Land and Environment Court New South Wales Medium Neutral Citation: Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Hearing dates: 4, 5, 6 and 7 March 2014 Decision date: 19 September 2014 Jurisdiction: Class 5 Before: Sheahan J Decision: (1) The defendant is found guilty, and convicted, of the offence with which he was charged in the summons. (2) The defendant is fined the sum of $140,000. (3) The defendant is ordered to pay the reasonable investigation and legal costs and disbursements of the prosecutor, as agreed, or as assessed according to law. (4) The exhibits, MFI no. 2, and working copies of some exhibits, may be returned, other than Exhibits P1 and P2. Catchwords: ENVIRONMENTAL OFFENCES: unlawful clearing of native vegetation - plea of guilty - disputes over area of land unlawfully cleared and environmental harm caused - substantial harm caused - offence committed recklessly - limited mitigating factors - minimal utilitarian value of guilty plea. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Environmental Protection and Biodiversity Conservation Act 1999 Fisheries Management Act 1994 Native Vegetation Act 2003 Threatened Species Conservation Act 1995 Cases Cited: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; (2013) 199 LGERA 236 Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 Chief Executive, of the Office of Environment and Heritage v Newbigging [2013] NSWLEC 144 Director-General of the Department of Environment and Climate Change v Rae; [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd [2011] NSWLEC 125 Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No. 2) [2011] NSWLEC 149 Director-General of the Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Duffy v R [2009] NSWCCA 304 Environment Protection Authority v Ashmore (No 2) [2014] NSWLEC 142 Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 Georgopolous v R [2010] NSWCCA 246 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v O'Neill [1979] 2 NSWLR 582 R v Thomson, R v Houlton (2000) 49 NSWLR 383 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84 Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112 Category: Sentence Parties: Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet (Prosecutor) Ian Robert Turnbull (Defendant) Representation: Mr D K Jordan, barrister (Prosecutor) Mr T Alexis, SC with Ms H Irish, barrister (Defendant) Office of Environment and Heritage (Prosecutor) Cole & Butler (Defendant) File Number(s): 51231 of 2012 Judgment Introduction 1The defendant Ian Robert Turnbull has been brought before this Court by the prosecuting Office of Environment and Heritage ("OEH") to be sentenced for an offence against the Native Vegetation Act 2003 ("the NV Act"). 2The charge refers to "clearing" done by him, or at his direction, between 1 November 2011 and 18 January 2012, on properties then known as Lockeil and Strathdoon. 3Some evidentiary material before the Court refers to intended legal and/or illegal clearing on some of the subject land at some time(s) after 18 January 2012, and to the possibility of some further action being taken by OEH in respect of it. 4However, I made it clear to Ian Turnbull during the hearing in March that I would certainly not be sentencing him, in the present proceedings, for any such post-charge-period activities or harm (Tp1, LL1 - 4, and Tp46, LL32 - 33. See also Tp96, LL20 - 21, and Tp97, LL30 - 35). 5The subject properties are located in what some know as the rich dry land farming area of the Border Rivers district of northern New South Wales, some 50km North East of Moree. It is suggested that the land has been settled since 1857, and was traditionally used for grazing, but, when cleared, lands in the area are increasingly used for cropping. 6For convenience, and with no disrespect, this judgment will use given names when it refers to the relevant members of the Turnbull family (the grandfather/defendant Ian, his son Grant, who acquired the property Lockeil and renamed it Colorado, and Ian's grandson Cory, who acquired, with his wife, Donna, the property Strathdoon). For some 50 years Ian and his wife have made their home at Yambin, said to be some 15km from Strathdoon and Lockeil/Colorado, but Grant and Cory appear to reside in Queensland. 7The actual areas of land in respect of which the "clearing" charge has been brought (although not free of dispute) are depicted and referred to on plans etc, in terms of 5 "Polygons", and the prosecutor seeks to establish "clearing" of approximately 420ha on Colorado and 73ha on Strathdoon. 8Prior to this sentencing hearing, a separate dispute arose about remediation notices issued by the prosecutor, to the owners of the subject lands, not to the defendant. Those remediation directions were tendered before me (Exhibits D4 and D5). The prosecutor objected to those tenders (see Tpp112, L38 - p115, L45), but I remained cognisant that those directions reflected the desires of the OEH, not any plans on the part of the defendant, in respect of remediation of the subject lands. 9The owners, Grant, Cory and Donna, brought separate Class 1 appeals against those notices, suggesting alternative directions, areas and terms for the remediation. 10The existence of those appeals was brought to my notice on the second day of the Class 5 hearing (5 March 2014), and they were listed before me for mention on the last day (7 March 2014). (See Tpp112 - 118, and 277 - 279.) 11They were heard together, and disposed of, by the learned Chief Judge (with the assistance of Acting Commissioner Adam) after two hearings, and some follow-up submissions, in June and July of this year. Preston ChJ upheld the appeals, and varied the directions. (See His Honour's judgments [2014] NSWLEC 84, and 112, dated 25 June and 31 July, 2014, respectively). 12The Turnbulls (Grant in matter no. 10355, and Cory and Donna in matter no. 10356 of 2013) were represented throughout the Class 1 proceedings by the same counsel as represented Ian in the present Class 5 matter, namely Mr Todd Alexis SC and Ms H Irish, and the respondent in those proceedings (the Director-General of the Office which prosecuted the present proceedings) also by the same counsel, as before me, Mr D K Jordan. The Charge 13The material parts of the summons charge that, between about 1 November 2011 and 18 January 2012 inclusive, at or near Croppa Creek in the State of New South Wales, Ian committed an offence against 12 of the NV Act, in that he cleared native vegetation otherwise than in accordance with a development consent ("DC") granted in accordance with that Act, or with a property vegetation plan ("PVP"). 14The charge period commences with a key inspection of Strathdoon by OEH for the purpose of assessing an application made for a PVP, and ends with the date of an important aerial inspection by OEH, which, in due course, led to a stop work order being issued (Exhibit D7). (That order was challenged, and later withdrawn). 15The particulars of the charge are: (a) Place of offence: At or near the properties "Strathdoon", being Lot 2 DP621439 and "Colorado" formerly called "Lochiel" [sic], being Lots 1 and 17 DP755998, Parish Gil Gil, County Stapylton, in the Moree Plains Local Government Area. (b) The native vegetation cleared included vegetation that is part of the following NSW listed endangered ecological communities under the Threatened Species Conservation Act 1995 [("the TSC Act")]: Brigalow within the Brigalow belt South, Nandewar and Darling Riverine Plains bioregions The native vegetation cleared included: i. Brigalow (Acacia harpophylla); and/or ii. Belah (Casuarina cristata); and/or iii. Poplar Box (Eucalyptus populnea ssp bimbil); and/or iv. Western Rosewood (Alectryon oleifolius); and/or v. Wild Lime (Citrus glauca); and/or vi. Wild Orange (Capparis mitchellii); and/or vii. Warrior Bush (Apophyllum anomalum); and/or viii. Myall (Acacia pendula). (c) Manner of breach: a. The Defendant cleared native vegetation by means of machinery including a bulldozer. (d) Date on which evidence of the offence first came to the attention of an authorised officer: Evidence of the offence first came to the attention of an authorised officer, being Glen Turner, on 12 December 2011. 16The defendant contends that paragraph (d) of the particulars in the summons is "not a particular of the charge", but "appears to be information of a kind relevant to s 42(4)" of the NV Act. 17Section 42(4) provides that proceedings for such an offence may be commenced within, but not later than, two years after the date on which evidence of the alleged offence first came to the attention of an authorised officer. 18The charge in the present case is relevantly brought under s 12 of the NV Act which provides: Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a DC granted in accordance with this Act, or (b) a PVP. (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 ("the EPA Act")] 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. ... 19Sections 6 and 7 of the NV Act respectively provide as follows: 6 Meaning of native vegetation (1) For the purposes of this Act, native vegetation means any of the following types of indigenous vegetation: (a) trees (including any sapling or shrub, or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. (2) Vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement. (3) For the purposes of this Act, native vegetation does not include any mangroves, seagrasses or any other type of marine vegetation to which section 205 of the Fisheries Management Act 1994 applies. 7 Meaning of clearing native vegetation For the purposes of this Act, clearing native vegetation means any one or more of the following: (a) cutting down, felling, thinning, logging or removing native vegetation, (b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation. Note. See Division 3 of Part 3 for the exclusion of routine agricultural management and other farming activities from constituting the clearing of native vegetation if the landholder can establish that any clearing was carried out for the purpose of those activities. 20The objectives of the NV Act are set out, in s 3, as follows: 3 Objects of Act The objects of this Act are: (a) 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, and (b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and (c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and (d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development. A qualified plea of guilty 21On the third occasion on which the matter came before the List Judge for directions, namely on 17 May 2013, the defendant entered a plea of guilty to the charge, but the Short Minutes of Order made by Craig J on that occasion note as follows (some emphasis added): ... that the Defendant: (a) enters a plea of guilty to the charge that between about 1 November 2011 and 18 January 2012 inclusive, at or near Croppa Creek in the State of New South Wales, he committed an offence against section 12 [of the NV Act] in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or a property vegetation plan, at the properties known as "Strathdoon" and "Colorado" (formerly called "Lochiel" [sic]) (the properties) by means of machinery including a bulldozer, (b) does not admit the extent of unlawful clearing on each of the properties, the nature and extent of native vegetation unlawfully cleared and the extent of environmental harm, as alleged in the Particulars, the Prosecutor's Statement of Facts dated 5 April 2013, and the evidence the prosecutor indicated on 5 April 2013 that it proposes to adduce at the hearing of the proceedings. 