Secretary, Department of Planning Industry and Environment v Williams

[2020] NSWLEC 134

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning Industry and Environment v Williams [2020] NSWLEC 134

Hearing dates:

14 August 2020

Date of orders:

14 September 2020

Decision date:

14 September 2020

Jurisdiction:

Class 5

Before:

Pain J

Decision:

See [75] of judgment

Catchwords:

PROSECUTION – sentencing – plea of guilty to breach of National Parks and Wildlife Act 1974 for seed collection in national park – application of s 10 of Crimes Sentencing Procedure Act 1999

Legislation Cited:

National Parks and Wildlife Act 1974 (NSW) ss 2A, 30E, 30J, 156A, 194

Evidence Act 1995 (NSW) s 4

Child Protection (Offenders Registration Act) 2000 (NSW)

Criminal Procedure Act 1986 (NSW) s 257B

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 9, 10, 10A, 22

Cases Cited:

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

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

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

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

Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1

Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28

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

Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52

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

Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144

Plath v Glover [2010] NSWLEC 119

Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202

R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260

R v Mauger [2012] NSWCCA 51

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

R v Paris [2001] NSWCCA 83

R v Peel [1971] 1 NSWLR 247

R v Wilhelm [2010] NSWSC 378

Silvano v The Queen (2008) 184 A Crim R 593; [2008] NSWCCA 118

TMTW v R [2008] NSWCCA 50

Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7

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

Texts Cited:

Judicial Commission of NSW, Sentencing Bench Book

Category:

Sentence

Parties:

Secretary, Department of Planning Industry and Environment (Prosecutor)
Geoffrey Stephen Williams (Defendant)

Representation:

COUNSEL:
N Sulzer, solicitor (Prosecutor)
B Epstein (Defendant)

SOLICITORS:
Department of Planning and Environment (Prosecutor)
O'Brien Winter Partners (Defendant)

File Number(s):

19/348360

Judgment

1. The Defendant has been charged with an offence under s 156A(1)(d) of the National Parks and Wildlife Act1974 (NSW) (NPW Act). He has pleaded guilty and must now be sentenced. A plea of guilty is an admission of the essential elements of the offence. The offence concerns the harvesting of seeds in a section of the Werakata National Park (the Park) known as the Kearsley Dam area (the Site) in November 2017.

National Parks and Wildlife Act 1974 (NSW)

2. Relevant sections of the NPW Act provide:

Part 1 Preliminary

…

2A Objects of Act

(1)   The objects of this Act are as follows:

(a)   the conservation of nature, including, but not limited to, the conservation of:

(i)   habitat, ecosystems and ecosystem processes, and

(ii)   biological diversity at the community, species and genetic levels, and

(iii)   landforms of significance, including geological features and processes, and

(iv)   landscapes and natural features of significance including wilderness and wild rivers,

…

(d)   providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.

(2)   The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.

…

Part 4 Reservation of land

…

Division 2 Management principles

30E   National parks

(1)   The purpose of reserving land as a national park is to identify, protect and conserve areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor or tourist use and enjoyment so as to enable those areas to be managed in accordance with subsection (2).

(2)   A national park is to be managed in accordance with the following principles:

(a)   the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena and the maintenance of natural landscapes,

(b)   the conservation of places, objects, features and landscapes of cultural value,

(c)   the protection of the ecological integrity of one or more ecosystems for present and future generations,

(d)   the promotion of public appreciation and understanding of the national park’s natural and cultural values,

(e)   provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the national park’s natural and cultural values,

(f)   provision for the sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the conservation of the national park’s natural and cultural values,

(fa)   provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the national park that is permitted under section 185A having regard to the conservation of the national park’s natural and cultural values,

(g)   provision for appropriate research and monitoring.

…

30J Nature reserves

(1)   The purpose of reserving land as a nature reserve is to identify, protect and conserve areas containing outstanding, unique or representative ecosystems, species, communities or natural phenomena so as to enable those areas to be managed in accordance with subsection (2).

(2)   A nature reserve is to be managed in accordance with the following principles:

(a)   the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena,

(b)   the conservation of places, objects, features and landscapes of cultural value,

(c)   the promotion of public appreciation, enjoyment and understanding of the nature reserve’s natural and cultural values,

(d)   provision for appropriate research and monitoring,

(e) provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the nature reserve that is permitted under section 185A having regard to the conservation of the nature reserve’s natural and cultural values.

…

Part 14 Miscellaneous

156A Offence of damaging reserved land

(1)   A person must not, on or in land reserved under this Act or acquired under Part 11:

(a)   remove any water other than for purposes authorised by or under any Act or for the purposes of personal use on the land, or

(b)   damage or remove any vegetation, rock, soil, sand, stone or similar substance, or

(c)   damage any object or place of cultural value, or

(d)   cause or permit any removal or damage referred to in paragraph (a), (b) or (c).

Maximum penalty:

(a)   in the case of a corporation—10,000 penalty units, or

(b)   in the case of an individual—1,000 penalty units or 6 months imprisonment, or both.

…

Part 15 Criminal and other proceedings

…

Division 2 General provisions

…

194   Sentencing—matters to be considered in imposing penalty

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

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

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

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

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

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

…

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

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

3. The Prosecutor submitted that subss (a)-(e) are of most relevance to this matter. The Prosecutor submitted the Defendant should be found guilty, an offence should be recorded, a fine should be imposed and a costs order should be made.

4. The Defendant sought an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

Crimes (Sentencing Procedure) Act 1999 (NSW)

5. Relevant sections of the CSP Act provide:

Part 2 Penalties that may be imposed

…

Division 3 Non-custodial alternatives

…

9   Conditional release orders

(1)   Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if—

(a)   the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under section 10 (1) (b).

