Rawson denied targeting threatened species for removal.

129 The prosecutor has not established, beyond reasonable doubt, that Mr Rawson committed each of the offences for the purpose of removing impediments to the proposed mixed residential development of his principal, TGM. Rather, I find beyond reasonable doubt that Mr Rawson committed the offence for the purpose of improving the pasture and productivity of the Norvill property for cattle grazing. There are three reasons for these findings.

130 First, there is no direct evidence that Mr Rawson was ever informed of TGM’s development proposal for the Norvill property, or briefed as to where it would be located on the property, or shown where it might conflict with any threatened species that might occur on the property. The prosecutor, or for that matter, the defendant, did not call evidence from any person from TGM, including Mr Mantle or Mr Clark. The prosecutor did lead evidence from Mr Colvin and Mr McArthur, the ecologists from James Warren & Associates engaged by TGM to undertake flora surveys on the Norvill property. However, they did not say that they had ever shown Mr Rawson where threatened species of plants were located on the Norvill property, or even what plants were threatened species, where the footprint of the proposed development was to be located or where it might conflict with the location of threatened species on the Norvill property. They did say that they saw, on 23 May 2006, Mr Rawson with a copy of a map produced by James Warren & Associates with dots on it, depicting the location of threatened species.

131 However, the mere fact that Mr Rawson had a map in the back of his utility, by itself, is equivocal as to how Mr Rawson used the map. Mr Rawson says he was given the map by Mr Clark in order to assist Mr Rawson in finding the location of the southern boundary of the property. Mr Rawson said he did not use the map to find the location of threatened species. Mr Colvin and Mr McArthur did not say that they saw Mr Rawson using the map to find threatened species or that Mr Rawson admitted to them that he had used the map for that purpose.

132 Mr Rawson’s evidence was consistent in denying knowledge of TGM’s development proposal for the Norvill property. He said that he never had any discussions with Mr Mantle or Mr Clark of TGM about any development proposal for the Norvill property and, hence, he could never have discussed whether any development proposal might conflict with any threatened species on the Norvill property. Mr Rawson said the only discussions he had with Mr Mantle were about cleaning up the property for the purpose of improving it for cattle grazing.

133 Secondly, the indirect or circumstantial evidence does not establish that Mr Rawson’s actions constituting the offences were done for the purpose of removing impediments for TGM’s proposed development. The prosecutor’s overlays of the footprint of TGM’s proposed development, particularly the location of the roads, with the location of the threatened plant species cut and poisoned by Mr Rawson does not establish any clear pattern. Although there are areas of overlap, there are also considerable areas where there is no overlap. Certainly, it cannot be found that the degree of overlap between TGM’s development proposal and the location of threatened plant species cut and poisoned by Mr Rawson, is any greater than would be the case if an overlay had been prepared of the areas that Mr Rawson said he was clearing for the purpose of improving the property for cattle grazing with the location of the plants cut and poisoned by Mr Rawson.

134 Thirdly, not all of the threatened species of plants surveyed by the ecologists from James Warren & Associates, including the ones flagged with pink or other tags, were in fact cut or poisoned by Mr Rawson or at all. Even of the seven threatened species the subject of the offences, many individuals of those species remain on the Norvill property. In some instances, individuals of a threatened species remain in close proximity to plants of the same species cut or poisoned by Mr Rawson. Where Mr Rawson cut or poisoned a threatened species with an identifying tag, he made no attempt to remove the evidence of any tag. It was left on the cut stem on the ground. Mr Rawson also cut and poisoned tens of thousands of other species of plants on the Norvill property. All of these matters speak against a conclusion that Mr Rawson targeted only threatened species on the Norvill property.

135 Mr Rawson, did, however, benefit financially from committing the offences. Mr Rawson was in business as a farm maintenance worker. A large part of his work involved clearing vegetation on rural properties for owners. He was engaged by Mr Mantle of TGM to undertake that work on the Norvill property for a fee of $32.00 per hour. The payments that Mr Rawson received from TGM were for work that included cutting and poisoning plants of the threatened species the subject of the offences.

Foreseeability of risk of harm

136 Mr Rawson could reasonably have foreseen that his conduct of cutting and poisoning plants on the Norvill property would cause harm to the environment. Indeed, Mr Rawson’s purpose was to convert the vegetated areas on the Norvill property to pasture land. Mr Rawson admitted that this would involve harming the environment. Mr Rawson said that harm to the environment was inevitable because a farmer cannot make a living out of a farm if bush is left to take over the farm: for “every acre or half acre that disappears you lose a cow because you can’t feed that cow. Instead of running 100 head you have 50 and then it’s not viable”. Hence, Mr Rawson knew that cutting and poisoning vegetation on the property would harm the environment but considered that this was necessary in order to improve the productivity and viability of the farm for cattle grazing.

Practical measures

137 Mr Rawson could have and should have refrained from cutting and poisoning plants of threatened species unless and until all necessary approvals had been sought and obtained from the competent regulatory authorities, which authorised the cutting and poisoning of the threatened species.

Control over causes

138 Mr Rawson cut and poisoned the plants of the threatened species and thereby had control over the causes of harm to the environment.

