> Land and Environment Court of New South Wales CITATION : Carmody v Brancourts Nominees Pty Limited; Carmody v Brancourt [No. 2] [2003] NSWLEC 84 Nos. 50057 of 2002 and 50058 of 2002 PROSECUTOR: Stephen Carmody DEFENDANT: Brancourts Nominees Pty Limited PARTIES : Nos. 50059 of 2002 and 50060 of 2002 PROSECUTOR: Stephen Carmody DEFENDANT: Maurice Albert Brancourt FILE NUMBER(S) : 50057 of 2002; 50058 of 2002; 50059 of 2000 and 50060 of 2002 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- environmental harm - habitat of threatened species - penalty - mitigation - double jeopardy - plea of guilty - remeditation plan Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED: National Parks and Wildlife Act 1974 s 118D, s 118E Threatened Species Conservation Act 1995 s 15 Cameron v The Queen (2002) 76 ALJR 382; 187 ALR 65; Carmody v Brancourts Nominees Pty Ltd; Carmody v Brancourt [2002] NSWLEC 181; CASES CITED: Pearce v The Queen (1998) 194 CLR 610; R v Thomson (2000) 49 NSWLR 383; Sparry's Case (1589) 5 Co Rep 61a [77 ER 148] DATES OF HEARING: 17/03/2003 DATE OF JUDGMENT: 04/04/2003 PROSECUTOR: Mr S J Rushton SC SOLICITORS: Vivienne Ingram LEGAL REPRESENTATIVES: DEFENDANT: Mr I S Lloyd QC SOLICITORS: Woolf & Associates JUDGMENT: - 12 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50057 of 2002; 50058 of 2002; 50059 of 2002 and 500560 of 2002 Lloyd J 4 April 2003 50057 of 2002 and 50058 of 2002 STEPHEN CARMODY Prosecutor v BRANCOURTS NOMINEES PTY LTD Defendant 50059 of 2002 and 50060 of 2002 STEPHEN CARMODY Prosecutor v MAURICE ALBERT BRANCOURT Defendant Judgment [No.2] Introduction 1 There are four summonses before the Court. In summons No. 50060 of 2002 the defendant, Maurice Albert Brancourt, has pleaded guilty to an offence against section 118D(1) of the National Parks and Wildlife Act 1974 ("the NP&W Act"). The prosecutor offers no evidence in the remaining three summonses, which are dismissed. 2 Section 118D(1) of the NP&W Act, entitled "Damage habitat of threatened species, population or ecological community", provides as follows. (1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, population or ecological community if the person knows that the land concerned is habitat of that kind. …… 3 The clearing of vegetation by the defendant resulted in damage to the core habitat of a population of koalas at lot 1 in deposited plan 546852, between Kingfisher Road and Eagle Avenue at Hawkes Nest ("the land"). The total area of land cleared was about 2.5 hectares, of which about 1.2 hectares was core koala habitat. 4 The plea of guilty is an admission of all the elements of the offence and renders proof of such elements of the offence, including the requisite defendant's knowledge, unnecessary. Further, subsequently to the conclusion of the hearing of this matter, the parties have reached an agreement whereby the defendant will pay the prosecutor's costs of $30,000. The sole remaining issue is that of penalty. The NP&W Act specifies a penalty of $110,000 or imprisonment for 1 year, or both. The facts 5 The court does not have the benefit of an agreed statement of facts. The facts relevant to penalty have thus been derived from the evidence adduced by the parties. They may be summarised as follows. 6 As noted above, the defendant's land is approximately 2.5 hectares in area, with 1.2 hectares recognised as containing core koala habitat. The habitat was identified by a threatened species and koala habitat report prepared by Ecotone Ecological Consultants Pty Ltd for the defendant when he applied to have the subject land rezoned. This particular koala population is listed under Sch 1 Pt 2 of the Threatened Species Conservation Act 1995 as an endangered population due to the rapid decline in numbers, which in this area have declined from 21 individual koalas in 1989 to 12 in 1998. 7 Despite the offence having been admitted, an examination of the events leading up to the clearing and the defendant's response to being told to cease clearing is necessary in order to gauge the magnitude of penalty to be imposed. In preparation for clearing part of the subject land of introduced species and dense undergrowth, Mr J Wasiak, an environmental planner of Harper Somers Pty Ltd ("Harper"), consultants employed by the defendant, wrote to Great Lakes Council ("the council") on 28 June 2000. This letter sought advice on clearing the land and stated the intention of the defendant not to interfere with the core habitat area or trees protected by the council's Tree Preservation Order ("the TPO"). An attached plan reveals the proposed clearance area as excluding the core koala habitat. It seems that the defendant was personally not privy to this initial correspondence. 