Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Forestry Corporation of NSW [2024] NSWLEC 84 Hearing dates: 12 August 2024 Decision date: 16 August 2024 Jurisdiction: Class 5 Before: Pain J Decision: See below in [31], [33], [47]. Catchwords: PROCEDURE – application by non-government organisation a local environment centre to participate as amicus curiae in sentencing hearing for native vegetation offences Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 1.6, 13.2, 13.12, 13.20, 13.25, 13.26 Criminal Procedure Act 1986 (NSW), ss 36, 37, 42 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 27 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 178, 179 Evidence Act 1995 (NSW), s 4 Forestry Act 2012 (NSW), s 69SA Land and Environment Court Act 1979 (NSW), ss 21, 63 Land and Environment Court Rules 2007 (NSW), r 5.2 Protection of the Environment Operations Act 1997 (NSW), ss 245, 250 Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291; [2018] NSWLEC 205 Corporate Affairs Commission v Bradley; Commonwealth (Intervener) [1974] 1 NSWLR 391 Director of Public Prosecutions v Yigit (2008) 51 MVR 105; [2008] NSWCA 226 Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78 Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 Gore v The Queen (2010) 208 A Crim R 353; [2010] NSWCCA 330 Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 M(K) v M(H) [1992] 3 SCR 6 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 MWSD v State of Western Australia [2017] WASC 125 National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 Priest v West (in his capacity as Deputy State Coroner) (2011) 35 VR 225; [2011] VSCA 186 R v GJ (2005) 16 NTLR 230; [2005] NTCCA 20 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Seller; R v McCarthy (2012) 269 FLR 125; [2012] NSWSC 934 R v Wickham [2004] NSWCCA 193 Re BWV; Ex Parte Gardner (2003) 7 VR 487; [2003] VSC 173 Rendell v Release on Licence Board (1987) 10 NSWLR 499 United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 Texts Cited: Brunilda Pali, Miranda Forsyth, Felicity Tepper (eds), The Palgrave Handbook of Environmental Restorative Justice (2022, Palgrave Macmillan) Christopher Stone, 'Should Trees Have Standing? Towards Legal Rights for Natural Objects' (1972) 45 Southern California Law Review 450 Lisa Zhou, 'Fiduciary Law, Non-Economic Interests and Amici Curiae' (2008) 32(3) Melbourne University Law Review 1158 Mark Hamilton, Environmental Crime and Restorative Justice: Justice as Meaningful Involvement (2021, Palgrave Macmillan) Practice Note Class 5 proceedings Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor) Forestry Corporation of NSW (Respondent) Bellingen Environment Centre Incorporated (Amicus Curiae Applicant) Representation: Counsel: G Craddock with C Brain (Prosecutor) R Coffey (Defendant) J Corkill (Amicus Curiae Applicant) Solicitors: Environmental Protection Authority (Applicant) Forestry Corporation of NSW (Defendant) File Number(s): 2022/198791, 2022/198793, 2022/198795, 2022/198798 JUDGMENT 1. The Forestry Corporation of NSW (FC) has pleaded guilty to offences against s 69SA of the Forestry Act 2012 (NSW) relating to forestry activities at or near Wild Cattle Creek State Forest in northern NSW. The sentencing hearing is listed for 16-17 September 2024. 2. The FC is charged with one offence under s 69SA(1)(b) of the Forestry Act for contravening a requirement imposed by the Integrated Forestry Operations Approval for the Coastal Region (CIFOA) in that, between about 24 June 2020 and about 24 July 2020 at or near compartments 33 and 34 of Wild Cattle Creek State Forest, FC contravened condition 64.2 of the CIFOA in that, when carrying out a forestry operation, it failed to permanently retain six 'giant trees' as defined under the CIFOA. The FC is charged with three offences under s 69SA(1) of the Forestry Act relating to its failure to retain three 'hollow-bearing trees' in Wild Cattle Creek State Forest, in contravention of the requirement in condition 64.2 of the CIFOA to retain 'all' hollow-bearing trees in the net harvest area of an intensive harvesting zone. 3. An application by the Bellingen Environment Centre Incorporated (BECI) to appear as amicus curiae at the sentencing hearing arises to be determined. Dr Corkill is representing the BECI. There is no evidence before the Court identifying in a formal manner that Dr Corkill is authorised to represent the BECI. Dr Corkill has told the Court that the management committee authorised him to make this application and further that he is now a member of that committee. I am prepared to accept for this judgment that Dr Corkill is authorised to make this application. If the BECI is permitted to play a further role an affidavit of Dr Corkill confirming his authorisation to represent the BECI