(2)   In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors—

(a)   the person’s character, antecedents, age, health and mental condition,

(b)   whether the offence is of a trivial nature,

(c)    the extenuating circumstances in which the offence was committed,

(d)   any other matter that the court thinks proper to consider.

Note. These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction.

(3)   To avoid doubt and without limitation—

(a)   a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and

(b)   a conditional release order with a conviction may be made as an alternative to imposing a fine.

(4)   This section is subject to the provisions of Part 8.

10   Dismissal of charges and conditional discharge of offender

(1)   Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—

(a)   an order directing that the relevant charge be dismissed,

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

(c)   an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph.

(2)   An order referred to in subsection (1) (b) may be made if the court is satisfied—

(a)   that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b)   that it is expedient to discharge the person under a conditional release order.

…

(3)   In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a)   the person’s character, antecedents, age, health and mental condition,

(b)   the trivial nature of the offence,

(c)   the extenuating circumstances in which the offence was committed,

(d)   any other matter that the court thinks proper to consider.

…

(5)   A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

10A   Conviction with no other penalty

(1)   A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2)   Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

Statement of agreed facts

6. The parties’ agreed statement of facts (SOAF) provides (photographs omitted):

Background

1.   The NSW National Parks and Wildlife Service (NPWS) is an agency of the Department of Planning, Industry and Environment (DPIE) and is responsible for the care, control and management of land in NSW reserved as National Parks.

2.   Werakata National Park (the Park), being a national park within the meaning of the National Parks and Wildlife Act 1974 at all relevant times, is located in the Lower Hunter area of NSW near the township of Cessnock.

3.   The Kearsley Dam area of the Park (the Site) is adjacent to the Cessnock suburb of Kearsley and was received as national park on 14 December 2005.

4.   The Site was previously a mine, which had been replanted after 2011 with Acacia parvipinnula (silver-stemmed wattle), a native shrub/tree that is 2- 10 metres high with smooth, silvery or bluish-grey bark and bipinnate foliage.

5.   The Site was sometimes accessed illegally for off-track four-wheel driving, rubbish dumping and firewood collection.

The defendant

6.   At all relevant times, the defendant operated a business as a sole trader, trading as Diversity Native Seeds, which supplied locally sourced seeds for mining rehabilitation in the Hunter Valley.

Initial notification

7.   On 15 November 2017, a member of the public notified NPWS that the previous day he had observed recently cut trees and black tarpaulins on the ground with foliage stacked on them at the Site.

8.   NPWS subsequently conducted an investigation in relation to the matter.

The offence

9.   Between about 7 and 15 November 2017, three employees of the defendant collected Acacia parvipinnula seeds from approximately 603 plants (the plants) across an area of approximately 3.5 hectares at the Site.

10. The seed collection involved the cutting of branches of the plants containing seed pods, then laying branches on sheets, so that the seed pods dry and split open.

11.   Of the plants that were damaged, approximately:

a.   352 were felled or completely pruned (“felled or completely pruned” refers to the plant being felled, leading stem/s removed and less than 25% of vegetation remaining);

b.   117 were heavily pruned (“heavily pruned” refers to more than 50% of the plant having been removed);

c.   134 were pruned (“pruned” refers to only branches having been removed, with majority of the plant remaining).

12.   Annexure A contains four photographs depicting some of the damage.

13.   The defendant instructed Garry Neale, his employee and manager, to collect the seeds from the Site, including by providing a map identifying the Site.

Impacts

14.   The seed collection activity resulted in the damage of a significant proportion of the plants and temporarily modified the composition and ecological functioning of the stand.

15.   Pursuant to direction from DPIE, all seeds collected were returned to the Site.

16.   Of the plants that were damaged, sampling indicates that approximately:

a.   327 (or 54% of total) are dead (“dead” refers to no live vegetation being present);

b.   128 (or 25% of total) are resilient (“resilient” refers to less than 60% of vegetation is senescent/experiencing dieback);

c.   80 (or 13% of total) are regenerating (“regenerating” refers to new shoots or sprouts appearing despite damage); and

d.   48 (or 8% of total) are senescent (“senescent” refers to more than 60% of vegetation is senescent/experiencing dieback).

17.   Sampling of an area of the Site that was not harvested by the defendant revealed similar die off, resilient, regenerating and senescent rates as for the harvested area, except that the harvested area contained a higher proportion of plants that were regenerating, which could be a result of the higher density of shrubs/trees in those areas.

18.   The seed collection activities are likely to have impeded the growth of some of the plants.

19.   The seed collection activities resulted in a minor temporary loss of habitat resources, including food (nectar, pollen, sap, leaves and wood), refugia (foliage, branches for nests, perches and dreys) shade and protection from the elements.

20.   It is unlikely that the seed collection activities would have caused a significant impact on any species, population or ecological community listed under the Biodiversity Conservation Act 2016 or the Environment Protection and Biodiversity Conservation Act 1999.

Commerciality

21.   Approximately 45 kilograms worth of Acacia parvipinnula seeds were collected.

22.   The defendant sells the seed for approximately $200 per kilogram.

7. A map of the Site was provided after the conclusion of the hearing. The area of the Site was advised to be 86.84 hectares within approximately 188 hectares of the Park.

Evidence

Defendant affidavit

8. The Defendant swore an affidavit on 17 June 2020.

Education, experience and expertise

9. The Defendant holds an applied science degree in horticultural science and a master’s degree in environmental horticulture. He was the first student to ever complete this degree in Australia and his research was partly funded by an award received from the Queen Elizabeth Trust for Young Australians. After completing this degree, he worked for The Permaculture Research Institute at Tyalgum and then implemented a sustainable agriculture project in Papua New Guinea following the 1998 Tsunami. His expertise has been called on outside his direct role in seed supply, including a presentation at a planning assessment commission and a written report for the Roads and Maritime Service on seed supply issues (Affidavit, G Williams, 29 June 2020, pars 1-10).

