On 24 March 2020 and between 6 April and 6 July 2020 the state government owned Forestry Corporation of New South Wales (FCNSW) committed breaches of Forestry Act 2012 within the boundaries of Yambulla State Forest on the far south coast of the state.
NOTE: As Forestry NSW is a state-owned entity, it is the NSW Treasury (on behalf the people of NSW) which will eventually pay any monetary penalties imposed by a court or government authority if FNSW is cash poor. It should also be noted that, based on past history, there appears to be a reluctance to individually hold to account any private logging company (contracted by Forestry NSW to work in state forests) which wilfully or negligently acts in breach of the law. This may go a long way to explaining the arrogance of the logging industry generally and repeat offender Forestry NSW in particular.
In the Land and Environment Court New South Wales on 31 July 2024 in Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78 Peppers J handed down a judgment with the following orders:
Orders
In conformity with the reasons given above, the Court makes the following orders:
In proceedings 2022/171640
(1) the defendant is convicted of the offence contrary to s 69SA(1) of the Forestry Act 2012 as charged;
(2) the defendant must pay a monetary penalty in the sum of $225,000;
In proceedings 2022/171639
(3) the defendant is convicted of the offence contrary to s 69SA(1) of the Forestry Act 2012 as charged;
(4) the defendant must pay a monetary penalty in the sum of $135,000;
In proceedings 2022/171639 and 2022/171640
(5) pursuant to s 122 of the Fines Act 1996, 50% of each of the monetary penalties imposed on the defendant is to be paid to the prosecutor as a moiety;
(6) pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s professional costs of the proceedings as agreed or assessed under s 257G of that Act;
(7) within 28 days of the date of this order, pursuant to s 13.25(1)(a) and (b) of the Biodiversity Conservation Act 2016, the defendant must, at its own expense, cause a notice in the form of annexure ‘A’ to these orders to be published within the first 12 pages of the following publications, at a minimum size as near as practicable to 180 cm2:
(a) The Sydney Morning Herald;
(b) The Daily Telegraph; and
(c) the Bega District News.
(8) within 42 days of the date of this order, the defendant must provide the prosecutor with a complete copy of the notices as published pursuant to order 7; and
(9) the exhibits are to be returned.
Annexure A
[Forestry Corporation of New South Wales logo to be inserted]
Forestry Corporation of New South Wales Convicted of Offences in Relation To Harvesting Operations In Yambulla State Forest in 2020
On 31 July 2024, Forestry Corporation of New South Wales (“FCNSW”) was convicted in the Land and Environment Court of NSW (“the Court”) for offences under the Forestry Act 2012 for breaching two conditions of its integrated forestry operations approval (“the approval”).
FCNSW breached the approval by failing to show two known Environmentally Significant Areas on an operational map prepared for harvesting operations within compartment 299A of the Yambulla State Forest and by carrying out forestry operations between April and July 2020 in one of the two Environmentally Significant Areas. As a result, 53 eucalypt trees were felled and harvested. The harvesting operation caused actual harm to the felled trees and impacted the refuge of various native flora and fauna species following the Black Summer bushfires. It also led to the compaction and disturbance of groundcover elements. The harvesting operations also potentially harmed the Dusky Woodswallow, Scarlet Robin and the Varied Sitella, being threatened bird species known to inhabit the Yambulla State Forest.
The prosecution was brought by the NSW Environment Protection Authority (“EPA”). FCNSW has been fined a total of $360,000 and has agreed to pay the EPA’s professional costs as agreed or assessed. This notice was placed by order of the Court and was paid for by FCNSW.
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A brief look at aspects of the Court's reasons by way of judgment excerpts:
Maximum Penalty
81 The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
82 FCNSW is charged with two breaches of s 69SA(1)(b)(i) of the Forestry Act, each of which carry a maximum penalty of $2,000,000 in the case of a corporation.
104 I am satisfied beyond reasonable doubt that the commission of the harvesting offence caused actual and potential harm in the manner set out in Dr Wall’s report. I am further satisfied that the harm caused was substantial because the felling of the 53 trees not only had individual environmental value, but collectively, the trees represented a significant ecological cohort, the felling of which, together with the compaction and disturbance to ground cover, disrupted the refugial status of polygon 2 in a forest that had been severely impacted by bushfire (s 21A(2)(g) of the CSPA).
110 The mapping offence arose due to Clark incorrectly inputting the spatial data into the operational map and failing to adequately review her work. Clark’s supervisor, Clohesy, also failed to properly check her work despite being required to sign off on the operational map. The harvesting offence occurred due to the mapping offence. As stated above, both mistakes were inadvertent.
