Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd

[2024] NSWLEC 131

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

7 February 2024

Date of orders:

29 November 2024

Decision date:

29 November 2024

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [194]

Catchwords:

SENTENCING — Environmental offences — Offences under s 12 of the Native Vegetation Act 2003 (NSW) — Offences under s 60N of the Local Land Services Act 2013 (NSW) — Clearing of native vegetation without consent — Substantial harm caused — Foreseeable risk of environmental harm — Practical measures to prevent risk of harm — Full control over the cause of offences — Offences committed for financial gain — State of mind in committing offences — Objective seriousness near the mid to high range of seriousness — Subjective circumstances of the defendants — Previous good character — No remorse demonstrated — Defendants pleaded not guilty — Need for both specific and general deterrence — Determination of appropriate penalties — Fines imposed with moiety to prosecutor — Orders as to costs

Legislation Cited:

Biodiversity Conversation Act 2016 (NSW), s 13.12

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1, ss 3A, 17, 21A

Criminal Procedure Act 1986 (NSW), s 257B

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment Act 1979 (NSW), s 126

Fines Act 1996 (NSW), ss 6, 122

Local Land Services Act 2013 (NSW), ss 3, 60N

Native Vegetation Act 2003 (NSW), ss 3, 12

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) 260 LGERA 358; [2024] NSWCCA 4

Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141

Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54

Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137

Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150

Chief Executive, Office of Environment & Heritage v

Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy [2019] NSWLEC 120

Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54

Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114

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

Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159

Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111

Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd [2020] NSWLEC 47

Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271

Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90

Director-General Department of Land and Water Conservation v Greentree [2004] NSWLEC 584

Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; [2009] NSWLEC 4

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

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119

Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110

Director-General, Department of Land and Water Conservation v Ronald Lewis Greentree [1998] NSWLEC 30

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

Environment Protection Authority v Alcobell Pty Ltd [2015] NSWLEC 123

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 Mouawad(also known as Isaac) (No 4) [2023] NSWLEC 76

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

Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312

Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242

GL v R [2022] NSWCCA 202; (2022) 302 A Crim R 188

Greentree v Minister for the Environment and Heritage (2005) 144 FCR 388; [2005] FCAFC 128

Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79

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

Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198; [2004] FCA 741

Minister for the Environment & Heritage v Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317

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

Office of Environment and Heritage v Swansbel(Pastoral) Pty Ltd [2019] NSWLEC 69

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

R v DP [2019] NSWCCA 55

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Youkhana [2004] NSWCCA 412

Safework v Auen Grain Pty Limited & Merrywinebone Pty Limited [2015] NSWDC 229

Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153

Stephen Garrett v Dennis Charles Williams (2006) 160 LGERA 11; [2006] NSWLEC 785

Turnbull v Chief Executive of the Office of Environment & Heritage [2018] NSWCCA 229

Category:

Sentence

Parties:

Secretary, Department of Planning, Industry and Environment (Prosecutor)
Ronald Lewis Greentree and Auen Grain Pty Ltd (Defendant)

Representation:

Counsel:
S Callan SC (Prosecutor)
D Jordan SC (Defendant)

Solicitors:
Secretary, Department of Planning Industry and Environment (Prosecutor)
Austin Giugni Martin (Defendant)

File Number(s):

2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294

Publication restriction:

Nil

JUDGMENT

Nature of proceedings and outcome

1. Ronald Lewis Greentree (‘Mr Greentree’) and Auen Grain Pty Ltd (‘Auen Grain’) (collectively, the ‘defendants’) are to be sentenced after each having been found guilty of six offences against s 12 of the Native Vegetation Act 2003 (NSW) (‘NV Act’) and two offences against s 60N of the Local Land Services Act 2013 (NSW) (‘LLS Act’).

2. The offences relate to eight separate land clearing events between December 2016 and January 2019 involving the removal of native vegetation on a property known as “Boolcarrol”, north-west of Narrabri in the State of New South Wales.

3. Mr Greentree and Auen Grain pleaded not guilty to the charges and on 23 December 2022, following a hearing before me, the defendants were each found guilty of the eight offences as charged: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153 (‘Greentree (No 7)’) (also referred to variously as ‘Judgment’).

4. A sentence hearing has been held and the Court’s task is to determine and impose appropriate sentences on each of Mr Greentree and Auen Grain for each of the eight offences they committed.

Outline

5. These reasons for judgment are structured as follows. First, I will briefly note the background facts, adopting definitions and findings in Greentree (No 7), including a summary of the clearing undertaken in each offence. I will then record 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 detailed written and oral submissions received by the Court – remaining conscious that although there is some overlap between both the various sentencing considerations and the facts in relation to a number of the discrete offences, the Court is imposing sentences in relation to eight separate offences for each defendant.

Background

6. The salient factual background and a consideration of the evidence giving rise to the offences is detailed at [14]-[40] of Greentree (No 7) and (for concision) is mostly not repeated here. As will be seen, further evidence was received at the sentence hearing including a statement of agreed facts.

7. In Greentree (No 7), the Court found each of Mr Greentree and Auen Grain guilty of:

1. Carrying out or authorising the clearing of native vegetation on Boolcarrol contrary to s 12 of the NV Act between:

1. 29 December 2016 and 8 May 2017 (‘Northern Clearing Event 1’);

2. 8 May 2017 and 27 July 2017 (‘Northern Clearing Event 2’);

3. 2 July 2017 and 16 August 2017 (‘Northern Clearing Event 3’);

4. 27 July 2017 and 16 August 2017 (‘Northern Clearing Event 4’);

5. 16 August 2017 and 24 August 2017 (‘Northern Clearing Event 5a’); and

6. 27 July 2017 and 24 August 2017 (‘Southern Clearing Event 6a’),

together referred herein as the ‘NV Act Offences’; and

2. Carrying out or authorising the clearing of native vegetation on Boolcarrol, in a rural regulated area, contrary to s 60N of the LLS Act between:

1. 25 August 2017 and 18 September 2017 (‘Northern Clearing Event 5b’); and

2. 25 August 2017 and 18 January 2019 (‘Southern Clearing Event 6b’),

together referred herein as the ‘LLS Act Offences’.

The property

8. On 29 February 2008, Mr Greentree and his business partner, Kenneth Bruce Harris purchased Boolcarrol as tenants in common.

9. From 29 December 2016 to 19 January 2019, Boolcarrol (approximately 12,590ha) was farmed with an adjoining property that was also jointly held by Mr Greentree and Mr Harris, “Milton Downs” (approximately 21,463ha). The clearing the subject of each of the offences was carried out entirely on Boolcarrol.

Greentree Farming

10. At all relevant times, Mr Greentree (the sole director and, as noted below, effectively the sole shareholder of Auen Grain) and Auen Grain, along with Mr Harris and Merrywinebone Pty Ltd (who were also charged with similar offences to Mr Greentree and Auen Grain which were summarily dismissed in Greentree (No 7)), were in a partnership that traded as “Greentree Farming” ABN 65 543 574 712 (‘Greentree Farming’). Mr Greentree was the managing partner of Greentree Farming prior to 27 October 2017 (and the joint managing partner alongside Mr Harris from October 2017 onwards) and retained control over the day-to-day operations carried out by Greentree Farming on Boolcarrol. Mr Greentree was one of two shareholders of Auen Grain, and he was the sole shareholder of the company (Prime Grain Pty Ltd), which was the other shareholder.

11. During the period of the offending, Boolcarrol was farmed and managed by Greentree Farming for the purpose of grazing and cropping. The partnership agreement for Greentree Farming recorded the nature of the business conducted by the partnership as cereal grain growing.

12. The Greentree Farming partnership was dissolved in December 2019, after the events the subject of these proceedings. The valuation of Boolcarrol in November 2019 was approximately $48,800,000 which consisted of $41,687,775 for land value broken down as follows:

1. $37,178,700 for land suitable for cultivation ($3,900/ha for 9,533ha); and

2. $4,509,075 for land suitable for grazing/timber ($1,475/ha for 3,057ha).

The clearing

13. In the period 29 December 2016 to 18 September 2017, a total of 872ha was cleared in the northern area of Boolcarrol and in the period 27 July 2017 to 18 January 2019, a total of 390ha was cleared in the southern area of Boolcarrol. As further detailed below, this amounted to a total area cleared of 1,262ha across the entire property (approximately 10% of Boolcarrol).

14. As considered in Greentree (No 7), the clearing of native vegetation on Boolcarrol was carried out by (or authorised by) Mr Greentree and undertaken primarily through the use of machinery including a bulldozer and plough and by burning vegetation. Auen Grain caused or permitted Mr Greentree to carry out the clearing on Boolcarrol. Following the clearing, some cultivation activities were carried out in various areas that were the subject of each of the clearing events.

