Land and Environment Court of New South Wales CITATION : Plath v Glover [2010] NSWLEC 119 PROSECUTOR Gordon Plath of the Department of Environment, Climate Change and Water PARTIES : DEFENDANT Kevin Francis Glover FILE NUMBER(S) : 50068 of 2009 CORAM: Preston CJ KEY ISSUES: ENVIRONMENTAL OFFENCES :- damaging reserved land - picking seed cones and damaging native vegetation - sentence - offence of low objective gravity - low environmental harm - premeditated, intentional and reckless conduct - seed collection committed for profit - prior convictions for like offences - early plea of guilty - remorse - assistance to authorities - agreement to pay prosecutor's costs - sufficient means to pay fine and costs Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Procedure Act 1986 Forestry Act 1916 National Parks and Wildlife Act 1974 CASES CITED: Plath v Knox [2007] NSWLEC 670 DATES OF HEARING: 19 April 2010 and 18 June 2010 DATE OF JUDGMENT: 9 July 2010 PROSECUTOR Ms Sara Anderson (solicitor) LEGAL REPRESENTATIVES: SOLICITORS Department of Environment, Climate Change and Water DEFENDANT In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 9 JULY 2010 50068 OF 2009 GORDON PLATH V KEVIN FRANCIS GLOVER JUDGMENT 1 HIS HONOUR: Kevin Glover has pleaded guilty to a charge of damaging native vegetation between 29 and 30 December 2008 in Moonee Beach Nature Reserve, near Coffs Harbour, contrary to s 156A(1)(b) of the National Parks and Wildlife Act 1974 ("NPW Act"). Mr Glover collected cones from Banksia integrifolia trees in the Reserve in order to harvest the seeds. Mr Glover is now to be sentenced for the offence. Facts of the offence 2 Moonee Beach Nature Reserve is a coastal reserve located adjacent to the village of Emerald Beach, north of Coffs Harbour. It was established as a nature reserve on 18 June 1976 under s 49 of the NPW Act. Further land was added to the Reserve in 1995 and 1999. It has a total area of approximately 336 hectares. 3 Look-At-Me-Now Headland is part of the Reserve. The only vehicular entry to the Look-At-Me-Now Headland is via a public bitumen road which runs off Dammerel Crescent, Emerald Beach into a car park in the Reserve. 4 At the entrance to the car park is a large timber sign which states, amongst other things, "Moonee Beach Nature Reserve". The size is approximately 2.5 metres long and 1.5 metres high and bears the National Parks and Wildlife Service ("NPWS") "lyrebird" logo. This logo is the widely recognised symbol of the NPWS and has been the corporate logo of NPWS for over 35 years. The sign was located on the western side of the road. 5 At the north eastern corner of the car park is a series of bollards. Near those bollards is a short pole known as a totem sign which bears the NPWS lyrebird logo. The totem sign was located on the eastern side of the road. Bollards were also located on both the eastern and western sides of the road, approaching the car park. 6 On 29 December 2008, Mr Glover drove to the car park at the Look-At-Me-Now Headland. Prior to entering the car park, Mr Glover drove past the Moonee Beach Nature Reserve sign. 7 Mr Glover was in the Reserve for the purpose of investigating whether there was any seed there that he wished to collect. 8 In a woodland area to the east of the car park, within the Reserve, the Defendant collected an estimated 50 to 60 cones from Banksia integrifolia trees by snapping the cones off the trees. The Defendant put the cones into a canvas picking bag that he carried around his neck. He collected a bag full of Banksia integrifolia cones and later left the Reserve. 9 Prior to 8.30am on 30 December 2008, the Defendant again drove past the Moonee Beach Nature Reserve sign and entered the Reserve car park. His vehicle was towing a trailer which had a quad bike and at least one wheelie bin on it. On the side of his vehicle was the large sign which read "Green Triangle Seed Company". 10 Mr Glover drove his quad bike from the car park east into the native vegetation in the Reserve. The entry point was slightly to the south of the totem sign. 11 By driving the quad bike from the car park into the Reserve, Mr Glover ran over and caused damage to native vegetation along the way, by crushing grass and small plants and uprooting or breaking off limbs of larger shrubs and young trees. The vegetation damaged included the native species Banksia integrifolia and Acacia sophorae. 12 In the woodland to which Mr Glover had driven his quad bike, he collected cones from Banksia integrifolia trees, by snapping them off the trees. He put the cones into a canvas picking bag around his neck and later transferred the cones from the bag into one of his wheelie bins that he had taken into the Reserve. 13 Mr Glover returned to the car park and put the quad bike on the trailer attached to his vehicle. Mr Glover left one wheelie bin in the Reserve and had a second wheelie bin on the back of his trailer. 14 At about 10.40am that day, shortly after Mr Glover had returned to his vehicle, two officers of the Department of Environment and Climate Change ("DECC"), Ranger Smith and Senior Field Officer Ward, drove into the car park in response to a telephone call from a member of the public who had reported Mr Glover's activities to the NPWS. The officers approached Mr Glover and had a discussion with him. 15 One of the officers climbed onto the rear of Mr Glover's trailer and opened the lid of the wheelie bin. He observed the bin was about one third full of recently picked cones from Banksia integrifolia plants. Banksia integrifolia is the dominant native tree in the Look-at-Me-Now Headland. 