Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106 Hearing dates: 10 February 2014 Decision date: 18 June 2014 Before: Ward JA at [1] Johnson J at [199] R S Hulme AJ at [200] Decision: 1. Appeal from conviction dismissed. 2. Appeal from sentence allowed. 3. Order 2 of the orders made by primary judge on 20 December 2012 be varied to substitute for "80,040" the sum of "66,000". Catchwords: CRIMINAL LAW - appeal and new trial - appeal against conviction - appellant pleaded guilty - whether miscarriage of justice in circumstances where guilty plea related only to clearing in limited area - where appellant contends that prosecution for part or all of clearing may have been statute barred CRIMINAL LAW - appeal and new trial - admission of new evidence - whether evidence "fresh" - whether denial of procedural fairness arising from manner in which response to notices for production of documents was made CRIMINAL LAW - offence under the Native Vegetation Act 2003 - clearing native vegetation otherwise than in accordance with a development consent or a property vegetation plan - appeal on grounds that prosecution failed to establish that cleared vegetation was not "regrowth" within meaning of section 9 of the Act or and/or had failed to prove matters such as the number and species of trees cleared - whether prosecutor had established presence of endangered ecological community CRIMINAL LAW - offence under the Native Vegetation Act 2003 - whether clearing permitted under exceptions for routine agricultural management activities within meaning of section 11 of the Act CRIMINAL LAW - appeal against sentence - whether error in exercise of sentencing discretion Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Native Vegetation Act 2003 (NSW) Native Vegetation Regulation 2005 (NSW) Native Vegetation Regulation 2013 (NSW) Occupational Health and Safety Act 2000 (NSW) Supreme Court Act 1970 (NSW) Threatened Species Conservation Act 1995 (NSW) Cases Cited: Charlesworth v R [2009] NSWCCA 27 Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 Clark v R [2012] NSWCCA 158 Director General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 Elmir v R [2009] NSWCCA 22 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 Han v R [2012] NSWCCA 257 Lars, Da Silva and Kalanderian (1994) 73 A Crim R 91 Meissner v R (1995) 184 CLR 132 Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Boag (1994) 73 A Crim R 35 R v Chiron (1980) 1 NSWLR 218 R v Kouroumalos [2000] NSWCCA 453 R v Liberti (1991) 66 A Crim R 120 R v Marchando (2000) 110 A Crim R 337 R v O'Sullivan [2002] NSWCCA 98; (2002) 128 A Crim R 371 R v Parkes [2004] NSWCCA 377 R v Sewell [2001] NSWCCA 299 R v SL [2004] NSWCCA 397 R v Toro-Martinez (2000) 114 A Crim R 533 R v Van (2002) 129 A Crim R 229 Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12 Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 Category: Principal judgment Parties: Thomas Bede Rummery (Appellant) Chief Executive, Office of Environment and Heritage (Respondent) Representation: Counsel: Appellant in person E Muston (Respondent) Solicitors: Office of Environment and Heritage (Respondent) File Number(s): CCA 2013/18833 Publication restriction: Nil Decision under appeal Citation: [2012] NSWLEC 271 Date of Decision: 2012-12-20 00:00:00 Before: Pepper J File Number(s): 51021 of 2011 Judgment 1WARD JA: Mr Rummery pleaded guilty to, and was convicted on 20 December 2012 by the Land and Environment Court of, an offence against s 12(1) of the Native Vegetation Act 2003 (NSW). The offence, as charged in the prosecutor's summons filed 9 November 2011, was that: between about 13 August 2008 and 17 August 2010, at or near Bendemeer in the State of New South Wales, Mr Rummery cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan. 2The summons particularised the place of the offence as being at or near the property "Yarragool" in Bendemeer (including reference to particular lot numbers) and the native vegetation alleged to have been unlawfully cleared as including nine particular species of vegetation. The manner of breach was particularised as being by use of a bulldozer and/or pesticide/herbicide application equipment (sub-para (c)(a)) and/or that Mr Rummery was the landholder of the land on which the clearing of native vegetation was carried out (sub-para (c)(b)). 3The particulars of the offence specified the date on which evidence of the offence first came to the attention of an authorised officer as being 12 November 2009 (the officer in question being identified as Mr Greg Roberts). The particulars did not identify the actual area of land cleared during the relevant period. 4On 9 March 2012, at which time Mr Rummery had the benefit of legal representation, Mr Rummery pleaded guilty to the charge. The matter was listed for hearing before Pepper J in the Land and Environment Court in October 2012, at which time Mr Rummery represented himself. On 20 December 2012, her Honour published her reasons for convicting Mr Rummery of the offence as charged and as to the penalty to be imposed ([2012] NSWLEC 271). Mr Rummery was fined the sum of $80,040 and, pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), was ordered to pay the prosecutor's costs of the proceedings. 5Mr Rummery now appeals from both his conviction and sentence. Pursuant to s 5AB, read with s 5AA of the Criminal Appeal Act 1912 (NSW), his appeal is as of right. It is an appeal in the strict sense, requiring that error be shown on the part of the primary judge (per Santow JA in Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 at [15], [19]; Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 at [43]). Background 6The history of the Yarragool property taken into account by her Honour is set out in two statements of agreed facts and in Mr Rummery's affidavit of 17 August 2012. Briefly, that history includes the following matters. 7Around 1929, almost all the trees on the property were ringbarked. In the 1950's, the majority of the property was cleared by logging but vegetation in the south-eastern and very northern section of the property was retained. Selective hardwood saw logging occurred on the property from the 1950's through to 1989. During part of that time, the logging was by the Bendemeer Sawmill. 8Mr Rummery's father purchased the property in 1974. It had previously been owned by Mr John Thrift's family. Mr Thrift recalled that the northern area of the property was pretty much totally bare with the exception of a few trees and rocky outcrops and that a section of the southern side of the property was affected by beetles in the 1980's and had been "virtually chopped ... all out". 9Between 1974 and 2004, Mr Rummery's father owned and managed the property. He ran a fine wool enterprise on the property as well as beef cattle. In 1984, Mr Rummery's brother logged areas on the property that had previously been logged in the 1950's as well as areas that had not been logged before in the southern area of the property. In 1985, vegetation was completely removed from the walls of three dams that had been built in 1983. In 1989, Mr Rummery's brother re-logged areas that had been cut by the Bendemeer Sawmill in the late 1970's. In the years 1988-1991, Mr Rummery's father employed a team to poison timber on the property. In some areas, the poisoning resulted in new regrowth timber growing more thickly than before; in other areas, regrowth was controlled through the presence of livestock. 10Farm management across the property was based around three management zones. Zone one, at the northern part of the property, was subdivided with new fencing in the 1970's and contained a set of sheep yards. Mr Rummery's evidence was that regrowth trees in that area were controlled with herbicide from 1988-1991. Zone 2 was the central area used for livestock management and was described as generally open grazing country. Mr Rummery said this required only limited vegetation management which was undertaken mechanically with a tractor and blade or a bulldozer. Zone 3, referred to as the Back Paddocks, was rougher terrain with two long mountain ranges and a valley in between. Mr Rummery said that regrowth vegetation in the valley was controlled with herbicide for the period 1988-1991. 11From 1996, Mr Rummery's father leased the property to various people to run livestock and the overall condition of the property declined. Mr Rummery and his wife purchased the property in 2004. They prepared a farm management plan. It was agreed that this did not constitute a development consent nor was it a property vegetation plan for the purposes of the Native Vegetation Act. Since purchasing the property, Mr and Mrs Rummery have developed the property, including carrying out clearing in accordance with that plan. 12In April 2008, two authorised officers of the Department of Environment, Climate Change and Water (DECCW), Mr Stephen Beaman and Mr Glendon Turner, observed evidence of clearing of the Yarragool property from the fenceline of the property (at Airlie Road) for about 1 kilometre in an easterly direction. The Supplementary Statement of Agreed Facts recorded that Mr Turner considered the small stacks of pushed vegetation to be regrowth and that Mr Beaman did not consider the clearing to be particularly significant. 13On 12 November 2009, Mr Greg Roberts (an authorised officer under s 34 of the Native Vegetation Act) took aerial photographs or images of the Yarragool property. This is the date specified in the summons as the date on which evidence of the offence first came to the attention of an authorised officer for the purposes of s 42(4) of the Native Vegetation Act. What led to the taking of those photographs was not part of the agreed facts and is relevant when considering the allegation now made by Mr Rummery that the claim against him may have been statute barred. I refer to Mr Rummery's contentions in that regard in due course (at [84]ff below). For present purposes, I simply note that there is a dispute as to when the clearing the subject of the charge to which Mr Rummery pleaded guilty first came to the attention of an authorised officer under the Native Vegetation Act. 14After the aerial inspection on 12 November 2009, officers from the Office of Environment and Heritage (OEH) undertook a number of site investigations of the property: the first, over 11 and 12 May 2010; the second on 13 October 2010, and the third on 29 June 2011. On each occasion this was pursuant to an authority issued under s 35 of the Native Vegetation Act. Aerial photographs were again taken on 17 August 2010. Interviews were held with each of Mr and Mrs Rummery in June 2010 and July 2011. The summons was subsequently filed on 9 November 2011. Relevant statutory provisions 15Section 12 of the Native Vegetation Act provides as follows: 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the [Environmental Planning and Assessment Act 1979 (NSW)] for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. 16"Native vegetation" is defined in s 6(1) of the Native Vegetation Act as meaning any of the types of indigenous vegetation there specified (including trees and understorey plants). Section 6(2) provides that vegetation is "indigenous" if it is a, or comprises, species of vegetation that existed in the State before European settlement. 17Section 7 provides that "clearing" native vegetation means any one or more of a number of activities including cutting down, felling, thinning, logging or removing native vegetation. 18Section 9 deals with what is meant by "remnant native vegetation" and "regrowth": 9 Meanings of remnant native vegetation and regrowth (1) For the purposes of this Act, remnant native vegetation means any native vegetation other than regrowth. (2) For the purposes of this Act, regrowth means any native vegetation that has regrown since ...: (a) ... 1 January 1990 [in the case of the present land] ... 19Subject to any exclusion in a property vegetation plan, s 19 of the Native Vegetation Act permits the clearing of native vegetation that is "only regrowth" (but not "protected regrowth" as defined in s 10). 20Section 22, in Division 3 of the Native Vegetation Act, permits clearing for routine agricultural management activities in the following terms: 22 Routine agriculture management activities (1) Clearing for routine agricultural management activities is permitted. (2) This section does not authorise any clearing of native vegetation: (a) if it exceeds the minimum extent necessary for carrying out the activity, or (b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure. 21Section 11 defines routine agricultural management activities as meaning various activities on land carried out by or on behalf of the landowner, including: (a) the construction, operation and maintenance of rural infrastructure including, among other specified infrastructure and subject to the regulations, dams, permanent fences, buildings and farm roads; (b)-(c) the removal of noxious weeds or control of noxious pests, in each case under the relevant legislation; and: (i) any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property. 22Section 11(2) provides that the regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities. Part 4 of the Native Vegetation Regulation 2005 (NSW) deals with routine agricultural management activities and, relevantly, regulation 16 provides as follows: 16 Obtaining construction timber (1) The activities that comprise routine agricultural management activities for the purposes of section 11 of the Act are extended to include the clearing of native vegetation on land for use in the construction or maintenance of rural infrastructure on the land within whichever of the following time periods is applicable to the land: (a) [relevantly for present purposes] 18 months after the clearing for land ... (2) This clause authorises clearing of native vegetation only if the clearing: ... (b) is carried out in conjunction with a restoration program or other arrangements that will ensure the restoration of native vegetation on the cleared land of the same or a similar species as the native vegetation cleared and to the same or a similar extent as existed on the cleared land. (3) This clause authorises the clearing of native vegetation only if the native vegetation does not comprise: (a) a threatened species, or a component of a threatened population or threatened ecological community, under the Threatened Species Conservation Act 1995 or is likely to comprise habitat of such a threatened species, ... 