Development of Diversity Native Seeds and the Sarana property

10. Diversity Native Seeds (DNS) is the Defendant’s business, established in 2001. It supplies bulk quantities of high-quality native plant seeds for mine rehabilitation and other ecological restoration projects using direct seeding. Direct seeding is the practice of sowing seeds directly into the ground as opposed to planting seedlings. It is cheaper, more successful and allows a more diverse ecosystem to be created in comparison to planting seedlings. DNS has become the main supplier of native seeds in New South Wales (NSW) for such ecological restoration projects using endemic species which are required by the Prosecutor amongst other agencies. DNS also supplies seeds to nurseries and various conservation and land-care groups. DNS is the second largest private employer in Coonabarabran and a major contributor to the struggling regional economy (Affidavit, G Williams, 29 June 2020, pars 11, 14-15).

11. The Defendant and his brother own a property known as “Sarana” near Coonabarabran, purchased in 2004, where the Defendant now resides for the purposes of his native seed business and to create a nature conservation reserve on private land. They have conservation agreements with both the NSW and federal governments for the protection of threatened ecosystems at Sarana. They have established about 200 hectares of native vegetation on cleared parts of the property, including planting 27,000 tree seedlings and 18 kilometres of seeding rows (Affidavit G Williams, 29 June 2020, pars 12-13).

12. The Defendant is currently building a visitor centre at the premises of DNS on the main street in Coonabarabran to display unique aspects of the geology, plants, animals and people of the region. He is also establishing a not-for-profit entity, “The Habitat Farm”, to focus on biodiversity conservation projects. He also donates food (eucalyptus foliage) to a koala rescue sanctuary and is designing his own sanctuary for endangered brush tail wallabies at another property adjacent to the Warrumbungle National Park, in cooperation with the Office of Environment and Heritage brush tailed rock wallaby recovery team. DNS also donates seeds to schools and academic institutions for education purposes. The Defendant’s photographs have been used by various not-for-profit and government projects, including by the Prosecutor in a workbook being developed for use by high school teachers to educate students about endangered species (Affidavit G Williams, 29 June 2020, pars 16-18).

Seed supply to the mining industry in response to regulation

13. Large-scale direct seeding projects are mostly undertaken by the mining industry. Environmental regulation in the mining industry is complex. The regulations broadly require mines to rehabilitate disturbed areas with native species from specific local ecosystems that existed pre-mining with seeds from local provenance sources, so that local variation in genetics among populations is accounted for. The final ecosystem must meet benchmarks concerning structure, cover and stability. It is widely acknowledged among rehabilitation practitioners that sourcing high quality native seeds is complex and difficult. DNS has tackled the problem of native seed supply not only in terms of quantity. The work DNS does is sophisticated, high-quality ecological work. A typical rehabilitation mix by DNS contains up to 70 species which is completely unprecedented in the mining industry and surpasses the diversity achieved in most natural resource management projects. The floristic diversity includes the full spectrum of plant life form types, such as native trees, shrubs and grasses. DNS has pioneered the harvest of many species that were previously unavailable, including many understorey wildflower (forb) species. In addition to mine site rehabilitation, DNS has helped restore over 3,000 hectares of grass and forb understorey diversity in white box woodland, supplied specialised seed mixes for the establishment of feeding zones for the endangered glossy black cockatoo, and supplied other specialised mixes for the endangered regent honeyeater (Affidavit G Williams, 29 June 2020, pars 19-23).

14. When DNS started to engage with the mining industry about 12 years ago, the state of native seed supply was in disarray and the quality of many projects was extremely poor. The Defendant’s technical expertise regarding species selection and rehabilitation techniques have been a reason for the success of DNS. The Defendant has developed a set of documents, strategies and procedures known as the “Diversity Native Seed Mix Design System” (Affidavit G Williams, 29 June 2020, pars 24-27).

15. DNS has had a hugely positive impact on the industry and is responsible for the creation of 3,000 hectares of ecological restoration per annuum (about three quarters of the industry total of 4,000 hectares). The primary improvements to restoration by DNS are: (i) an average species seed mix of 50, as opposed to the usual mix of 10 pre-DNS; (ii) supply of 40 new species never supplied before; (iii) supply of trees, coloniser shrubs, long-lived shrubs, sub-shrubs, grasses, sedges and forbs, not just trees; (iv) reliability and consistency in floristic diversity, sowing rates and structural balance; and (v) providing a high proportion of locally sourced species, quality assurance and technical support (Affidavit, G Williams, 29 June 2020, par 28).

Seed permits and difficulties in sourcing seed

16. The difficulties in sourcing native seeds include: (i) the lack of large populations allowing commercial harvest; (ii) drought conditions affecting plant health and seed production; (iii) long time lags between natural flowering and fruiting cycles; and (iv) species that produce small quantities of seed. It can be extremely difficult and confusing to get a permit to harvest from endangered ecological communities (EECs). In the Defendant’s experience, gaining permits to harvest from EECs is dysfunctional. Many times he has attempted to do so by contacting the Prosecutor and has been shunted back and forth between offices by people claiming that the permit type they oversaw was not the type he should apply for. Even if staff had been able to help him proceed, the terms of the permits would have made harvest impossible. Dates, times and single locations for single species had to be applied for in advance which, given the vagaries of weather and other natural factors, would usually make it impossible to provide that kind of information. Gaining permission from other government agencies for non-EEC harvest has also proven difficult (Affidavit, G Williams, 29 June 2020, pars 30-33).

