CASE TABLES Vol 2

14 Judicial Commission of NSW Transparent and consistent sentencing in the Land and Environment Court NSW: orders for costs as an aspect of punishment NATIVE VEGETATION ACT 2003 (from December 2005; current regime as at date of publication*): s 12 Maximum penalty (under s 126 of the Environmental Planning and Assessment Act 1979, until 30 July 2015): $1,100,000 plus $110,000 per day for a continuing offence. Both persons and incorporated bodies subject to the same maximum penalties * The NV Act is to be repealed on the commencement of s 3 of the Local Land Services Amendment Act 2016 which is cognate with the Biodiversity Conservation Act 2016 N Category count Citation Class of offender^ Reason Objective seriousness Environmental harm Fine amount Prosecutor’s costs # Remediation order (s 38) Fine plus costs “Total” Prosecutor’s costs as % of “Total” costs Case details 9 9 Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [ Iroch Pty Ltd ] [2009] NSWLEC 182 Small business owner Financially motivated. Commercial gain [47] Low Medium $22,000 $24,333 Yes (no $) $46,333 52.5% See Cases No 8 above. Agreed to complete remediation work [11(63)]. 10 10 Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [ GD & JA Williams Pty Ltd trading as Jerilderie Earthmoving ] [2009] NSWLEC 182 Small business owner Financially motivated. Commercial gain — no personal financial advantage. Paid as contractor [35] Low Medium $22,000 $24,333 Yes (no $) $46,333 52.5% See Cases No 8 and 9 above. The contractor, Jerilderie Earthmoving, “also gained a benefit by gaining an opportunity to graze cattle on the cleared land, albeit in lieu of being paid for the contracted clearing work” [47]. Mean $58,065 $44,787 $102,852 43.5% Median $35,075 $32,000 Two or more offences or counts under same Act, fine only, costs specified 11 1 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 [second hearing] Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 92 [successful appeal] Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 [Class 5 hearing] “Ordinary Joe” Financially motivated. Commercial gain (agriculture) [78] High Serious $318,750 As assessed Yes (no $) *Subsequently N/A N/A One s 12 offence plus one s 36(4) offence (failure to comply with notice to provide specified information and/or documents) ( Hudson (No 2) [20] and [58]) on rural property located near Moree committed by landowner. The clearing was motivated by commercial considerations ( Hudson (No 2) [153]); clearing not undertaken for routine agricultural management activities (noxious weed removal) as argued, but for purpose of making more land available for agriculture. Total land cleared was 472 hectares ( Hudson (No 2) [119]). “Where the harm, loss or damage, caused by an offence is substantial, as is the case here, it is an aggravating factor” [79]. Following successful appeal, CCA quashed original penalties and remitted matter back to LEC for second hearing. Second hearing orders: fines of $318,750 and $1,275 plus ordered to pay costs of second hearing and half the costs of first hearing. * Note: subsequent remediation order on landowner since the commission of the offences: “much of the vegetation on the cleared land had regrown” and defendant had incurred significant economic losses as a result of carrying out the remediation order ( Hudson (No 2), [79]). Single offence, fine only, costs not specified 12 1 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106 [successful appeal] Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 [Class 5 hearing] “Ordinary Joe” Negligent (Safe Working Environment) [140]–[141] of first instance hearing Serious Serious $66,000 As assessed No N/A N/A One s 12 offence by landowner on rural property in Tamworth region. From first instance hearing: 239 hectares cleared [72] and estimated 18,000 to 20,000 trees removed [85]. Actions were undertaken negligently [129]. Several reasons for clearing given by defendant: the primary being the provision of a safe working environment [132]. Commercial advantage was incidental and not found to be the motivation for the clearing as an aggravating factor [140]–[141]. Defendant pleaded guilty [150], demonstrated genuine contrition and remorse for his actions [157] and cooperated with authorities [160]. Fined $80,400. From appeal hearing: appeal from conviction dismissed but sentence appeal allowed and fine reduced to $66,000 [198]; although R A Hulme AJ favoured an even lesser fine based on “the fact that 10 to 20% or so of the trees could lawfully have been cleared was something which went to lessen the seriousness of the offence and should have been taken into account in any determination of the penalty” [207]–[209]. 