23Pursuant to s 42(3) of the Native Vegetation Act, proceedings for an offence under the Act or regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed. However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer (s 42(4)). Sub-section (5) provides that if sub-s (4) is relied on for the purpose of commencing proceedings for an offence (as was the case here) the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. In such a case, sub-s (5) provides that the date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established. 24The objects of the legislation are set out in s 3 and include to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State (sub-s (a)). Hearing in the Land and Environment Court 25In the Land and Environment Court hearing, the prosecutor's case was that Mr Rummery had cleared 286ha of native vegetation from the property during the charge period (between 13 August 2008 and 17 August 2010), of which 248ha had been unlawfully cleared. (The prosecutor accepted that 38ha of the vegetation cleared by Mr Rummery over the charge period had been lawfully removed for the purposes of Mr Rummery constructing rural infrastructure.) The prosecutor relied upon an expert ecologist report for the contention that 30,000 to 50,000 trees had been cleared, comprising mainly trees that were 80 years' old, and that there was present on the cleared area an ecological community of high value. 26The prosecutor's evidence included expert opinion evidence based on aerial photograph interpretation (from Mr Paul Spiers) expert ecological evidence (from Dr Chris Nadolny) and expert evidence as to threatened species (Dr Todd Soderquist) based on the site visits referred to above and vegetation sampling on a travelling stock route (which was Crown owned land) in the area. There was also evidence obtained in a recorded interview of Mr Rummery (under caution) and written answers to questions put to Mr Rummery. 27During their site visits, OEH investigators and ecologists visited approximately 110ha of the alleged unlawfully cleared 248ha, collected specimens of some cleared vegetation for later identification, took measurements of the breast height diameter (DBH) of some cleared and uncleared vegetation, and undertook on-property identification of some vegetation. Global Positioning System technology was used to identify where on the property the samples were collected and recorded. 28It was contended that the clearing had caused significant or substantial environmental harm. 29Mr Rummery's position, maintained both in opening and closing submissions at the Land and Environment Court hearing, was that he had pleaded guilty to illegal clearing only on 48ha of the property and that he did not agree that the area he had illegally cleared was 248ha. He disputed not only the area of illegal clearing but also: the number of trees that had been cleared; whether the cleared vegetation was proved to have been native indigenous vegetation; the age of the cleared timber; whether it had been proved that the cleared trees did not constitute regrowth; whether the trees were dead or alive when cleared; and whether there was evidence of an endangered ecological community having been present or of any impact on threatened fauna. Mr Rummery placed weight on the fact that the OEH ecologists had not visited a substantial portion (approximately 130ha) of the allegedly cleared area and had made estimates on the basis, among other things, of investigations of vegetation on Crown land some distance away that was a travelling stock route. Mr Rummery disputed the level of environmental harm claimed by the prosecutor. 30Mr Rummery gave evidence at the Land and Environment Court hearing as to his awareness of the requirements of the Native Vegetation Act; claimed that he had undertaken the clearing under the exception contained in s 11(1)(i) of that Act (due to the risk posed by vegetation to the safety of workers when mustering on the property); acknowledged that he did not seek advice from the consent authority regarding the clearing but relied on information sheets on the Native Vegetation Act issued by the Catchment Management Authority; and contended that he was in an impossible position having to meet his legal obligations under both the Occupational Health and Safety Act 2000 (NSW) (OHS Act) and the Native Vegetation Act if the exception under s 11(1)(i) did not apply. On this last point, Mr Rummery noted that clearing specifically for safety reasons was not a basis on which approval for a property vegetation plan would be given and that such a plan could not be approved unless it improved or maintained environmental outcomes (referring to s 29 of the Native Vegetation Act). 31Mr Rummery contended that the level of environmental harm by his activities was low, based on the limited area that he admitted having unlawfully cleared and his evidence that, in undertaking the clearing, he had actively sought to minimise the level of environmental harm by identifying and clearing small trees without habitat hollows and of relatively low environmental value; had not cleared environmentally sensitive riparian areas; and had cleared slowly to allow impacted fauna to relocate. 32Mr Rummery adduced evidence of good character and his financial inability to pay a fine; expressed his remorse and stated that he did not set out deliberately to breach the Native Vegetation Act; referred to his co-operation with the investigators and the prosecutor throughout the investigation and prior to the hearing and that he had undertaken the clearing without concealment or removing evidence. Reference was made to the Supplementary Statement of Agreed Facts in this regard. 33The prosecutor accepts that in the Land and Environment Court proceedings, Mr Rummery raised the matters set out at [9]-[20] of his submissions dated 5 September 2013 filed on the present appeal (broadly summarised above). In essence, in the proceedings before her Honour and on the present appeal, Mr Rummery contended that the prosecutor was not able to prove beyond reasonable doubt what he contended were the basic elements of the charge, including in this regard that the prosecutor had not proved that the cleared trees did not constitute regrowth. He nevertheless maintains that he did not rely on "regrowth" as an exception to s 12 of the Native Vegetation Act but, rather, as a mitigating factor when assessing the question of environmental harm. Primary judgment 34Her Honour noted (at [21]) that the clearing the subject of the charge was undertaken using a single bulldozer and that Mr Rummery had estimated that he had cleared vegetation approximately 3 days per week over the charge period at a rate of approximately 1ha per day. Her Honour noted that Mr Rummery had cleared vegetation along fencelines, tracks and dams to the extent permitted under the Native Vegetation Act and had cleared an additional 30m along fences and tracks to provide mustering routes ([22]). Her Honour noted that the remainder of the land the subject of the offence was thinned or partially cleared with rough or rocky areas generally conserved; paddock trees retained in most areas; and greater numbers of trees retained in the northern section of the property ([22]). 35At [23]-[25], her Honour noted the predominant species of the cleared trees; the disturbance to native groundcover, mid-storey shrubs and juvenile eucalypts by use of the bulldozer; and the disputed expert ecological evidence that the cleared area may also have comprised a particular endangered ecological community listed under the Threatened Species Conservation Act 1995 (NSW) (referred to as Box Gum Woodland). 36Her Honour noted that Mr Rummery contended that he had cleared 200ha of the land subject to two exemptions contained in s 11(1) of the Native Vegetation Act ([38]), the exemption for routine agricultural management activities (i.e., the "rural infrastructure RAMA" exemption in sub-s (1)(a)) and the exemption in sub-s (1)(i) (i.e., the "imminent risk" exemption). 37Her Honour accepted (at [44]) that the total area of lawfully cleared land pursuant to the rural infrastructure RAMA exemption was, on the balance of probabilities, 47ha. Her Honour thus concluded (at [46]) that the total area of unlawfully cleared land the subject of the charge was to be reduced to 239ha. Because Mr Rummery had agreed that he had unlawfully cleared 48ha of native vegetation, her Honour noted that this left an area of 191ha in dispute ([46]). 38Her Honour did not accept that the remaining 191ha had been lawfully cleared pursuant to the imminent risk exemption ([55]). Her Honour accepted that mustering was undeniably an inherently dangerous activity but said that this did not of itself mean that mustering involved an "imminent risk" for the purposes of s 11(1)(i). Her Honour concluded that the phrase "imminent risk" involved a temporal nexus; i.e., that the risk must be assessed against the likelihood of serious personal injury occurring relatively soon and not at some inchoate point in time ([57]). 39Her Honour considered that none of the native vegetation cleared had posed an "imminent risk of serious personal injury" and that, at its highest, the risks posed by vegetation in the mustering undertaken by Mr Rummery were better classified as potential or latent risks ([61]; [71]). Her Honour concluded that the total area the subject of the unlawful clearing was thus 239ha ([72]). 40Turning to the environmental harm caused by the unlawful clearing, her Honour noted the dispute as to the calculation of the number of trees felled by Mr Rummery ([77]-[78]). Her Honour was not able to find that the prosecutor had demonstrated beyond reasonable doubt that the figures of its expert ecologist (Dr Nadolny) should be accepted ([80]), given that his estimate was given "very roughly" and it failed to take into account the area of land permissibly cleared pursuant to the rural infrastructure RAMA exemption ([79]). Expressly giving Mr Rummery the benefit of the doubt, her Honour found that between 18,000-20,000 trees were cleared by him during the charge period ([85]). Her Honour considered that the nature of the clearing could only be classified as extensive having regard to the fact that it resulted in "the near total removal (apart from the retention of isolated patches of vegetation and larger trees) of forest and woodland vegetation, and the degradation of native groundcover, from an area covering 239ha of the 2,000ha property" ([87]). 41As to the age of the trees that had been felled, her Honour considered that at the highest the evidence revealed that the majority were between 40-80 years old (which diminished the objective seriousness of the offence but only marginally) ([101]-[102]). Her Honour was satisfied beyond reasonable doubt that the Box Gum Woodland endangered ecological community (EEC) was present on the property and was adversely impacted by the commission of the offence ([105]) but was unable to make a finding as to the extent of the impact of the unlawful clearing on the EEC ([106]). Her Honour concluded that there was a real likelihood that fauna dependent on the type of woodland habitat that was cleared was present and that the potential adverse impacts of the unlawful clearing on this fauna should be taken into account ([111]). 42Her Honour noted that the experts agreed that in the long term the deleterious environmental consequences of the clearing could be alleviated and that Box Gum Woodland EEC could still be present in low or moderate form in the cleared area and could recover ([112]-[114]). 43Her Honour concluded that the commission of the offence had caused moderate to substantial environmental harm, although not as substantial as the prosecutor had posited, and accepted that harm was to be considered as an aggravating factor ([120]). 44As to Mr Rummery's state of mind, relevant to the determination of the objective seriousness of the offence, her Honour considered that Mr Rummery's actions were undertaken negligently (he having erroneously relied upon the imminent risk exemption to undertake clearing over a wide area and not having sought any advice as to the lawfulness of the clearing) ([129]). Her Honour did not accept that his actions were undertaken in reckless disregard of the provisions of the Native Vegetation Act. Rather, her Honour accepted that Mr Rummery undertook the clearing based on a genuine misunderstanding that the activity came within a statutory exception ([130]). 45As to Mr Rummery's reasons for the activity, her Honour found that there were several reasons, only one of which was the provision of a safe working environment; the clearing having been generally effected in order to develop the property in accordance with the farm management plan. ([140]). Her Honour did not find that the clearing was undertaken for commercial gain ([141]). 46Having regard to those matters, as well as Mr Rummery's acknowledgment that the risk of harm to the environment from the unlawful clearing was at all times reasonably foreseeable; the fact that there were practicable measures available to prevent the risk of harm (such as applying for a development consent or property vegetation plan and seeking advice); and the fact that Mr Rummery had full control over the causes of the offence, her Honour concluded that the offence was one of moderate to serious objective gravity ([142]-[145]). 47Her Honour then turned to the question of personal or mitigating factors, noting that Mr Rummery did not have any prior convictions for any environmental offences ([148]); had presented a number of affidavits as to his good character and contribution to the local community ([149]); had entered a plea of guilty at the second mention of the matter (as a result of which her Honour said that he was entitled to the full 25% discount, notwithstanding that the utilitarian value of the plea was affected to the extent that he had contested a number of issues) ([150]-[153]); that he had demonstrated genuine contrition and remorse, had not attempted to conceal the offence and had cooperated with the authorities ([157]-[160]); and was unlikely to re-offend ([161]). 