DNS seed production and the Warrumbungle fire

17. To try to ameliorate these difficulties, the Defendant established extensive seed production sites at his own property, Sarana. The DNS seed sites had begun to produce significant quantities of seed and to reduce DNS’s reliance on seed harvested from other areas. However, in January 2013 Sarana was destroyed by the Warrumbungle fire. Seed stock and seed drying greenhouses were lost, destroying seed producing capacity for many years. The fire had a profound emotional and financial effect on the Defendant (Affidavit, G Williams, 29 June 2020, pars 35-38).

Description of events at the Kearsley site

18. In the Hunter Valley there are few large private properties from which to seek permission to harvest seed. At considerable cost of time, energy and money, DNS staff travel to the Hunter Valley in response to government regulations, as an enormous amount of rehabilitation is required there due to mining. The devastation of the Warrumbungle fire contributed to the need to search for seeds in new, unfamiliar areas. In October 2016, seeking out an area to harvest seeds specifically for Hunter Valley mine site regeneration, the Defendant discovered the Site. He was unfamiliar with the area. He believed the Site was a poorly regenerated mine. Other than the Acacia parvipinnula plants (and another acacia species) the Site was populated by weeds. He thought it was an ideal seed collection area, and it never occurred to him that it could be a national park. This was because there was no signage, the site had been highly disturbed by clearing and removal of topsoil, it appeared the Site was being used for four-wheel driving, motorbike riding, dog walking and rubbish dumping, the gate was in a state of disrepair, and the Site contained many non-native weeds (Affidavit G Williams, 29 June 2020 pars 39-43).

19. The Defendant presumed the Site was council land and he contacted Cessnock Council. After a series of phone calls, he received information that the Site may not be council land and may be Crown land. He decided to proceed with the seed harvest even though he did not have an answer as to who owned the land. He regrets this decision but there were many related contextual factors that caused him to make that decision, including his previous experience trying to gain approvals, the narrow timeframe during which the seed would ripen, pressure to harvest seeds on which his customers rely for their government-mandated rehabilitation requirements, the need to give his staff ongoing work, having no alternative seeds to harvest at the time, and believing the harvesting activities may improve the Site. He instructed his staff to undertake the harvesting carefully and to be sure not to engage in clearing (Affidavit G Williams, 29 June 2020 pars 44-48).

20. Whilst the harvesting was underway, the Defendant received a phone call from a staff member who informed him the Site was within a national park. The Defendant later spoke to a national parks ranger. He apologised for the harvesting and offered to arrange a proper comprehensive ecological rehabilitation of the Site at his cost. He has not heard anything further regarding this offer to properly regenerate the Site (Affidavit, G Williams, 29 June 2020, pars 49-52).

Technical analysis of the ecological impact of native seed harvesting with specific reference to Acacia parvipinnula at Kearsley

21. The Defendant stated that native seed harvesting via pruning or lopping is not ecologically damaging or destructive. For broadscale direct seeding projects to occur in NSW, native vegetation needs to be pruned or lopped to obtain sufficient seed. Harvesting by hand-picking individual seed pods can be done, however for the quantities required this would need thousands of workers (Affidavit, G Williams, 29 June 2020, par 55).

22. The Defendant did not read pars 57 and 58 of his affidavit. I note that the Prosecutor objected to pars 59, 60, 61, 66, 67 and 68 of the Defendant’s affidavit summarised below, on the basis they purported to be expert opinion evidence. If read they should be given little weight, according to the Prosecutor, as the Defendant is not an independent expert witness. I consider this issue below in [44].

23. The Defendant deposed that to understand the potential impact of seed harvesting, one must understand the lifecycle and ecology of the species in question. The forest type growing nearby the Site has a regular pattern of ecological succession that follows disturbance (usually fire). After disturbance, rapid germination of primary colonising shrubs occurs. During the lifetimes of these shrubs, their seed enters the soil seed bank and remains dormant there until the next cycle of disturbance. The Acacia parvipinnula is a short-lived, primary colonising species. Its short lifespan is why it is commonly referred to as a “shrub” despite its woody trunk. The plants harvested were about 6-8 years old at the time of harvest and would have had a total lifespan of 10-12 years. The plants harvested would have been dead within a period of four years. The harvest left the majority of the plants in the area completely untouched (Affidavit G Williams, 29 June 2020, pars 59-61).

24. On 31 January 2020 the Defendant inspected the site and observed that the population was in a state of senescence. Individual plants were dead or dying. Many of the plants still living were those pruned by DNS. This was not surprising to the Defendant as short-lived plants often respond positively to pruning. Although some individual plants were still alive, the overall population was in a complete state of physical collapse (Affidavit, G Williams, 29 June 2020, pars 62, 66).

25. During the 6-8 years the plants had been alive up to the time of harvest, the plants would have had at least three seed crops where a very large quantity of seed would have gone into the soil seed bank. Redundancy in acacia seedbanks is often extremely large. Much seed falls to the ground during the harvest process. As a result, the amount of seed already deposited into the soil seed bank in the harvested area would be far more than required for reproduction of the population. The Defendant’s recent observation on 31 January 2020 was that most of the plants at the Site were senescing, the harvested population of the plants had the same proportion of dead plants as the untouched population, and many individual plants were left to act as a habitat corridor for fauna (Affidavit G Williams, 29 June 2020, pars 67-68).

Measures undertaken to eliminate risk of a similar incident occurring again

26. The Defendant has taken the following steps to ensure that the mistake made at the Site will not be repeated:

1. Title searches to obtain lot and deposited plan numbers of properties and obtain the details of property owners.

2. Making large investments in cultivated seed production areas, including in March 2019 preparation and sowing of over 100 hectares of land previously used for cereal cropping with over 50 native seed mixes.

3. Ongoing communication with mining companies and other private landowners to stress the importance of cooperation from stakeholders who own property with native seed resources. Where possible, DNS has incorporated permission to harvest seed from offset and leasehold properties into supply agreements with mining companies (Affidavit, G Williams, 29 June 2020, pars 69-72).

