Reported Decision : 160 LGERA 115 Land and Environment Court of New South Wales CITATION : Garrett v Dennis Charles Williams [2006] NSWLEC 785 This decision has been amended. Please see the end of the judgment for a list of the amendments. PROSECUTOR Stephen Garrett PARTIES : DEFENDANT Dennis Charles Williams FILE NUMBER(S) : 50053; 50056 of 2005 CORAM: Preston CJ KEY ISSUES: Environmental Offences :- pick endangered ecological community - sentencing - objective seriousness of offence - substantial environmental harm - premeditated and deliberate conduct - done for commercial reasons of proposed development - series of acts - mitigating circumstances - late plea of guilty - no prior convictions - prior good character Crimes (Sentencing Procedure) Act 1999 s 3A(a), (b), (e)-(g), s 5(1), s 21A(2)(g), s 21A(2)(m), s 21A(3)(e),(f),(k), s 22 Criminal Procedure Act 1986 s 253(2) Environmental Planning and Assessment Act 1979 s 5A, s 149 LEGISLATION CITED: Fines Act 1996 s 6 National Parks and Wildlife Act 1974 (NSW) s 118A(2) National Parks and Wildlife Amendment Act 2001 sch 3 item [27] Threatened Species Conservation Act 1995 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683; Dempsey v R [2002] QCA 45 (22 February 2002); Director-General National Parks and Wildlife Service v Wilkinson [2002] NSWLEC 71 (27 September 2002); Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 (22 December 2005); Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006); Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997); Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006); Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006); Markarian v The Queen (2005) 79 ALJR 1048; Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1988) 194 CLR 610; Piva v Brinkworth (1992) 59 SASR 92; R v Anglian Water Services Ltd [2004] 1 Cr App R(S) 62, [2004] JPL 458; CASES CITED: R v Bata Industries Ltd (1992) 92 OR (3d) 329, 7 CELR (NS) 245; R v Elfar [2003] NSWCCA 358 (2 December 2003); R v F Howe & Son [1999] 2 All ER 249; R v Kalache (2000) 111 A Crim R 152; R v McNaughton [2006] NSWCCA 242 (11 August 2006); R v Milford Haven Port Authority [2000] JPL 943; R v Morabito (1992) 62 A Crim R 82; R v Peel [1971] 1 NSWLR 247; R v Power [1999] NSWCCA 25 (5 March 1999); R v Sutton [2004] NSWCCA 225 (6 July 2004); R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Wheeler [2000] NSWCCA 34 (16 February 2000); R v Winchester (1992) 58 A Crim R 345; R v Yorkshire Water Services Ltd [2002] 2 Cr App R(S) 13, [2002] Env LR 18; Regina v A [999] NSWCCA 61 (30 March 1999); State Pollution Control Commission v T J Bryant Pty Ltd [1991] NSWLEC 70 (11 June 1991); Veen v R (No 2) (1988) 164 CLR 465; Walker v Eves (1976) 13 SASR 92 DATES OF HEARING: 26/07/2006, 27/07/2006, 28/07/2006 DATE OF JUDGMENT: 12/15/2006 PROSECUTOR Mr D Buchannan SC with Mr D Jordan SOLICITORS LEGAL REPRESENTATIVES: Department of Environment and Conservation DEFENDANT Mr I Lloyd QC with Mr M Baird SOLICITORS Kearns & Garside JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 15 DECEMBER 2006 50053 OF 2005 50056 OF 2005 STEPHEN GARRETT V DENNIS CHARLES WILLIAMS JUDGMENT 1 HIS HONOUR: The Southern Highlands of New South Wales have been extensively cleared for agricultural and rural development. Most of the original native vegetation has been lost. Remnants are mostly small isolated pockets. One of the types of native vegetation communities is a woodland that occurs on the clay soils on Wianamatta Shale in the Southern Highlands. 2 The clearing and other threats to this woodland have been so great that it has been listed as an endangered ecological community under the Threatened Species Conservation Act 1995 (NSW). It is described by the name of Southern Highlands Shale Woodland. The National Parks and Wildlife Act 1974 (NSW) prohibits the picking of plants that are parts of an endangered ecological community: s 118A(2) of the National Parks and Wildlife Act. 3 The defendant, Mr Dennis Williams, owns land at Lot 3, Biggera Street, Braemar in the Southern Highlands. The Southern Highlands Shale Woodland grows on Mr Williams' land. 4 Over two separate periods, once between 8 November 2003 and 3 June 2004, and again on 28 December 2004, Mr Williams arranged for trees of the woodland on his land to be cleared or cut down. These actions involved picking plants that are part of the endangered ecological community. They involved the commission of offences against s 118A(2) of the National Parks and Wildlife Act. 5 Mr Williams has been charged twice for these offences. He has pleaded guilty to each of the charges. The Court's task is to determine the appropriate sentences. The commission of the offences 6 The offences occurred whilst an application by the defendant to Wingecarribee Shire Council for consent to subdivide the land was being considered but had not been determined. The subdivision would have involved the clearing of plants comprising the woodland on the land. The existence and significance of the woodland on the land was a relevant consideration for the Council to take into account when considering and determining the defendant's application for subdivision. 7 The history of the defendant's application for subdivision, the defendant's knowledge of the existence and significance of the woodland on the land and the defendant's actions in arranging for the clearing of the trees on the land whilst the application was being considered are relevant considerations in understanding the objective gravity of the offence. These circumstances will therefore be described. 8 In 1982, the defendant's family purchased the property as part of a large parcel of land. 9 In 1988, the defendant engaged Campbell & Anderson Surveyors to prepare a lot design for subdivision of the defendant's land. The defendant consulted with Peter Gill, a surveyor and director of Campbell & Anderson Surveyors. 10 In 1989, the title to the property was transferred to the defendant, although the defendant says his sister has an equitable interest in the property. 11 In April 2000 and March 2001, Campbell & Anderson Surveyors undertook a detailed survey of the property identifying the position and relative levels of features including significant trees, fences and sewer manholes. A survey plan was prepared depicting the subdivision of the property proposed by the defendant and identifying features which included the existing large trees. Each of the trees that are the subject of the two charges are identified on the survey plan. 12 On 18 May 2001, the Scientific Committee made a Final Determination under the Threatened Species Conservation Act 1995 that Southern Highlands Shale Woodland should be listed as an endangered ecological community. The listing of the woodland as an endangered ecological community took effect on gazettal on 15 June 2001. 13 On 2 May 2002, the survey was updated and issued. 14 In late 2002, the defendant asked Peter Gill to prepare a subdivision plan for the land for submission to Wingecarribee Shire Council. The defendant gave Mr Gill a certificate issued by the Council under s 149 of the Environmental Planning and Assessment Act 1979 dated 19 November 2002. The certificate indicated that the identification of Southern Highlands Shale Woodland in the Scientific Committee's final determination had implications for the removal of vegetation and development proposals in the Southern Highlands. 15 On 6 February 2003, Peter Gill met with planning officers of the Council. Mr Gill was informed of the presence of Southern Highlands Shale Woodland on the defendant's property and told that a flora and fauna report would need to be prepared as part of any development application. Shortly after this meeting, Peter Gill telephoned the defendant. They had a conversation to the following effect: Mr Gill said: "I have just had a meeting with Council about the proposed development on your property at Lot 3, Biggera Street. There is Southern Highlands Shale Woodland on the property and a flora and fauna study will have to be done as part of the development application". The defendant said: "What will I have to do?" Mr Gill said: "I can arrange for a flora and fauna study to be undertaken". 16 In February 2003, Peter Gill arranged for a two reports to be prepared for submission to the Council with the development application for the subdivision of the land: first, a flora and fauna report by Greg Stone, and secondly, a bushfire hazard assessment and protection measure report by AVK Environmental Management. 17 Also in February 2003, residents of a neighbouring property, David and Robyne McKinnon, observed the defendant walking around the north western boundary of his property with a bow saw cutting down shrubs and saplings. The McKinnons observed the defendant using a bow saw to cut vegetation on the property on about 4 occasions during early 2003. 18 On 25 February 2003, AVK Environmental Management provided to the defendant its Bushfire Hazard Assessment and Protection Measures Report. The report evaluated the risks associated with the proposed subdivision of the property due to any bushfire hazard on or surrounding the property. The report stated that the proposed subdivision would be subject to a moderate bushfire hazard and level of risk. The main threat to the property is from wildfires burning along the railway line to the west of the property. The report noted that fuel loads were currently very low over most of the property and the adjoining bushland as it had been burnt in the fires in November 2002. The proposed subdivision would remove much of the remaining fuel on the property. Accordingly, the report concluded, the level of bushfire risk on and surrounding the property did not preclude subdivision of the property provided the bushfire protection measure recommended for future dwellings are incorporated into the development. 19 Mr Greg Stone, the ecological consultant engaged for the defendant consulted with the Department of Environment and Conservation about the vegetation on the property. 20 On 20 February 2003, Mr Stone had a telephone conversation with Mr Clarke of the Department about whether the vegetation might be Southern Highlands Shale Woodland. Mr Clarke requested Mr Stone to send a more complete species list based on his survey work of the property. 21 The Department had been undertaking extensive and detailed mapping of the vegetation of Wingecarribee Shire. Mr Clarke had access to a preliminary electronic copy of that mapping. This mapping showed the defendant's property to be mapped as Southern Highlands Shale Woodland. Mr Clarke printed the map and faxed it to Mr Stone. Mr Clarke then telephone Mr Stone and discussed the faxed map. Mr Clarke said to Mr Stone: "Based on what you have told me about the plant species on the property and from what we can see on the map, it is likely that part of the property does contain the Southern Highlands Shale Woodland EEC". 22 Mr Clarke requested Mr Stone send him a more complete species list for the property. 23 On 26 February 2003, Mr Stone faxed to Mr Clarke a list of species for the defendant's property and requested Mr Clarke's opinion as to whether the vegetation on the property is Southern Highlands Shale Woodland. 24 Mr Clarke telephoned Mr Stone again after receiving the species list. Mr Clarke's recollection is that he said "based on both the mapping and the species present, there is a strong possibility that the Southern Highlands Shale Woodland EEC does occur on the property", and Mr Stone said "OK". Mr Stone's recollection is that Mr Clarke was even firmer in his opinion, saying "I have received your fax and on the basis of that data you submitted and existing vegetation mapping, I can confirm that the community at the site is the Southern Highlands Shale Woodland EEC" and Mr Stone said "Thanks for your advice". 25 On 4 March 2003, after consulting with the National Parks & Wildlife Service, the defendant's flora and fauna consultant, Greg Stone, completed his report. Mr Stone delivered the report to the office of Campbell and Anderson Surveyors in Bowral. 26 Mr Stone concluded that Southern Highlands Shale Woodland was present on the property and that the proposed subdivision was likely to have a significant effect on this endangered ecological community. Mr Stone's report noted that: "Vegetation mapping undertaken within the Wingecarribee LGA, records the presence of Southern Highlands Shale Woodland on the development site". 27 Mr Stone recorded that a flora survey was undertaken and a species list compiled. Mr Stone notes that: "The above species list and species description was forwarded to the NSW NPWS Threatened Species Unit for consideration and comment. On 27.2.2003 Mr Stephen Clark of the Southern Directorate confirmed that, on the basis of data submitted and existing vegetation mapping, the community at the site is the Southern Highlands Shale Woodland Endangered Ecological Community". 28 Mr Stone's report undertook an assessment under s 5A of the Environmental Planning and Assessment Act 1979 to decide whether the proposed development was likely to have a significant effect on the Southern Highlands Shale Woodland community at the property. The assessment stated: "Although the site has been subjected to mechanical clearing and fire, characteristic species from all stratas of the community remain intact. The regeneration observed in response to fire and recent rainfall indicate that the vegetation remnant remains viable and is therefore significant as an Endangered Ecological Community within the regional context. The development as proposed will therefore modify or remove a significant area of known habitat of Southern Highlands Shale Woodland. … A remnant of the Southern Highlands Shale Woodland community exists along the rail reserve adjoining the western boundary of the site. The establishment of a 20m Inner Protection Zone as recommended (AVK, 2003) will effectively isolate this remnant area of habitat from any remnant vegetation of the development site. The development as proposed will therefore isolate an area of known habitat from currently interconnecting areas of habitat. … The Southern Highlands Shale Woodland endangered ecological community and its habitat is not adequately represented in conservation reserves (or other similar protected areas) in the region. … The development as proposed is recognised as a threatening process. … The Southern Highlands Shale Woodland endangered ecological community is or has been known to occur in the Wingecarribee region, but may occur elsewhere in the Sydney Basin Bioregion. However, any existence of the community beyond the Wingecarribee LGA has not been documented. The Southern Highlands Shale Woodland endangered ecological community present on the development site is at or close to the limit of its known distribution". The assessment concluded: "It is concluded that, based upon the criteria contained in Section 5A of the Environmental Planning and Assessment Act, the development as proposed is likely to have a significant effect on the Southern Highlands Shale Woodland Endangered Ecological Community." 