22A plea of guilty admits the elements which are the essence of the charge, it does not admit the non-essential ingredients of an offence: R v O'Neill [1979] 2 NSWLR 582, at 588. The defendant, though admitting to clearing native vegetation unlawfully, has expressly not admitted the nature and extent of the vegetation cleared. This matter has a significant impact on the Courts assessment of the environmental harm caused by the offence, and accordingly, the appropriate penalty to be imposed: Plath v Rawson ("Plath") [2009] NSWLEC 178; (2009) 170 LGERA 253. 23The matter was again before the List Judge on several occasions before it was fixed for hearing, on 15 November 2013, for four days commencing 4 March 2014. The Facts 24The parties to this prosecution reached a commendable agreement on a statement of facts, but remained unable to reach agreement on various matters, mainly relevant to the question of environmental harm, and motive. 25That "Agreed Statement of Facts" ("the ASF" - Exhibit P1), as filed and tendered, noted some disagreements, and also included a series of attachments/exhibits to it, numbered 'A' to 'M'. Those exhibits to the ASF included Records of Interview ("ROI") conducted by OEH officers with Ian ("J"), Cory ("K"), Grant ("L") and a contractor, Ivan Maas ("M"). 26For convenience and completeness, the ASF is set out at this point. Index Fact 1 The defendant is Ian Robert Turnbull of "Yambin", Croppa Creek Road, Moree, NSW, 2400. 2 Mr Turnbull is charged with and has pleaded guilty to a breach of section 12 of the [NV Act]. The charge is that Mr Turnbull cleared native vegetation otherwise than in accordance with a property vegetation plan or a development consent granted in accordance with the Act, between about 1 November 2011 and 18 January 2012 inclusive, on properties known at the relevant time as 'Strathdoon' and 'Lochiel' [sic] at or near Croppa Creek in the State of New South Wales (the clearing). The defendant disputes the extent of unlawful clearing on each of the properties, the nature and extent of native vegetation unlawfully cleared and the extent of environmental harm. 3 The property known as 'Strathdoon' comprises Lot 2 of Deposited Plan 621439 and is located on County Boundary Road, Moree, NSW (Strathdoon). Up until 31 January 2012, the owner of Strathdoon was Mr William Rutherford Scott. The properties 4 The property known at the relevant time as 'Lockeil' comprises Lots 1 and 17 of Deposited Plan 755998 and is located on County Boundary Road, Moree, NSW (Lockeil). Lockeil is adjacent to Strathdoon [and to its North]. Up until 31 January 2012, Lockeil was owned by Pablun Pty Limited. The directors of Pablun Pty Limited are Mr William Rutherford Scott and Mr Ormonde Roger Butler. The shareholders of Pablun Pty Limited were Mr William Rutherford Scott (Bill Scott) and Mr Ormonde Roger Butler as trustee for the W. R. Scott Jnr. Trust. 5 A map showing the location of both Strathdoon and Lockeil is Attachment A. Strathdoon 6 Strathdoon is approximately 916 hectares in size, and is made up of cultivated land and areas of uncleared, native vegetation. 7 Mr Cory Turnbull is the grandson of the defendant. Mr Cory Turnbull and his wife, Mrs Donna Turnbull, purchased Strathdoon from Bill Scott, by Transfer dated 31 January 2012. 8 The defendant mortgaged his farm ["Yambin"] as part security for the financing of the purchase. The prosecution alleges that there was an arrangement between the defendant and Cory and Donna Turnbull as a consequence of which it was agreed that the defendant would receive profits from Strathdoon during the first year following settlement. The defendant had management or control of the land at Strathdoon in so far as he caused the clearing. The defendant later told investigators that "we've always got a deadline to meet with banks" and the prosecution alleges that this motivated him to conduct the clearing. 9 From January 2010, the defendant leased some areas of existing cultivation on Strathdoon from Bill Scott. These areas are not the subject of the clearing charge. Lockeil ([renamed] Colorado) 10 Lockeil is approximately 1533 hectares in size, and is made up of cultivated land and areas of uncleared, native vegetation. 11 Mr Grant Turnbull is the son of the defendant [but is not Cory's father]. Mr Grant Turnbull purchased Lockeil from Pablun Pty Ltd, with settlement taking place on 31 January 2012. He then changed the property name from Lockeil to Colorado. The defendant had management or control of the land at Lockeil in so far as he caused the clearing. 12 From January 2010, the defendant leased some areas of existing cultivation on Lockeil from Pablun Pty Ltd. These areas are not the subject of the clearing charge. Clearing 13 The prosecution alleges and the defendant [but not the father of Cory] disputes that prior to October 2011, clearing on Strathdoon was primarily confined to two large sections, one adjacent to the northern boundary in the west of the property and one near the centre of the property adjacent to the western boundary. Trees were also removed in the north-eastern part of the property in the vicinity of the house access track between 2000 and 2004. 14 The prosecution alleges and the defendant disputes that prior to October 2011, clearing on Lockeil was primarily confined to two areas, a section to the east, adjacent to the eastern boundary, and a section to the west in conjunction with an adjoining area of Strathdoon. The prosecution alleges and the defendant disputes that some trees were also removed in small, discrete areas. 15 The prosecution alleges and the defendant disputes that none of the previous clearing relates to the areas on the properties that are the subject of this charge. 16 The defendant decided to carry out the clearing on Strathdoon. That clearing commenced in approximately December 2011. The clearing was done to prepare the cleared land for cropping and/or broad-scale cultivation. 17 Although Bill Scott was still the registered owner of Strathdoon up until 31 January 2012, he did not have any input into the decision to carry out the clearing on Strathdoon. 18 The clearing on Strathdoon was carried out by the defendant and by a contractor engaged by the defendant, Mr Ivan Maas. The defendant and Mr Maas used bulldozers to push trees over and into piles. The prosecution alleges that some of the trees were then set alight either by the defendant or in accordance with his instructions. The defendant owned both of the bulldozers used to carry out the clearing. Mr Mass (sic) did exactly as he was told by the defendant during the clearing. 19 Mr Maas was engaged by, paid by, and given instructions in relation to the clearing by the defendant. Mr Maas followed the defendant's instructions in carrying out clearing on Strathdoon. 20 Cory Turnbull was not present on Strathdoon during the clearing and did not see it occurring. 21 The prosecution alleges that after the trees had been burnt, a bulldozer was used to rake out the ash heaps. 22 The clearing on Lockeil was carried out by the defendant between about 1 November 2011 and 18 January 2012. 23 The vegetation was cleared using two bulldozers operated by the defendant and Mr Maas. The defendant owned both of the bulldozers used to carry out the clearing on Lockeil. 24 The defendant engaged Mr Maas to work on Lockeil and paid Mr Maas. The defendant gave instructions to Mr Maas in relation to how to carry out the clearing. 25 Prior to the clearing on Lockeil, the native grasses on some parts of Lockeil that had been subject to grazing were starting to rejuvenate following past overstocking. 26 On 15 February 2012, Office of Environment and Heritage Officers [(OEH)] Glen Turner and Stephen Beaman and Ecologist Dr Chris Nadolny attended Strathdoon and Lockeil to conduct an inspection. On that day, Officer Turner told the defendant that he intended to issue a Stop Work Order in the near future to require the defendant to stop clearing native vegetation on the properties. The prosecution alleges that as a result of that conversation, the defendant arranged for a staff of six, including himself, to continue the clearing as quickly as possible before the Stop Work Order was issued, in order to allow growing of crops in the cleared areas to bring in income. These facts are disputed by the defendant. 27 After the defendant and Mr Maas cleared trees, the ground was ploughed. 28 The clearing on Lockeil was conducted in order to allow cropping, and/or to prepare the cleared land for broad scale cultivation. 29 In about June 2012, the cleared areas on Strathdoon were cropped. Two photographs taken by Officer Turner showing the cropped areas are Attachment B. The defendant disputes the relevance of this fact. 30 As at August 2012, crops had been planted in some areas that were cleared on Lockeil by the defendant and Mr Maas at the direction of the defendant between 1 November 2011 and 18 January 2012. The defendant disputes the relevance of this fact. 31 On 30 September 2011, Cory and Donna Turnbull submitted an application for a property vegetation plan (PVP) to Border Rivers-Gwydir Catchment Management Authority (Border Rivers-Gwydir CMA). A copy of the initial PVP application is Attachment C. 32 Cory Turnbull submitted a completed PVP Plan for Strathdoon to Border Rivers-Gwydir CMA via post on 14 October 2011. A copy of the completed PVP Plan is Attachment D. 33 Cory Turnbull telephoned Border Rivers-Gwydir CMA Catchment Officer Luc Farago on 30 September and 17 October 2011 to discuss the PVP application. 34 Luc Farago attended Strathdoon on 1 November 2011 with Cory Turnbull and the defendant. The defendant disputes what was said during that attendance, and the prosecution will call Mr Farago to give evidence as to what happened during that attendance. 35 No PVP or other consent has been issued by the Border Rivers-Gwydir CMA to permit clearing of any vegetation on Strathdoon or Lockeil. 36 No development consent issued under Part 3 of the [NV Act] authorising clearing of native vegetation on either Strathdoon or Lockeil has been issued. 37 The prosecution alleges that the clearing was not clearing for routine agricultural management activities in accordance with section 22 of the [NV] Act. 38 The prosecution alleges that the clearing was not a continuation of existing cultivation, grazing or rotational farming practices in accordance with section 23 of the [NV] Act. 39 The clearing was not clearing that was excluded from the operation of the Act in accordance with section 25 of the [NV] Act. 40 The prosecution asserts that native vegetation that was cleared on Strathdoon and Lockeil by the defendant and by Mr Maas at the direction of the defendant between 1 November 2011 and 18 January 2012 had been consistently present prior to 1 January 1990. The defendant disputes this fact. 41 On 18 January 2012, after receiving information, Officer Turner conducted a brief inspection of the cleared areas of the properties from County Boundary Road. During this inspection Officer Turner took a number of photographs. A representative selection of these photographs and a map showing the location at which the photographs were taken are Attachment E. 42 Later on the same day, Officer Turner conducted a flyover of the properties with National Parks and Wildlife Service pilot, Mr Richard Byrne. The purpose of the flyover was to take aerial photographs of the properties, which were then processed and joined together to form a complete mosaic image of the properties. 