8 It is certain, however, that the defendant was aware of the council's reply of 6 July 2000, which the defendant understood as permission to under-scrub the entire area, including the core koala habitat. In that letter, the council stated that it had "no objection to the proposed clearance of the land of introduced species and dense undergrowth subject to work being carried out in accordance with council's Tree Preservation Order". The council's letter further stated that: "any trees affected by the Order must not be lopped or removed without the prior approval of council". Nowhere in this letter did it refer to a plan of areas not to be cleared. 9 The defendant's state of knowledge of the koala habitat, before the clearing was undertaken, was disclosed in his interview with Mr S Carmody, an investigator for the National Parks and Wildlife Service ("the NPWS"), on 7 November 2000. After stating that he thought that his land was a "corridor", and not "habitat", the defendant marked on a map what he knew to be koala habitat. The area thus marked is approximately one third of that which Mr Wasiak had identified as core koala habitat in the map enclosed with his letter to the council dated 7 February 2000. The defendant stated that he did not recall whether he was privy to the letter to the council. Moreover, he told the prosecutor that he had definitely not seen the correct map of core koala habitat before the time of the clearing of the land. 10 During the interview, the defendant showed Mr Carmody a recommendation from Mr Wasiak dated 26 June 2000 advising the defendant to tidy up the block "as per the previous management practise [sic]… do not remove trees, but noxious weeds such as lantana [are] ok". It seems that previous management practice involved the block being "regularly slashed". This ceased when the defendant allowed the council to install open drains on the land in 1992, making access to the area difficult. Bitou bush Chrysanthemoides monilifera and lantana were left to grow during the intervening period. 11 However, notwithstanding the defendant's understanding, Mr G J Page, a plant operator of Treygis Terrace Earthmoving Pty Ltd, the person who actually undertook the clearing, stated in his interview with the prosecutor on 17 October 2000 that the defendant knew that the residents were complaining about the clearing of the "under- scrub … and the koalas" after the first day of clearing activities, that is 28 July 2000. 12 The clearing took place between 28 July 2000 and 31 July 2000. The understorey vegetation was completely under-scrubbed and several trees were removed. The latter action, constituted a breach of the council's TPO which was the subject of a prosecution at the Raymond Terrace Local Court, to which the defendant pleaded guilty and was fined. 13 On the first day that the clearing was carried out, Friday 28 July 2000, Mr Wasiak was notified by the council that the defendant was in the process of clearing the entirety of the land. Mr Wasiak then telephoned the defendant, who then stated that no further clearing would occur until the following Wednesday. Mr Wasiak told the defendant to ensure that over the weekend the TPO and the koala habitat were not being compromised. The following day, 29 July 2000, Mr Russell, a council employee attended the site and observed that "some paberbacks and pine trees had been knocked down in the lot". Mr Russell told the defendant to cease clearing activities. This direction was not obeyed, the defendant stating that "we've already finished, we're about to wrap it up". 14 On 31 July 2000 Mr Wasiak was again contacted by the council. He was told that a drain had been dug up on the subject land and the TPO had been breached. Following this conversation, at about 11.00 am, Mr Wasiak telephoned the defendant, who then admitted that clearing had taken place on the 29 July 2000 and 30 July 2000 and that it was continuing. Mr Wasiak told the defendant to cease clearing immediately. According to Mr Wasiak, the defendant agreed to do so. At about 4.00 pm on that day the defendant was ordered by the council to cease the clearing of vegetation. The defendant's justification for not previously doing so is that "[they] were nearly finished". 15 The extent of the damage caused to core koala habitat by the defendant's actions is also relevant on the question of penalty. 16 The prosecution relies upon the affidavit and oral evidence of Mr Carmody, an investigator for the NPWS. In his affidavit, Mr Carmody states that on 2 August 2000 he observed that the defendant had removed the understorey vegetation across the property, in many places leaving bare earth: "[A]t the base of many tree trunks there was little or no understorey vegetation". Upon further inspection he observed a wooden peg lying on the ground with the words "KOALA HABITAT" written on it. 17 The majority of the understorey vegetation on the subject land was Bitou bush Chrysanthemoides monilifera. This introduced weed is a "threatening process" under s 15 of the Threatened Species Conservation Act 1995. Normally it is required to be "[removed] from an area where species may be affected by its spreading". Indeed, a history of the land provided by the defendant states that "clearing undergrowth (Bitou bush) would help koala [sic] traversing the property". To this end, between 1980 and 1992 the land was "kept tidy by slashing at yearly intervals". Mr Carmody states, however, that the defendant cleared native vegetation in addition to Bitou bush. 18 It is accepted by the parties that the preferred trees of the koala in this area is the Swamp Mahogany Eucalyptus robusta. Mr Carmody conceded that, rather than swamp mahoganies on the land being purposely ring-barked, the damage to them was consistent with being scraped by the rake used to clear the understorey vegetation. It was suggested by Mr I S Lloyd QC, appearing for the defendant, uncontested by the prosecution, that those trees are in "a completely healthy state" today. Further, it was finally conceded by Mr Carmody that the land is now largely rejuvenated. 