Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd (No 2)

[2025] NSWLEC 88

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd (No 2) [2025] NSWLEC 88

Hearing dates:

30 July 2025 (further submissions 14 August 2025)

Date of orders:

22 August 2025

Decision date:

22 August 2025

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [90]

Catchwords:

SENTENCE — Offences against the National Parks and Wildlife Act 1974 (NSW) and the Biodiversity Conservation Act 2016 (NSW) — Clearing of native vegetation on land without approval — Aggravating factors — Different levels of objective seriousness — Offences caused significant environmental harm — Subjective circumstances — Where multiple offences relate to similar conduct — Totality principle applies — Fines imposed — Offender ordered to pay prosecutor’s costs under s 257B of the Criminal Procedure Act 1986 (NSW) as may be determined under s 257G

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), Ptt 2, 4, Sch 4, ss 2.2, 2.4, 13.12

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Criminal Procedure Act 1986 (NSW), ss 257B, 257G

Fines Act 1996 (NSW), s 6

National Parks and Wildlife Act 1974 (NSW), Pt 8A, ss 118A, 118D, 194

Native Vegetation Act 2003 (NSW)

Protection of the Environment Administration Act 1991 (NSW), s 6

Threatened Species Conservation Act 1995 (NSW)

Cases Cited:

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358

Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] HCASL 213

Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221

Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291

Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52

Chief Executive, Office of Environment and Heritage v KurstjensOnroerendGoed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140

Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74; (2014) 212 LGERA 1

Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121

Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t-as Jerilderie Earthmoving [2009] NSWLEC 182

Dorsett v R [2024] NSWCCA 192

Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31

Environment Protection Authority (EPA) v Barnes [2006] NSWCCA 246

Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66

Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Fahs v R [2007] NSWCCA 26

Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18

Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

Mill v R (1988) 166 CLR 59 at 62-63; [1998] HCA 70

Mouawad v The Hills Shire Council; Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28

Muldrock v R (2011) 244 CLR 120; [2011] HCA 39

Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42

Pearce v R (1998) 194 CLR 610; [1998] HCA 57

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v Bahsa [2003] NSWCCA 36; (2003) 138 A Crim R 245

R v DP [2019] NSWCCA 55

R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65

R v McGourty [2002] NSWCCA 335

R v Oliver (1980) 7 A Crim R 174

R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145

R v Visconti [1982] 2 NSWLR 104

R v Wheeler [2000] NSWCCA 34

R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

R v Wickham [2004] NSWCCA 193

Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2025] NSWLEC 48

Secretary, Department of Planning and Environment v Tony Kazmouz (Liverpool Local Court (NSW), 2023, unrep)

Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131

Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14

Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1

Williams v R [2010] NSWCCA 15

Category:

Sentence

Parties:

Secretary, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
Aerotropolis Pty Ltd (ACN 167 817 692) (Defendant)

Representation:

Counsel:
G Wright SC with T C Spohr (Prosecutor)
No appearance (Defendant)

Solicitors:
Department of Climate Change, Energy, the Environment and Water (Prosecutor)
No appearance (Defendant)

File Number(s):

2022/00173269; 2022/00173270; 2022/00173271; 2022/00173272; 2022/00173273; 2022/00173274; 2022/00173275; 2022/00173276; 2022/00173277; 2022/00173278; 2022/00173279; 2022/00173280; 2022/00173281; 2022/00173282; 2022/00173283; 2022/00173284; 2022/00173285; 2022/00173286; 2022/00173287; 2022/00173288

Publication restriction:

Nil

JUDGMENT

Nature of proceedings and outcome

1. On 19 May 2025, the Court delivered judgment finding Aerotropolis Pty Ltd (‘defendant’) guilty of 20 offences against the National Parks and Wildlife Act 1974 (NSW) (‘NPW Act’) and the Biodiversity Conservation Act 2016 (NSW) (‘BC Act’) relating to the clearing of native vegetation from a property located at 203 Greendale Road, Bringelly (‘property’) during the period from 10 April 2016 to 28 May 2020: Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2025] NSWLEC 48 (‘Aerotropolis’).

2. A sentence hearing has been held and the Court’s task is to determine and impose appropriate sentences on the defendant for each of the 20 offences committed. As was the case in Aerotropolis, the defendant did not appear at the sentence hearing.

3. For the reasons that follow, despite the defendant’s entry into voluntary liquidation, I find that it is appropriate that the defendant be convicted of the offences as charged and I have determined to impose monetary penalties on the defendant in relation to each of the 20 charges.

Structure of the judgment

4. These reasons for judgment are structured as follows. First, I will briefly note the background facts, adopting the definitions and findings in Aerotropolis. I will then note the specific offence provisions and the sentencing considerations I am to apply. I will record the further evidence marshalled in the sentence hearing in my consideration of the submissions received by the Court, remaining conscious that although there is overlap between the sentencing considerations and the facts in relation to a number of the discrete offences, particularly those within the different ‘charge groups’, the Court is imposing sentences in relation to 20 separate offences.

Evidence

5. At the sentence hearing on 30 July 2025, the Secretary, Department of Planning and Environment (‘prosecutor’) relied on the expert report of Michael Sheather-Reid dated 8 April 2024 (Ex A); two expert reports of Dr Stephanie Ann Clark dated 9 June 2022 (Ex B) and 5 April 2024 (Ex C); an email dated 11 July 2025 from the prosecutor’s solicitor to Jomon Varghese and Sheena Varghese (Ex D); and a copy of a “TRANSFER” document of the property at 203 Greendale Road, Bringelly from Gregory Alan Nightingale to Ascent Corporation Pty Limited (Ex E).

6. The prosecutor also read the affidavit of its solicitor, Nicholas Sandstrom, affirmed 11 July 2025.

Background

7. The salient factual background, the statutory framework, and a consideration of the evidence giving rise to the offences is detailed at [15]-[42], [52]-[71] of Aerotropolis and is mostly not repeated except to note that, due to a change in legislation on 25 August 2017, the defendant was charged under two different Acts, the NPW Act and the BC Act. The NPW Act offences of harming or picking plants and damaging habitat were repealed, and new equivalent offences were found in the BC Act.

8. The charged offences span four offence provisions, which are applicable in the following two periods:

Relevant to the period 10 April 2016 to 24 August 2017

1. Harming or picking a plant contrary to s 118A(2) of the NPW Act, which provided at the relevant time:

A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community.

…

2. Damaging the habitat of an endangered ecological community contrary to s 118D(1) of the NPW Act, which provided:

A person must not damage any habitat of a threatened species, an endangered population or an endangered ecological community if the person knows that the habitat concerned is habitat of that kind.

…

Relevant to the period 25 August 2017 to 28 May 2020

3. Picking a plant contrary to s 2.2(1)(b) of the BC Act, which provided:

A person who picks … (b) a plant that is part of a threatened ecological community … is guilty of an offence.