43 On 13 February 2012, Officer Turner carried out an inspection of the properties with OEH Compliance Officer Stephen Beaman and OEH Senior Ecologist Dr Chris Nadolny. During this inspection Officer Turner took a number of photographs. A representative selection of these photographs and a map showing the location at which the photographs were taken are Attachment F. 44 On 14 February 2012, Officer Turner continued his inspection of the properties with Officer Beaman and Dr Nadolny. During this inspection, Officers Turner and Beaman observed Mr Ivan Maas using a bulldozer to push trees and shrubs into stacks on Strathdoon. During this inspection, Officer Turner took a number of photographs. A representative selection of these photographs and a map snowing the location at which the photographs were taken are Attachment G. 45 On 15 February 2012, Officers Turner and Beaman and Dr Nadolny continued their inspection of the properties. During this inspection, Officer Turner took a number of photographs. A representative selection of these photographs and a map showing the location at which the photographs were taken are Attachment H¹. 46 A voluntary interview was carried out with the defendant on 22 March 2012. A copy of the transcript of this record of interview is Attachment J. 47 A voluntary interview was carried out with Cory Turnbull on 27 March 2012. A copy of the transcript of this record of interview is Attachment K. 48 A voluntary interview was carried out with Grant Turnbull on 27 March 2012. A copy of the transcript of this record of interview is Attachment L. 49 A voluntary interview was carried out with Ivan Maas on 27 March 2012. A copy of the transcript of this record of interview is Attachment M. 50 The primary material relied on by Paul Spiers for the purpose of preparing his expert reports is not in dispute. 51 The parties are unable to agree as to the main species of trees that were cleared, and the age and other relevant characteristics of the cleared vegetation. The prosecution will seek to adduce evidence relevant to that issue. 52 The following [trees and shrubs] are native vegetation: a) Brigalow (Acacia harpophylla); b) Belah (Casuarina cristata); c) Poplar Box or Bimble Box (Eucalyptus populnea ssp bimbil); d) Western Rosewood (Alectryon oleifolius); e) Wild Lime (Citrus glauca); f) Wild Orange (Capparis mitchellii); g) Warrior Bush (Apophyllum anomalum); and h) Myall (Acacia pendula). 53 The parties are unable to agree on environmental harm caused or likely to be caused by the offence and will seek to call evidence in relation to it. The Evidence 27The majority of the four day hearing was spent dealing with the evidence of the parties' respective experts on the proper designation of the area of native vegetation unlawfully cleared, and on its environmental value. 28The prosecutor relied on the expert evidence of Dr Christopher Nadolny (Ecologist), who affirmed two affidavits (27 November 2012 and 24 September 2013), and Paul Spiers (OEH employee), who affirmed four affidavits, three of which were read (30 October 2012, 20 November 2012, and 17 September 2013). 29The defendant relied on the expert evidence of Geoffrey Sinclair (Senior Botanist at Ecosure Pty Ltd), he swore two affidavits (13 August 2013 and 31 January 2014), and Peter Thomas Hall (Ecologist), who swore two affidavits (10 October 2013 and 6 February 2014). 30Nadolny, Sinclair and Hall were also involved, later, in the Class 1 proceedings, for which they collaborated on a joint expert report. 31Before me, in these Class 5 proceedings, the competing evidence of Spiers and Sinclair was directed primarily towards the area of native vegetation cleared, but Sinclair also provided some opinion evidence on environmental harm. The evidence of Nadolny and Hall addressed the nature, and ecological impact, of the clearing. I allowed some cross-examination of Nadolny on what remediation works he thought necessary, as Mr Alexis had put to me that Nadolny's recommendations had informed the OEH's directions to Grant, Cory and Donna. 32The prosecutor also relied on the lay evidence of Dennis Hill and Luc Jean Farago. They each swore one affidavit, dated 19 October 2012, and 31 October 2012 respectively, and Farago was called to give oral testimony. 33Farago is an environmental scientist employed as a Catchment Co-ordinator by the Local Catchment Management Authority ("CMA"), and Hill describes himself as a semi-retired cattle grazier, formerly employed by the Scott family and related interests formerly involved with Strathdoon and what was then Lockeil (see ASF 4). Dennis Hill 34Hill worked on the subject properties from 1978 until 17 November 2011 (par 32), a period of 33 years. He was initially employed as an overseer, but took over the management of the properties in November 2009 (par 6). 35Hill provided evidence on the farming practices, and the clearing which he had observed during his time at the properties. The areas used for grazing were seasonal, and the stock predominant Merino sheep and Shorthorn cattle. 36He understood that, in 2010, Ian leased some paddocks on both properties. 37Hill witnessed "selective" clearing of native vegetation in the early 1990s, and some minor clearing (2 acres) in early November 2011, to facilitate lessee access. It would appear that none of the 1990s areas of clearing fall within the charge areas. Luc Farago 38Farago's role with the CMA involves the assessment of PVP applications. 39On 30 September 2011, Cory and Donna Turnbull submitted an application for a PVP to the CMA for the purpose of obtaining approval for clearing on Strathdoon in anticipation of assuming its ownership. The assessment of this PVP application is currently on hold pending the conclusion of OEH investigations, but Farago deposed to an inspection he carried out, with Ian and Cory, on 1 November 2011. 40The areas proposed to be cleared on Strathdoon under the PVP, are the same areas which are the subject of the charge (see map at LFJ2 - tab 2). 41He deposes that he said to Ian and Cory that the "inspection has provided clarity that some of the activities outlined in the PVP plan for Strathdoon would not be possible" because of the presence of remnant native vegetation, and native ground cover (par 26). His evidence is supported by his diary notes (LFJ - 3). 42Farago was cross-examined by Mr Alexis, who sought to shed doubt on his claim that he expressed the likelihood of a negative assessment of the PVP. Farago conceded that "primarily" his discussion on site was with Cory, not Ian (Tp24, L12), but he found Ian "polite and friendly" (Tp20, L32). Cory did not seem "concerned" about the OEH investigation of Ian's clearing activities (Tp35, LL28 - 40). Prosecutor's Expert Evidence Paul Spiers 43Spiers's expert report relied on the analysis of aerial photographs to identify any vegetation changes on the properties the subject of the charge. 44Thirteen images were used. Importantly, image (m) was taken on 4 September 2012, post-dating the end of the charge period on 18 January 2012. 45Technology was also utilised to enable Spiers to view the aerial images in three dimensions, and observe various characteristics of the vegetation, such as the height differentials among the various types of vegetation (pars 30 and 32). 46Spiers' identified five "Polygons" or "areas" of disturbance of vegetation which was present prior to 1 January 1990 across the two properties. The boundaries of these Polygons represent the "edges of tree cover" where disturbance had occurred (par 38). 47In relation to Colorado, the areas cleared were "two sections in the eastern half of lot 17 DP 755998 ... and an area of trees between the previously cleared sections of Lot 1 DP755998". These areas formed Polygons 1 to 3. The trees removed "appear to have been continually present on the property prior to 1 January 1990" (par 41). 48During his investigation for the preparation of his supplementary affidavit dated 20 November 2012, Mr Spiers identified a further area of clearing on Colorado, located along the southern side of the boundary between Lots 1 and 17 of DP 755998. He opined that this area comprised 23.7ha (Polygon 5). 49In relation to Strathdoon (Lot 2, DP621439), he found that extensive vegetation had been removed in the north-eastern section of the property (Polygon 4). 50Spiers's reports indicate the size of the areas cleared, and the total cleared across both properties, as follows: "Colorado" Description Area (Ha) Polygon 1 210 Polygon 2 130 Polygon 3 57 Polygon 5 23.7 Total 420.7 "Strathdoon" Description Area (Ha) Polygon 4 73 51He, therefore, found that the total area of native vegetation cleared across the two properties was 493.7ha. 52Spiers also opined on the density of trees within the cleared Polygons, both prior to the clearing and subsequently. 53The following table provides a reference to the classification of tree density across the properties by both Spiers and Sinclair (drawn from Exhibit PAS - 1, par 33, and Annexure A to the Affidavit of Sinclair dated 13 August 13, par 25): Description Tag (Code) Crown Separation Ratio (CSR) Structural Class of vegetation %Crown Cover Closed or Dense D <0 Closed Forest > %80 Mid Dense M 0 to 0.25 Open Forest 50 to 80% Sparse or Open S 0.25 to 1 Woodland 20 to 50% Very Sparse V 1 to 20 Open Woodland 0.25 to 20% Isolated Plants I >20 Isolated trees or clumps < 0.25% 54The change in density as a result of clearing on Strathdoon was represented in table 7 of Exhibit PAS-1: Polygon Number Tree Density Prior to Disturbance Tree Density Following Disturbance 4 Some areas of M, large areas of S, remainder V Some areas of S, remainder V, >10 CSR 55The change in density on Colorado was represented in table 4 of the Affidavit of Paul Spiers dated 20 November 12: Polygon Number Tree density prior to disturbance Tree density following disturbance 1 Some S, mostly V, 1 to 20 CSR All V, >10 CSR 2 Equal areas of S, and V All V, > 10 CSR 3 Small clumps of M, 5-10 CSR apart All V, >10 CSR 5 Mostly areas of S and V. A section of M in the west of the block All I 56In his supplementary affidavit, Spiers calculated the number of trees removed across the properties. He estimated that 2708 trees were removed on Colorado (see table at par 7, Annexure A), and that 694 were removed on Strathdoon (see table par 8). However, he said that there is a +/- 10 percent error factor in this estimate (subs par 4). Dr Christopher Nadolny 57Nadolny, was engaged by the prosecutor to provide his expert opinion on the nature and conservation value of the native vegetation cleared in the charge period, and the environmental impact of the clearing. 58Nadolny's findings were summarised at pars 1 to 7 of his report. He indicated (par 2) "that this report deals with clearing that occurred from approximately November 2011 to April 2012, with the initial clearing of most trees having occurred by 18th January 2012". 59He adopted Spiers's findings as to the areas of native vegetation cleared, ([50] above), and determined (par 3) that the remnant native vegetation cleared included native trees, shrubs, vines, mistletoes and groundcover plants. 60He found (par 5) that the clearing resulted in significant environmental harm on both properties, the major impacts being: (a)The loss of a significant area of remnant native vegetation, (b)The loss of an endangered ecological community (Brigalow trees within the Brigalow Belt South, Nandewar and Darling Riverline Plains Bioregions)- as defined by the Environmental Protection and Biodiversity Conservation Act 1999. (c)Loss of significant areas of overcleared vegetation types (i.e vegetation types estimated to be over 70% cleared within the relevant Catchment Management Authority Area). (d)A significant loss of habitat for fauna, affecting several threatened species, including the loss of feed trees for Koala, habitat used by the Grey-Crowned Babbler, and the loss of hollow-bearing trees. 