Turnbull v Chief Executive of the Office of Environment and Heritage

MEAGHER JA: I agree with Button J.

MCCALLUM J: Subject to one qualification, I agree with Button J, for the reasons his Honour has stated. I agree that no factual error is established in this case, whether one applies the traditional test (whether the finding of fact was open to the sentencing judge) or the less limited approach favoured by the majority in Clarke v R [2015] NSWCCA 232 at [25]-[36] per Basten JA; Hamill J agreeing at [133] (whilst acknowledging at [136] that the tension in the relevant authorities may be a matter best resolved in an appropriate case by a specially constituted bench of five); Garling J contra at [97]-[99]. Button J has expressed his preference for the traditional approach. As this issue was not argued in the present appeal and in light of my agreement that no error is established on either approach, I would prefer to reserve my view on that issue.

I agree with the orders proposed by Button J.

BUTTON J: On 19 September 2014 in the Land and Environment Court of New South Wales, Sheahan J convicted and sentenced Ian Robert Turnbull (the applicant) with regard to an offence against s 12 of the Native Vegetation Act 2003 (NSW) (the Act). That section is as follows:

Pursuant to s 126 of the Environmental Planning and Assessment Act 1979 (NSW), the applicable maximum penalty is a fine of $1.1 million.

The applicant had pleaded guilty to clearing two properties in the North West of New South Wales between 1 November 2011 and 18 January 2012. That plea was entered at the stage of a directions hearing on 17 May 2013.

The learned sentencing judge imposed a fine of $140,000. The applicant was also “ordered to pay the reasonable investigation and legal costs and disbursements of the prosecutor, as agreed, or as assessed according to law”.

Pursuant to s 5AB of the Criminal Appeal Act 1912 (NSW), the applicant has sought leave to appeal against that sentence.

This judgment explains why, in my opinion, leave to appeal should be granted but the appeal should be dismissed, except with regard to correcting a conceded slip made by his Honour in the order dealing with costs.

Although the applicant pleaded guilty to the offence, a number of factual matters remained in dispute, and required determination by his Honour. The proceedings on sentence extended over four days, and featured extensive oral evidence, including cross-examination of a number of witnesses.

A particular dispute centred upon the degree of damage that was occasioned by the criminal acts of the applicant.

I derive the following summaries of the objective features pertaining to the offence, and the subjective features pertaining to the applicant, from the combined effect of an agreed statement of facts that was placed before his Honour, and the remarks on sentence. I shall indicate which findings of fact are impugned by grounds of appeal as I summarise them.

Objectively, the criminal conduct of the applicant consisted of clearing native vegetation on two properties associated with members of his family. Another person acted at his direction, and a bulldozer was used. Photographs were tendered that permitted his Honour to see the results of that conduct with his own eyes.

There was a significant dispute in the proceedings on sentence with regard to the actual extent (in terms of hectares) of the consequences of the conduct of the applicant that was captured by the dates in the indictment. That dispute was resolved by his Honour in favour of the applicant, in that his Honour accepted at [110] that he should sentence on the basis that 38.7 ha were cleared, not 493.7 ha.

There was no dispute that 3000 trees were destroyed.

On the basis of factual findings that I shall detail later in this judgment, his Honour found at [136] that the damage caused was substantial, and regarded that as an aggravating feature of the matter. That finding is impugned by ground one.

As to the subjective features, as I have said the applicant pleaded guilty. He did so at an early stage. However, his Honour allowed only a discount of 12.5% for the utilitarian value of that plea. That evaluative judgment is impugned by ground five.

Despite that formal admission of guilt, the sentencing judge was not prepared to find that the applicant was remorseful.

Aged 77 at the date of the offence, the applicant was a man of prior good character. The approach taken by his Honour to that fact is impugned by one leg of ground four.

His Honour found that the applicant acted with a wilful disregard of the consequences of his actions. That finding was based upon the proposition that the applicant hurried to complete the clearing of the native vegetation before he was served with a stop work order. That finding is impugned by the second leg of ground four.

There was no dispute before us that the offence to which the applicant pleaded guilty is an offence of strict liability. His Honour considered whether the aggravating feature of an intentional breach of the law about land clearing by the applicant had been established by the prosecutor beyond reasonable doubt. His Honour was not so satisfied.

His Honour was satisfied, however, that the applicant acted recklessly in the sense that that concept is understood by the criminal law; namely, that the applicant contemplated the possibility that his actions were unlawful, but nevertheless proceeded. That finding was in turn founded largely upon the evidence of a Mr Farago, who is an environmental scientist employed by the Local Catchment Management Authority.