16 Later that day, at about 1.30pm, the officers returned to the Reserve car park. They observed off road vehicle tracks across the native groundcover and vegetation which appeared to have been damaged. The officers located the wheelie bin that had been left in the Reserve by Mr Glover earlier that day. The bin was about one third full of Banksia integrifolia cones. 17 The officers arranged for the wheelie bin to be seized and transported to the DECC depot at Toormina. 18 On 20 January 2009, Ranger Smith and DECC Investigator, Scott Beaumont counted 655 cones in the wheelie bin. They estimated that an average Banksia cone would contain 60 follicles and 120 seeds. 19 On 29 January 2009, Mr Glover participated in a voluntary, recorded interview with Investigator Beaumont. In that interview, Mr Glover made a number of admissions concerning the offence. 20 Mr Glover did not have any licence or permit at the time of the offence that permitted him to damage vegetation or to harvest seed within the Reserve. 21 Some years prior to the offence, Mr Glover had inquired with DECC as to whether he could obtain a licence to harvest plant seed from within coastal conservation reserves in the Coffs Harbour area. He had been advised by Mr Glen Storrie, DECC Area Manager at Coffs Harbour, that permission to collect seed for commercial purposes from the reserves would not be granted, as such an activity was not consistent with the purposes of these reserves. Purposes of sentencing 22 In this case, the relevant purposes for which the sentence should be imposed on Mr Glover are those in paragraphs (a), (b), (e), (f) and (g) of s 3A of the Crimes (Sentencing Procedure) Act 1999, namely punishment, deterrence (both general and specific), accountability, denunciation and recognition of harm done by the commission of the offence. Objective gravity of the offence 23 In determining the objective gravity of the offence, the circumstances of the offence in this case to which the Court may have regard include: + the nature of the offence; + the maximum penalty for the offence; + the harm caused to the environment by commission of the offence; + the state of the mind of the offender in committing the offence; + the offender's reasons for committing the offence; + the foreseeable risk of harm to the environment by commission of the offence; + the practical measures to avoid harm to the environment; and + the offender's control over the cause of harm to the environment. Nature of the offence 24 The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence and its place in the statutory scheme. 25 The offence of damaging land reserved under the NPW Act has an important function in the statutory framework. Compliance with the regulatory scheme is vital if the objects of the NPW Act are to be achieved. 26 The objects of the NPW Act are set out in s 2A(1) and include: "(a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, …". 27 These objects are achieved in part through the creation of a reserve system which makes provision for nature reserves as well as national parks, historic sites, State conservation areas, regional parks, karst conservation reserves and Aboriginal areas. 28 The purpose of reserving land as a nature reserve is set out is s 30J of the NPW Act as follows: "(1) The purpose of reserving land as a nature reserve is to identify, protect and conserve areas containing outstanding, unique or representative ecosystems, species, communities or natural phenomena so as to enable those areas to be managed in accordance with subsection (2). (2) A nature reserve is to be managed in accordance with the following principles: (a) the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena, (b) the conservation of places, objects, features and landscapes of cultural value, (c) the promotion of public appreciation, enjoyment and understanding of the nature reserve's natural and cultural values, (d) provision for appropriate research and monitoring, (e) provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the nature reserve that is permitted under section 185A having regard to the conservation of the nature reserve's natural and cultural values." 29 The harming of vegetation within a nature reserve, without obtaining a licence, consent, approval or other authorisation, is incompatible with this purpose. Maximum penalty 30 The maximum penalty for an individual for this offence is $110,000 or 6 months imprisonment or both. Harm to the environment 31 The environmental harm caused by Mr Glover's conduct was low. Banksia integrifolia was a common plant in the Reserve. The number of cones collected, relative to their abundance, was not significant. 32 Harvesting of the cones does reduce the number of seeds available to enter the seed bank in the Reserve. However, not all seeds in the cones would be fertile; it was estimated that 30%-50% of the seeds in the cones harvested by Mr Glover may have been fertile. 33 Banksia integrifolia seed provides an important food source for a variety of native animals found in the Reserve and the wider district, including the Yellow-tailed Black Cockatoo. 34 The unauthorised use of the quad bike within the woodland of the Reserve damaged a range of native plants including, groundcovers, shrubs and small trees. 