Final comments

27. The impact of the mistaken harvest in the national park has been significant for the Defendant and for DNS. Estimated losses include: (i) labour, vehicle costs and accommodation for the two weeks of harvesting of $8,000; (ii) lost income for the seeds of $12,500; (iii) the cost of finding alternative seeds of about $15,000; (iv) the cost of time spent in meetings, responding to reports and requests for information from the Prosecutor and travelling to Newcastle for interviews of about $15,000; and (v) legal costs (Affidavit, G Williams, 29 June 2020, par 73).

28. The Defendant said he never contested or denied the fact that he directed his staff to harvest at the Site. He very much regrets the incident and has made his remorse clear at all points of the process that unfolded (Affidavit, G Williams, 29 June 2020, pars 74-75).

Defendant employee affidavit

29. The Defendant read the affidavit of Ms Rechelle Hynds sworn 17 June 2020. Ms Hynds is an employee of DNS. She deposed the seed collection was undertaken by three DNS employees, at the Defendant’s direction. It involved the cutting of branches of the Acacia parvipinnula plants containing seed pods, then laying those branches on groundsheets for the pods to dry and split for collection. During the process of the seed collection it was brought to the attention of DNS staff by a national parks ranger that the Site was in fact a national park. Seed collection stopped immediately and the DNS employees returned the amount of seed that was in the back of one of their work vehicles to the harvest site and tipped all seeds and branches from the groundsheets that were still drying back onto the ground.

Personal references

30. Three personal references prepared in support of the Defendant were provided to the Court. The reference of Mr Andrew Freebairn, principal of Forsyths (a financial services business) stated that Mr Freebairn was aware that the Defendant had been charged with a breach of s 156A of the NPW Act. Mr Freebairn said that the Defendant is dedicated to sustaining and improving the natural environment and committed to sharing his knowledge with others. Mr Freebairn knows the Defendant as a committed conservationist, demonstrated recently through his efforts to establish a charity focused on preservation and rehabilitation of habitat for threatened and endangered species.

31. The reference of Ms Jacinta Lowrie, owner of a business neighbouring DNS in Coonabarabran, was prepared with knowledge of the court proceedings for the accidental harvesting of native seeds. Ms Lowrie described the Defendant’s support of her business, employment by DNS of members of the local community, and the transformation of the DNS premises from a former car dealership carpark into a native garden for the public to enjoy.

32. The reference of Mr Michael Sutherland, General Manager NSW for Alkane Resources Ltd (Alkane), was prepared with knowledge that the Defendant had been charged with a breach of s 156A of the NPW Act. Alkane is a company that finds and develops mineral resources. Mr Sutherland wrote that, partially because of the Defendant and the work of DNS, Alkane leaves the land it owns in a better state than before it was mined. DNS is one of few organisations that performs this kind of work. Mr Sutherland is not aware of a more professional service in NSW than that offered by DNS. Mr Sutherland said that when the Defendant states he was unaware that the Site was a national park, he is being completely truthful. The Defendant is a good faith actor who genuinely tries to help the government and mining industry achieve their goals. Sourcing the right species and provenances in sufficient quantity for mining rehabilitation is technical and difficult. DNS creates positive environmental outcomes and generates economic benefits for its rural community.

Objects of Sentencing

33. Section 3A of the CSP Act states:

Part 1 Preliminary

…

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,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

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

(f)   to denounce the conduct of the offender,

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

34. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

35. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich at 281.

Objective seriousness of the offence

Maximum penalty

36. In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701:

The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided...

…the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

37. The maximum penalty for an individual charged under s 156A of the NPW Act is $110,000 (1,000 penalty units) or imprisonment for up to six months. As submitted by the Prosecutor, this maximum penalty demonstrates the seriousness with which Parliament views such an offence.

Nature of the offence

38. A fundamental consideration for environmental offences is the extent to which the defendant’s conduct offends against the legislative objectives expressed in the offence (R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15]). The objects of the NPW Act are achieved in part through the creation of a reserve system which makes provision for national parks and historic sites, state conservation areas, regional parks, nature reserves and karst conservation reserves. The purpose of reserving land as a nature reserve is set out in s 30J(1) of the NPW Act. Section 30E(1) identifies the purpose of reserving land as a national park.

39. The Defendant's conduct resulted in cutting branches which contained Acacia parvipinnula seed pods from approximately 603 plants across an area of approximately 3.5 hectares at the Site. The Site is 86.84 hectares within the approximately 188 hectares of the Park. As further discussed under environmental harm and significance of reserved land below, the area where seed collection took place had none of the features that ss 30E(1) or 30J(1) of the NPW Act refer to. The Defendant submitted that the offence has not caused any of the objects set out in s 2A of the NPW Act to not be achieved. The seed collection did not impact on:

1. the conservation of nature, in the sense that it did not cause any deleterious effect on habitat, ecosystems or ecosystem processes, biological diversity, landforms or landscape;

2. any matter of cultural value;

3. the fostering of public appreciation of the site, given it was already used by the public as a motor-sport recreation area and rubbish dump; or

4. the management of the land, which was, it appears, largely unmanaged. Similarly, while the Prosecutor has referred to s 30J(1) of the NPW Act, it is noted that the purpose of reserving land had arguably not been achieved at the Site.

40. The question whether achievement of the objects of the NPW Act was harmed by the offence will be further considered below, as that matter is informed by the extent of environmental harm caused by the offence and the significance of the reserved land.

