Land and Environment Court New South Wales Medium Neutral Citation: Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No.2) [2011] NSWLEC 149 Hearing dates: 1 September 2011 Decision date: 01 September 2011 Jurisdiction: Class 5 Before: Sheahan J Decision: (1)The defendant corporation is convicted of the charge preferred in the summons. (2)The defendant is fined the sum of $200,000. (3)Under s 257B of the Criminal Procedure Act 1986, the Defendant is ordered to pay the Prosecutors costs as determined under s 257G of that Act. (4)All the exhibits may now be returned. Catchwords: ENVIRONMENTAL OFFENCES: unlawful clearing of native vegetation - sentence to be imposed - absence of defendant - extent of environmental harm - committed for commercial gain - no mitigating factors - costs. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Native Vegetation Act 2003 Cases Cited: Director-General of the Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd [2011] NSWLEC 125 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009)168 LGERA 121 Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Category: Sentence Parties: Director-General of the Department of Environment, Climate Change and Water (Prosecutor) Graymarshall Pty Ltd (Defendant) Representation: Mr M G Higgins, Barrister (Prosecutor) Graymarshall Pty Ltd - No appearance (Defendant) Office of Environment and Heritage (Prosecutor) File Number(s): 50040 of2010 Judgment Introduction to the offence 1The defendant in this prosecution for clearing native vegetation without approval has neither appeared nor been represented at court on any occasion since 4 February 2011. 2On 25 July 2011, I dealt with the charge in the defendant's absence. On 26 July, I found the defendant guilty of the offence charged and stood the matter over to today for the sentencing hearing - see [2011] NSWLEC 125. 3The maximum penalty for an offence by a corporation against s 12 of the Native Vegetation Act 2003 is a fine of $1.1M (see s 126 of the Environmental Planning and Assessment Act 1979). The offence is one of strict liability. 4The subject land is within the Clarence Valley, and was sold to the defendant in August 2008. The six areas of vegetation completely cleared without consent or approval occupy 38ha out of a property size of 170ha. The vegetation cleared comprised eucalyptus trees of three types, commonly known as white mahogany, tallow wood, and red mahogany, and all meet the statutory definition of " native vegetation ". 5One director of the defendant participated in the clearing, done on the instructions of both directors, and under their supervision, using a D6 bulldozer and a D65 excavator. 6The defendant was served with a copy of my judgment, notice of the sentencing hearing date, and the directions made for its evidence on sentence to be filed by 29 August (see Exhibit P5 ). It was subsequently served with the prosecutor's expert affidavit evidence on environmental harm (see Exhibit P6 ). No defence evidence has been filed, and there has been again no appearance or other response. 7However, some of the prosecutor's evidence reflects the defendant's position. As I noted in my earlier judgment (at [15]-[22]): 15. To assist in gleaning the defendant's point of view, the court has before it, among the prosecution evidence: (1) the corporation's response to a statutory notice under s 36 of the Native Vegetation Act , and (2) a copy of Clarence Valley Council's file concerning a June 2009 development application by the defendant for " subdivision of land (boundary adjustments) " affecting five lots, including the four subject of the charge ( Exhibit P3 ). 16. Council was aware, when considering the corporation's development application (made on its behalf by Petersen Consulting Group), that a prosecution of it over the clearing, which Council had not authorised, was being considered. 17. The Petersen Group's submission to Council dated 17 June 2009 relevantly states on the defendant corporation's behalf that: (1) " the aim of the adjustments is to reconfigure the various allotments into more practical shapes, and in part to better reflect site features ". Four of the five proposed lots each has an area of 40ha, and the fifth an area of 195.6ha. and (2) " each proposed allotment has significant cleared areas available to accommodate future dwellings, effluent disposal areas etc, and interested purchasers have indicated that the [four 40ha] allotments ... are to be used for agricultural purposes (blueberries), similar to the numerous other farms in the locality . The remaining parts of each proposed allotment contain native vegetation ". The fifth lot " already contains a dwelling house and is used for the purposes of private native forestry ". 18. The documentary material accompanying the Petersen submission acknowledges on the defendant's behalf " extensive vegetation clearing recently carried out on the property ", but claims that " almost all of the vegetation removed was regrowth which had established following cessation of farming on the property ". 