48Her Honour also referred to the evidence relied upon by Mr Rummery as to the financial consequences of imposition of a penalty (including his evidence that he could no longer afford legal representation and that even the imposition of a modest penalty would have financial implications for himself and his family, and his ability to retain the property) ([163]); as well as evidence from Mr Rummery's accountant, bank manager and father-in-law ([164]). Her Honour said that the evidence did not unequivocally disclose whether Mr Rummery's primary place of residence was Yarragool but that it did reveal that Mr Rummery owned at least two properties, the value of each of which was unknown ([167]). Her Honour was unable to conclude that the imposition of more than a nominal fine, though accepting that it would cause a degree of financial distress, would result in the forced sale of Mr Rummery's primary residence or, if his two properties be separate, of Yarragool ([168]). 49Her Honour concluded (at [169]) that the subjective circumstances operated to mitigate to a considerable degree the penalty that would otherwise be imposed by the Court. 50Having regard to those matters, and to the need for general deterrence and consistency in sentencing, her Honour concluded that the appropriate penalty was $120,000 ([193]). That penalty was then discounted by 33% to $80,040. Her Honour indicated that but for Mr Rummery's financial circumstances the fine would have been considerably higher given the objective gravity of the offence. Her Honour said that there was no disentitling conduct by the prosecutor that would justify an order that each party bear its own costs and ordered that Mr Rummery bear the prosecutor's costs noting that the payment of those costs (which were likely to be considerable) was taken into account in setting the appropriate fine ([191]-[192]). Appeal 51In his notice of appeal filed on 9 September 2013, Mr Rummery raises the following five grounds of appeal: 1. The judge erred in failing to understand the requirements and gravity of the legal obligations and responsibilities placed on the Defendant under the Occupational Health and Safety Act 2000 (OHS Act) (now repealed) which placed an absolute duty on an employer to ensure the health and safety of workers in the workplace. The judge further erred in failing to recognise that it was not possible for the Defendant to meet the legal obligations of the OHS Act 2000 without breaching the Native Vegetation Act 2003 if the exception of s 11(1)(i) is not accepted. 2. The judge erred in failing to understand that the Defendant only pleaded guilty to 48 hectares (ha) of illegal clearing (an offence under s 12 of the Native Vegetation Act 2003). The judge further erred in accepting the proposition made by the Crown that Routine Agricultural Management Activities are the only reasons why clearing would not contravene s 12 of the NV Act [Transcript 23/10/12 page 3, paras 25-43 AB4 Tab 54]. The judge was in error in not putting the evidence of the Crown on clearing 248 ha to the test of proof under the Native Vegetation Act 2003 s 6(1)(a), s6(2), s 7(a)(b), s 9(2)(a) before examining the validity of any claimed exceptions. 3. The judge cannot support the finding she made on the 'level of harm' caused by the clearing based on the lack of evidence put before the court by the Crown witnesses for the area of unlawful clearing. 4. The judge failed to fully understand that the Defendant had absolutely no capacity to pay a fine. The judge failed to take into consideration the impact the legal and expert witness costs that the Defendant incurred to show the Crown case was inaccurate, overstated and substantially based on unfounded opinion and assumptions rather than any evidence that could be proven beyond reasonable doubt. The judge erred in not recognising the lack of profitability in a grazing business and the extreme and long term financial consequences for the Defendant's dependant family including the real possibility of having to sell the family home and farm business, by imposing a significant financial penalty. 5. The Appellant claims that at least part of the charge may be statute barred under s42(4) of the Native Vegetation Act 2003. This was unable to be examined in the trial court as the Prosecutor refused to produce some documents under a Notice to Produce, provided false information to the Defendant prior to a plea being entered and then filed a relevant affidavit 3 days prior to the hearing date, (11 months after the summons was filed), that contradicted previous information provided to the Defendant. The Defendant was self represented and was unable to process this information in sufficient detail to raise the issue in court Application to tender further evidence 52Relevant to the fourth and fifth grounds of appeal, is Mr Rummery's application to rely on further evidence as to various matters: the date on which evidence of the clearing first came to the attention of an authorised officer; the unlikelihood or inability of Mr Rummery to have been permitted to clear the area under a property vegetation plan having regard to OEH guidelines; and the financial impact of the fine on Mr Rummery. Volume 5 of the Appeal Books contained most of that additional evidence. 53As to the first of those three matters (the date on which evidence of the clearing first came to an authorised officer's attention), Mr Rummery sought to tender two affidavits that had been filed but not read in the proceedings below (an affidavit affirmed 31 January 2012 of Mr Roberts and an affidavit affirmed 18 October 2012 of Mr Beaman); a letter dated 3 March 2012 from a legal officer with OEH (Ms Rebecca Hicks). Mr Rummery also sought to rely upon material produced at the commencement of the hearing by the prosecutor in answer to an order for production that had been made, on Mr Rummery's application, on 7 February 2014 shortly before the hearing of the appeal. 54The 7 February 2014 order for production required production of documents falling within three categories of documents. The Court was informed by Mr Muston, Counsel for the prosecutor, that there had previously been informal production of documents falling within those categories (1, 4 and 7 of the order). Formally produced in Court in answer to the order for production was a folder of documents. The prosecutor's solicitor, Mr Fox, was cross-examined by Mr Rummery in relation to the production (to which I will refer in due course). 55Paragraph 1 of the order for production called for the hard copy satellite image of the Yarragool property referred to in Mr Roberts' 31 January 2012 affidavit "and used by him to confirm his location when flying over the property on 12 November 2009". Produced in answer to this was a coloured image bearing the identifying reference "NWA09 012". Mr Fox gave evidence that he had made enquiries within the department in an attempt to locate the image referred to in paragraph 1 of the order to produce and that he was instructed that the image that had been produced "was likely to be" the image that was called for in that paragraph (T 6.23). Mr Fox also said that he had made enquiries as to, but had been unable to determine, the date on which that particular image was taken. Mr Fox did not know the source of the image. He referred to enquiries that had been made of Mr Roberts (who had retired some time ago) at an earlier stage in order to locate the particular image to which Mr Roberts had referred in his affidavit. 56Paragraph 4 of the order for production called for production of the "07/08 SLATS [Statewide Landcover and Tree Survey] image" of the Yarragool property, including any "supporting data on the area of vegetation change", referred to in Mr Beaman's 18 October 2012 affidavit. What was produced in answer to that paragraph was a "thumb drive", which the Court was informed contained a vast electronic file requiring particular software for it to be viewed (and which I have not attempted to review). 57Paragraph 5 of the order for production called for production of "[a]ll remotely sensed images (hard copy or electronic aerial photographs and satellite images)" of the property captured on or after 13 August 2008 and viewed or accessed by authorised officers prior to 12 November 2009. 58Mr Fox gave evidence that what was produced in answer to this paragraph was a CD containing a digital file being an image that was taken on 13 August 2008, which was viewed and/or accessed by the authorised officers in relation to the investigation prior to 12 November 2009. Also produced was a hard copy of the image labelled "SPOT Image". 59As to the second matter (ability to obtain a property vegetation plan for clearance of the land for safety reasons), Mr Rummery sought to tender an affidavit affirmed 10 April 2012 from an OEH Natural Resources Officer (Mr Craig Wood) as to his assessment of whether a property vegetation plan could have been issued for areas of identified clearing on the Yarragool property (which affidavit had also been filed in the proceedings below but not read) and a copy of the OEH's published Environmental Outcomes Assessment Methodology pursuant to the Native Vegetation Regulation 2013 (NSW). 60As to the third matter (ability to pay the fine), Mr Rummery sought to tender Notices of Assessment issued by the ATO for the years ended 30 June 2009, 2011 and 2012 as well as an estimate prepared by him of his weekly income and expenditure for 2013/2014. 61In Mickelberg v R [1989] HCA 35 at [27]; (1989) 167 CLR 259 at 273, Mason CJ considered the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence and said: ... It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen. Deane J and I (at 402) considered that the test was best expressed in those terms. (footnotes omitted) [There referring to Gallagher v R [1986] HCA 26; (1986) 160 CLR 392] 62In R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 (at [63]), it was said that material available at the time of the trial could not properly be characterised as "fresh evidence". 63Turning to the categories of fresh evidence here sought to be adduced, there is no suggestion that any of the affidavit material on which Mr Rummery now seeks to rely was not served on him prior to the Land and Environment Court hearing. Mr Rummery complains that he had only had a few days to consider Mr Beaman's 18 October affidavit before the hearing commenced on 20 October 2012. Nevertheless it had been served on him in advance of the hearing and he must have appreciated that it was provided in order to respond to the issues that had been raised (by Mr Rummery and/or his former legal representatives) as to the date on which evidence of the clearing had first come to the attention of an authorised officer (this apparently having been an issue agitated in the correspondence to which Ms Hicks' March letter responded and having been the subject of at least one earlier notice to produce). Similarly, both the OEH assessment outcome methodology and the ATO assessment notices would reasonably have been available to Mr Rummery at the time of the hearing below. 64Where there might be room for argument as to the unavailability, at an earlier time, of the material on which Mr Rummery now seeks to rely is as to the material the subject of the order for production made on 7 February 2014. There appears to have been a history of attempts by Mr Rummery to obtain material of this kind. 65Mr Rummery says that his lawyers had requested the prosecutor to provide any information on the involvement of Mr Beaman or Mr Turner in the investigation prior to him entering his guilty plea. He refers to the letter from Ms Hicks in March 2012, in which his lawyers were informed that there were "no records of any documents relating to investigations carried out by Mr Beaman or Mr Turner of OEH concerning the land between 13 August 2008 and 12 November 2009". In context, that statement appeared as follows: In relation to the refined term of the Notice to Produce set out in point 2 of our letter of 27 February 2012, our response is we have no records of any documents relating to investigations carried out by Mr Beaman or Mr Turner of OEH concerning the land between 13 August 2008 and 12 November 2009. I note the filed affidavits of Mr Turner and Mr Beaman outline what action they did take in relation to the clearing they observed on the property, Yarragool, but that is outside the above period. 66Mr Rummery maintains that this statement was shown to be incorrect and asserts that it was on the basis of that information that he had pleaded the way he did, on advice from his then lawyers. 67The 3 March 2012 letter in its terms responded to a query as to a notice to produce. The Court was informed by Mr Muston that the notice to produce to which the 3 March 2012 letter was responding was one that called (at para 1.4) for any investigations carried out by Mr Beaman and Mr Turner of the OEH concerning the land and any alleged contravention of the Native Vegetation Act on the land between 1 January 2008 and 12 November 2009. It was submitted that there was no error in the response since neither Mr Beaman nor Mr Turner had carried out any investigation of a contravention during the period stated in the letter. 68On the material to which this Court has been taken, the only arguable inaccuracy (in the statement that there were "no records of any documents relating to investigations") is that in his affidavit Mr Beaman referred to having placed the Yarragool property on a flight list of properties to monitor. It is conceivable that there would have been records of that flight list. However, if (as may well have been the case) OEH understood the position up to the time of the flight as being that there was no investigation at that point of any contravention (the formal investigation being treated as commencing after the flight had been taken) then any inconsistency in the response that was given in that letter would be explicable by reference to that understanding. 