…

4. Damaging the habitat of a threatened ecological community contrary to s 2.4(1) of the BC Act, which provided:

A person … (a) who damages any habitat of a threatened species or threatened ecological community, and (b) who knows that it is the habitat of any such species or community, is guilty of an offence.

…

9. As recorded in Aerotropolis, the offending was identified in charge groups, where each group of charges related to the same episode of clearing and the offences within those groups dealt with different types of offence. The total land cleared was 36.8ha over approximately four years and one month at the property, which was approximately 121.12ha.

10. All of the offending related to the clearing of an endangered ecological community (‘EEC’), being Cumberland Plain Woodland (‘CPW’), and the effect thereof on the habitat of CPW and the Meridolum corneovirens (‘land snail’). In respect of CPW, the offences reflect damage to its habitat by the picking of plants forming part of the CPW.

11. As provided in Aerotropolis at [23], the following table details the 20 charges by reference to the relevant offence provision, the seven separate charge periods, and the gravamen of the offending in each offence.

Proceedings	Provision	Periods	Subject
CHARGE GROUP 1
1	2022/00173269	118A(2) NPW Act	10/04/16 27/08/16	Picked 3.46ha of CPW plants
2	2022/00173270	118D(1) NPW Act	10/04/16 27/08/16	Damaged 3.46ha of land snail habitat
3	2022/00173271	118D(1) NPW Act	10/04/16 27/08/16	Damaged 3.46ha of CPW habitat
CHARGE GROUP 2
4	2022/00173272	118A(2) NPW Act	27/08/16 09/04/17	Picked 5.26ha of CPW plants
5	2022/00173273	118D(1) NPW Act	27/08/16 09/04/17	Damaged 5.26ha of land snail habitat
CHARGE GROUP 3
6	2022/00173274	118A(2) NPW Act	08/07/17 24/08/17	Picked 0.78ha of CPW plants
7	2022/00173275	118D(1) NPW Act	08/07/17 24/08/17	Damaged 0.78ha of CPW habitat
8	2022/00173276	118D(1) NPW Act	08/07/17 24/08/17	Damaged 0.78ha of land snail habitat
CHARGE GROUP 4
9	2022/00173277	2.2(1)(b) BC Act	12/09/17 04/08/18	Picked 4.76ha of CPW plants
10	2022/00173278	2.4(1) BC Act	12/09/17 04/08/18	Damaged 4.76ha of CPW habitat
11	2022/00173279	2.4(1) BC Act	12/09/17 04/08/18	Damaged 4.76ha of land snail habitat
CHARGE GROUP 5
12	2022/00173280	2.2(1)(b) BC Act	04/08/18 05/11/18	Picked 1.15ha of CPW plants
13	2022/00173281	2.4(1) BC Act	04/08/18 05/11/18	Damaged 1.15ha of CPW habitat
14	2022/00173282	2.4(1) BC Act	04/08/18 05/11/18	Damaged 1.15ha of land snail habitat
CHARGE GROUP 6
15	2022/00173283	2.2(1)(b) BC Act	12/03/19 01/07/19	Picked 20.19ha of CPW plants
16	2022/00173284	2.4(1) BC Act	12/03/19 01/07/19	Damaged 20.19ha of land snail habitat
17	2022/00173285	2.4(1) BC Act	12/03/19 01/07/19	Damaged 20.19ha of CPW habitat
CHARGE GROUP 7
18	2022/00173286	2.2(1)(b) BC Act	01/07/19 28/05/20	Picked 1.2ha of CPW plants
19	2022/00173287	2.4(1) BC Act	01/07/19 28/05/20	Damaged 1.2ha of CPW habitat
20	2022/00173288	2.4(1) BC Act	01/07/19 28/05/20	Damaged 1.2ha of land snail habitat

Sentencing considerations

Purposes of sentencing

12. In fixing the appropriate penalty for the offences, s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) sets out the purposes of sentencing relevant to the offence and the offender.

13. The purposes of punishment, denunciation, deterrence and retribution are important in sentencing for environmental offences because there is a need for the Court, through the sentence it imposes, to denounce the unlawful conduct, to hold the offender accountable for their actions, and to ensure the offender is adequately punished. The sentences I impose should accord with the general moral sense of the community in relation to the offences in the circumstances of this case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291 (‘Clarence Valley’) at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 (‘Plath v Rawson’) at [168].

14. Section 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offence, including factors in aggravation under s 21(A)(2) and factors in mitigation under s 21A(3). Where it is contended that a particular sentencing consideration should be treated as an aggravating factor, it must be established beyond reasonable doubt: Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [105]; R v Wickham [2004] NSWCCA 193 at [27]. Pertinent to the submissions made in this case, ss 21A(2) and (3) relevantly provide:

…

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

…

(m)   the offence involved multiple victims or a series of criminal acts,

(n)   the offence was part of a planned or organised criminal activity,

(o)   the offence was committed for financial gain,

…

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a)   the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b)   the offence was not part of a planned or organised criminal activity,

…

(e)   the offender does not have any record (or any significant record) of previous convictions,

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

…

Specific sentencing considerations under the NPW Act and the BC Act

15. Section 194 of the NPW Act relevantly provided at the time of the NPW Act offences:

(1)   In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a)   the extent of the harm caused or likely to be caused by the commission of the offence,

(b)   the significance of the ... threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence,

(c)   the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(d)   the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,

(e)   the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

…

(g)   whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee,

(h)   whether the offence was committed for commercial gain.

(2)   The court may take into consideration other matters that it considers relevant.

16. Factors (a), (c), (d), (e), (g) and (h) noted above (at [15]) are also found in the BC Act, which provides in s 13.12:

(1)   In imposing a penalty for an offence against this Act or the regulations (or a native vegetation offence), the court is to take into consideration the following (so far as they are relevant):

(a)   the extent of the harm caused or likely to be caused by the commission of the offence,

(b)   the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c)   the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,

(d)   the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

(e)   whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(f)    whether the offence was committed for commercial gain.

(2)   The court may take into consideration other matters that it considers relevant.

17. The sentencing exercise requires the Court to take into account all factors relevant to sentence (including the above), and to arrive at a single result which takes due account of them all, by a process of “instinctive synthesis”: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 (‘Markarian’) at [37], [50]-[51].

Objective seriousness of the offences

18. The objective seriousness of an offence 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 proportionate to the gravity of the offence considered in light of its objective circumstances and the objectives of punishment: Veen v R (No 2) (1988) 164 CLR 465 at 485-486; [1988] HCA 14 (‘Veen (No 2)’). It fixes the lower limit because the allowance for matters that are personal to a particular offender cannot produce a sentence which fails to reflect the objective gravity of the offence and the objectives of punishment: R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [152], [156]; R v McGourty [2002] NSWCCA 335 at [34].