19. The prosecutor submits that these materials which the defendant put to Council constitute the admission by its authorised agent that the clearing was done for a purpose other than a " routine agricultural management activity " ( Evidence Act 1995 s 87). 20. Some of the defendant's responses to the s 36 notice, provided on 12 August 2010, while the defendant was represented by Mr Grace, suggest a possible line of defence, or at least mitigation, based upon discussions the defendant says it had with the prosecutor, around the time of purchasing the land, aimed at agreeing upon a " Private Native Forestry Property Vegetation Plan ". 21. Such a plan was eventually issued to the defendant on 21 February 2009, well after the alleged clearing activity occurred, and the prosecutor's investigators opine that plans of this type do not permit clearing of vegetation " back to bare earth ", which is the factual situation alleged in the evidence before me. 22.The circumstances of the clearing were frankly discussed in the s 36 responses, but the defendant asserted that the former owner had " heavily logged " the subject land, and claimed that the defendant's clearing activities were for routine agricultural management activities. Sentencing considerations 8The statutory provisions and general principles governing the imposition of sentence on environmental offenders, including those in breach of the Native Vegetation Act, are well-established, and are often stated in judgments of the court. I do not see the need to set them out again in full. 9Relevant statutory provisions are ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999. Section 3A articulates the purposes of sentencing, which relevantly include, in the context of this case, adequate punishment, specific and general deterrence, making the defendant accountable for his/her/its actions, denunciation of criminal conduct, and recognition of harm caused to the community. Section 21A and associated sections list aggravating and mitigating factors to be considered. 10Sentencing requires the " instinctive synthesis " of all the relevant objective and subjective circumstances surrounding the commission of the offence, and the imposition of a " proportionate " penalty. 11I adopt, but need not repeat, the summary of principles presented, for example, by Pepper J most recently in Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Limited (No 4)(Walker) [2011] NSWLEC 119, at [20]-[34], and elsewhere. See also the decisions of Preston CJ in Director-General of the Department of Environment and Climate Change v Rae (Rae) [2009] NSWLEC 137; (2009) 168 LGERA 121, and Pain J in Director-General of the Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102. All three of those cases involved clearing of native vegetation. 12The legislature has established a regulatory system to achieve a series of statutory objects, and environmental offences undermine the integrity of that system, and jeopardise the achievement of those objects. By setting a maximum penalty of $1.1M the legislature has indicated its serious denunciation of the sort of conduct engaged in by the defendant in the present case, and its intention that citizens and corporations should be deterred from such conduct. 13As was noted in Rae (at [42] - [43]), a strict liability offence, which was premeditated, or committed intentionally, negligently or recklessly, is objectively more serious than one which is not. 14Central to the Court's assessment of the gravity of any environmental offence is the extent of environmental harm caused, actual or potential, direct or indirect, Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]. Environmental Harm caused 15Appropriate expert evidence on the issue of environmental harm has been provided by the prosecutor's Philip Anthony Redpath, a conservation technologist and terrestrial ecologist of many years experience, who has published in the field since 1994. Redpath was engaged to " report on the likely damage to the ecology, particularly fauna ", of the subject land, and has submitted a lengthy, comprehensive, and very balanced report. 16Redpath opines that the evidence before me shows the majority of cleared areas to have contained " mature to late mature vegetation" , comprising "significant habitat components", and being mostly (i.e. 28.88ha out of 38ha) dry sclerophyll forest, of which 2ha is listed as an Endangered Ecological Community under the Threatened Species Conservation Act 1995. 