The finding of fact that the applicant acted recklessly is impugned by ground two.

Finally, his Honour also found that the offence was motivated, to some degree, by financial gain. The applicant impugns that finding of fact by ground three.

The grounds that were notified and pressed were as follows:

It can be seen that the majority of the grounds of appeal assert error on the part of the sentencing judge with regard to findings of fact. And there was no controversy between the parties about the basis upon which this Court will review findings of fact made by sentencing judges at first instance: it was accepted that it was incumbent upon the applicant to demonstrate that a finding was not “open”.

After judgment was reserved in this matter, however, the decision of this Court in Clarke v R [2015] NSWCCA 232 was handed down.

In that case, Basten JA queried whether the test of whether a finding of fact of a sentencing judge was open is the correct one. His Honour reviewed a number of authorities of the High Court of Australia and this Court, and ultimately said:

Garling J, in contrast, applied the orthodox approach of asking whether the applicant had established that a finding was not open to the sentencing judge: at [99] and [104].

Hamill J expressed a preference at [133] for the view of Basten JA, although his Honour noted that resolution of the question was not necessary to the determination of that appeal. His Honour also accepted at [134] that the approach appeared to be contrary to a long line of authority in this Court, and suggested at [136] that perhaps a five judge bench should sit to resolve any inconsistency of approach.

Seeking to take into account those three recent judgments in my approach to this matter, I consider that it could be that, in many, if not most, applications to this Court for leave to appeal against sentence, the subtle difference in meaning between a mistake of fact by a sentencing judge that was material to sentence and a finding of fact that was not open to a sentencing judge will have no effect on the result. Certainly, that is the case here: on either formulation, I consider that the applicant has not demonstrated factual error on the part of the sentencing judge.

But if it be the case that there is a real difference between the two formulations, I would respectfully prefer to maintain the test of asking whether the finding of fact was open to the sentencing judge. That is so for three reasons.

First, as Hamill J said, that is a test that is long-established, and has been applied by this Court on very many occasions.

Secondly, as recently as in AB v R [2014] NSWCCA 339, Simpson J (as her Honour then was) (with whom Meagher JA and Wilson J agreed) affirmed that test as being the correct one: at [44]-[55]. And that was in the context of the approach of this Court to review of findings of fact being fundamentally impugned by the applicant in that case.

Thirdly, I consider that the test is a straightforward one that balances, on the one hand, the autonomy and evaluative judgments of sentencing judges, and, on the other hand, the role of this Court in ensuring that idiosyncratic or irrational findings do not go uncorrected.

In short, I shall proceed to apply the established test - whether the applicant has established that the sentencing judge made a finding of fact that was not open - to the relevant grounds of appeal.

In the proceedings on sentence, a number of expert witnesses were called by the parties on the question of the extent of loss of native vegetation caused by the acts of the applicant.

Mr Spiers is employed by the Office of Environment and Heritage as an aerial photography interpreter. He was called by the prosecution. To summarise his evidence, his position was that extensive tree removal had occurred on the two properties between November 2011 and January 2012, including 420.7 ha on the property “Colorado”, and 73 ha on the property “Strathdoon”. The total area of native vegetation cleared across the two properties was therefore, on his evidence, 493.7 ha.

Dr Nadolny is a senior ecologist employed by the Office of Environment and Heritage. He was also called by the prosecution. To summarise his evidence, his position was that the vegetation that was cleared on the two properties was mainly native vegetation. Adopting the findings of Mr Spiers as to the area of native vegetation cleared, he found that the main species of trees cleared were the Brigalow, Belah, and Poplar Box, along with a number of other native shrubs, vines, mistletoes and groundcover plants.

Dr Nadolny found that the clearing on both properties had resulted in significant environmental harm. He observed that the major impacts of the clearing included the loss of a significant area of vegetation; the loss of an endangered ecological community (“EEC”) (namely, Brigalow trees); the loss of significant areas of over-cleared vegetation types; and a significant loss of habitat for fauna.

With regard to fauna, Dr Nadolny observed that the loss of habitat was likely to affect several threatened species, including the Koala and the Grey Crowned Babbler. In addition, he noted that the damage to other species of wildlife as a result of the destruction of hollow-bearing trees on the two properties was likely to be long-term, especially given that some of those trees had taken well over a hundred years to develop.

The applicant relied on the expert evidence of two witnesses at first instance. The first, Mr Sinclair, is a senior botanist employed by an ecological consultancy. To summarise his evidence, his position was that minimal vegetation had been cleared on the two properties. In particular, he noted that the only vegetation cleared on the Colorado property was native trees, as opposed to understorey or groundcover vegetation.