15. For the purposes of sentencing, an understanding of the nature and extent of the clearing involved in each offence (and the consequence thereof) is necessary. Further consideration of the harm resulting from each event of clearing is detailed later in this judgment in my summary and consideration of the submissions.

Northern Clearing Event 1

16. Northern Clearing Event 1 involved clearing of native vegetation by Mr Greentree (or at his direction) over an area of up to 53ha on Boolcarrol on Lot 1 in DP 128418, Lot 2 in DP 753913, and Lot 100 in DP 842249 in the period 29 December 2016 to 8 May 2017. The clearing took place in the areas described in the expert evidence of Paul Spiers (a remote sensing scientist) as polygons 1 – 25, in the paddocks “Big Horse” (polygons 1 – 8) and “Five Mile” (polygons 9 – 25).

17. Prior to the clearing, this area contained trees with a tree cover density ranging from sparse (approximately 52ha) to very sparse (approximately 1ha), and uncleared grass cover and shrubs.

18. In relation to Big Horse (polygons 1 – 8), Mr Greentree’s evidence (in Greentree (No 7)) was that he caused vegetation to be cleared in these polygons for five reasons. First, to construct two “parallel” farm roads with a fence down the middle, which included removing native trees (species: Coolabah and Box). Mr Greentree indicated that no more than 20 live trees were removed. Neither the road nor the fence was built, although an old fence was removed during the clearing. Second, to clear noxious weeds and to remove saplings, both of which involved indiscriminate clearing of vegetation. Third, to “clean-up” after the March 2017 bushfires (‘bushfires’), stubble fires, wind damage and the effects of drought. Fourth, to improve the pasture (in polygons 7 and 8). And, fifth, to create “firebreaks”.

19. In relation to Five Mile (polygons 9 – 25), Mr Greentree’s evidence was that he undertook “cleaning-up” of fire-damaged trees and raked (then staked) debris using a bulldozer with a stick rake attached, and then burning those stacks.

20. In Greentree (No 7), the Court did not accept Mr Greentree’s evidence that the clearing in polygons 1 – 3 and 8 was for the construction of two “parallel” farm roads and a fence (Judgment [274]); that the clearing in polygons 1 – 8 was to “clean-up” debris after the bushfires (Judgment [281]-[283], [290]); or for the construction of “firebreaks” (Judgment [284]-[290]); or that the clearing in polygons 1 – 8 was for the purpose of controlling noxious weeds (Judgment [298]). The Court also did not accept that the clearing for “pasture improvement” was permitted because it was “the continuation of existing farming practices”, or that clearing for this purpose explained the extent of the clearing undertaken (Judgment [299]).

21. Vegetation cleared in Northern Clearing Event 1 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus populnea (Poplar Box) (polygons 7, 14 and 25); alectryon oleifolius (Western Rosewood) (polygon 25 only); einadia nutans (Climbing Saltbush) (polygons 7 and 25); salsola australis (Buckbush) (polygons 7 and 25); and paspalidium constrictum (Box Grass) and paspalidium jubiflorum (Warrego Grass) (both in polygon 25 only).

Northern Clearing Event 2

22. Northern Clearing Event 2 involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 33ha on Boolcarrol on Lot 7 in DP 7593913 in the period 8 May 2017 to 27 July 2017. The clearing took place in the paddock “North Ram” (all in polygon 26).

23. Prior to the clearing, this area contained trees with a tree density of sparse, uncleared grass cover and shrubs.

24. Mr Greentree gave evidence (in Greentree (No 7)) that he caused clearing of the area in North Ram after the bushfires and removed some trees to build an “airstrip”. The Court did not accept Mr Greentree’s evidence that the purpose of the clearing was for the building of an airstrip; and did not accept Mr Greentree’s evidence that the extent of the loss of vegetation in polygon 26 was caused by activities undertaken following the bushfires (Judgment [152]).

25. Vegetation cleared in Northern Clearing Event 2 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); eucalyptus populnea (Poplar Box); alectryon oleifolius (Western Rosewood); and einadia nutans (Climbing Saltbush).

Northern Clearing Event 3

26. Northern Clearing Event 3 involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 168ha on Boolcarrol on Lots 7 and 8 in DP 753913 in the period 2 July 2017 to 16 August 2017. The clearing took place in the paddock “North Ram” (polygons 27 – 31).

27. Prior to the clearing, this area contained uncleared grass cover, with trees and shrubs. Tree density in the area was sparse or open trees.

28. Mr Greentree gave evidence (in Greentree (No 7)) that:

1. All of polygons 27 – 31 were affected by the bushfires and he undertook “clean-up” work of the debris after the fire. The Court did not accept this explanation (Judgment [161], [318]-[321]);

2. “Tilling” for noxious weeds was undertaken. The Court accepted this explanation and found that live vegetation was cleared in this process (Judgment [160]-[161], [324]-[327]);

3. Clearing was undertaken for the purposes of constructing a road and fenceline for paddock subdivision (in polygons 27 – 31), an explanation which was rejected by the Court on the basis that Mr Spiers had excluded routine agricultural management activities from his calculation of the clearing and that such clearing was not undertaken to the minimum extent necessary for such activities or in accordance with the relevant regulations (Judgment [328]); and

4. Clearing was undertaken in polygons 30 and 31 for the purposes of an asserted airstrip (with proposed dimensions being those of polygon 26). Mr Greentree accepted in cross-examination that the land cleared was in excess of what would have been required for an airstrip. The Court found the clearing was not undertaken for the purpose of constructing an airstrip and did not accept Mr Greentree’s evidence in this regard (Judgment [162], [316]).

29. Vegetation cleared from Northern Clearing Event 3 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); eucalyptus populnea (Poplar Box); and alectryon oleifolius (Western Rosewood) (all in polygon 27).

Northern Clearing Event 4

30. Northern Clearing Event 4 involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 105ha on Boolcarrol on Lot 100 in DP 842249 in the period 27 July 2017 to 16 August 2017. The clearing took place in the paddock “Five Mile” (polygons 32 and 33).

31. Prior to the clearing, this area contained uncleared grass cover, with trees and shrubs. The tree density was isolated trees.

32. Mr Greentree denied clearing in polygons 32 and 33 but gave evidence (in Greentree (No 7)) that polygons 32 and 33 were “cultivated for control of noxious weeds” and he considered no native vegetation had been cleared. The Court found that Mr Greentree’s usual method of weed control (being a form of cultivation known as “tilling”) was indiscriminate in nature and rejected Mr Greentree’s denial of clearing in polygon 33 (Judgment [172]-[174]).

30. Vegetation cleared from Northern Clearing Event 4 included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); salsola australis (Buckbush); sclerolaena muricata (Black Roly Poly); solanum esuriale (Quena); and tribulus micrococcus (Yellow Vine) (polygons 32 and 33); and eucalyptus populnea (Poplar Box) (polygon 26 only).

Northern Clearing Event 5a

34. Northern Clearing Event 5a involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 342ha on Boolcarrol on Lots 2, 13, 14 and 24 in DP 753913, Lots 14, 37 and 38 in DP 753916, and Lot 6 in DP 128419 in the period 16 August 2017 to 24 August 2017. The clearing took place in the paddock “South Carrol” (polygons 43 – 45). As will be later considered, for sentencing purposes, this clearing, which was the subject of a charge under s 12 of the NV Act, was undertaken along with Northern Clearing Event 5b, which was the subject of a charge under s 60N of the LLS Act.

35. Prior to the clearing, this area contained stable groundcover, shrubs and trees with sparse tree density.

36. Mr Greentree gave evidence (in Greentree (No 7)) in relation to polygons 43 and 44, that the area had been fire-damaged over the years since 2008 (not related to the March 2017 bushfires) and he undertook “clean-up” work in polygon 43, which involved raking (then stacking) timber and burning it, resulting in ash heaps in that area; he had undertaken clearing in polygon 43 to control “saplings”, and in polygons 43 and 45 to control “noxious weeds”; and in polygon 44, he did “work to locate” gravel for the purpose of roads on Boolcarrol and in doing so he cleared native vegetation and a few river red gums.

37. The Court did not accept Mr Greentree’s assertion (apart from his admissions regarding the removal of river red gums) that no live vegetation was cleared. The Court did not accept that Mr Greentree removed the river red gums to locate gravel (Judgment [180]). The Court also did not accept Mr Greentree’s evidence and the defendants’ submissions that the clearing was undertaken for the control of “noxious weeds” (Judgment [344]).

38. Vegetation cleared from Northern Clearing Event 5a included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah); eucalyptus populnea (Poplar Box); alectryon oleifolius (Western Rosewood); sclerolaena muricata (Black Roly Poly); and einadia nutans (Climbing Saltbush).

