Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90

Land and Environment Court New South Wales

Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 Hearing dates: 23 April 2019 Date of orders: 25 June 2019 Decision date: 25 June 2019 Jurisdiction: Class 5 Before: Preston CJ Decision: The Court orders:

In proceedings 2018/42080:

(1) Traikaero Pty Ltd is convicted of the offence against s 12(1) of the Native Vegetation Act 2003 as charged. (2) Traikaero Pty Ltd is fined $170,000. (3) Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Chief Executive of the Office of Environment and Heritage (the prosecutor).

In proceedings 2018/42126:

(1) Anthony Norman Woods is convicted of the offence against s 12(1) of the Native Vegetation Act 2003 as charged. (2) Anthony Norman Woods is fined $170,000. (3) Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Chief Executive of the Office of Environment and Heritage (the prosecutor).

In proceedings 2018/42080 and 2018/42126:

(1) Traikaero Pty Ltd and Anthony Norman Woods are to pay $21,000 each to the Chief Executive of the Office of Environment and Heritage (the prosecutor) for the prosecutor's costs of the proceedings. Catchwords: OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused - clearing reckless – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence is low-middle range – subjective circumstances of offenders – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate individual fines – adjustment of fines for multiple offenders – director and company owned by director – reduction in individual fines – costs Legislation Cited: Crimes Act 1900 s 192J Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23 Criminal Procedure Act 1986 ss 215, 246, 257B Fines Act 1996 s 122 Native Vegetation Act 2003 ss 3, 6, 9, 12, 22, 23, 24, 25, 44, 45 Protection of the Environment Administration Act 1991 s 6 Cases Cited: Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312; [2017] FCAFC 159 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140 Chief Executive of the Office of Environment and Heritage v Kurstjens; Chief Executive of the Office of Environment and Heritage v Topview Brisbane Pty Ltd [2017] NSWLEC 54 Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141 Chief Executive, Office of Environment and Heritage v Ian Robert Turnbull [2014] NSWLEC 150 Chief Executive, Office of Environment and Heritage v Powell [2012] NSWLEC 129 Couloumbis v R [2012] NSWCCA 264 Director General, Department of Environment and Climate Change v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 Director General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 Director General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Director General, Department of Environment and Climate Change v Rummery [2012] NSWLEC 271 Environment Protection Authority v Alcobell Pty Ltd; EPA v Campbell [2015] NSWLEC 123 Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Bay Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) [2016] NSWLEC 120 Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council (2018) 232 LGERA 304; [2018] NSWCCA 56 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2007) 275 IR 148; [2017] FCA 1301 Fines Act 1996 Greentree v Minister for Environment and Heritage (2005) 144 FCR 388; [2005] FCAFC 128 Hamilton v Whitehead (1988) 166 CLR 121 Keir v Sutherland Shire Council [2004] NSWLEC 754 KR v R [2012] NSWCCA 32 Lee v R [2019] NSWCCA 15 Minister for Sustainability, Environment, Water, Population and Communities v Woodley (2012) 194 LGERA 290; [2012] FCA 957 Morton v R [2014] NSWCCA 8 Postiglione v The Queen (1997) 189 CLR 295 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 Turnbull v Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 Category: Sentence Parties: Chief Executive of the Office of Environment and Heritage (Prosecutor) Traikaero Pty Ltd (First Defendant) Anthony Norman Woods (Second Defendant) Representation: Counsel: Ms S Goodwin (Prosecutor) Mr SM Littlemore QC, with Ms PM Lane (Defendants)