Land and Environment Court of New South Wales CITATION : Plath v Fletcher [2007] NSWLEC 596 PROSECUTOR: Gordon Plath PARTIES : DEFENDANT: Lenard John Fletcher (also known as Kerry Fletcher) FILE NUMBER(S) : 50025 of 2006 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- picking plants that were part of endangered ecological community - replanting trees - offence carried out for the purpose of subdivision and to make profit - guilty plea - penalty Crimes (Sentencing Procedure) Act 1999 s 3A Criminal Procedure Act 1986 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Fines Act 1996 National Parks and Wildlife Act 1974 s 118A(2) Threatened Species Conservation Act 1995 Pt 3 Sch 1 DATES OF HEARING: 25/06/2007 EX TEMPORE JUDGMENT DATE : 25 June 2007 PROSECUTOR: S T Flood (barrister) SOLICITOR: Gordon Plath Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT: In person SOLICITORS: N/A JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Monday, 25 June 2007 LEC No. 50025 of 2006 PLATH v FLETCHER [2007] NSWLEC 596 EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant, Lenard John Fletcher, also known as Kerry Fletcher, has been charged with an offence against s 118A(2) of the National Parks and Wildlife Act 1974 in that on or about 21 August 2004 at a property on Cram Avenue, Young, in the State of New South Wales, he picked plants that were part of an endangered ecological community. The particular endangered ecological community in this case is White Box Yellow Box Blakely's Red Gum Woodland which at the time of the offence was listed in Pt 3 of Sch 1 to the Threatened Species Conservation Act 1995 as an endangered ecological community. The particular plants picked were about 29 Yellow Box (Eucalyptus melliodora) trees and/or about three Blakely's Red Gum (Eucalyptus blakelyi) trees. 2 The parties have sensibly co-operated in producing an agreed statement of facts. Moreover, this morning, the agreed statement of facts has been further supplemented by additional facts agreed to by both the prosecutor and the defendant, which has obviated the need to call four additional witnesses. 3 The defendant entered a plea of guilty to the charge at an early opportunity. The relevant facts may be briefly described as follows. 4 The subject property had been owned since about 1983 by five siblings, members of the Keir family. On 17 June 2003, a development application was submitted to Young Shire Council by Mr Vincent P Curtis of CPC Land Development Consultants on behalf of Mr Sam Keir. The development application was for a 27-lot residential subdivision and the construction of a new road to serve that subdivision. 5 On 19 August 2003, Ms Laura Schweiger, a town planner for the council, sent a letter to Mr Curtis advising that prior to determination of this application, the council will require the submission of information relating to the effect of the subdivision on threatened species, populations or ecological communities or their habitat. 6 In about September 2003, Mr Curtis commissioned Ms Katrina Hudson, an ecologist, to prepare a flora and fauna report. Mr Curtis provided to Ms Hudson a plan that showed each tree located on the property. Ms Hudson prepared a threatened species report, in which she expressed the opinion that the White Box Yellow Box Blakely's Red Gum endangered ecological community, also known as Box Gum Woodland ecological community, was present on the property. Ms Hudson estimated that sixty-three trees would need to be removed for the development to proceed. 7 In November 2003, the Keirs found buyers for the property, being the defendant and Mr Edbert Nunes. Contracts for the sale of land were exchanged on 28 November 2003. A special condition of the contract said that completion of the contract was conditional upon the vendor obtaining the development consent. An additional condition provided that if the council refused the development application, the purchasers were entitled to rescind. 8 On 17 February 2004, Mr Curtis sent a letter to the council enclosing a revised plan showing that only twenty trees were to be removed and creating a wildlife corridor along the southern boundary. On 1 March 2004, the council sent a letter to Mr Curtis requesting further assessment and advising that the information would be referred to the National Parks and Wildlife Service. Mr Curtis then agreed for Ms Hudson to contact Mr Stephen Priday, a threatened species officer for the Department of Environment and Conservation. 9 On 24 April 2004, Ms Hudson, Mr Curtis and Mr Priday met on the property. Mr Priday formed the view that a certain patch of vegetation in the eastern-most section of the property, the lots marked 13 and 14 on the plan of subdivision, was of higher conservation significance than those in the western section of the property, which had been grazed and which was dominated by another species. Mr Priday recommended that the subdivision plan set aside the area in the eastern-most section of the property as an area of public open space because it was of moderately good condition and he also recommended that the proposal allow the retention of as many trees as possible. 