29 Under cover of a letter dated 4 March 2003, Mr Gill sent a copy of Mr Stone's report, a copy of the extract from the s 149 certificate referring to Southern Highlands Shale Woodland and other documents to both the defendant and his solicitors. 30 Some time after sending this letter, Mr Gill telephoned the defendant and had a conversation to the following effect: Mr Gill said: "Did you receive the letter and the assessment reports?" The defendant said: "Yes, I did. But Mr Stone's flora and fauna report is not what I want to put to Council. I am going to look for an alternative consultant." Mr Gill said: "Okay." The defendant said: "Yes. The number of lots would be compromised because of Mr Stone's report. I don't feel that the development is going to be feasible. I want an alternative view that is going to support the development". 31 On 5 or 6 March 2003, Mr Gill rang Mr Stone and advised him that he had discussed Mr Stone's report with the defendant and the defendant is "not that happy about the implications of the conclusions of your Report for his development". Mr Gill asked if Mr Stone would discuss his findings with the defendant. Mr Stone agreed to this. 32 Later the same day, the defendant telephoned Mr Stone and had a conversation to the following effect: The defendant said: "Peter Gill has passed on to me the findings of your report from Lot 3, Biggera Street, Braemar. Can you explain to me what this is all about?" Mr Stone said: "From my site inspection I identified a number of species on your property that are characteristic of the Southern Highlands Shale Woodland endangered ecological community. I checked this with the National Parks and Wildlife Threatened Species Unit and the mapping for the area. All this information is in my report." The defendant said: "What are you talking about? There's not many trees there. So what's the problem?" Mr Stone said: "It is not the individual trees, the endangered area is a community of many plant species. That's how the legislation defines the endangered ecological community. That legislation is the Threatened Species Conservation Act." The defendant said: "I don't like the sound of how this is going to effect my development." Mr Stone said: "Yes, I think that the development as proposed would have a significant impact upon the endangered ecological community. However, it may still be possible to develop the lot, but you would have to reconsider the number and layout of the lots." The defendant said: "No, I do not want to consider alternatives to the proposed subdivision. I am not happy with the results of your survey and I will contacting my solicitor about this matter". 33 In March 2003, the defendant's then solicitors, Kearns and Garside, wrote to Frances Dominic Fanning of Gunninah Environmental Consultants stating, according to Mr Fanning, "that the Williams property (Lot 3 Biggera Street at Braemar) had been identified as having the endangered ecological community Southern Highlands Shale Woodland and that the site was the subject of a proposal for subdivision". Mr Fanning was asked to inspect the site and provide his own independent advice. Attached to the letter was the bushfire assessment report by AVK Environmental Management, the flora and fauna assessment by Mr Stone, an extract of the Scientific Committee's final determination for the Southern Highlands Shale Woodland endangered ecological community and a sewer layout diagram. Mr Fanning was requested to conduct a flora and fauna assessment of the property. 34 Before Mr Fanning inspected the property, he had a telephone conversation with the defendant about Mr Stone's flora and fauna assessment and Mr Stone's conclusion that the Southern Highlands Shale Woodland endangered ecological community was present. 35 On 24 April 2003, the defendant met with Mr Fanning on site and conducted a walked survey on the site. Mr Fanning indicated he would need to undertake a more detailed flora and fauna assessment. 36 After the site inspection, Mr Fanning arranged for flora and fauna surveys to be carried out in May 2003. Mr Fanning subcontracted out the flora survey to Peter Stricker and Anthony Smith-White of Actinotus Consultants. The fauna survey was undertaken by staff of Gunninah Environmental Consultants. 37 On 2 June 2003, Mr Fanning sent the Flora and Fauna Assessment report of Gunninah Environmental Consultants to the defendant's solicitors. The report notes that it is a flora and fauna assessment for a proposed subdivision of the site into 14 allotments and the construction of dwellings thereon. The report described the vegetation on the property. In relation to the classification of the vegetation as part of the Southern Highlands Shale Woodland endangered ecological community, the report stated: "The majority of vegetation on the subject site constitutes a modified regrowth or regenerating woodland community. The woodland contains approximately 21% of the plant species listed as 'characteristic species' in the Final Determination for the Southern Highlands Shale Woodland community, including five Eucalyptus species in the canopy stratum (NSW Scientific Committee 2001). On the basis of its location and the native plant species which are present, the vegetation present would appear to constitute a marginal or variant patch of the Southern Highlands Shale Woodland community. That community has been listed as an "endangered ecological community" on the NSW Threatened Species Conservation Act 1995 (TSC Act)… Whilst the vegetation present on the subject site contains characteristics of the Southern Highlands Shale Woodland Community (especially the canopy species), the understorey and ground cover strata are highly modified. Considered in isolation, the regrowth woodland community on the subject site does not constitute a significant or valuable example of the Southern Highlands Shale Woodland community." 38 By reason of the conclusion that the vegetation was part of the Southern Highlands Shale Woodland endangered ecological community, albeit a marginal or variant patch, the report went on to assess the likely impact of the proposed residential subdivision on the community. This included consideration of the eight factors under s 5A of the Environmental Planning and Assessment Act 1979 to determine whether there was likely to be a significant effect on the endangered ecological community. The test under s 5A can only be applied if the vegetation was part of the endangered ecological community. The report stated, in the section applying the test under s 5A: "the subject site contains a regrowth woodland community (regenerating after previous clearing for agricultural purposes) which contains characteristics of the Southern Highlands Shale Woodland community. That plant community has been listed as an "endangered ecological community" on the TSC Act. The vegetation present on the subject site, however, is highly modified from its original condition. The woodland contains few senescent or hollow bearing trees, and the understorey contains a moderate frequency of introduced grasses and other exotic species. Furthermore, the subject site is small in extent, contains areas that have been entirely cleared of native vegetation and is surrounded by existing urban development. Its potential contribution to the conservation of Southern Highlands Shale Woodland, therefore, is marginal, and could only be achieved by a significant and long-term expenditure of funds and effort. Notwithstanding the extremely poor nature and condition of vegetation on the subject site, a Section 5A Assessment of Significance has been prepared with respect to the Southern Highlands Shale Woodland community (Appendix C)". 39 In the conclusion, the report stated: "Furthermore, whilst the vegetation present contains some characteristics of the Southern Highlands Shale Woodland community (an " endangered ecological community " listed on the TSC Act), the vegetation present is in poor condition and is of extremely low ecological or conservation value. The subject site is small in extent and is surrounded by existing urban development. As a consequence of those considerations, the disturbed regrowth woodland on the subject site is not regarded as an impediment to development of the site as proposed. Consideration of Section 5A of the EP&A Act with respect to both the Southern Highland Shale Woodland community, the Common Bent-wing Bat and to other potential " threatened species, populations and ecological communities " yields the conclusion that there is no likelihood of " a significant effect " being imposed upon any such biota or their habitats. There is no requirement for the preparation of a Species Impact Statement in respect of the proposed development, and there is no impediment to the proposed development of the subject site pursuant to the TSC Act". 40 Appendix C to the report contained the assessment of significance of the effects that are likely to be caused by the proposed residential subdivision on the Southern Highlands Shale Woodland community. This assessment repeated the statements quoted earlier from the report that the vegetation is only a marginal or variant patch of the Southern Highlands Shale Woodland community and does not constitute a significant or valuable example. The assessment stated: "The small stand of disturbed Southern Highlands Shale Woodland on the subject site is already isolated from other areas of this community in the surrounding area by existing urban and rural development and infrastructure. Consequently, the removal of the vegetation from this already isolated stand of Southern Highlands Shale Woodland will not isolate any habitat of this "endangered ecological community" from "currently interconnecting or proximate areas of habitat". Even if it were to be retained and rehabilitated (at significant cost), the site would not contribute significantly to the conservation of the Southern Highlands Shale Woodland community because of its context and because of the ongoing impacts of surrounding urban development". 41 The assessment concluded: "The eight factors of s 5A of the EP&A Act have been taken into account when considering the potential impacts of the proposed residential subdivision on Southern Highlands Shale Woodlands. The proposed removal of vegetation on the subject site does not constitute "a significant effect" on Southern Highlands Shale Woodland with respect to s 5A of the EP&A Act given: * the majority of vegetation present is regrowth woodland within a modified urban environment; * the natural vegetation of the subject site has only approximately 21% of species in common with the list of characteristic species listed in the Final Determination for the Southern Highlands Shale Woodland community; * the highly modified condition of the woodland vegetation and its low floristic and structural diversity; and * the isolated nature of the vegetation on the site. This stand of vegetation does not represent a significant or valuable example of the Southern Highlands Shale Woodland community, and a Species Impact Statement is not required for this proposal with regard to the proposed removal of vegetation from the site". 42 Mr Fanning stated after sending the report on 2 June 2003, he had no further contact with the defendant. Mr Fanning said he "certainly would not have advised the defendant to clear the site or remove trees without a development consent or further advice". 43 In the middle of 2003, David and Robyne McKinnon, the residents of the neighbouring property, had a conversation with the defendant in words to the following effect: The defendant said: "I am going to clear the trees from my property near the boundary fence. Are you okay with this?" Mr McKinnon said: "Yes." 44 On 11 June 2003, Peter Gill lodged a development application on behalf of the defendant seeking the Council's consent to subdivide the property. The development application attached a copy of the flora and fauna assessment report by Gunninah Environmental Consultants along with the bush fire hazard assessment by AVK Environmental Management. 45 On 8 July 2003, the Council wrote to the NSW Rural Fire Service seeking their general terms of approval for the defendant's proposed residential subdivision. 46 On 10 July 2003, the Queanbeyan office of the National Parks & Wildlife Service (now a division of the Department of Environment and Conservation) received a letter from the Council seeking comment on the defendant's development application to subdivide the land. The letter enclosed a copy of the report of Gunninah Environmental Consultants. 47 On 12 August 2003, the NSW Rural Fire Service wrote to the Council stating that: "Based upon an assessment of the plans and documentation received for the proposal, the NSW Rural Fire Service is prepared to grant a Bush Fire Safety Authority subject to the following condition: - consultant's summary recommendations - level 1AS 3959 for Lots 1-7. This response is deemed to be the Bush Fire Safety Authority as required under section 100B of the Rural Fires Act 1997". 48 On 13 August 2003, two officers of the National Parks and Wildlife Service (now the Department of Environment and Conservation), Amanda Sullivan and Stephen Priday, and a Council town planner, Martin Prestidge, inspected the defendant's land. Ms Sullivan took photos of the vegetation on the property. These photos show a significant number of sizeable trees with a grassy understorey. 49 Stephen Priday worked at the Department of Environment and Conservation as a threatened species officer dealing specifically with endangered ecological communities. Mr Priday conducted an assessment of the vegetation on the property and prepared a report. The report concluded that: (a) the property contained a representative remnant of the Southern Highlands Shale Woodland; (b) contrary to the assessment of Gunninah Environmental Consultants, a large proportion of the understorey vegetation on the site was dominated by native species; (c) the apparent recovery of the vegetation on the property following bushfire during the previous summer suggested minimal intervention would be required in terms of regeneration of the understorey of the site. Considerable regeneration of tree species on the site was also noted. 