Conclusion on objective circumstances

139 Having regard to the nature of the offence; the high maximum penalties; the high degree of actual environmental harm caused by Mr Rawson’s conduct constituting the offences; Mr Rawson undertaking the conduct deliberately and in reckless disregard as to whether his conduct was lawful or not; Mr Rawson undertaking the conduct constituting the offences to earn a fee; the foreseeability of risk of harm to the environment by reason of commission of the offences; the existence of practical measures to avoid that risk of harm; Mr Rawson’s control over the causes of harm to the environment, the offence should be considered to be of medium objective gravity or seriousness.

SUBJECTIVE CIRCUMSTANCES OF THE DEFENDANT

140 Within the limits set by reference to the objective gravity of the offences, the Court may take into account the favourable factors personal to the offender. Factors to be considered are: lack of prior criminality; prior good character; plea of guilty to the offences; contrition and remorse; and assistance to authorities.

Lack of prior criminality

141 Mr Rawson does not have any prior convictions for any environmental offences. This is a mitigating factor: see s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.

Prior good character

142 There is evidence that Mr Rawson has been, otherwise than committing the offences for which he has been charged, a person of good character. This is another mitigating factor: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. 19 character references were tendered. They came from a variety of people in the Tweed/Chillingham communities. They have known Mr Rawson from working with him, his volunteer work with NSW Rural Fire Service, being a neighbour or otherwise being a fellow member of the local Chillingham community. They speak of him as being hard working, community spirited, generous with his time to help others, a dedicated family man, a responsible and respected citizen, and “a good bloke”. They speak of his honesty and integrity, being a “man of his word”.

143 Prior good character can have both a negative and a positive aspect: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [27]. The negative aspect of good character can refer to the absence of prior convictions and otherwise not having previously engaged in other criminal conduct: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [25]. The positive aspect of good character can include a history of prior good works and contribution to the community: Ryan v The Queen at [27]. The reason for prior good character being a mitigating factor is that a “morally good” person is less deserving of punishment for a particular offence than a “morally neutral or bad” person who has committed an identical offence: Ryan v The Queen at [30], [31].

144 Good character may operate to reduce the sentence which the objective facts of the offence would otherwise attract: Ryan v The Queen at [174]. As with prior criminality, prior good character is not part of the objective circumstances of the offence: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [17]. Prior good character is relevant to where, within the boundary set by the objective circumstances, a sentence should lie: R v McNaughton at [26].

145 There are two distinct stages in using prior good character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. Secondly, if so, it is necessary to determine the weight that must be given to that mitigating factor. The weight that must be given to the offender’s otherwise good character will vary according to all the circumstances: Ryan v The Queen at [23], [25].

146 The weight to be given to prior good character depends, to an extent, on the character of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442; Ryan v The Queen at [143]; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [51].

147 Certain classes of offences are ones in which many, perhaps even most, offences are committed by persons who are not members of a criminal class or do not have criminal convictions against them: R v MacIntyre (1988) 38 A Crim R 135 at 139; R v Kennedy [2000] NSWCCA 527 at [21]; Ryan v The Queen at [143]. Prior good character may be extended less weight in these classes of offences. Child sexual assault, drug trafficking and drink driving offences are illustrations. White-collar offences are another class. It has been observed that such crimes are rarely committed by people who have a criminal history: R v Rivkin [2004] NSWCCA 7 at [410]; R v Adler [2005] NSWSC 274 at [51]; R v Williams [2005] NSWSC 315 at [61]; R v I R Hall (No 2) [2005] NSWSC 890 at [101]; R v Gent at [59]. Less weight is accorded to prior good character in sentencing for white-collar crimes.

148 Environmental offences are another illustration of a class of offences committed by person who, typically, are of prior good character. They very rarely have previously engaged in other criminal conduct and mostly do not have any prior convictions for environmental offences. The prevalence of the commission of environmental offences by persons of otherwise good character, and the importance of the sentence for environmental offences achieving the purpose of general deterrence, makes the fact that the offender is of otherwise good character of less relevance than it might be in sentencing for other types of offences.

149 In this case, I find Mr Rawson is a person of otherwise good character. However, having regard to the nature of the offences and the importance of general deterrence in sentencing for the offences, less weight should be given to this factor.

Plea of guilty

150 Mr Rawson has pleaded guilty to each of the offences: s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. He is entitled to a discount for the utilitarian value of his pleas of guilty to the criminal justice system. In assessing the utilitarian value of the pleas, the timing of the pleas is a critical factor: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [154]–[160]. A plea entered at the earliest possible opportunity has more significant utilitarian benefit and should attract a higher discount, than a plea entered at a later stage. Section 22(1)(b) of the Crimes (Sentencing Procedure) Act 1999 requires the sentencing court to take into account not only the fact that the offender has pleaded guilty but also “when the offender pleaded guilty or indicated an intention to plead guilty.” Sentencing courts in New South Wales are required to give full force and effect to s 22 in accordance with its terms: R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 at [68].