118 I do not accept that the circumstances giving rise to the error in spatial mapping were unique because they required manual data entry. Rather, the error occurred due to a failure to implement adequate systems to properly transition to a new process as necessitated by the SSOCs. It is entirely conceivable, if not likely given the impact of climate change on native vegetation, that FCNSW will have the need for SSOCs again.
119 I find that FCNSW failed to take the preventative measure of implementing a robust process for reviewing the operational map to ensure that all of the ESAs were properly identified on it. In addition, I find that Chaudhary’s evidence of the steps that FCNSW has taken to prevent future similar incidents was unhelpful given its highly generalised content.
123 A sentencing judge is not required to nominate a point on a scale of seriousness when assessing the objective seriousness of an offence. While occasionally useful, such an exercise adds little substance to the task of instinctive synthesis and determination of a proportionate sentence. As was observed by the Court of Criminal Appeal in DH v R [2022] NSWCCA 200 (at [60]):
60. The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.
124. Nevertheless, on any view, the environmental crimes committed by FCNSW were objectively serious, causing, as they did, substantial actual and potential ecological harm.
Contrition and Remorse
125 Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
In Waste Recycling Preston J suggested at least four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]). I respectfully adopt and apply his Honour’s analysis in the present proceedings.
In his affidavit, Chaudhary expressed contrition as follows:
10 On my behalf and that of FCNSW, I express sincere regret and remorse that FCNSW employees failed to properly prepare maps recording the ESA areas required for retention and that harvesting occurred within one of those areas.
11 I have read the report of Dr Julian Wall, date 9 November 2024. While I am aware that the precise nature of harm to Yambulla State Forest is still in dispute, I accept that the harvesting resulted in the harvesting of 53 trees that should have been retained, the loss of biomass and impacts on habitat after the fires. I also acknowledge that the failure to map the ESAs resulted in machinery entering one of the polygons in circumstances where this was not permitted. I regret to have caused any harm to the environment.
Chaudhary and Linda Broekman, FCNSW’s Senior Compliance Manager, were present for the sentencing hearing on behalf of FCNSW (T1:18). However, Chaudhary was required to be present for cross-examination and left as soon as it was concluded.
The Chaudhary affidavit was filed late in breach of the Court’s timetable. Leaving aside delay, the affidavit constitutes no more than a bare expression of contrition and remorse, the kind of which was cautioned against in Waste Recycling (at [203]). Moreover, FCNSW has not taken any steps to remediate the harm caused by the commission of the offences (Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1 at [80]). In addition, it has not wholly accepted responsibility for the environmental harm caused by the commission of the offences insofar as it rejects the refugial status of polygon 2.
I therefore give only limited weight to FCNSW’s expression of contrition through Chaudhary.
Early Pleas of Guilty
131 A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).
132 The EPA submitted, and FCNSW accepted, that guilty pleas were not entered at the earliest opportunity. FCNSW entered guilty pleas on the morning of a contested liability hearing that was listed for four days. Having said this, the guilty pleas demonstrate some acceptance of culpability and some weight must be given to FCNSW’s entry of the pleas and the resultant savings in time and resources as a consequence. I therefore find that FCNSW is entitled to a 10% discount for its guilty pleas.