19 Mr G J Pevitt, Regulatory Officer at Great Lakes Council also furnished an affidavit and gave evidence. He agrees that there was no real mid- storey vegetation on the land prior to the clearance. It was trees and understorey of Bitou bush, with the exception of the occasional yellowish mid-storey tree referred to by Mr Carmody. Further, Mr Pevitt admitted that it was he who, prior to 1992, arranged service upon the defendant of notices to "slash the overgrown vegetation", including noxious weeds like Bitou bush and lantana from the lot, prior to 1992. These notices were in response to complaints from neighbours that the lot was untidy and unhealthy. 20 Despite having attended the site during the work of clearing, Mr Pevitt cannot say with certainty that the trees in the windrows he observed came from the core koala habitat section of the land. He observed that many of the swamp mahoganies and other eucalypt trees which had not been cleared had red ribbon around them, suggesting that they were intentionally left undisturbed. 21 Mr Pevitt conceded that, if the land was ever to be developed, which, given the rezoning submission is a distinct possibility, the council would have had to remove the vegetation from the open drains so as to enable the installation of underground piping, as well as levelling the land in preparation for such development. 22 As to whether there has been actual harm to the population of koalas, Mr Carmody contends that the clearing has increased their mortality rate via dog attacks because the koalas are exposed when traversing their territory. Mr Carmody conceded, however, that he could not estimate the number of koalas that, following the clearing, have died on the road or have been taken by dogs. Neither did he have an estimate of the size of the current population. There are no recorded koala deaths attributed to dog attacks. Further, Mr Carmody agreed that most of the recorded deaths of koalas in the area are on roads. 23 Mr Carmody's contention is further discounted by the fact that on 14 October 2000, more than two months after the clearance, a neighbour, Ms Shaw saw "two koalas in separate trees…on the boundary of the core koala habitat". This evidence is compounded by the statement of another neighbour, Mr T Mills, who on 26 August 2000 saw a koala walking through the land before it climbed a tree. Again, on 28 August 2000 Mr Mills heard the grunting sound koalas make "coming from the vacant block across from [his] house". 24 Dr S S Phillips, a natural history and environmental consultant, also gave evidence on behalf of the prosecutor. He first visited the site approximately 13.5 weeks after the clearance. He conceded that certainly most if not all that he observed of koala activity was post- clearance. However, Mr Phillips qualified this statement with the advice that koalas tend to "have a strong fidelity to their home range areas when 80 or 90 per cent of it has been trashed". Whilst conceding that there is no evidence of koalas being killed as a result of the defendant's clearing, he itemised the likely impacts associated with such a disturbance to the habitat. It is his experience that koalas die from attacks by dogs and foxes if there is insufficient understorey vegetation for them to use in traversing their territory. This is a likely possibility given the declining numbers of koalas in the area. 25 The statement of facts tendered to the Local Court includes reference to koala habitat. It must be concluded from this fact that the Local Court magistrate took into consideration the fact that the defendant's clearing disturbed core koala habitat. 