41. Section 194(1) of the NPW Act specifies matters to be considered when imposing a penalty.

Extent of harm, s 194(1)(a)

42. The Site was previously a mine, which had been replanted after 2011 with Acacia parvipinnula (silver-stemmed wattle), a native shrub/tree that is 2-10 metres high with smooth, silvery or bluish-grey bark and bipinnate foliage. The SOAF states in relation to harm that, firstly, the seed collection activity undertaken by the Defendant resulted in damage of a significant proportion of plants (over 600) and temporarily modified the composition and ecological functioning of the stand. Secondly, the sampling of an area from the Site that was not harvested by the Defendant revealed similar die-off, resilient, regenerating and senescent rates for the harvested area, except that in the harvested areas regeneration was slightly higher, which could be a result of the higher density of trees in those areas. The SOAF identifies the plants that were damaged, sampling indicating the percentage of dead, resilient, regenerating and senescent plants.

43. Approximately 45 kilograms of Acacia parvipinnula seeds were collected by the Defendant’s employees and returned to the Site. The Defendant submitted that the only harm was the physical cutting of the tree in the same way that pruning damages a tree. Sampling of an adjacent site showed similar levels of dead, resilient, regenerating and senescent trees or shrubs, with a higher level of regeneration amongst the harvested plants. The Defendant submitted the seed collection activity was of benefit to the environment as:

1. The site was of low ecological value to begin with, being a somewhat regenerated quarry, used for off-track four-wheel driving, firewood collection and as a dumping ground.

2. Regardless of the exact timing and cause of their senescence, once these Acacia parvipinnula plants were mature, they had fulfilled their ecological function in terms of contribution of organic matter and nitrogen to soil, alteration/improvement of soil structure and deposition of seed into the soil seed bank.

3. Many more plants were left untouched than were pruned during the seed collection.

4. Many of the pruned plants are regenerating and actually likely to survive longer because they have reverted to a juvenile phase in response to pruning.

5. The small portion of the seed that was actually removed from the Site was returned to the Site and spread. No other parts of the plants were removed from the Site.

6. Other than physical cutting to the plants, there is no actual damage or harm caused to the Site in an ecological sense.

44. I accept the Defendant’s submissions immediately above in light of the Defendant’s evidence. As already noted above in [22], the Prosecutor submitted the Defendant’s opinion of the impact of the offence at pars 59-66 of his affidavit (above in [23]-[25]) should be given little weight as it purported to be expert opinion which does not satisfy the expert witness code of conduct, given that he is the Defendant inter alia. Under s 4(2) of the Evidence Act 1995 (NSW) the law of evidence only applies in sentencing proceedings if a court so directs. No such order has been made. It is not necessary that the Evidence Act be satisfied in order for the Defendant’s evidence to be given weight. The Defendant’s affidavit establishes his substantial expertise in the complex area of native seed collection gained over an extensive working life. His business appears to be the industry leader in NSW. I consider that his opinion should be given weight. Consequently, the Prosecutor has not established that this seed collection impacted on the ecosystem in a way which caused any ecological harm or is incompatible with the protection and conservation of the national park. The physical harm caused was transient.

Significance of reserved land, s 194(1)(b)

45. The Park is a national park within the meaning of the NPW Act located in the Lower Hunter area of NSW near the township of Cessnock. The Site is adjacent to the Cessnock suburb of Kearsley and was reserved as national park on 14 December 2005. As already noted, the Site was previously a mine, replanted after 2011 with Acacia parvipinnula (silver-stemmed wattle). Formal access into the Site is through a locked gate at the eastern end of Caledonia Street, Kearsley. No evidence of signage at the location of the offence is in evidence.

46. While reserved land is, as a matter of general principle under the NPW Act, important for conservation and protection purposes, it is clear from the affidavit of the Defendant that the part he viewed and where the seed collection took place was in poor ecological condition with no obvious management of undesirable activities like rubbish dumping and trail bike riding. The characteristics of a nature reserve intended to be protected under s 30J(1), which include outstanding, unique or representative ecosystems, species, communities or natural phenomena to enable them to be managed in accordance with subs (2), similarly in relation to national parks under s 30E(1), do not appear to be represented by the area of the Site where seed collection took place.

47. As already noted above in [40], whether the objects of the NPW Act have been harmed, the extent of environmental harm caused by the offence and the significance of the reserved land are related matters in this case. I accept the Defendant’s submissions immediately above, and in [39] (nature of offence) and [43] (harm caused) above, in light of the Defendant’s evidence at [21]-[25] above, and find that the offence did not adversely impact on the achievement of the objects of the NPW Act nor adversely impact on the reserved land in light of the limited environmental harm caused, being solely the physical damage to plants in what was a degraded area.

The practical measures that may be taken to prevent, control, abate or mitigate that harm, s 194(c)

48. As the Prosecutor submitted, there were clearly measures that could have been taken to ensure that the status and ownership of the Site was known before entry. Measures have been implemented by the Defendant since the offence (summarised above in [26]) to ensure that the ownership of land is known in advance of seed collection activities.

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, s 194(d)

49. The Defendant submitted that no ecological harm was caused by the seed collection and this is borne out by the SOAF at par 17 and the Defendant’s affidavit above at [21]-[25].

The extent to which the person who committed the offence had control over the causes that gave rise to the offence, s 194(e)

50. The Defendant had control over the causes of the offence.

State of mind

51. While the offence is one of strict liability and mens rea is not an element of the offence, the state of mind of a defendant in the commission of the offence can be relevant to the sentencing process. The extent to which the offence was committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Plath v Glover [2010] NSWLEC 119 at [36].

52. The Prosecutor submitted the Defendant had been both negligent and reckless in the criminal sense, which the Defendant denied. In Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 I held at [81]:

[81] ... in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).

53. While I have trouble accepting the Defendant’s submission that his actions were accidental, given the error occurred due to inadequate inquiries being made, I accept that had he known the Site was a national park he would not have instructed his employees to enter onto it for seed collection. It did not look like a national park as identified in the Defendant’s affidavit and was not signposted in this location. The Defendant’s state of mind is not an aggravating factor on sentence.