10 On 30 June 2004, settlement of the sale of the property occurred between the Keirs as vendors and the defendant and Mr Nunes as purchasers. The defendant had been informed by Mr Chapman, a partner at CPC Land Development Consultants, that the property contained Box Gum trees and that Box Gum trees were a protected species. Mr Chapman further advised the defendant that the development application would not be approved until, amongst other things, the issue in relation to the trees was resolved. The defendant was informed by council officers Ms Schweiger and Mr Filmer on a number of occasions that one of the factors delaying the development application was the fact that the trees on the property were of a threatened species. 11 Prior to 22 July 2004, the defendant obtained a full s 149 certificate from the council. This certificate shows that the land is not affected by a tree preservation order under the Environmental Planning and Assessment Act 1979, but it does go on to state: However, council has adopted a tree policy which has set guidelines for the planting, maintenance and removal of trees within the urban and rural environment. 12 The defendant made no other specific enquiries in relation to whether or not he was permitted to pick trees that were a protected or threatened species. 13 About one week before 21 August 2004, the defendant visited Mr Mark Osborne, a local earthmoving contractor, and arranged for Mr Osborne to bring a bulldozer to the property to prepare a house site and a road. On 21 August 2004 at about 9:00 am, Mr Osborne attended the property with his bulldozer and the defendant then directed Mr Osborne to the proposed house site in the far east corner of the property in the area marked as lots 13 and 14 on the subdivision plan. The defendant directed Mr Osborne to clean up some old bits of tin and other rubbish lying at the proposed house site. He then directed him to knock down a group of trees which Mr Osborne then proceeded to do. 14 Shortly after 9:35 am, Ms Catherine McCabe arrived at her home next door, on the next door property to the south. Ms McCabe approached the defendant and the following conversation ensued: Defendant: What do you want? Ms McCabe: You're not allowed to knock the trees down because the development hasn't been approved. Defendant: It's nothing to do with you. This is my land and I can do whatever I want on my land. 15 After receiving a telephone call from a female neighbour of Ms McCabe, Mr Gerald Bailey, the mayor of Young, arrived at McCabe's house. Mr Bailey and the defendant then had a conversation where Mr Bailey asked the defendant to stop pushing over trees with the bulldozer and the defendant complied. When Mr Bailey left, the defendant then said to Mr Osborne: "We'll go up to where I'm going to do the house site and we'll do that". Mr Osborne drove up to the other end of the property where he had cleared trees for the house and he then pushed soil around to level out the site. 16 Later that day, Messrs Kel Broderick and Craig Filmer from the council arrived at the property. Mr Filmer said to Mr Osborne: "Don't do any more Oz" and Mr Osborne replied: "Okay, I won't". Shortly after that, Mr Osborne left the site and was subsequently paid $918.50 by the defendant for his work. As at the date of the offence, 21 August 2004, no development consent had been granted in relation to the property. 17 On 23 August 2004, the defendant and Mr Curtis met Mr Filmer at the Young Shire Council offices. Mr Filmer asked why the defendant thought he could do these works. The defendant replied: "I was just doing cut and fill works for a house". 18 On 25 August 2004, Mr N Schiller, a council ranger, observed a large pile of uprooted trees on the property and a large area had been cleared, with the surrounding soil spread across an open area approximately 80 to 100 square metres. The area was flat like a building site. 19 There was a meeting on 31 August 2004 between the defendant and Mr Bailey and Mr Hanrahan, the general manager of the council. The defendant handed a plan to Mr Bailey marking the trees that had been taken out. The defendant said: "I didn't realise that I was doing anything wrong". 20 Mr Luke Joseph Bond, an officer of the prosecutor, interviewed the defendant on 6 October 2005. There was a formal record of interview in which the defendant admitted that he knew that the development application had not been approved when settlement of the sale occurred; that he did not have any approval to clear trees on the property and was unaware that he needed any; that he had never seen Ms Hudson's threatened species report and that he had no discussions with Mr Curtis about the type of trees on the land. In an interview between Mr Bond and Mr Curtis on 24 February 2005, Mr Curtis also said that he did not discuss the subdivision with the defendant because he was engaged by the Keirs. 