69That Mr Beaman had looked at the SLATS 07/08 data provided in October 2009, had observed that there had been some change from earlier data and had listed the Yarragool property as one in respect of which aerial photographs should be taken, would not necessarily have amounted to an "investigation" if that was understood in a formal sense. 70Similarly, the arguable inconsistency between the commencement of flights on 9 November 2009 (and placement of the Yarragool photographs in an image subfolder dated 9 November 2009) and the statement that there were no records of documents of investigation of a contravention before 12 November 2009 might be explicable if the formal investigation of the Yarragool property did not commence until after the photographs were taken by Mr Roberts on 12 November 2009. 71It is submitted for the prosecutor that the reference in the 3 March letter to "investigations concerning the land" must be read, having regard to the context in which the question was being raised, as "investigations concerning any contravention in respect of the land". 72Mr Rummery says, in effect, that he entered his guilty plea in March 2012, after receiving legal advice, on the basis that he and/or his lawyers understood from Ms Hicks' response that there had been no investigations concerning the land prior to 12 November 2009. Mr Rummery says that when he later sought to cross-examine Mr Beaman in the sentencing hearing as to Mr Beaman's knowledge of alleged unlawful clearing prior to 12 November 2009, the prosecutor served the October affidavit from Mr Beaman but that he was at this time self-represented, had already entered a guilty plea, and did not have sufficient time to consider his position in that regard. 73Hence Mr Rummery makes complaint as to his inability to examine this issue in the proceedings before the Land and Environment Court which he attributes to a refusal by the prosecutor to produce documents in answer to the earlier notice to produce issued in those proceedings (a copy of which was not in the appeal books before this Court). 74No issue is taken by the prosecutor as to delay by Mr Rummery in seeking the documents for the purposes of these appeal proceedings, it being accepted by the prosecutor that the issue had been raised some time before the application for an order for production was heard in February this year. 75Without in any way suggesting that Mr Rummery's complaint that he was misled by the OEH solicitors' response has any foundation (since that could only be tested by reference to the complete correspondence on that topic and OEH would need to be given an opportunity to be heard on that issue), there is at least some doubt as to whether the material produced in Court to Mr Rummery at the commencement of the hearing was reasonably available to him at the time of the Land and Environment Court hearing. 76Therefore, I would have been inclined to give leave for the admission of the material relied upon as going to the date on which evidence first came to the attention of an authorised officer if this would be likely to have led to a different conclusion on whether the offence had been proved (assuming for this purpose that Mr Rummery's guilty plea were treated as having been withdrawn) or as to the exercise of the discretion on sentencing. However, for the reasons set out below when considering the relevant grounds of appeal, I am not persuaded that this is the case. Therefore, I would refuse leave to admit the additional evidence sought to be relied upon by Mr Rummery in that regard, as well as the additional evidence in relation to the OEH guidelines and Mr Wood's report as to the likelihood of obtaining a property vegetation plan. 77As to the financial material sought to be relied upon, that was admitted during the course of the hearing on the basis that the prosecutor did not object thereto (although the prosecutor maintained that no weight could be put on it). Conviction appeal 78As noted above, Mr Rummery entered a plea of guilty to the charge on which he was convicted. The principles applicable where an appeal is brought against a conviction after a plea of guilty were considered in Lars, Da Silva and Kalanderian (1994) 73 A Crim R 91 at 109ff and have been adopted and restated in various cases, including more recently in Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 at [32]-[35] referred to with approval in Clark v R [2012] NSWCCA 158 at [18] (per Johnson J with Basten JA and Garling J agreeing) and Han v R [2012] NSWCCA 257 at [18] (per Latham J with McClellan CJ at CL and Fullerton J agreeing). 79In Lars, the Court (Wood, Mathews and Badgery-Parker JJ) said that the principle to be applied was said to be the same as that to be applied in a trial court where prior to sentence an accused person seeks leave to withdraw a plea of guilty previously entered (at 109). 80In Thalari, the Court said (at [32]-[35]): This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. (my emphasis) The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25]. A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v R (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46. (my emphasis) 81The proposition that, before the Court will go behind a plea of guilty and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred was emphasised in R v Kouroumalos [2000] NSWCCA 453, per Wood CJ at CL (with Studdert and Whealy JJ agreeing) at [16], citing R v Chiron (1980) 1 NSWLR 218 at 231; and R v O'Sullivan [2002] NSWCCA 98; (2002) 128 A Crim R 371 at [9]-[12]. 82One circumstance where that may be established is where the applicant did not appreciate the nature of the charges. Another is where the applicant, on the admitted facts, could not in law have been convicted of the offences charged (Liberti at 121-122). In Kouroumalos at [19], Wood CJ at CL emphasised that what is required is "the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question". Consideration of conviction appeal grounds 83Turning first to the grounds on which Mr Rummery contends that his conviction should be set aside, they are, in substance, his contention that the proceedings were statute barred (ground 5); the contention that her Honour erred in not accepting that the clearing fell within the "imminent risk" exemption (ground 1); and the contention that her Honour erred in concluding that the charge had been proven (ground 2). I propose to deal first with ground 5, since a conclusion that, even on the facts admitted, Mr Rummery could not have been convicted of the offence charged would be a clear instance where the conviction appeal should succeed. Ground 5 - that proceedings were statute barred 84As outlined earlier, in the present case the prosecutor relied on s 42(4) of the Native Vegetation Act in commencing the proceedings against Mr Rummery. Therefore, pursuant to sub-s (5), the date on which evidence of the alleged offence first came to the attention of an authorised officer is taken to be the date stated in the summons (12 November 2009) unless the contrary is proved. Had this been raised by way of defence the onus of proving the contrary would lie on Mr Rummery as the party alleging this to be the case. 85Mr Rummery referred to an affidavit affirmed on 25 July 2011 by Mr Beaman that he said was served with the summons. He says that in that affidavit Mr Beaman did not indicate that he (or Mr Turner) had had any further involvement with the investigation of clearing on Yarragool beyond the initial drive past 1 April 2008 and recording of waypoints for clearing not the subject of the charge (to which reference was made in the Statement of Agreed Facts). 86In essence, Mr Rummery seeks to draw from Mr Roberts' 31 January 2012 affidavit, which was filed on 3 February 2012 but not read in the proceedings, that someone within OEH was made aware of the alleged illegal clearing at a time prior to 12 November 2009. 87Mr Roberts deposed (at [6] of his 31 January affidavit) that on or around 2 November 2009 he was made aware of alleged illegal clearing of native vegetation on the Yarragool property and that he was asked by Mr Beaman to arrange vertical aerial photography of the property to be used by the department to define more accurately the extent of clearing that had been detected by a SLATS and to determine whether further clearing had occurred since the date of that survey. He deposed that the aerial photography was first undertaken on 12 November 2009 and then repeated on 17 August 2010. (Copies of the vertical aerial photographs recorded as being taken on those dates are in the appeal books.) 88Mr Roberts further deposed (at [9]) that "... to further confirm the correct position of the aircraft over the property, [he] checked that readily observable on-the-ground features could be identified on a previously prepared hard copy satellite image of the property". That is the hard copy satellite image production of which was sought by paragraph 1 of the February order for production. 89Mr Rummery contends that if Mr Roberts was made aware of the alleged illegal clearing on 2 November 2009 (referring to [6] of Mr Roberts' affidavit) then the proceedings are statute-barred (since the summons was filed on 9 November 2011, more than two years after that date). 90Mr Beaman presumably sought to address a contention of that kind in his affidavit affirmed 18 October 2012, which again was served on Mr Rummery but not read in the proceedings. Mr Beaman deposed that OEH received data (SLATS 06/07 data) in August 2008, which indicated that about 77ha of possible clearing had occurred on the Yarragool property between May 2005 and January 2007. He said that this clearing was assessed as not a priority in light of other competing priorities and limited resources and that this clearing was not the subject of the charge against Mr Rummery. 91Mr Beaman deposed that in October 2009 he was provided with the SLATS 07/08 data; that it was in an electronic format; and that it was the role of an officer in the OEH unit to prepare the data into a format that could be "interpreted by the Unit" ([6]). He said that when he reviewed the information he noted that it indicated 27ha of landscape change on the property between January 2007 and March 2008 and that caused him to regard the property as a general area of interest for OEH to monitor. 92He confirmed that on or about 2 November 2009 he asked Mr Roberts to undertake a flight to take aerial photographs of a large number of properties in the Armidale region including the Yarragool property. He said that at the time of the flight he had no knowledge of any landscape change on the property that had occurred after the 07/08 SLATS data ([13]). 93Mr Beaman also deposed that Mr Roberts had conducted the flyover of various properties over several days between 9 November and around 17 November 2009; that the images taken of the Yarragool property were lodged in an electronic folder with the date 9 November 2009; that the images were not assessed at that time; and that he was not aware when the assessment was conducted that lead to the further investigation but that he did not review those images until after the Yarragool investigation had commenced ([14]-[17]). 94At the time of production of the ordered documents at the commencement of the hearing Mr Fox gave evidence as to how SLATS data was received by and utilised within the Department. He said that the data was received in a digital form. His understanding of the process was that the satellite image was converted by the satellite operator to an electronic image which was then purchased by the Department but that the image when so purchased was not in a form that could readily be used by the Department's investigators. Mr Fox said that experts in aerial and satellite imagery then undertook work to "rectify" that image to ensure that it was an accurate reflection of the particular area of the State of which the image was taken. His understanding that the satellite or electronic image was in a very large file and in its raw form was not broken into its component areas. He said that it was the work of experts in satellite interpretation to process the image into a usable form for the Department's authorised officers for the purpose of investigation (T 11.21-36). 95Mr Fox also gave evidence that the experts in satellite imagery interpretation who carried out the work of "rectifying" the satellite images were not authorised officers under the Native Vegetation Act. His understanding was that it would take in the order of between 3 to 6 months or more between the date of the actual image being taken to the date that that image became available to the Department's investigators in a usable form to create images similar to the image produced in answer to paragraph 1 of the order (T 11.37-47). 96Pausing there, it is apparent that the mere receipt of the SLATS 07/08 data as at 13 August 2008 cannot possibly have drawn to the attention of any authorised officer who viewed or accessed that data any evidence of clearing of the property that took place after that date, i.e., after the electronic or digital satellite images were taken. Evidence of clearing after that date based on a comparison with the position shown on the SLATS 07/08 data and subsequent satellite data or aerial photography. 97There was no evidence of receipt by OEH of relevant SLATS data after the 07/08 data. In any event, more than mere receipt of a later satellite image in electronic form would be required to show evidence of unlawful clearing. One would need to have some form of comparison between that and earlier data for that purpose. Mr Fox gave evidence that the information purchased by the department required rectification and the application of software know-how before it was in usable form for authorised officers to review for the purpose of any investigations. That is consistent with the reference in Mr Beaman's affidavit to the provision to him in October 2009 with the SLATS 07/08 data in an electronic format and to it being the role of the unit GIS officer to prepare that information into a format that could be interpreted by the unit. 98The upshot of Mr Beaman's affidavit is that what led to his instruction in November 2009 to Mr Roberts to take aerial photographs of the Yarragool property was that the 07/08 data showed clearing to the property between January 2007 and March 2008 (not any evidence of clearing after 13 August 2008) and that the purpose of that instruction was to be able to assess whether there had been any change in the clearing from that earlier image. 