Reasons for committing the offence

54. The seed collection was undertaken as part of DNS’s usual business. The Acacia parvipinnula seed was required for regenerating mine sites in the Hunter Valley area, where specific endemic native species are required by mining activity regulation. The difficulties of harvesting sufficient seeds are identified in the Defendant’s affidavit at pars 30-33 (summarised above in [16]). The Defendant submitted that DNS would have ideally used seed from the plantation area at Sarana had that area not been destroyed by fire. The Defendant sells the seed for approximately $200 per kilogram.

Conclusion on objective seriousness of the offence

55. Considering other s 156A cases, this case is unlike Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52 (Coffs Harbour Hardwoods), Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 (Vaccount) and Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 (Leda) referred to by the Prosecutor. In Coffs Harbour Hardwoods the defendant pleaded guilty to an offence under s 156A that involved logging operations which impacted 21 wattle plants in a nature reserve, found by Lloyd AJ to be willful and deliberate, at [34]. The defendant was convicted and a fine of $40,000 was imposed. In Vaccount Pepper J found the defendant company, which had pleaded guilty, was negligent but not reckless for the s 156A offence of felling 503 trees in a national park, at [101]-[102]. The defendant in that case honestly held the mistaken belief that the area being logged was private property not a national park. The defendant was convicted and a fine of $100,000, discounted by 27 per cent, was imposed. In Leda I accepted that the clearing of between 3,200 and 3,840 square metres of a nature reserve resulting in damage to soil and vegetation resulted from a mistake, not negligence, at [42]. Contractors performing clearing work on the defendant company’s land mistook the location of the boundary between the property and the nature reserve. The defendant was convicted and fined $32,500, and was subject to orders for rehabilitation and publication.

56. The Prosecutor submitted that the Defendant's conduct undermined the legislative objectives and statutory scheme established under the NPW Act and should be viewed as objectively serious. For the above reasons I do not agree. As the Defendant submitted, the offending was at the low range end of low objective seriousness.

Defendant’s application for s 10(1)(a) CSP Act order

57. An order under s 10(1)(a) of the CSP Act is sought by the Defendant. The Defendant submitted that, as observed in R v Mauger [2012] NSWCCA 51 (Mauger), a drug supply charge, at [18], “section 10 and its predecessors reflect the willingness of the legislature and the community to provide offenders with an opportunity in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws...”.

58. The Defendant’s counsel argued that the Defendant’s antecedents, namely his particular knowledge and unique business and his non-profit activities in the field of conservation, meant that he was well aware that the seed collection activities would not cause harm apart from the immediate physical cutting of trees leading to regrowth. He has placed 100 hectares of his 550-hectare property under permanent protection. He can be considered a champion of the environment given his substantial business credentials and training devoted to understanding the science of regeneration and conservation. His seed collection business is of benefit to the wider community in encouraging regeneration using endemic local plants.

59. The Defendant clearly demonstrated remorse, immediately at the time of becoming aware of the problem, in fully co-operating with the investigation and offering to regenerate the area with seed stock at his own cost.

60. Despite the large area of the Site, the Defendant submitted that the offence might be seen as trivial (s 10(3)(b) CSP Act) in the circumstances. The commission of the offence was not deliberate and there has been no demonstrable environmental harm and there may have been benefit.

61. The Defendant submitted there are significant extenuating circumstances (s 10(3)(c)) as outlined in the Defendant’s affidavit. The Defendant has been extra-curially punished for the offending, a relevant consideration in the exercise of discretion conferred by s 10: R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260 at [49]-[50]; TMTW v R [2008] NSWCCA 50 at [52], applied in Mauger at [21]. He has not profited in any way, has incurred significant expense (approximately $50,000 plus legal costs) and has experienced the stress of the proceedings. A recorded conviction may impact significantly on the Defendant obtaining clients in his important regeneration work.

62. In relation to s 10(3)(d), it is proper to consider the whole of the circumstances of the offending in the context of the Defendant’s business, his work as a whole, and the loss he suffered during the Warrumbungle fire. These factors weigh substantially in his favour.

Section 10(1)(b) order made

63. The Defendant seeks an order under s 10(1)(a). Alternatively, an order can be made under s 10(1)(b) if under subs (2)(a) a court considers that it is inexpedient to impose any more than nominal punishment and that it is expedient to release a person on a conditional release order, compliance with which means that no conviction is recorded. Regardless of whether s 10(1)(a) or (b) is considered, the four matters in subs (3) must be considered. I do not need to be satisfied before making an order under s 10(1) of every matter in s 10(3), they being disjunctive and non-exhaustive per R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing) cited by me in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [53]. I note that the following appears in the Judicial Commission of NSW, Sentencing Bench Book (Sentencing Bench Book) at [end of 5.030] which suggests overall support for the approach in R v Paris:

R v Paris is to be contrasted with the majority view in R v Piccin (No 2) [2001] NSWCCA 323 at [22] where the court held it is necessary to find that the offence is trivial before a s 10 order can be made. But in Chin v Ryde City Council [2004] NSWCCA 167, the court accepted the appellant’s submission, based upon Hulme J’s dissenting opinion in R v Piccin (No 2) at [25]. Hodgson JA said, in Chin v Ryde City Council, at [38]: “… s 10 may be applied even if the offence is not found to be trivial”.

In Morse v Chan, above at [65], Schmidt J observed that the approach to the construction of s 10(3) by the majority in R v Piccin (No 2) does not accord with the High Range PCA Guideline Judgment at [131] (quoted below).

64. Considering the matters in s 10(3)(a), the Defendant’s antecedents are that he is 49 years old and engaged in the business of native seed supply through DNS. He entered an early plea of guilty, expressed contrition and offered to rehabilitate the area where seed collection took place, has no prior convictions and is highly unlikely to reoffend.