Northern Clearing Event 5b

39. Northern Clearing Event 5b involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 171ha on Boolcarrol on Lots 2, 12, 13, 14 and 24 in DP 753913, Lots 14, 32, 33, 37, 38, 44, 45 and 68 in DP 753916, Lot 1 in DP 128418, Lot 6 in DP 128419, Lot 2 in DP 546098, and Lot 24 in DP 1221147 in the period 25 August 2017 to 18 September 2017. The clearing took place in polygons 34 – 42 and 46 – 59 in the paddocks “North Carrol” and “Barratta”. As will be later considered, for sentencing purposes, this clearing was related to Northern Clearing Event 5a, which was the subject of a charge under s 12 of the NV Act.

40. Prior to the clearing, this area contained mid dense (approximately 3ha), sparse (approximately 138ha), very sparse (approximately 25ha) or isolated (approximately 5ha) trees, together with shrubs and grass cover.

41. Mr Greentree gave evidence (in Greentree (No 7)) that he undertook clearing of vegetation in this area, including “clean-up” work of debris (dead limbs and stumps) following bushfires and tilling of weeds, which the Court did not accept. Mr Greentree also gave evidence that he had cleared native vegetation (including Poplar Box and Coolabah) in polygons 40 and 41 for the purpose of “an access road and a stock track”.

42. Vegetation cleared from Northern Clearing Event 5b included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah) and eucalyptus populnea (Poplar Box).

Southern Clearing Event 6a

43. Southern Clearing Event 6a involved clearing of vegetation by Mr Greentree (or at his direction) over an area of up to 145ha on Boolcarrol on Lots 34 and 41 in DP 753954, and Lots 69 and 71 in DP 753937 in the period 27 July 2017 to 24 August 2017. The clearing took place in polygons (south) 1 – 3. Similarly to the position regarding Northern Clearing Events 5a and 5b, for sentencing purposes, this clearing, which was the subject of a charge under s 12 of the NV Act, was undertaken along with Southern Clearing Event 6b, which was the subject of a charge under s 60N of the LLS Act.

44. Prior to the clearing, this area contained uncleared grass cover, shrubs and trees with consistent tree cover density.

45. Mr Greentree gave evidence (in Greentree (No 7)) that he undertook all the clearing in polygon (south) 1 in the paddock “Wilsons”, an area of 58ha of vegetation including native vegetation, for the purpose of constructing a “separate complex” mainly for farm infrastructure, including an airstrip, cattle yards, bunkers, grain silos, machinery sheds, and a proposed residence, in addition to controlling saplings and noxious weeds.

46. The Court did not accept Mr Greentree’s evidence (in Greentree (No 7)) that the reason for the clearing of vegetation in polygon (south) 1 was for the purpose of building an airstrip, infrastructure, and/or “separate complex” (Judgment [187]). In relation to polygon (south) 2, Mr Greentree’s evidence was, and the Court did not accept, that he knocked over “dangerous” dead trees, and otherwise denied clearing in that polygon (Judgment [188]). Mr Greentree denied clearing in polygon (south) 3, saying it had been the subject of “pasture improvements” by the prior owners of Boolcarrol. The Court did not accept that evidence (Judgment [189]).

47. Vegetation cleared from Northern Clearing Event 6a included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah), sclerolaena muricata (Black Roly Poly) and boerhavia domini (Tarvine).

Southern Clearing Event 6b

48. Southern Clearing Event 6b involved clearing of vegetation by Mr Greentree (or at his direction) over an area of 245ha on Boolcarrol on Lots 1, 3, 18, 19, 42, 52, 69, 71, 82 and 83 in DP 753937, and Lot 25 in DP 1221147 in the period from 25 August 2017 to 18 January 2019. The clearing took place in polygons (south) 2 – 18. As stated above, this clearing event was related to Northern Clearing Event 6a, which was the subject of a charge under s 12 of the NV Act.

49. Prior to the clearing, the area contained trees, shrubs and groundcover.

50. In evidence given (in Greentree (No 7)), Mr Greentree denied any clearing in polygons (south) 5 – 7 and 10 – 16; the Court did not accept this evidence (Judgment [407]-[408]). Mr Greentree also gave evidence, which was not accepted by the Court, that the clearing in polygons 4 – 18 was for the purpose of an “access road” (polygons 9 – 11); and “clean-up” work as well as for the cultivation of “noxious weeds” (polygons 6 – 8) (Judgment [467]-[474]).

51. Vegetation cleared from Northern Clearing Event 6b included trees, grasses and groundcover, including native chenopods and the following native vegetation: eucalyptus coolabah (Coolabah), and eucalyptus populnea (Poplar Box).

Evidence

52. In this sentence hearing, in addition to the evidence adduced at the liability hearing, the Court received a statement of agreed facts filed 30 October 2023, and the prosecutor read the expert evidence of Terrence Michael Mazzer (an ecologist and zoologist) (paragraphs 7, 9, 53-64, 69, 71-76 of the “Northern Report” and paragraphs 7, 9, 51-61, 65, 67-72 of the “Southern Report” only), the affidavits of Travis Christopher Peake (an ecologist) affirmed 28 November 2023 (annexing an expert report) and Gareth Craig Pickford (the Chief Remote Pilot at the NSW Department of Planning and Environment) affirmed 4 December 2023.

53. The defendants read the affidavits of Michael Anthony Giugni affirmed 5 February 2024, Anthony Eyres affirmed 1 February 2024, Ian Bailey affirmed 1 February 2024, Joshua Lawrence affirmed 31 January 2024, and Kim Greenaway sworn 5 February 2024.

54. The Court also received a valuation report of Milton Downs (including Boolcarrol) dated 7 November 2019; copies of various financial statements for Auen Grain and Greentree Farming; and a statement of evidence of David Robertson (a senior ecologist) dated 22 May 2020.

Offence provisions

NV Act Offences

55. During the charge period of the NV Act Offences (29 December 2016 to 24 August 2017), s 12 of the NV Act provided:

12   Clearing requiring approval

(1)   Native vegetation must not be cleared except in accordance with:

(a)   a development consent granted in accordance with this Act, or

(b)   a property vegetation plan.

(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the [Environmental Planning and Assessment Act 1979 (NSW)] for a contravention of that Act.

…

56. Section 126 of the Environmental Planning and Assessment Act 1979 (NSW) (during the charge period of the NV Act Offences) provided:

126   Penalties

(1)   A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.

57. Pursuant to s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’), a penalty unit during the charge period of the NV Act Offences was $110 per unit. Accordingly, the maximum penalty that can be imposed on each of the NV Act Offences for a contravention of s 12(1) of the NV Act is $1,100,000.

LLS Act Offences

58. During the charge period of the LLS Act Offences (25 August 2017 to 18 January 2019), s 60N(1) of the LLS Act provided:

60N   Unauthorised clearing of native vegetation in regulated rural areas—offence

(1)   A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences —

…

Maximum penalty—

(a)   for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment—

(i)   in the case of a corporation—$5 million, or

(ii)   in the case of an individual—$1 million, or

(b)   for any other offence—

(i)   in the case of a corporation—$2 million, or

(ii)   in the case of an individual—$500,000.

59. Section 60N(2) provides that the higher maximum penalty for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment does not apply unless:

(a)   the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and

(b)   the court attendance notice or application commencing the proceedings alleged that those factors applied to the commission of the offence.

Sentencing considerations

Purposes of sentencing

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

61. In fixing the appropriate penalty for each of the offences, s 3A of the Sentencing Act relevantly provides:

3A    Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

…

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

Statutory matters to be taken into account in sentencing

62. In relation to both the NV Act Offences and the LLS Act Offences, s 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offender, including relevant factors in aggravation under s 21A(2) and relevant factors in mitigation under s 21A(3). Relevant to the submissions made in relation to the present offences, s 21A provides:

21A    Aggravating, mitigating and other factors in sentencing

…

(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,

…

(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,

…

(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,

(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)   the remorse shown by the offender for the offence, but only if—

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k)   a plea of guilty by the offender

…

(m)   assistance by the offender to law enforcement authorities,

…

63. In relation to the LLS Act Offences, the Court is also required to consider the matters set out in s 13.12 of the Biodiversity Conversation Act 2016 (NSW) (‘BC Act’) which relevantly provides:

13.12    Sentencing for offence—matters to be considered

(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,

…

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

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

64. Under the BC Act, a native vegetation offence means “any offence under the native vegetation legislation” and “native vegetation legislation” is defined to include the provisions listed under “Part 5A (Land management (native vegetation)) of … the Local Land Services Act 2013”. Section 60N of the LLS Act is listed in Part 5A of the BC Act.