13 2 Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75 [sentencing hearing] Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 [Class 5 hearing] Corporation Not for commercial gain; no intention or recklessness Corbyn [27], [29] Low Medium $80,000 As assessed No N/A N/A One s 12 offence. Walker, the corporate landowner, found vicariously liable for a contractor’s acts of clearing of native vegetation on the three lots in Appin committed by Environmental Land Clearing Pty Ltd (“ELC”) ( Walker [111], [125]). 7.3 hectares cleared ( Corbyn [21], Walker [84]). In the subsequent sentencing hearing, Preston CJ of the LEC stated: “The evidence and the findings I made in the penal liability judgment do not support drawing the inference that the offence was committed by Walker for financial gain but to preserve “a land bank for future development” ( Corbyn [29]). Pleaded not guilty, showed no remorse but did assist authorities [55]–[56]. Fined $80,000 plus costs. No remediation direction made and no revegetation work undertaken. 14 3 Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 [sentencing hearing] Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd [2011] NSWLEC 125 [Class 5 hearing] Corporation Financially motivated. Commercial gain [21], [22] High Serious $200,000 As assessed No N/A N/A One s 12 offence against corporate landowner clearing native vegetation on four registered plots totalling 38 hectares in Clarence Valley (between Coffs Harbour and Grafton) [1]. Defendant did not appear and was unrepresented; convicted and sentenced in his absence [38]. Total area cleared (38 ha) excessive for purpose of routine agricultural management activity — development application for subdivision into homesites: land cleared for financial incentives (“interested purchasers” identified) [36]. In Graymarshall (No 2) , Sheahan J at [26] “determined that a conviction should be recorded, and a substantial fine imposed. The defendant should also be ordered to pay the prosecutor’s costs. While I am satisfied that the prosecutor made every effort to keep its costs down, the failure of the defendant to engage with the prosecutor put the prosecutor to substantial expense in the form of expert evidence, photogrammetry, and the like”. No evidence of contrition or remorse, nor of any intention on the defendant’s part to seek to remediate the lands it cleared [25]. Defendant was fined $200,000 and ordered to pay costs. 15 4 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 [Class 5 hearing] Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210 [unsuccessful appeal] Corporation Not for commercial gain; “property maintenance” [103] Medium Medium $200,000 As assessed Yes (no $) N/A N/A One s 12 offence committed by the Walker Corporation on 23 hectares of a property it owned in Wilton (Hawkesbury-Nepean area) [38]. Later offence than that dealt with in Corbyn v Walker (see Case No 13). After the commission of that offence, a vegetative site assessment (“2006 Keystone report”) was commissioned by a contracted specialist land clearing company and given to Walker Corporation in mid August 2006. This report warned that “all of the work carried out up until the date of the report ‘could be illegal’ and that an expert assessment should be obtained to ascertain, in effect, the non-protected regrowth that could be lawfully cleared and the protected regrowth that could not” [13]–[14]. Nonetheless, clearing recommenced in October 2006 [15]. Pepper J had “no hesitation in finding beyond reasonable doubt that both before, but most certainly after, the receipt of the 2006 Keystone report, Walker’s instructions to clear the property were in reckless disregard of whether or not native vegetation would be unlawfully removed” [98]. Defendant did not plead guilty to the offence, no contrition or remorse was expressed, and no evidence of any cooperation or assistance given to the prosecutor [115]–[117]. Defendant did carry out the solitary remediation measure recommended [118]. Defendant fined $200,000 and ordered to pay prosecutor’s costs “not quantified (but) likely to be considerable” [119]. An appeal based on various grounds, including whether the sentence was excessive, was heard by the CCA in Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water . The appeal was dismissed.