(a) where the offender’s conduct involves a considerable degree of wilfulness and deception: Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) at pp 1, 2, 3, 5; R v Moore [2001] QCA 431; [2003] 1 Qd R 205 at [10], [13], [21]; Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113 at [3], [4]; R v Borrett [2004] NZRMA 248 at [7], [10], [19]-[20]; R v Conway [2005] NZRMA 274 at [71]; R v Garrett [1997] 1 Cr App Rep (S) 109 at 111; R v Sissen [2001] 1 WLR 902 at [51]; and R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25 at [8], [24], [25];

(b) where an actuating reason for the offender’s conduct is to make a profit or save an expense: Environment Protection Authority v Gardner at p 2 ; Dempsey v The Queen at [4]; R v Conway at [76]; R v Tapscott [2007] EWCA Crim 1787 at [11]; R v Kelleher at [3]-[6], [8], [24], [25], [30] and [32];

(c) where the offender’s conduct posed a high level of risk to or actually caused considerable harm to the environment and the public: Environment Protection Authority v Gardner at p 3; R v Moore at [11], [13], [17]; Dempsey v The Queen at [5]; R v Borrett at [10], [17], [19]; R v Conway at [71]; R v Sissen at [51]; R v Garrett at 111;

(d) where the offender’s conduct is over an extended period or is of a repetitive nature: Environment Protection Authority v Gardner at pp 2, 5; R v Moore at [13], [21]; R v Borrett at [7], [10]; R v Conway at [71] ; R v Tapscott at [11] and [12]; R v Kelleher at [3]-[6], [8], [24], [25], [31] and [33]; and

Environment Protection Authority v Gardner

R v Moore

; Dempsey v The Queen

; R v Borrett

; R v Conway

R v Sissen

R v Kelleher

182 The circumstances of the offences and the offender in this case do not cross the custody threshold. There is not the necessary combination of both serious damage or risk of serious damage with a very high degree of culpability on the part of the offender. Although I have found that the environmental harm caused by Mr Rawson’s offending conduct was serious, Mr Rawson’s conduct constituting the offences did not have a very high degree of culpability.

183 Mr Rawson’s conduct was deliberate, in that he deliberately cut and poisoned plants that were in fact threatened species but he did not know before doing so that they were threatened species and protected by law. Mr Rawson did not knowingly or intentionally break the law. There was no planning or organisation to commit the offences. However, he did act in reckless disregard of information, advice and warnings that some plants he had cut and poisoned may have been threatened plants and that cutting and poisoning plants may be contrary to the law.

184 There was no deception. Mr Rawson did not hide or disguise his work of cutting and poisoning plants on the Norvill property or the evidence of this work, such as the cut stems. The threatened plants species he cut and poisoned were left for all to see.

185 Mr Rawson did earn a fee for his work in cutting and poisoning plants but the fee was paid for each hour of work he undertook irrespective of whether the plants he cut and poisoned were threatened species or not. Mr Rawson was not paid to cut and poison only threatened species or paid at a higher rate for cutting and poisoning threatened species. I have found Mr Rawson did not undertake the work of cutting and poisoning certain plant species to remove constraints on TGM’s development proposal for the land but rather that he did the work to improve the productivity of the land for cattle grazing. However, Mr Rawson did not, and it was never intended that he should, benefit from any increased productivity of the land that might result from his work. Mr Rawson was paid the same flat rate for each hour of work done, regardless of any earnings or profit that might accrue to the owner of the land, TGM.

186 Mr Rawson’s offending conduct did extend over a year or so, but the work he carried out was all part of the one continuing course of conduct. It did not involve repetition on a number of separate sites and was not part of any planned or organised criminal activity.

187 Furthermore, there are alternatives to imprisonment that are appropriate for the circumstances of the offences and the offender and the purposes of sentencing in this case. These are a community service order and a fine.

Appropriateness of community service order

188 Section 8(1) of the Crimes (Sentencing Procedure) Act provides that:

189 The opening words of s 8(1) (which appear also at the commencement of s 9(1) relating to good behaviour bonds) confine the availability of such orders to offences for which one of the penalties that the court may impose is imprisonment (Ngo v Fairfield City Council [2009] NSWCCA 241 at [26]) but do not confine the availability of such orders to cases which otherwise would be visited by imposition of a sentence of imprisonment (R v Said El Masri [2005] NSWCCA 167 at [32]).

190 “Community service work” is defined in s 3 of the Crimes (Administration of Sentences) Act 1999 as “any service or activity approved by the Minister, and includes participation in personal development, educational or other programs.”

191 The maximum number of hours specified in a community service order is 500 or the number of hours prescribed by the regulations in respect of the class of offences to which the offence belongs, whichever is the lesser: s 8(2) of the Crimes (Sentencing Procedure) Act. Clause 22 of the Crimes (Sentencing Procedure) Regulation 2005 provides that the prescribed maximum number of hours for offences for which the maximum term of imprisonment exceeds 6 months but does not exceed one year, is 200 hours and for offences for which the maximum term of imprisonment exceeds 1 year, is 500 hours. In this case, this means the maximum number of hours that can be specified in a community service order is 200 hours for each of the four offences against s 118A(2) of the National Parks and Wildlife Act in respect of vulnerable species (which have a maximum term of imprisonment of one year), and 500 hours and for each of the three offences against s 118A(2) in respect of endangered species (which have a maximum term of imprisonment of two years).

192 An offender must not be directed to perform more than eight hours of community service work in any one day or participate in a development program for more than five hours in any one day, except by agreement between the offender and the assigned officer: cl 213 of the Crimes (Administration of Sentences) Regulation 2008.

193 Concurrent or cumulative community service orders may be imposed as long as the total number of hours does not exceed 500: s 87 of the Crimes (Sentencing Procedure) Act.

194 The court may impose conditions on a community service order: s 90(1) of the Crimes (Sentencing Procedure) Act. The standard conditions set out in the regulations apply to a community service order: s 108(a) of the Crimes (Administration of Sentences) Act. The conditions imposed by the court must not be inconsistent with the standard conditions imposed by the regulations: s 90(4) of the Crimes (Sentencing Procedure) Act.

