Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 Hearing dates: 28 September 2018 Decision date: 17 October 2018 Before: Payne JA at [1] Simpson AJA at [2] Wilson J at [34] Decision: Appeal dismissed Catchwords: CRIMINAL LAW – appeal – appeal against sentence – whether sentence manifestly excessive. CRIMINAL LAW – appeal – appeal against sentence – offence under s 12(1) of the Native Vegetation Act 2003 (NSW) – where another person charged under the same section – where offences of a similar nature – application of parity principle Legislation Cited: Criminal Appeal Act 1912, s 5AB Environmental Planning & Assessment Act 1979 (NSW), s 126(1) Native Vegetation Act 2003 (NSW) s 12(1) Cases Cited: Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Turnbull v Director-General, Office of Environment and Heritage (2014) 212 LGERA 163; [2014] NSWLEC 84. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Grant Turnbull (Appellant) Chief Executive of the Office of Environment & Heritage (Respondent) Representation: Counsel: T Alexis SC (Appellant) T G Howard SC / D K Jordan (Respondent) Solicitors: Cole & Butler (Appellant) Office of Environment and Heritage (Respondent) File Number(s): 2016/151258 Decision under appeal Court or tribunal: Land & Environment Court Jurisdiction: Class 5 Citation: [2017] NSWLEC 141 Date of Decision: 24 October 2017 Before: Preston SC CJ File Number(s): 2016/151258 Judgment 1. PAYNE JA: I agree with Simpson AJA. 2. SIMPSON AJA: On 31 May 2015 in the Land & Environment Court the appellant, Grant Wesley Turnbull, entered a plea of guilty to a charge that between 1 June 2012 and 5 January 2013, in contravention of s 12(1) of the Native Vegetation Act 2003 (NSW) (now repealed), he cleared native vegetation without appropriate authority. 3. Section12(1) of the Native Vegetation Act provided as follows: "(1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act or (b) a property vegetation plan." By s 12(2) of the Native Vegetation Act and s 126(1) of the Environmental Planning & Assessment Act 1979 (NSW), at the time of the commission of the offence, the maximum penalty that could be imposed was $1,100,000. 1. Notwithstanding his plea of guilty, the appellant contested significant aspects of the prosecution case. As a consequence, a hearing to determine the factual issues in dispute took place over 5 days in April and May of 2017. The hearing proceeded jointly with the hearing of a similar charge against Cory Ian Turnbull, who also entered a plea of guilty and who similarly contested a large part of the factual basis of the prosecution case against him. 2. On 24 October 2017 the primary judge, Preston CJ of LEC, delivered a separate judgment in each case. He imposed on the appellant a fine of $315,000 (after allowing, pursuant to the principles stated in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, a reduction of 12.5% in the fine he otherwise would have imposed) and ordered him to pay the costs of the prosecution. 3. In respect of Cory Turnbull, he imposed a fine (again after 12.5% reduction) of $393,750 and made a similar costs order. 4. The appellant now appeals against the severity of the fine imposed. (Although he initially sought leave to appeal, as the respondent pointed out, by reason of s 5AB of the Criminal Appeal Act 1912, an appeal lies as of right). 5. The appellant has pleaded two grounds of appeal: by the first ground, he asserts error based on "the parity principle" when the fine imposed on him is compared with the fine imposed upon Cory Turnbull. By the second ground, he asserts that the fine imposed was manifestly excessive and unreasonable. The facts of the offence 1. In January 2012 the appellant purchased a property called "Colorado", at Croppa Creek, near Moree in northern New South Wales. The property is approximately 1,533 hectares, of which part was cultivated and part uncleared native vegetation. Prior to its purchase by the appellant, it had primarily been used as a grazing property. The appellant's intention was to clear more of the land and use it for cropping. Even before settlement of the purchase, some native vegetation clearing had been undertaken by the appellant's father, Ian Turnbull (it is a reasonable inference that the appellant purchased the land from his father). Ian Turnbull was prosecuted for that clearing and was convicted: Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150. As a result of that clearing the appellant was directed to undertake remedial work: see Turnbull v Director-General, Office of Environment and Heritage (2014) 212 LGERA 163; [2014] NSWLEC 84. 2. Subsequently, over a period of about 5 months commencing in August 2012, the appellant carried out or authorised the clearing of native vegetation. The dispute in the penalty proceedings involved the extent of the clearing. The primary judge found that the area of native vegetation cleared was 103.6 hectares and included (contrary to the appellant's contention) native ground cover and over 1,000 trees and shrubs. It included native vegetation that was habitat for threatened native fauna such as koalas and species of birds. 3. In his assessment of the objective gravity of the offence, the primary judge concluded that a high level of environmental harm was caused. Other sentencing considerations 1. The primary judge observed that the environmental harm was irremediable, and that the land had been used by the appellant for growing crops since 2013. The appellant has no intention of restoring the lost vegetation or offering any compensation by way, for example, of creation of biodiversity on other land. 2. The primary judge also noted that the evidence established that the appellant was well aware of the illegality of his conduct, and had, indeed, promised environmental officers to cease clearing and that his conduct was deliberate and premeditated and that he foresaw the risk of the harm that in fact eventuated. 3. On the other side of the scales, the primary judge noted that the appellant has no prior convictions of any kind, including for environmental offences, and is otherwise of good character. 4. He took into account the plea of guilty, which was not entered at the earliest opportunity, and allowed a reduction in the penalty he otherwise would have imposed of 12.5%. The starting point for the fine was therefore $360,000. The quantification of the reduction in penalty in recognition of the plea of guilty was due to the timing of the plea (almost a year after the appellant was first charged) and the unsuccessful contest of facts alleged, with consequent reduction in its utilitarian value. 