65. Before considering the various sentencing factors and remaining conscious that there are two defendants before the Court for sentencing, each in relation to eight separate offences, I note four matters.

66. First, the Court’s task is to determine the sentence that should be imposed on each of Auen Grain and Mr Greentree in relation to each offence. In arriving at the appropriate sentences, the Court may not take into account facts adverse to the interests of each of the defendants unless those facts have been established beyond reasonable doubt. However, if there are circumstances in favour of the defendants that the Court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

67. Second, the appropriate sentence in each offence needs to reflect, and be proportionate to, the objective seriousness of the offences in relation to each of the NV Act Offences and the LLS Act Offences and the subjective and mitigating circumstances of the defendants.

68. Third, the appropriate sentence in relation to each offence is to be arrived at by an instinctive or intuitive synthesis of all the relevant objective and subjective circumstances: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37]-[39] (Gleeson CJ, Gummow, Hayne, Callinan JJ) at [70] (McHugh J) (‘Markarian’).

69. Fourth, in relation to offences involving clearing of native vegetation specifically, in Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (‘Rae’), Preston CJ of the LEC stated at [13]:

“…The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the offender and also of other owners, occupiers and developers of land on which native vegetation occurs who might be tempted to clear illegally by the prospect that only light punishment will be imposed by the courts. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational.”

Objective seriousness of the offences

70. The primary factor to be considered in sentencing is the objective seriousness of the offence which fixes both the upper and lower limits of proportionate punishment – the upper, because a sentence should never exceed that which can be identified as proportionate to the gravity of the particular offence; and the lower, because allowance for the subjective factors can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [139]-[140].

71. The objective circumstances relevant to each offence are: first, the nature of the offence; second, the maximum penalty; third, the environmental harm; fourth, the foreseeability of the risk of environmental harm; fifth, the practical measures to prevent environmental harm; sixth, the control over the causes giving rise to the offence; seventh, the defendant’s intentions in committing the offence; and eighth, the defendant’s financial gain from committing the offence: Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [51].

72. As will be seen, there was disagreement between the parties in relation to matters concerning the and the extent of environmental harm and the defendants’ state of mind.

Nature of the offences

73. The extent to which a defendant’s conduct offends against the legislative objectives expressed or inherent in the specific offence provision is fundamental in the assessment of objective seriousness for environmental offences: StephenGarrett v Dennis Charles Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Rae at [15].

74. In relation to the NV Act Offences, the relevant objects contained in s 3 of the NV Act identify the purpose of creating the offence in s 12 of the NV Act. The objects are:

(a)   to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and

(b)   to prevent broadscale clearing unless it improves or maintains environmental outcomes, and

(c)   to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and

(d)   to improve the condition of existing native vegetation, particularly where it has high conservation value, and

(e)   to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,

in accordance with the principles of ecologically sustainable development.

75. The objects of the LLS Act Offences are stated in s 3 of the LLS Act, which identify the purpose of creating the offence in s 60N of the LLS Act including ensuring the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development (described in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW)) (pursuant to s 3(e) of the LLS Act).

76. Possession of the requisite consent to clear an area of native vegetation is the touchstone of the regulatory scheme. It is the primary basis upon which the objects of the NV Act and LLS Act (including the prevention of broadscale clearing and the protection of native vegetation of high conservation value) are sought to be achieved.

77. Each of the offences committed by each defendant, considering the significant area of clearing and the significant period of time over which the offending took place without compliance with any of the regulatory provisions and consents, offends the legislative objectives expressed in the above provisions and, in doing so, each offence undermines the integrity of the regulatory framework for environmental protection and the objects of the NV Act and the LLS Act.

Maximum penalties

78. The maximum penalties for the statutory offences reflect the public expression by Parliament of the seriousness of an offence and provides a “sentencing yardstick” for the offences before the Court: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]; Markarian at [31].

79. The sentencing court is “to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category”: R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].

80. The NV Act Offences each carry a maximum penalty in the amount of $1,100,000 per offence for both Auen Grain and Mr Greentree (see [57] above). And, the LLS Act Offences each carry a maximum penalty (if the offence was committed intentionally and caused, or was likely to cause, significant harm to the environment) in the amount of $5,000,000 for Auen Grain (a corporation) and $1,000,000 for Mr Greentree (an individual) (see [58] above).

81. The prosecutor submits that the Court would be satisfied beyond reasonable doubt that each of the clearing events the subject of the LLS Act Offences were committed intentionally and caused, or were likely to cause, significant harm to the environment. Alternatively, the prosecutor submits that if the Court is not satisfied that the higher maximum penalties apply, the lower maximum penalties of $2,000,000 for Auen Grain and $500,000 for Mr Greentree apply.

82. The defendants accept that the higher maximum penalty applies in relation to the two LLS Act Offences – Northern Clearing Event 5b and Southern Clearing Event 6b, because, first, the Court made findings that the clearing was committed intentionally as it was undertaken with knowledge that it would include the clearing of some native vegetation; second, the increased maximum penalty applies to offences that were “likely” to cause significant environmental harm (even if actual harm has not been established); and third, it was pleaded in each of the summonses for the LLS Act Offences that they were committed intentionally and caused, or were likely to cause, significant environmental harm.

Extent of harm

83. The prosecutor relies on the expert evidence of Mr Mazzer, Mr Spiers and Mr Peake and submits that although the very nature of the offence of clearing native vegetation denotes loss of vegetation (meaning that the offence itself indicates that harm has been caused), substantial harm should be considered by having regard to the nature of the offence provisions and the conduct that is caught by it.

84. The prosecutor submits – adopting the position of Preston CJ of LEC in Chief Executive, Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114 (‘Brummell’) at [38] – that a conclusion as to substantial harm in relation to each of the offences can be made by reference to, first, the scale of the clearing; second, the status of the cleared native vegetation as part of an endangered ecological community under the Threatened Species Conservation Act1995 (NSW) (and by dint of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’)) and the BC Act; third, ecological and conservation value of the cleared native vegetation, including the provision of habitat for endangered species of fauna and flora with reference to hollow-bearing trees; and fourth, the nature of the clearing being inconsistent with the recovery action needed for the particular plant community type (‘PCT’).

85. In accordance with these factors outlined in Brummell, the prosecutor’s principal submission is that the harm caused by the clearing more generally (with no particular distinction between each of the clearing events) was substantial for the purposes of s 21A(2)(g) of the Sentencing Act having regard to the scale of clearing, the number of species cleared, and the ecological and conservation value of a significant portion of the vegetation as indicated in the unchallenged evidence of Mr Peake. In addition, in relation to the LLS Act Offences, the prosecutor again submits that Northern Clearing Event 5b and Southern Clearing Event 6b caused, or were likely to cause, significant harm to the environment such that the higher penalties are applicable to those offences.

86. In relation to the impact of the clearing, the prosecutor submits that the defendants cleared native vegetation in an area of 1,262ha in woodland and open forest communities which ranged in density from mid-dense (50% to 80% crown cover) to sparse (20% to 50% crown cover) and very sparse. The defendants also cleared native understorey plants and groundcover.

87. The prosecutor relies principally on Mr Peake’s overall conclusion that the clearing events resulted in environmental harm, including significant environmental harm, which harm persists due to the loss of vegetation and associated fauna habitat. In particular, Mr Peake (and Mr Mazzer) opined that the vegetation communities on Boolcarrol were part of the Coolabah – Black Box woodland in the Darling Riverine Plains, Brigalow Belt South, Cobar Peneplain and Mulga Lands Bioregions – endangered ecological community (‘EEC’) listed under the BC Act (‘Coolabah – Black Box BC Act EEC’) and under the EPBC Act (‘Coolabah – Black Box EPBC Act EEC’). Noting that the listing of vegetation as an EEC is a recognition of the rarity and vulnerability of the PCT to further loss and degradation such that it is facing a very high risk of extinction in NSW in the near future.

88. The prosecutor directed the Court to Mr Peake’s detailed evidence where he described the impact of each of the clearing events and concluded that environmental harm, including significant environmental harm, resulted from each of the clearing offences. The prosecutor points to the following instances where Mr Peake regarded the harm caused as “highly significant” or “significant” in relation to each of the clearing events.

1. Northern Clearing Event 1 resulted in the clearing of up to 53ha comprising 34.88ha of highly cleared vegetation types, which clearing had:

1. a significant impact on the Coolabah – Black Box BC Act EEC as it resulted in the clearing of 13.31ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;

2. a significant impact on the Coolabah – Black Box EPBC Act EEC as it resulted in the clearing of up to 13.31ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;

3. a significant impact on PCT 39 (Coolabah – River Coobah – Lignum woodland) (‘PCT 39’) as it resulted in the clearing of 10.59ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and

4. a significant impact on PCT 244 (Poplar Box grassy woodland) (‘PCT 244’) as it resulted in clearing of 21.37ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.