In contrast to the conclusion reached by Mr Spiers, Mr Sinclair found that 38.7 ha of native vegetation had been cleared across the two properties. As well as that, he was of the view that the observations made by Dr Nadolny regarding environmental harm could not be relied upon, as they were based on clearing that occurred outside the charge period, and did not take into account that vegetation communities may have been modified by past clearing events.

The evidence of Mr Hall, an environmental adviser and ecologist, was also relied upon by the defendant. Mr Hall accepted the finding made by Mr Sinclair that a total of 38.7 ha of native vegetation was cleared across the two properties. He also disputed Dr Nadolny’s findings as to the environmental harm caused by the clearing. Mr Hall observed that the 38.7 ha cleared was a relatively small area of vegetation, especially when compared to the 800 ha of remnant high-value vegetation that was retained.

As well as that, he observed that the properties still have large areas of suitable habitat remaining to support a population of Koalas and other native species at a healthy level of density. In his view, the suggestion that the environmental harm caused by the clearing was “substantial” was therefore unfounded.

It is now convenient to set out a substantial proportion of what his Honour said in the remarks on sentence about this topic:

As I have said, the dispute about the extent in terms of hectares of the clearing was resolved in favour of the applicant. Nevertheless, it was not disputed that 3000 trees were destroyed by the acts of the applicant.

It was submitted by senior counsel for the applicant before us that it was not open to his Honour to accept the opinion of Dr Nadolny. A detailed analysis of the competing evidence at first instance was provided. It was submitted that, because it was not open to accept the expert opinion of Dr Nadolny that the environmental damage was substantial, it was not open to his Honour to find that that damage was substantial, thereby aggravating the offence.

The prosecutor submitted that the finding was well open to his Honour. Indeed, his position (not further explored, in light of the nature of the proceedings in this Court) was that some of the findings of his Honour were unduly favourable to the applicant.

Turning to my determination, I reject the proposition that the evaluative judgment that the damage caused by the actions of the applicant was substantial was not open to the determination of his Honour. It can be seen from the remarks on sentence that that characterisation was the culmination of a review of factors that preceded it in the remarks on sentence. They were: the fact that 3000 trees were destroyed [at 129]; the fact that the habitat of koalas (which are an endangered animal) was badly affected [at 131]; and the fact that the habitat of a particular species of bird (which is a threatened species) was similarly affected [at 133].

To my mind, the characterisation of the damage by his Honour as being substantial was not founded upon an explicit acceptance of what Dr Nadolny had to say about the topic (although it is true that the evidence about the impact upon the habitats is derived from the evidence of Dr Nadolny).

As I have said, the destruction of 3,000 trees was not disputed. And whilst it is true that there was a dispute between, on the one hand, Dr Nadolny and Mr Spiers for the prosecution and, on the other, Mr Sinclair and Mr Hall for the applicant, about the degree of damage to the habitats, I consider that it was open to his Honour to have preferred the evidence of Dr Nadolny about that topic. It can be seen from the extract that I have provided that his Honour did not uncritically accept the evidence of the prosecution witnesses; quite the contrary.

In short, I consider that it was open to his Honour to find that those three consequences of the actions of the applicant amounted to damage that could be judged to be substantial.

I emphasise that I do not consider that the evaluation of his Honour was founded upon an identical evaluation by Dr Nadolny. Reading the relevant portion of the remarks on sentence as a whole, I consider that his Honour was making it clear that the determination of substantiality was made by the Court, not by the prosecution expert.

Speaking more generally, I reject the proposition that it was not open to the sentencing judge to make his own evaluation of the degree of environmental damage in the asserted absence of expert evidence. I do so because I would also reject the analogous proposition that a judge sentencing for a crime of violence would not be entitled to describe a 15 cm wound to the head requiring 20 sutures as substantial, in the absence of expert medical evidence to that effect; or that a sentencing judge would not be entitled to describe a fraud in the sum of $2 million as substantial, in the absence of expert financial evidence to that effect. That is because it is not an evidential pre-condition of a finding by a sentencing judge that the consequences of an offence are grave, or trivial, or something in between, that there be expert evidence to identical effect.

I would reject ground one.

Again, it is convenient to set out an extract of what his Honour said on this topic in the remarks on sentence:

The ground was developed at the hearing of the application by way of a detailed analysis of the evidence of Mr Farago and his “negative evaluation”. To state things succinctly, Mr Farago, who it will be recalled is an environmental scientist employed by the Local Catchment Management Authority, had had a conversation with the grandson of the applicant in the presence of the applicant. Mr Farago was speaking about whether the grandson would be permitted to clear native vegetation on particular parts of a particular property, and expressed reticence about it.