made in accordance with its constitution as an incorporated association will be necessary. The application is opposed by the Prosecutor Environment Protection Authority (EPA) and the FC. 4. The role of amicus is to provide assistance as a friend of the court on a matter of fact or law which the court would not otherwise obtain, Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 (Levy) at 604 (Brennan CJ), Priest v West (in his capacity as Deputy State Coroner) (2011) 35 VR 225; [2011] VSCA 186 at [29]. It is wholly within the court's discretion to allow an amicus appearance. The role is strictly limited and should be clearly defined, United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 (United States Tobacco) at 539. 5. I was informed in written submissions and accept that the BECI commenced in 1991 and is a voluntary non-government organisation which brings together people in the Bellingen shire interested in protecting the environment. Its aims include the promotion of environmental protection and biodiversity in the Bellingen Valley, and it conducts a number of activities to achieve its objectives. It wishes to assist the Court at the sentencing hearing by making submissions on matters relevant to sentencing and providing some evidence to support its submissions. 6. Few if any applications to appear as an amicus in criminal proceedings have been made to the Court. A review of the limited number of cases referred to by the parties suggests that few such applications have been made in Australia, in contrast to civil proceedings. The BECI, the EPA and FC agree that the Court has discretion to allow the appearance of an amicus at the sentencing hearing and to specify the basis on which this is to occur. The EPA and FC submit that the exercise of that discretion to allow an amicus is used sparingly and such an order should not be made in this case because it will not assist the Court and will lead to disproportionate costs. 7. It is useful to distinguish an intervenor, who can become a party with attendant responsibilities to behave as a party with costs consequences if inappropriate behaviour arises, from the role of an amicus. The distinction is helpfully identified in United States Tobacco at 534-5 citing Hutley JA in Corporate Affairs Commission v Bradley; Commonwealth (Intervener) [1974] 1 NSWLR 391 at 396. An amicus will not generally be liable for any costs in the event that their behaviour causes unnecessary expense to the prosecutor and defendant, another reason why such participation on that basis should be considered carefully by a court. 8. Cases in courts of appeal or criminal appeal have considered the appearance of amicus in criminal proceedings. The parties referred to Director of Public Prosecutions v Yigit (2008) 51 MVR 105; [2008] NSWCA 226 at [5] (Basten JA, Beazley JA agreeing), R v Seller; R v McCarthy (2012) 269 FLR 125; [2012] NSWSC 934 at [10]-[11], R v GJ (2005) 16 NTLR 230; [2005] NTCCA 20 at [54]-[65] (Mildren J, Riley J agreeing), Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [36], [39] (Allsop P, Bathurst CJ, Hall and Bellew JJ agreeing). Most of these cases referred to the principles stated by Brennan CJ in Levy (a civil case) at 604-5: The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In Kruger v The Commonwealth, speaking for the Court, I said in refusing counsel's application to appear for a person as amicus curiae: "As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application." It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected. 1. Mahoney P (Waddell AJA agreeing) in National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 (Hokit) (civil proceedings) set out matters to be considered in determining whether to grant leave to a person to appear as amicus at 381: Whether leave to intervene should be granted must be decided having regard to all the circumstances of the instant case. However, ordinarily four matters at least require consideration: whether the intervention is apt to assist the Court in deciding the instant case; whether it is in the parties' interest to allow the intervention; whether the intervention will occupy time unnecessarily; and whether it will add inappropriately to the costs of the proceeding. 1. The Court has jurisdiction in respect of these criminal proceedings by the operation of s 21(hb) of the Land and Environment Court Act 1979 (NSW) (LEC Act) which concerns offences within Pt 13 Div 1 of the Biodiversity Conservation Act 2016 (NSW) (BC Act). Native vegetation offences may be dealt with before the Court, s 13.2(1) BC Act. A native vegetation offence means any offence under 'native vegetation legislation' including Pt 5B of the Forestry Act, s 1.6 BC Act. Section 69SA of the Forestry Act is within Pt 5B. The BC Act applies for the purposes of sentencing for these offences. Sentencing considerations are identified in s 13.12 of the BC Act. Powers of the Court to make orders for restoration are provided under s 13.20. Right of appearance in criminal proceedings 1. The FC's submissions emphasised the statutory provisions applying to these criminal proceedings. Only a police officer, the environment agency head or a person duly authorised by the environment agency head may commence legal proceedings for native vegetation offences, see s 13.3 of the BC Act. The BC Act does not contain any provision which grants to any other person a statutory right to intervene or participate in such proceedings in any capacity. 2. Neither the LEC Act nor the Land and Environment Court Rules 2007 (NSW) (LEC Rules) grant a statutory right to intervene in Class 5 proceedings or to participate as an amicus. Rule 5.2(1) of the LEC Rules identifies that Pt 75 of the Supreme Court Rules 1970 (NSW) applies which does not concern joinder as a party or participation as an amicus. Rule 5.2(2) also identifies that Uniform Civil Procedure Rules 2005 (NSW) rr 6.15, 6.16 apply which do not concern amicus or joinder as a party. 3. Chapter 2 of the Criminal Procedure Act 1986 (NSW) (CP Act) applies to all criminal proceedings in NSW. Chapter 4 Pt 5 of the CP Act contains provisions relevant to Class 5 proceedings. The parties contemplated in Chs 2 and 4 are limited to the prosecutor and the accused, as can be seen in s 36 Representation and appearance and s 37 Conduct of a case. Section 42(1) of the CP Act provides the Court with a power to call witnesses in mitigation after an accused is convicted before passing sentence. The right to call witnesses is dependant on an application to do so from the prosecutor or the accused, s 42(2). 4. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) identifies aggravating and mitigating factors in sentencing. Where a prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor it must establish by evidence beyond reasonable doubt the presence of such an aggravating factor, Gore v The Queen (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [26] (Adams J) and [104] (Howie AJ), R v Wickham [2004] NSWCCA 193 (Wickham) at [27] (Howie J, Bell and Hislop JJ agreeing). A defendant must establish any factor in mitigation on the balance of probabilities, Wickham at [27], R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). In environmental offences, the primary aggravating factor is that the offending caused substantial environmental harm, s 21A(2)(g) CSP Act. The CSP Act provides for a victim impact statement in identified classes of proceedings, which does not include Class 5 proceedings in the Court's jurisdiction, s 27(1). The CP Act and CSP Act do not provide a statutory right for any other person or entity to be heard in a sentencing matter. 5. The BECI submitted that as both parties are state government agencies, there is no effective 'contradictor', citing Re BWV; Ex Parte Gardner (2003) 7 VR 487; [2003] VSC 173. That is a civil case in which leave was given to the Attorney‑General to intervene in a case concerning a guardian's power to make medical treatment decisions. The concept of a 'contradictor' generally arises in civil proceedings. The statutory scheme identified above in [11] provides that only the EPA or other specified authorised persons can commence criminal proceedings for these offences. 6. As the EPA submitted it is open to a prosecutor to adduce evidence from a range of witnesses including ecologists and community members as part of its case to establish an aggravating factor. That decision is solely within the discretion of a prosecutor. That role of the EPA as prosecutor will be considered in light of the BECI's submissions. Impacts of offences on proposed Great Koala National Park 1. The BECI seeks to assist the Court by providing the local social context within which the offences occurred given the significance of the area damaged by the offences to the local community and the community's views of the seriousness of the offences. The site of the offences is within the area of the proposed Great Koala National Park (GKNP). The BECI submitted social context has been relevant to courts' consideration of offences, see M(K) v M(H) [1992] 3 SCR 6 at 32, Lisa Zhou, 'Fiduciary Law, Non-Economic Interests and Amici Curiae' (2008) 32(3) Melbourne University Law Review 1158, 1169-70. [I note this case concerned damages for a breach of fiduciary duty, i.e. the proceedings were not criminal. The relevant pinpoint of the article cited discusses this civil case]. 