2. Northern Clearing Event 2 resulted in the clearing of up to 33ha comprising 31.91ha of highly cleared vegetation types, which clearing had:

1. a significant impact on PCT 244 as it resulted in the clearing of 21.37ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.

3. Northern Clearing Event 3 resulted in the clearing of up to 168ha comprising 73.18ha of highly cleared vegetation types, which clearing had:

1. a significant impact on the Coolabah – Black Box BC Act EEC as it resulted in the clearing of 24.04ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;

2. a significant impact on the Coolabah – Black Box EPBC Act EEC as it resulted in the clearing of up to 24.04ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;

3. a significant impact on PCT 39 as it resulted in the clearing of 24.04ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and

4. a significant impact on PCT 244 as it resulted in the clearing of 49.14ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.

4. Northern Clearing Event 4 resulted in the clearing of up to 105ha comprising 74.24ha of highly cleared vegetation types, which clearing had:

1. a significant impact on the Coolabah – Black Box BC Act EEC as it resulted in the clearing of 23.21ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;

2. a significant impact on the Coolabah – Black Box EPBC Act EEC as it resulted in the clearing of up to 23.21ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;

3. a significant impact on PCT 39 as it resulted in the clearing of 23.21ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and

4. a significant impact on PCT 244 as it resulted in the clearing of 51.03ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW;

5. Northern Clearing Event 5a resulted in the clearing of up to 342ha comprising 198.25ha of highly cleared vegetation types, which clearing had:

1. a highly significant impact on the Coolabah – Black Box BC Act EEC as it resulted in the clearing of 97.03ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;

2. a highly significant impact on the Coolabah – Black Box EPBC Act EEC as it resulted in the clearing of up to 97.03ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;

3. a highly significant impact on PCT 39 as it resulted in the clearing of 87.51ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW;

4. a significant impact on PCT 56 (Poplar Box – Belah woodland) (‘PCT 56’) as it resulted in the clearing of 31.53ha of this PCT which is regarded as highly cleared (78%) in its natural distribution in NSW; and

5. a significant impact on PCT 244 as it resulted in the clearing of 63.29ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.

6. Northern Clearing Event 5b resulted in the clearing of up to 171ha comprising 116.91ha of highly cleared vegetation types, which clearing had:

1. a highly significant impact on the Coolabah – Black Box BC Act EEC as it resulted in the clearing of 73.22ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;

2. a highly significant impact on the Coolabah – Black Box EPBC Act EEC as it resulted in the clearing of up to 73.22ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;

3. a highly significant impact on PCT 39 as it resulted in the clearing of 63.35ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW;

4. a significant impact on PCT 40 (Coolabah open woodland) (‘PCT 40’) as it resulted in the clearing of 7.87ha of this PCT which is regarded as extensively cleared (63%) in its natural distribution in NSW;

5. a significant impact on PCT 87 (Poplar Box – Coolabah floodplain) (‘PCT 87’) as it resulted in the clearing of 9.27ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and

6. a significant impact on PCT 244 as it resulted in the clearing of 34.33ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.

7. Southern Clearing Event 6a resulted in the clearing of up to 145ha of vegetation types, which clearing had:

1. a highly significant impact on the Coolabah – Black Box BC Act EEC as it resulted in the clearing of 111.63ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;

2. a highly significant impact on the Coolabah – Black Box EPBC Act EEC as it resulted in the clearing of up to 111.63ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;

3. a significant impact on PCT 39 as it resulted in the clearing of 27.37ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW;

4. a highly significant impact on PCT 40 as it resulted in the clearing of 84.26ha of this PCT which is regarded as extensively cleared (63%) in its natural distribution in NSW;

5. a significant impact on PCT 87 as it resulted in the clearing of 16.48ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and

6. a significant impact on PCT 244 as it resulted in the clearing of 21.37ha of this PCT which is regarded as highly cleared (73%) in its natural distribution in NSW.

8. Southern Clearing Event 6b resulted in the clearing of up to 245ha comprising 191ha of highly cleared vegetation types, which clearing had:

1. a highly significant impact on the Coolabah – Black Box BC Act EEC as it resulted in the clearing of 184.68ha of the EEC which is regarded as 50-67% cleared in its natural distribution in NSW, causing significant harm;

2. a highly significant impact on the Coolabah – Black Box EPBC Act EEC as it resulted in the clearing of up to 184.68ha of the EEC which is regarded as 65% cleared in its natural distribution in Australia, causing significant harm;

3. a significant impact on PCT 39 as it resulted in the clearing of 141.36ha of this PCT which is regarded as extensively cleared (60%) in its natural distribution in NSW; and

4. a highly significant impact on PCT 40 as it resulted in the clearing of 43.32ha of this PCT which is regarded as extensively cleared (63%) in its natural distribution in NSW.

89. The prosecutor points to Mr Peake’s evidence that the clearing events (with no particular distinction between each of the clearing events), first, caused the loss of a significant area of remnant vegetation, which was likely to have been in good condition prior to the clearing; second, caused the reduction in local habitat connectivity which could lead to poorer dispersal of threatened fauna species and other fauna species, contributing to their reduction in abundance in the local area; and third, may have caused or exacerbated tree dieback that is apparent in the remnant vegetation that adjoins, or is close to, the patches that were cleared.

90. The prosecutor points to Mr Peake’s evidence in relation to the likely impact of the clearing on threatened species, being – first, that nine threatened species were highly likely to have been present in the cleared areas prior to clearing including, the pale-headed snake, south-eastern glossy black-cockatoo, spotted harrier, brown treecreeper, painted honeyeater, grey-crowned babbler, hooded robin, diamond firetail, and yellow-bellied sheathtail-bat; and second, 17 threatened species were moderately likely to have been present in the cleared areas prior to the clearing including the stripe-faced dunnart, koala, little pied bat, and barking owl. Further, that each of the clearing events likely caused significant damage to the habitat of eight threatened fauna species.

91. Furthermore, of the species noted above, the expert evidence of Mr Mazzer noted the following species were listed as “Vulnerable” under either the EPBC Act or the BC Act, being the pale-headed snake, south-eastern glossy black-cockatoo, spotted harrier, grey-crowned babbler, stripe-faced dunnart, yellow-bellied sheathtail-bat, little pied bat, diamond firetail, and hooded robin.

92. Mr Peake concluded that there was a moderate likelihood that the habitat of the pale-headed snake, south-eastern glossy black-cockatoo, brown treecreeper, painted honeyeater, grey-crowned babbler, hooded robin, diamond firetail, and yellow-bellied sheathtail-bat had been cleared by all of the clearing events.

93. The koala has been listed as “Endangered” under the EPBC Act and the BC Act, and the expert opinion of Mr Mazzer and Mr Peake is that the koala was moderately likely to have used the areas that were cleared as habitat prior to the clearing.

94. The prosecutor further identifies that Mr Mazzer’s evidence outlines the environmental harm caused by the offences and points to a number of Mr Mazzer’s findings regarding flora and fauna including that the clearing of native vegetation was likely to have a significant impact on the environment, describing the clearing as having resulted in “significant environmental harm”. Mr Mazzer listed the major impacts of the removal of native vegetation in cleared areas – being: first, loss of a significant area of remnant native vegetation which was in good condition prior to clearing; second, loss of a significant area of over-cleared vegetation types within an over-cleared landscape; third, loss of significant areas of an endangered ecological community; fourth, loss of a significant area of habitat for native fauna, which is likely to affect several threatened species (in particular, woodland and grassland likely to have been used by local populations of ten threatened species); and fifth, loss of many hollow-bearing trees.

95. Mr Mazzer stated that it was likely that a substantial number of hollow-bearing trees were present in the areas cleared on Boolcarrol prior to the clearing activities, such that over three-quarters of all mature trees in the northern area of Boolcarrol contained hollows, ranging from 10 per hectare in open woodland areas to 50 per hectare in woodland areas, and between 10 and 20 hollow-bearing trees were present per hectare in the southern area of Boolcarrol. The conservation impact being that hollows do not form in trees until they have reached sufficient size and age and lost hollows are unlikely to be replaceable within 100 years, and potentially longer. Therefore, the loss of hollow-bearing trees has a significant detrimental influence on populations of hollow-dependent fauna resident on Boolcarrol.

96. The defendants do not accept that the harm caused in each of the offences was ‘substantial’ (although accept that the evidence supports a finding of “likely significant”) and submit that the aggravating factor pursuant to s 21A(2)(g) of the Sentencing Act cannot apply in the present case because the prosecutor has not established on the evidence before the Court beyond reasonable doubt that each of the clearing events caused actual harm that is “significantly more deleterious than that which any ordinary” consequences of unlawful clearing of native vegetation: R v Youkhana [2004] NSWCCA 412 at [26]; GL v R [2022] NSWCCA 202; (2022) 302 A Crim R 188 at [64].