50 On 23 August 2003, Amanda Sullivan of the Department of Environment and Conservation wrote to the Council indicating that the property contained a representative remnant of Southern Highlands Shale Woodland and that the findings in the Gunninah Environmental Consultants' report were not supported by the National Parks & Wildlife Service. On the basis of Stephen Priday's findings, Ms Sullivan's letter recommended that the defendant's development application in its current form should be rejected. 51 On 2 September 2003, the Council wrote to the defendant's consultants Campbell & Anderson Surveyors attaching the letter from the National Parks & Wildlife Service by Ms Sullivan of 20 August 2003, along with a copy of Mr Priday's report. 52 Following the receipt of this letter from the Council, Mr Gill discussed its contents with the defendant over the telephone. On 4 September 2003, Mr Gill faxed a copy of the Council's letter, attaching Mr Priday's report and the covering letter from Mr Sullivan to the Defendant. 53 On 9 September 2003, Mr Gill had a telephone conversation with the defendant to the following effect: Mr Gill said: "I have spoken to Council about the letter I sent through to you last week. There are engineering issues and the concerns regarding the endangered ecological community". The defendant said: "Yes, I know. As I said to you the other day, I am going to refer the National Parks & Wildlife concerns to Gunninah for a response. What will we do about the engineering issues?" Mr Gill said: "Well, we can address those engineering issues." 54 On 1 October 2003, David and Robyne McKinnon returned to their residence adjoining the property after having been away on a family trip. They observed that the bark of most of the large trees on the property had been removed giving the trees the appearance of having been ringbarked. The defendant was observed on the property that same day. 55 On 14 October 2003, the defendant met with a tree feller by the name of Terry Murchie at the land and identified the trees on the land that he wanted felled. Mr Murchie quoted a price of $80.00 per hour for felling the trees. He indicated to the defendant that it would help if the defendant ringbarked the trees before the felling commenced. The defendant said that he had already started work by cutting down the smaller trees and shrubs with a bow saw. 56 On 8 November 2003, Mr Murchie met the defendant at the property. At the defendant's request, Mr Murchie commenced felling the larger trees which had previously been identified by the defendant at the site meeting on 14 October 2003. Mr Murchie saw that nearly all the smaller trees and shrubs had been cut down and many of the larger trees were ringbarked. Mr Murchie observed the defendant remove the bark from a number of the larger trees on the property that same day. Mr Murchie felled approximately 20 trees of one or more of the following species listed in the Scientific Committee's final determination of Southern Highlands Shale Woodland: Eucalyptus cinerea, Eucalyptus globoidea, Eucalyptus mannifera, Eucalyptus ovata, Eucalyptus radiata and Eucalyptus piperita. 57 On 22 November 2003, Mr Murchie returned to the property where he met the defendant. The defendant again identified the trees to be felled and cut off the limbs of fallen trees with a bow saw. Mr Murchie felled approximately 15 trees of one or more of the same six species listed in the final determination. 58 On 3 January 2004, Mr Murchie again returned to the property where he met the defendant. Again, the defendant identified the trees to be felled and cut off the limbs of fallen trees with a bow saw. Mr Murchie recommended that the defendant hire a chipper to dispose of the smaller branches left on the ground. On that day, Mr Murchie felled 10 trees of one or more of the same six species listed in the final determination. 59 The defendant's conduct on or about 8 and 22 November 2003 and 3 January 2004, including arranging for the felling of 45 trees, is the conduct comprising the offence the subject of the first charge. 60 On 10, 11 and 21 January 2004 and 25 and 26 February 2004, the defendant hired a 6 inch chipper from Rentquip in Mittagong. During January and February 2004, a neighbour Victor Bernasconi, observed the defendant at the property putting branches and sticks through a chipper. 61 On 7 March 2004, the defendant met Shane White, the director of Total Vegetation Management, at the property. The defendant arranged for Mr White to remove the cut tree stumps and to knock down with his excavator two big trees which remained at the property because they could not be safely cut down with a chainsaw. 62 On 8 April 2004, Mr White commenced work removing and grinding stumps from the property with an excavator. On the same day, after receiving a complaint, Mr Prestidge from the Council and another Council officer arrived at the property and spoke to Mr White. Mr White indicated that he had not done the clearing work and was only removing the stumps after all the tree felling had been done. Mr Prestidge took a number of photographs. These photographs reveal that the land had had most of its trees removed and that there was stumps and vegetation debris remaining on the land. 63 As a result of the conversation with Mr Prestidge, Mr White decided that he would remove the tree stumps but would not fell the two large trees that were still standing. 64 On 15 April 2004, Mr Prestidge of Council notified the Department of Environment and Conservation in writing of suspected illegal clearing of Southern Highlands Shale Woodland at the defendant's property. 65 In mid-April 2004, the defendant's consultant, Campbell & Anderson Surveyors, received a copy of a letter from the Council dated 13 April 2004 indicating that Lot 3, Biggera Street, Braemar had been cleared of trees. Mr Gill rang the defendant and had a conversation to the following effect: Mr Gill said: "I have received a letter from Council regarding your property and it states that the site has been cleared of trees." The defendant said: "Yes, I have carried out the clearing on the site. Can you send me a copy of that letter and I will deal with it." 66 Mr Gill then sent a copy of the Council's letter to the defendant by facsimile. The defendant did not deal with the concerns about clearing of trees, either with the Council or the Department of Environment and Conservation. 67 On 20 April 2004, the Council refused the defendant's development application for subdivision of the property. 68 On 27 April 2004, two officers of the Department of Environment and Conservation, Luke Bond and Amanda Sullivan, inspected the defendant's property. Ms Sullivan took photographs from approximately the same locations as the photographs she had taken on her previous inspection of the property on 13 August 2003. These photographs show the extent of clearing of the land. Whereas previously the land was a woodland with a significant number of sizable trees and a grassy understorey, the later photographs show that only a few trees were remaining near the boundaries but otherwise the land had been totally cleared. Mr Bond also took video footage of the property. The video footage depicts the extent of the clearing. 69 On 9 May 2004, the defendant was observed by a neighbour, Robyne McKinnon, drilling holes into the trunk of a large gum tree on the south western boundary of the property and pouring a liquid substance into the drilled hole. 70 On 27 May 2004, Mr Bond of the Department of Environment and Conservation telephoned the defendant to arrange an interview. The defendant indicated that he did not intend to speak to Mr Bond in relation to the vegetation clearing at the property. On the same day, Mr Bond sent a registered letter to the defendant asking him to contact the writer by 10 June 2004 to arrange a date for an interview. 71 On 2 June 2004, Mr Bond received an Australia Post signed delivery confirmation slip dated 1 June 2004 confirming that his letter to the defendant had been delivered. The defendant made no contact with Mr Bond regarding his request for an interview. 72 On 2 June 2004, Mr Bond visited the site and took photographs of the tree on the south western boundary of the property which had been drilled with holes. The tree was subsequently identified by Mr Stephen Priday as a Eucalyptus piperita which is one of the characteristic species of Southern Highlands Shale Woodland as listed in the final determination. The photograph taken by Mr Bond shows a large tree with numerous holes drilled around the circumference at about 1metre above ground level. 73 On 3 June 2004, Mr Priday and Mr Bond of the Department of Environment and Conservation inspected the property. Mr Priday observed that the property had been mostly cleared of the trees and vegetation which he had observed on his previous visit to the property on 13 August 2003. 74 On 8 June 2004, Mr Craig Jones, another officer of the Department of Environment and Conservation, in the company of Mr Bond, took a number of swabs and samples from the holes drilled in the tree on the south western boundary of the property. 75 On 18 June 2004, the swabs and samples taken by Mr Jones on 8 June 2004, were confirmed by the Department of Environment and Conservation laboratories to contain the herbicide glyphosate. 76 On 19 August 2004, Mr David Keith, a principal research scientist in the biodiversity science section of the Department of Environment and Conservation, and a member of the New South Wales Scientific Committee established under the Threatened Species Conservation Act, inspected the property. Dr Keith concluded that Southern Highlands Shale Woodland was present on the property, that the vegetation was in reasonable condition prior to the clearing and that the vegetation on the property had reasonable prospects for regeneration if further disturbance was avoided. 77 A few days prior to December 2004, the defendant telephoned a gardener, Mr George Ragg, and requested use of his chainsaw to fell trees on the property. Mr Ragg declined to loan the chainsaw. The defendant then engaged Mr Ragg to fell the remaining trees on the property in exchange for the wood from the felled trees. 78 On 28 December 2004, Mr Ragg met the defendant on the property. The defendant identified the trees that he wished to remove. Mr Ragg operated the chainsaw to fell the trees. The defendant assisted in felling the trees by the use of rope and his vehicle to guide the path of the trees as they fell. To do this, the defendant climbed the trees to attach a rope to them. Three of the trees felled on 28 December 2004 were part of the Southern Highlands Shale Woodland, being Eucalyptus globoidea (on the northern boundary of the property), Eucalyptus radiata or Eucalyptus piperita (on the northern boundary of the property) and Eucalyptus piperita (the tree on the south western boundary of the property which had been drilled with holes). 79 On the same day, Christopher Fonti, an officer of the Council, arrived at the defendant's property and observed the recently fallen tree on the south western boundary. He approached the defendant and had a conversation to the following effect: Chris Fonti: "Hi, my name is Chris Fonti. I am from Wingecarribee Shire Council. This is my identification card. I have received a call regarding a large gum tree which has been cut down. Did you cut this tree down?" Chris Fonti then showed the defendant his identification card. The conversation continued. The defendant said: "No, and I don't want to talk to you." 80 The defendant then continued clearing cut trees and branches from the ground and turned his back to Mr Fonti. Mr Fonti moved in front of the defendant's view and a further conversation ensued: Chris Fonti said: "Could I please see some identification of yours?" The defendant then showed his driver's licence. Chris Fonti said: "Mr Williams, this tree has been freshly cut down. I am going to be taking photos of this area. You will be hearing from Council, as I am sure that this was illegal." The defendant said: "What's your name?" Chris Fonti said: "You are not to cut down any more trees." 81 The defendant then turned his back on Chris Fonti and continued clearing the cut vegetation from the ground. Mr Fonti then took three photographs of the fallen tree at the south western boundary of the property. The photographs show the stumps and fallen trees. The fallen trees had green leaves on them. 82 The defendant's conduct on or about 28 December 2004 is the conduct comprising the offence the subject of the second charge. 83 On 30 December 2004, the defendant was observed on the property by the neighbours, David and Robyne McKinnon, loading green, cut vegetation into the back of a white utility for most of the day. 84 On 19 January 2005, Mr Bond of the Department of Environment and Conservation attended the property and took photographs of the stumps of the felled trees on the south western and northern boundaries of the property. The photographs show the stump and sawn trunks and limbs of the trees. 85 On 4 March 2005, Mr Bond sent a registered letter to the defendant requesting him to participate in an interview. Mr Bond received confirmation of delivery of the letter to the defendant's address. The defendant made no contact with Mr Bond regarding his request for an interview. 86 On 13 October 2005, Mr Bond went to the property accompanied by an environmental consultant, Roger Lembit. Mr Bond showed Mr Lembit the stumps of the trees felled on 28 December 2004. Mr Lembit confirmed that the felled tree on the south western boundary of the property was Eucalyptus piperita and that this is one of the characteristic species of Southern Highlands Shale Woodland. Mr Lembit also confirmed that the felled trees on the northern boundary of the property included Eucalyptus globoidea, Eucalyptus radiata or Eucalyptus piperita, each of which are characteristic species of Southern Highlands Shale Woodland. 87 On 17 October 2005, Mr Bond attended the defendant's property and measured the locations of the three trees forming part of Southern Highlands Shale Woodland which were felled on 28 December 2004. Mr Bond marked on the survey plan the distances of the cut stumps of the trees from the property boundaries. The plans shows the trees on the northern boundary were 4.9 and 3.6 metres respectively from the boundary and the tree on the south western boundary which had been drilled with holes was 2.8 metres from the fence on the boundary. Objective circumstances of the offences Maximum penalty 88 The maximum statutory penalty is of great relevance in determining the objective gravity of the offence. As was stated in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698: "The maximum penalty for an offence reflects the 'public expression' by parliament of the seriousness of the offence". 