On appeal it was submitted that, because one cannot be sure that Mr Farago was speaking of the areas (whether in whole or in part) that the applicant ultimately cleared, then it was not open to his Honour to find that the applicant behaved recklessly with regard to his own conduct on separate land.

I reject that submission. To my mind, a reading of the paragraphs that I have extracted above shows that his Honour was not speaking of a state of mind of the applicant about any specific part of any specific property. Rather, his Honour was satisfied beyond reasonable doubt that the applicant foresaw the possibility that what he was doing was generally unlawful.

In other words, it was not a matter of the applicant being affirmatively satisfied that Mr Farago had prohibited what the applicant was doing; if that were the case, one would have expected his Honour to have found that the applicant behaved intentionally. Rather, his Honour found the lesser state of mind of recklessness, based upon the inference that, having heard what Mr Farago had said to the grandson, the applicant appreciated that there was a substantial risk that what he was doing was unlawful: see generally (in the context of reckless wounding) R v Coleman (1990) 19 NSWLR 467; (1990) 47 A Crim R 306; and Blackwell v R [2011] NSWCCA 93; (2011) 81 NSWLR 119.

Such a reading of the remarks on sentence is supported, to my mind, by the reference at [141] of the remarks on sentence to the judgment of Pepper J in Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 315, which speaks of belief or suspicion about what may be the case. And it is confirmed at [143] by his Honour speaking of the applicant appreciating, in a general sense, that his actions required approval before they could be undertaken.

I consider that the finding that the applicant was aware, in a general sense, that his actions may well have been unlawful was open to the sentencing judge. Accordingly, I would not uphold ground two.

Again, it is convenient to extract the bulk of what his Honour said on this topic (some references to exhibits are deleted for convenience):

It was said on behalf of the applicant in written submissions before us that:

The prosecutor submitted that the evidence of the fact that the applicant would obtain a share of the profits after the first year provided a solid basis for the finding of fact that “financial motivation” could be taken into account as a “relevant minor aggravating factor”.

To my mind, this ground can be determined quickly. There was uncontroverted evidence contained in the recorded interview of Cory Turnbull that was tendered in the proceedings on sentence that the applicant was to benefit financially by way of profits from the first year of the operation of the property Strathdoon.

In light of that evidence, it was well open to the sentencing judge to find that the offence had been motivated, to some degree, by a desire to achieve a financial gain, and to regard that as an aggravating factor on sentence.

I would therefore reject ground three.

Again, it is convenient to set out what his Honour said on the topic:

Those findings were based in turn on the following portions of a recorded interview between the applicant and investigators of the Office of Environment and Heritage:

It was said before us by senior counsel for the applicant that it was not open for his Honour to be satisfied beyond reasonable doubt that the applicant had “flagrantly disregarded the consequences of his actions by continuing clearing in knowledge that he was likely to receive a stop work order”.

The prosecutor submitted, in a nutshell, that that characterisation of the conduct of the applicant was open to his Honour on the evidence. That is because the applicant had acknowledged in his record of interview that he was trying to clear as much land as possible before the arrival of the stop work order because of financial pressure.

I do not accept the submission of senior counsel for the applicant. To my mind, in the recorded interview, the applicant was admitting that he had hurried to complete as much of the clearing as he could before he was served with the stop work order, which he correctly believed to be imminent. It is significant that the first word of the answer to question 267 is the word “Yeah”, which accepts the correctness of the assertion in the question. The admission by the applicant of that conduct with that state of mind provided a sound basis for the finding that the applicant acted in flagrant disregard of the consequences of his actions.

The second, and conceptually separate leg of this ground, is the proposition that his Honour did not take into account the good character of the applicant on sentence. But it can be seen that his Honour referred to that very topic without demur at [157] when he said that “the glowing references speak for themselves to [the applicant’s] credit, and one says that he is “devastated” by the charge”. That reference shows that his Honour accepted, and took into account, the undisputed evidence about the prior good character of the applicant.

I would reject both bases of ground four.

The submission of senior counsel for the applicant in support of this ground may be summarised as follows. Although the utilitarian value of the plea of guilty was objectively reduced by the need for a four-day hearing to resolve a number of factual disputes, the fact that those matters were resolved substantially in favour of the applicant meant that there should have been no reduction in that discount. Reliance was placed upon the well-known decision of R v Oinonen [1999] NSWCCA 310 for the proposition that there are limited circumstances in which a full discount should be given, even if a plea of guilty has not had fully advantageous utilitarian consequences, if the responsibility for the loss of the utilitarian benefit cannot be laid at the feet of the offender.