89. The defendants submit that in relation to the LLS Act Offences, the function served by the reference to “significant” harm in s 60N(1) of the LLS Act is different to that referred to in the Sentencing Act as it establishes a threshold for activating a higher statutory maximum penalty for an offence whereby the higher maximum is only activated when the clearing was intentional, and the clearing caused, or is likely to cause, significant harm to the environment.

90. The defendants contend that even after the higher maximum penalty comes into operation the distinction between actual harm and likely harm remains relevant for the purposes of sentencing. For example, on the issue of environmental harm, an offence that only involves likely harm is less serious than an offence involving actual harm.

91. The defendants submit that in reading and understanding Mr Peake’s evidence (which they submit is the “only” reliable basis to make findings in relation to environmental harm), the Court would not be able to find beyond reasonable doubt that significant harm was caused by the defendants in their acts of vegetation clearing. Specifically, Mr Peake (who had the benefit of considering all the expert evidence including that of Mr Mazzer) concluded that EECs were highly likely to be present on Boolcarrol but did not conclude that the EECs were definitely present on Boolcarrol. It follows that if those EECs were not present, they could not have been impacted by the clearing events. Given that Mr Peake only found that the presence of the EECs was “highly likely”, any conclusions expressed in relation to ‘significant harm’ must be understood in that context.

92. I find that harmfulness needs to not only be considered in terms of actual harm but also that potential harm or risk of harm should be taken into account. I accept and adopt the approach of Preston CJ of LEC in Brummell at [38]. As such, in relation to each offence, I have taken into account the scale of the clearing that has been undertaken as well as the number of species of native vegetation removed, considered along with the species of endangered flora and fauna potentially affected. I have also taken into account the status of the cleared native vegetation and the effect upon the habitat of endangered species for flora and fauna (with consideration of hollow-bearing trees). I also accept that the identification of native vegetation considered by Mr Peake (and Mr Mazzer) is made obviously more difficult given the very nature of the offences – being the clearing of vegetation – means that the lost vegetation is by definition no longer in situ.

93. Generally adopting the submissions made on behalf of the prosecutor (summarised above), and separately considering all the evidence including the evidence of both Mr Peake and Mr Mazzer, which I find compelling (both in the absence of any contrary evidence except for some comments of Mr Robertson in his report dated 22 May 2020, and not accepting the defendants’ submissions that Mr Peake’s evidence was limited or diminished by his various descriptors or by the parsing adopted by the defendants), I make the following further findings.

94. In relation to Northern Clearing Event 1, which comprised an area of up to 53ha, I find beyond reasonable doubt that the clearing of 34.88ha of highly cleared vegetation types has caused significant harm to, and a significant impact on: Coolabah – Black Box BC Act EEC (loss of 13.31ha); Coolabah – Black Box EPBC Act EEC (loss of up to 13.31ha) (being conscious of the different descriptors of these overlapping EECs used in the evidence); PCT 39 (loss of 10.59ha); and PCT 244 (loss of 21.37ha). Further, that the clearing of up to 53ha is likely to have had impacts on the habitat of eight threatened fauna species (being the pale-headed snake, south-eastern glossy black-cockatoo, brown treecreeper, painted honeyeater, grey-crowned babbler, hooded robin, diamond firetail, and yellow-bellied sheathtail-bat) immediately present prior to 29 December 2016. I note that the extent of harm “likely” to be caused by an offence can nevertheless increase the seriousness of an offence: Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 at [20].

95. In relation to Northern Clearing Event 2, which comprised an area of up to 33ha, I find beyond reasonable doubt that the clearing of 31.91ha of highly cleared vegetation types including 21.37ha of PCT 244 has caused significant harm to, and a significant impact on PCT 244; and is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 8 May 2017.

96. In relation to Northern Clearing Event 3, which comprised an area of up to 168ha, I find beyond reasonable doubt that the clearing of 73.18ha of highly cleared vegetation types has caused significant harm to, and a significant impact on: Coolabah – Black Box BC Act EEC (loss of 24.04ha); Coolabah – Black Box EPBC Act EEC (loss of up to 24.04ha); PCT 39 (loss of 24.04ha); and PCT 244 (loss of 49.14ha). Further, that the clearing of up to 168ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 2 July 2017.

97. In relation to Northern Clearing Event 4, which comprised an area of up to 105ha, I find beyond reasonable doubt that the clearing of 74.24ha of highly cleared vegetation types has caused significant harm to, and a significant impact on: Coolabah – Black Box BC Act EEC (loss of 23.21ha); Coolabah – Black Box EPBC Act EEC (loss of up to 23.21ha); PCT 39 (loss of 23.21ha); and PCT 244 (loss of 51.03ha). Further, that the clearing of up to 105ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 27 July 2017.

98. In relation to Northern Clearing Event 5a, which comprised an area of up to 342ha, I find beyond reasonable doubt that the clearing of 198.25ha of highly cleared vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah – Black Box BC Act EEC (loss of 97.03ha); Coolabah – Black Box EPBC Act EEC (loss of up to 97.03ha); and PCT 39 (loss of 87.51ha). And has caused significant harm to, and a significant impact on: PCT 56 (loss of 31.53ha); and PCT 244 (loss of 63.29ha). Further, that the clearing of up to 342ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 16 August 2017.

99. In relation to Northern Clearing Event 5b, which comprised an area of up to 171ha, I find beyond reasonable doubt that the clearing of 116.91ha of highly cleared vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah – Black Box BC Act EEC (loss of 73.22ha); Coolabah – Black Box EPBC Act EEC (loss of up to 73.22ha); and PCT 39 (loss of 63.35ha). And has caused significant harm to, and a significant impact on: PCT 40 (loss of 7.87ha); PCT 87 (loss of 9.27ha); and PCT 244 (loss of 34.33ha). Further, that the clearing of up to 171ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 25 August 2017.

100. In relation to Southern Clearing Event 6a, which comprised an area of up to 145ha, I find beyond reasonable doubt that the clearing of 145ha of vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah – Black Box BC Act EEC (loss of 111.63ha); Coolabah – Black Box EPBC Act EEC (loss of up to 111.63ha); and PCT 40 (loss of 84.26ha). And has caused significant harm to, and a significant impact on: PCT 39 (loss of 27.37ha); PCT 87 (loss of 16.48ha); and PCT 244 (loss of 21.37ha). Further, that the clearing of up to 145ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 27 July 2017.

101. In relation to Southern Clearing Event 6b, which comprised an area of up to 245ha, I find beyond reasonable doubt that the clearing of 191ha of highly cleared vegetation types has caused highly significant harm to, and a highly significant impact on: Coolabah – Black Box BC Act EEC (loss of 184.68ha); Coolabah – Black Box EPBC Act EEC (loss of up to 184.68ha); and PCT 40 (loss of 43.32ha). And has caused significant harm to, and a significant impact on: PCT 39 (loss of 141.36ha). Further, that the clearing of up to 245ha is likely to have had impacts on the habitat of eight threatened fauna species (listed at [102] above) immediately present prior to 25 August 2017.

102. Based upon, and accepting, the evidence of Messrs Peake, Mazzer and Spiers, and a number of admissions in the evidence of Mr Greentree, I find beyond reasonable doubt that the defendants acted intentionally and with the knowledge that the clearing would include native vegetation, and I find beyond reasonable doubt that the offences were likely to cause significant environmental harm. As such, I also find that the two LLS Act offences (being Northern Clearing Event 5b and Southern Clearing Event 6b) attract the higher maximum penalty pursuant to s 60N(1) of the LLS Act.

103. In making my findings above, I consider and, in particular, find beyond reasonable doubt that the harm caused in relation to each of the offences was “of medium or more significance” and is therefore “substantial” for the purposes of s 21A(2)(g) of the Sentencing Act. For completeness, I do not accept the defendants’ submission (noted at [99] above).

104. In making these findings, for completeness, I find beyond reasonable doubt that the actual harm is significantly more deleterious than what would otherwise be considered the “ordinary” consequences of unlawful clearing of native vegetation. I make these findings in relation to each of the offences based upon my acceptance of the mostly unchallenged evidence of Mr Peake and in particular his evidence that environmental harm, including significant environmental harm, resulted from the clearing of native vegetation and that the harm persists due to the loss of vegetation as well as associated fauna habitat.

105. Further, in relation to each clearing event, in considering the extent of the harm, I take into account that there was clearing of habitat for various threatened fauna species, and I find this caused significant damage to the habitat of those threatened (and other) fauna species. Although I find that there is insufficient evidence of any direct harm to individual animals, it is clear from the evidence of Mr Peake, that there are a number of species which have had substantial areas of their habitat damaged.