2. The BECI is geographically close to Wild Cattle Creek State Forest which is located within the proposed GKNP and is where the offences occurred. The BECI has a long history in seeking the protection of high conservation value publicly owned state forests such as Wild Cattle Creek State Forest. The BECI has been heavily involved in the development and promotion of the GKNP proposal to protect the koala population and considers itself one of the primary originators of the proposal. The BECI obtained an endorsement of the GKNP as a pre-election promise from the current NSW government in January 2015 and the current NSW government has committed to the creation of the GKNP. No finalised map designating it yet exists. The BECI is concerned the offences impact the conservation values of the larger area of the GKNP and impact the long-term survival of the koalas which the BECI has sought to protect through the proposal. 3. If permitted to act as amicus, in addition to making submissions the BECI will seek to tender reports to underpin their advice concerning the ecological and social significance of the damaged area. These reports are a 2023 research report describing the status of the koala populations of the Mid North Coast, a 2015 report which formed the scientific rationale for the GKNP proposal and a 2023 report summarising the GKNP proposal. The BECI's involvement in the development of the GKNP proposal furnished it with special knowledge that the EPA would not be able to provide due to its status as a state agency and limited engagement with the local community. The BECI is not seeking to adduce evidence going to the result of the sentence. The purpose of the reports is to provide information underpinning their advice to the Court, such as the scientific basis for their views. 4. The BECI submitted this advice could go towards consideration of the objective and subjective factors relevant to sentencing (17 factors were listed in the BECI's submissions) including the seriousness of the offence, the extent of environmental harm and the significance of the subject matter of the damage. The BECI's advice would demonstrate the nature and extent of the social impacts of the offences on members of the BECI and the community concerned with conserving the koalas, the state's biodiversity more broadly and the proper administration of the statutory scheme for environmental protection. 5. In opposing the application, the EPA submitted that as the prosecutor it would address every relevant sentencing consideration by way of necessary evidence and submissions. The BECI did not identify any matter that the EPA could not already assist the Court with, see Levy at 604. Regarding the reports the BECI sought to tender, the EPA has copies of these reports and will make an assessment as to whether they would be useful for any legitimate sentencing considerations. The EPA was yet to determine their relevance given the reports were not prepared for the purposes of the proceeding and were not reports prepared in accordance with the expert witness code of conduct for the purpose of the sentencing hearing. 6. Regarding the proposed GKNP, according to the EPA the details of the proposal have not been finalised by the NSW government. The proposal is still before several committees, one of which the BECI is a member of. It was not reasonably possible that the GKNP would be created by the time of the sentencing hearing. This diminishes the utility of the BECI's potential advice as amicus. 7. The FC submitted that the BECI should not have a carte blanche to tender reports. At face value the reports would not be admissible because they did not adopt the expert witness code of conduct. Introduction of such material raises the possibility of unnecessary costs being incurred. Finding on proposed GKNP 1. It is obvious but important to state that environmental protection is a matter of interest and concern to the whole community. The BECI, a longstanding and active proponent of environmental protection in the Bellingen area, has a particular concern that the area where the offences occurred is within the area proposed by it for the GKNP. The purpose of that national park as conceived of by the BECI is to provide much needed habitat for koalas. The threat of extinction level for the koala species was upgraded from vulnerable to endangered under Sch 1 Pt 2 of the BC Act in May 2022. A species is listed as endangered if in the opinion of the Scientific Committee appointed under the BC Act the species is facing a very high risk of extinction in Australia in the near future based on specified criteria, see s 4.4. The koala has also been listed as endangered by the Commonwealth government as provided by s 178 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The definition of endangered in s 179 of the EPBC Act is very similar to that in the BC Act. The listing of any species as endangered is a matter of concern to the community. The koala in particular is an iconic Australian species. 