89 A fundamental consideration, of particular relevance to environmental offences, is the degree by which, having regard to the maximum penalties provided by the statutes in question, the offender's conduct would offend against the legislative objective expressed in the statutory offence: R v Peel [1971] 1 NSWLR 247 at 262. 90 The nature of the offence provisions and the statutory scheme in which the offence provision occurs was considered in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at 242 [51]- 246 [71]. 91 The maximum penalty prescribed for an offence against s 118A(2) of the National Parks and Wildlife Act 1974 in respect of an endangered species, population or ecological community comprises two components: first, 2,000 penalty units ($220,0000) or imprisonment for two years or both and, secondly, an additional penalty of 100 penalty units ($11,000) in respect of each whole plant that was affected by or concerned in the action that constituted the offence. These penalties for an offence in respect of an endangered species, population or ecological community reveal the seriousness with which parliament views such an offence. Three aspects can be noted. 92 First, these penalties for an offence in respect of an endangered species, population or ecological community are greater than the maximum penalties for a vulnerable species of 500 penalty units or imprisonment for 1 year or both and an additional penalty of 50 penalty units for each plant affected. This shows that parliament views an offence in respect of any endangered species, population or ecological community as being proportionately more serious than an offence in respect of vulnerable species. 93 Secondly, the prescription by parliament of an additional penalty was inserted into the National Parks and Wildlife Act 1974 by the National Parks and Wildlife Amendment Act 2001, schedule 3, item [27]. The amendment commenced operation on 1 July 2002. The offences in this case were committed after this date. 94 The prescription by parliament of an additional penalty is intended to enable the total penalty to be proportionate to the extent of harm caused by the actions constituting the offence. By prescribing an additional penalty, parliament has expressed that the objective gravity or seriousness of the offence increases with the number of whole plants affected by or concerned in the action constituting the offence. 95 For these offences, the first offence involved the picking of 45 trees and the second offence involved the picking of 3 trees. Accordingly, the maximum monetary penalty for the first offence is potentially $715,000 ($220,000 plus a potential additional penalty of $495,000) and for the second offence is $253,000 ($220,000 plus a potential additional penalty of $33,000). 96 Thirdly, the seriousness is also emphasised by the availability of a sentence of imprisonment for up to 2 years for an offence in respect of an endangered species, population or ecological community, either by itself or in addition to a fine. Environmental harm 97 The prosecutor submits the defendant's actions on the two occasions the subject of the charges have caused substantial environmental harm. As such, this is an aggravating factor to be taken into account in determining the appropriate sentence: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. The prosecutor submits the environmental harm was substantial for five reasons: (a) The commission of the offences involved the felling of mature eucalyptus trees which form part of the Southern Highlands Shale Woodland community on the site. (b) The trees were old to very old and will take a long time to be replaced. In relation to the first offence, 45 trees were felled, resulting in the removal from the site of almost all of the eucalypts which form part of the Southern Highlands Shale Woodland community on the site. The trees that were felled included old and very old trees and formed a woodland that was approximately 25 metres tall. Assuming no further disturbance to the site, it would take at least 50 to 60 years before regenerating saplings reached similar height and girth to the trees which existed on the site before the commission of the offence. Tree hollows suitable as habitat for fauna would generally not occur in eucalypts that are less than 120-150 years old. The second offence involved the removal of three mature eucalyptus trees. Mr Lembit determined that the age of one of these trees was at least 130 years, a second exceeded 100 years and a third was approximately 60 years at the time of cutting. (c) The removal of the tree canopy has caused very significant modification to the structure of the Southern Highlands Shale Woodland on the site. (d) The substantial environmental harm caused by the removal of the mature tree canopy is aggravated because the community on the site was in very good condition, relative to many other examples of Southern Highlands Shale Woodland community in the Wingecarribee Shire and was in better condition than fragmented remnants of the community which exist in the Cecil Hoskings Nature Reserve. The site contained an unusually high diversity of characteristic native species. In particular, the high diversity of eucalypts is indicative of its importance as a significant example of the Southern Highlands Shale Woodland community. (e) Environmental harm caused by the offences is further aggravated because the Southern Highlands Shale Woodland community on the site was relatively large in area and formed part of or was connected with, other remnants of the community on surrounding properties. This increases the ecological significance of the stand of the community affected by the offences because it is a feature of this community that is highly fragmented and consists of relatively small and isolated remnants. 98 The defendant disputed that the environmental harm caused by the offences attained the description of "substantial" so as to be an aggravating factor in sentencing under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. The defendant submitted that the harm was not substantial for seven reasons: (a) The Gunninah Environmental Consultants' report stated that vegetation on the site was of low significance: "Whilst the subject site at Braemar currently contains a re-growth woodland community, the vegetation present on the subject site is of poor condition, small size and comprises only re-growth or regenerating woodland following previous clearing. The woodland present is in a modified and disturbed condition and does not represent a stand of significant native vegetation". (b) The proposed subdivision, which would have involved clearing of the trees that were in fact cleared by the defendant, was assessed by Mr Fanning of Gunninah Environmental Consultants as having no likelihood of significant effect on the endangered ecological community. Hence, there was no requirement for the preparation of a species impact statement in respect of the proposed subdivision. (c) The property has excellent prospects for regeneration without any active intervention; (d) The clearing had no significant effect on any flora or fauna species other than the specific Southern Highlands Woodland community on the site; (e) The defendant's land is 1.8 hectares. The clearing would have involved only 0.03% of the total area of Southern Highlands Shale Woodland identified by a study by Tindal. (f) The Gunninah Environment Consultants' report concluded that the small stand of disturbed Southern Highlands Shale Woodland on the property was already isolated from other areas of the community in the surrounding area by existing urban and rural development and infrastructure. The report concluded that: "Consequently, the removal of the vegetation from this already isolated stand of Southern Highlands Shale Woodland would not isolate any habitat for this endangered ecological community from currently interconnecting or proximate areas of habitat". (g) Even if the community were to be retained and rehabilitated, the site would not contribute significantly to the conservation of the Southern Highlands Shale Woodland community because of its context and because of the ongoing impacts of surrounding urban development. 99 I find, beyond reasonable doubt, that the injury or damage caused by each of the offences was substantial and an aggravating factor of the offences: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 100 Firstly, the vegetation on the defendant's property was of significance prior to being cleared by the defendant. I accept Dr Keith's and Mr Lembit's description of the existing vegetation, with which description Mr Fanning and Dr Mills agreed in the joint report of all four experts. I find: (a) There was a high diversity of native plant species on the property. 98 native plant species were recorded in vegetation surveys on the property which is a larger number than any of the other records for other sites on which the Southern Highlands Shale Woodland community is located. The property contains 8 of the 20 species of Eucalyptus listed in the final determination of Southern Highlands Shale Woodland. This is a relatively large number of tree species for an area of 1.88 hectares (the area of the property) and a particularly large number for grassy woodland communities in general. The high diversity of eucalypts on the property is indicative of its importance as a significant example of Southern Highlands Shale Woodland. The species list for the property includes 23 native species of grass which is a large number for an area of 1.88 hectares. (b) There was a healthy, diverse, open canopy of eucalypt trees on the property prior to the clearing. The survey of the property by Campbell and Anderson Surveyors dated 2 May 2002 and the photographs of the property taken by Ms Sullivan on 13 August 2003 show that a large number of trees occurred on the block and that these formed a healthy, multi-aged tree canopy. The existence of trees with small crown diameters shown on the survey plan and saplings shown in the photographs indicates that there was active tree regeneration on the property, a sign of a healthy, functional woodland or forest community. The existence of saplings is also established by the evidence that the defendant was using a bow saw to cut saplings on the property. (c) The vegetation was before the clearing, and still is, of good quality. There is little evidence of edge effects now, notwithstanding urban development on the surrounding area. The vegetation has responded robustly to past disturbances of fire and clearing, evidencing viability. (d) The quality of the vegetation stand of Southern Highlands Shale Woodland community on the defendant's property is relatively good compared to the quality of the vegetation stands at other locations in which the community is found. The Scientific Committee's description of the community in the Final Determination reveals that the community is reduced to remnants which are highly modified. The Final Determination states that disturbed remnants are considered to form part of the community, including areas where the vegetation would respond to assisted natural regeneration (para 6), that remnants are mostly small isolated pockets (para 7) and that much of the remaining area of the community is highly fragmented, in poor condition, with aging trees, lack of regeneration and weed invasion (para 10). The comparison, therefore, is not between the condition and size of the vegetation stand on the defendant's property and a pristine and large size example of the community, but rather with the highly modified, small, isolated remnants of the community found at other locations. In these relative terms, the vegetation stand on the defendant's property is, as Dr Keith said, in "the upper range of viability of remnants of this size and type". (e) The vegetation comprising the community on the property is interconnected with other vegetation adjoining and proximate to the property. This other vegetation includes the vegetation on the land adjoining the property to the south on the western side of Biggera Street and the linear stand of trees and associated understorey vegetation along the railway line to the west of the property, extending for some distance north and south of the property. This vegetation appears to include some remnants of the Southern Highlands Shale Woodland community. Interconnection of vegetation stands enables genetic exchange by pollen transfer between vegetation on the property and the vegetation beyond the property. There is also the potential for mobile vertebrate fauna such as birds to use the vegetation on and beyond the property. Together, these proximate and connected stands of vegetation assist the viability of each stand. (f) The size of the community on the defendant's property of 1.8 ha does not necessarily mean it is not viable. I accept the evidence of Dr Keith and Mr Lembit in preference to the evidence of Mr Fanning and Dr Mills. The study of Gilfedder and Kirkpatrick (L Gilfedder and J B Kirkpatrick, "Factors influencing the integrity of remnant bushland in subhumid Tasmania", Biological Conservation 84 (1998) 89-98) established that size is not a necessary determinant of viability – smaller size areas can still be viable. Dr Keith and Mr Lembit gave examples of very small patches of bushland in urban Sydney which support examples of other endangered ecological communities. The interconnection of the vegetation on the defendant's property with adjoining and proximate vegetation also assists the viability of the vegetation on the defendant's property. (g) The vegetation on the defendant's property, as a representative remnant of the endangered ecological community, is close to the northern limit of distribution of the community. This, in combination with the other features described above indicates that the property samples an important range of variation in the endangered ecological community. 