99Mr Rummery considers it highly likely that an authorised officer of OEH had evidence of the alleged illegal clearing prior to 9 November 2009 because: he believes that OEH authorised officers have ready access to high quality satellite imagery; Mr Beaman had prior knowledge and observations of clearing on the property; and because the high cost of conducting a flyover to check existing SLATS data would not be undertaken without up to date satellite imagery of the kind to which Mr Roberts had referred. Mr Rummery submits that it is incomprehensible that the department was operating on two-year-old photography; does not accept that it would have taken months to have access to the satellite images in usable form; and asserts that the department must have had access on desktop computers of SPOT-5 imagery (of the kind used to produce hard copy satellite images such as the one produced in answer to paragraph 1 of the order to produce). 100In this regard, Mr Rummery noted that the expert report of Mr Spiers (an expert in the interpretation of aerial photography) referred to satellite images on 13 August 2008, 19 March 2009 and 24 November 2009 as well as aerial photographs taken on 17 August 2010. Mr Spiers' report states that he had obtained SPOT 5 Satellite Images (being digital images of the satellite images) for the 2008 and 2009 dates from OEH's "network database". In his affidavit of 2 August 2011, Mr Spiers deposed that he was provided with the 2008/2009 SPOT-5 satellite images from OEH aerial imagery library staff in order to prepare his report [16] and that the 2008/2009 images were an electronic image, the files containing which were stored on the OEH server ([18]). The prosecutor submits that this does no more than indicate that, at the date of preparation of Mr Spiers' report, the OEH library staff was able to obtain access to those SPOT-5 images, not that they were readily accessible at a much earlier date by authorised officers. 101Mr Rummery's contentions amount to no more than speculation. There might be any number of reasons why it would take time for digital images to be rectified into a form suitable for authorised officers to review and any number of reasons why OEH might consider the cost of a charter flight to be warranted. (In this regard, Mr Beaman's affidavit deposes that the instruction was to take photographs of a large number of properties not just Yarragool.) 102Although what Mr Roberts was told as to the "unlawful clearing" on 2 November 2009 is not made clear in Mr Roberts' affidavit, read with Mr Beaman's affidavit it must be inferred that the reference was either to the earlier clearing (observed in April 2008), which is not the subject of the charge, or to the evidence of clearing since then (still not part of the subject charge) that had caused Mr Beaman to decide the property should be monitored. Mr Beaman's evidence was that he had reviewed the data received in October 2009, considered that it showed further clearing from that which had been apparent on the SLATS data for the previous period, and had asked Mr Roberts in that context to carry out the aerial photography. 103Mr Rummery also points to what he maintains is inconsistency between the statement by Mr Beaman that "At the time of the flight I had no knowledge of any landscape change on the property Yarragool that had occurred after the 07/08 SLATS data" and a statement in Mr Beaman's first affidavit (recorded in the agreed facts) to the effect that Mr Beaman had personally observed clearing on the property in April 2008, since the latter was after the Jan 07/Mar 08 SLATS dates. That inconsistency would be relevant if Mr Rummery had been prosecuted with the April 2008 clearing but it does not point to any evidence of clearing post August 2008 having come to Mr Beaman's attention before the flight. 104Insofar as ground 5 of the grounds of appeal is put forward as a basis for setting aside the conviction because of an argument that "at least part of the charge may be statute barred", the material sought to be relied upon by Mr Rummery does not establish that the date specified in the summons (as to when evidence of the clearing first came to the attention of an authorised officer) was incorrect. That is an issue on which Mr Rummery bears the onus. 105What is put forward by Mr Rummery is largely speculation, namely his belief that authorised officers in the OEH were able to have access to the electronic data in a usable form without the need for the rectification process described briefly by Mr Beaman and elaborated upon by Mr Fox and must have had access to that information in order to justify the cost of a charter flight over his property. 106There is a logical explanation provided by Mr Roberts and Mr Beaman in their respective affidavits as to the course of events. That evidence does not support a conclusion that evidence of the unlawful clearing that was the subject of the charge (i.e., the clearing after 13 August 2008) had come to their attention before they were able to view (from the air) the state of the property on 12 November 2009 and compare that to the hard copy satellite image of what was there on 13 August 2008. (Mere possession of the hard copy satellite image that was taken up with them onto the flight would not have been sufficient to cause them to be aware of post 13 August 2008 clearing.) 107Simply having the ability to access electronic data by way of a computer program (as Mr Rummery contends would have been open to the OEH officers on the basis that it is something to which he himself is readily able to have access through a particular government website) is not sufficient. What would need to be shown is that in some way evidence of unlawful clearing had actually come to an authorised officer's attention. That could only be done by someone accessing or viewing data from which the possibility of such clearing became apparent. If that were not the case, then the evident purpose of sub-s (5) (namely, to provide a time frame in which proceedings can be commenced where the actual date of clearing is not known) would be frustrated simply by the availability of access to search engines or tools such as those to which Mr Rummery referred in his submissions. 108The prosecutor concedes that Mr Beaman's evidence reveals that, as at October 2009, Mr Beaman had knowledge of whatever clearing was shown in the 07/08 SLATS data but says that since that clearing could only have occurred on or prior to 13 August 2008 (that being the date on which the 07/08 SLATS data was captured when the photograph was taken), this does not establish that Mr Beaman had evidence of the clearing the subject of the charge. I agree. 109The prosecutor further contends that there are two reasons why ground 5 does not provide a basis for setting aside Mr Rummery's conviction. 110First, the prosecutor points to Mr Rummery's own evidence (in his affidavit affirmed 17 August 2012 at [69]) to the effect that clearing occurred on the Yarragool property until 10 August 2010. It is submitted that since a prosecution could, even on Mr Rummery's case, have been brought for clearing occurring after 9 November 2009 (the summons having been filed on 9 November 2011), and it is not necessary for the actual date of the clearing to be specified in a summons brought in reliance on sub-s (4), the proceedings could on no view be said to be statute barred. That conclusion is supported by Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213. Provided that some of the period of clearing (as is conceded by Mr Rummery) took place within the two year period, the prosecution is not statute-barred. 111It is submitted that there is no evidentiary basis for concluding that the charge period extended beyond that which is permitted by s 42(4) of the Native Vegetation Act. The prosecutor notes that there is no evidence before the Court that would enable it to determine any argument that might now be run by Mr Rummery to the effect that the 48ha was unlawfully cleared in a time period which was earlier than two years before the summons was filed. (In that regard, the most that is before this Court is Mr Rummery's affidavit evidence as to clearing on 3 days per week at 1ha a day.) 112Reference is made to Mr Spiers' report dated 2 August 2011, as to the aerial photograph interpretation of the vegetation changes on Yarragool between 1970 and 2010, in which he identified the changes from the various images. Mr Spiers confirmed that none of the pre-August 2008 clearing was included in the charge. Mr Spiers identified changes from the satellite images by reference to numbered polygons corresponding to the cleared areas. 113Second, it is submitted that Mr Rummery had full knowledge of all of the relevant facts at the time when his guilty plea was entered, since he had been provided with Mr Roberts' 31 January 2012 affidavit (which Mr Rummery contends discloses the timing issue) prior to entering his plea. This goes to the second matter raised by ground 5, namely whether there was procedural unfairness in the manner contended in that ground. 114The prosecutor notes that the only information which came to Mr Rummery's attention after he entered his guilty plea but before the sentencing hearing was Mr Beaman's 18 October affidavit in which Mr Beaman deposed that the only information he had available to him at any time prior to the flight on 12 November 2013 was a satellite photograph taken on 13 August 2008. It is noted that no issue was taken about this at the time. It is submitted that if there was any inaccuracy in the 3 March 2012 letter, that was clarified when Mr Beaman's affidavit was served, prior to the hearing before Pepper J. 115In the course of submissions on the appeal, Mr Rummery indicated that what he wished to do was to subpoena Mr Beaman in order to ask him what information he had at the relevant time. He contends that he was not given the opportunity to do that in the Land and Environment Court proceedings because he was misinformed by the OEH as to Mr Beaman's involvement and that the provision of the October affidavit from Mr Beaman was provided to him at a time when he was not represented and not able to process the information for the hearing. He candidly accepts that he was out of his depth. 116Mr Rummery emphasises that Mr Beaman must have been central to the making of the decision to request people within the Department to undertake the investigation on his behalf as he was at the time the acting head of the department. He believes that there has been at some level some miscarriage of justice, identifying that as being that he was provided with misinformation on which he relied at the point of making the plea. He submits that the department should have made clear to him who it was that had made Mr Roberts aware of the "alleged illegal clearing" and how that person had become aware of this. 117I have no doubt that Mr Rummery is genuine in his stated belief that he has been provided with misinformation by the OEH (just as I accept he is genuine in his belief that the outcome of the proceedings below will cause him to sell the property). However, at the time the earlier notice to produce (and correspondence in relation thereto) was issued, Mr Rummery was represented by lawyers. He had the benefit of legal advice. Had the legal advisers considered that there was anything unclear in the response that had been received it was open to them to press for clarification or for an answer to the notice to produce. 118I am also conscious of the fact that by the hearing Mr Rummery was not represented by lawyers. However, he did not raise any issue before her Honour as to the potential involvement of Mr Beaman in investigations prior to 9 November 2009 concerning any contravention in relation to the property. What is now raised by Mr Rummery is a mixture of assertion and speculation. It is not suggested by him that the only clearing to which his plea of guilty related was clearing before 9 November 2009. 119The principle of finality of litigation is relevant to take into account in this context. Mr Rummery had an opportunity to raise issues in relation to his prosecution when the matter was before her Honour. He did so. He conducted cross-examination of the expert witnesses and he made detailed submissions to her Honour. There is nothing in the material before me to warrant a conclusion that Mr Rummery was denied procedural fairness in the sentencing hearing or that he should now be allowed leave in effect to reopen the case in order to test the prosecution evidence to see whether a limitations defence could be run. 120In my opinion, ground 5 is not made out. Ground 1 - imminent risk exemption 121In relation to ground 1 of the grounds of appeal, Mr Rummery emphasises the dilemma in which he contends he was placed having regard to the requirements of the OHS Act (as to the steps to be taken to ensure the health and safety of workers in the workplace). While that is a matter that might be taken into account when considering the personal factors on sentencing (as her Honour did), it is no answer to a charge for breach of s 12 of the Native Vegetation Act to point to the requirements of other legislation. There are various instances where the Native Vegetation Act contemplates that conduct permitted under other State legislation will, in effect, override the prohibition in s 12. The OHS Act is not one of them. 122It is not to the point, therefore, that the OHS Act (as Mr Rummery points out) is concerned not with "imminent risks" but with an assessment of the likelihood of the risk occurring, the degree of harm that might result, what the person ought to reasonably know about the hazard and ways to eliminate the hazard, the availability of suitable ways to eliminate the hazard and then assessing the cost of elimination. True it is that there are serious penalties under the OHS Act for reckless conduct causing death at a workplace but that does not mean that taking steps to comply with the OHS Act and avoid the prospect of penalty for breach thereof comes within the "imminent risk" exemption. 