61During his first inspection of the property, on 13th - 15th February 2012 (shortly after the charge period - par 33), he observed that, "most of the trees had been recently cleared in Areas 1 to 5, and that "clearing of shrubs, understorey plants, ground cover and sapling trees was in various stages of completion". 62In relation to Polygon 1 (the largest of the cleared areas), he said (par 34) that, "almost all the trees as well as large shrubs and thickets of woody vegetation had been pushed over...", but that "most of the ground cover was still intact". In relation to Polygons 2 and 5, he observed (par 35) that there was "significant damage to ground cover" caused by the pushing of felled trees into heaps and burnt. Regarding Polygon 3, "there were still a few areas of intact ground cover, but most ground cover had been disturbed" (par 36). 63Nadolny provided the following overall assessment of the type of vegetation cleared within the Polygons (par 39): In summary, the cleared vegetation on the Properties varied in structure from woodland or open forest to scattered trees with a predominately native understorey. The main species of trees cleared were Brigalow (Acacia harpophylla), Belah (Casaurina cristata), Poplar Box or Bimble Box (Eucalyptus populnea ssp bimbil), Western Rosewood (Alectryon oleifolius), Wild Lime (Citrus glauca), with smaller numbers of Wild Orange (Capparis mitchellii), Warrior Bush (Apophyllum anomalum), Myall (Acacia pendula) and Whitewood (Atalaya hemiglauca). These are all native species and constitute native vegetation under the [NV Act]. A diversity of native shrubs and groundcover plants and trees were also cleared. The only prominent non native woody plant that was cleared was African Boxthorn (Lycium ferocissimum). African Boxthorn generally occurred as a shrub of 1 to 2m tall on the properties. It generally grew beneath trees and was confined to localised areas. Based on my observations, I estimate that it comprised 1 - 2 % of the vegetation that had been cleared, by biomass. Ground cover on the properties had been dominated by native grasses or by other native species in all areas examined. Prominent grasses included Queensland Blue Grass (Dichanthium sericeum), Windmill Grass (Chloris truncate), Slender Windmill Grass (Chloris divaricata) and Fairy Grass (Sporobolus caroli). These are all native species. 64He provided his opinion on the age and nature of the trees felled across the areas, based on measurements of the trees felled taken on his first inspection on 14 February 2012. 65Regarding Polygon 1 he opined (par 69) that: ... the estimated average ages, based on growth rates alone, are likely to be at least 56 years for Belah and at least 110 years for Poplar Box, with the largest measured Poplar Box with a DBH of 99cm expected to be at least about 165 years old. The trees I observed of this size all had significant development of hollows, which provides further evidence of their antiquity. Eucalypts with large hollows are reputed to be seldom less that 200 years old. Thus, overall, the vegetation that had been cleared in Area 1 generally comprised large to medium sized trees and included very old trees. 66Regarding Polygons 2 and 5, he observed (pars 70 - 71) that "large felled trees were still evident", and he was unable to assess the size of the trees in Polygon 3. 67In Polygon 4, he said (par 72) that "the Belahs and other trees described from south-west of that Area are probably over 60 years old, based on their size and form". 68He opined (par 87) that the "loss of hollow bearing trees causes extremely long-term damage to wildlife habitat because of the extended period required for hollows large enough to be useful for wildlife to form, with prominent hollows mainly confined to trees over a hundred years old". 69Nadolny commented (pars 81 - 82) on the conservation value of the cleared areas: 81. The conservation value of vegetation takes into account its capacity to support a diversity of fauna. In general, loss of habitat and the food resources within the habitat resulting from broad-scale clearing of native vegetation, depending on the location and condition of that habitat, may have a severe impact on local populations of some resident species of wildlife. In particular, territorial birds and animals that are displaced by a sudden loss of food resources and habitat have little prospect of establishing territories in adjacent areas, which are generally already fully occupied. The impacts are expected to be even greater if the clearing causes fragmentation of habitat so that the more vulnerable species of wildlife can no longer move through the landscape in safety. In that case isolated populations can become extinct. These concepts are explained more fully in the NSW Scientific Committee's determination to list "Clearing of native vegetation" as a key threatening process on Schedule 3 of the TSC Act (see attachment 8). 82. In this case, the accumulated impact of the clearing on some species of fauna could be substantial because, with the exception of the Properties, most properties in the district had already been cleared and are used entirely for the growing of field crops, so remnant vegetation is confined to roadsides, watercourses and other narrow strips. This can be seen by inspecting Figure 1. Endangered Ecological Communities 70Regarding the Brigalow EEC (see above at [60]), Nadolny said (par 109) that "vegetation dominated or co-dominated by Brigalow is considered endangered because most areas of Brigalow have been cleared to make way for agriculture". He determined (par 110), by observing areas of the land that had not been cleared, that the area cleared was dominated, or co-dominated by Brigalow prior to the clearing. 71He opined at (par 113): Brigalow was present to a varying extent in much of the Cleared Area on both Properties. Based on my ground assessment, plus my assessment of aerial images, I estimate that the mount of Brigalow EEC cleared (i.e. picked) on Colorado was likely to be very roughly 60-100 hectares, with about 20-35 hectares cleared on Strathdoon. Fauna 72Nadolny observed a diversity of fauna during his inspections, including two threatened species, the Koala and the Grey - Crowned babbler (par 88), and opined that the clearing would have had a significant impact (par 91): Based on my observations ... there appears to be a sizeable population of Koalas in the vicinity of the Properties. During our inspection (21- 22/8/2012), even though I only inspected a small proportion of the Koala habitat that present (sic) on the Properties, I personally observed a total of 6 Koalas, including one at the northern end of Colorado that was not documented in Attachment 7. All of them were on Poplar Boxes, adjacent to newly cleared areas on the Properties ... so that it appears that Poplar Box is their main feed tree. A significant area of Koala habitat, containing scattered Poplar Boxes, has been destroyed ... in the cleared area. Koalas ... are known to be severely impacted by clearing and, for example, it is common to see Koalas wandering about in search of a new territory following a clearing event. ... the potential impact of the clearing on the Properties on the local population of Koalas is likely to be significant. 73He also opined (par 90) that a number of other vulnerable and endangered species were likely to have been present in the area and have been impacted by the clearing. 74For all these reasons, Nadolny opined that the environmental harm caused by the clearing was "substantial". 75During his cross-examination, Nadolny was tested, by the Court and by counsel, on his specification of April 2012, rather than 18 January 2012 (the closing date in the charge), as the closing date of the period upon which he opined (see Tp121, L39 - p125, L43). It would seem that he carried the April date forward from some material he reviewed while the charge period was being settled, but that the period January - April 2012 may have embraced other work in preparation for cropping, as the preferred crop(s) for the area are usually sown around those months. Defendant's Expert Evidence Geoffrey Sinclair 76Like Spiers, Sinclair's observations were based on the analysis of aerial photographs of the properties, but he came to a vastly different conclusion as to the area cleared of native vegetation, unlawfully. 77Sinclair said (August 2013 report, par 39): Analysis of the 2009 imagery showed vegetation communities within the polygons had a low canopy cover (average cover of 6-12.1%). Comparisons with virgin vegetation (average cover of 65.5-66.7%) shows that they had been thinned in the past. In many instances, areas identified as being the subject of the charge had expanses of several hectares devoid of trees. ... 78He opined (pars 49 - 50) that 80% of the land in the cleared areas the subject of the charge on Colorado would be classed as "open woodland to isolated trees", and that, in many places, "open areas existed with more than 100m spacing between trees". He, therefore, opined that, across the subject Polygons, Ian Turnbull cleared "minimal vegetation" from a "modified community". 79Nadolny had noted that the groundcover on most of the charge areas was still intact when he visited in February 2012. Based on his observation of the aerial photography of 18 January 2012, Sinclair opined that the only native vegetation cleared in the charge period on Colorado was trees (August 2013, pars 51 -56). He went on to conclude (at par 57 - 58): 57. Paragraph 42 of the Prosecutor's Statement of Facts identifies 420.7 ha of vegetation cleared on 'Lockeil' (identified as polygons 1, 2, 3 and 5) between 12 October, 2011 and 18 January, 2012. I disagree with this area due to: a. 33.2 hectares of vegetation on polygon 2 has potentially been cleared since the (sic) 1 January 1990 and should not be classified as a remnant vegetation unit within Appendix A of the affidavit of Paul Spiers. b. The only vegetation cleared was native trees. The understorey and groundcover had not been cleared in the charge period and hence should not be included in the area calculations. c. The area had been subject to significant clearing in prior to (sic) 2009, to such an extent it is not representative of a 'natural' system. It is described as a derived grassland with scattered trees. d. The percentage of tree crown cover over the area was from 6.0% to 8.7% which is what was actually cleared in the charge period. e. Many of the trees were spaced more than 100m apart, with several hectares devoid of trees. As such, these areas that were devoid of trees cannot be considered to have been cleared in breach of section 12 of the Act. The area of vegetation cleared is constrained by the canopy extent or tree crown cover. 58. From the above findings 57 b to e, it is clear in my opinion that calculating the whole area of each of the polygons 1, 2, 3 and 5 as having been cleared in breach of section 12 of the Act is not appropriate. The extent of clearing on polygons 1, 2, 3 and 5 is only the tree crown cover. This was between 6.0% to 8.7% of the polygons. 