19. The Court must determine the objective seriousness by reference to the nature of the offending, including the offence provisions and their place in the statutory scheme and not by reference to matters personal to the offender: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18 at [11].

20. In assessing the objective seriousness of the offending, each offence must be discretely considered and, as recorded earlier in this judgment, since there is a degree of overlap between the offences, it follows that there is a range of factors common to each offence which are required to be taken into account pursuant to s 21A of the Sentencing Act, s 194 of the NPW Act, and s 13.12 of the BC Act.

21. The objective circumstances of relevance to the present offences which I take into account include the nature of the offences; the maximum penalty; the harm likely to be caused; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and the reasons for committing the offences.

The nature of the offences

22. A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalty prescribed by the statute for the offence, the offender’s conduct would offend against the legislative objectives expressed in the offence: Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15].

23. The statutory schemes should be considered in light of the objects of the respective legislation. In the case of the NPW Act, the statutory scheme should also be considered in light of the objects of the former Threatened Species Conservation Act 1995 (NSW) (‘TSC Act’) given the link between the two schemes in respect of the listing process for EECs (including CPW) in the TSC Act and the offences for harming EECs (including CPW) as specified in the NPW Act.

24. The objectives of the NPW Act and TSC Act were given effect by Pt 8A of the NPW Act which created a range of offences (including those relevant here) relating to threatened species, populations and EECs, and their habitats. As stated in Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74; (2014) 212 LGERA 1 (‘Kyluk (No 4)’) at [42], Pt 8A of the NPW Act played an important role in the statutory scheme created under the NPW Act and the TSC Act, which aimed to conserve threatened species, populations and EECs, and their habitats by:

“(a) identifying and listing species, populations and ecological communities that are threatened (Pt 2 of TSC Act and Sch 1 of the TSC Act);

(b) identifying and listing threatening processes that have the capability to threaten the survival or evolutionary development of species, population or ecological communities (Pt 2 of TSC Act and Sch 3 of the TSC Act);

(c) identifying habitat that is critical to the survival of endangered species, populations and ecological communities and declaring the habitat as critical habitat (Pt 3 of TSC Act);

(d) preparing recovery plans for threatened species, populations and ecological communities (Pt 4 of TSC Act);

(e) preparing threat abatement plans to manage key threatening processes to abate, ameliorate or eliminate the adverse effects of key threatening processes on threatened species, populations or ecological communities (Pt 5 of TSC Act)

(f) prohibiting damage to threatened species, populations or ecological communities except in certain limited circumstances (Pt 8A of NPW Act);

(g) relaxing the prohibition where a person has, following the carrying out of an environmental impact assessment, applied for and obtained approval from a competent regulatory authority authorising the damaging of the threatened species, population or ecological community (Pt 8A of NPW Act).”

25. In the case of the BC Act, its purpose, as stated in s 1.3, “is to maintain a healthy, productive and resilient environment for the greatest wellbeing of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW))”, and in particular:

(a)   to conserve biodiversity at bioregional and State scales, and

(b)   to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and

(c)   to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and

(d)   to support biodiversity conservation in the context of a changing climate, and

(e)   to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and

(f)    to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and

(g)   to regulate human interactions with wildlife by applying a risk-based approach, and

(h)   to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and

(i)    to support and guide prioritised and strategic investment in biodiversity conservation, and

(j)    to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and

(k)   to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and

(l)    to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and

(m)   to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and

(n)   to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and

(o)   to make expert advice and knowledge available to assist the Minister in the administration of this Act.”

26. The offences created by Pt 2 of the BC Act play an essential role in the statutory scheme aimed at conserving biodiversity at bioregional and State scales, and protecting and preventing harm to threatened species and threatened ecological communities. Part 4 of the BC Act sets out the processes for assessing and listing threatened species and EECs.

27. Relevantly, “[c]learing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process)” is listed as a “[k]ey threatening process” in Sch 4 of the BC Act.

28. In determining the objective seriousness of the offences, I find that the offender’s actions in picking plants and damaging habitat that formed part of the CPW in the Sydney Basin Bioregion (which is listed as an EEC) and thereby damaging the habitat of the land snail, first, undermined the objects of the NPW Act and the TSC Act from 10 April 2016 to 24 August 2017, and from 25 August 2017, the BC Act, which seeks to conserve nature (which includes habitat, ecosystems, ecosystem processes, biological diversity at the community, species and genetic levels); and second, undermined the statutory scheme that provides for the conservation of threatened species and threatened EECs. Offences of this type, which by their nature undermine the integrity of the regulatory system, are objectively serious: Plath v Rawson at [55].

29. I accept the prosecutor’s submission and find that each of the offences is objectively more serious by reason of the fact that the native vegetation harmed was an EEC in circumstances where s 118A(2) of the NPW Act sets out a hierarchy of threatened species, with “species presumed extinct” being the most serious, and where the CPW is at the upper end, being “critically endangered”.

30. The categorisation of threatened species in terms of the risk of extinction is reflected in the different maximum penalties provided for with respect to offences against s 2.2(1)(b) of the BC Act. However, within the Tier 1 category of offences, I find that an offence involving an EEC is more objectively serious than an offence at a lower categorisation. I also find that the same consideration applies to the offences against s 2.4(1) of the BC Act.

Maximum penalty

31. The maximum penalty for a statutory offence reflects the public expression by Parliament of the seriousness of an offence (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698) and provides a “sentencing yardstick” for the case before the Court: Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31 at [27]; Markarian at [30]. The maximum penalty for each offence is as follows:

Proceedings	Provision	Maximum Penalty
CHARGE GROUP 1
1	2022/00173269	118A(2) NPW Act	2,000 penalty units ($220,000) and/or imprisonment for 2 years
2	2022/00173270	118D(1) NPW Act	1,000 penalty units ($110,000) and/or imprisonment for 1 year
3	2022/00173271	118D(1) NPW Act	1,000 penalty units ($110,000) and/or imprisonment for 1 year
CHARGE GROUP 2
4	2022/00173272	118A(2) NPW Act	2,000 penalty units ($220,000) and/or imprisonment for 2 years
5	2022/00173273	118D(1) NPW Act	1,000 penalty units ($110,000) and/or imprisonment for 1 year
CHARGE GROUP 3
6	2022/00173274	118A(2) NPW Act	2,000 penalty units ($220,000) and/or imprisonment for 2 years
7	2022/00173275	118D(1) NPW Act	1,000 penalty units ($110,000) or imprisonment for 1 year
8	2022/00173276	118D(1) NPW Act	1,000 penalty units ($110,000) and/or imprisonment for 1 year
CHARGE GROUP 4
9	2022/00173277	2.2(1)(b) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
10	2022/00173278	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
11	2022/00173279	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
CHARGE GROUP 5
12	2022/00173280	2.2(1)(b) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
13	2022/00173281	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
14	2022/00173282	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
CHARGE GROUP 6
15	2022/00173283	2.2(1)(b) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
16	2022/00173284	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
17	2022/00173285	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
CHARGE GROUP 7
18	2022/00173286	2.2(1)(b) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
19	2022/00173287	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years
20	2022/00173288	2.4(1) BC Act	Tier 1 monetary penalty ($1,650,000) and/or imprisonment for 2 years

Extent of harm

32. In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [175], Preston CJ of LEC considered the meaning of “harm” in the NPW Act and held that:

“Harmfulness needs to be considered not only in terms of actual harm but also harm that is likely to occur in the future as a result of the commission of the offence. The seriousness lies not only in the actual death or damage to the plants of the threatened species and their habitats at the time of commission of the offence but also in the potential for harm which the acts constituting the picking of the plants might entail.” (Citation omitted.)