123Nor does the fact, if it be the case, that there is no practical means under the Native Vegetation Act for clearing native vegetation identified as being required under an OHS risk assessment. (Mr Rummery points out in this regard that s 29 of the Native Vegetation Act has the effect that permission to undertake broadscale clearing and approval of property vegetation plans is dependent on the improvement or maintenance of environmental outcomes.) 124Her Honour did not err in my opinion in the construction placed on the "imminent risk" exception. Mr Rummery takes issue with the rejection by the primary judge (at [66]) of the notion of permissible clearing being based on a grazier's subjective assessment of his or her mustering skills and the skills of his or her workplace. It is said that this is in direct conflict with an employer's legal responsibilities of the OHS Act (namely, the duty to undertake risk assessment and risk management in the workplace, which Mr Rummery submits can only be subjective). What her Honour was there emphasising, however, was that for the purposes of the imminent risk exception there must be an objective risk. Her Honour did not err in that conclusion. 125Similarly, criticism is made of the statement by the primary judge (at [68]) that the Native Vegetation Act was primarily enacted to ensure the conservation of native vegetation and not as a vehicle to facilitate agricultural activity and to her Honour's implicit conclusion at [70] that the implementation of a clearing strategy was not justified simply by reference to the evidence of accidents while mustering. Mr Rummery submits that this involves a misunderstanding as to the legal obligations as to the provision of a safe workplace. However, the fact is that a landowner in the position of Mr Rummery may have a number of different and perhaps competing obligations does not mean that Mr Rummery's conduct in clearing the property should have been found to fall within the imminent risk exception. 126What her Honour concluded was that "imminent risk" was directed towards the risk posed by native vegetation and not the activity per se; that is, that clearing is permitted where native vegetation creates an immediate danger, and not an indeterminate danger at large derived from mustering ([59]), and that the risk required is of serious personal injury ([69]). I agree. 127The substance of Mr Rummery's contention is that he should not be placed in the legal position where it is impossible to comply with one law without breaking another law and that the primary judge erred by not placing sufficient weight on his legal obligations under the OHS Act and not recognising his inability to meet the legal obligations of both laws. However, this focuses on the consequences of the application by the legislation not whether he was liable in the first place. 128The prosecutor maintains that there are three answers to the matters raised in ground 1 of the notice of appeal. 129First, that the offence as charged did not contemplate a particular area of land having been cleared (rather, it related to clearing having been undertaken within a particular date range) and hence that any conflict between the OHS Act and the Native Vegetation Act could at best only provide a basis for setting aside the conviction if acceptance of that contention would mean that all of the clearing undertaken by Mr Rummery was permitted under the imminent risk exception. 130It is submitted that Mr Rummery's admission that he had illegally cleared native vegetation from his property during the charge period (at [69] of his affidavit affirmed 17 August 2012) was sufficient to found the conviction. 131Second, it is submitted that there is no inconsistency between the OHS Act and the Native Vegetation Act. The prosecutor accepts that, throughout the charge period, s 8 of the OHS Act imposed a positive obligation on an employer to ensure the health, safety and welfare at work of all of the employees of the employer and that this obligation required an employer to ensure that any premises controlled by the employer where the employees work were safe and without risks to health and that systems of work and the working environment of the employees were safe and without risk to health. 132However, the prosecutor maintains that s 28 of the then OHS Act (which provided a complete defence to any proceedings against the person for an offence against, inter alia, s 8 of the OHS Act if that person was able to prove that it was not reasonably practicable to comply with the provision) is a complete answer to the contention by Mr Rummery that the OHS Act required him to remove native vegetation from the property. It is submitted that even if, properly construed, s 8 of the OHS Act would otherwise have required the removal of native vegetation from the property, it was not reasonably practicable for him to have complied with this obligation if the removal of that vegetation was prohibited by the Native Vegetation Act. 133Third, it is submitted that even if there is an inconsistency between the two pieces of legislation it remained for Mr Rummery to bring himself within the exemption contained in s 11(1)(i) of the Native Vegetation Act and that, to do so, he needed to establish that the clearing was "reasonably considered necessary to remove or reduce an imminent risk of serious personal injury". The prosecutor notes that her Honour rejected this aspect of Mr Rummery's case at a factual level (referring to [51]-[55] and [61]-[70]). 134Her Honour did not err in my opinion in concluding that there was no "imminent risk" established by reference to which part or all of the clearing was reasonably necessary. Ground 2 - challenge to conviction generally 135The second ground of appeal contains a number of contentions. 136First, it is submitted that the primary judge failed to understand that Mr Rummery had only pleaded guilty to 48ha of illegal clearing. Her Honour's reasons clearly note that this is the case. This contention is unfounded. 137Second, it is submitted that the primary judge erred in accepting the prosecutor's argument that routine agricultural management activities were the only reasons why clearing would not contravene s 12 of the Native Vegetation Act (this being Mr Rummery's understanding of what was said on 23 October 2012 at p 3 of the transcript). However, her Honour clearly had regard to the other exemption relied upon by Mr Rummery (namely the imminent risk exemption). 138Third, it is contended that the primary judge was in error "in not putting the evidence of the prosecutor on clearing 248 ha to the test of proof under the Native Vegetation Act 2003 s 6(1)(a), s 6(2), s 7(a)(b), s 9(2)(a) before examining the validity of any claimed exceptions". Mr Rummery refers to the definitions contained in the Native Vegetation Act of "native vegetation", "clearing" and "remnant native vegetation", which have been referred to or set out earlier. Mr Rummery contends that the prosecutor did not prove beyond reasonable doubt that illegal clearing did occur. In particular, he claims that her Honour failed to put the prosecution to proof as to the identification of indigenous native vegetation, the presence of regrowth, the age of the trees cleared and the presence of dead timber. He submits that as those matters could not be proven beyond reasonable doubt, there was no basis for finding that the clearing was unlawful on any area greater than the 48 ha to which he had pleaded guilty. 139The prosecutor's primary answer to this ground of appeal is that the offence as charged did not contemplate the clearing of any particular area of land and that Mr Rummery admitted that he had unlawfully cleared 48ha during the charge period. Hence there is no basis for setting aside the conviction on any of the bases raised in ground 2. 140Turning to the particular contentions made by Mr Rummery in connection with this ground, they may be summarised as follows: Identifying indigenous native vegetation 141Mr Rummery contends that the primary judge could not find beyond reasonable doubt that the vegetation alleged to have been unlawfully cleared across the property could be identified as "indigenous native vegetation" and therefore that there is no basis for the finding of unlawful clearing of native vegetation across the disputed 130ha. 142The prosecutor relied on the evidence of Dr Nadolny on this issue (Exhibit L). Mr Rummery notes that Dr Nadolny visited the property on 13 October 2010 and on 29 June 2011; that he identified the location of his site inspections by recording GPS waypoints (Maps 1, 2 and 3 at Attachment 3 in Exhibit L) and identified vegetation samples collected by OEH inspectors on 11 and 12 May 2010 at locations identified by GPS waypoints (on maps located in Exhibit A). 143Mr Rummery refers to Dr Nadolny's acceptance in cross-examination that where no waypoints had been recorded he had not visited the areas of alleged clearing and that he was not able directly to identify the species of trees on areas he did not visit. Mr Rummery points to the maps at Tab 10 and 11 in Exhibit G as showing that Dr Nadolny did not visit approximately 130-140ha of the alleged area of clearing. This is not disputed by the prosecutor. 144Mr Rummery also points to cross-examination of Dr Nadolny which he says indicated that Dr Nadolny could only identify cleared trees to species if he was within 10 metres or closer to allow him to inspect leaves and bark; and that if the clearing had occurred 2 or 3 years previously then only bark would be available to inspect. 145Mr Rummery notes that Dr Nadolny claimed he used extrapolation techniques and viewed aerial photographs of the property from 1970, 1986 and 1993 to determine that the vegetation cleared in the areas he did not visit on the site visits would have been indigenous native vegetation. Mr Rummery contends that there was no evidence that the vegetation viewed in aerial photos was the same vegetation that was cleared; that Dr Nadolny did not use specialist equipment (stereoscope) to examine the photos in a 3-dimensional view which would allow the different levels of vegetation (trees, shrubs and groundcover) to be identified. 146Mr Rummery notes that Mr Spiers, who examined the property from aerial photographs (using a stereoscope) and high quality satellite images, stated in his report that he was not required to determine species for which the requirement of canopy detail and field checking were needed and that Dr Nadolny had agreed with this. 147Mr Rummery called expert evidence from Mr Travis Peake to the effect that in order to determine whether or not species is native or otherwise it is necessary to identify the plants themselves and cannot readily be done simply by looking at their features or growth form. 148However, as the prosecutor notes, there was no requirement that it establish beyond reasonable doubt that the whole of the 191ha of cleared vegetation was indigenous vegetation. All that was necessary was to establish that the vegetation cleared "included" vegetation that existed in New South Wales before European settlement (Walker Corporation at [33]). This was established by [29] and [30] of the Statement of Agreed Facts filed on 2 August 2012. 149The prosecutor submits that there is no doubt as to the area across which clearing took place and there was no dispute that amongst the vegetation cleared were species which were present in New South Wales prior to the date of European colonisation. If Mr Rummery sought to advance a case that all of the vegetation removed was noxious weeds or the like, the onus was on him to do so. 150There is no substance to the appeal from conviction on this ground. Evidence of regrowth - age, trigger event for regrowth and clearing of live/dead trees 151Mr Rummery maintains that it was necessary (for the prosecutor to prove that there was unlawful clearing) for the prosecutor to prove that the clearing that occurred was not of regrowth as defined in s 9(2)(a) of the Native Vegetation Act. 152He points out that Dr Nadolny was required to assess/estimate the age of the cleared trees on the property and that the prosecutor did not give evidence of any direct measurement of the age of any of the cleared trees on the property (such as dendrochronology, i.e. the counting tree rings). Mr Rummery notes Dr Nadolny's claim that annual growth rings are very pronounced on the New England tablelands because of the very seasonal climate. Mr Rummery also notes that Dr Nadolny admitted to measuring the breast height diameter of very few cleared trees and relied on his "fairly rough and ready" estimates to come to the conclusion that "most of the felled trees were in the size range of 25-45 cm diameter". 153Mr Rummery points out that Dr Nadolny's expert report states that in his experience trees grow at about 1 cm diameter per year but that in a further expert report Dr Nadolny explained that this experience was based on measurements taken of the growth rate of four trees on a property approximately 100 km from Yarragool. Mr Rummery notes that one of the said trees was of a species not identified on Yarragool and the other three trees represented only one species; that no data were presented on the climate, time frame for growth, landscape position, competition effects, soil type, soil depth or soil fertility, fertiliser history, water supply, elevation or aspect or any factors that may have influenced the growth rate of those four trees. 154Dr Nadolny and Mr Peake both agreed tree growth rates could be very variable and dependant on a large number of factors. 