106. In summary, I find beyond reasonable doubt that each of the offences caused, or were likely to cause, significant harm to the environment having regard to, first, the loss of a significant area of native vegetation (1,262ha); second, the clearing of endangered ecological communities; third, the removal of native fauna habitat features including woodland and grassland, native tree canopy cover, native shrubs, and ground layer species, which was likely to have been used by the local populations of various threatened species; fourth, the destruction of habitat likely to have been utilised by threatened species – some of which are listed as vulnerable species; fifth, the loss of mature habitat of native fauna, such as the destruction of hollow-bearing trees; and, sixth, the clearing resulted in increased habitat fragmentation creating fragments of native vegetation.

Foreseeability of risk of harm

115. The prosecutor submits that in relation to each offence, the Court can be satisfied that the risk of harm associated with clearing large sections of native vegetation was “self-evident” to the defendants particularly given their history of involvement in proceedings relating to the same type of offending, including in Director-General, Department of Land and Water Conservation v Ronald Lewis Greentree [1998] NSWLEC 30 (‘Greentree 1998’); Director-General Department of Land and Water Conservation v Greentree [2004] NSWLEC 584 (‘Greentree 2004’); Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198; [2004] FCA 741 (‘Greentree (No 2)’) and Minister for the Environment & Heritage v Greentree(No 3) (2004) 136 LGERA 89; [2004] FCA 1317; (‘Greentree (No 3)’). The prosecutor contends that there is clear foreseeability of environmental harm that elevates the objective gravity of the offences. The defendants make no submissions concerning foreseeability of risk of harm.

116. I find beyond reasonable doubt that in relation to each of the offences, the defendants’ own foresight of the harm that could be caused by their clearing of large sections of Boolcarrol containing native vegetation is manifest and reasonably foreseeable.

Practical measures to prevent harm

117. The prosecutor submits and I find beyond reasonable doubt that there is no evidence before the Court indicating that Mr Greentree and Auen Grain (by attribution), took steps to ameliorate the risk of harm caused by the clearing. I also consider that the objective seriousness of the offences is elevated where, under the respective legislative regimes, clearing is permitted with relevant approvals that the defendants did not seek to obtain despite being aware of such requirements. The failure of the defendants to obtain any approvals is a practical measure to prevent, control or mitigate harm to the environment which the defendants did not choose to do.

Control over the causes giving rise to the offences

118. In relation to each offence, I find that Mr Greentree personally carried out (or directed Greentree Farming employees to carry out) all of the clearing. As such, Mr Greentree and Auen Grain (by attribution) had total control over the causes of the harm to the environment occasioned by the commission of each of the offences.

Financial gain

119. The prosecutor submits that the clearing on Boolcarrol was undertaken in furtherance of the commercial farming enterprise which Mr Greentree and Auen Grain were engaged in at the time. The prosecutor submits that there is clear evidence of an intention by the defendants to undertake “broadacre” clearing when Boolcarrol was purchased and that the clearing of 1,262ha across the property was self-evidently done for the purpose of making more land available for cultivation.

120. The prosecutor points to the valuation obtained in November 2019, at which time, land on Boolcarrol that was suitable for cultivation was significantly higher in value ($3,900/ha) than land on Boolcarrol that was suitable for grazing (assessed as $1,475/ha). The net profit for Greentree Farming from farming operations for the financial year ending 30 June 2017 was an approximate amount of $3,400,000 and in the financial year ending 30 June 2018 was in the approximate amount of $600,000. In addition, in the financial year ending 30 June 2017, profit allocation showed an amount of approximately $189,000 allocated to Mr Greentree and approximately $9,400,000 allocated to Auen Grain. Although the prosecutor does not suggest that this profit is entirely attributable to the clearing activities the subject of these offences, Mr Greentree and Auen Grain have clearly benefited from the commercial operations of Greentree Farming.

121. The defendants accept that it is open to the Court to make a finding that the offences were committed for financial gain. Additionally, the defendants note that while there is no proper evidentiary basis for the Court to make any findings on the specific quantity of financial gain, it is open to the Court to find in general terms that land that is suitable for cultivation is more valuable than land that is only suitable for grazing livestock.

122. I accept the prosecutor’s submissions and I find beyond reasonable doubt that each of the offences was committed by each defendant for financial gain and in relation to each offence, this constitutes an aggravating factor increasing the objective seriousness of the offending conduct.

State of mind in committing the offences

123. Offences against s 12 of the NV Act and s 60N of the LLS Act are offences of strict liability. A strict liability offence that is committed intentionally, negligently or recklessly is objectively more serious than one not so committed and the state of mind of an offender at the time of the offence can exacerbate the objective culpability of an offender: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [123]; Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 at [72].

124. As noted above, in the case of the LLS Act Offences, the higher maximum penalty applies where an offence was committed intentionally and caused, or was likely to cause, significant harm to the environment. The prosecutor submits that each of the NV Act Offences and the LLS Act Offences were committed intentionally by the defendants to remove native vegetation to make way for broadscale cropping and that Auen Grain caused or permitted Mr Greentree to carry out the clearing. The defendants accept the prosecutor’s submissions that in relation to the LLS Act Offences, the higher maximum penalties apply.

125. As noted by Preston CJ of LEC in Brummell at [51]-[53], the essential difference between the mental states of intention and recklessness and negligence is that the first two states of mind are measured on a subjective standard (the referent being the offender) while the third state of mind is measured on an objective standard (the referent being a hypothetical reasonable person). Negligence assesses the offender’s conduct not by reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances: Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 (‘Ghossayn’) at [70].

126. The prosecutor submits that it is beyond reasonable doubt that Mr Greentree (or at his direction) intentionally cleared 1,262ha of native vegetation because Boolcarrol was purchased by Mr Greentree with an intention to undertake “broadacre” clearing and during the clearing, no distinction was made between noxious weeds and “everything else”. And, that this state of mind is further evidenced by the methods of clearing through machinery (such as offset disc ploughs or cutter bars on a bulldozer) to plough, bulldoze or rake saplings or vegetation including grasses across the surface of the ground. Further, Mr Greentree accepted that in using these methods, native vegetation could have been caught up in this process.

127. The prosecutor submits that when each of the clearing events was carried out, Mr Greentree was aware that he was prohibited by law to clear native vegetation unless the clearing fell within a statutory exemption or was subject to a relevant approval; and that the clearing the subject of these offences was not one falling within an exemption, nor did Mr Greentree seek approval to undertake the clearing.

128. The prosecutor further submits that Mr Greentree and Auen Grain (by attribution) plainly understood the need for approvals for the clearing of native vegetation given his involvement in criminal proceedings relating to offences of a similar genre: Greentree 1998; Greentree 2004; Greentree (No 2); Greentree (No 3).

129. Additionally, the prosecutor submits that Mr Greentree and Auen Grain (by attribution) also had knowledge that their clearing activities were likely to clear native vegetation as several Stop Work Order notices were issued by the Office of Environment and Heritage under s 11.3 of the BC Act to Mr Greentree in relation to Northen Clearing Event 5b (dated 1 September 2017), and Northern Clearing Event 6b (dated 1 September 2017, 9 October 2017, 16 November 2017, 22 December 2017, 30 January 2018 and 12 March 2018). Separately, a Notice to Provide Information and/or Records in relation to clearing was issued to Mr Greentree on 15 March 2018. This notice recorded that there had been evidence of clearing of native vegetation in possible contravention of native vegetation legislation and referred to the fact that the North West Local Land Services records do not reveal any approvals for the subject clearing and requested certain records from Mr Greentree regarding an investigation into possible contraventions of the LLS Act occurring on Boolcarrol. Relatedly, the prosecutor submits that the clearing of native vegetation was carried out repeatedly and systematically over many months (from December 2016 to January 2019) such that it is clear that the clearing was intentional.

“[37] …[A] person who commits a deliberate series of discrete offences ... must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

181. I will later consider the basis on which the penalty for each offence is to be attributed between the defendants however where, as here, the Court is sentencing separate defendants for more than one offence, the aggregate or overall sentence must be “just and appropriate” and to reflect the total criminality before the Court: Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76 at [244].

182. In the circumstances, given the total criminality (considered separately in relation to each defendant), I consider that it is just and appropriate to reduce the aggregate of each individual defendant’s monetary penalties (being $1,410,000 in relation to Mr Greentree and $1,490,000 in relation to Auen Grain) that would otherwise be appropriate for each defendant by 20% and that each penalty (for each defendant) be reduced by 20% with the following effect:

1. For Mr Greentree:

1. Northern Clearing Event 1: $48,000;

2. Northern Clearing Event 2: $32,000;

3. Northern Clearing Event 3: $152,000;

4. Northern Clearing Event 4: $96,000;

5. Northern Clearing Event 5a: $320,000;

6. Northern Clearing Event 5b: $152,000;

7. Southern Clearing Event 6a: $128,000;

8. Southern Clearing Event 6b: $200,000.

Totalling $1,128,000.