33. Mr Sheather-Reid, an ecologist, in his expert report dated 8 April 2024 includes the following on the question of environmental harm caused by the offending at (88)-(89):

“88. …environmental harm was caused to an endangered ecological community as listed under the BC Act. I am not able to breakdown the level or significance of the harm in each time period as set out by Ms James however the total harm caused over the full period of clearing of 44.06ha is highly significant, causing significant harm to the incumbent Cumberland Plain Woodland and associated habitat. I consider that the clearing of 10.85 ha of lower condition vegetation and diversity is less significant given that they were likely affected by past disturbance and land management. The loss of low condition vegetation represents a potential loss of the habitat associated with Cumberland Plain Woodland but given its current condition has less importance.

89. The harm caused over the impacted area of native vegetation clearance includes:

•   removal of mature canopy and sub canopy trees,

•   removal of mid-storey shrub species,

•   disturbance to ground layer vegetation due to heavy tracking and pushing of logs to create stockpiles,

•   moderate level of habitat fragmentation and potential loss of connectivity for wildlife,

•   mechanical damage to retained trees including damage to the outer bark layers,

•   Impact of Koala habitat as evidenced by the observation (observed as calls from a Koalas [sic] as it moved through the site, and

•   Impact on Cumberland Plain Land Snail habitat as evidenced by the identification of Cumberland Plain land snails during [site] survey.”

34. In relation to his reference to 44.06ha of CPW, Mr Sheather-Reid used dates which went slightly beyond the charge periods, while the Court found in Aerotropolis that the extent of the unlawful clearing was 36.8ha. Although his evidence did not divide the harm into discrete charge periods, I find that Mr Sheather-Reid’s opinion as to harm remains valid for the purpose of assessing the damage caused, and I note that his estimate of the total area cleared is not significantly different from the total area of 36.8ha proven to have been cleared.

35. I find that in relation to each of the offences, actual harm was caused to the CPW by the removal of the CPW from the property and that this harm was significant.

36. Mr Sheather-Reid referred to the nature of the damage to the CPW habitat as follows:

“87. The clearance of vegetation did result in the damage to habitat of an endangered ecological community. The nature of the change included the removal of native vegetation which are a biotic component of the Cumberland Plain Woodland, the removal of on ground logs, dead standing trees, destruction of foraging resources and likely disturbance to surface soils and affectation of microclimate. The clearing predominantly impacted native vegetation commensurate with Cumberland Plain Woodland. I have estimated 44.06 ha of PCT 850 (New PCT 3319) including its habitat has been disturbed and damaged. Whilst the broader climate, altitude and geology have not been damaged, the microclimate has been damaged in areas subject to clearing resulting in an increase of light and in the on ground temperatures, an increase in surface moisture and a potential increase or decrease in soil moisture at depth and evapotranspiration (water evaporation into the atmosphere from the soil surface, evaporation from the capillary fringe of the groundwater table, and evaporation from water bodies on land). These changes affect the habitat for the Cumberland Plain Woodland and its ability to recover and recolonise by affecting the germination of native seeds, the pollination of plants, and the removal of protective shelter to allow native plants to grow to maturity.”

37. In relation to Charges 3, 7, 10, 13, 17 and 19, I find beyond reasonable doubt that there was actual harm to the habitat of the CPW (being an EEC).

38. With respect to the land snail, Dr Clark, a malacologist (mollusc expert), observed in her expert report dated 5 April 2023 at (9), that CPW is the preferred habitat of the land snail such that:

“…it is reasonable to assume that any action that causes damage such as removal, relocation (e.g. the pushing of the felled vegetation into piles) or crushing by the heavy machinery used to form the piles of cleared vegetation will affect the population of M. corneovirens that would have been living within the area that has been cleared.”

39. Despite this, Dr Clark acknowledged in her expert report dated 9 June 2022 at (16), that:

“…it is difficult to accurately quantify the extent of the damage that was caused to any suitable habitat as to the best of [her] knowledge no surveys for M. corneovirens had been conducted prior to clearing. Given that both M. corneovirens and the Cumberland Plain Woodland are still present at the site it is clear that what clearing did occur did not lead to the complete removal of all the suitable habitat present or the local [extinction] of the population of snails present.”

40. When the Department’s investigators, Mr Sheather-Reid and Dr Clark, inspected the property on 12 April 2022, they found that the land snail was present on either side of where clearing occurred, and I accept Dr Clark’s opinions including that the land snail would have been distributed across the property including the portion of the land that was cleared.

41. In relation to Charges 2, 5, 8, 11, 14, 16 and 20, I find beyond reasonable doubt that harm was caused to the habitat of the land snail.

Practical measures to prevent harm

42. The existence of practical measures to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment, and the defendant’s failure to take such measures, increases the objective seriousness of the offence: Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 at [86]. In relation to each offence, I find that practical measures could and should have been taken to prevent and mitigate the actual or potential harm to the environment, and these would have involved obtaining appropriate advice or assessments on the need for environmental protection and attending to the need for any permits required. In other words, the practical measures include making appropriate inquiries before carrying out clearing and checking for the presence or absence of protected flora or fauna.

Foreseeability of harm

43. The test for foreseeability of harm in this context was stated by the Court of Criminal Appeal in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 at [130]-[131] as follows:

“[130] …The question that must be asked is to what extent (if any) a reasonable person in the position of the offender could have foreseen the harm caused or likely to be caused by the commission of the offence?

[131] The position of the offender involves a consideration of all the available evidence including what the offender actually knew or ought reasonably to have known…”

I find that, in relation to each offence, the harm was entirely foreseeable in the circumstances. As found in Aerotropolis, there was contemporaneous correspondence discussing “gum trees” and “eucalypts” and, as such, I find that it must have been self-evident to the defendant that the removal of trees, shrubs and groundcover would harm native vegetation being cleared and any species that relied on it for habitat.

Control over the causes giving rise to the offences

44. The offending conduct in each offence was carried out by an employee, Dean Amjah, on the explicit instruction of the defendant’s director, Jomon Varghese. The defendant had complete control over the causes that gave rise to the offending behaviour. Further, it is clear, and I find, that the defendant through Mr Varghese and Mr Amjah, took steps to increase the efficiency with which the offending (in the form of the clearing) could be carried out by obtaining heavy machinery for that purpose.

Aggravating factors pursuant to s 21A of the Sentencing Act

Financial gain – s 21A(2)(o)

45. As found in Aerotropolis (at [169]), the commission of each of the offences had a significant financial motivation. The defendant undertook the clearing in order to prepare the property for a very large commercial development, being a “World Trade Centre” in proximity to the future Western Sydney Airport. The defendant’s director, Mr Varghese, undertook extensive planning with a view to developing the property and its neighbouring land to include an international convention and exhibition centre and television station, residential and retail spaces, a hospital, a university and other facilities. Further, during the same period in which the defendant was causing the clearing of the property with disregard for laws governing the protection of the environment, Mr Varghese made representations to a range of government agencies that he had sophisticated knowledge of planning and related matters. The evidence of Mr Varghese’s motivation (and therefore that of the defendant) includes the facts summarised in Aerotropolis at [168]. The irresistible inference is that the defendant was developing the property for profit and sale.

Planning – s 21A(2)(n)

46. The prosecutor submits that the Court should find that the offences were committed with planning, and, as such, each of them fits within s 21A(2)(n) as a “planned … criminal activity” that persisted over a significant period of time, increasing the objective seriousness of the offending overall. The “planning” involved:

•   Mr Varghese giving instructions to his employee, Mr Amjah, to carry out clearing of vegetation on the property throughout each charge period;

•   Mr Amjah reporting back to Mr Varghese and discussing in detail the clearing to be undertaken, including how and where it should be carried out, and the type of vegetation to be removed;

•   Mr Amjah sending Mr Varghese photographs showing the clearing after he had carried it out;

•   Mr Varghese purchasing equipment and giving approval to Mr Amjah to purchase equipment to be used to clear the property (which involved slashing of groundcover), and the defendant reimbursing Mr Amjah for such costs; and

•   Mr Varghese visiting the property to inspect Mr Amjah’s work.

47. Although there was a degree of “planning” involved in the offending conduct over a period of time and accepting that Mr Varghese and Mr Amjah organised and discussed in detail how the clearing was to be done, when it was to be done, what would be cleared, and by what means, I am not satisfied beyond reasonable doubt that this conduct went beyond the giving of instructions to clear the property without approval or consent as the wording of s 21A(2)(n) conveys “more than simply that the offence was planned” and it is only when the offence is part of a “more extensive criminal undertaking” that the provision is engaged: Fahs v R [2007] NSWCCA 26 at [21]; Williams v R [2010] NSWCCA 15 at [19]-[20]. As such, the aggravating factor in s 21A(2)(n) is not made out.

Injury, loss or damage caused by the offence was substantial – s 21A(2)(g)

48. As this factor overlaps with the sentencing considerations required to be taken into account under s 194(1)(a) of the NPW Act and s 13.12(1)(a) of the BC Act, respectively, I repeat my findings at [32]-[41] above, and although I find that the harm caused cumulatively was significant, I do not find beyond reasonable doubt that the harm caused by each offence was substantial.

Series of criminal acts – s 21A(2)(m)

49. A course of criminal conduct may increase the seriousness of the offence by demonstrating that the offender is a repeat offender and/or that the criminality was not isolated or opportunistic. As Howie J observed in R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 (‘Tadrosse’) at [29]:

“Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s 25 of the Drug Misuse and Trafficking Act…”

50. The prosecutor submits that this consideration applies here where, as shown by the email correspondence outlined in Aerotropolis at [66]-[71], instructions to clear the property were given repeatedly over time and the acts of clearing were carried out on an ongoing basis within each charge period. While I find that the offending in each Charge Group could be seen as one “episode” of clearing carried out over a period of time, I do not consider that s 21A(2)(m) is an aggravating factor relevant to each offence in circumstances where the defendant is charged with multiple offences and is to be sentenced for each. Section 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct such as frequently found in cases of fraud or dishonesty: Tadrosse at [28]-[29].

51. As such, I do not find that s 21A(2)(m) has application in the present case.

Conclusion on objective seriousness

52. Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it “…is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender” (R v DP [2019] NSWCCA 55 at [42]), I consider that it is still a useful descriptor in the instinctive synthesis exercise: Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [204]; Dorsett v R [2024] NSWCCA 192 at [155].

53. Remaining conscious of the overlap between the discrete offences within each Charge Group, adopting my findings and reasons above, I find that the offending considered both as a whole and in relation to each offence is objectively serious because, first, the offending was motivated by financial gain; second, the destructive clearing was persistent and carried out over a lengthy period of time; third, the defendant’s director was closely involved in directing and monitoring the clearing and purchasing equipment to enable it to take place; fourth, the offending was committed intentionally and was planned (although not in the sense of s 21A(2)(n) of the Sentencing Act); fifth, an EEC was harmed; and sixth, significant harm was caused to the environment including an endangered species and the habitat of both the endangered species and an EEC as a result of the offending, where the risk of such harm was entirely foreseeable. For clarity, with each of these findings in mind, I record the following in relation to each Charge Group comparatively.

54. In relation to Charge Group 1, where the clearing of 3.46ha of land was undertaken in the period from 10 April 2016 to 27 August 2016 – a period of 4 months and 18 days (or 140 days), I find that the amount of clearing falls towards the lower end of the range of offending and the harm caused. However, given the above reasons, the conduct retains a level of seriousness.

55. In relation to Charge Group 2, where the clearing of 5.26ha of land was undertaken in the period from 27 August 2016 and 9 April 2017 – a period of 7 months and 14 days (or 226 days), I find that these offences fall towards the lower end of the amount of clearing, but for the reasons above, retain a level of seriousness.

56. In relation to Charge Group 3, where the offending occurred in the period from 8 July 2017 to 24 August 2017 (or 48 days), where a smaller amount of clearing of 0.78ha of land took place, I find that these charges are the least objectively serious of the charges before the Court and accordingly attract a proportionately lower sentence.

57. In relation to Charge Group 4, where the clearing of 4.76ha of land was undertaken in the period from 12 September 2017 to 4 August 2018 – a period of 10 months and 24 days (or 327 days), where the clearing continued unabated, albeit at a slower rate than in previous charge periods, I find that these offences under the BC Act are objectively more serious than Charge Group 3.

58. In relation to Charge Group 5, where the clearing spanned a shorter period, between 4 August 2018 and 5 November 2018 – a period of 3 months and 2 days (or 94 days), where a total of 1.15ha of land was cleared, although I find that this is the second lowest amount cleared in the seven charge periods, for the reasons set out above, this does not lead to a conclusion that the offences in this Charge Group are at the lowest end of seriousness for this kind of offending.

59. In relation to Charge Group 6, these offences encapsulate the most significant amount of clearing overall, where a total of 20.19ha of land was cleared (being 73% of all the clearing the subject of these offences as well as the greatest rate of clearing) – a period of 3 months and 20 days (or 112 days) in the period from 12 March 2019 to 1 July 2019. This is consistent with the fact that, during this period, a bulldozer was leased in order to carry out the clearing and arrived on the property on or about 17 May 2019 and was immediately put to work because it was “highly efficient” at clearing. As such, I find that the mechanised clearing of vegetation over a short period of time increased the rate at which the threatened species and the EEC could be harmed. I also accept the prosecutor’s submission and find that “efficient” large-scale clearing of this kind means that it would be more difficult for authorities to identify any misconduct and intervene before serious harm was done, and that the defendant was well aware that during this period the property was classified as endangered CPW, as by email dated 25 May 2019, Mr Amjah expressly raised with Mr Varghese the “farm’s” status as “endangered Cumberland Plains Woodland” and possible “legal repercussions” for clearing “without approval”. In addition, during this period, there were further emails between Mr Varghese and Mr Amjah in which Mr Amjah reported in an email dated 31 May 2019, that “[t]his week has been extremely productive with the bulldozer, with multiple areas cleared”, and by email dated 10 June 2019, Mr Varghese directed Mr Amjah to “clear as much as possible” while they had the bulldozer. I find that the offences in this charge group are at a higher level of objective seriousness than the offences in the other charge periods.

60. In relation to Charge Group 7, although these offences involved a smaller amount of clearing, where a total of 1.2ha of land was cleared in the period from 1 July 2019 to 28 May 2020 – a period of 10 months and 28 days (or 333 days), they demonstrated Mr Varghese’s (and thus the defendant’s) attitude of disregard for the applicable environmental laws which makes the offending more serious. Despite this, given the fact that these offences were the last of the clearing and given my findings above, they remain at the lower level of objective seriousness.

Subjective circumstances

Previous convictions – s 21A(3)(e) of the Sentencing Act

61. The defendant was incorporated on 31 January 2014 and is now in the process of being voluntarily liquidated. There is no evidence that the defendant has any previous convictions.

Re-offending and prospects of rehabilitation – ss 21A(3)(g) and 21A(3)(h) of the Sentencing Act

62. Although I find that the defendant cannot re-offend as it is likely that it will no longer exist at some point in the near future, no finding can be made in relation to these factors due to the defendant’s decision to enter voluntary liquidation and the directors’ decision not to participate in the hearings on liability and sentencing.

Remorse – s 21A(3)(i)

63. There is no evidence that the defendant has accepted responsibility for its actions the subject of these proceedings or that it has shown any signs of remorse. Moreover, there is no evidence in relation to the four “forms” of action noted by Preston CJ of LEC as actions which may demonstrate genuine contrition and remorse in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [204], [210], [212], [214].

64. Further, I consider that there is nothing which could have prevented those who stand behind the defendant from participating in the proceedings and expressing remorse, particularly where the defendant has been provided with the Court’s judgment and a direction was made providing an opportunity for it to participate in this sentence hearing.

65. In forming my view, I take into account that the evidence was that the defendant had been represented by the law firm Clayton Utz from the commencement of the proceedings on 14 June 2022 until shortly before the defendant’s shareholder, Sheena Varghese, passed a resolution for the voluntary winding up of the company on 19 August 2024 and the appointment of a liquidator. Prior to that time, the defendant had taken steps to defend the proceedings including appealing a decision of this Court on an interlocutory issue to the Court of Criminal Appeal and thereafter seeking special leave to appeal to the High Court of Australia (per Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] HCASL 213). Whether the decision to voluntarily liquidate the defendant (once the matter was ready to take a hearing date) was undertaken to avoid the defendant’s potential exposure to criminal liability and/or monetary penalty or because the company coincidentally found itself without further funds, is not known.

Pre-trial disclosure and assistance to authorities – s 21A(3)(l) and (m) of the Sentencing Act

66. Although the defendant’s director participated in a compulsory interview on 3 June 2021 and responded to a statutory notice to provide information issued under s 12.8 of the BC Act, there is no evidence to suggest that the defendant has provided any voluntary assistance to the prosecutor.

Deterrence

67. Despite the defendant’s entry into voluntary liquidation, I accept the prosecutor’s submission that the Court would proceed to impose sentences commensurate with the objective seriousness of the offences, taking into account such mitigating considerations as are relevant and known to the Court.

68. That approach is reflected in Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221, where the accused corporation was in voluntary liquidation and was unlikely to trade again and the Court of Criminal Appeal stated:

“[103] There is no need for specific deterrence having regard to the fact that the respondent is in voluntary liquidation and appears likely never to trade again.

[104] The issue of general deterrence is quite different. At the time of the events in question, the respondent was an apparently active and viable industrial enterprise with a large workforce. It appears to have occupied a prominent commercial position within its industrial setting. The notoriety of the injury to Mr Thomas and its potential educative value make this offence a particularly appropriate vehicle for general deterrence. The demise of the respondent does not mean that the risks associated with welding are any the less likely if similar breaches of safety precautions are permitted to occur. The prospect of stern criminal sanctions for similar conduct should be appropriately reinforced.”

69. I consider that the penalties imposed by the Court must serve as a general deterrent: Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]. General deterrence is essential “to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences”: Mouawad v The Hills Shire Council; Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188].

70. I accept the prosecutor's submission and find that despite the fact that the defendant is in voluntary liquidation, specific deterrence still has some relevance because, first, it remains at least hypothetically possible that the defendant company could be resurrected from its current status; second, the defendant’s director carried out the clearing by giving directions and a significant penalty against the company may deter the involved individuals from repeating that conduct with another corporate vehicle; and third, the defendant’s directors have not proffered any evidence as to any steps they have taken to mitigate the potential for future offending despite being provided with the Court’s primary judgment and with the directions made in relation to the sentencing proceedings.

Capacity to pay a fine

71. Section 6 of the Fines Act 1996 (NSW) requires the Court to consider the means of the offender to pay a fine from such information as is reasonably and practically available to the Court.

72. While I accept that the means of an offender to pay is a mandatory consideration when fixing sentence, it is not a decisive factor in the sense that an inability to pay does not require the Court to reduce the fine by a commensurate amount. I consider that the seriousness of the offences remains relevant to the assessment of appropriate fines, and that is particularly so here, where the defendant’s inability to pay relates to its entry into voluntary liquidation (otherwise no sentence would be imposed at all).