101 Secondly, the clearing the subject of the charges has had a significant effect on the community on the property. Again, I accept the evidence of Dr Keith and Mr Lembit in preference to that of Mr Fanning and Dr Mills to the extent that they differ: (a) The removal of the trees has resulted in the loss of some native plant species from the property. Eleven species of native plant species that were previously recorded on the site prior to clearing were not found by Dr Keith in his survey in August 2004. One example of a species that has been lost from the site is Banksia spinulosa . This was described by Gunninah Environmental Consultants in their flora assessment as being a significant part of the understorey before clearing. It is now absent from the site. Further, a eucalypt, Eucalyptus cinerea , and a shrub, Grevillea rosmarinifolia , which were uncommon on the site before clearing, were not observed by Dr Keith after clearing in August 2004. (b) The removal of the trees has resulted in a substantial change in the structure of the vegetation by removing the tree canopy. A mosaic of open scrub and grassland, varying in height from 0.5m to 3m, has replaced an open forest-woodland that was approximately 25 m tall prior to the offences taking place. Whilst most of the tree species present on the property prior to the clearing are still present, they are represented as juvenile individuals 1-3 m tall. This has an effect on the interactions that the canopy has with other species in the community, including plants that grow underneath the canopy in terms of the amount of shelter and shade and the amount of water that is taken up from the soil. (c) The mature trees on the property included old and very old trees. In relation to the three trees the subject of the second charge, Mr Lembit determined one was at least 130 years old, a second exceeded 100 years and a third was approximately 60 years old at the time of felling. (d) The removal of mature trees has reduced the suitability of the property as habitat for a range of tree-dependant fauna. It will take at least 50-60 years before regenerating saplings that are currently on the property attain a similar height and girth to the trees that dominated the vegetation on the property prior to their removal. Tree hollows are a key habitat feature for a range of birds and mammals that inhabit woodlands and forests such as Southern Highlands Shale Woodland. Hollows suitable for occupancy by vertebrate fauna generally do not occur in eucalypts that are less than 120-150 years old, with large hollows remaining rare in eucalyptus less than 220 years old. The Gunninah Environmental Consultants report recorded five hollow bearing trees on the property, none of which remain after the clearing. (e) The removal of trees on the site also removed habitat for bird species which feed within the tree canopy or on insects which live under tree bark, forest bats which forage across the tree canopy and animals such as common brushtail possums which reside in hollows and feed within the tree canopy. (f) The Southern Highlands Shale Woodland endangered ecological community is among the least well conserved endangered ecological community within the Sydney Basin Bioregion. Less than 1% of the pre European extent of the Southern Highlands Shale Woodland community is protected within the conservation reserve system. This means that impacts on vegetation stands comprising the community on unreserved land are more significant than if the community had been adequately protected in conservation reserves. (g) 39 introduced plant species (weeds) have been recorded on the property since the dates of the offences. This represents about 28% of the total known vascular flora on the property. The weed flora currently present on the property includes a number of aggressive weed species that have the potential to compete with and eliminate native plant species. The invasion and spread of the plant species is accelerated by soil disturbance and removal of tree canopy, which creates open space for their establishment and growth. (h) There has been considerable disturbance to surface soils on the property, attributable to the use of heavy machinery and removal of tree stumps. Localised soil compaction has occurred where vehicles access the property to remove trees. The area of most heavily compacted soil, at the access to the property from Biggera Street, lacks woody plant species, has a high proportion of weeds to native ground cover and a high proportion of bare ground. (i) A considerable volume of woodchips has been stockpiled at numerous locations on the property. As at 18 July 2006, there were stockpiles of woodchips at 9 locations on the property. These sites remain unvegetated, although a number of pioneer weed species have colonised their margins. 102 However, the vegetation on the property does have excellent capacity for regeneration if further disturbance to the property is avoided. This rehabilitation requires some, although minimal intervention. Measures would include removing the stockpiles of woodchips, monitoring and controlling occurrences of aggressive weed species using spot control techniques to avoid damage of native vegetation, restricting vehicular access to the site and excluding further disturbance to the property. The capacity for regeneration means that the environmental damage caused by the clearing is able to be remedied over time. State of mind of offender 103 The prosecutor submitted that the offences were committed deliberately. The defendant knew that what he was doing was clearing vegetation which was an endangered ecological community under the law and that the community posed a legal impediment to his plans for subdivision of the subject land. The deliberateness of the offences made them more serious than offences committed due to inadvertence or error. 104 The defendant accepted that the clearing was planning by the defendant and conducted by or on behalf of the defendant. The defendant submitted, however, that the clearing must be considered as part of the defendant's actions following on from the bushfire of 2003 leading to the removal of the trees the subject of the second charge. 105 The defendant submitted that the clearing occurred following receipt by the defendant of the report by Gunninah Environmental Consultants and in reliance of that report. The defendant acted in reliance on that report in preference to the material provided to him by his surveyors, Mr Stone and from the Department of Environment and Conservation. 106 The defendant submitted that if the trees that were cleared were not Southern Highlands Shale Woodland, then there would be no prohibition on the clearance on the trees. The only action that would have needed development consent was the plan to subdivide the land. The defendant submitted that the report by Gunninah Environmental Consultants supported a view that the trees were not part of the Southern Highlands Shale Woodland. 107 The defendant submitted that the commission of the offence occurred after the lodging of the development application for subdivision. That application was accompanied by the Gunninah Environmental Consultants report and a bush fire hazard assessment and protection measure report prepared by AVK Environmental Management dated 25 February 2003. The clearing of the trees occurred after these reports had been lodged with the Council. 108 The offences with which the defendant is charged against s 118A(2) of the National Parks and Wildlife Act, like many environmental offences, are strict liability offences. Mens rea is not an element of the offence. Nevertheless, the state of mind of a defender at the time of the offence can have the effect of increasing the seriousness of the crime. A strict liability offence that is committed intentionally will be objectively more serious than one which is committed unintentionally. The more culpable the state of mind, the more severe the punishment ought to be. Culpability turns on the offender's purpose, the extent of the offender's knowledge of the circumstances surrounding the conduct, the conduct itself, its results and the reasons for the offender's behaviour. 109 A large measure of premeditation will make the offence more serious than if it is committed on the spur of the moment: R v Morabito (1992) 62 A Crim R 82 at 86; R v Bata Industries Ltd (1992) 92 OR (3d) 329, 7 CELR (NS) 245 at [181] and Dempsey v R [2002] QCA 45 (22 February 2002). 110 A failure to heed advice or warnings, including from regulatory authorities, will be an aggravating feature: R v F Howe & Son [1999] 2 All ER 249 at 254; R v Yorkshire Water Services Ltd [2002] 2 Cr App R(S) 13, [2002] Env LR 18 at [17]; R v Bata Industries Ltd (1992) 92 OR (3d) 329, 7 CELR (NS) 245 at [192]. 111 I find, beyond reasonable doubt, that the defendant's actions constituting each of the offences charged were premeditated, deliberate and failed to heed the advice and warnings of the defendant's consultants, the National Parks and Wildlife Service and the Council. 112 The defendant's assertion that he understood that the vegetation on the property was not part of the Southern Highlands Shale Woodland community and that he relied on the Gunninah Environmental Consultants report to clear the property is inconsistent with the evidence. 113 At the time of the defendant arranging for the first series of clearing constituting the first offence between November 2003 to April 2004: (a) The defendant or his consultants had received a s 149 certificate for the defendant's property indicating the presence of Southern Highlands Shale Woodland (dated 19 November 2002). (b) After a meeting with the Council on 6 February 2003, the defendant's consultant, Mr Gill, and in turn the defendant was informed of the presence of Southern Highlands Shale Woodland on the defendant's property and of the need for a flora and fauna study to be done as part of the development application. (c) On 4 March 2003, the defendant's consultant, Mr Gill, and the defendant received the flora and fauna report of the defendant's ecological consultant, Mr Stone, stating that the vegetation mapping by the National Parks and Wildlife Service showed the Southern Highlands Shale Woodland community to be on the defendant's property, that Mr Clarke of the Service's Threatened Species Unit advised the vegetation on the property was of that community and Mr Stone's professional opinion was of that community and that the defendant's proposed development was likely to significantly affect the community. (d) Also on 4 March 2003, the defendant stated to Mr Gill that Mr Stone's flora and fauna report was "not what I want to put to Council…the number of lots would be compromised because of Mr Stone's report. I don't feel that the development is going to be feasible. I want an alternative view that is going to support the development". (e) On 5 or 6 March 2003, the defendant was told by Mr Stone that from Mr Stone's site inspection he "identified a number of species on your property that are characteristic of the Southern Highlands Shale Woodland endangered ecological community. I checked this with the National Parks and Wildlife Service Unit and the mapping for the area. All this information is in my report". Mr Stone referred the defendant to the relevant legislation defining and listing the endangered ecological community, the Threatened Species Conservation Act . Mr Stone advised that the development proposed by the defendant would have a significant impact on the endangered ecological community. Although it may still be possible to develop the lot, the defendant would have to reconsider the number and layout of the lots (in order to preserve more of the vegetation). The defendant said he did not "like the sound of how this is going to effect my development" and that "I do not want to consider alternatives to the proposed subdivision". The defendant said he would be contacting his solicitor about the matter. (f) On 2 June 2003, the defendant's solicitors and then the defendant received the flora and fauna assessment report by Gunninah Environmental Consultants. That report found that the vegetation on the property was of the Southern Highlands Shale Woodland endangered ecological community, although it appeared to constitute a marginal or variant patch and was not a significant or valuable example of the community. On the basis that the vegetation was of the endangered ecological community, an assessment of the likely significance of the impacts of the proposed development on the endangered ecological community was carried out. This assessment concluded the proposed development would not have a significant effect on the community. No where in the report is it asserted that the vegetation is not of the Southern Highlands Shale Woodland community or that the vegetation could be cleared without approval. (g) On 2 September 2003, the defendant's consultant, Mr Gill, and then the defendant received a letter from the National Parks and Wildlife Service (Ms A Sullivan) to the Council dated 23 August 2003 enclosing a report of Mr Priday, a threatened species officer with the Service. The letter and report indicated that the defendant's property contained a representative remnant of Southern Highlands Shale Woodland and that the findings of the Gunninah Environmental Consultants' report were not supported by the National Parks and Wildllife Service. The letter recommended to the Council that the defendant's development application in its current form be rejected. (h) On 9 September 2003, the defendant spoke with Mr Gill about the National Parks and Wildlife Service's letter and report, saying "I am going to refer the National Parks and Wildlife concerns to Gunninah for a response". (i) The defendant did not refer the National Parks and Wildlife concerns to Gunninah Environmental Consultants for response. Mr Fanning had no further contact with the defendant after sending his report on 2 June 2003. Furthermore, Mr Fanning says "he would not have advised [the defendant] to clear the site or remove trees without a development consent or further advice". 114 This evidence establishes that prior to the defendant instructing Mr Murchie to fell trees on the defendant's property in November 2003 (which felling continued into January 2004), the defendant was aware that: (a) The unanimous expert opinion was that the vegetation on the property was part of the Southern Highlands Shale Woodland endangered ecological community. This was the opinion of the Council (s 149 certificate and telephone advice to Mr Stone), the National Parks and Wildlife Service (NPWS mapping of the community on the defendant's property and telephone advice of Mr Clarke to Mr Stone, Mr Priday's report and Ms Sullivan's letter to the Council), the defendant's first ecological consultant, Mr Stone, and even of the defendant's second ecological consultant, Gunninah Environmental Consultants (although they considered the vegetation to be a marginal or variant patch of the community). (b) The endangered ecological community was defined and listed under legislation, the Threatened Species Conservation Act , and that listing had a legal consequence. (c) There was a difference in expert opinion as to whether the defendant's proposed development would be likely to have a significant effect on the endangered ecological community. The defendant's second ecological consultant, Mr Fanning of Gunninah Environmental Consultants, was of the opinion that it would not, but the defendant's first ecological consultant, Mr Stone, was of the opinion that it would as were Mr Priday and Ms Sullivan of the National Parks and Wildlife Service Threatened Species Unit, who further stated to the Council that Gunninah Environmental Consultants' findings were not supported. (d) The presence of the Southern Highlands Shale Woodland endangered ecological community on the defendant's property and the possibility that the proposed development would be likely to significantly affect the community, diminished the likelihood of the defendant being able to obtain development consent for his development in the form proposed (as the defendant was warned by Mr Stone and as the National Parks and Wildlife Service had stated to the Council in its letter of 23 August 2003). 