17Wildlife records identify 222 species within 5km of the centre of the defendant's property. Some threatened species of fauna are " likely to be present in the subject area ", including birds and mammals which require " hollow-bearing" trees or logs for their micro-habitat. Nearly 400 vertebrate species in Australia, and 75% of the species Redpath assessed in his report, require hollows for " some part of their life cycle ". Loss of such critical habitat is described as " significant ", and recovery is slow - relevant trees are slow growing, and hollows take a " very long time to form " (120 years, or, in some cases, 500 years). 18Redpath opines (p5, LL39-42) that the " loss of 38 ha ... of a severely diminished resource, such as mature forest containing a diverse range of tree species in various age classes and many of an age and size class that would contain hollows, would rate as very harmful ". 19Redpath also notes: (1) the particular impact on the needs of various birds and gliders; (2) that rehabilitation of the affected area has become " more demanding from a range of perspectives " as a result of the offence; and (3) that two of the cleared timber species are significant " feed trees " for koala, indicating that koala may have been present before clearing, and would have been adversely impacted. (The cleared area would provide, he estimates, a " home range " for one adult male and two to three adult female koalas). Consideration 20The prosecutor's lay witnesses familiar with past use of the subject property deposed to selective logging of it, but there is no evidence that even that logging directly affected the areas now cleared. 21Although the defendant attempted before the hearing to explain away its conduct as a " routine agricultural management activity ", or as removal of only post-farming " regrowth ", the evidence suggests, and the Court accepts, that the areas cleared were pristine, and that they were deliberately cleared for commercial gain, as sites for either intensive cultivation of, for example, blueberries, or as building envelopes for rural residential development. 22The commercial gain motivation is an aggravating factor in the sentencing process. Other aggravating factors present, on the evidence in this case include the clear foreseeability, from the nature and extent of the clearing, that environmental harm would flow, and the failure to adopt the practical measures available to avoid that risk, namely carrying out a proper environmental assessment and applying for approval, or being more selective in the clearing operations. The defendant corporation was clearly in complete control of the causes of the risk of environmental harm. 23I agree with the prosecutor's submission that the offence should be considered to be of high objective gravity. 24In terms of mitigating circumstances, there was no plea of guilty, and there is no evidence before the Court, other than what I included in my earlier judgment and have again quoted above (in [7]). 25The prosecutor is not aware of the defendant company having any prior convictions for any environmental offences. In the communications between the parties there is no evidence of contrition or remorse, nor of any intention on the defendant's part to seek to remediate the lands it cleared. 26The Court has determined that a conviction should be recorded, and a substantial fine imposed. The defendant should also be ordered to pay the prosecutor's costs. While I am satisfied that the prosecutor made every effort to keep its costs down, the failure of the defendant to engage with the prosecutor put the prosecutor to substantial expense in the form of expert evidence, photogrammetry, and the like. 27A relevant pattern of sentencing has been established by a series of cases including Rae and Walker . Pepper J reviewed many of the cases in Walker , and arrived at a fine of $200,000 for an offence she found (in the absence of a proven motive of commercial or financial gain) to be of " moderate objective gravity "(at [110]). 28No two cases are perfectly comparable, but the prosecutor considers the penalty in Walker to have established the " low water mark ". In Walker the area cleared (near Wilton) was less than 38ha (23ha), but more species of native vegetation were affected (7 cf 3). The offence occurred in a location which is perhaps more " urban " than in this case. On the other hand, the prosecutor accepts that the impact on habitat may be construed to have been less in this case than in Walker , in " corridor " terms. 29In all the circumstances, I am not satisfied that the fine to be imposed in this case should be either more or less than the fine imposed in Walker. Orders 30The Court, therefore, makes the following orders: (5)The defendant corporation is convicted of the charge preferred in the summons. (6)The defendant is fined the sum of $200,000. (7)Under s 257B of the Criminal Procedure Act 1986, the Defendant is ordered to pay the Prosecutor's costs as determined under s 257G of that Act. (8)All the exhibits may now be returned. 31I will publish these reasons later today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2011