80Sinclair also took issue (pars 42 - 46) with Spiers's calculation of the area within which trees were cleared unlawfully in Polygon 2, he said: 42. Appendix A to the Affidavit of Paul Spiers dated 12 October 2012 identifies areas of remnant woody vegetation units present between 1 January 1990 and 1 December 2005. Areas that were not remnant woody vegetation on this map were excluded by Mr Spiers from the area subject of the charge. 43. Analysis of the aerial photography dated 15 June 1985 and 25 June 1991 identified an area of 33.2 ha within polygon 2 where there was a significant reduction in vegetation cover. A map of the area and aerial photography is shown in Figure 4 and Figure 5. 44. Some prosecution evidence appears to indicate that some of the areas the subject of the charge, were cleared in about the early 1990's. The area of 33.2 ha within polygon 2, could have been cleared after 1 January 1990 and before 25 June 1991. 45. Assuming this area was previously cleared after 1 January, 1990 and following the prosecution's approach to exclude areas potentially cleared after that date (Appendix A to the affidavit of Mr Spiers) the 33.2 ha of vegetation identified in Figure 4 and Figure 5 is potentially a regrowth vegetation "unit". If this be correct, then it should be removed from the area subject of the charge. This reduces the area of polygon 2 from 130 ha to 96.8 ha. 46. The following findings have considered the removal of the 33.2 ha from polygon 2. 81He, therefore, deducted 33.2ha from Spiers's calculation of the area across which native vegetation was cleared in Polygon 2. The table below illustrates Sinclair's findings on the area cleared on Colorado. Description Area (ha) identified in each polygon Percentage crown cover of vegetation cleared Area (ha) of vegetation cleared Polygon 1 210 7.1% 14.9 Polygon 2 96.8* 8.3% 8.0 Polygon 3 57 8.7% 5.0 Polygon 5 23.7 6.0% 2.0 (*Polygon 2 has been reduced by 33.2ha) 82He arrived at an area of 29.9ha cleared on Colorado, from the affidavit of Spiers. 83Sinclair made similar findings (at 61) in relation to Strathdoon. His conclusions are represented in the table below. Description Area (ha) identified in Paul Spiers affidavit Percentage of crown cover vegetation cleared Area (ha) of vegetation cleared Polygon 4 73 12.1% 8.8 84Based on the above figures, he opined that a total of 38.7ha of native vegetation was cleared across the two properties. 85In both his primary report and his report in reply to Nadolny, Sinclair criticised Nadolny's methodology in a number of respects, including his reliance on data recorded from felled trees outside the charge area, his failure to provide locational information for a number of photographs he relied upon, and his use of maps with insufficient marginalia (compass, scale etc). 86Significantly, he opined that Nadolny's observations on environmental harm could not be relied upon, as they were based on clearing which occurred outside the charge period, namely, the clearance of groundcover (pars 76 - 77 of Annexure A to his affidavit of 13 August 2013). 87Sinclair offered his own opinion on the environmental harm caused by the clearing, contradicting the findings of Nadolny in a number respects, in particular to the impact of the clearing of Koala habitat and Brigalow EECs present in the area. 88Regarding the impact on Koala in the area, he opined at (par 99): Koalas are in the area and would have been impacted by the clearing event. However, the areas cleared were not ideal habitat as they only contained secondary food trees species. The trees were also widely spaced making it not ideal habitat for koalas. Areas of ideal koala habitat (containing primary food tree species and denser vegetation) on the property were retained. 89In relation to other species, he said (par 100): The painted honey eater, spotted harrier, varied sittella, glossy black cockatoo, turquoise parrot and the five-clawed worm skink may have occurred with in the area subject of the clearing charge. The modified nature of the vegetation means it may not have been ideal habitat for some of these species. 90Regarding the removal of Brigalow in the areas, he opined that the environmental harm caused was minimal, as the area was not a good representation of Brigalow EEC in the area. He said (pars 87 - 88): 87. The vegetation structure of the area subject of the charge contained no vegetation with an open forest structure prior to 1 November 2011. All of the brigalow vegetation communities have been modified by past clearing, with more than 80% of the vegetation cover thinned. 88. As a result of the above findings, the environmental harm caused by clearing brigalow communities needs to consider that these communities are highly modified and not in a 'natural' state. 91He also made the following general observations on the nature of the vegetation cleared and the environmental harm caused: 93 There are trees more than 200 years old on the properties. The information in Dr Nadolny's report, however, does not establish that any trees greater than 200 years old were cleared within the area subject of the clearing charge. 94 It is reasonable to state many of the tree felled would have been over 50 years old; some would have been over 100 years old - as per findings within the affidavit of Chris Nadolny. ... 97 The accumulated impact of the clearing of some species of fauna could be substantial because most other properties in the district had already been cleared and are used entirely for the growing of crops. 98 There are hollow bearing trees on the properties. The information in Dr Nadolny's report, however, does not establish that any hollow bearing trees were cleared within the area subject to the clearing charge. 92He concluded (par 101) that "Dr Nadolny's statement that the 'clearing has caused substantial environmental harm' cannot be justified on the evidence provided". Peter Hall 93Hall swore two affidavits in these proceedings, annexing his primary expert report, and a report in reply to the evidence of Nadolny and Spiers. 94Hall attended Colorado on 6 - 7 November 2012 and 2 - 5 August 2013 for the purpose of conducting "on-ground" assessments. 95He adopted Sinclair's findings as to the area of native vegetation cleared across the two properties, being 38.7ha, and, like Sinclair, he contradicted Nadolny's findings as to the nature of the vegetation cleared and the environmental harm caused by the clearing. 96During his inspections, Hall traversed the cleared areas on Colorado, and observed (par 30) that "fallen timber in the 4 proposed clearing Polygons consisted of scattered smaller diameter logs without hollows", most of which appeared "to be reasonably young i.e decades rather than centuries old". Despite this, he also observed (par 31) "scattered examples of larger [felled] trees that appeared to have been retained from earlier clearing", and contained hollows. These larger trees however were not representative of the bulk of the cleared vegetation (par 32). 97Hall was of the opinion that any environmental harm caused by the clearing must be framed around the amount of vegetation retained on the properties. He opined that the 38.7ha cleared was a relatively small area of vegetation cleared, when compared to the 800ha of remnant native vegetation retained. The environmental value of the retained vegetation is high, being (par 67) "in the most part, genuinely undisturbed woody vegetation with a well-developed height and canopy cover, frequent tree hollows and large hollow logs on the ground". This is in contrast to the nature of the cleared vegetation, described as "...advanced regrowth. That is regrowth older than 33 years ...", such vegetation being "widespread in rangelands across northern New South Wales and Queensland", which are "unlikely to provide the same level of biodiversity value as the retained stands of undisturbed mature forest" (pars 70 - 71). 98Regarding the impact on Fauna from the alleged clearing, Hall observed the presence of the Grey Crowned Babbler, and Koalas during his inspections. He opined (par 92): It can be confidently inferred from the fact that populations of these two species are still present on the properties more than a year after the clearing allegedly occurred that they have the capacity to cope with any loss of habitat due to the alleged clearing. 99He also questioned Nadolny's opinion that the cleared area provided a suitable habitat, such as "cracking clays", for the Five-Clawed Skink (pars 94 - 107) Endangered Ecological Communities 100Hall opined (par 152) that Nadolny's report did not conclusively demonstrate that any Brigalow EEC existed in the cleared areas. Vegetation assessments he conducted on Colorado "revealed that the Brigalow cleared in the charge areas had a crown cover percentage of a "open woodland", which is insufficient to classify it as a Brigalow EEC (pars 148 - 149). 101He also opined (par 150) that the photographs taken by Nadolny show a number of retained Brigalow trees in various vegetation communities on the properties, indicating that "the clearing avoided thicker, Brigalow dominated areas". 102In his opinion (pars 153 - 155), the clearing would have had a relatively low impact on the Koala community. There was at least 200ha of suitable Koala Habitat on both Strathdoon and Colorado, and the area cleared (38.7ha) represented only 11 percent of the Koala Habitat remaining on the properties. 103He also opined (pars 159, 166 and 167) that Koala have been traversing across newly cultivated areas in the alleged cleared Polygons to access retained feed trees in the area. He concluded at (par 171): Based the foregoing (sic) I am of the opinion that the properties have large areas of suitable koala habitat remaining which supports a population of koalas at a healthy level of density and that koalas continue to be able to freely move to different parts of the properties in spite of any impacts of the alleged clearing. 104For the reasons outlined above, he considers that Nadolny's statement that the environmental harm caused by the clearing was "substantial" is unfounded. Discussion 105It is fundamental that an offender is not punished for an act for which he has not been charged: The Queen v De Simoni ("De Simoni") [1981] HCA 31; (1981) 147 CLR 383 at 398 (confirmed by R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 279). In accordance with the De Simoni principle, Mr Turnbull must be sentenced only in respect of clearing that occurred within the charge period. 