2. For Auen Grain:

1. Northern Clearing Event 1: $48,000;

2. Northern Clearing Event 2: $32,000;

3. Northern Clearing Event 3: $152,000;

4. Northern Clearing Event 4: $96,000;

5. Northern Clearing Event 5a: $320,000;

6. Northern Clearing Event 5b: $176,000;

7. Southern Clearing Event 6a: $128,000;

8. Southern Clearing Event 6b: $240,000.

Totalling $1,192,000.

183. Apart from the above, in circumstances where the relationship between the defendants is that of a company and its sole director (as noted at [10] above), the Court needs to recognise that the overlap between the defendant entities may call for a review and, if appropriate, an adjustment of the monetary penalties to take account of the effect that the total penalties may have on one defendant, being Mr Greentree.

184. The defendants submit that imposing an equal penalty on both offenders would effectively punish Mr Greentree, the director of Auen Grain, twice as the penalty for the corporate entity will in reality come from Mr Greentree: Traikaero at [86]-[89].

185. The prosecutor acknowledges that Mr Greentree (as sole director and effectively the sole shareholder of Auen Grain) may bear the burden of any penalty against Auen Grain, but further notes the approach of the Full Court in Greentree v Minister for Environment and Heritage (2005) 144 FCR 388; [2005] FCAFC 128 at [54] (confirming the decision of Sackville J in Greentree (No 3) at [78]), where the defendant company was a separate entity with its own liability and therefore, it was correct for the primary judge to impose a (civil) penalty on both the company and the individual. Further, the Full Court considered that it was irrelevant that the director of the company directed the actions as agent of the company.

186. Although coincidental and not relevant in a factual sense (being a decision in relation to the imposition of civil penalties under the EPBC Act), I have given consideration to the following words of Sackville J in Greentree (No 3) at [78]:

“[78] I infer that Mr Greentree will bear the burden of any diminution of [Auen Grain’s] assets that will result from the imposition of a pecuniary penalty on the company. It is appropriate to take that fact into account in order to prevent Mr Greentree being punished, in effect, twice over: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169, at 182 [45], per Finkelstein J; Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80, at 116-117 [131]-[132], per Santow J. On the other hand, [Auen Grain] has been involved in a deliberate contravention of s 16(1) of the EPBC Act. The contravening conduct was undertaken in [Auen Grain’s] commercial interests. It is also necessary to bear in mind that the maximum penalties that can be imposed on a corporation are ten times larger than the penalties that can be imposed on individuals who contravene the EPBC Act. The overall pecuniary penalty should obviously be no less than if [Auen Grain], a corporation, had been the sole contravenor. On the contrary, the overall penalty should reflect the fact that Mr Greentree, as well as [Auen Grain], has contravened s 16(1) of the EPBC Act.”

187. While conscious that Mr Greentree and Auen Grain are equally criminally responsible and noting that the total criminality should still be reflected in the sentence, I consider that an appropriate allowance may be made to account for the effect that the total penalties may have on Mr Greentree, and that it is just and appropriate to reduce the aggregate of the monetary penalties (that I have otherwise considered to be appropriate to impose on each defendant) to address the prospect that Mr Greentree is not being punished twice for the same conduct. That being said, I remain conscious that the Court needs to recognise that each of Mr Greentree and Auen Grain has committed eight offences against s 12 of the NV Act and s 60N of the LLS Act and that the criminality involved by a corporation and by a director (and directing mind) of that corporation is not coterminous: Traikaero at [94]-[97] and further, that a corporation (as a separate entity) has its own liability for its conduct in committing the offences.

188. Although previous cases have proffered different responses to such scenarios including adopting different ratios of the fine to impose on an individual vis a vis a company or alternatively, by noting the ratio of maximum pecuniary penalties between a corporation and an individual (as is the case under the NV Act), there is no clear pattern (cf. Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 at [54]-[63]; Environment Protection Authority v Alcobell Pty Ltd [2015] NSWLEC 123 at [120]; Traikaero at [99]-[103]). In the circumstances, I consider that an appropriate allowance can be made to account for the impact that the total penalties may have on Mr Greentree (while still reflecting the total criminality before the Court) by reducing the aggregate of each of the penalties I have imposed on the defendants by 10% (with the effect that the aggregate for all penalties is reduced from $2,320,000 to $2,088,000) and that this percentage is to be applied to each offence under consideration.

189. My findings above lead to the following penalties:

1. For Mr Greentree:

1. Northern Clearing Event 1: $43,200;

2. Northern Clearing Event 2: $28,800;

3. Northern Clearing Event 3: $136,800;

4. Northern Clearing Event 4: $86,400;

5. Northern Clearing Event 5a: $288,000;

6. Northern Clearing Event 5b: $136,800;

7. Southern Clearing Event 6a: $115,200;

8. Southern Clearing Event 6b: $180,000.

Totalling $1,015,200.

2. For Auen Grain:

1. Northern Clearing Event 1: $43,200;

2. Northern Clearing Event 2: $28,800;

3. Northern Clearing Event 3: $136,800;

4. Northern Clearing Event 4: $86,400;

5. Northern Clearing Event 5a: $288,000;

6. Northern Clearing Event 5b: $158,400;

7. Southern Clearing Event 6a: $115,200;

8. Southern Clearing Event 6b: $216,000.

Totalling $1,072,800.

Costs

190. The prosecutor seeks an order for payment of its professional costs under s 257B of the Criminal Procedure Act 1986 (NSW) and submits that payment of the prosecutor’s costs is a common aspect of sentencing for Class 5 proceedings and that it is embedded in the general pattern of sentencing for all offences.

191. The defendants have agreed (on a joint and several basis) to pay the prosecutor’s costs in all proceedings in the total amount of $278,857.41. I have considered the defendants’ agreement to pay costs in this amount in my consideration of the appropriate penalties to impose on each of them and I make orders in each proceeding to reflect this agreement.

Moiety of fines

192. The prosecutor seeks an order under s 122(2) of the Fines Act 1996 (NSW) that half of each fine payable by each defendant be paid to the NSW Department of Climate Change, Energy and Water for investigation costs in relation to the investigation of the offences and to support its environmental law enforcement and investigation activities.

193. I consider that the power in s 122(2) of the Fines Act 1996 (NSW) is able to be exercised by this Court in proceedings where a fine or other penalty is imposed for a statutory offence and I find that it is appropriate to exercise that power to direct that one half of the fine imposed in relation to each defendant be paid to the Office of Environment and Heritage.

Orders

194. The orders of the Court are:

In proceedings 2019/00265266:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265266.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $43,200.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265268:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265268.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $43,200.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265270:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265270.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $28,800.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265272:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265272.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $28,800.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265274:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265274.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $136,800.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265276:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265276.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $136,800.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265278:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265278.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $86,400.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265280:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265280.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $86,400.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265282:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265282.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $288,000.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265284:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265284.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $288,000.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265290:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265290.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $115,200.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265292, 2019/00265294.

In proceedings 2019/00265292:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265292.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $115,200.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265294.

In proceedings 2019/00265286:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) in proceedings 2019/00265286.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $136,800.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265288:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265288.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $158,400.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265290, 2019/00265292, 2019/00265294.

In proceedings 2019/00265294:

1. Ronald Lewis Greentree is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265294.

2. Ronald Lewis Greentree must pay a monetary penalty in the sum of $180,000.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Ronald Lewis Greentree is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Ronald Lewis Greentree is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265264, 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292.

In proceedings 2019/00265264:

1. Auen Grain Pty Ltd is convicted of the offence contrary to s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265264.

2. Auen Grain Pty Ltd must pay a monetary penalty in the sum of $216,000.

3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), one half of the fine imposed by Order (2) is to be paid to the Secretary of the NSW Department of Climate Change, Energy and Water.

4. Auen Grain Pty Ltd is to pay the prosecutors costs in the proceedings in the sum of $278,857.41.

5. In respect of Order (4), Auen Grain Pty Ltd is entitled to credit in respect of that sum for any sum provided on behalf of the defendants in proceedings 2019/00265266, 2019/00265268, 2019/00265270, 2019/00265272, 2019/00265274, 2019/00265276, 2019/00265278, 2019/00265280, 2019/00265282, 2019/00265284, 2019/00265286, 2019/00265288, 2019/00265290, 2019/00265292, 2019/00265294.

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Decision last updated: 29 November 2024