26 Since the institution of proceedings in this Court, a remediation plan entitled "Remediating the impact of clearing activities on koalas (Phascolarctos cinereus) at Hawkes Nest, New South Wales" has been agreed upon between the parties. Prepared by Mr Phillips, it describes the "works necessary to remediate the impacts of [the] clearing activities". Submissions 27 Mr S J Rushton SC, appearing for the prosecutor, made the following relevant submissions on penalty: (a) On a scale of one to ten, the present offence is a six. (b) The offence was either calculated or, at best, reckless. (c) The removal of the lantana and Bitou bush has resulted in damage to koala habitat. The clearance created a predators' paradise because the koalas became exposed as they moved from one habitat tree to another. Indeed, the way in which the clearance was undertaken has exacerbated the problem. (d) The prosecutor concedes that the defendant must be given the benefit of the doubt relating to the reference to the damage sustained by the koala habitat in the Local Court file, despite there being no direct evidence that the magistrate took that into account. (e) Further, it is conceded that the penalty should be discounted for the plea of guilty, although the discount should be at the lower end of the scale due to the defendant's initial attempts to defeat the prosecution via a permanent stay or dismissal on the grounds of double jeopardy, given the Local Court proceedings (Carmody v Brancourts Nominees Pty Ltd; Carmody v Brancourt [2002] NSWLEC 181). (f) Further still, allowance must be made for the fact that this is the defendant's first offence of this nature, apart from the TPO conviction which is intimately connected with the present prosecution. (g) A rehabilitation plan prepared by Dr Phillips has been agreed upon between the parties. 28 Mr I S Lloyd QC, appearing for the defendant, made the following submissions: (a) There should be a substantial discount for the defendant's plea of guilty because the defendant has pleaded guilty to one count and the prosecution has elected not to proceed with the other prosecutions pertaining to this matter. The court must take into account issues such as plea bargaining ( Cameron v The Queen (2002) ALJR 382 at 393 per Kirby J). (b) A substantial fine in this matter would be double punishment. The issue of double jeopardy arises due to the substantial overlap between the facts considered in the Local Court proceedings and those in the present proceedings, that is, the clearance of the koala habitat ( Pearce v The Queen (1998) 194 CLR 610 at 639). The defendant's actions should have been dealt with in the one proceeding involving both charges. (c) There is no evidence that the koala population is in any worse a condition than before the defendant's clearing. There is no evidence of any deaths due to dog attacks. In the core koala habitat the prosecution can only prove that Bitou bush and lantana was removed. These species are threatening processes. It is conceded, however, that these were probably removed after the defendant was warned to stop. (d) In relation to mens rea, the defendant marked on a map the area which he thought was core koala habitat. This area did not encompass the entirety of the core habitat. Moreover, Mr Wasiak never explained to the defendant what constituted core koala habitat. (e) The defendant is nearly 70 years old. He has a good prior record, with the exception of the related Local Court conviction. (f) Given the Local Court conviction, the court could take the fact of that conviction into account in deciding whether a recorded conviction in the second proceeding is warranted, and, if so, whether any additional punishment should be imposed ( Pearce at 650; s 10 of the Crimes (Sentencing and Procedure) Act 1997). (g) The defendant has paid the $10,000 fine imposed in the Local Court and has agreed to meet the remediation costs of $5,000. (h) There is no need for a personal deterrent given that there has been no further offence committed and the defendant will undertake the remediation works. (i) There was no personal gain for the defendant in undertaking the clearing which resulted in harm to the koala habitat. Considerations on Penalty 29 Two issues have been raised which affect the penalty to be imposed upon the defendant. These are that of double jeopardy and the discount on sentence applicable for the defendant's plea of guilty. The defendant's contrition expressed in the plea of guilty and in agreeing to undertake the remediation plan and the question of a conviction pursuant to s 10 of the Crimes (Sentencing and Procedure) Act 1999 are also considered. 30 As previously noted the file for the Local Court's prosecution relating to the TPO makes reference to the harm sustained to the core koala habitat. In the absence of any evidence to the contrary it must be concluded from this fact that such harm was taken into account in the formulation of sentence in those proceedings. This raises the issue of double jeopardy because the damage caused to an endangered population is, of course, the subject of the present charge. 