106The area cleared within the charge period is a significant factor, but not the only factor, in determining the objective seriousness of the offence, including the environmental harm caused by it. Spiers arrived at 493.7ha, and Sinclair at 38.7ha. 107In his oral submissions on the defendant's behalf, Mr Alexis said (Tp240, LL1 - 33): Now, your Honour, the different (sic) between Mr Sinclair's calculated area of trees that were cleared and Mr Spiers' calculation of area is singularly answered by reference to the ground cover and we know, because Dr Nadolny's report says so, as he confirmed yesterday, that subject to one qualification, which I'll come to, the ground cover was not cleared in the charge period. Now, the one qualification is this, is Dr Nadolny referred to the ground around the tree being uprooted with inevitable disturbance of the ground cover. Now, there is no issue about that. It's obvious but that doesn't impugn Mr Sinclair's calculation because the calculation based on canopy accommodates ground cover that was beneath the canopy which will be disturbed in the process of the tree being uprooted. The only other issue concerning ground cover relates to some of those areas which are exposed in the photographs which show that when the tree debris was burnt the ground cover was damaged through that process. There's also reference to the ground cover being disturbed by the tracks of the bulldozer. There are two difficulties with that; the first is that there is nothing in the evidence to show as I've been at pains to point out at various points during the course of this hearing that demonstrates that Mr Turnbull was responsible for the burning of the trees or for the or the driving of the tractor which caused the damage to which it is said caused damage to the ground cover to which Dr Nadolny refers. So, your Honour, the fundamental problem that confronts the prosecution in this particular matter is that beyond the trees that have been calculated to represent an area of 29.9 on Colorado and 8.8 hectares on Strathdoon; there is no evidence to show that the remaining area in excess of 80% was actually cleared by Mr Turnbull during the charge period and it follows in our respectful submission that the definition of area cleared can only be the area of the trees that were cleared which are accepted as having been cleared and the only evidence which informs that area is that of Mr Sinclair which totals 38.7 hectares. 108I accept that submission. 109Spiers calculated the area by identifying the outer perimeter of areas from which trees had been removed. Such a "desktop analysis" does not address the issue of groundcover, but he did note that the density of trees removed ranged between "sparse" and "very sparse". On inspection, Nadolny found the groundcover to be intact between trees in many cleared areas, and opined that it was largely undisturbed in the charge period. Sinclair calculated the area cleared in that period by reference to tree canopy area, and I prefer his methodology. Spiers also conceded that doubt remained in respect of the 33.2ha cleared in Polygon 2 between 1985 and 1991, the relevant "regrowth date" being January 1990 (Tp72, LL33 - 36), and I agree with Mr Alexis that the doubt reaches the level of "reasonable". 110I, therefore, conclude that the area of native vegetation unlawfully cleared within the net area of 460.5ha was 38.7ha. 111As I noted above (at [106]), the area actually cleared is but one factor to be taken into account when assessing the level of environmental harm. As Mr Alexis observed (Tp241, LL30 - 33), "... one has to look at the trees that were cleared in the environment within which they existed". 112The clearing can have other environmental consequences beyond the actual loss of the trees themselves, but the loss of at least 3000 "stems" is serious. 113I turn, therefore, to set out the sentencing principles, and then to apply them to the facts found in the present case. Sentencing Principles 114The relevant statutory provisions and general principles governing the imposition of sentences on environmental offenders, including those in breach of the NV Act, are well-established, and are often stated in judgments of the Court. I discussed and analysed them at some length in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko ("Magdalene") [2013] NSWLEC 210, and do not see the need to set them out again in any great detail. 115I also adopt, but need not repeat, the summary of principles by, for example, Pepper J in Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Limited (No 4) ("Walker") [2011] NSWLEC 119, at [20] - [34], and elsewhere, by Preston ChJ in Director-General of the Department of Environment and Climate Change v Rae ("Rae") [2009] NSWLEC 137; (2009) 168 LGERA 121, and by Pain J in Director-General of the Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102. 116All three of those cases involved clearing of native vegetation, as did my decisions in Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd [2011] NSWLEC 125; Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No. 2) ("Graymarshall") [2011] NSWLEC 149, Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell ("Powell") [2012] NSWLEC 129; and, Chief Executive, of the Office of Environment and Heritage v Newbigging ("Newbigging") [2013] NSWLEC 144. 117Sentencing requires the "instinctive synthesis" of all the relevant objective and subjective circumstances surrounding the commission of the offence, and the imposition of a "proportionate" penalty: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, and Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. 118Any factor adverse to the defendant, regarding either the objective or subjective circumstances of an offence, must be proved beyond reasonable doubt: Duffy v R [2009] NSWCCA 304, per Fullerton J at [21]. 119Key statutory provisions are ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"). 120Section 3A articulates the purposes of sentencing, which relevantly include, in the context of this case, adequate punishment, specific and general deterrence, making the defendant accountable for his/her/its actions, denunciation of criminal conduct, and recognition of harm caused to the community. 121Section 21A and associated sections list aggravating and mitigating factors to be considered. Those of particular relevance here are whether the environmental harm caused was "substantial" (s 21A(2)(g)), and whether there was any financial motivation for the clearing (s 21A(2)(o)). Objective Factors Nature of the Offence 122In Rae, ChJ Preston said at [15] - [19]: 15. ... A fundamental consideration with particular relevance to environmental offences, is the degree by which, having regard to the maximum penalties by the statute in question, the offender's conduct would offend against the legislative objective expressed in the statutory offence ... [His Honour then set out s 3 of the NV Act - see above at [20]] 17. One of the principal means by which these objects are achieved is by the Act prohibiting clearing of native vegetation, but enabling a person to be relieved of the prohibition by applying for and obtaining consent from the regulatory authority ... 18. There is a need for the upholding of the regulatory system under the Act. The system depends on persons, first, taking steps to ascertain when consent is required to clear native vegetation, secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. Sentencing courts have emphasised the need to uphold the integrity of the regulatory system relating to native vegetation and fauna ... 19. Offences which undermine the integrity of the regulatory system are objectively serious. ... 123By clearing native vegetation without PVP or DC, the defendant has directly undermined the legislative scheme in place, making the offence more objectively serious. Maximum Penalty 124The maximum penalty is 1.1M (s 12(2) of the NV Act, and s 126 of the EPA Act). This is an important factor in the determination of any penalty as it "reflects the public expression of Parliament of the seriousness of the offence": Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [164]. It also acts as a "yardstick" against which sentences can be compared to that applicable to the worst possible case for which the maximum is reserved: Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd ("Bombala") [2013] NSWLEC 185; (2013) 199 LGERA 236, at [41] . Environmental Harm 125As noted by Preston ChJ in Rae (at [37] - [38 ]): 37 The significance of the number of trees removed needs to be evaluated in the context of the vegetation type in which the trees occur. The vegetation types of woodland and open woodland, by definition, have lower average densities (numbers) of trees per hectare than forest vegetation types, and hence will have greater space between trees. Hence, removal of a particular number of trees over a given area will have materially different effects if the vegetation type is a woodland or open woodland than a forest; it may result in the total or almost total clearance of the land in a woodland or open woodland but only partial clearance in a forest. 38 The significance of the number of trees needs also to be evaluated by reference to the trees involved - their species, nature, age, ecological attributes, biological interactions and contribution to ecosystem functioning amongst other features - and the consequences caused by their removal. Mr Shelly's evidence is that the areas cleared were woodlands with relatively intact woody vegetation. The clearing resulted in the almost total removal of woody vegetation (apart from isolated trees) from ten of the twelve areas that were previously of woodland or open woodland tree density. 155 hectares were cleared to an extent that only 5% of the trees that were formerly there remained. The clearing increased fragmentation, reduced vegetative connectivity and removed inadequately conserved vegetation communities, native vegetation important for maintenance of biodiversity and habitat of threatened species. Taking account of all of these factors, the effect of the clearance was similar to that of broadscale clearing, an outcome which the Act was intended to prevent ... 126Spiers opined, subject to an error factor of +/-10%, that 2708 trees were removed on Colorado and 694 on Strathdoon, and this was not disputed. 127According to Nadolny, the main species of trees cleared were Brigalow, Belah, Poplar Box, Western Rosewood, Wild Lime, with smaller numbers of Wild Orange, Warrior Bush, Myall and Whitewood, and they were a significant age, many cleared in Polygon 1 (210ha), being original trees, which had developed significant hollows. 128Hall attempted to downplay the environmental significance of the removal of these trees, by reference to the amount of native vegetation that was retained on the property, but I am unconvinced that this observation significantly reduces the environmental harm caused. 129The fact remains that approximately a minimum of 3000 trees were removed across the cleared areas, and many, especially in Polygon 1, were environmentally significant. Such clearing removed almost all the trees from Polygon 1 and significantly altered the nature of the woodland, leaving vegetation largely inadequate for relocation for displaced native fauna. 130Brigalow EEC, and Koala EEC were present on the cleared areas, and both were impacted by that clearing, but I accept Sinclair's evidence that the Brigalow was rather sparse, as a result of past thinning, making it "open woodland" rather than "open forest", which can be found in the district. 131It is, however, likely that a significant Koala population was disturbed. Its primary feed tree was Poplar Box, which was significantly cleared. Some 3000 trees across 460ha were lost, and that loss of shelter and food for Koala represents an important component of the environmental harm caused in this case. 132Nadolny also observed the presence of the Grey-Crowned Babbler, and opined that a number of other threatened or endangered species were likely to be present within the cleared areas. His findings are grouped and summarised in the prosecutor's submissions (at par 22). There were 26 headings in all. 133The removal of almost all trees within the cleared areas would have effectively removed from those areas the entire habitat of the Grey-Crowned Babbler. 134In respect of the likely impact on the clearing of threatened species I adopt the following comments by Preston ChJ in Rae (at [38]): The clearing increased fragmentation, reduced vegetative connectivity and removed inadequately conserved vegetation communities, native vegetation important for maintenance of biodiversity and habitat of threatened species. Taking account of all of these factors, the effect of the clearance was similar to that of broadscale clearing, an outcome which the Act was intended to prevent (see s 3(b) of the Act). 135The prosecutor submitted that the environmental harm caused by the clearing the subject of the charge was "substantial", and is therefore an aggravating factor to be taken into account in sentencing (s 21A(2)(g)). 136I find that the level of the environmental harm caused was substantial, increasing the objective seriousness of the offence. State of Mind 137Preston ChJ confirmed in Rae (at [42]), that unlawful clearing done "intentionally, negligently or recklessly will be objectively more serious than one not so committed". 138Mr Alexis for the defendant submitted (at Tp264, LL41 - 50): Your Honour, when one looks at this, this is not a man who wilfully engaged in a deliberate endeavour to contravene quite deliberately the law. Clearly mistaken. Not surprising, your Honour might think, for a man of his generation and a man of his age and my learned junior has provided your Honour in our written submissions yesterday with a very detailed overview of the native vegetation scheme going right back to the SEPP 46 and we do make the submission in our written submissions; it's little wonder that people, particularly people of Mr Turnbull's generation, might be a little confused about this 139Ian Turnbull's asserted confusion as to law on regrowth is supported by the ROI (Exhibit P1, tab j at p11): Q 73. So have I got this right that your understanding of regrowth is trees that have regrown sometime after the land was cleared regardless of when the land was cleared, would that be correct? A. After the ground was settled. Q 74. Sorry, what did you say? A. I say regrowth is what - it's regrowth since the land was originally settled. 140I accept that he may have been mistaken as to what regrowth was, and, therefore, what he was legally allowed to clear. So it would be incorrect to say that his clearing work was an intentional breach of the law. 141In Chief Executive, Office of Environment and Heritage v Rummery ("Rummery") [2012] NSWLEC 271; (2012) 192 LGERA 314, Pepper J said, (at [126]): An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries ... 142The prosecutor submitted that the defendant's conduct constituted a deliberate breach of the law, and/or formed part of a planned criminal activity (an aggravating factor - 21A(2)(n)), but I do not find that the evidence before me supports those propositions. 143However, Farago's evidence satisfies me beyond reasonable doubt that the defendant was aware, at least in a general sense, that approval was required to clear native vegetation. Farago's negative evaluation (see [41] above) would put a reasonable person on notice that at least some of the clearing the subject of the charge would be unlawful. 144That evidence, therefore, establishes that Ian's conduct was a reckless breach, a factor that increases the objective seriousness of his offence. Financial Motivation 145The prosecutor submitted "that the motivating factor for the clearing was purely financial", an aggravating factor to be taken into account in sentencing - (s 21A(2)(o) - see prosecutor's closing subs, pars 34 - 35). 146Preston ChJ said in Rae (at [11] - [13]): 11. The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits, with the expectation of a concomitant increase in the capital value of the land. Examples where sentencing courts have noted that clearing was undertaken for commercial gain include: ... 12. On land used or proposed to be used for purposes of agriculture, clearing of native vegetation might be intended to increase the grazing productivity (such as increasing pasture and stocking rate), change from a financially lower yielding to a financially higher yielding agricultural use (such as from grazing to cropping) or facilitate more practical and cost effective operations, including of machinery and equipment, also with the expectation of an increase in the capital value of the land. Sentencing courts have repeatedly noted that offenders have cleared native vegetation for commercial gain: ... 13. The very high maximum penalties fixed by parliaments for offences of clearing native vegetation contrary to law are, to a significant extent, intended to act as a deterrent, a countervailing disincentive to the economic incentives to clear native vegetation illegally. The penalties imposed by sentencing courts for offences of clearing native vegetation need to be of such magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending. In this way, the sentence of the court changes the economic calculus of the offender and also of other owners, occupiers and developers of land on which native vegetation occurs who might be tempted to clear illegally by the prospect that only light punishment will be imposed by the courts. Compliance with the law becomes cheaper than offending. Crime becomes economically irrational. 147At the time of the clearing, the defendant was not the owner of either of the properties, (ASF 3 - 4). However, arrangements had been made for Colorado to be purchased by his son Grant, to augment Grant's holdings for him and his now teenaged son to operate more viably (ROI Q271), and for Strathdoon to be purchased by his grandson, Cory, and his spouse Donna, with Ian's financial support (a guarantee is mentioned in the ROIs). Both properties were transferred to the Turnbulls on 31 January 2012 (ASF 7 - 11). 148Ian Turnbull mortgaged his own property to secure the loan for the purchase of Strathdoon by Cory (Exhibit P1, par 8), and commenced the clearing before the purchases were completed. Ian's purpose was to help set up his son and grandsons financially, and to give them, particularly Cory, a foothold in the farming industry (See Qs269 - 271 of the ROI at tab j of Exhibit P1). 149Mr Alexis, argued that, as Ian Turnbull would not himself financially benefit from the clearing, this was not an aggravating factor that could be taken into account (subs, par 132 - 135). He submitted (Tp255, LL12 - 25): But your Honour the submission that we really want to make and make with some force, is this: that the family arrangements are obvious? But you can't use that as a platform to make a submission that this was motivated by money or greed, or both? And at its highest one can see the submission, properly made, that Mr Turnbull was naturally interested in seeing his children and grandchildren doing well particularly those that showed an interest in farming that had been his life forever. But there is nothing to show that he had a financial interest in the outcome of economic activities on the land. There's nothing to show that he was motivated by money, and in our submission the clear inference, and the only inference that can be drawn, that as a devoted grandfather he was motivated by love and affection for his family. Your Honour that is an important point of distinction because when one looks at the sentencing cases in this area and one can understand why the submission is being put by the prosecution but that's not this case. 150I respectfully disagree with this submission. Although Ian was not the owner of the properties, there is evidence that some profits would flow to him. This is supported by the ROI between Glen Turner and Cory Turnbull (at tab k of Exhibit P1, Qs 29 and 141 - 144): Q 29. As Ian is the guarantor for the loan does Ian have any say in the management of the property? A Well he's got a vested interest so yes. ... Q 141. So what do you mean by that, your decision making occurred when you took ownership of the property is that correct? A No, more of my decision making occurred then, yes, but as I said it's like a - Ian's got a vested interest in the property so he also makes decisions regarding that property. Q 142. So apart from being guarantor what's the vested interest, is it the guarantor-ship? A Yes - yes. Q 143. Will Ian be making any profits on the property? A Yes, he will be off his first year. Q 144. And following years? A No 151Clearly, the clearing, which was designed to "transition" these properties to cropping, was continued with some urgency, so that the farms could produce crops in 2012, and 2013. 152Accordingly, financial motivation is properly to be taken into account as a relatively minor aggravating factor in sentencing Ian, referrable only to Strathdoon, and any penalty must be of such a "magnitude or nature as to make the financial cost to an offender outweigh the likely commercial gain by offending": per ChJ Preston in Rae. Control over the cause of the offences 153The defendant exercised a significant degree of control over the causes of the clearing. He personally operated one of the bulldozers responsible for the clearing, and the second was operated by Ivan Maas, who was acting on his instructions (see ASF 18 - 19). Foreseeability of the risk of harm to the Environment 154The clearing of native vegetation is an activity that invariably causes harm to the environment. The defendant is a lifelong farmer and grazier, and his clearing here was substantial, involving the removal of over 3000 trees. Having regard to the nature and extent of the clearing he contemplated, a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. Subjective Circumstances Character, Age and Record of the Defendant 155Mr Alexis submitted that, by reason of the defendant's age - he turns 80 on 13 November 2014 - he is unlikely to re-offend, and has good prospects of rehabilitation. He also says that Ian was not "fully aware" of the consequences of his actions. These are mitigating factors under the CSP Act (ss 21A(3) (g), (h), and (j)). 156Mr Alexis also said at (Tp270, LL39 - 47): There can be no serious question in this case that Mr Turnbull is not a man of good character. The character references provide overwhelming testament in support of that. They speak of a very generous man, a man that has engaged in the community during his whole life, not only when his children were at school but thereafter, mentoring other farmers who hit hard times. Your Honour, in our respectful submission, will be impressed by what your Honour reads in those references. He has no prior convictions. He should receive the benefit of the fact that he entered a plea at the earliest opportunity in this matter. 157Although the glowing references speak for themselves to Ian's credit, and one says that he is "devastated" by the charge, they do not provide any evidence of contrition or remorse on his part, and no evidence was produced to show that Ian has taken responsibility for his actions, or acknowledged any damage done to the environment as a result of his clearing. 158On the contrary - as is evidenced by the ROI - the defendant flagrantly disregarded the consequences of his actions, by continuing clearing, in knowledge that he was likely to soon receive a stop work order. (See Qs 267 and 287): Q 267. So what you're saying is you were trying to get as much done as you could before the stop work order came. A Yeah there's an economical equation in there that we've always got a deadline to meet with banks and so forth so we had to try and get somewhere, the area that we've cleared plus the ground that's - that was already cleared should get them through this year until we can do some negotiating with the EPA or the Gwydir Catchment Authority otherwise the place will have to be sold to somebody else. ... Q 287. All right. Is there anything further you wish to say about this matter? A I'm hoping you blokes have a bit of compassion so that we can clear it up and make it a farm for these younger generation that's about it, yeah. 159These remarks illustrate the defendant's failure to take responsibility for his actions. 