195 If a community service order is breached the court has power to sentence the offender for the original offence and exercise any power which it could have exercised had the order not been made: s 115 of the Crimes (Administration of Sentences) Act.

196 Section 86 of the Crimes (Sentencing Procedure) Act regulates the Court’s power to make community service orders. Section 86 provides:

(a) that the offender is a suitable person for community service work, and

(b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and

(c) that arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and

(d) that community service work can be provided in accordance with those arrangements, and

(3) A court may, for any reason it considers sufficient, decline to make a community service order despite the contents of an assessment report.

(4) A court may make a community service order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person for community service work.

197 The NSW Department of Corrective Services, Probation and Parole Service, have provided two pre-sentence reports dated 21 April 2009 and 4 June 2009. In both reports, Mr Rawson is assessed as being suitable for a community service order as required by s 86(1)(a) and he has signed an undertaking as required by s 86(5) of the Crimes (Sentencing Procedure) Act. In the 4 June 2009 report, the Service informed the Court that arrangements exist in the area in which Mr Rawson resides for Mr Rawson to perform community service work and community service work can be provided in accordance with those arrangements, as required by s 86(1)(c) and (d). The Service stated that should Mr Rawson be sentenced to a community service order, “he would be placed with the Byron Bay Island Quarry Association, a not-for-profit organisation which undertakes environmental regeneration, including replanting, and landscaping work on the site of and surrounding a disused quarry.” The Service also noted that Mr Rawson “would be required to travel to and from the nominated agency using his own resources. It is not departmental policy to include travelling time in the calculation of hours worked under a community service order.”

198 A community service order can be a “real and effective” alternative to imprisonment. The impact and severity of a non-custodial sentence, such as community service, can be severe on an offender and “ought not to be regarded by the public as a minor or insignificant reaction by the courts”: see R v Burton [1982] 1 NZLR 602 at 604; R v Conway at [59]. In R v Said El Masri at [37], the NSW Court of Criminal Appeal observed that:

199 Community service may be appropriate where the sentencing purpose of reparation is relevant. A community service order contains a requirement of reparation to the community: R v Kelleher at [23]. A community service order may not be an appropriate sentence where retribution, accountability for harm done to the community, denunciation and deterrence are the most important sentencing goals: R v Conway at [59], [66], [67], [71] and [72].

200 In this case, there is a need for the sentence to recognise the harm done by Mr Rawson’s offending conduct to the environment and the community. Restoration of the environment harmed is not readily achievable as Mr Rawson is not the owner or occupier of the Norvill property and no longer is engaged to work on the property. Similarly, reparation cannot be directly achieved. However, an order requiring Mr Rawson to perform community service work contains a requirement of reparation to the community.

201 An order that Mr Rawson perform community service work of the nominated nature and with the nominated agency would involve reparation to the community, in the form of environmental regeneration including replanting, that is relevant to the offences of picking threatened plant species and the environmental consequences of those offences in this case.

Appropriateness of fine

202 A fine is the most common sentencing option and often the most appropriate penalty for environmental offences. The fine embodies the legislative view, based on community standards, of the seriousness of criminal conduct. A fine can achieve the purposes of sentencing of retribution, accountability, denunciation and deterrence. A fine is appropriate in the circumstances of the offences and the offender in this case.

Combination of community service order and fine

203 Although the sentence of the court needs to include elements of retribution, accountability, denunciation and deterrence in this case, this can be achieved by combining a community service order with a fine that achieves these purposes. Although s 90(1) of the Crimes (Sentencing Procedure) Act provides that any payment of money whether in the nature of a fine, compensation or otherwise, may not be made a condition of a community service order, it does not provide that additional orders such as a fine that the court may impose as a penalty, may not be made in addition to a community service order.

204 The combination of a community service order and a fine may be the appropriate sentencing package that is proportionate to the objective gravity of the offence and the subjective circumstances of the offender: see R v Burton at 605; Environment Protection Authority v White (1996) 92 LGERA 264 at 273; Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219 at [58], [60]; Garrett v Williams [2007] NSWLEC 56 at [54]-[58]; Environment Protection Authority v Pal [2009] NSWLEC 35 at [140], [144]; Environment Protection Authority v Pal (No 2) [2009] NSWLEC 60 at [19].

Amount of fine and financial means

205 The amount of the fine needs to reflect the objective circumstances of the offences and offender, and the overall medium objective gravity of the offences, mitigated by the relevant subjective circumstances of Mr Rawson.

206 However, the court is also required to consider the financial means of the offender to pay a fine. Section 6 of the Fines Act 1996:

“In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

207 A “fine” includes any monetary penalty imposed by the court as well as any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer: s 4(1)(a) and (f) of the Fines Act. The prosecutor in this case is a law enforcement officer: see definition of “law enforcement officer” in s 3 of the Fines Act. Hence, the court needs to consider the financial means of Mr Rawson in exercising its discretion to fix the amount of any monetary penalty for each offence and any costs order payable by Mr Rawson.

208 Once a determination has been made that a fine should be imposed the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the court is satisfied that the offender would be unable to pay the amount determined, the court may reduce the amount of the fine to take account of the offender’s means and impecuniosity: R v Rahme (1989) 43 A Crim R 81 at 86-87.