2. The EPA as the prosecuting body has the responsibility to bring forward matters it considers relevant to sentencing. As an experienced regulator it is well aware of its obligations and will no doubt undertake its duty responsibly. It has yet to decide or at least did not inform the Court of how it intends to represent community concern about the offences committed by the FC in Wild Cattle Creek State Forest. 3. Community interest and concern in the preservation of the environment is potentially wider than an environmental regulator may conceive it. Calling up the seminal article by Christopher Stone, 'Should Trees Have Standing? Towards Legal Rights for Natural Objects' (1972) 45 Southern California Law Review 450, the BECI essentially wishes to appear on behalf of endangered koalas in the Bellingen region in having matters placed before the Court which could be relevant to sentencing. 4. A wider context for considering this application is increasing recognition of the importance of restorative justice in environmental crime in many jurisdictions. There is recent and expanding scholarly consideration of environmental restorative justice in the context of criminal enforcement of environmental law drawing on experiences in courts where available, see for example Brunilda Pali, Miranda Forsyth, Felicity Tepper (eds), The Palgrave Handbook of Environmental Restorative Justice (2022, Palgrave Macmillan), Mark Hamilton, Environmental Crime and Restorative Justice: Justice as Meaningful Involvement (2021, Palgrave Macmillan). Essentially restorative justice requires that all aspects of the environment including human and non-human relationships with it need to be recognised in order for a court to consider all aspects of environmental harm when sentencing and to craft appropriate orders in response. 5. Restorative justice processes include defendants and prosecutors agreeing to participate in consultative processes involving affected members of the community whereby all aspects of environmental harm are considered. Examples of restorative justice processes informing sentencing in the Court include Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291; [2018] NSWLEC 205. The Environment Court of New Zealand has considered restorative justice processes in sentencing for environmental crime on numerous occasions over many years. 6. The Practice Note for Class 5 proceedings was amended in April 2018 to include provision for restorative justice, to the effect that where a defendant enters a plea of guilty the prosecutor and defendant are to advise the Court of any proposal for a restorative justice process in which the defendant and victims are willing to participate and of any proposed order for a restorative justice activity a defendant agrees to carry out, at par 28. Restorative justice activity order, defined as 'any social or community activity for the benefit of the community or persons that are adversely affected by the offence … that the offender has agreed to carry out' is provided for in s 13.25(2) of the BC Act, in addition to any order to carry out a specified restoration project under s 13.25(1)(c). So far as I am aware no prosecutor or defendant has sought to utilise that section to date. I raise that section and the Practice Note for Class 5 proceedings because it is one means by which the wider community including a local community organisation such as the BECI could have been engaged constructively in matters relevant to criminal sentencing for these offences. 7. The EPA has properly advised the Court that currently the proposed GKNP is under consideration by the NSW government. It will not be in place when the sentencing hearing occurs in September 2024. The EPA has yet to determine what if anything it will say on this subject. I consider the BECI has a unique perspective concerning the environmental values of the region over which the GKNP is proposed which may assist the Court and should be before the sentencing judge. In this case it appears warranted to inform the Court about the GKNP proposal of which the BECI is the proponent and place the area where the offences occurred in that context. 8. The three reports to which the BECI referred in footnotes 19, 20 and 21 of its submissions, and limited submissions addressing the actual and likely environmental harm caused by the offences will be permitted to be filed in the Court in accordance with a specified timeframe. 