Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 Hearing dates: 16 and 17 December 2021. Consent orders pursuant to s 13.25(1)(d) of the Biodiversity Conservation Act 2016 filed 18 February 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [159] to [163] Catchwords: SENTENCE - three charges of breaching s 69SA(1) of the Forestry Act 2012 - pleas of guilty by Defendant - agreed facts for sentencing purposes - no potential aggravating factors - consideration of matters mandated by the Biodiversity Conservation Act 2016 - consideration of Defendant's subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to Defendant - need for general deterrence - appropriate starting penalty toward (but not at) the low end of the low range for such conduct - penalties of $120,000 for each offence - plea of guilty entered at earliest opportunity - discount of 25% on starting penalties appropriate TOTALITY AND ACCUMULATION - offences all arising out of same course of conduct - penalties for second and third offences moderated ADDITIONAL ORDERS - publication order appropriate to be made - minor changes to Prosecutor's draft - publication order made - proposals for order requiring training of forest‑harvesting employers and contractors in new mapping technology - consent orders settled by the parties for mapping technology training - training orders made by consent Legislation Cited: Biodiversity Conservation Act 2016, ss 13.12, 13.23 and 13.25 Criminal Procedure Act 1986, ss 257B and 257G Crimes Sentencing Procedure Act 1999, ss 3, 21A, 22 and 23 Forestry Act 2012, ss 69SA(1) and 69SB Protection of the Environment Operations Act 1997, Pt 8.3 Cases Cited: Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Caralis v Smyth (1988) 65 LGRA 303 Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Secretary, Department of Planning, Industry and Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987)163 CLR 561; [1987] HCA 54 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Forestry Corporation of NSW (Defendant) Representation: Counsel: Ms G Wright SC (Prosecutor) Mr I Hemmings SC/Ms J McKelvey, barrister (Defendant)