155Mr Rummery points to growth rate data from three sites located either within the alleged cleared area or immediately adjacent to the area and says that trees of known age that had grown since 1985 were measured on failed dam walls, with the growth rate measured on these sites at 2.1 cm diameter per year, twice that recorded by Dr Nadolny. Mr Rummery says that, although Dr Nadolny claimed Mr Rummery's data was unrepresentative (as the growing environment was unrepresentative of the general paddock environment), Dr Nadolny conceded that the tree growth rates measured on Yarragool could be correct (though stating that they would be at the upper end of the expected variability). 156Mr Rummery again notes that Mr Spiers, who identified that vegetation was present in disputed cleared areas prior to 1 January 1990, had noted in his report that he had not attempted to make any conclusions as to the absolute age of the vegetation involved. Mr Rummery also points to the explanation by Mr Spiers that each set of aerial photographs provides a snap shot of what was in existence at the time of the photography and what may have occurred at some time prior to the time of the photography and that "[a]ll the interpretations are restricted to the times at which the aerial photographs were flown" as showing that the prosecutor brought no evidence that any vegetation observed in aerial photographs from prior to 1990 was the same vegetation that was cleared between 2008 and 2010. 157Mr Rummery emphasises that the history of the property included two trigger events to spark regrowth: the widespread poisoning of trees across the property between 1988 and 1991 (on areas identified on a particular map as agreed in the Statement of Agreed Facts); and the removal of a large number of sheep from the property in late 1990. He contends that the prosecutor was unable to bring any evidence of unlawful clearing on these areas as the OEH officers did not visit these areas and hence that the prosecutor was unable to prove beyond reasonable doubt that the clearing was not regrowth or that the trees were alive when cleared. 158Mr Rummery contends that her Honour correctly identified that there was insufficient evidence to prove that the estimated age of the trees was as high as contended by the prosecutor but erred in concluding that there was sufficient evidence to estimate the age of the trees at all. 159The prosecutor contends, and I agree, that there was no requirement that the prosecutor establish that what was cleared was not "regrowth". The onus of proof rested on Mr Rummery if he wished to rely on the regrowth exemption under s 19 of the Native Vegetation Act (Director General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [134]). Preston CJ of LEC in Walker Corporation (No 2) at [136]-[144] identified the five matters necessary to be established for such a defence. The prosecutor submits that it is clear from her Honour's reasons at [90] that Mr Rummery did not seek to do so. 160Indeed, Mr Rummery's submissions on appeal make clear that he was not relying on the "regrowth" exception (though he does submit it is a mitigating factor). Rather, Mr Rummery maintains that the prosecutor had an onus to negative "regrowth". As a matter of statutory construction that is not the case as was made clear in Walker Corporation (No 2) (at [133]ff). 161In any event, the prosecutor notes that to establish a regrowth defence it is necessary to establish that the cleared vegetation "was only regrowth". The prosecutor maintains, and I agree, that the fact the prosecution did not seek to prove it was not regrowth is not an answer to the charge. 162As to evidence of poisoning and that there were areas of the property which the ecologist Dr Nadolny had not visited, the prosecutor accepts that what Dr Nadolny did was to look at transects and plots to identify what he was able to find within them and using statistics he sought to expand that out. The prosecutor maintains that there was evidence as to what was cleared and what was present prior to 1 January 1990 (that being the evidence of Mr Spiers). 163Reference is made to Mr Spiers' report (at [34]) in which five intervals of clearing between 15 November 2004 and 24 November 2009 were identified and to Mr Spiers' conclusion (at [35]), based on his examination of the aerial photographs and satellite imagery, that in all areas there was native vegetation cleared that was not vegetation that had re-grown since 1 January 1990. The prosecutor accepts that some vegetation cleared may have been regrowth and that some may have grown post-1990 but emphasises that Mr Rummery bore the onus of proof and that in all of the areas cleared at least some of the cleared vegetation was present prior to 1 January 1990. 164This ground of appeal is not made out. Appeal Against Sentence Ground 3 - assessment of level of harm caused by unlawful clearing 165Mr Rummery indicated that ground 3 was not pressed if ground 2 of the notice of appeal were not successful. On that basis, strictly speaking it would not be necessary to deal with this aspect of the appeal, although, in the event that the finding as to ground 2 were to be incorrect, it would be appropriate to address ground 3. Furthermore, it seems from Mr Rummery's submissions that the basis on which he may have considered ground 3 could not be pressed if he were unsuccessful on ground 2 was that a finding that her Honour did not err as to the area of unlawful clearing would be determinative of the level of harm caused by the clearing. 166Mr Rummery submits that if the area is found to be significantly smaller than originally found then the level of harm should be found to be similarly reduced. Insofar as he relies in support of this ground on the challenge to the area of clearing, his challenge fails for the above reasons. However, Mr Rummery's submissions in relation to the assessment of level of harm caused by the unlawful clearing go beyond the issue as to the area of the clearing, as will be discussed below. 167Mr Rummery raises much of the same issues as to the alleged lack of evidence put before the Court as to ground 2 in the context of ground 3. He points to her Honour's acceptance of the proposition that on matters of sentence the Court must not take facts into account in a manner that is adverse to the defendant unless those facts have been proven beyond reasonable doubt ([30]) and maintains that the essential elements to establish unlawful clearing were not able to be proved beyond reasonable doubt (as the prosecution could not provide evidence to support the premise that the trees cleared were live, remnant native indigenous vegetation over an area of 248 ha). 168It is contended that the primary judge erred in determining both the area of alleged clearing and the number of trees unlawfully cleared and has therefore erred in characterising the clearing as extensive ([85], [87]). 169Mr Rummery notes that the primary judge rejected the prosecutor's estimate of the number of trees cleared and accepted Mr Rummery's evidence but says that the number of trees cleared identified by him in cross examination referred to the total number of trees including very small trees. Mr Rummery maintains that measurements collected by OEH investigators on the size of cleared trees identified 22% of the trees were less that 25 cm breast height diameter; that being the size identified by Dr Nadolny as regrowth. Therefore it is submitted that the primary judge's estimate of the number of trees cleared unlawfully should have been reduced by 22%. 170Mr Rummery also challenges her Honour's assessment that the commission of the offence caused moderate to substantial harm ([120]). He contends that the level of harm was overstated having regard to the broad rejection of the evidence on which the prosecutor had relied and the inability of the prosecutor to establish that the area of unlawful clearing was 248ha. Mr Rummery maintains that the level of harm was low based on the reduced area of unlawful clearing and the lack of proof of any actual environmental harm being caused by the thinning of smaller trees. 171The prosecutor maintains that her Honour did not err in rejecting the contention that the clearing of 191ha of the removed vegetation was permitted by s 11(1)(i) of the Native Vegetation Act. (The prosecutor nevertheless accepts that if, contrary to the prosecutor's submissions as to ground 1, the clearing of that 191ha was lawful, then the environmental harm caused by the unlawful component of the clearing would need to be reassessed and that the outcome of that reassessment would likely impact upon the penalty imposed.) 172As to the findings regarding environmental harm, the prosecutor notes that the process adopted by her Honour in concluding that the total number of trees cleared was in the vicinity of 18,000 to 20,000 was supported by the evidence referred to by the primary judge and involved a rejection of the evidence put forward by the prosecutor in relation to this issue. The number of trees felled was said by the primary judge to be important but not determinative of the environmental harm caused by the clearing ([86]). 173As to the number of trees unlawfully cleared, the regrowth exception was applicable only if it could be established that what was cleared was "only" regrowth. Her Honour's conclusion as to the number of trees felled was supported by the evidence and has not been shown to be incorrect. 174Insofar as Mr Rummery takes issue with the findings as to the age of the trees cleared, the prosecutor notes that her Honour accepted that the majority of the trees cleared were significantly younger than had been suggested by the prosecutor, concluding that trees were within an age range of 40 to 80 years with the majority of those cleared being at the lower end of this age spectrum ([101]). It is also noted that her Honour considered that the fact that the trees cleared were younger than had been suggested by the prosecutor diminished the objective seriousness of the offence (by which it must be inferred the environmental harm caused by the offence) but only marginally ([102]). In these circumstances, the prosecutor submits that no error in the primary judge's approach to assessing the environmental harm caused by the offence has been demonstrated. 175There is, however, a difficulty with the finding that the majority of the trees felled were between 40 and 80 years ([101]). Dr Nadolny's evidence was that the majority of felled trees that he observed during the site inspections had a stem size of 25-45 DBH. Dr Nadolny also observed that the cleared area had included "smaller trees of pole or sapling form". On Dr Nadolny's evidence as to tree growth rates (referred to at [153]-[155] above), an estimate of tree age based on the measurements taken by him during the site inspections would put the likely age of the majority of those felled trees at 25-45 years (or at least more than 20 years to, say, 40 years). As noted earlier ([154]-[155]), both experts agreed that tree growth rates could be variable, though Dr Nadolny considered that the growth rates contended for by Mr Rummery would be at the upper end of the expected variability. 176Mr Peake (at [132] of his report) said that a substantial proportion of the overstorey species would have been established since 1970 (i.e., by 2008-2010 would have been in the order of at least 38-40 years' old) and that a reasonable proportion of the overstorey species cleared would have been established since 1990 (i.e., by 2008-2010 would have been in the order of at least 18-20 years' old). 177Her Honour noted that Mr Peake was of the opinion that overall the harm was reasonable or moderate (at [117]). Mr Peake's assessment of the harm as moderate, notwithstanding that in his view the trees cleared were younger in age than estimated by Dr Nadolny, is consistent with the recognition by her Honour that the retention of younger trees is necessary ([102]). At [118] her Honour noted the importance of native vegetation for the maintenance of fauna habitat. 178Her Honour noted (at [100]) that the expert evidence was that tree growth rates could not be precisely determined in the absence of comprehensive quantitative analysis (of which there had been none in the proceedings). Although her Honour's finding as to the number of trees cleared has not been shown to have been in error, the conclusion that the majority of trees the subject of clearing were between 40 and 80 years' old is not supported by the evidence. That was one of the matters that her Honour took into account in assessing the objective seriousness of the offence. 179Therefore, while there was no error demonstrated in her Honour's acceptance, for the purpose of sentencing, that the factual elements of the offence had been established to the requisite degree of proof, there was an error in one of the matters on which her Honour relied in reaching the conclusion that there was "moderate to substantial" environmental harm caused by the clearing. 180Although Mr Rummery did not in oral submissions press this challenge to her Honour's findings, the prosecutor did address this issue in written submissions (at [28(c)-(d)]) and in oral submissions was content to rest on those submissions for the contention that the challenge to her Honour's finding as to the level of harm had not been made good. The prosecutor pointed to her Honour's conclusion (at [101]) that the fact that the trees cleared were younger than had been suggested by the prosecutor diminished the objective seriousness of the offence only marginally. 181Given that the prosecutor's submissions specifically address the issue as to the age of the trees, and the error is one that is identified in Mr Rummery's submissions, the fact that Mr Rummery (who did not have the benefit of legal representation) indicated that ground 3 would only be pressed if ground 2 were successful does not lead me to conclude that this Court should not proceed to consider the effect on Mr Rummery's sentence appeal of the error that has been established in her Honour's finding as to the age of the trees. 