65. The offence is not trivial (subs (3)(b)), given that there was physical damage to over 600 plants in a national park no matter how degraded the park. Having said that, nor did any ecological damage arise from the offence, possibly to the contrary, given that an improvement in the regeneration of the plants cut may have resulted from the offence. The offending was at the low range end of low objective seriousness, as I found above in [55].

66. I accept that the Defendant did not profit from the offence, the harvested seeds having been returned to the Site. The Defendant’s affidavit identifies the substantial costs to his business resulting from the offence, summarised in [27] above. While his counsel submitted this was extra-curial punishment, it is not in any generally accepted category of “loss or detriment imposed on an offender by persons other than the sentencing court for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence”: Silvano v The Queen (2008) 184 A Crim R 593; [2008] NSWCCA 118 at [29]. While I accept that the Defendant has suffered financial loss, I am not sure that qualifies as extra-curial punishment which is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm [2010] NSWSC 378 per Howie J at [21] (see Sentencing Bench Book at [10-520]).

67. The potential for loss of business if the Defendant is convicted was also relied on as extra-curial punishment. Professional ramifications experienced by an offender discussed at Sentencing Bench Book [10-520] (pp 5593-5594) are directed to circumstances where an offender loses his or her employment or profession, such as a license to practice a profession. Some cases have held that extra-curial punishment cannot arise when the loss of employment is a natural consequence of a conviction, see Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28 at [76]. Whether potential loss of business amounts to extra-curial punishment in the absence of any evidence is difficult to weigh up. It is not put that the Defendant will lose his whole business. As a matter of common understanding, such a result may occur given the nature of the Defendant’s business. The cases identified by the Defendant, R v KNL and TMTW v R, contemplated whether registration under the Child Protection (Offenders Registration Act) 2000 (NSW) could be properly characterised as extra-curial punishment entitling the defendant to mitigation of penalty. Latham J in R v KNL observed that “the cases which have thus far considered the notion of extra-curial punishment have been restricted to physical and/or financial penalties sustained by offenders, or loss of employment in which the offender was engaged or qualified to be engaged, arising out of the commission of the offence” (at [52]). I accept there is potential for loss of business as a result of the offence but hesitate to classify that potential as extra-curial punishment.

68. While the Defendant’s counsel submitted there were extenuating circumstances, no details other than relying on the circumstances of the offence were identified. It is hard to see the offence as arising in extenuating circumstances. The only possible explanation is that seed stock of the appropriate kind is hard to locate and access as the Defendant identifies in his affidavit summarised in [18] above. The offence occurred in the course of the Defendant’s business activities. While the environmental benefits of that business can be accepted, it remains fundamental to the lawful conduct of the business that the Defendant knows whose land he is operating on and that is not generally a difficult matter to establish after appropriate enquiry.

69. I have found that the achievement of the objects of the statutory scheme have not been harmed by the offence and the reserved land was not adversely impacted in [44] above. Other matters in that context that are particularly pertinent (s 10(1)(d)) are the nature of the Defendant’s business which enables complex regeneration of mine sites using endemic plants which are difficult to harvest in which the Defendant’s company is a leader in NSW, as attested to in his affidavit and summarised above in [10], [13]-[16]. DNS performs high-quality ecological work, with the Defendant’s technical expertise regarding species selection and rehabilitation techniques a driving factor in the business’s success (see [13]-[14] above). The establishment of such a business has had benefits for the wider community in ensuring that adequate revegetation of former mining land occurs with endemic native vegetation, creating a positive impact on the industry (see [15] above).

64. Another relevant matter to consider is that the Defendant has been involved in substantial conservation work over most of his working life, including in the context of the DNS business of supplying local native seeds to the mining sector to enable regeneration as required by regulation, as well as restoration of habitat for endangered species (see [13] above), donation of foliage to a koala sanctuary (see [12] above), and development of his own not-for-profit biodiversity conservation entity (see [12] above). The Defendant has also dedicated a portion of his own property for conservation purposes (see [11] above).

65. Two of the personal references, summarised in [30] and [32] above, attest to the substantial and successful conservation activities undertaken by the Defendant within his business and beyond. The additional reference, summarised in [31] above, attests to the important contribution of the DNS business to the economy in Coonabarabran.

66. The Court must apply the instinctive synthesis approach to sentencing by identifying all the relevant factors, discussing their importance and making a “value judgment as to what is the appropriate sentence given all the factors of the case”: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J. Weighing up all these various factors, I do not consider the application of s 10(1)(a) is appropriate. An order can be made under s 10(1)(b) if a court considers it is inexpedient to impose more than nominal punishment, as I consider is the case here. It is expedient in the circumstances to release the Defendant on a one year conditional release order, compliance with which means that no conviction is recorded. The fact a conviction is not recorded should not “dilute or downgrade the significance of the imposition of a [s 10] bond”: Mauger per Harrison J at [37] (see Sentencing Bench Book at [5-010]).

67. The Prosecutor seeks costs of $4,580 and these will be ordered as provided in s 257B of the Criminal Procedure Act 1986 (NSW).

68. The Defendant will need to enter into a one year conditional release order before final orders are made and appropriate arrangements to achieve that will be discussed with the Defendant.

Addendum made on 14 September 2020

75. Further to [72]-[74] of my judgment of 14 September 2020 I make orders as follows:

1. The Defendant is guilty of the charge in summons 19/348360 but no conviction is recorded upon the Defendant entering into a good behaviour bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for a period of one year.

2. The Defendant is bound for the period in order 1 to comply with the conditions set out below:

1. To be of good behaviour.

2. To appear before the Court if called upon to do so at any time during the term of the bond.

3. The Defendant is to pay the Prosecutor's costs of $4,580.

4. The exhibits may be returned.

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Decision last updated: 18 September 2020