209 Mr Rawson is 59 years of age. He separated two years ago from his wife to whom he had been married for 36 years. He has three children. He has no qualifications and left high school at 14 years of age. He has worked as a fencing contractor, trail ride operator and a self-employed farm maintenance worker which is his current employment. He works for $32.00 an hour.

210 His principal asset is a farm at Chillingham. There was no independent valuation of its worth but Mr Rawson thought it would be worth about $650,000. It is unencumbered. He owns cattle on the farm. He also owns an old Massey Ferguson tractor and an old red utility which he drives to the farms on which he undertakes farm maintenance work. He owns tools of the trade, including chainsaws and spray equipment. After separating from his wife, he moved out of the house on the farm to a tin shed elsewhere on the farm. It provides rudimentary living quarters, with a bed, kitchenette and bathroom facilities.

211 In this case, another factor relevant to Mr Rawson’s ability to pay a fine and costs order is the fact that TGM has given Mr Rawson an indemnity for all fines and costs orders that might be imposed.

212 The first deed of agreement was dated 20 May 2007. TGM agreed to reimburse and indemnify Mr Rawson for any expense incurred by or penalty imposed upon Mr Rawson in relation to the investigation and prosecution of the offences, “including legal expenses, investigation expenses, fines or other monetary penalties.” This agreement was varied by a deed of variation dated 17 July 2008. The effect of the variation was to cap TGM’s liability under the indemnity agreement at a maximum amount of $200,000.

213 Evidence was given that Mr Rawson’s legal and other expenses to date have been around $175,000. These have been paid or reimbursed by TGM under the indemnity agreement. Mr Rawson has not yet had to pay any expenses himself.

Prosecutor’s costs

214 The prosecutor seeks an order under s 257B of the Criminal Procedure Act 1986 that Mr Rawson pay the prosecutor’s costs. Where an offender is convicted of an offence against the National Parks and Wildlife Act and is ordered to pay costs under the Criminal Procedure Act, those costs are to be paid into the National Parks and Wildlife Fund maintained under s 137 of the National Parks and Wildlife Act: see s 176(3) of the National Parks and Wildlife Act.

215 The prosecutor stated that its costs are in excess of $300,000. No agreement as to the amount of costs has been reached between the prosecutor and Mr Rawson. Indeed, Mr Rawson submits the amount of costs has been increased by the prosecutor seeking to prove the aggravating facts that Mr Rawson knew and targeted threatened species to remove constraints on TGM’s proposed residential development of the Norvill property. Mr Rawson submits the court should specify an amount of costs that excludes the costs and expenses relating to these facts. Mr Rawson also submits that the court should specify an amount of costs having regard to Mr Rawson’s means to pay. The court can specify an amount of costs under s 257B of the Criminal Procedure Act or direct that costs are to be determined in accordance with s 257G of the Criminal Procedure Act.

The appropriate penalties

216 Having regard to the purposes for which sentences should be imposed for these offences, the objective circumstances of the offences and of the offender, and the mitigating subjective circumstances of the offender, I consider the appropriate penalties for each offence are a fine and a community service order.

217 The amount of the fine and the number of hours of community service for each offence should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and offender: Markarian v The Queen at [37], [39], [66] and [73]. Accordingly, I have taken into account each of the objective circumstances of the offence and offender, and the medium objective gravity of each offence, as mitigated by the relevant subjective circumstances of Mr Rawson. For each offence, I have considered the cumulative effect of having both a fine and community service order in fixing the amount of the fine and the number of hours of community service. As between the offences, the classification of the threatened species concerned (endangered or vulnerable), the number of the whole plants affected, and the degree of environmental harm caused affect the amount of the fine and the number of hours of community service.

218 Considering each offence by itself, the appropriate penalties for each offence would be as follows:

Charge Plant
Fine
$

CSO

50077/07 Gossia fragrantissima (E)
12,000

12

50078/09 Hicksbeachia pinnatifolia (V)
6,000

6

50079/07 Grevillea hilliana (E)
15,000

15

50080/07 Macadamia tetraphylla (V)
85,000

85

50081/07 Lepiderema pulchella (V)
42,000

42

50082/07 Randia moorei (E)
160,000

160

50083/07 Acacia bakeri (V)
10,000

10

$330,000

330 hours

219 Allowance needs then to be made for the discount for the utilitarian value of Mr Rawson’s pleas of guilty, which I have assessed as being 18%. The amounts of the fines and the hours of community service (with rounding) for each offence after the discount become:

Charge Plant
Disc Fine
$

Disc CSO

50077/07 Gossia fragrantissima (E)
9,840

10

50078/09 Hicksbeachia pinnatifolia (V)
4,920

5

50079/07 Grevillea hilliana (E)
12,300

12

50080/07 Macadamia tetraphylla (V)
69,700

70

50081/07 Lepiderema pulchella (V)
34,440

35

50082/07 Randia moorei (E)
131,200

130

50083/07 Acacia bakeri (V)
8,200

8

$270,600

270 hours

220 Because there are multiple offences, and the sentences for each offence involve a combination of a fine with another sentence of a community service order, the totality principle is applicable: R v Sgroi (1989) 40 A Crim R 197 at 203. The effect of the totality principle is to require the court which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court: R v Visconti [1982] 2 NSWLR 104 at 114, 115; R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260; Mill v The Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [49].