5. In the selection of the sentence, the primary judge also took into account the absence of any persuasive evidence concerning financial obstacles to the appellant's capacity to pay a fine. The penalty imposed on Cory Turnbull 1. The evidence against Cory Turnbull was similar to that against the appellant. Cory Turnbull contested essentially the same factual bases of the prosecution case as did the appellant. The differences between them lay in the scale of the clearing the subject of the offences. While the appellant was found to have illegally cleared 103.6 hectares of native vegetation, Cory Turnbull was found to have cleared 316 hectares. While the appellant was found to have cleared at least 1,086 trees and shrubs, Cory Turnbull was found to have cleared at least 3,700. 2. As indicated above, the fine imposed on Cory Turnbull was $393,750. That penalty also represented a 12.5% reduction in recognition of his plea of guilty: the starting point of the fine was therefore $450,000, or a 25% increment on the fine presently under consideration. The grounds of appeal 1. By the first ground of appeal it is contended that the primary judge erred by failing to apply "the parity principle between co-offenders" thereby creating "unjustified disparity" between the sentences imposed on the appellant and Cory Turnbull. 2. It will be seen that it is assumed, in the ground of appeal as formulated, that the appellant and Cory Turnbull are co-offenders. That is not the case. Although it is true that they were charged under the same section, and the offence that each committed was of the same nature as the offence the other committed, it was never alleged, and they never contended, that they had acted jointly in the commission of an offence. 3. The "parity principle" has been a feature of criminal sentencing practice in this State at least since the decision of the High Court in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46. In that case, Mason J said: "… what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate." 1. It may be observed in passing that at issue in Lowe were sentences imposed on co-offenders strictly so called. That cannot be said of the appellant and Cory Turnbull, each of whom committed an individual offence. 2. The "parity principle" has wider application than only to co-offenders. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, Bell J said: "119 …Co-offenders are offenders who commit the same crime. It may be accepted that the principle of parity stated in Lowe is not confined to co-offenders so defined. Two or more offenders who successively have sexual intercourse with the same unconsenting complainant on the same occasion are not co-offenders and yet it would favour formality over substance to hold that parity did not apply in sentencing them (provided that their culpability and antecedents were otherwise comparable)." Her Honour then referred to the facts of Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60, in which it was held that the parity principle applied to the sentencing of offenders for similar money laundering offences. 1. Although in Green Bell J was in dissent as to the outcome of the appeals, these observations are uncontroversial. They are in accord with the reasons of the majority (French CJ, Crennan and Kiefel JJ) at [30]. 2. The point sought to be made on behalf of the appellant is that, having regard to the greater volume of clearing undertaken by Cory Turnbull, there ought to have been a greater degree of disparity in the fines imposed. Counsel sought to make this point numerically by dividing the amount of each fine by the number of hectares cleared, and by the number of trees or shrubs said to have been destroyed. On that analysis, the fine imposed on the appellant represented $3,475 per hectare or $331 per tree, whereas the fine imposed on Cory Turnbull represented $1,424 per hectare or $122 per tree. 3. This is an entirely simplistic, and, indeed, fallacious, way of going about the assessment of the relative severity of the fines imposed. It fails to take account of the careful analysis undertaken by the primary judge of the various relevant sentencing factors and the degree of environmental harm done. It gives pre-eminent and undue weight to one only of a plethora of relevant sentencing considerations, to all of which the primary judge directed considerable attention. In this respect it is worth recalling the discussion by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[78]. 4. During the course of the hearing of the appeal senior counsel added a further purported basis for assessing relativity. That was the proportion of land owned by each offender that was the subject of illegal clearing. No rational basis for this approach was advanced, in fact, no basis was proposed. The proposition is entirely without merit. 5. The starting point of the fine imposed on Cory Turnbull (before the reduction allowed for the plea of guilty) was $450,000, against a starting point of the fine of $360,000 imposed on the appellant, an increment of 25%. That is significant differentiation that adequately takes account of the difference in the scale of the offending. 6. I would reject Ground 1 of the appeal. 7. By the second ground of appeal, the appellant contends that the fine imposed was manifestly excessive and unreasonable. He sought to support this by reference to a number of earlier decisions. While it may be accepted that consistency in sentencing is a desirable goal, consistency in sentencing does not require identity of outcome. In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 the High Court pointed out that relevant consistency is consistency in the application of the relevant legal principles, "not some numerical or mathematical equivalence". 8. There is nothing in the material presented on behalf of the appellant that persuades me that the sentence imposed is out of step with an appropriate range of sentencing for the offence to which the appellant pleaded. 9. I would reject this ground of appeal. 10. Accordingly, I would dismiss the appeal against sentence. 11. WILSON J: I agree with Simpson AJA. ********** Amendments 22 October 2018 - Typographical errors made at [23] and [30] 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: 22 October 2018