35 I find the actual environmental harm to be low. State of mind of the offender 36 The state of mind of an offender may increase the seriousness of the offence. A large measure of premeditation will make an offence more serious than one committed on the spur of the moment. A strict liability offence, such as the offence against s 156A(1)(b) of the NPW Act, that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed. 37 Mr Glover has been in the business of supplying native seed for revegetation and other purposes. He has conducted his business both through a corporation, Green Triangle Seed Company Pty Limited, and personally. Mr Glover said he collected the Banksia integrifolia seeds from the Reserve partly to sell the seeds and partly to sow them on his rural property so he could grow stock plants of Banksia integrifolia from which he could collect seeds for sale in the future. 38 Mr Glover drove to the Reserve on 29 December 2008 for the purpose of looking for fruiting Banksia integrifolia plants from which he could collect seeds. He returned the next day with the trailer, wheelie bins and quad bike in order to collect seeds he had located the previous day. 39 Mr Glover's conduct in collecting the Banksia integrifolia cones was, therefore, premeditated and intentional. 40 The prosecutor also submits that Mr Glover knew that his conduct was illegal. The prosecutor submits that Mr Glover had knowledge it was illegal to harvest seed in the nature reserve as he had been prosecuted in 2006 by DECC for that offence. In 2007, he was again prosecuted for three offences of damaging vegetation for purposes of harvesting seed from a State forest in breach of the Forestry Act 1916. The prosector also refers to the conversation Mr Glover had with Mr Storrie, the DECC Area Manager in Coffs Harbour, about collecting seeds in coastal conservation reserves and being told that permission to collect seeds for commercial purposes from the reserves would not be granted as such activity was not consistent with the purposes of these reserves. 41 The prosecution further refers to the signage at the Reserve naming the Reserve and depicting the lyrebird logo of NPWS, as well as the bollards which prevented vehicular access off the bitumen road. 42 The prosecutor submits that, having regard to these matters, Mr Glover knew that it was illegal to harvest seed from the Reserve. 43 Mr Glover gave evidence stating that he knew that he could not lawfully collect seeds in a national park or nature reserve. However, he says that he did not see the sign proclaiming the Reserve as Moonee Beach Nature Reserve when he visited on 29 December 2008, although he admits that he did see the sign on 30 December 2008. However, Mr Glover says that the sign stating that the Reserve was Moonee Beach Nature Reserve was on the western side of the road and he thought that the nature reserve was therefore only on that side. He says that he did not see the totem sign with the lyrebird logo when he entered the Reserve on the eastern side. Mr Glover said that he did not draw any inference from the fact that bollards of the same kind were on both sides of the road. 44 I find that Mr Glover, at the least, was reckless in that he suspected that the land was public land reserved for public purposes, such as conservation or recreation, that entry by vehicle into the woodland of the Reserve was prohibited (by reason of the bollards) and that collection of cones and seeds was also prohibited, but Mr Glover refrained from investigating further. 45 The fact that Mr Glover's conduct was premeditated, intentional and reckless as to its legality or illegality increases the objective seriousness of the offence. Reason for committing the offence 46 The carrying out of an offence to make a profit increases the seriousness of a crime. Offenders should not profit from crime. 47 As I have found above, Mr Glover committed the offence with the intention of making a profit, initially by sale of some of the seeds collected in the Reserve and later by sale of seeds collected from plants grown on his rural property, from seeds collected in the Reserve. 48 Mr Glover did in fact subsequently sell seeds extracted from the Banksia integrifolia cones in the wheelie bin on the trailer that he took home from the Reserve. His evidence is that he earned $200 from the sale of those seeds. The seeds from the wheelie bin that had been left in the woodland of the Reserve, which was seized by DECC, were not sold. Mr Glover has not grown plants on his rural property from any seeds he collected. The profit Mr Glover earned, therefore, was very small. Foreseeability of risk of harm 49 A reasonable person in Mr Glover's position could have foreseen that the conduct of entering a nature reserve on a quad bike, driving over native vegetation and collecting Banksia integrifolia cones would cause environmental harm. Practical measures to prevent risk of harm 50 Mr Glover could and should have ensured that he harvested seed only in areas where such an activity was permitted. In order to determine the status of the area in which he was harvesting seed, Mr Glover could have checked the DECC website or made inquiry of officers at the DECC office which he had attended in the past. Mr Glover should not have driven his quad bike off the road into the woodland of the Reserve. No environmental harm would have been caused if he had taken these practical measures. Control of causes 51 Mr Glover carried out the activities constituting the offence and had control over the causes of harm to the environment. Conclusion on objective circumstances 52 Taking these circumstances into account, the offence is of low objective gravity. Subjective