21 On 7 March 2006, Ms Hudson attended the property with Mr Bond. Ms Hudson observed that thirty three trees had been removed since she had been on the property in 2003. She was able to state that 29 Yellow Box trees and three Blakely's Red Gum trees had been removed. The remaining tree was dead when she had viewed the property in 2003. Thirteen of the trees felled were partly or wholly within lots marked 13 and 14 of the proposed subdivision plan, the area which Mr Priday identified as being higher conservation significance than the rest of the property. A sample of four trees that were felled shows that they were in the range of seventy-seven to a hundred and eighty-two years of age. 22 On the question of environmental harm, there is agreement that patches of the endangered ecological community the size seen on the property are a rarity. The amount of endangered ecological community of that quality in the area collectively amounts to just 200 to 300 hectares across the New South Wales south western slopes. Much of the remaining extent of Box Gum Woodland in New South Wales is in poor condition. Mr Priday formed the view that remnants such as the one in question are of significant value in terms of the prospects of the long-term persistence of the community and the role such remnants have in providing habitat for a suite of declining woodland fauna and flora species. In his view, the site would have been habitat for the Superb Parrot that tends to nest almost exclusively in the endangered economic community. 23 The defendant gave evidence before me this morning. To his credit, he has, on his own initiative, replanted some 120 trees on the property. That is more than three times the number of trees that he removed, although eighteen have since died because of the drought. It is not known what species of tree has been replanted, but he says they came from a local nursery and the local nurseryman is knowledgeable and knows the trees that are endemic to the area. The defendant says that he particularly cleared the eastern end of the site because that is where he wanted to build his house, that being the part of the land with the best view. 24 He says he bought the land with his partner with a view to subdividing it and making a profit, although in the events that have happened, no subdivision has occurred. He thinks that the land may be worth around $300,000, but it is mortgaged, the mortgage being in the order of about $150,000. Therefore, his equity in the land would be perhaps $85,000 or thereabouts. In giving his evidence, he demonstrated that he is remorseful and contrite. He said he does not feel too good about it now and as far as he knew, there was no tree preservation on the property at the time. 25 The defendant owns another property in Young at Back Creek Road on which he has the foundations for a house and on which he owes some $65,000. His company, Fletchers Enterprises Pty Limited, owns another property at West Wyalong and it seems that there is no equity in that property. 26 The defendant says that he is a truck driver, he has three dependent children, two at school and one at university. The one at university still has three and a half years to go at university. The next child is sixteen and in year 11 at school. The fifteen year old will be entering year 10 next year. His income is modest and he earns some $750 a week before tax. I mention these matters because the ability of a person to pay any fine is a matter to be taken into consideration in the imposition of any penalty under the Fines Act 1996. 27 The defendant has no known criminal record. He entered a guilty plea at an early stage. He assisted the Court in the statement of agreed facts and the utilitarian value of that plea is significant because by agreeing to the additional facts this morning, he obviated the calling of four witnesses by the prosecutor. 28 I turn now to the various considerations on the question of penalty. The maximum penalty for the offence is $220,000 plus $11,000 for each plant or tree that was affected. That penalty is a mark by the legislature of the seriousness with which it regards offences of this kind. 29 The following conclusions may be drawn about the defendant's conduct. Firstly, he expressly authorised the carrying out of the clearing. Secondly, at the time of authorising the clearing, the defendant was aware, from what he had been told, that the Box Gum trees were a protected species and that the development application was being held up because of, amongst other things, the issue in relation to the trees was not resolved. Thirdly, the defendant himself personally supervised the clearing and knocking over of the trees when it was being carried out. 30 On the question of environmental harm, that had already been described above, but, as I have said, to the defendant's credit, he has, without any prompting and on his own initiative, replanted three times the number of trees that were removed. I am satisfied, nevertheless, that his reasons for committing the offence were twofold. Firstly, to prepare a site for a proposed house on the eastern end of the property and secondly, to prepare the way for the subdivision and in this regard - he did so without getting the prior approval of the council for a subdivision. 