115 By the time the defendant arranged for the second series of clearing on 28 December 2004 constituting the second offence: (a) On 8 April 2004, the defendant's contractor, Mr White, had been visited on site by a Council officer, Mr Prestidge, in response to complaints of illegal clearing. (b) In mid-April 2004, the defendant's consultant and then the defendant received a letter from the Council dated 13 April 2004 indicating that the defendant's property had been cleared of trees. In a telephone call, the defendant said he would deal with the Council's letter (although he never did contact the Council). (c) On 20 April 2004, the Council refused the defendant's development application for the residential subdivision (which involved the removal of the trees on the property). (d) On 9 May 2004, the defendant drilled holes and inserted herbicide into the holes in a large gumtree on the defendant's property. (e) On 27 May 2004, the defendant received a telephone call from Mr Bond of the Department of Environment and Conservation requesting the defendant participate in an interview about the clearing of trees on the defendant's property. The defendant indicated he did not intend to speak to Mr Bond in relation to vegetation clearing at the property. (f) On 1 June 2004, the defendant received a letter from the Department of Environment and Conservation (Mr Bond) requesting the defendant to contact Mr Bond to arrange an interview about the clearing of trees on the defendant's property (the defendant never did). 116 This evidence establishes that, prior to the defendant instructing Mr Ragg to fell the trees (three live and one dead) on the defendant's property on 28 December 2004, the defendant not only continued to be aware of the matters I have described above that he was aware of prior to the first series of clearing in November 2003 to January 2004, but also was aware that his conduct of arranging for the earlier clearing of vegetation was under investigation by the Council and the Department of Environment and Conservation for being illegal and he had declined to be interviewed about the clearing. Notwithstanding the defendant's cumulative knowledge of these matters, he arranged for further clearing of trees to be undertaken. 117 The conduct of the defendant in the circumstances of both the first series of clearing and even more so with the second series of clearing, was deliberate and premeditated and in disregard for whether the conduct was lawful or not. Reasons for committing the offence 118 The prosecutor submits that not only were the offences committed deliberately, the offences were committed for commercial gain. The motive for the defendant's offences was to clear the land for the purposes of making a subdivision application. The motive for the subdivision application was obviously commercial. 119 The defendant submitted that the clearing was motivated partially by the need to ensure that bush fire risk was minimised on the subject site and partially because of the uncertainty of certain conclusions of the Gunninah Environmental Consultants' Report concerning the existence of Southern Highlands Shale Woodland on the site. 120 The criminality involved in the commission of the offence is to be measured not only by the seriousness of what actually occurred, but also by reference to the reasons for its occurrence: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Director-General National Parks and Wildlife v Wilkinson [2002] NSWLEC 71 (27 September 2002) at [92]; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [237] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [140]. 121 The carrying out of an offence to make a profit, or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime: see State Pollution Control Commission v T J Bryant Pty Ltd [1991] NSWLEC 70 (11 June 1991); Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) at p 1; R v F Howe & Son [1999] 2 All ER 249 at 254; R v Milford Haven Port Authority [2000] JPL 943 at 950; Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 (22 December 2005) at [97]-[99], [149] and [167]; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at 269 [238], 270 [246] and [247]; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at 364 [70]; and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [141]. See also C Hatton, P Castle and M Day, "The environment and the law: does our legal system deliver access to justice? A review" (2004) 6(4) Environmental Law Review 240 at 264 and M Watson "Environmental Offences: the Reality of Environmental Crime" (2005) 7(3) Environmental Law Review 190 at 199, 200. 122 I find, beyond reasonable doubt, that the clearing was carried out for personal gain. The presence of Southern Highlands Shale Woodland diminished the prospects of the defendant gaining development consent for the proposed subdivision of the property into 14 lots. Conversely, removal of the vegetation improved the prospects of gaining development consent. The defendant would have profited if consent was obtained for the subdivision into 14 lots and erection of dwellings on the subdivided lots. 123 I reject the defendant's submission that he was uncertain concerning the existence of the Southern Highlands Shale Woodland endangered ecological community on the property. As I have found above, the defendant knew that the unanimous expert opinion was that the community existed on the site. I also reject the defendant's submission that his purpose for clearing the trees on the property was to minimise bushfire risk. Neither the AVK Environmental Management report nor the NSW Rural Fire Service's letter to the Council required the removal of the trees regardless of whether the defendant's proposed residential subdivision proceeded (see further the discussion on this point below in relation to the defendant's letter to the Court). Rather, it was the proposed residential subdivision which necessitated the removal of the trees. 124 In these circumstances, the defendant knew that, or at least knew, there was a high likelihood that, the vegetation was of the Southern Highlands Shale Woodland endangered ecological community when he arranged for it to be cleared. He certainly knew that the Council initially and later National Parks and Wildlife Service considered it to be Southern Highlands Shale Woodland and that view had been communicated to the Council who was the consent authority considering the defendant's development application. Whilst so ever the vegetation remained, the National Parks and Wildlife Service and the Council would be likely to maintain that view. 125 Subsequent to the defendant committing the first offence, the Council refused development consent for the development application. By this time, the defendant knew that there was no prospect that the development application would be approved whilst there was vegetation on the site that comprised the endangered ecological community of the Southern Highlands Shale Woodland. 126 The removal of the vegetation was designed by the defendant to remove a real impediment to his declared intention of carrying out subdivision and development of the land for profit. Foreseeability of risk of harm 127 The defendant could reasonably have foreseen that clearing of the trees would cause harm to the Southern Highlands Shale Woodland endangered ecological community. Practical measures 128 The defendant could have and should have refrained from arranging for the clearing of the trees comprising the Southern Highlands Shale Woodland unless and until development consent had been obtained for the proposed residential subdivision (which involved the clearing of the trees). As it happened, development consent was refused. After the first series of clearing, the Council determined to refuse consent to the defendant's application for subdivision. Refraining from clearing would therefore have had the real practical benefit of not causing any harm to the Southern Highlands Shale Woodland. Surrounding circumstances 129 The offences involve a series of criminal acts: s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999. The first offence occurred over a number of days. The second offence occurred after the defendant was aware that he was under investigation for committing the first offence. These surrounding circumstances suggest that the offences committed by the offender were not uncharacteristic aberrations: Veen v R (No 2) (1988) 164 CLR 465 at 477 and Camilleri Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700. The fact that the offences continued over a period make it also more serious than an isolated incident: R v F Howe & Sons [1999] 2 All ER 249 at 254. Conclusion on objective circumstances 130 Taking each of these objective circumstances of the offence into account, the first offence can be seen to be of medium to high objective gravity and the second offence of medium objective gravity. The first offence is, overall, of greater objective gravity because of the extent of the environmental harm – the first series of clearing of 45 trees inflicted most of the environmental harm that I have earlier described. The first series of clearing was also the commencement of the deliberate conduct to remove the impediment posed by the vegetation on the defendant's commercial aspirations of developing his land. Nevertheless, the second offence is still serious. The three trees removed were still of significance, being old to very old with the concomitant benefits for wildlife. Indeed, in one respect, the second offence is more serious than the first. This is the wilfulness of the second clearing, being arranged by the defendant in the knowledge that he was under investigation for illegally clearing the first stand of trees on the property. Subjective circumstances of the defendant 131 Within the limits set by reference to the objective gravity of the offences, the Court may take into account the favourable factors personal to the offender. Lack of prior criminality 132 The defendant does not have any prior convictions for environmental offences: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. Prior good character 133 There is evidence that the defendant has otherwise been of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. Plea of guilty 134 The defendant has pleaded guilty to each of the offences: s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. However, the pleas of guilty were entered late, being entered just before the trial was fixed to commence. The defendant's plea of guilty has utilitarian value. However, the extent of the utilitarian value depends upon, amongst other factors, the timing of the plea. A late plea merits a discount towards the lower end of the range given for the utilitarian value to the criminal justice system of a plea of guilty of 10-25%: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160]. I would assess the utilitarian value of the plea to merit a discount of 12.5%. Contrition and remorse 135 The defendant submitted that the court would find he is contrite and remorseful by reason of: (a) his plea of guilty; (b) his letter dated 26 July 2006 to the sentencing court expressing contrition and remorse; (c) the letter from the defendant's employer stating that the defendant has expressed great remorse; and (d) the letter of the defendant's solicitor dated 26 July 2006 to the prosecutor offering to pay $75,000 for the rehabilitation of land at other sites. 136 I will deal with each of these submissions. Plea of guilty as expression of remorse 137 A plea of guilty may be a practical expression of an offender's genuine contrition and remorse. This remorse element needs to be taken into account independently of the utilitarian element. It has significant implications for other objectives of the sentencing process. Genuine remorse would indicate that the purpose of personal deterrence does not need to be given weight in the particular case. It also indicates the prospects of rehabilitation are good: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 412 [116]. 138 A plea of guilty is, of itself, equivocal with respect of remorse. A mere plea of guilty from a person caught red-handed is not evidence of remorse: R v Power [1999] NSWCCA 25 (5 March 1999) at [21]; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at 369 [93]. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage may be afforded in the circumstances. In such a case, a plea does not indicate genuine contrition and remorse: R v Winchester (1992) 58 A Crim R 345 at 350, R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 412 [117]-416, [137]-417, [139]; R v Kalache (2000) 111 A Crim R 152 at 202 [199]. The strength of the prosecution's case is relevant to the evaluation of remorse and the weight that should be given to that factor in determining the appropriate sentence: R v Sutton [2004] NSWCCA 225 (6 July 2004) at [12]; R v McNaughton [2006] NSWCCA 242 (11 August 2006) at [46]. 139 In this case, the evidence does not support making a finding that it is more probable than not that the pleas of guilty entered by the defendant give practical expression to genuine contrition and remorse. The defendant's pleas have been entered at the very last minute in the face of what was an overwhelming prosecution case. The comprehensive nature of the prosecution case and the inevitability of obtaining conviction are the only explanations for the change in the defendant's plea at the last minute. They are not an indication of genuine contrition and remorse at all. 140 The defendant did not give sworn evidence. He did tender a letter he wrote to the court. I will deal with this letter below. The letter does not address at all his pleas or the reasons why the defendant at first pleaded not guilty and only changed his plea to guilty just before the trial was to commence. Accordingly, it has not been possible to determine from any evidence of the defendant the reasons for the late entry of the pleas of guilty. 141 The defendant read an affidavit of the defendant's solicitor, Mr Culleton. That affidavit sets out part of the history of the preparation of the proceedings. Presumably, this evidence was intended to provide a factual basis from which inferences could be drawn as to why the defendant delayed as long as he did before changing his pleas to guilty. 