CASE TABLES Vol 2

16 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 CONSERVATION ACT 1997 (rep): s 21 Maximum penalty (under s 126 of the Environmental Planning and Assessment Act 1979): Between January 1998 and 31 January 2000, the maximum penalty was $110,000 (with a daily penalty of $11,000 for a continuing offence). From 1 February 2000 to 30 November 2005, the maximum penalty was $1.1 million (with a daily penalty of $110,000 for a continuing offence). Both persons and incorporated bodies subject to the same maximum penalties 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 Two or more offences or counts under same Act, fine only, costs specified 22 1 Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 Small business owner Carelessness/ commercial gain [51] Medium Medium $40,000 $15,000 Yes (no $) $55,000 27.3% Two s 21(2) offences under the NVC Act (rep) by landowner/small business owner (agricultural and private forestry property in Snowy Monaro region). Fined $30,000 and $10,000. Prosecutor’s costs totalling $30,000. Serious careless error based on mistaken belief that the cleared vegetation was all regrowth less than 15 years old [74] with 13.5 hectares cleared [2]. Financial advantage including enhanced value of land in establishing the plantation [76]; land was advertised for sale [45]. Defendant pleaded guilty, gave full assistance to the prosecutor, demonstrated remorse, accepted responsibility for his actions, acknowledged the damage caused and complied with a remediation order [75]. The court added $10,000 to the fine “with the object of negating the net financial advantage that the defendant otherwise would obtain” [76]. Second offence — different Act, fine only, costs specified 23 1 Director-General of National Parks and Wildlife v Wilkinson Pty Ltd; Director-General of the Department of Land and Water Conservation v Wilkinson [2002] NSWLEC 171 Corporation and special liability offender (sole director) Financially motivated. Commercial gain/ intentional [48] see (j)–(l) Medium Serious $43,500 $90,000 Yes (no $) $133,500 67.4% Two s 21(2) offences under the NVC Act (rep) committed by corporate landowner and company director. These two native vegetation offences of “the same nature as 6 [additional] offences against 118D(1) of the National Parks and Wildlife Act 1974 ( NPW Act ) (damage to habitat of threatened species, etc.) and arise out of the same course of conduct” [96]. Wilkinson is the sole shareholder, director and secretary of Hockitt Pastoral Company [71], a rural property located in the Taree region. Around 34 hectares cleared [91]. The defendants pleaded guilty, and expressed contrition which is further evidenced by the defendant’s act of entering into a Property Agreement and consent to orders under s 118E of the NPW Act [80]. Property agreement under Pt 5 of the NVC Act (rep) relates to the land being retained for conservation purposes [50]. The agreement is between Hockitt Pastoral Company and the Department of Land and Water Conservation and remains in force for 10 years and the landholder is to bear the cost of carrying out any works [52]. Corporate defendant fined $11,000 for the native vegetation offence and a total of $5,250 (3 x $1,750) for the offences of knowingly damage the habitat of threatened species. Company director fined $1,750 for the native vegetation offence and a total of $25,500 ($22,000 plus 2 x $1,750) for the offences of knowingly damage the habitat of threatened species. Totality principle applied: “The resultant aggregate which I adopt, namely $43,500, is one which is appropriate for all the offences so as to reflect the total criminality of the defendants. The individual penalties [detailed in the judgment] are ... what would otherwise be appropriate if each is considered in isolation” [96]. Maximum penalty at the time that the native vegetation offence occurred was $110,000 [subsequently increased to $1.1 million] [9]. Defendants to jointly pay the prosecutor’s costs — $50,000 with regard to the native vegetation offences and $40,000 for the damage habitat offences [90]. Single offence, fine only, costs not specified 24 1 Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 “Ordinary Joe” Prosecutor alleged: financially motivated; for commercial gain [20] High Serious $20,000 As assessed Yes (no $) N/A N/A One s 21 offence under the NVC Act (rep) by the landowner on property located near Kempsey. Change in landcover detected by satellite imagery analysis and aerial photography [10]–[11]. Around 30.5 hectares of land cleared to create pasture for cattle, to carry more cattle and to improve the value of the property [20]. Court rejected “the assertion made by the defendant that his motivation was simply to allow for the better movement of cattle across the property. If that was his motivation then the area required for such a purpose was only a small proportion of the area that was cleared” [21]. Defendant pleaded guilty but supplied misleading information and failed to cooperate with authorities, which provided “doubt as to the extent of genuine contrition, repentance and remorse” [27]–[29]. Defendant was also served with a remediation direction and lodged an appeal to the LEC against that direction. That appeal was subsequently discontinued after the parties reached a compromise agreement as to the area of land to be the subject of remedial action [14]. The remediation work was not costed. Defendant fined $20,000 and ordered to pay the prosecutor’s costs. Key to symbols # Estimated prosecutor’s costs used where indicated in the judgment. ^ No s 250(1)(a) publication order (or similar) was ordered for any of the 24 native vegetation offences. Sentencing regime key NV Act 2003: s 12 NVC Act 1997: (rep)