31 Any sentencing exercise requires consideration of the purpose of sentencing. These purposes are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are: (a) to ensure that the offender is adequately punished for the offence; (b) to prevent crime by deterring the offender and other persons from committing similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; and (g) to recognize the harm done to the victim of the crime and the community. In relation to the victim of the crime and the community, the victim is itself the community which has lost part of an important endangered ecological community. 32 The primary consideration in sentencing is the objective gravity or seriousness of the offence and the primary indicator of the objective gravity or seriousness of the offence is the maximum penalty proscribed by the legislature which I have described. A factor which highlights the objective gravity or seriousness of the offence in this instance is that the defendant knew, because he was told, that the vegetation on the site was protected. The damage was thus not only foreseeable, but was the intended outcome of what took place. The defendant could and should have refrained from arranging any clearing until he had first received development consent. So we have a defendant who committed the offences deliberately and in the full knowledge that his actions were unlawful and that the vegetation was protected. 33 I have described the subjective circumstances of the defendant, his lack of prior criminality and, I assume, his generally good character. Importantly, I have referred to the high utilitarian value of the plea in this case which warrants a discount in penalty in the range of ten to 25 per cent. Since the defendant entered a plea of guilty at an early stage, he is entitled, in my view, to the full discount of 25 per cent. The defendant has expressed his contrition and remorse and he has also assisted the authorities, willingly taking part in both of a record of interview in which he candidly conceded what he had done, and in his co-operation in the making of the agreed statement of facts. 34 In considering the question of penalty, the Court has to consider both the question of specific deterrence and general deterrence. In my view, there is no need for the penalty to mark any significant element of specific deterrence. I am satisfied that the defendant is unlikely to re-offend in the light of his present experience. There is, however, a need for general deterrence. In considering the question of penalty generally and for environmental offences such as this in particular, general deterrence is a major consideration. Persons - other persons - will not be deterred from committing environmental offences by nominal fines. There is a need to uphold the integrity of the system of protecting and preserving endangered ecological communities and there is a need to send a strong warning to others who may be minded to breach the law, such that actions of this nature will be visited with significant consequences. However, care must be taken to ensure that this defendant does not bear a disproportionate burden of the cost of general deterrence. 35 The offence in the present case was, as I have said, carried out for the purpose of creating a house site and for the purpose of a subdivision, the intention being to make a profit. I have noted, however, that no profit has been made and no subdivision consent has yet been granted. 36 A matter which the Court is also required to take into consideration under the Fines Act 1996 is the fact that the prosecutor is seeking its costs. I understand that the defendant accepts that he is obliged to pay the prosecutor's costs, but here has been no agreement as to costs. I am informed that the estimated costs at this stage are in the order of $32,500, which is not an insignificant sum. 37 Having regard to all these factors, it is apparent that a monetary penalty must be imposed. The prosecutor also suggests that a community service order be imposed. I am not satisfied that a community service order is called for in this case. I must observe that this penalty is much lower than penalties that have been imposed for similar offences, particularly since the defendant has voluntarily planted about three times the number of the tress that he cleared. 38 The formal orders of the court are: (1) The defendant is convicted of the offence as charged. (2) The defendant must pay a penalty in the sum of $46,000. (3) The defendant must pay the prosecutor's costs in accordance with the Criminal Procedure Act 1986 . (4) The exhibit may be returned. I hereby certify that the preceding 38 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate ********** 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.