142 Mr Culleton states that as part of the proceedings, Mr Culleton's office had been served with numerous expert reports and lay evidence of the prosecutor. In fact, Mr Fox, a solicitor with the prosecutor, in another affidavit in response to Mr Culleton's affidavit, states that the defendant's previous solicitors had been served with the vast majority of expert reports and lay evidence on 7 November 2005 with a further expert report on 17 December 2005. On 1 February 2006, one further affidavit was served on Mr Culleton. 143 Mr Culleton noted Mr Fanning of Gunninah Environmental Consultants had provided to the defendant a report. Mr Culleton's office requested on 6 April 2006 the prosecutor provide further particulars of the summons. A response was received from the prosecutor's office on 16 May 2006. 144 Mr Culleton said that "after receiving service of the evidence from the prosecutor, correspondence was entered into with Dr Mills on 10 May 2006 enclosing all relevant evidence and requesting his assistance". On 11 May 2006, Mr Mills contacted Mr Culleton's office and said that he would not be able to provide his views until he returned from travel overseas. Mr Culleton spoke to Dr Mills on 27 June 2006. Dr Mills said that he would consider the evidence that had been sent to him. On 29 June 2006 a telephone conference was arranged with Dr Mills. 145 On 4 July 2006, Mr Culleton's office requested the prosecutor prepare a draft agreed facts and stated that the defendant would not require any lay witnesses for cross-examination. On 10 July 2006, Mr Culleton says his office entered into correspondence with the prosecutor in terms of resolving the matter by way of an early plea. After further negotiations with the prosecutor's office, pleas of guilty were entered to the charges on 17 July 2006. 146 This evidence does not provide any indication of genuine contrition and remorse by the defendant. The defendant had available all the prosecutor's evidence, except for one affidavit, by December 2005. No action was taken for many months afterwards. Only after the defendant engaged Dr Mills to provide a report and he responded did the defendant determine to negotiate with the prosecutor. Presumably, this was because the report of Dr Mills was not favourable to the defendant maintaining his pleas of not guilty. Hence, what the evidence indicates is that as a result of considering the prosecutor's evidence and the further views of the recently engaged expert Dr Mills, the defendant considered that the prosecution would succeed and the pleas of guilty were the outcome of this inevitability. Defendant's letter to the court 147 The defendant wrote a letter dated 26 July 2006 to the presiding judge of the Court expressing regret and providing an explanation of the circumstances which brought about the commission of the offence. 148 The letter was tendered by the defendant. The prosecutor objected to the tender unless the defendant gave evidence to allow his assertions to be tested. The defendant declined to give evidence. The prosecutor submitted that in these circumstances no weight should be given to the evidence comprising the letter. I admitted the letter into evidence, leaving the question of weight to be determined later. 149 The prosecutor cited the decision of R v Elfar [2003] NSWCCA 358 (2 December 2003) at [24]-[25] in support of its submission that no weight should be given to the self-serving and untested statements of the defendant in the letter. The New South Wales Court of Criminal Appeal held: "[24] The Crown referred to two decisions of this court – R v Qutami [2001] 127 A Crim R 369 and R v McGourty [2002] NSWCCA 335. In the latter of these cases Wood CJ at CL said, at paragraph 24: "So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to the psychologist. Recently this court has criticised the practice of placing material of this kind before sentencing judges in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of the record: Regina v Qutami [2001] NSWCCA 353, at para 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ. I wholeheartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested." [25] The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports – ( R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so." 150 The particular statements made in the letter by the defendant make the inability of the prosecutor to test the statements by cross-examination of particular relevance. The defendant's statements, intended to minimise the objective seriousness of the offences, are on one view inconsistent with other evidence. This potential inconsistency was not able to be tested. The particular statements of relevance include: (a) the defendant's assertion of his "previous held understanding and belief that vegetation which existed on Lot 3 Biggera Street, Braemar did not constitute Southern Highlands Woodland Shale Forest (sic)"; (b) the defendant's assertion that "if I had believed at all that my actions in having vegetation removed from Lot 3 Biggera Street, Braemar were to be such as to be capable of constituting a breach of the law, I would not have proceeded at all"; (c) the defendant's assertion that, having read the reports of Gunninah Environmental Consultant and AVK Environmental Management, he "mistakenly acted upon them to cut down the larger trees on the subject site"; (d) the defendant's assertion that "given that current fire prevention rules require vegetation to be cleared for 20 metres from an adjoining property boundary and given the narrow shape of Lot 3 particularly at its western end, it occurred to me that the only long-term safe fire prevention action to take was to remove all of the combustible and fire transmissible vegetation from the land"; and (e) the defendant's assertion that "the Council and the Rural Fire Service would be pleased to have the combustible vegetation removed from Lot 3 as it was incompatible with and threatened an increasing number of adjoining and surrounding residences". 151 The defendant's assertion in (a) is inconsistent with the evidence that the defendant was aware that the unanimous expert opinion was that the vegetation on the defendant's property was part of the Southern Highlands Shale Woodland endangered ecological community. This was the opinion of the Council (the s 149 certificate and telephone advice to Mr Stone, communicated to the defendant), the National Parks and Wildlife Service (the NPWS mapping showed the community on the defendant's property, Mr Clarke advised Mr Stone that the vegetation on the defendant's property was part of the community, and Mr Priday's report and Ms Sullivan's letter to the Council stated the vegetation was part of the community, all of which information was communicated to the defendant), the defendant's first ecological consultant, Mr Stone (in his report and oral communications to the defendant) and even the defendant's second ecological consultant, Gunninah Environmental Consultants (in its report notwithstanding the opinion that it was a marginal or variant patch of the community). 152 The defendant's assertion in (b) is inconsistent with the evidence of the whole purpose and process of obtaining a flora assessment as part of the development application process. From the outset, the defendant was aware that the presence on the property of vegetation that might be part of the Southern Highlands Shale Woodland endangered ecological community necessitated the preparation of a flora assessment and an assessment of the likely significance of the effect the development was likely to have on the community. The defendant was aware that these assessments needed to accompany the development application and would be taken into account by the Council in determining whether development consent should be granted to the carrying out of the residential subdivision which would involve the almost total removal of the vegetation on the property. The defendant's actions in obtaining another ecological consultant to support his development application after Mr Stone's conclusions against the defendant's interests evidence the defendant's awareness. 153 If the defendant had believed he could carry out clearing of the vegetation without consent, he would not have engaged in this lengthy and detailed process of applying for consent for development that included the clearing of vegetation and of obtaining flora assessments from consecutive ecological consultants of the impacts of the clearing of the vegetation. 154 It is relevant to note that the defendant engaged throughout the process solicitors to advise him and indeed the defendant said when dissatisfied with Mr Stone's advice that he would be consulting his solicitors about the matter. 155 By the time of the second series of clearing, the defendant was on notice that he was under investigation by the Council and the Department of Environment and Conservation for illegally clearing vegetation on the property. The defendant was aware then that his "actions in having vegetation removed…were to be such as to be capable of constituting a breach of the law" yet he nevertheless proceeded to arrange for further clearing to be undertaken by Mr Ragg on 28 December 2004. 156 The defendant's assertion in (c) is inconsistent with the contents of the reports of Gunninah Environmental Consultants and AVK Environmental Management. As I have noted already, the Gunninah Environmental Consultants' report finds the vegetation on the defendant's property to be part of the Southern Highlands Shale Woodlands community, although a marginal or variant patch. No where in the report is it stated that the vegetation can be cleared without consent. The AVK Environmental Management Report also does not state that the vegetation on the property could be cleared without approval. The purpose of that report is entirely different. That report evaluates the bushfire hazard risk if the development of subdivision and subsequent erection of dwellings on the subdivided lots were to be carried out and makes recommendations to minimise the bushfire safety risk. No where does the report assert that any of the recommended measures should be taken independently of the carrying out of the proposed development. 157 Nowhere in either report is it stated that the "larger trees" on the defendant's property should be cut down, let alone the particular trees that the defendant arranged to be cut down that are the subject of the charges, regardless of whether the proposed development was approved and carried out. 158 The defendant's assertion in (d) is inconsistent with the contents of the AVK Environmental Management report, for the reasons given above. Further, nowhere in that report does it assert that "all of the combustible and fire transmissible vegetation" on the defendant's property should be removed regardless of whether the proposed development was approved and carried out. 159 The defendant's assertion in (e) is inconsistent with the content of the New South Wales Rural Fire Service's letter of 12 August 2003. The letter notified the Council of the general terms of approval that the Rural Fire Service would require the Council to include as conditions of consent if the Council determined to grant consent to the defendant's development application for the proposed subdivision and erection of dwellings. The condition required by the Rural Fire Service was to implement the consultant's summary recommendations in the AVK Environmental Management Report. These recommendations presupposed the carrying out of the proposed subdivision and erection of dwellings. If development consent were not to be granted, the proposed development could not be carried out and accordingly, the recommended measures could not be carried out. The Rural Fire Service's letter does not authorise the carrying out of the consultant's summary recommendations regardless of whether the proposed development was approved and carried out. 160 In circumstances where the defendant's exculpatory assertions in the letter are inconsistent with other evidence and where, by the defendant declining to give sworn evidence, no opportunity has been afforded for the assertions to be tested, little weight should be given to the defendant's assertions. 161 Another aspect of the defendant's evidence in the letter that was not able to be tested was the subject matter of the defendant's asserted contrition and remorse. On one construction of the statements in the letter, the regret expressed by the defendant is that, having acted "contrary to the law", he finds himself being sentenced by the Court and could face "serious consequences". This might be inferred from the following statements of the defendant: (a) "I address this letter to your Honour with utmost sincerity and profound regret that I find myself in circumstances for which serious consequences must be considered by the court"; (b) "On the basis of the expert opinion which has been produced by the Department of Environment and Conservation (DEC) that the vegetation which I arranged to be removed from Lot 3 was part of an assemblage of Southern Highlands Woodland Shale Forest (sic) I must acknowledge that my actions were contrary to the law in respect of which I am profoundly sorry and regretful. I apologise to both the Court and the community for what I have done"; (c) "I understand that the Court must deal with this matter according to law but in support of this submission of sincere apology for having broken the law, I am of the opinion that submission of information to the court would serve to outline the circumstances which brought about this regrettable situation may be of significant assistance to the court in its deliberation on this matter"; and (d) "The information is however submitted for the purpose of providing the Court with insight into the matters which caused me to act as I did and to inform the Court of my remorse and regret for my actions, which may assist the Court in reaching its conclusions in this matter". 162 On this interpretation, the defendant's regret is not genuine contrition and remorse for the wrongfulness of his conduct. The defendant's submission to the contrary was not able to be tested. Defendant's employer's letter to the court 163 The defendant also tendered a letter from his employer, Mr Oxley, the Chief Executive Officer of Wollongong City Council. In that letter, Mr Oxley sated that the defendant had informed him that he had been charged with illegally clearing a number of ecologically important trees on land he owned in the Southern Highlands. The defendant later informed Mr Oxley that he had pleaded guilty to the charges. Mr Oxley stated: "I have discussed with Dennis his actions, the subject of the proceedings and he has expressed his great remorse for what he has done. In my judgment, his remorse is clearly genuine. His actions have brought shame upon himself and this has taken an obvious toll upon him. I am however entirely confident that Dennis will not act in this way ever again". 