221 To reflect the fact that a number of sentences are being imposed, an appropriate result may be reached, in relation to sentences for detention, regardless of the manner they are to be served, either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate (Mill v The Queen at 63), and in relation to fines, by reducing the amount of the fine for each offence: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority at 703-704; Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50]; Robinson v Eureka Operations Pty Ltd [2009] NSWSC 784 at [52].

222 Care must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence: R v A [1999] NSWCCA 61 at [32]; R v Weldon; R v Carberry [2002] NSWCCA 475; (2002) 136 A Crim R 55 at [46]; R v KM; R v Linh Van Nguyen; R v Nguyen; R v Tran [2004] NSWCCA 65 at [55]; Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116 at [18]; Robinson v Eureka Operations at [52].

223 In this case, I consider the totality principle does require there to be an adjustment of the combined penalties for each offence. In aggregate, I consider a fine of $270,600 and 270 hours of community service to exceed what is just and appropriate. The aggregate sentence can be adjusted to reflect the total criminality involved in Mr Rawson’s conduct by reducing the number of hours of community service to 200. This can be achieved by making the hours of community service work to be performed under the community service orders made in proceedings nos 50077/07, 50078/07, 50079/07, 50081/07 and 50083/07 run concurrently with the hours of community service work to be performed under the community service order made in proceeding no 50082/07.

224 The hours of community service work to be performed under the community service orders made in proceedings nos 50080/07 and 50082/07 should, however, run consecutively, giving a total of 200 hours of community service. The sentence for proceedings no 50080/07 should commence at the end of the sentence for proceedings no 50082/07. There is no inflexible rule that concurrent sentences should be imposed for multiple offences arising out of the one criminal course of conduct: R v Weldon at [48]; Vaovasa v R at [16]. Offences committed as part of the one criminal course of conduct may need to be met with cumulative or partially cumulative sentences in order to reflect the totality of the criminality involved in the commission of the offences, or to take account of differences in conduct or consequences such as where there is more than one victim: R v Weldon at [46]-[48]; R v Janceski [2005] NSWCCA 288 at [21]-[23].

225 The fact that the offences involve seven threatened plant species, being three endangered and four vulnerable plant species, harm to over a thousand plants and their habitat, and different environmental consequences, requires an increase in the sentences that would otherwise be appropriate if only one threatened species and a small number of plants and habitat had been harmed, involving the same environmental consequences.

226 If this adjustment is made to the community service orders, I do not consider it necessary to reduce the amounts of the fines for each offence. To do so would cause the individual sentences to become disproportionate to the objective gravity of each offence and the aggregate sentence to not reflect the total criminality involved.

227 Having assessed the appropriate amounts of the fines for the individual offences and in aggregate, it is necessary to assess whether Mr Rawson has the financial means to pay the amounts determined. Having regard to the information available concerning Mr Rawson’s assets (principally his unencumbered farm) and income as a self-employed farm maintenance worker, I consider that Mr Rawson would be unable to pay an aggregate amount of fines of $270,600 as well as an order for costs, which if no adjustment is made, might be in the order of $300,000.

228 In these circumstances, I consider that I ought reduce the aggregate amount of the fines to $135,000. This should be apportioned between the offences (with some rounding) as follows: $5,000 for 50077/07; $2,000 for 50078/07; $6,000 for 50079/07; $35,000 for 50080/07; $17,000 for 50081/07; $66,000 for 50082/07; and $4,000 for 50083/07.

229 The fines are required to be paid within 28 days of the sentences imposing the fines: s 7 of the Fines Act. However, the registrar of the court may allow time for the payment of the fines: s 10 of the Fines Act.

230 The fines paid are to be paid into the National Parks and Wildlife Fund, pursuant to s 138(1)(b)(vii) of the National Parks and Wildlife Act.

231 I also consider it appropriate for there to be an order under s 257B of the Criminal Procedure Act that Mr Rawson pay the prosecutor’s costs. The prosecutor ought to be compensated for the costs of bringing the prosecutions, which are in the public interest: see Environment Protection Authority v Taylor [No 4] [2002] NSWLEC 59; (2002) 120 LGERA 414 at [45].

232 The prosecutor states its costs exceed $300,000. However, this amount of costs would include costs and expenses relating to the prosecutor’s case that Mr Rawson knew and targeted threatened species to remove constraints on TGM’s proposed residential development of the Norvill property. I have found that the prosecutor has not established these aggravating facts beyond reasonable doubt. Mr Rawson should not pay for the costs and expenses relating to these matters on which the prosecutor was unsuccessful.

233 There is no evidence to allow the Court to calculate the amount of the costs and expenses relating to these matters, which ought to be excluded from the amount of costs ordered, but they may be significant having regard to the extent of evidence gathered on and hearing time devoted to these matters. It is therefore appropriate to order Mr Rawson to pay the prosecutor’s costs excluding costs and expenses relating to the prosecutor’s case that Mr Rawson knew and targeted threatened species to remove constraints on any proposed development of the property, such costs to be determined in accordance with s 257G of the Criminal Procedure Act.

234 The exclusion of these costs and expenses will reduce materially the amount of costs that Mr Rawson would need to pay, which is relevant having regard to Mr Rawson’s means to pay.

235 Any costs paid by Mr Rawson pursuant to the costs order should be paid into the National Parks and Wildlife Fund, in accordance with s 176(3) of the National Parks and Wildlife Act.