Prior Convictions of FCNSW
134 FCNSW has a lengthy record of prior convictions for environmental offences (s 21A(2)(d) and (3)(e) of the CSPA):
(a) on 12 June 2004 the Court convicted FCNSW (formally the Forestry Commission of New South Wales) of one offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“the POEOA”) for causing the construction of a dirt road in the Chichester State Forest in such a manner that parts of it collapsed and resulted in pollutants entering the waters of the forest. The Court ordered FCNSW to pay a monetary penalty of $30,000 and awarded costs to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 (“Chichester State Forest”));
(b) on 8 June 2011 the Court convicted FCNSW of one offence against s 175(1)(a) of the NPWA insofar as it breached a condition of a threatened species licence contrary to s 133(4) of that Act by conducting bushfire hazard reduction burning in the Smokey Mouse exclusion zone of the Nullica State Forest. The commission of the offence was caused by the inadequate shading of the exclusion zone on the relevant map. The Court ordered FCNSW to pay $5,600 to a project to improve the Smoky Mouse monitoring sites in the South East Forests National Park and awarded costs in the agreed sum of $19,000 (Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 (“Nullica State Forest”));
(c) on 10 July 2013 the Court convicted FCNSW of one offence against s 120(1) of the POEOA for polluting waters and one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from hazard reduction burns in the Mogo State Forest. The cause of the commission of the offences was inadequate training of persons involved in the preparation of a burn plan which resulted in an inaccurate plan. The Court ordered FCNSW to pay a total monetary penalty of $35,000 to be directed towards a project in the affected area. Legal and investigation costs were awarded to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 (“Forestry Commission”));
(d) on 5 October 2017 the Court convicted FCNSW of one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from its failure to conduct a thorough search for rocky outcrops in the Glenbog State Forest, which were consequently not identified on the harvest plan. The Court fined FCNSW $8,000, ordered it to publish a notice in the Bega District News in relation to its commission of the offences, and awarded costs to the EPA (Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132 (“Glenbog State Forest”));
(e) the Batemans Bay Local Court convicted FCNSW of one offence against s 69SA(1) of the Forestry Act for carrying out unlawful harvesting operations which resulted in the removal of four hollow bearing trees in Mogo State Forest. That Court fined FCNSW a total of $20,000 with 50% payable to the EPA as moiety, awarded the EPA costs in the amount of $84,340, and made a publication order (Environment Protection Authority v Forestry Corporation of NSW (Mogo State Forest prosecution) (Local Court (NSW), Dick LCM, 15 November 2023, unrep));
(f) on 9 June 2022 the Court convicted FCNSW of four offences contrary to s 2.14(4) of the BCA. The offences related to the carrying out of harvesting activities in koala and rainforest exclusion zones in the Wild Cattle Creek State Forest. The Court fined FCNSW a total of $135,600 with 50% payable to the EPA as a moiety, awarded costs in the sum of $150,000 to the EPA, and ordered FCNSW to publish notices in The Sydney Morning Herald and the Coffs Coast News of the Area in relation to its commission of the offences (Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70 (“Wild Cattle Creek”)); and
(g) on 22 June 2022 FCNSW was convicted of three offences contrary to s 69SA(1) of the Forestry Act in that it failed to mark the boundary of an ESA in breach of its threatened species licence and consequently carried out harvesting operations in bat roosting exclusion zones in the Dampier State Forest. The Court fined FCNSW a total of $225,000, with $45,000 to be paid to the Australasian Bat Society Inc and 50% to be paid to the EPA as a moiety. The Court ordered FCNSW to pay the EPA’s legal and investigation costs, and made publication orders (Dampier State Forest).
135 The EPA submitted that the two most comparable cases to the present proceedings were Dampier State Forest and Wild Cattle Creek.
136 FCNSW submitted that less weight ought to be attributed to its history of offending because it has not previously committed an offence similar to the harvesting and mapping offences.
137 FCNSW’s submission must be rejected. It has a significant history of unlawfully carrying out forestry operations, which is exactly what the mapping and harvesting offences are (Wild Cattle Creek and Dampier State Forest). In addition, it has previously been convicted for failing to mark the boundary of ESAs and exclusion zones in breach of environmental approvals (Dampier State Forest and Wild Cattle Creek). I therefore take into account its extensive antecedents.
156 The EPA submitted that the quantum of any monetary penalty should not be reduced to take account of the award of costs merely because FCNSW has agreed to pay the EPA’s costs voluntarily (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50] and Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54 at [125]-[126]).
157 An award of costs does not result in a commensurate reduction in any monetary penalty imposed. Rather, I have taken the fact of the payment of costs by FCNSW, which both the EPA and FCNSW agreed will be substantial, into account as a factor in mitigation.
Appropriate Sentence
162 Having regard to the objective seriousness of the offences and the mitigating subjective factors of FCNSW, together with the penalties imposed in the comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows:
(a) for the harvesting offence a monetary penalty of $250,000; and
(b) for the mapping offence a monetary penalty of $150,000.
163 After the application of the 10% discount for the utilitarian value of the early guilty pleas, the penalty for the commission of each offence is reduced to:
(a) for the harvesting offence a monetary penalty of $225,000; and
(b) for the mapping offence a monetary penalty of $135,000.
164 This brings the total monetary penalty to be imposed on FCNSW to $360,000.
167 In the context of sentencing, a publication order serves the functions of general deterrence, denunciation, and a recognition of the harm caused by the offending conduct (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]). FCNSW’s offending conduct was not trivial and occasioned substantial actual and potential environmental harm. FCNSW will continue to undertake forestry harvesting activities and has not sufficiently demonstrated genuine contrition and remorse for its commission of the offences. These factors weigh heavily in favour of making a publication order in the terms sought by the prosecutor.
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