164 Mr Oxley's letter was also objected to by the prosecutor on the same basis as it objected to the defendant's letter. Mr Oxley did not attend court to give evidence orally and was not available for cross-examination. I admitted the letter subject to weight. As the prosecutor asserts, in the absence of oral evidence from Mr Oxley which could be tested, the assertions in his letter as to the defendant's remorse should be given little weight. It is not known whether Mr Oxley understands the difference between remorse for being proceeded against and remorse for having done the wrong thing or that he could distinguish between the two if he did. 165 As I have found above, the defendant's assertions of remorse do not sit easily with the evidence of the deliberateness and premeditation of the defendant's conduct and the defendant's knowledge in relation to the endangered ecological community and the need for approval before carrying out his proposed development which would involve clearing of the trees. Furthermore, as the prosecutor notes, the defendant committed his second offence in December 2004 in the knowledge that he was under investigation for the felling of 45 trees between November 2003 and January 2004. Notwithstanding that, the defendant went ahead and committed the second offence. As the prosecutor submits, it is difficult to reconcile this conduct with the remorse of which Mr Oxley speaks in his letter. No remorse for consequences 166 The evidence does not establish that the defendant has any contrition or remorse for the consequences of clearing the Southern Highlands Shale Woodland endangered ecological community. 167 First, the defendant's letter to the Court does not express any contrition or remorse for the consequences of his conduct to the environment, particularly the Southern Highlands Shale Woodland endangered ecological community. The generalised apology to "both the Court and the community for what I have done" is insufficient to establish specific contrition and remorse for the environmental consequences of his conduct. 168 Secondly, at no time when the defendant was confronted with an expressed concern by the Council or the Department of Environment and Conservation as to the legality of the clearing, did the defendant express any regret that he might have illegally cleared vegetation and caused environmental harm. The defendant did not respond to the Council's concerns expressed in its letter of 13 April 2004. The defendant declined to be interviewed by the Department of Environment and Conservation. He said to Mr Bond on 27 May 2004 he would not speak about the vegetation clearing at the property and did not respond to Mr Bond's letter of 2 June 2004. He declined to speak to the Council officer Mr Fonti on 28 December 2004 about the further clearing he had just undertaken. On each of these occasions, there was an opportunity for the defendant to make a contemporaneous expression of contrition and remorse, but none was forthcoming. 169 Thirdly, the defendant has not undertaken to take any action to ensure that the Southern Highlands Shale Woodland community on the defendant's property regenerates and will be not disturbed in the future by conduct of the defendant. The letter of the defendant's solicitor of 24 July 2006 is silent on the defendant undertaking remedial measures on the property or refraining from disturbing the vegetation in the future. The defendant's counsel submitted that there was no need for the defendant to undertake not to disturb the vegetation in the future because, as the vegetation is part of an endangered ecological community, the law prohibits such disturbance without legal authority. That submission is, of course, legally correct. But if there were to have been an undertaking of the defendant not to disturb in the future the community on the property, there would be some evidence from which the Court could draw a conclusion of the defendant's contrition and remorse as to the consequences to the ecological community. 170 Fourthly, little weight can be given to the offer made by the defendant's solicitor in the letter dated 24 July 2006 to the prosecutor. Mr Culleton, the defendant's solicitor, stated in this letter: "We have received instructions from our client to propose that he will pay the sum of $75,000.00 payable within six (6) months to the Department for the purpose of rehabilitation or restoration of land on other sites at the discretion of the Department. This offer is made as a genuine expression of Mr Williams' contrition and remorse for the clearing and to compensate for the environmental harm caused by his actions. The writer understand that this offer is to implement what is often referred to as biobanking or offsetting". 171 Again, the offer in the letter is not the subject of sworn evidence that is capable of being tested: R v Elfar [2003] NSWCCA 258 (2 December 2003) at [24]-[25]. As stated in R v Elfar, if an offender appearing for sentence wishes to place evidence before the Court which is designed to minimise his criminality, then it should be done directly and in a form that can be tested. If untested material is put before the Court, and the Crown objects to the tender, the sentencing court would be entitled to treat the material as being of little or no weight. 172 Further, as the prosecutor submitted, there has been little action by the defendant to implement his offer. A very real question is why it is necessary to pay money for the restoration of land on other sites rather than using the funds offered for the short term management of the subject site. As the expert evidence made clear, the biggest threat to the long term viability of the property is disturbance and the defendant and his plans for residential subdivision are the most likely source of that disturbance. 173 In all the circumstances, I do not find on the balance of probabilities that the defendant is genuinely contrite and remorseful for the commission of the offences and the consequences caused by the commission of the offences. Assistance to authorities 174 The defendant has not provided assistance to the authorities. In the course of the investigation of both the first and the second offences the prosecutor requested the defendant to make itself available for an interview. The defendant declined to participate in any interview. The defendant maintained his pleas of not guilty putting the prosecutor to proof until the last minute when he altered his pleas to guilty. 175 In this case, therefore, there is no evidence of warranting a lesser penalty by reason of cooperation with law enforcement authorities. Capacity to pay fines 176 The defendant, through a statement from the bar table by his senior counsel, has stated that he is aged 54. He is a married man. His wife is a nurse in full time employment. He has three children – two sons aged 25 and 19 and a daughter aged 23. The land in Biggera Street, Braemar is in his own name. It is mortgaged to the value of $150,000. He owns jointly with his wife the residential home at 18 Elizabeth Street, Mangerton. It is unencumbered. A recent sale in the street went for $600,000. 177 The defendant is employed with Wollongong City Council as a senior administrative officer in Council's technology and administrative division. A PAYG payment summary tendered by the defendant reveals a gross annual salary of $61,721. 178 These facts do not disclose that the defendant is of limited means or impecunious. Nevertheless, this information about the accused's means to pay can be and is taken into account under s 6 of the Fines Act 1996. Synthesis of objective and subjective circumstances 179 The prosecutor submitted that consideration should be given to a sentence of imprisonment. As noted above, the maximum penalty includes imprisonment for two years either by itself or in addition to a fine. The circumstances and consequences of the commission of the offences, including the deliberateness and commercial motive and the harm done to the endangered ecological community, are sufficiently serious to make a sentence of imprisonment a sentencing option in this case. 180 However, considering all the possible alternatives and the fact that the defendant has no prior convictions and is of prior good character, I am of the view that it cannot be said that no penalty other than imprisonment is appropriate: s 5(1) of the Crimes (Sentencing Procedure) Act 1999. Instead, I consider a fine for each offence to be the appropriate penalty. 181 The fine for each offence needs to reflect the medium to high objective gravity of the first offence and the medium objective gravity of the second offence and the subjective circumstances of the defendant for both offences. The appropriate amount of the fine for each offence should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances: Markarian v The Queen (2005) 79 ALJR 1048 a [37], [39], [66] and [73]. 182 The fines should achieve the purposes of sentencing including: · ensuring that the defendant is adequately punished for each offence and is held accountable for his actions: s 3A(a) and (e) of the Crimes (Sentencing Procedure) Act 1999; · denouncing the conduct of the defendant: s 3A(f) of the Crimes (Sentencing Procedure) Act 1999; · deterring both the defendant (specific deterrence) and other persons (general deterrence) from committing similar offences: s 3A(b) of the Crimes (Sentencing Procedure) Act 1999; and · recognising the harm done to the community particularly by reason of the damage to the endangered ecological community: s 3A(g) of the Crimes (Sentencing Procedure) Act 1999; 183 The circumstances in which the offences were committed by the defendant, particularly the deliberateness of and the commercial motive for the clearing, make deterrence of particular importance. Courts have repeatedly stated that the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in relation to compliance with environmental laws: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at 257 [156] - 258 [157] and Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006) at [229]. It should not be cheaper to offend than to prevent the commission of the offence: R v Anglian Water Services Ltd [2004] 1 Cr App R(S) 62, [2004] JPL 458 at [31]. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains: M Watson, Environmental Offences: the Reality of Environmental Crime" (2005) 7 (3) Environmental Law Review 190 at 199-200; Walker v Eves (1976) 13 SASR 249 at 253; Piva v Brinkworth (1992) 59 SASR 92 at 96. The amount of the fine should be substantial enough so as not to appear as a mere licence fee for illegal activities. The sentence should create a disincentive to the harm envisioned by the statute (in this case, harm to endangered ecological communities): R v Bata Industries Ltd (1992) 9 Or (3d) 329, 7 CELR (NS) 245 at [187]. 184 In relation to the first offence, I consider that a fine of $144,000 is appropriate. This figure is calculated as follows. The synthesis of the objective and subjective circumstances warrants an amount of $120,000 for the principal penalty and $1,000 additional penalty for each of the 45 whole plants that have been affected by the commission of the offence, giving a total of $165,000. This figure is discounted by 12.5% for the utilitarian benefit of the plea of guilty to the justice system, and then rounded down to $144,000. 185 In the case of the second offence, the appropriate penalty is $72,000. This represents $80,000 for the principal penalty and $1,000 for each of the three whole plants affected by the commission of the offence, giving a total of $83,000. This figure is discounted by 12.5% for the utilitarian value of the plea and then rounded down to $72,000. 186 In fixing these amounts, I have taken into account the means of the defendant under s 6 of the Fines Act 1996. I have also taken into consideration that the defendant will be ordered to pay the costs of the prosecutor which might be substantial. These costs will also be part of the punishment of the defendant: see Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006) at [78], [84]. Totality principle 187 Consideration must now be given to the totality principle. The totality principle must be applied when sentencing an offender who has committed more than one offence. The effect of the totality principle requires the Court which is to pass a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate" and reflects the total criminality before the Court: Mill v The Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1988) 194 CLR 610 at 624 [49]. If the sentencing court believes that the totality principle requires an adjustment to the fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 346 (17 August 2006) at [50]. 188 In determining an appropriate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for a deliberate series of discrete offences: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36]-[37]. 189 In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: Regina v A [1999] NSWCCA 61 (30 March 1999) at [32]. 190 In this case, I consider that the totality principle does require there to be an adjustment of the fines that would otherwise be appropriate. The aggregate sentence of the amounts determined to be appropriate for each individual offence is $216,000. This aggregate may exceed what is just and appropriate, having regard to the total criminality involved and the fact that the second offence was, although a discrete offence, nevertheless a continuation of the course of conduct commenced by the first offence. 191 Accordingly, I would adjust the aggregate sentence to $180,000, apportioned $130,000 for the first offence and $50,000 for the second. This involves an adjustment of the amounts of the fines that would otherwise had been appropriate for the offences. Orders 192 For these reasons, the Court makes the following orders: 1. The defendant is convicted of each of the offences as charged. 2. The defendant is fined $130,000 in relation to the offence charged in proceedings No 50053 of 2005. 3. The defendant is fined $50,000 in relation to the offence charged in proceedings No 50056 of 2005. 4. The defendant is to pay the prosecutor's costs as agreed or assessed under s 253(2) of the Criminal Procedure Act 1986. ********** 30/01/2007 - In the heading of the actual judgment, the name of the prosecutor was incorrectly stated as the Environment Protection Authority. This has now been amended to Stephen Garrett. - Paragraph(s) heading of actual judgment 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.