ORDERS

236 I make the following orders:

50077/07

1. The defendant is convicted of the offence as charged.

2. The defendant is fined $5,000.

3. The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act .

4. The defendant is sentenced to perform 10 hours of community service work, to run concurrently with the hours of community service work ordered in proceedings 50082/07.

5. The defendant is to report to the Lismore District Office of the NSW Probation and Parole Service at Suite 14B, Conway Plaza, 21 Conway St, Lismore NSW 2480, within 7 days to enable administration.

50078/07

1. The defendant is convicted of the offence as charged.

2. The defendant is fined $2,000.

3. The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act .

4. The defendant is sentenced to perform 5 hours of community service work, to run concurrently with the hours of community service work ordered in proceedings 50082/07.

5. The defendant is to report to the Lismore District Office of the NSW Probation and Parole Service at Suite 14B, Conway Plaza, 21 Conway St, Lismore NSW 2480, within 7 days to enable administration.

50079/07

1. The defendant is convicted of the offence as charged.

2. The defendant is fined $6,000.

3. The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act .

4. The defendant is sentenced to perform 12 hours of community service work, to run concurrently with the hours of community service work ordered in proceedings 50082/07.

5. The defendant is to report to the Lismore District Office of the NSW Probation and Parole Service at Suite 14B, Conway Plaza, 21 Conway St, Lismore NSW 2480, within 7 days to enable administration.

50080/07

1. The defendant is convicted of the offence as charged.

2. The defendant is fined $35,000.

3. The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act .

4. The defendant is sentenced to perform 70 hours of community service work, to run consecutively after the hours of community service work ordered in proceedings 50082/07.

5. The defendant is to report to the Lismore District Office of the NSW Probation and Parole Service at Suite 14B, Conway Plaza, 21 Conway St, Lismore NSW 2480, within 7 days to enable administration.

50081/07

1. The defendant is convicted of the offence as charged.

2. The defendant is fined $17,000.

3. The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act .

4. The defendant is sentenced to perform 35 hours of community service work, to run concurrently with the hours of community service work ordered in proceedings 50082/07.

5. The defendant is to report to the Lismore District Office of the NSW Probation and Parole Service at Suite 14B, Conway Plaza, 21 Conway St, Lismore NSW 2480, within 7 days to enable administration.

50082/07

1. The defendant is convicted of the offence as charged.

2. The defendant is fined $66,000.

3. The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act .

4. The defendant is sentenced to perform 130 hours of community service work.

5. The defendant is to report to the Lismore District Office of the NSW Probation and Parole Service at Suite 14B, Conway Plaza, 21 Conway St, Lismore NSW 2480, within 7 days to enable administration.

50083/07

1. The defendant is convicted of the offence as charged.

2. The defendant is fined $4,000.

3. The fine is to be paid to the Registrar for payment, upon recovery, into the National Parks and Wildlife Fund, in accordance with s 138(1)(b)(vii) of the National Parks and Wildlife Act .

4. The defendant is sentenced to perform 8 hours of community service work, to run concurrently with the hours of community service work ordered in proceedings 50082/07.

5. The defendant is to report to the Lismore District Office of the NSW Probation and Parole Service at Suite 14B, Conway Plaza, 21 Conway St, Lismore NSW 2480, within 7 days to enable administration.

All matters

1. The defendant is to pay the prosecutor’s costs, excluding costs and expenses relating to the prosecutor’s case that Mr Rawson knew and targeted threatened species to remove constraints on any proposed development of the property, such costs to be determined in accordance with s 257G of the Criminal Procedure Act 1986.