'Moral outrage' 1. Other forestry offences have occurred in Wild Cattle Creek State Forest for which the FC has been prosecuted. The BECI cited Robson J in Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 (2022 EPA v Forestry Corporation) which considered those offences stating at [41] that '[t]he sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case'. The BECI submitted that it could provide evidence and submissions of local community outrage at the commission of these current offences despite earlier prosecutions arising from forestry activities in the same area. 2. The EPA submitted that matters of earlier offending would be specifically addressed and are matters the Court often takes into consideration, which submission is completely accepted. The EPA submitted the public also has the ability to raise its concerns with the prosecutor who can take these matters into account subject to the exercise of its prosecutorial discretion to do so. The difficulty in assessing this submission is that there is no indication that steps to engage with the BECI have been taken to date by the EPA. I consider I should stand over this particular aspect of the BECI application to enable the EPA and the BECI to confer on whether the EPA is minded to present evidence or make submissions in relation to the impact on the wider community concerned about these offences as advised by the BECI. Whether an order will be made to allow the BECI to make further submissions on this aspect will be informed by that discussion. A short timetable to enable this to occur will be made. Other cases 1. The BECI seeks to provide advice to the Court of the impacts of the pattern of conduct by the FC on the BECI's members and others in the community concerned about the effective operation of environmental law. The BECI submitted it could place the current offences in the context of prior offences committed in Wild Cattle Creek State Forest following 2022 EPA v Forestry Corporation which resulted in a loss of confidence by the community in the statutory scheme and the EPA. The BECI submitted these offences also occurred in the context of interlocutory proceedings regarding forestry operations in the Newry State Forest, Jarrett v Forestry Corporation 2023/265664. I note that in that matter the FC gave an undertaking to temporarily halt logging. On the expiration of the undertaking the applicant filed a notice of discontinuance. 2. The BECI was concerned that not all offences committed by the FC were brought to Pepper J's attention in Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78 and that the BECI could ensure more offences were brought to the Court's attention in the current matters. The BECI submitted that offences prosecuted in the Local Court were not raised before Pepper J. As identified by the FC, Pepper J did refer to a conviction in the Batemans Bay Local Court for a s 69SA offence in the Mogo State Forest, at [134(f)]. Her Honour was not obliged to refer to every case to which she was likely to have been referred by the parties. 3. I am confident that the EPA will place any relevant prior offences before the sentencing judge and additional assistance to the Court in this regard is not necessary. Impact of offences on the Indigenous community 1. While not purporting to represent the Gumbayngirr First Nations people the BECI submitted that community has legal and moral interests in Wild Cattle Creek State Forest and the Court would be assisted in hearing evidence about the impact of the offences on these interests. Such evidence would be best given remotely. 2. The EPA informed the Court that it has a unit established some two years ago to liaise with Indigenous communities. It is within the EPA's discretion to determine whether and what evidence with regards to local Indigenous communities ought to be placed before the court. The EPA website identifies a 'Statement of Commitment to Aboriginal people' and 'Engagement Framework' which includes 'growing and improving our relationship with Aboriginal people' as part of the EPA's regulatory approach. 3. While the EPA's approach to adducing evidence if any about impact of the offences on the local Indigenous community is unknown, in the absence of a specific application by a member or members of the Gumbayngirr community seeking to participate in the sentencing process, it is difficult to consider the matter raised by the BECI in a meaningful way or make an order which the Court can be confident will have any utility. I note that the impacts of offences on specific Indigenous communities were considered in the restorative justice processes undertaken in relation to the sentencing matters in the Court referred to in [28] above. Larger view of proceedings/exercise of prosecutorial discretion 1. Another matter the BECI seeks to raise is the exercise of prosecutorial discretion by the EPA in charging the FC as the sole defendant when the BECI considers that the contract loggers who actually caused the offence to occur were not charged and should have been. The BECI relied on Rendell v Release on Licence Board (1987) 10 NSWLR 499 at 503-4 as an example of a court reviewing the exercise of prosecutorial discretion. That case was considering a decision of a quite different character being a decision of the Release on Licence Board (now the NSW State Parole Authority) and has no application to the circumstances here of prosecutorial decisions made by the statutory regulator. 