31 The maxim, nemo debet bis vexari pro una et eadem causa, describes the principle that a man shall not be twice vexed for one and the same cause (Sparry's Case (1589) 5 Co Rep 61a [77 ER 148]) and applies in this case. It follows then that to the extent to which two offences of which a person is convicted contain common elements it would be wrong to punish the offender twice for the commission of elements that are common (Pearce v The Queen (1998) 194 CLR 610). Regardless of the lack of explanation for the penalty imposed by the Local Court, allowance for that court's consideration of harm to core koala habitat must be made. The breach of the TPO, however, only related to the removal of trees: it did not relate to the removal of understorey which is also part of the koala habitat and which would have provided ground cover for koalas moving between trees. I am thus not convinced that full credit can be given for the magistrate's consideration of the impact on the koala habitat, which would have been limited to a consideration of the removal of trees upon such habitat. In applying the principles explained in Pearce, full credit cannot, therefore, be given for the fact that the magistrate may have taken into account the impact of the clearing of trees upon the koala habitat. 32 The discount accorded a plea of guilty depends upon the utilitarian value of a plea to the criminal justice system. This should generally be assessed in the range of 10 to 25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge (R v Thompson (2000) 49 NSWLR 383 at 419 per Spigelman CJ). 33 After initially pleading not guilty, the defendant then pleaded guilty after negotiating with the prosecutor to not proceed with the remaining summonses filed and agreeing to implement the rehabilitation plan prepared by Dr Phillps. Whilst this seems to be not the very earliest of opportunities that the defendant had to enter such a plea, it warrants a discount on sentence of 15 per cent (Cameron v The Queen at 396 per Kirby J). 34 I accept as evidence of contrition, not only the plea of guilty, but also the defendant's agreement to implement the remediation plan at an estimated cost of $5,000. It follows that the need for particular deterrence is not great, although the need for general deterrence remains. 35 Section 10 of the Crimes (Sentencing and Procedure) Act 1999 enables the court to order the dismissal or conditional discharge of offenders in criminal proceedings. Such an order under s 10(1) of the Act may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (Section 10(2) of the Act). 36 In considering the relevant factors to which the court must have regard under this section I accept that the defendant is otherwise of good character and has no prior similar convictions other than the breach of the TPO in the Raymond Terrace Local Court. He is also quite mature in years. However, the offence committed by the defendant was not trivial in nature. An important circumstance in which the offence was committed is that the defendant continued to complete the clearing of the land after having been told to cease doing so. Further, during the activity, upon becoming aware of resident's concerns it would have been prudent of the defendant to take steps to ensure that he was undertaking the clearance lawfully. Instead, the defendant completed the clearance to his own satisfaction. Again, failure to cease the clearing of the vegetation upon the council's direction shows a lack of regard for the body charged with the protection of endangered populations, one of which is the koala. Both the fact that the offence must be regarded as serious and the fact that the defendant continued to complete the clearing after having been told to cease are sufficient to deprive the defendant of the benefit of s 10 of the Crimes (Sentencing Procedure) Act: those facts require the imposition of a conviction and a penalty. 37 The penalty to be imposed, however, will be at the lower end of the scale, particularly having regard to the defendant's agreement to remediate the land at a cost to him of some $5,000, the absence of any actual harm to koalas (although there was clearly the potential for such harm), the defendant's understanding of the extent of the core koala habitat, the fact that the Local Court magistrate may have taken into consideration on the breach of the TPO the impact on the koala habitat, the defendant's agreement to pay the prosecutor's costs, and the defendant's general good character. 38 After making an allowance for the various considerations described above, a penalty of $6,000 is appropriate, which is discounted by a further 15 per cent for the plea of guilty. Orders 39 The formal orders are as follows: In summons No. 50060 of 2002: (1) The defendant is convicted of the offence as charged. (2) The defendant must pay a penalty in the sum of $5,000. (3) Pursuant to s 118E of the National Parks and Wildlife Act 1974, the defendant shall carry out the works described in and in accordance with the remediation plan prepared by Dr S S Phillips dated March 2003, being annexure "C" to the affidavit of Dr Phillips sworn 13 March 2003. (4) Liberty to apply in relation to order (3) above. (5) By consent, the defendant is to pay the prosecutor's costs in the sum of $30,000. (6) The exhibits may be returned. In summons Nos. 50057 of 2002; 50058 of 2002 and 50059 of 2002: (1) Summonses are dismissed. (2) There is no order as to costs. I hereby certify that the preceding 39 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 4 April 2003 ********** 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.