National Parks and Wildlife Act

Citations

Plath v Rawson [2009] NSWLEC 178

Most Recent Citation

Cases Citing This Decision

208

Woollahra Municipal Council v Neil Street Co Pty Ltd [2025] NSWLEC 117

Greer v City of Canada Bay Council [2025] NSWLEC 93

Cases Cited

59

Statutory Material Cited

7

R v Palu [2002] NSWCCA 381

GAS v The Queen [2004] HCA 22

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CITATION:	Plath v Rawson [2009] NSWLEC 178
PARTIES:	PROSECUTOR Gordon Plath DEFENDANT Lance Rawson
FILE NUMBER(S):	50077-50083 of 2007
CORAM:	Preston CJ
KEY ISSUES:	ENVIRONMENTAL OFFENCES :- picking threatened plant species - sentence - offence of medium objective gravity - conduct offended against legislative objects - substantial environmental harm - conduct deliberate and in reckless disregard for whether lawful or not, but without actual knowledge that plants were threatened species - offences committed to earn a fee - foreseeable risk of harm - practical measures to avoid harm - control over causes of harm - subjective circumstances of offender - lack of prior criminality - prior good character of less weight - plea of guilty of less utilitarian value because of delay and contested factual basis for sentencing - lack of contrition and remorse for conduct or consequences - minimal assistance to authorities - appropriateness of imprisonment, community service order and fine - combination of community service and fine - totality principle - adjustment of individual sentences - means to pay - reduction in amount of fine - prosecutor's costs
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999, ss 3, 108, 115 Crimes (Sentencing Procedure) Act 1999, ss 3A, 8, 21A(2)(g), 21A(3), 22, 23(1), 86, 87, 90 Criminal Procedure Act 1986, ss 257B, 257G Fines Act 1996, ss 3, 4(1), 6, 7, 10 National Parks and Wildlife Act 1974, ss 2A, 118A(2), 118D(1), 137, 138, 176 Protection of the Environment Administration Act 1991, s 6(2) Threatened Species Conservation Act 1995, s 3
CASES CITED:	Bentley v BGP Properties [2006] NSWLEC 34; (2006) 145 LGERA 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; 82 LGERA 21 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Coggins [2003] NSWLEC 111; (2003) 126 LGERA 219 Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Pal (No 2) [2009] NSWLEC 60 Environment Protection Authority v Taylor [No 4] [2002] NSWLEC 59; (2002) 120 LGERA 414 Environment Protection Authority v White (1996) 92 LGERA 264 Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 Garrett v Williams [2007] NSWLEC 56 Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Graham v The Queen [2009] NSWCCA 212 Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Ngo v Fairfield City Council [2009] NSWCCA 241 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v A [1999] NSWCCA 61 R v Adler [2005] NSWSC 274 R v Bata Industries Ltd (1992) 9 OR (3d) 329 R v Borrett [2004] NZRMA 248 R v Burton [1982] 1 NZLR 602 R v Conway [2005] NZRMA 274 R v Foster [2001] NSWCCA 125 R v Garrett [1997] 1 Cr App Rep (S) 109 R v Geddes (1936) 36 SR (NSW) 554 R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v I R Hall [No 2] [2005] NSWSC 890 R v Janceski [2005] NSWCCA 288 R v Jurisic [1998] 45 NSWLR 209 R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25 R v Kennedy [2000] NSWCCA 527 R v KM; R v Linh Van Nguyen; R v Nguyen; R v Tran [2004] NSWCCA 65 R v McIntyre (1988) 38 A Crim R 135 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Moore [2001] QCA 431; [2003] 1 Qd R 205 R v Newton (1983) 77 Cr App R 13 R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 R v Peel [1971] 1 NSWLR 247 R v Rahme (1989) 43 A Crim R 81 R v Rivkin [2004] NSWCCA 7 R v Said El Masri [2005] NSWCCA 167 R v Sgroi (1989) 40 A Crim R 197 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Sissen [2001] 1 WLR 902 R v Smith (1982) 7 A Crim R 437 R v T (unreported, NSWCCA, 19 June 1995) R v Tapscott [2007] EWCA Crim 1787 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Wegener [1999] NSWCCA 405 R v Weldon; R v Carberry [2002] NSWCCA 475; (2002) 136 A Crim R 55 R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548 R v Wisbey [2001] NSWCCA 434 R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13 R v Zamagias [2002] NSWCCA 17 R & F Howe and Son (Engineers) Ltd [1998] 2 All ER 249; [1999] 2 Cr App Rep (S) 37 Robinson v Eureka Operations Pty Ltd [2009] NSWSC 784 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 Vaovasa v The Queen [2007] NSWCCA 253; (2007) 174 A Crim R 116 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
DATES OF HEARING:	23, 26 February, 2-6, 9-10 March, 6 May, 4 June 2009
DATE OF JUDGMENT:	28 October 2009
LEGAL REPRESENTATIVES:	PROSECUTOR Mr D A Buchanan SC SOLICITORS Department for Environment and Climate Change DEFENDANT Mr P S Hastings QC with Ms F J Berglund SOLICITORS Russell J Baxter

Charge	Threatened species	Number of plants
50077/07	Gossia fragrantissima	22
50078/07	Hicksbeachia pinnatifolia	22
50079/07	Grevillea hilliana	17
50080/07	Macadamia tetraphylla	492
50081/07	Lepiderema pulchella	560
50082/07	Randia moorei	134
50083/07	Acacia bakeri	32

Charge	Endangered species	Number of plants	Potential max. penalty
50077/07	Gossia fragrantissima	22	$462,000 ($220,000 + $11,000 x 22)
50079/09	Grevillea hilliana	17	$407,000 ($220,000 + $11,000 x 17)
50082/07	Randia moorei	134	$1,694,000 ($220,000 + $11,000 x 134)

Charge	Vulnerable species	Number of plants	Potential max. penalty
50078/07	Hicksbeachia pinnatifolia	22	$176,000 ($55,000 + $5,500 x 22)
50080/07	Macadamia tetraphylla	492	$2,761,000 ($55,000 + $5,500 x 492)
50081/07	Lepiderema pulchella	560	$3,135,000 ($55,000 + $5,500 x 560)
50083/07	Acacia bakeri	32	$231,000 ($55,000 + $5,500 x 32)

Charge	Plant	Fine $	CSO
50077/07	Gossia fragrantissima (E)	12,000	12
50078/09	Hicksbeachia pinnatifolia (V)	6,000	6
50079/07	Grevillea hilliana (E)	15,000	15
50080/07	Macadamia tetraphylla (V)	85,000	85
50081/07	Lepiderema pulchella (V)	42,000	42
50082/07	Randia moorei (E)	160,000	160
50083/07	Acacia bakeri (V)	10,000	10
$330,000	330 hours

Charge	Plant	Disc Fine $	Disc CSO
50077/07	Gossia fragrantissima (E)	9,840	10
50078/09	Hicksbeachia pinnatifolia (V)	4,920	5
50079/07	Grevillea hilliana (E)	12,300	12
50080/07	Macadamia tetraphylla (V)	69,700	70
50081/07	Lepiderema pulchella (V)	34,440	35
50082/07	Randia moorei (E)	131,200	130
50083/07	Acacia bakeri (V)	8,200	8
$270,600	270 hours