182It is clear that her Honour's finding as to the level of environmental harm caused by the offence took into account an erroneous finding as to the age of the felled trees. That matter, which her Honour noted was not determinative, cannot be dismissed as having no significance in her Honour's reasoning. To that extent, part of the basis on which ground 3 challenges her Honour's finding as to the level of harm is made out. 183In those circumstances, it is necessary to consider whether, on the assumption that the majority of trees cleared were in the 20-40 year range, but all other factual findings by her Honour were correct, the environmental harm was "moderate to substantial" and what impact this has on the size of the fine imposed on Mr Rummery. 184There was no dispute by Mr Rummery's expert that the level of environmental harm was at least "moderate". Given the number of trees, the extent of the clearing and that the retention of younger trees is necessary for the maintenance of native vegetation, in my opinion her Honour did not err in finding that "moderate to substantial" environmental harm had been caused. Nevertheless, the fact that the majority of the trees felled were younger than her Honour considered them to be, and that Mr Rummery would (had he confined himself to clearing only regrowth) have been lawfully able to clear an unknown proportion of those trees, taken with the matters considered by her Honour from [120] as other factors relevant to sentencing, leads me to conclude that the size of the fine should be revisited. 185I consider that, adopting the findings made by her Honour as to the discount to be applied to reflect Mr Rummery's personal circumstances, and bearing in mind that Mr Rummery was also ordered to pay the prosecutor's costs, the appropriate fine would be $66,000 (that being 66% of the pre-discounted original fine of $120,000 but rounded down to $100,000 i.e., 66% of $100,000). Ground 4 - financial consequences of the penalty 186Mr Rummery contends that the primary judge failed to understand that he had no capacity to pay a fine. In this regard, he emphasises the legal costs incurred in his defence; the lack of profitability in a grazing business; and the "real possibility of having to sell the family home and farm business". 187Mr Rummery notes that the prosecutor did not contest any of the matters raised in the affidavits relied upon in relation to his financial position. He notes that he has four school age dependent children and says that their school based activities have been curtailed by a lack of funds brought about by the expenses of the case. He says that he had borrowed $90,000 to fund legal representation but then had to dismiss that representation due to no further funds being available and represented himself because of lack of funds. He says that he sold large numbers of livestock to pay $60,000 in fees for expert witnesses (to counter what he maintains were the overstated opinions and assumptions made by the prosecution experts) which has had the ongoing impact of having lost the capacity to generate income into the future to meet the costs of living, business and the legal costs. 188Mr Rummery says that he has agreed costs with the prosecutor at $40,000 and has reached an agreement to pay off these costs over five years. He submits that the total financial costs of the trial are about $270,000 and submits that this "will probably result in the sale of the family home and the farm" to cover the debts incurred. 189Mr Rummery appreciates that the fine imposed was only about 10% of the maximum fine available for an offence under the Native Vegetation Act and that it was heavily discounted to $80,040 for entering an early guilty plea and acknowledgement of his financial circumstances. He acknowledges that her Honour correctly assessed the factors that go towards determining an appropriate penalty. However, Mr Rummery claims that the level of the fine is well beyond the reality of a grazing business and well beyond his capacity to pay. 190Mr Rummery submits that he should not have to incur a significant financial penalty on top of the costs and the time taken to defend an inaccurate and overstated case that was not consistent with the prosecutor's obligations as a model litigant. In this regard, Mr Rummery submits that the prosecutor provided false information to him (as to the investigation dates) prior to a plea being entered and did nothing to rectify the situation until forced by Mr Rummery to provide further information some 7 months later. Mr Rummery also emphasises the perceived conflict between the Native Vegetation Act and the OHS Act in this context. 191The prosecutor submits that her Honour took the matters raised by Mr Rummery in relation to this ground into account (at [163]) and that her Honour accepted (at [168]) that the imposition of anything more than a nominal fine would cause him a degree of financial distress but that her Honour was unable to conclude that the imposition of a penalty would cause the sale of the family home. 192The prosecutor submits that the evidence before the primary judge supported her Honour's conclusions in that regard. Mr Rummery's bank manager expressed the view that the imposition of a fine "may result in the forced sale of one or both of the properties owned by [Mr Rummery] in partnership with his wife" ([14] of the affidavit of Mr Peter Haynes affirmed 15 June 2012); and that Mr Rummery's accountant expressed the view that Mr Rummery was not in a position to pay a large fine and that the imposition of a fine will create "significant pressure on [Mr Rummery's] business and unfortunately will have an impact on other members of his family" ([7] of the affidavit of Mr Grahame Sharpe sworn 18 June 2012). 193As to the additional information tendered by Mr Rummery in relation to his capacity to pay a fine, the prosecutor notes that it does not address the deficiency in the evidence before her Honour as to whether the financial distress that would be caused would force a sale of the property. 194It is clear from her Honour's reasons that her Honour did take into account the economic impacts of a fine on Mr Rummery. What her Honour did not accept was that the evidence disclosed that this would necessarily extend to a requirement that Mr Rummery sell his property. Nothing in the material now adduced addresses that issue. In any event, her Honour plainly had regard to this issue and her discretion has not been shown to have miscarried in any way in so doing. 195The prosecutor notes that her Honour took into account that Mr Rummery's evidence was that he undertook the clearing activities to meet what he understood to be his legal obligations under the OHS Act (at [140]). 196Mr Rummery submitted that the value of agricultural property bore extremely limited correlation to the profitability of agriculture and that this had been the case for more than a decade. He submitted that the two properties were run as part of the one business and conceded there was no evidence of the values of the properties. 197No error has been shown in the exercise of her Honour's discretion in sentencing nor can the penalty be said to be manifestly excessive. It is unfortunate given Mr Rummery's evidence as to his conservation techniques that he is in this position and I am by no means unsympathetic to his position. Nor, as I read her Honour's reasons, was her Honour. Nevertheless the challenge based on ground 4 of the grounds of appeal is not made out. Conclusion 198For the reasons set out above, I am of the view that the appeal from conviction should be dismissed but that the appeal from the sentence imposed on Mr Rummery should be allowed and the fine reduced to $66,000. 199JOHNSON J: I agree with Ward JA. 200R S HULME AJ: I have had the advantage of reading the reasons for judgment of Ward JA. I agree with her Honour's conclusions and reasons in respect of grounds 1, 2 and 4. I also agree with Ward JA that Pepper J erred in the course of coming to the conclusion she did in respect of the level of harm resulting from the Appellant's actions - a conclusion which is the subject of the Appellant's ground 3. However, in my view Pepper J's errors were of greater significance than Ward JA and Johnson J regard them. 201At [77]-[85] of her reasons Pepper J concluded that, based on evidence Mr Rummery had given, but adjusted for the greater area that she found had been the subject of illegal clearing, approximately 18,000 to 20,000 trees were cleared by Mr Rummery. 202Her Honour also recorded that:- [95] ... Based on a (diameter) growth rate of 1 cm per year Dr Nadolny "estimated that any trees greater than 25cm DBH were at least 20 years old. [96] During site inspections undertaken on 13 October 2010, 3 May and 29 June 2011, Dr Nadolny recorded the majority of felled trees having a stem size of 25 - 45 DBH, with some larger trees having a stem size of 70 - 80 cm DBH. He therefore concluded that he cleared vegetation was comprised mainly of trees that were 80 years old. [99] ... measurements taken by Dr Nadolny indicating that the majority of felled trees had a stem size of 24 - 45 DBH, with only some of the larger trees having a DBH of 70 - 80 cm meant that he had overestimated the age of removed trees. [101] At its highest, therefore, the evidence revealed that the majority of trees the subject of clearing were between 40 and 80 years old, with only a small proportion comprising more mature trees. That is to say, the majority of the trees were at the lower end of the age spectrum. ... [102] But having found that the majority of the trees that were cleared were not as mature as that contended for by the prosecutor, and although the clearing of more mature trees is generally considered to be of greater objective seriousness (as stated by Dr Nadolny), the retention of the younger trees is nevertheless necessary. Accordingly, the fact that most of the trees that were unlawfully removed were not as mature as submitted by the prosecutor diminishes the objective seriousness of the offence only marginally. [118] The unlawful clearing resulted in the near total removal of native vegetation, including approximately 18,000 to 20,000 trees aged 40 years or more and some portion of an EEC, over an area covering 239 ha that previously had the density of woodland. The clearing increased fragmentation of habitat and removed native vegetation important to the maintenance of fauna habitat. [120] Taking all of these factors into account, I find the commission of the offence caused moderate to substantial environment harm although not as substantial as the prosecutor posited. I accept, therefore, that in these circumstances the harm is to considered as an aggravating factor in terms of s21A(2)(g) of the CSPA. 203Ward JA has pointed out that the observations in [101] to the effect that "the majority of trees the subject of clearing were between 40 and 80 years old" were erroneous. However the magnitude of the error must be noted. On the basis of Dr Nadolny's evidence, relied on by Pepper J that the majority of trees had a stem size of 25 - 45 DBH, the majority of trees were more between 20 years and about 40 years old, half the age that her Honour found. (In what I have just said, I do not forget that it was recognised by experts on both sides that growth rates could not be precisely determined in the absence of comprehensive quantitative analysis, none of which had been undertaken. However, the substance of the point just made remains valid, including that the age of the trees was about half of the age used by Her Honour.) 204I accept that Pepper J took the view that "the fact that most of the trees that were unlawfully removed were not as mature as submitted by the prosecutor diminishes the objective seriousness of the offence only marginally". Her Honour was not of course addressing the difference to which I have just adverted and in any event I simply cannot accept that a reduction in the age of the trees to the extent indicated can properly be regarded as other than very significant. There was I think no evidence which related the extent of foliage to the age of trees but it is not unreasonable to infer that a tree twice as old is likely to have at least something of the order of twice as much foliage and to be about twice as valuable to the environment. 205I do not suggest of course that the age of the trees was the only matter taken into account in her Honour's assessment that the environmental harm resulting from the commission of Mr Rummery's offence was "moderate to substantial", a description which, I might say, encompassed a very wide range. However, in that that assessment reflected the error to which I have referred, I am satisfied that the harm was significantly less than her Honour's assessment. 206But there is another factor which in my view should further reduce the fine. It is clear that a significant proportion of the trees cleared by Mr Rummery were trees classified by the Crown's witness Dr Nadolny as regrowth. In another sample taken by OEH investigators, they recorded the DBH of some 20 trees. Two, or 10%, had a DBH in the regrown category of under 25 cm, viz. 21 and 23 cm. 207Provided he cleared only regrowth, Mr Rummery was entitled to clear these trees - Native Vegetation Act, s19. (I ignore the qualification in the section about "protected regrowth" as there was no suggestion in the evidence that this had any relevance in this case.) 208Of course, having not so confined himself, the clearing of the regrowth was part of Mr Rummery's offence but it nevertheless seems to me the fact that 10 to 20% or so of the trees could lawfully have been cleared was something which went to lessen the seriousness of the offence and should have been taken into account in any determination of the penalty. 209On these grounds I favour a lesser fine than that which Ward JA and Johnson J think appropriate. However, as I am in a minority, it is unnecessary that I specify that lesser fine. 210I agree that the appeal against conviction should be dismissed and that the appeal against sentence should be allowed. ********** Amendments 29 August 2014 - Clarifying percentage calculation Amended paragraphs: 185 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: 03 September 2014