Appropriate sentence for each offence

Consistency in sentencing

73. While the task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107C), care must be taken in achieving consistency as there is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case. The sentence imposed in a single case does not demonstrate the limits of a sentencing court’s discretion: Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35]; Environment Protection Authority (EPA) v Barnes [2006] NSWCCA 246 (‘Barnes’) at [79].

74. The prosecutor submitted a schedule of cases in relation to similar offences to assist the Court in determining the appropriate sentences to be imposed on the defendant which included: Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52; Kyluk (No 4); Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131; Chief Executive, Office of Environment and Heritage v Kurstjens Onroerend Goed AU B.V.; Kurstjens; Beefwood 1 Pty Ltd; Beefwood 2 Pty Ltd [2024] NSWLEC 140; Secretary, Department of Planning and Environment v Tony Kazmouz (Liverpool Local Court (NSW), 2023, unrep) (‘Secretary v Kazmouz’); Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t-as Jerilderie Earthmoving [2009] NSWLEC 182.

75. I have considered the sentences imposed and the objective and subjective circumstances of the offences and the offenders that led the sentencing court to impose the various sentences in each of these decisions. However, while consideration of comparable cases may provide guidance as to the identification and application of relevant sentencing principles and, upon analysis, may yield a range of sentences against which to examine a proposed sentence, the offences in the above cases (except for Secretary v Kazmouz) were under different statutes and carried different maximum penalties from the present offences. While analogous offences exist in the Native Vegetation Act 2003 (NSW), that legislation carries different maximum penalties and is directed to different objects from the BC Act. A further difficulty is that the Court cannot determine the appropriateness of the sentences to be imposed by way of superficial comparison of the sentences imposed on offenders who cleared or damaged similarly sized areas of land. This approach obviously risks attributing undue weight to the quantum of cleared vegetation which, although an important consideration in the sentencing process, is not the only one.

76. While the sentences that I consider to be appropriate to impose for each offence are not inconsistent with the sentences imposed in the above cases, a more appropriate yardstick against which the appropriate sentences should be compared is the maximum penalties set by Parliament for the offences noted at [31] above (which vary from $110,000 to $1,650,000) rather than the amounts of fines imposed in past cases: Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72].

77. Moreover, the fact that each charge group concerned a specific episode of unlawful clearing which, except for Charge Group 2, resulted in three separate offences, presents a further complication, as I am required to fix an appropriate sentence for each offence before considering questions of accumulation (which does not apply in cases of fines) and totality such that, generally, “the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced”, except in cases where multiple offences are committed as part of a single, discrete episode of criminality: R v Bahsa [2003] NSWCCA 36; (2003) 138 A Crim R 245 (‘Bahsa’) at [64].

73. In the present case, as all the offences were committed during the period from 10 April 2016 to 28 May 2020 (covering the seven discrete charge periods), and the offending in each of the charge groups comprised similar criminal conduct causing overlapping harm, I consider that the offences within each charge group were committed as part of a single, discrete episode of criminality (albeit the conduct not necessarily constituting a single episode of criminality over the combined seven charge periods as a whole), which amounts to an exception to the sentencing principle in Bahsa.

74. As there is no doubt that all the offences contained common elements, in determining the appropriate penalties, I remain conscious of the following remarks in the joint judgment in Pearce v R (1998) 194 CLR 610; [1998] HCA 57 (‘Pearce’) at [40]:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

80. I have taken care not to double count the significant environmental harm flowing from the picking offences when assessing the objective seriousness of the habitat offences (being Charges 2, 3, 5, 7, 8, 10, 11, 13, 14, 16, 17, 19 and 20). Nevertheless, the criminality involved in each offence is distinct: Mill v R (1988) 166 CLR 59 at 62-63; [1998] HCA 70 (‘Mill’); Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]. While the damage caused to a threatened species within the same habitat as the CPW is an offence of a different kind, warranting additional punishment, I remain conscious that the ultimate sentence must reflect, and be proportionate to, the gravity of each of the offences considered in light of their objective circumstances and the personal or subjective circumstances of the defendant (insofar as these are known to the Court): Veen (No 2) at 472.

81. Taking into account the purposes of sentencing and synthesising the differing objective circumstances of each separate offence (including the levels of objective seriousness noted at [54]-[60] above, the differences in the maximum penalties that apply to the various offences and the increasing seriousness of the later offences), and considering the relationship between the overall offending within the specific offences in each of the seven charge groups (including the “common elements” noted in Pearce at [40]), and the subjective circumstances of the defendant, I consider that the appropriate monetary penalty for each charge before turning to consider totality, is as follows:

Proceedings	Provision	Penalty (Fine)
CHARGE GROUP 1
1	2022/00173269	118A(2) NPW Act	$40,000
2	2022/00173270	118D(1) NPW Act	$20,000
3	2022/00173271	118D(1) NPW Act	$20,000
CHARGE GROUP 2
4	2022/00173272	118A(2) NPW Act	$60,000
5	2022/00173273	118D(1) NPW Act	$30,000
CHARGE GROUP 3
6	2022/00173274	118A(2) NPW Act	$10,000
7	2022/00173275	118D(1) NPW Act	$5,000
8	2022/00173276	118D(1) NPW Act	$5,000
CHARGE GROUP 4
9	2022/00173277	2.2(1)(b) BC Act	$80,000
10	2022/00173278	2.4(1) BC Act	$60,000
11	2022/00173279	2.4(1) BC Act	$60,000
CHARGE GROUP 5
12	2022/00173280	2.2(1)(b) BC Act	$22,000
13	2022/00173281	2.4(1) BC Act	$15,000
14	2022/00173282	2.4(1) BC Act	$15,000
CHARGE GROUP 6
15	2022/00173283	2.2(1)(b) BC Act	$100,000
16	2022/00173284	2.4(1) BC Act	$75,000
17	2022/00173285	2.4(1) BC Act	$75,000
CHARGE GROUP 7
18	2022/00173286	2.2(1)(b) BC Act	$18,000
19	2022/00173287	2.4(1) BC Act	$12,000
20	2022/00173288	2.4(1) BC Act	$12,000

This amounts to total fines in the sum of $734,000 in the first instance.

Totality

82. The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. This principle requires the Court in passing 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: Mill at 62-63; Pearce at [31]-[49]; Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 at [128]; ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358 (‘ACE Demolition’) at [110]. Simply stated, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Barnes at [50].

83. There is the potential for overlap when considering offending which is a single course of conduct and applying the principle of totality. Although I do not consider that the seven charge groups themselves materially overlap, and as considered earlier in this judgment, each of the offences within the seven charge groups overlaps and warrants a discount for that reason. Whether that is an aspect of the offending being part of the same course of conduct, or through the application of totality, does not greatly matter: ACE Demolition at [111]. Despite this, as required, I have left questions of totality to the end to apply a “final check” of the aggregate against whether it is a just and appropriate punishment for the entire criminality in accordance with the principles outlined (at [82]) above.