160In respect of Ian's medical records (Exhibit D11), I note that his various conditions did not preclude his very substantial operation of a bulldozer to clear many trees (Tp126) over a period of months. As I have not considered imprisonment as an option, I pay little regard to this medical evidence. Remorse and Contrition 161Under this heading, Ian's counsel relied upon his plea of guilty, and his co-operation, frankness and candour with regulatory authorities, prior to the institution of proceedings (closing subs, pars 143 - 146). 162I am not satisfied that any remorse or contrition has been established. As I noted in Powell, "the plea of guilty, regardless of its timing, is not sufficient": Georgopolous v R [2010] NSWCCA 246 (at [49]). 163I am, therefore, of the opinion that the defendant has not shown any genuine contrition or remorse in relation to the offence, beyond his plea of guilty, to which I will now turn. Plea of Guilty 164The defendant pleaded guilty on 17 May 2013, the third time the matter was before the Court. His counsel submitted (pars 142 - 143) that this was the first opportunity for the defendant to enter his plea, after proper consideration of the prosecution evidence, and, accordingly, the defendant is entitled to the full 25% discount for that plea: R v Thomson, R v Houlton (2000) 49 NSWLR 383, at [160]. 165The sentencing hearing was initially estimated to take between three and four days, but it extended well into the fourth, and involved complex expert evidence from both sides, and much oral evidence. 166The defendant is certainly entitled to some discount, but not the full 25%, for his plea of guilty, as its utilitarian value has been significantly diminished, by reason of the disputation of a number of factual circumstances, necessitating a four day hearing: see Magdalene, at [122] - [129], and [259] - [262]. 167Preston ChJ said in Plath, at [152] - [153]: 152. Another factor that affects the utilitarian value of the pleas of guilty to the criminal justice system is the extent to which the offender has contested unsuccessfully the facts that form the basis for sentence. It is well settled that the utilitarian benefit of a plea of guilty is affected not only by the timing at which the plea is entered but also by the difficulty of assembling the relevant evidence and the length and complexity of the trial. A plea of guilty that avoids the necessity for and difficulty of gathering and adducing evidence on complex issues and a lengthy and complex trial will be of greater utilitarian benefit: R v Thomson at [154] . 153. However, the utilitarian benefit of a plea of guilty in such a case will be reduced where the offender, by the plea, admits only the essential legal ingredients of the offence but otherwise contests the factual basis of the plea and on which the court should pass sentence. Any dispute as to factual matters beyond the essential ingredients admitted by the plea must be resolved by accusatorial process upon evidence before the court applying ordinary legal principles appropriate to a criminal trial: ... If the contested factual matters, by their nature, extent or complexity, necessitate gathering and adducing evidence and a lengthy or complex sentence hearing to resolve the factual basis for sentence, the utilitarian benefit to the criminal justice system that ordinarily should have resulted from the plea of guilty, such as avoiding evidence gathering and a lengthy and complex trial, and the associated costs, will be dissipated: ... 168I, therefore, will give the defendant a discount of only 12.5% (i.e. half of the 25% usual maximum) for his plea of guilty. Remedial Work 169I earlier referred to Preston ChJ's determination of the Class 1 appeals brought by Grant, Cory and Donna, in respect of the remediation directions issued by the OEH for the cleared areas. Those appellants were partially successful in their appeals (see [11] above), but the remediation areas the subject of His Honour's directions are substantially outside the cleared areas the subject of this charge, and require the exclusion of all stock, invasive species control, and replanting within that area. 170Although I accept that this remediation work is likely to rectify much of the environmental harm caused by the offence, the defendant is not the owner of the properties the subject of the remediation directions, and, therefore, any such mitigation of the environmental harm caused by the offence cannot be attributed to the defendant personally, and does not act as a mitigating factor in his sentencing (s 21A(3)(i)(ii)). Payment of Costs 171The defendant does not oppose an order that he pay the prosecutor's reasonable costs of the matter, which have been estimated to be $172,275 (Exhibit D8), as a result of the length and complexity of the sentencing proceedings. 172That estimate has not been agreed, and does not appear to include investigation expenses, which I would normally order the defendant to pay, pursuant to s 248(1). Investigation expenses claimed must be shown to be "reasonably incurred", in that there is a "relevant nexus between the facts that pertain to the charges to which a plea of guilty has been entered and the claim for costs sought to be recovered": Craig J in Environment Protection Authority v Ashmore (No 2) [2014] NSWLEC 142, at [10]. 173In Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23, at [188], I said: If the obligation to pay costs will impact on the ability of an offender to pay a fine, the amount of the fine may be reduced: ... The amount of a fine may also be reduced if it causes seriously disproportionate hardship to the defendant: ... 174Throughout the sentencing hearing, Ian was supported by his wife and other family members. Ian and Mrs Turnbull suffered a partnership loss of $240,000 in 2013 (Exhibit D10). Ian alone had a tax loss of $86,000 that year, and the couple's bank account was overdrawn by nearly $45,000 (see Tp272, LL13 - 50). 175The prosecutor submitted that the information provided by the defendant did not provide a complete picture of the financial position of the defendant, and that I am unable to draw any useful inferences from it (see Tp230, L36 - p231, L 3). I agree that the financial material is, because of its incompleteness, and its lack of forensic analysis, unsatisfactory for the Court's purposes in this case: see and c.f. Environment Protection Authority v Pal [2009] NSWLEC 35, at [114] - [122], and Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255, at [103] - [112], and [115]. 176Pepper J said in Rummery, at [168]: "On the basis of the material before me, I am unable to determine with any confidence what the actual impact of the imposition of more than a nominal fine will be on Mr Rummery, other than to accept that it will cause him a degree of financial distress. I am certainly unable to find that it would result in the forced sale of his primary residence, or even, if they are separate, of Yarragool." 177Likewise, while the Court appreciates the financial pressures which traditionally affect the rural sector, the information provided by and on behalf of this defendant is inadequate to support the inference that the payment of costs will have an impact on his ability to pay more than a nominal fine. Therefore, this will not be taken into account in arriving at a proportionate sentence. Specific and General Deterrence 178Given the defendant's lack of contrition and remorse, and the fact that he is a farmer who owns numerous properties, and is seen as a leader in his sector, there is a need for an element of specific deterrence, as well as general deterrence, in the penalty imposed. 179It must be substantial enough to deter others, as well as himself, from clearing native vegetation, particularly in this area, where unlawful clearing appears to have been an ongoing concern for the community. Evenhandedness 180Craig J said in Bombala (at [115]): The principle of evenhandedness in sentencing requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered. However, care must be exercised in undertaking this task as the facts and circumstances, both objective and subjective that inform the imposition of a penalty in one case will inevitably differ from those facts and circumstances relevant to inform an appropriate penalty in the case under consideration. 181In closing address, the prosecutor took the Court to a number of NV clearing cases for the purposes of consistency in sentencing (Tp228, LL28ff). These included Chief Executive of the Office of Environment and Heritage v Humphries ("Humphries") [2013] NSWLEC 213; Rummery; Walker; and Newbigging. 182Having considered those cases, I find that the present offence certainly warrants a more significant penalty than that imposed by Pepper J in Rummery, where the defendant was fined $80,040 for clearing 239ha of native vegetation (reduced on appeal to $66,000 - Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106, (2014) 201 LGERA 428). 183The offence here, however, involves the clearing of trees across a greater area. Unlike here, Pepper J determined that the motivation for the clearing was not solely financially motivated (at [141]), the plea of guilty attracted the full discount for its utilitarian value (at [153]), and the defendant demonstrated genuine contrition and remorse (at [157]). 184In Humphries, the defendant was remorseful, offered reparation, and provided more satisfactory financial particulars. 185This case is, however, less serious than Graymarshall, where I fined the defendant $200,000, with no discount. Although the area cleared was the same as here (38ha), it involved the complete clearing of vegetation from more than 20% of a property of 170ha, and the vegetation cleared was described as "pristine" (at [21]). The defendant did not co-operate with the prosecutor at all, no plea of guilty was entered, and the defendant put on absolutely no evidence. 186In my view, Ian Turnbull's offence warrants a similar penalty to that which I imposed in Newbigging and Powell. In both those cases the defendant was fined $160,000 (before deductions for subjective factors). In Newbigging, the defendant was found to have cleared a total of 60.6ha of Native Vegetation, involving the removal of 834 "individual stems" (at [57] - [58]), and, like here, the aggravating factor of environmental harm was found to be substantial. Conclusion 187I have decided that the defendant should be fined $160,000, with a 12.5% discount for his plea of guilty, bringing the fine down to $140,000. 188The defendant will also be ordered to pay the reasonable investigation and legal costs of the prosecutor, as agreed or assessed. Orders 189The Orders of the Court are: (1)The defendant is found guilty, and convicted, of the offence with which he was charged in the summons. (2)The defendant is fined the sum of $140,000. (3)The defendant is ordered to pay the reasonable investigation and legal costs and disbursements of the prosecutor, as agreed, or as assessed according to law. (4)The exhibits, MFI no. 2, and working copies of some exhibits, may be returned, other than Exhibits P1 and P2. ********** 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: 19 September 2014