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.
**********
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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