84. I remain conscious that care must be taken to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the defendant’s conduct or the sentence for any individual sentence to become disproportionate to the objective seriousness of the offence: Plath v Rawson at [222]. However, in determining the appropriate sentence for each offence, the Court must consider the need to uphold confidence in the administration of justice. If sentences are reduced substantially, offenders may be of the view that they can escape punishment for a deliberate series of discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].

85. I also take into consideration that each of the offences arises from a not unrelated course of conduct and related criminal behaviour that is causally, temporally and spatially linked. I consider the aggregate amount of the fines of $734,000 exceeds what is just and appropriate in light of the circumstances and the total criminality involved. As such, I consider that the fines I have imposed should be reduced.

86. I find that the the total quantum of land cleared on the property may be properly taken into account in the exercise of discretion in respect of totality. In R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65 (‘KM’) at [55], Miles AJ (with whom Santow JA and James J agreed) observed:

“Nevertheless, whilst it is sometimes difficult, if not artificial, to assess the criminality of an offence in isolation when it is only one of what are, in law, separate offences but inextricably part of the same conduct, the exercise must be undertaken. It may be that in undertaking that exercise, and being anxious to avoid double punishment, a judge may just overlook the need for the sentences as a whole to reflect the seriousness of the offender’s conduct as a whole. In particular, whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.”

As such, I find that it is appropriate to moderate the total sentence to a lesser degree (by applying a lesser reduction to the penalty on account of totality) because the overall effect of the offending was “highly significant, causing significant harm to the incumbent Cumberland Plain Woodland and associated habitat” (as stated by Mr Sheather-Reid at (88) of his expert report dated 8 April 2024).

87. Remaining conscious that percentages can be artificial and not an especially natural way of determining whether the aggregate of the offending is just and appropriate, I reduce each of the fines by 20%. I have done this, conscious of the observations in KM, to reflect that there is an internal relationship between each offence in each charge group (as accounted for above) and that there is some overlap between each of the charge periods. My findings result in the following fines:

Proceedings	Provision	Penalty (Fine)
CHARGE GROUP 1
1	2022/00173269	118A(2) NPW Act	$32,000
2	2022/00173270	118D(1) NPW Act	$16,000
3	2022/00173271	118D(1) NPW Act	$16,000
CHARGE GROUP 2
4	2022/00173272	118A(2) NPW Act	$48,000
5	2022/00173273	118D(1) NPW Act	$24,000
CHARGE GROUP 3
6	2022/00173274	118A(2) NPW Act	$8,000
7	2022/00173275	118D(1) NPW Act	$4,000
8	2022/00173276	118D(1) NPW Act	$4,000
CHARGE GROUP 4
9	2022/00173277	2.2(1)(b) BC Act	$64,000
10	2022/00173278	2.4(1) BC Act	$48,000
11	2022/00173279	2.4(1) BC Act	$48,000
CHARGE GROUP 5
12	2022/00173280	2.2(1)(b) BC Act	$17,600
13	2022/00173281	2.4(1) BC Act	$12,000
14	2022/00173282	2.4(1) BC Act	$12,000
CHARGE GROUP 6
15	2022/00173283	2.2(1)(b) BC Act	$80,000
16	2022/00173284	2.4(1) BC Act	$60,000
17	2022/00173285	2.4(1) BC Act	$60,000
CHARGE GROUP 7
18	2022/00173286	2.2(1)(b) BC Act	$14,400
19	2022/00173287	2.4(1) BC Act	$9,600
20	2022/00173288	2.4(1) BC Act	$9,600

This amounts to total fines in the sum of $587,200.

Costs

88. At the hearing on 30 July 2025, the prosecutor, although accepting that costs would usually follow the event (Tcpt, 30 July 2025, pp 11(9), 22(42-50), 23(1-11)), submitted that it is not seeking costs as it does not have “instructions to do that”.

89. I find that the defendant should be ordered to pay the prosecutor’s costs under s 257B(a) of the Criminal Procedure Act 1986 (NSW) as may be determined under s 257G of the Criminal Procedure Act.

Orders

90. The orders of the Court are:

In proceedings 2022/00173269:   

1. Aerotropolis Pty Ltd is convicted of the offence against s 118A(2) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173269.

2. Aerotropolis Pty Ltd is fined the sum of $32,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173270:

1. Aerotropolis Pty Ltd is convicted of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173270.

2. Aerotropolis Pty Ltd is fined the sum of $16,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173271:

1. Aerotropolis Pty Ltd is convicted of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173271.

2. Aerotropolis Pty Ltd is fined the sum of $16,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173272:

1. Aerotropolis Pty Ltd is convicted of the offence against s 118A(2) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173272.

2. Aerotropolis Pty Ltd is fined the sum of $48,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173273:

1. Aerotropolis Pty Ltd is convicted of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173273.

2. Aerotropolis Pty Ltd is fined the sum of $24,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173274:

1. Aerotropolis Pty Ltd is convicted of the offence against s 118A(2) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173274.

2. Aerotropolis Pty Ltd is fined the sum of $8,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173275:

1. Aerotropolis Pty Ltd is convicted of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173275.

2. Aerotropolis Pty Ltd is fined the sum of $4,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173276:

1. Aerotropolis Pty Ltd is convicted of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173276.

2. Aerotropolis Pty Ltd is fined the sum of $4,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173277:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173277.

2. Aerotropolis Pty Ltd is fined the sum of $64,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173278:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173278.

2. Aerotropolis Pty Ltd is fined the sum of $48,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173279:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173279.

2. Aerotropolis Pty Ltd is fined the sum of $48,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173280:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173280.

2. Aerotropolis Pty Ltd is fined the sum of $17,600.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173281:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173281.

2. Aerotropolis Pty Ltd is fined the sum of $12,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173282:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173282.

2. Aerotropolis Pty Ltd is fined the sum of $12,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173283:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173283.

2. Aerotropolis Pty Ltd is fined the sum of $80,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173284:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173284.

2. Aerotropolis Pty Ltd is fined the sum of $60,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173285:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173285.

2. Aerotropolis Pty Ltd is fined the sum of $60,000.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173286:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173286.

2. Aerotropolis Pty Ltd is fined the sum of $14,400.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173287:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173287.

2. Aerotropolis Pty Ltd is fined the sum of $9,600.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

In proceedings 2022/00173288:

1. Aerotropolis Pty Ltd is convicted of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173288.

2. Aerotropolis Pty Ltd is fined the sum of $9,600.

3. Aerotropolis Pty Ltd is to pay the prosecutor’s legal costs of the proceedings in an amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).

**********

Decision last updated: 22 August 2025