2. As advised during the hearing the Court is not able to nor should it consider the exercise of prosecutorial discretion, which is highly likely to be a multi-factorial decision on the part of a prosecutor. Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 at 534 (Gaudron and Gummow JJ) confirmed this and I consider that decision is binding on me. Accordingly the submission that a 'larger view' of the proceedings on this basis could be usefully provided is not accepted. Specific sentencing matters – amount of penalty/appropriate orders 1. In an attachment to the BECI's submissions listing the scope of proposed amicus advice on sentencing issues, the BECI wishes to provide advice on the appropriate financial penalty for each offence. Advice about the appropriate penalty level is irrelevant, see Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [39], [43], [49] (French CJ, Hayne, Kiefel and Bell JJ). 2. The BECI also submitted that it could suggest a range of orders the Court could make under s 23 of the LEC Act and ss 245, 250 of the Protection of the Environment Operations Act 1997 (NSW). The EPA confirmed it will directly address orders for restoration and prevention under s 13.20 of the BC Act with supporting evidence. The EPA noted there were additional orders with penal consequences available for failure to comply with the orders under s 13.26 of the BC Act. I am confident the EPA will be able to propose appropriate orders to the Court as provided by the BC Act. 3. The BECI is not otherwise permitted to address the wide range of sentencing factors beyond what is specifically permitted in this judgment. Can an amicus call evidence? 1. The EPA referred to MWSD v State of Western Australia [2017] WASC 125 (MWSD). The cases reviewed by Jenkins J in MWSD at [18]-[19] caused Her Honour to find at [20] that an amicus cannot adduce evidence. While other cases suggest such a blanket finding may not apply in all cases, it is apparent that only in exceptional circumstances is evidence from an amicus likely to be allowed in criminal proceedings. As already identified the BECI does not seek to bring forward evidence in the form of sworn evidence. It seeks to bring forward existing reports concerning the GKNP as information and that will be permitted. Representation in criminal matters 1. Section 63 of the LEC Act deals with representation in the Court. Subsection (1) provides that an appearance may be in person, by a legal practitioner or by an agent but an agent cannot represent anyone in criminal proceedings (Classes 5, 6, 7). This circumstance resulted in the FC submitting that if permitted as an amicus the BECI should be required to act in accordance with r 7.7 of the LEC Rules as applies to agents as otherwise there is a risk of running up unnecessary costs which the FC could be liable for. Alternatively, representation by a legal practitioner should be required of the BECI. I do not consider such an order is necessary. The BECI's participation will be closely defined and its conduct subject to the direction of the Court in any event. I observe that I do expect the BECI through its representative to behave consistently with r 7.7 of the LEC Rules. In conclusion 1. Mindful of the matters referred to in Hokit, limited participation by the BECI can potentially assist the sentencing exercise. Broad environmental justice considerations arise and appropriate orders for limited participation will be made to avoid other parties incurring disproportionate costs. Ultimately the conduct of the sentencing hearing is a matter for the trial judge. Under s 4(2)(a) of the Evidence Act 1995 (NSW) the rules of evidence do not apply in sentencing hearings unless an order is made that they do. The material I will permit to be filed by the BECI will need to be accommodated on the basis the trial judge considers appropriate. A pre-trial mention before the trial judge can resolve how the BECI material can be considered once this has been filed. 2. The BECI raised the possibility of its costs or disbursements being paid as part of any fine imposed as a penalty. There is no provision under the Fines Act 1996 (NSW) or CP Act which empowers the Court to make such an order and I do not consider that approach is therefore available. 3. The terms of the orders will be discussed with the parties. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2024