circumstances of the offender 53 Within the limits set by the objective gravity of the offence, the Court may take into account the facts that are personal to the offender. Prior convictions 54 Mr Glover has been convicted twice before for illegal collection of seed. 55 On 19 December 2006, Mr Glover was convicted and fined $5,000 in Raymond Terrace Local Court for the offence of damaging vegetation in a nature reserve, contrary to s 156A(1) of the NPW Act. The defendant had cut branches from four Forest Red Gum trees and harvested seeds from the branches in Wallaroo Nature Reserve, near Nelsons Bay. 56 On 3 April 2007, Mr Glover was convicted and fined a total of $5,000 in Coffs Harbour Local Court for three offences of damaging vegetation in a State Forest, contrary to s 27 of the Forestry Act 1916. Mr Glover had pleaded guilty for felling a Grey Gum and harvesting 384 grams of seeds from it in Kangaroo River State Forest, near Coffs Harbour. 57 Whilst prior convictions cannot be used to impose a sentence greater than the upper boundary of a proportionate sentence set by the objective gravity of the offence, they can be taken into account to show that the current offence is not an uncharacteristic aberration or that the offender has manifested a continuing attitude of disobedience of the law. 58 Mr Glover gave evidence of his objection to the State's conservation laws that have restricted the areas and the circumstances in which he can collect native seeds. Mr Glover believes that seedsmen such as himself have had their livelihood adversely affected by these laws. His continued disobedience of conservation laws preventing and restricting collection of native seeds on public lands reserved for conservation purposes is a reflection of this belief. Hence, there is the need for the sentence in this case to reflect the purpose of specific deterrence. Plea of guilty 59 Mr Glover entered his plea of guilty to the charge at the earliest opportunity and should be afforded the full discount of 25% for the utilitarian value of his plea of guilty. Remorse 60 Mr Glover expressed in his evidence to the Court his remorse for his actions. He said he is now physically disabled by reason of an injury to his knee. He cannot collect seeds by climbing trees. He says he has realised that there is no future for him in collecting and selling native seeds and he proposes to abandon that as a job. He says that he is going to retrain so that he is able to perform another job. He spoke of teaching at TAFE. 61 Mr Glover says by reason of his remorse at what he has done and his desire not to reoffend, there is not a need for the sentence to be weighted for specific deterrence. Assistance to authorities 62 Although Mr Glover did not initially cooperate with DECC investigating officers when he was apprehended in the Reserve, he subsequently assisted investigators by participating in a voluntary record of interview. Mr Glover has agreed to a statement of agreed facts tendered at the sentencing hearing. Payment of prosecutor's costs 63 Mr Glover has also agreed to pay the prosecutor's costs in the sum of $9,000. Consistency in sentencing 64 There has been one sentence imposed by the Court under s 156A(1) of the NPW Act, being Plath v Knox [2007] NSWLEC 670. Mr Knox had applied pesticide from a helicopter to a property adjacent to a national park in such a way as to cause spray drift into the park. The offence caused damage to 3.7 hectares of vegetation in the park, including widespread foliage loss and the death of several trees. The environmental harm was serious although not permanent. The Court found that Mr Knox's actions were not intentional, that he was in dire financial circumstances and had no prior record. He was fined $13,200 and ordered to pay the prosecutor's costs of $35,000. 65 The circumstances of that case are decidedly different from the present case. The offender's means to pay 66 Although Mr Glover at the sentence hearing said he had financial difficulties, at the adjourned hearing, after a pre-sentence report had been obtained, Mr Glover said his financial difficulties had eased and he would be able to pay a fine and the agreed costs of the prosecutor. Synthesis of the objective and subjective circumstances of the offence 67 I take into account the objective circumstances of the offence, as mitigated by the subjective circumstances of Mr Glover. I take into account the need to impose a sentence that achieves the purpose of denouncing the conduct of Mr Glover, ensuring that he is adequately punished for the offence, making him accountable for his actions, recognising the harm done to the environment by committing the offence and in particular, preventing crime by deterring other persons from committing similar offences and specifically deterring Mr Glover from committing similar offences. 68 Synthesising these factors, I consider the appropriate penalty for the offence is a fine of $10,000. This figure is to be discounted by 25% for the utilitarian value of the early plea of guilty, which results in a fine of $7,500. In addition, Mr Glover should be ordered under s 257B of the Criminal Procedure Act 1986 to pay the prosecutor's costs in the proceedings in the agreed sum of $9,000. 69 Accordingly, the Court orders: 1. The defendant is convicted of the offence as charged. 2. The defendant is fined the sum of $7,500. 3. The defendant is to pay the prosecutor's costs of the proceedings in the sum of $9,000. 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.