So much may be accepted. But I do not accept that the substantial majority, or even a majority, of the matters that were in dispute and required resolution by these extended proceedings on sentence were determined in favour of the applicant.

To state the position concisely, the remarks on sentence, when read in light of the written submissions at first instance, demonstrate that there were disputes before his Honour about a large number of matters. They included the size of the area that had been cleared; the nature of the vegetation cleared; the extent of vegetation cleared; the impact of the clearing on the environment; the urgency with which the land was cleared before the applicant was served with a stop work order; the motivating factors behind the clearing; the demonstration of contrition of remorse by the applicant; and the extent of mitigation of environmental harm undertaken by the applicant. And yet the only issue that was clearly determined in favour of the applicant was the issue of the number of hectares that had been cleared by him. In those circumstances, the principle in Oinonen is inapposite.

Speaking more generally, it is well established that the question of the discount that should be afforded to an offender for the utilitarian value of his or her plea of guilty is a matter of evaluative judgment very much reposed in sentencing judges: see R v Thomson & Houlton (2000) 49 NSWLR 383, 419, and the recent reference by Simpson JA (with whom Fagan J and I agreed) in De Angelis v R [2015] NSWCCA 197 at [59], to the “essentially discretionary judgment” of a sentencing judge. Because of that, it is also well established that this Court will be slow to intervene.

Again, I consider that the discount provided was soundly open to the evaluation of his Honour, in all of the circumstances of this case.

I would not uphold ground five.

Again, it is convenient to extract a substantial portion of that part of the remarks on sentence that dealt with this topic. At [169] – [170] his Honour said:

Before us it was submitted that his Honour had failed to appreciate that remedial work had been ordered to be done, albeit not by the applicant. It was said that that erroneous approach caused his Honour to fail to regard the offence as objectively less serious, because its consequences, in the long term, would be less profound.

The Crown submitted that remedial work had only been contemplated as a result of the pronouncement of remedial directions by the Office of Environment and Heritage, which required the owners of the properties to repair and rehabilitate the cleared land. It was said that those remedial directions did not require any work to be done, or any sacrifice to be made, by the applicant personally. Accordingly, his Honour was not required to take reparation into account as a mitigating factor on sentence.

I reject the submission that the aspect of sentencing that his Honour was discussing in the extracted portion was the question of the long-term consequences of the offence. That is because his Honour explicitly referred to s 21A(3)(i)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That subsection is as follows:

To my mind, in this part of the remarks on sentence, his Honour was not discussing the objective feature of the degree of damaged caused by the actions of the applicant. Rather, his Honour was discussing the subjective feature of whether or not the applicant was remorseful, had accepted responsibility for his actions, and either acknowledged the damage he had caused or made reparation for the damage he had caused. The completed or envisaged actions of other persons, pursuant to a direction, were not relevant to the question of whether the applicant himself had shown remorse.

Accordingly, to my mind, there was no error demonstrated in the approach taken by his Honour to this question. I would reject ground six.

This final ground to do with costs was explained by senior counsel for the applicant as being founded upon success with regard to ground five.

In other words, it was submitted that, if this Court were to find that the applicant had been successful with regard to the majority of the disputes that were resolved by his Honour, we should also find that costs of the extended proceedings on sentence should not have been ordered against him.

Counsel for the prosecutor invited our attention to the fact that, at first instance, a concession was made on behalf of the applicant that costs should be ordered against him. That concession was not contingent, he submitted, upon the applicant failing with regard to the areas of factual dispute before his Honour.

But in any event, that procedural aspect need not be explored further. That is because I consider that it cannot be said that the applicant enjoyed substantial success with regard to the matters placed in dispute in the proceedings on sentence. In that regard, I repeat the analysis provided at [79] of this judgment.

Finally, it was conceded before us by counsel for the prosecutor that his Honour had erred in ordering costs as extending to the reasonable investigation costs of the prosecutor. That concession included the proposition that his Honour had no power to order such costs. Counsel for the prosecutor made it clear that no steps would be taken by his client to seek to enforce that part of the costs order; nevertheless, for abundant caution, I consider that that order should be altered by this Court.

All of the grounds were fully argued. None of them were unarguable. In my view, leave should be granted, but none of them call for intervention, save for the last.

The applicant read an affidavit updating subjective matters, as against the contingency that any ground of appeal were upheld. Because of my opinion that no substantive ground should be successful, there is no need for me to detail the contents of that affidavit.

I propose the following orders: